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[2022] ZAECQBHC 2
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Nelson Mandela Bay Municipality and Others v Qaba and Others (862/2022) [2022] ZAECQBHC 2; [2022] 3 All SA 239 (ECP) (5 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
REPORTABLE
In
the matter
between:
Case
No: 862/2022
NELSON
MANDELA BAY MUNICIPALITY
First Applicant
CITY
MANAGER: NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY
Second Applicant
EXECUTIVE
MAYOR: NELSON MANDELA BAY
METROPOLITAN
MUNCIPALITY
Third
Applicant
AND
ANELE
QABA
First Respondent
MUNICIPAL COUNCIL OF
NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY
Second Respondent
GARY STANTON VAN
NIEKERK
Third Respondent
JUDGMENT
GOOSEN
J:
[1]
At the heart of this matter lies a dispute
between political parties represented in a municipal council. The
dispute concerns the
choice of person to appoint as the municipal
manager. The case comes before this court in the form of an
application for interim
relief pending a review, in unusual, even
extraordinary circumstances. As will be seen the outcome of the case
provides no assurance
that the underlying malaise will be resolved.
[2]
It is a
matter of public record that none of the political parties that
contested the 2021 local government elections in Nelson
Mandela Bay
secured an outright majority. The municipal council consists of 120
seats. The African National Congress and Democratic
Alliance each
secured 48 seats. The Economic Freedom Fighters 8 seats; the Northern
Alliance 3 seats; the Patriotic Alliance, Vryheidsfront
Plus;
Defenders of the People and African Christian Democratic Party each
secured 2 seats and Abantu Integrity Movement, African
Independent
Congress; Good Party; Pan Africanist Congress of Azania and the
United Democratic Movement each secured 1 seat.
[1]
The result is that smaller parties hold sway in the balance of power
in the municipal council.
[3]
Following the municipal elections, the African
National Congress was able to constitute a loose coalition of parties
to enable it
to form a local government. A council member of the ANC,
Mrs Eugene Johnson (the third applicant in this matter), was elected
as
Executive Mayor. Mr Gary Van Niekerk, a member of the Northern
Alliance, was elected as Speaker of the council.
[4]
It is also a matter of public record that the
coalition government has, from time to time, encountered difficulties
because of internal
contestation. It is common cause that the post of
municipal manager has been vacant. Various officials have, for this
reason, acted
in that capacity. This continued while a process was
undertaken to fill the post permanently. It is this latter process
which culminated
in the matter now before this court.
The
Facts
[5]
On 16 March 2022, a council meeting was convened
by the Speaker. The agenda contained an item relating to the
appointment of the
municipal manager for whom a selection process had
been completed. It appears that ANC councillors, together with some
representatives
of smaller parties favoured the appointment of Dr
Nqwazi. Other councillors did not. This included councillors
associated with
the coalition government. It is common cause that
during the debate on the item, the council meeting descended into
chaos. A large
number of councillors disrupted the proceedings by
singing, chanting and dancing. According to the minutes of the
meeting, when
the item was put to the vote, councillors either had or
were in the process of leaving the chamber. The item was nevertheless
put
to the vote. 57 councillors were recorded as being seated in the
chamber and, with 50 votes recorded in favour of appointing Dr
Nqwazi, the resolution was declared carried.
[6]
The papers filed by the parties do not disclose
what occurred immediately after the vote. It is, however, common
cause that 57 councillors
does not constitute a quorum which would
allow for a continuation of the meeting. I shall deal with this more
fully later in this
judgment.
[7]
On 17 March 2022 the executive mayor issued a
letter of appointment to Dr Nqwazi. On the same day she signed an
employment contract
with Dr Nqwazi.
[8]
On 23 March 2022 the Speaker, Mr Gary Van
Niekerk, convened a further council meeting. There is a dispute about
this meeting being
a properly convened meeting of council to which I
will return. For the present it suffices to say that the minutes of
that council
meeting record that it was a continuation of the meeting
of 16 March convened to deal with the outstanding business of
council.
This included important business related to the budget. At
the meeting of 23 March 2022 an item was tabled as a matter of
exigency.
What followed was consideration of the fact that the
executive mayor had proceeded to appoint Dr Nqwazi as the municipal
manager.
A resolution was taken which reads as follows:
“
(a)
That the decision of the Executive Mayor to irregularly appoint Dr N
Nqwazi as the City Manager
of NMBM be revoked as it is against item
2(b) of the Code of Conduct for Councillors.
(b)
. . .
(c)
That Dr N Nqwazi be suspended from the municipality with immediate
effect due to allegations
contained in the SIU Report and that
assigned steps be followed in accordance with the Regulations.
