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[2013] ZAECPEHC 31
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Bobani v Nelson Mandela Bay Metro Municipality and Others (1459/13) [2013] ZAECPEHC 31 (28 June 2013)
5
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
Case No. 1459/13
Date Heard: 25/6/13
Date Delivered:
28/6/13
Not Reportable
In the matter between:
MONGAMELI ELLCOTTE
BOBANI
.................................................................
Applicant
and
NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY
...................................................................................
First
Respondent
LINDIWE MSENGANA
NDLELA
...................................................
Second
Respondent
MEMBER OF THE
EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS
(EASTERN CAPE)
...................................
Third Respondent
Interim interdict –
requirements – well-grounded apprehension of irreparable harm
not established – application
for interim interdict dismissed
with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PLASKET, J:
[1] Mr Mongameli Ellcotte
Bobani (Bobani) has brought an application in two parts against the
Nelson Mandela Bay Metropolitan Municipality
(the municipality), Dr
Lindiwe Msengana-Ndlela (the municipality’s municipal manager)
and the Member of the Executive Council
for Local Government and
Traditional Affairs in the Eastern Cape Provincial Government (the
MEC). In Part A of the notice of motion
– with which this
judgment is concerned – he seeks orders interdicting the
municipality from continuing to use the
services of the municipal
manager and her from rendering services to the municipality pending
the finalisation of Part B of the
notice of motion, a review of the
decision to appoint her to that post. (The MEC is cited as a
respondent as a result of his interest
in the matter but no relief is
claimed against him in either Part A or Part B of the notice of
motion.)
[2] The application was
brought as a matter of urgency. When it came before Griffiths J on 28
May 2013 he ruled that it was indeed
urgent but he postponed it at
Bobani’s cost to allow the respondents adequate time to prepare
and file answering papers.
Sandi J then postponed the matter again on
18 June 2013, with costs reserved. The papers have now grown to
nearly 500 pages.
[3] The municipal manager
initially placed in issue Bobani’s standing and she also
brought an application in terms of rule
47 of the uniform rules in
which she sought an order requiring him to furnish security for
costs. At the hearing of the matter,
Mr Beyleveld, who appears for
both the municipality and the municipal manager, abandoned the rule
47 application and conceded that
Bobani had established his standing,
albeit, he said, in reply. The rule 47 application will therefore be
dismissed with costs.
That means that the only issue that I am
required to deal with is whether Bobani has made out a case for an
interim interdict.
[4] An applicant who
applies for an interim interdict must establish: (a) the right that
forms the subject matter of the main application
and which he or she
seeks to protect, on a
prima
facie
basis
at least (even if it is open to some doubt); (b) a well- grounded
apprehension that, if the interim interdict is not granted
and the
main application succeeds in due course, he or she will suffer
irreparable harm; (c) the balance of convenience favours
the granting
of interim relief; and (d) he or she has no other satisfactory
remedy.
1
[5] I do not intend
dealing with each of the requirements in turn because that is not
necessary on account of the view I take of
the matter. It can be
disposed of with reference to one of the elements, that of the
apprehension of irreparable harm. (This should
not be taken to mean
that I have found that the remaining elements have been established.
I leave those issues open.)
[6] Bobani’s case
is that irreparable harm will be suffered if the interim interdict is
not granted and the review succeeds
in due course because the
municipal manager will, in the period between now and the review,
take a significant number of decisions
(if she is not interdicted
from doing so) that will be liable to be set aside with prejudicial
consequences for the municipality
and its rate-payers. The arguments
of all of the parties centred around whether this apprehension was a
reasonable one and the
starting point of the argument was the Supreme
Court of Appeal’s judgment in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
.
2
[7]
Oudekraal
dealt with the effect of
invalid administrative actions. After finding that the administrator
of the Cape Province had, many years
previously, taken a decision
which was invalid, Howie P and Nugent JA proceeded to say:
3
‘
But the
question that arises is what consequences follow from the conclusion
that the Administrator acted unlawfully. Is the permission
that was
granted by the Administrator simply to be disregarded as if it had
never existed? In other words, was the Cape Metropolitan
Council
entitled to disregard the Administrator's approval and all its
consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until
the Administrator's approval (and thus also the consequences
of the
approval) is set aside by a court in proceedings for judicial review
it exists in fact and it has legal consequences that
cannot simply be
overlooked. The proper functioning of a modern State would be
considerably compromised if all administrative acts
could be given
effect to or ignored depending upon the view the subject takes of the
validity of the act in question. No doubt
it is for this reason that
our law has always recognised that even an unlawful administrative
act is capable of producing legally
valid consequences for so long as
the unlawful act is not set aside.’
