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[2012] ZAECPEHC 95
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Democratic Alliance v Kouga Municpality and Others (2502/12) [2012] ZAECPEHC 95 (20 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT
ELIZABETH
Case No: 2502/12
In the matter between
THE DEMOCRATIC ALLIANCE
.................................................
Applicant
and
THE KOUGA MUNICIPALITY
........................................
First
Respondent
THE EXECUTIVE MAYOR OF THE FIRST
RESPONDENT, MR BOOI KOERAT
............................
Second
Respondent
THE MUNICIPAL MANAGER OF THE
FIRST
RESPONDENT, MR SIDNEY FADI
................................
Third
Respondent
THE ACTING MUNICIPAL MANAGER
OF THE FIRST RESPONDENT,
MS COLLEEN DREYER
...............................................
Fourth
Respondent
MR VERNON STUURMAN, A MEMBER
OF THE MAYORAL COMMITTEE OF THE
FIRST RESPONDENT
...................................................
Fifth
Respondent
MR PATRICK KOTA, A MEMBER OF THE
MAYORAL COMMITTEE OF THE FIRST
RESPONDENT
.............................................................
Sixth
Respondent
MS VIRGINIA CAMEALIO-BENJAMIN,
A MEMBER OF THE MAYORAL COMMITTEE
OF THE FIRST RESPONDENT
..................................
Seventh
Respondent
MS ANGELINA MASETI, A MEMBER OF
THE
MAYORAL COMMITTEE OF THE FIRST
RESPONDENT
.............................................................
Eight
Respondent
MR PHUMZILE OLIPHANT, A MEMBER OF
THE MAYORAL COMMITTEE OF THE
FIRST
RESPONDENT
............................................................
Ninth
Respondent
THE HONOURABLE MR MLIBO
QOBOSHIYANE,
THE MEC: LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS,
EASTERN CAPE PROVINCE
........................................
Tenth
Respondent
MR J JANSEN
........................................................
Eleventh
Respondent
MR V FELTON
..........................................................
Twelfth
Respondent
MS T TOM
...........................................................
Thirteenth
Respondent
MS C BURGER
....................................................
Fourteenth
Respondent
JUDGMENT
REVELAS J
[1] The applicant seeks to review
and set aside the resolution of the mayoral committee of the first
respondent (the municipality)
taken on 11 June 2012, appointing the
eleventh to fifteenth respondents respectively as directors in four
departments of the municipality,
and the fourteenth respondent as its
Chief Financial Officer. The appointments were made in terms of
section 56 of the Municipal
Systems Act 32 of 2000 (the Systems Act).
[2] The Council of the first
respondent, having accepted that it was impermissible for the mayoral
committee to have made the appointments
of the respondents concerned,
by implication, abandoned that resolution. On 29 June 2012 the
Council of the first respondent appointed
the same respondents to the
same positions. The applicant also seeks to set aside this resolution
of the Council.
[3] It was common cause between the
parties that the mayoral committee did not have the necessary power,
authority or jurisdiction
to make the appointments in question and
therefore its decision was null void. The applicant, relied on the
decision in
Oudekraal Estates (Pty) Ltd v City of Cape Town and
Others
2004 (6) SA 222
(SCA) at 243 A-F, where it was held that a
void administrative act nonetheless remains extant in fact, and until
it is set aside,
it could provide the foundation for legal validity
of future acts.
[4] The respondents relied on the
exception to the aforementioned general rule, that it is not
necessary to bring an application
to set aside a decision, where the
decision-maker (as in the present matter) had no jurisdiction or
power at all to make the decision.
[5] In the recent decision of
The
Master of the High Court v Motala NO
2012(3) SA 325 (SCA), a
court order which was a nullity was held (in paragraph [14] of the
judgment), to be of no force and effect.
The court held: “
Being
a nullity, a pronouncement to that effect was unnecessary. Nor did it
first have to be set aside by a court”.
[6] (See also: Voet,
Commentarius
ad Pandectas 49.8.1 and 3, Sliom v Wallach’s Printing and
Publishing Company Ltd
1925 TPD 650
at 656).
[7] Clearly, there is no reason to
set aside the first decision of the mayoral committee.
[8] The applicant argued that the
second decision ought to be set aside on the grounds that in the
absence of an approved organogram
(a practice that has been abolished
by the municipality) all contracts of employment of municipal
employees are automatically invalid
by virtue of the provisions of
section 66 of the Systems Act. This point was raised for the first
time, not when the applicant
participated in the vote as to which
managers should be appointed, but only in its replying affidavit.
[9] At the time when the
appointments were made, there was a “
staff
establishment
” in place, as envisaged by section 66 of
the Systems Act. Managers appointed in terms of section 56 of the
Systems Act are
to be dealt with separately from, the “
staff
establishment
”, in my view
.
[10] It was correctly submitted that
the appointment criteria of such person should rather include
relevant skills as required by
section 56(b) of the Systems Act, than
form part of the “
staff establishment
”. Their
duties are not created and developed under section 66(1)(b) but under
section 57 of that Act. (See also Chapter 2
of the Municipal
Performance Regulations). Furthermore, it is not possible to create
directorates without simultaneously creating
posts for directors.
There is thus a “
staff establishment
” in place in
any event. Even if there was a procedural flaw in the appointments in
this regard, it does not warrant setting
them aside because this
objection ought to have been raised at the relevant time, its own
candidates were elected for positions
in the same manner. By its
actions, the applicant condoned the flaw.
[11] Accordingly, the application is
dismissed with costs, including the costs of two counsel.
_________________
E REVELAS
Judge of the High Court
Counsel for the Applicant, Adv HJ
van der Linde, instructed by Wikus Van Rensburg Attorneys.
Counsel for the Respondent’s,
Adv RG Buchanan SC, and Adv P Kroon, instructed by Van Der Walt
Attorneys.
Date Heard: 6 December 2012
Date Delivered: 20 December2012