(d)
That the conduct of the Executive Mayor in respect of her involvement
in the irregular appointment
of Dr N Nqwazi be referred to the Rules
and Ethics Committee for its consideration and that the Executive
Mayor be held personally
liable for any fruitful (
sic
) and
wasteful expenditure occasioned by unlawful actions in appointing Dr
N Nqwazi as City Manager.
(e)
That the council’s decision dated 16 March 2022 pertaining to
the appointment of Mr
L Magadlela as Acting City Manager be rescinded
and that Mr Anele Qaba be appointed as the Acting City Manager of
Nelson Mandela
Bay Municipality.
(f)
That the council seek a declaratory order in terms of the process
followed for the
recruitment of a permanent City Manager to determine
if the process followed was legally compliant and that Dr Nqwazi be
interdicted
pending the outcome of this process.”
[9]
The minute
records that 68 councillors were present in the chamber and that the
resolution was declared carried.
[2]
It is necessary to interpose a description of events that occurred
between 16 and 23 March since these events are said to clothe
what
occurred on 23 March with illegality.
[10]
On 21 March 2022 one Hayley Gee, ostensibly the
Secretary General of the Northern Alliance wrote to the City Manager,
Dr Nqwazi.
The letter stated that 3 members of the Northern Alliance,
who served as the Northern Alliance elected councillors, had been
expelled
and were no longer members of the Northern Alliance. The 3
included Mr Gary Van Niekerk, the Speaker of the council.
[11]
Acting on
the strength of this letter, Dr Nqwazi wrote to the Chief Electoral
Officer of the Independent Electoral Commission to
state that 3
vacancies existed on the council and requested that the vacancies be
filled from the proportional representation list
of the party
concerned. For present it need only be recorded that it appears that
Dr Nqwazi, the executive mayor and those councillors
who had remained
in the chamber on 16 March formed the view that the meeting of 23
March was unlawfully convened by Mr Van Niekerk
at a stage when he
was no longer a councillor.
[3]
The
Application
[12]
The present
application was commenced on 28 March 2022 and enrolled for hearing
on an urgent basis for Tuesday, 29 March.
[4]
On 29 March it transpired that Mr Van Niekerk and the Northern
Alliance wished to intervene. The hearing was therefore postponed
to
Thursday, 31 March 2022.
(a)
Joinder of Mr Van Niekerk
[13]
The intention of Mr Van Niekerk to intervene was
premised upon concerns that aspects of this matter would have a
bearing upon pending
litigation between Van Niekerk (and the other
two Northern Alliance members) and the Independent Electoral
Commission relating
to the alleged vacancies on the municipal
council. However, prior to the launch of the intervention application
the applicants
applied for the joinder of Mr Van Niekerk. Mr Van
Niekerk did not oppose and, at the commencement of the hearing I made
an order
joining Mr Van Niekerk as the third respondent.
[14]
I shall return to questions relating to
non-joinder of other parties later in this judgment.
(b)
Urgency
[15]
Mr Albertus (who appeared with Mr Moorehouse) for
the applicants, submitted that the matter was urgent by reason,
inter
alia
, of the fact that there presently were
two persons who claimed authority to exercise the powers of the
municipal manager. This
was causing significant confusion amongst
senior managers and staff members of the municipality. This fact
alone required urgent
court intervention to prevent ongoing prejudice
to the municipality. It was also argued that the purported authority
exercised
by Mr Qaba may result in administrative actions being taken
to the financial and other prejudice of the municipality. Insofar as
urgency was concerned both Mr Beyleveld (for the first and second
respondents) and Mr Mullins (for the third respondent) accepted
that
a case for urgent enrolment had been made out. It is therefore
unnecessary to address the issue any further.
(c)
The parties
[16]
It is unusual to deal with who the parties to the
litigation are at this stage of a judgment, since it usually
facilitates easier
understanding of a judgment and the issues to be
decided, if the parties are identified. However, for reasons which
will become
apparent the identity of the parties is a central
difficulty posed by this case.
[17]
The first applicant is cited as the municipality
of Nelson Mandela Bay. The second applicant is the City Manager,
cited in that
official capacity. The third applicant is the Executive
Mayor.
[18]
The first respondent is Mr Anele Qaba. He is
cited in his personal capacity as the person who was appointed to act
as City Manager
by the council on 23 March 2022. An interim
prohibitory interdict is sought against Mr Qaba to prevent him from
exercising any
authority as acting City Manager.
[19]
The second respondent is the Council of the
Metropolitan Municipality. The Speaker of the council was not joined.
Mr Van Niekerk
was, however, belatedly joined albeit in his personal
capacity.