[8] Because invalid
administrative acts have a factual existence, they can create valid
legal consequences: in many cases they will
serve as the basis for a
further administrative action and the validity of the second action
may not be dependant on the validity
of the first, only on its
factual existence.
4
This position is not
absolute for, as Howie P and Nugent JA point out later in their
judgment, where an administrator seeks to use
coercive powers against
a person, that person may, if he or she believes the basis for the
coercive power is invalid, ignore it
and rely on its invalidity in a
collateral (or defensive) challenge to it when the administrator
attempts to enforce it. This is
so because ‘[w]hen construed
against the background of principles underlying the rule of law a
statute will generally not
be interpreted to mean that a subject is
compelled to perform or refrain from performing an act in the absence
of a lawful basis
for that compulsion’.
5
[9] Mr Richards, who
appeared for Bobani, pointed to three issues in particular. In the
first place, he said, there are powers that
only a municipal manager
may perform. He cited decisions relating to procurement of goods and
services as an example. Decisions
of this nature, if taken by the
municipal manager, may not be ratified subsequently by the
municipality if her appointment is found
to be invalid. These
decisions will therefore be vulnerable to challenge by, for instance,
disgruntled unsuccessful tenderers.
Secondly, municipal managers are
vested with coercive powers and if the municipal manager’s
appointment is found to be invalid,
her exercise of coercive powers
may be ignored with impunity and, if there is an attempt to enforce a
coercive power, it may be
reviewed collaterally. Thirdly, and more
generally, if her appointment is found to be invalid, all of her
decisions may be vulnerable
to challenge.
[10] Both Mr Beyleveld
and Mr Gqamana, who appeared for the MEC, while accepting the legal
position set out in
Oudekraal
,
disavow the consequences that Mr Richards apprehends. From a
practical perspective, they argue, the dire consequences that he
predicts are unlikely to materialise. In the first place, if the
municipal manager’s appointment is set aside, there is no
reason to believe that there will be a flood of applications to set
aside large numbers of decisions that have been taken by her.
Secondly, those decisions that she may have taken that can validly be
ratified by the municipality would probably be. Thirdly,
it is not a
matter of certainty that challenges to her decisions based on the
invalidity of her appointment will succeed: their
validity may not be
dependant on the invalidity of her appointment and, even if decisions
she has taken are found to be invalid
on this account, the remedy of
setting aside, being discretionary, may be withheld in order to
prevent dislocation of the municipality’s
functioning and to
prevent administrative chaos. Finally, the court that reviews and
sets aside her appointment may, for reasons
of good governance,
follow the Constitutional Court’s lead in
Democratic
Alliance v President of the Republic of South Africa & others
6
in which it was ordered
that decisions and acts of an invalidly appointed National Director
of Public Prosecutions whose appointment
was set aside would not be
invalid ‘merely because of the invalidity of his appointment’.
(I note that many of the
decisions and acts of a National Director of
Public Prosecutions will, in the nature of things, tend to be
coercive.)
[11] For these reasons I
am of the view that Bobani has not established a well- grounded
apprehension of irreparable harm if the
interim interdict is not
granted and the review succeeds in due course. That being so, there
is no basis for the grant of the interim
interdict on this ground
alone and consequently no need for me to deal with the other
requirements.
[12] Costs were reserved
by Sandi J when he postponed this matter on 18 June 2013. I was
informed by Mr Gqamana that it was occasioned
by Bobani requiring an
opportunity to file a replying affidavit. As he brought the
application as a matter of urgency, and thus
was in a position to
determine the time needed for the various procedural steps to be
completed, he must pay the costs of the postponement.
[13] I make the following
order.
(a) The second
respondent’s rule 47 application is dismissed with costs.
(b) The applicant’s
application for interim relief is dismissed with costs, including the
costs reserved on 18 June 2013.
___________________________
C Plasket
Judge of the High Court
APPEARANCES:
Applicant: Mr J G
Richards, instructed by Kaplan Blumberg Attorneys
First and second
respondents: Mr A Beyleveld SC, instructed by Minnaar Niehaus
Attorneys and Le Roux Inc
Third respondent: Mr N
Gqamana, instructed by the State Attorney
1
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton & another
1973 (3) SA 685
(A), 691D-E; Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel
Herbstein
and Van Winsen:
The
Civil Procedure of High Courts and the Supreme Court of Appeal of
South Africa
(5 ed) Vol 2
at 1456-1457.
2
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA).
3
Para
26.
4
Paras
28-29.
5
Para
32.
6
Democratic
Alliance v President of the Republic of South Africa & others
2013 (1) SA 248
(CC) para 95. See too
para 93.