[20]
It will immediately be obvious that this is a
highly unusual situation. I suggested, during argument, to Mr
Albertus that it seemed
bizarre that a ‘municipality’
could sue its council. Mr Albertus conceded that this was indeed ‘
sui
generis’
.
[21]
In my view, it is not legally and conceptually
possible for a ‘municipality’ to sue its ‘council’,
and to
move a court, ostensibly in the interests of the municipality,
for relief against a determination by the council. I come to this
view for the following reasons. Chapter 7 of the Constitution
provides for a system of local government. Section 151 of the
Constitution
provides that:
“
(1)
The local sphere of government consists of municipalities, which must
be established for the whole
of the territory of the Republic.
(2)
The executive and legislative authority of a municipality is vested
in its Municipal Council.
(3)
A municipality has the right to govern, on its own initiative, the
local government affairs
of its community, subject to national and
provincial legislation, as provided for in the Constitution.”
[22]
Sections 157, 158 and 159 of the Constitution
deal with the establishment, composition, membership and terms of
office of municipal
councils. Of particular importance in the present
matter is section 160 of the Constitution. It states that:
“
(1)
A municipal council –
(a)
makes decisions concerning the exercise of all of
the powers and the performance of all the functions of the
municipality;
(b)
must elect its chairperson;
(c)
may elect an executive committee and other
committees, subject to national legislation; and
(d)
may employ personnel that are necessary for the
effective performance of its functions;
(2)
. . .
(3)
(a) A majority of the members of
a Municipal Council
must be present before a
vote may be taken on any matter.”
[23]
What these Constitutional provisions indicate, is
that a municipality holds no power or authority separate from its
municipal council.
Nor can it have a legal interest which is separate
or distinguishable from that of a municipal council.
[24]
This is
made clear by the provisions of both the
Local
Government: Municipal Structures Act
(the
Structures
Act
)
[5]
and the
Local
Government Municipal Systems Act
(the
Systems
Act
)
[6]
.
Chapter 2 of the
Systems
Act
regulates the legal nature and the rights and duties of
municipalities. Section 2 provides as follows:
“
A municipality –
(a)
is an organ of state within the local sphere of
government exercising legislative and executive authority within an
area determined
in terms of the Local Government: Municipal
Demarcation Act, 1998;
(b)
consists of –
(i)
the political structures and administration of
the municipality; and
(ii)
the community of the municipality;
(c)
functions in its area in accordance with the
political statutory and other relationships between its political
structures, political
office bearers and administration and its
community; and
(d)
has a separate legal personality which excludes
liability on the part of its community for the actions of the
municipality.”
[25]
The term ‘political structure’ is
defined by the
Systems Act
to mean,
“
the
council of the municipality or any committee or other collective
structure of a municipality elected, designated or appointed
in terms
of a specific provision of the Municipal Structures Act.”
[26]
Section
2(d), above, has the effect of incorporating a municipality with
separate legal personality
from
its community
.
It is this statutory provision (read together with Chapter 7 of the
Constitution that provides for the essential form of incorporation
of
a municipality that has been a feature of local government in this
(and many other countries) for hundreds of years.
[7]
What section 2 of the
Systems
Act
does not contemplate is that ‘a municipality’ is a
separate incorporated entity to that of its ‘council’.
Such a notion would, in any event, be absurd since it is the council
in which executive and legislative power and authority is
vested.
[27]
Section 2(b) plainly conceives of a municipality
as an amalgam of the political structures and administration of which
it consists.
Neither the Constitution nor the legislation enacted to
give effect to its provisions clothes a ‘municipal council’
with separate legal personality from the ‘municipality’
of which it is a component. Rather, a municipality acts and
performs
its functions through the agency of its council. The council consists
of democratically elected representatives of the
community which
forms part of the municipality. In it is vested all of the
constitutionally conferred powers and responsibilities
of a
municipality.
[28]
The legal
relationship between a ‘council’ and its municipality,
albeit now in a wholly different Constitutional framework,
is in
essence no different to that characterized by Watermeyer J in
De
Villiers and Others v Beaufort West Municipality
[8]
when he said:
“
The
council therefore by a statute is made the agent of the body
corporate, but the council itself is not a body corporate, it
consists of a number of members whose acts are determined by the
majority, and when they act collectively by resolution properly
taken
then they act as agents for the body corporate, the municipality.”
[29]
In the light of what I have outlined, a suit
(whether action or application) brought by a municipality against its
council is not
legally cognisable. The same difficulty besets claims
of the second and third applicants.
[30]
In the case of the second applicant there are
several features to consider. Firstly, the second applicant is cited
as the office
of the City Manager. Dr Nqwazi, who deposed to the
founding affidavit does so in her capacity as the appointed City
Manager and
in the exercise of the authority of that office. She is
not involved or cited in her personal capacity. The same applies to
the
third applicant who is also cited in her official capacity only.
[31]
I will deal more fully with an aspect of Dr
Nqwazi’s own personal interest in the matter under dispute
hereunder. For the
present it is necessary only to record what is a
trite legal proposition, namely that the legal interests of the
person who exercises
power and authority nomine officio are
not
the same as the legal interests of the office. They may coincide to a
greater or lesser extent but they are not the
same
interests
.
[32]
In this matter Dr Nqwazi asserts the legal
interests of the office of the City Manager. She asserts in the
founding affidavit that
she is authorized to bring the application
‘on behalf of’ the municipality. Although it is true that
she refers also
to herself, Mr Albertus accepted that she was not in
fact acting personally.
[33]
In asserting that she is acting in the capacity
of City Manager on behalf of the municipality she can only be
exercising delegated
authority, i.e. the authority which vests in a
municipal council to sue in the name of the municipality but which
has been delegated
as required by s 59 of the
Systems
Act
.
[34]
The powers, functions and responsibilities of
municipal managers are set out in s 55 of the
Systems
Act
. The section stipulates that the
municipal manager as head of the administration is responsible and
accountable for a range of
defined matters. Only a few, of relevance,
need be mentioned, namely:
“
(b)
the management of the municipality’s administration in
accordance with this Act and other
legislation applicable to the
municipality;
(i)
advising the political structures and political
officer bearers of the municipality;
(k)
carrying out the decisions of the political structures and political
officer bearers
of the municipality;
(m)
the exercise of any powers and performance of any duties delegated by
the municipal council or
sub-delegated by other delegating authority
of the municipality.”
[35]
As indicated Dr Nqwazi asserts that as City
Manager she is duly authorized to institute the proceedings. It is on
the strength of
this that the municipality is cited as the first
applicant. But, as I have indicated the municipality cannot assert a
legal interest
or power or authority which is separate from that of
the council. Nor can the office of the City Manager or Executive
Mayor
qua
Executive
Mayor act outside of the powers conferred upon those offices by the
council.
[36]
It is inconceivable, in my view, that the
authority to institute legal proceedings which may be delegated to
the City Manager or
even to the Executive Mayor can include the
authority to institute proceedings
against
the council since, for reasons already mentioned, that is an absurd
notion.
[37]
I should point out here, lest this proposition be
misunderstood, that there is of course no difficulty with a
municipality (if so
cited) or municipal council seeking relief from a
court to set aside its own conduct or decisions. That would be an
instance of
self-review in accordance with well-established
principles. But that is not what is at issue in the present
application. Here a
person asserts authority on behalf of a ‘party’
to suspend certain resolutions of that same ‘party’,
albeit
cited differently.
[38]
As will be seen from the above discussions there
are, in my view, fundamental difficulties in according to the
applicants, as cited,
standing in relation to the cause of action at
issue in these proceedings. Mr Albertus, in acknowledging the
sui
generis
nature of these proceedings argued
that this court should be slow to non-suit the applicants since there
are critical issues of
public importance at play. He argued also that
the applicants’ papers disclose strong prospects of success in
relation to
a review in due course. It was, he submitted, essential
that some guidance be given by this court order in the light of the
ongoing
confusion that presently reigns. The difficulty with the
reliance on the prospects of success on review is, of course, that
the
review application will be bedevilled by the same problem of
determining who the parties are to the litigation.
[39]
I am not at all persuaded that public interest in
resolving confusion, however important that may be, would be a sound
basis to
countenance claims which otherwise cannot be sustained. If
it were merely a question whether litigation is authorized different
considerations might apply. But this is not such a circumstance. In
this instance a party seeks to have the court exercise its
jurisdiction against itself in circumstances where the ‘conflict’
arises from the conduct of individuals, legal subjects,
who are not
party to the proceedings. Legal subjects who are persons, I dare say,
who are the elected representatives of the community
serving as a
council which is under a constitutional obligation to govern the
affairs of the municipality. Based on this finding
the application
cannot succeed. I shall nevertheless deal with the merits of the
application insofar as my view of the fundamental
problems with the
applicants’ case are in error.
(d)
Non-joinder
[40]
Mr Beyleveld, on behalf of the first and second
respondents argued that the belated joinder of Mr Van Niekerk by the
applicants
constituted an implied admission that his participation,
and that of the other two Northern Alliance members whose membership
had
been terminated, was necessary. On this basis, since this matter
would potentially affect their status, the failure to join them
is
fatal.
[41]
Mr Albertus submitted that the joinder of
Mr Van Niekerk was necessary since his role as Speaker is at issue.
The applicants
do not, however, seek any finding in relation to Mr
Van Niekerk’s status in these proceedings. All that they are
required
to establish is that,
prima facie
,
there is a prospect that they will succeed in establishing that, at
the time he convened the council meeting of 23 March, he was
not as a
matter of fact lawfully entitled to do so. In that respect they
concede the necessity for his joinder. The same does not
apply in
relation to the other two Northern Alliance members.
[42]
I agree. Mr Van Niekerk, as Speaker and in his
personal capacity, clearly has a direct interest in this matter,
inasmuch as his
actions as Speaker are at issue. But this court is
not called upon to determine the question of his status as
councillor. That
issue is in any event the subject of pending
litigation and is to be determined in that litigation. I am
accordingly of the view
that the failure to join the Northern
Alliance and its two other members whose status is contested, is not
a bar to hearing this
application.
[43]
It was also argued on behalf of the respondents
that each of the councillors ought to have been joined since they
have a legal interest
in the subject matter which could prejudicially
affect them. In the light of what I have said about the legal status
of a municipal
council there is some merit in the argument. However,
ordinarily, when a municipal council is cited in proceedings its
chairperson
or speaker is cited nomine officio and it is not
necessary to cite each individual councillor. If the applicants
succeed the order
- interim in nature – will be to suspend
operation of certain resolutions taken by the municipal council
pending a review
to set them aside. Such order would be operative
against the council as a whole. In this sense it will bind individual
councillors.
But they will not be adversely affected in the exercise
of their functions as councillors nor required to act under
compulsion
of any form of
mandamus
.
I am, for these reasons, not persuaded that each councillor is, for
purposes of the present application, a necessary party.
[44]
Mr Beyleveld advanced similar submissions in
relation to the
M
ember
of the Executive Council (MEC) for Local Government and the
Independent Electoral Commission (the IEC). In relation to the
latter
it was argued that insofar as the applicants rely upon the alleged
declaration of vacancies on the council in terms of s
27(c) of the
Structures Act, the IEC ought to have been joined. In regard to the
MEC it was argued that the provisions of s 54A
ascribed to the MEC a
range of powers and functions relevant to the appointment of a
Municipal Manager.
[45]
It must be emphasised that whilst the applicants
rely upon the appointment of Dr Nqwazi as City Manager to found,
inter alia
, the claim
for an interdict against Mr Qaba, the validity of the appointment
process is not a matter for determination at this
stage. Nor is the
issue of compliance with the provisions of s 54A. Those issues may,
in due course, feature in a future review
application but for the
present purposes it is not necessary to reach them. Accordingly, I do
not hold the MEC to be a necessary
party at this stage.
[46]
I have already addressed the question of the
status of Mr Van Niekerk as a councillor and the related aspect of
the declaration
of a vacancy. Those considerations apply also in
respect of the IEC. It follows that I do not find that the
application is beset
by non-joinder of parties such as would preclude
the hearing of the matter. It will be observed, in any event, for the
reasons
already advanced in respect of the identity of the parties
that no purpose would be served by requiring the joinder of further
parties since the application falls to be dismissed.
[47]
I turn now to certain aspects of the merits.
(e)
Requirements for Interim Relief
(i)
The prima facie right
[48]
It was argued on behalf of the applicants that
the right which is asserted is that Dr Nqwazi is the lawfully
appointed City Manager
and that the purported resolution of 23 March
2022 unlawfully interferes with the exercise of her powers as City
Manager. As far
as the appointment of Dr Nqwazi is concerned it was
asserted that the resolution appointing her was taken at a lawfully
constituted
meeting of council on 16 March 2022. According to the
minutes of that meeting, the meeting was
quorate
at the time that the vote was taken.
[49]
Item 19 of the Rules of Order of the Nelson
Mandela Bay Council provides in its relevant parts:
“
19.1 A
quorum of the council or a committee of the council will constitute a
majority (50% plus one) of all councillors
or councillors who are
members of that committee, as the case may be.
19.2
Notwithstanding Rule 18.1 above (
sic
),
and subject to section 30(1) of the Structures Act, at least a
majority of councillors, or of the members of the committee in
question, must be present before a vote or any matter may be taken.”
[50]
Mr Albertus argued that upon a reading of the
minutes of 16 March 2022 it appears that some councillors were
leaving the council
chamber when the vote was taken. The fact that
the Speaker proceeded with the vote and recorded that the vote was
carried indicates
that there was a quorum present. Fifty-seven
councillors were seated while others were in the process of leaving.
Since item 19
requires that a quorum be present, it must be accepted
for purposes of the interim relief sought, that Dr Nqwazi’s
appointment
as Municipal Manager is
prima
facie
established.
[51]
In addition to this it is common cause that the
Executive Mayor signed Dr Nqwazi’s contract of employment on 17
March 2022.
Mr Albertus accordingly argued that the applicants had
established a strong
prima facie
right to warrant the grant of the interdict against Mr Qaba.
[52]
In respect of the review relief to be sought it
was submitted that a
prima facie
case was established that the resolutions adopted on 23 March 2022
were taken at an unlawfully convened meeting of council. This
was so
because at the time that the meeting was called Mr Van Niekerk was no
longer a councillor. Here reliance was placed on the
process which
had been initiated to declare a vacancy.
[53]
In relation to the resolutions themselves, it was
submitted that the ‘rescission’ of the executive mayor’s
entry
into a contract of employment did not terminate or set aside
the contract. The purported suspension of Dr Nqwazi was not conducted
in accordance with recognised procedures and was, for this reason, of
no force and effect. Finally, it was submitted that the resolution
appointing Mr Qaba could not properly be taken because Dr Nqwazi had
already been appointed to the position.
[54]
The assertion that the meeting of 23 March 2022
was unlawfully convened is, it seems to me, open to significant
doubt. This is so
for two reasons based on the papers as they are
before me. The first is that the minutes assert that the meeting of
23 March is
a continuation of the meeting of 16 March. The items
recorded in those minutes indicate discussion of business which
featured in
the agenda papers for the meeting of 16 March which were
not dealt with on 16 March. Importantly, there is an item related to
the
budget which was finalised at the meeting of 23 March about which
there appears to be no controversy. Item 20 of the Rules of Order
provides for a situation where, during the course of a meeting, the
meeting ceases to be quorate. In such circumstances the Speaker
can
adjourn and schedule another meeting on a future date and time.
Although the applicants assert that there was in fact
a quorum
when the resolution was adopted to appoint Dr Nqwazi, it is plain
that following that item no business could be conducted
since the
meeting was then no longer quorate. None of the parties deal with
what then occurred. All that is known is that a further
meeting
occurred to continue with the business of the first meeting. In the
light of this it is doubtful that the meeting of 23
March was one
which was unlawfully convened as alleged by the applicants.
[55]
The second aspect concerns the authority of the
Speaker. This is the subject of pending litigation. I accordingly
will refrain from
expressing any view on the subject. The applicants’
reliance on the declaration of a vacancy was confined to the
contention
that the council meeting,
prima
facie
, was not lawfully convened. I am
unable to agree. Upon the applicants’ version Dr Nqwazi wrote
to the Independent Electoral
Commission on 22 March 2022. By that
date the council meeting for 23 March had already been convened. This
is apparent from communication
from Mr Van Niekerk, as Speaker, on 22
March.
[56]
Furthermore,
if the meeting of 23 March was in fact a continuation of the prior
convened meeting of 16 March, as appears from the
papers, it is
doubtful that the meeting was unlawful merely because Mr Van
Niekerk’s status as councillor might have changed.
I use the
term might have changed advisedly. Section 27(c) provides that a
councillor vacates office if that councillor ceases
to be a member.
That is necessarily a factual question. In
Thabazimbi
Residents Association v Thabazimbi Municipal Council
[9]
it was held that for a vacancy to be declared the jurisdictional
facts required by s 27 must be established. In the present matter
Dr
Nqwazi relied solely upon the letter received from Hayley Gee dated
21 March 2022. This notwithstanding that she was aware of
pending
legal processes related thereto and without affording Mr Van Niekerk
any notice of her intended communication to the IEC.
These facts bear
upon the prospects of success of a review in due course. In my view,
they do not conduce a finding that there
are necessarily strong
prospects of success.
[57]
Mr Albertus submitted that the resolution adopted
on 23 March is open to challenge, since revoking of the Executive
Mayor’s
signing of the contract does not alter the contractual
rights which vest in Dr Nqwazi. He further submitted that the
purported
suspension of Dr Nqwazi was manifestly procedurally flawed.
On this basis alone it was likely that the resolution would be set
aside.
[58]
Insofar as the failure to follow proper
procedures for suspension are concerned, it should be stated that Dr
Nqwazi is not a party
to the application. Rights which vest in her,
whether contractual or otherwise, are to be asserted by her. They
cannot be asserted
by the City Manager against the municipality on
her behalf save in the context of a self-review which these
proceedings are not.
[59]
Although Mr Albertus argued that Dr Nqwazi’s
status as the City Manager is based on a strong
prima
facie
right, I have some reservations that
lawfulness of her appointment is established. Again, I do not wish to
express firm views since
that may be the subject of further
proceedings. However, it is open to some doubt that it can be said
that a meeting is quorate
when a vote is taken whilst councillors are
in the process of leaving. Whether there was in fact a sufficient
number of councillors
present is a factual issue that will need to be
established. The minute, as it reads, does not determine the matter
one way or
the other.
[60]
The asserted right need only be established on a
prima facie
basis. The
establishment of a right, even if open to doubt, cannot be separated
from the part seeking to assert it. The applicants’
case is
that Dr Nqwazi has been appointed by resolution and her right to act
is infringed by the subsequent appointment of Mr Qaba.
Yet, the
subsequent resolutions exist as a fact and their effect is to deprive
Dr Nqwazi of the right to exercise the powers of
her office. In these
circumstances the office of the City Manager can assert no right in
relation to Dr Nqwazi. To the extent that
Dr Nqwazi’s rights to
fair procedure and her contractual rights have been implicated, those
rights are to be asserted by
her. That is not the case in this
matter.
[61]
It does not avail the applicants to say that the
conduct of the municipal council has brought about a legal conundrum
that is likely
to result in certain decisions or resolutions being
set aside in due course. It must be established prima facie at least
that a
party properly before the court is vested with a right which
it is likely will be vindicated in due course. It is this that allows
a court to consider whether the ongoing infringement of
that
right warrants protection pending the review. In my view, the
applicants have not established such a right.
(ii)
A reasonable apprehension of irreparable harm should the interim
relief not be granted
[62]
It was argued that in the event that Mr Qaba not
be interdicted from acting as City Manager, and the resolution
suspending Dr Nqwazi
not be stayed, that the municipality would
suffer irreparable harm. In the first instance this would arise from
the fact that Mr
Qaba’s appointment is invalid. Should he be
allowed to continue exercising those powers, actions would be taken
which themselves
would be invalid and potentially liable to be set
aside. Furthermore, in the light of alleged impropriety on the part
of Mr Qaba
apparently evidenced by a forensic investigation, steps
might be taken which would prejudice the municipality in its
investigation.
Finally, it was argued that the fact that there are
two persons claiming to be duly appointed as City Manager there is
great scope
for confusion amongst and even prejudice to staff of the
municipality and for members of the public.
[63]
For these
reasons a failure to grant interim relief would give rise to
irreparable harm. In
Bobani
v Nelson Mandela Metropolitan Municipality and Others
[10]
Plasket J (as he then was) dealt definitively with an argument on all
fours with the present argument. At par [6] the learned judge
said:
“
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.”
[64]
After
dealing with a passage from the judgment in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[11]
the learned judge found:
“
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 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.”
[65]
On this basis Plasket J found that Mr Bobani, the
applicant, had failed to establish a reasonable apprehension of
irreparable harm.
In my view, the approach set out in the
Bobani
matter applies in this instance. Insofar as the appointment of Mr
Qaba as acting City Manager may in due course be set aside, it
does
not follow that his exercise of the powers of the city manager in the
interim will give rise to irreparable harm.
[66]
There is
one distinguishing feature of this case. In this instance, as a
result of the conduct of the municipal council on 16 March
and
thereafter on 23 March there are two persons each of whom purports to
act as a duly appointed City Manager. I accept that for
as long as
this continues it will give rise to confusion amongst municipal
staff, and that it may undermine the proper administration
of the
municipality. I am, however, not persuaded that this confusion and
disruption is such as to constitute irreparable harm.
For harm to be
irreparable, the effects or consequences must be irreversible or
permanent.
[12]
As lamentable
as the ongoing confusion and dysfunction of the council may be, there
is nothing to suggest that such harm as may
ensue will be
irreversible or permanent.
[67]
Thus, just as Plasket J found in the
Bobani
matter, I am unable to find that the applicants here have established
the requirement of a reasonable apprehension of harm should
the
interdict not be granted.
(f)
The Remedy
[68]
In the light of the finding that an apprehension
of irreparable harm is not established, it is unnecessary to consider
the other
requirements for the granting of interim relief. I intend,
however, to address the question of the existence of an alternative
remedy in the context of what is an appropriate remedy in this
matter.
[69]
For the reasons I have set out above the
applicants’ application cannot succeed. The proper order is to
dismiss the application.
I intend to make such order. Yet, I am
compelled to observe that dismissal of the application (i.e. a
refusal to grant interim
relief) does not and probably will not
resolve the immediate conflict which gave rise to this application.
[70]
Despite my findings in relation to the parties,
the applicants wish to pursue the review relief. Dr Nqwazi, who is
not a party to
these proceedings, may pursue litigation or may
continue to assert her entitlement to act as City Manager. The
respondents did
not seek by counter-application to restrain her from
doing so, notwithstanding the council resolution of 23 March
indicating such
intention.
[71]
It is because of this situation, which arises
because of the nature of the underlying dispute to which I referred
at the beginning
of this judgment, and the bizarre nature of this
application, that I am compelled to briefly address the existence of
an alternative
remedy to that of an interdict.
[72]
I pointed out in the discussion, concerning the
impossibility of a party acting against or suing itself, that this
does not mean
that an administrative or executive body cannot itself
initiate court proceedings to review and set aside its actions, where
such
proceedings are required. That is plainly a course of action
available to the municipality. There is also a course which involves
the municipal council acting in accordance with its constitutional
mandate as set out in s 152 of the Constitution. In doing so,
it has
available to it s 59(3) of the
Systems Act
which provides that:
“
The municipal
council –
(a)
In accordance with procedures in its rules and
orders,
may
, or at the
request in writing of at least one quarter of the councillors, must
review any decision
taken by such a political structure
,
political office bearer, councillor or staff member in consequence of
a delegation or instruction, and
either
confirm, vary or revoke the decision subject to any rights that may
have accrued to a person
; . . .”
(emphasis added)
[73]
If it is accepted, as it must be, that the
municipality (and its constituent municipal council) is as a matter
of fact and law bringing
this application ‘against itself’
then it is vested with an alternative means by which to remedy the
impasse that has
now arisen. The municipal council, acting in
accordance with the Constitutional and statutory powers vested in it,
can take the
resolutions of 16 March and 23 March in terms of which
of City Managers were appointed under review if it so decides.
Alternatively,
the municipal council, properly convened can rescind
or vary such resolutions. Whilst such a course of conduct may bear
upon the
rights of either Dr Nqwazi or Mr Qaba, the council is
nevertheless capable of resolving the current state of affairs.
[74]
During the course of the hearing I requested
counsel’s comment in relation to potential mediation of the
underlying dispute.
All felt that that this may be worthy of
consideration. The principal dispute which has given rise to the
present situation is,
however, one that involves persons and parties
who are not in fact before this court. Accordingly, mediation of that
dispute cannot
be directed in terms of Rule 41A.
[75]
The present situation in the Nelson Mandela Bay
Metropolitan Council evokes grave concern. The impasse which has
arisen and the
ongoing conflict within council is a matter of public
record. The events of 16 March, when a large number of councillors
sought
to disrupt the council meeting by walking out is undoubtedly a
matter of rising public dissatisfaction. The community of Nelson
Mandela Bay is, constitutionally a component of this municipality. It
is difficult to see how disruption of meetings and refusal
to
participate in democratic decision-making by elected councillors can
be in the public interest. In this instance, those councillors
who
walked out of the meeting on 16 March attended the meeting on 23
March and took decisions diametrically in conflict with what
had
occurred prior. The councillors who remained on 16 March did not,
apart from a few, participate in the meeting on 23 March.
[76]
This type of situation will undoubtedly cause
great harm to the interests of residents of the municipality. It may
also give rise
to the municipal council failing to execute its
constitutional mandate. It is to be hoped that the municipal council
will have
due and proper regard to the terms of this judgment and
that it will act swiftly to resolve the present situation by
exercising
its powers. It is to be hoped too that all of the
political parties represented in the council will act in good faith
to achieve
that resolution.
[77]
Finally, there is the question of costs.
Initially the applicants’ counsel submitted that in the event
that the interim interdict
is granted, costs should follow the
result. However, following the debate about the unusual nature of the
application and in recognition
of the fact that even if successful
all of the costs would ultimately be borne by the municipality, it
was accepted that no order
should be made. The concession is
correctly made. Distressingly, the costs of this litigation will be
borne by the public purse.
[78]
In the result I make the following order:
The
application is dismissed.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Obo the
Applicants
: Adv M. A.
Albertus SC /
Adv A. Moorehouse
Instructed
by
: Kuban
Chetty Inc, Mill Park,
Gqeberha
Obo
the 1
st
and 2
nd
Respondents
:
Adv A.
Beyleveld SC
Instructed
by
:
Ntlabezo Attorneys, Newton Park,
Gqeberha
Obo
the 3
rd
Respondent
: Adv
N.J. Mullins SC / Adv G. Joubert
Instructed
by
: Meyer
Inc, Mill Park, Gqeberha
Heard
: 31
March 2022
Delivered
: 5 April
2022
[1]
These
figures are published by the Independent Electoral Commission and
may be accessed on its website at
results.elections.org.za/home/Downloads/ME-Results/.
[2]
The
minute does not record the number of votes for the resolution. It
was not suggested, however, that the resolution due not
enjoy
majority support of the councilors present at the meeting.
[3]
It
appears from the list of councilors who remained in the chamber on
16 March that only four of them attended the meeting on
23 March
2022 (apart from Mr Van Niekerk, the Speaker).
[4]
The
application initially sought a directive on urgency that would have
allowed enrolment of the application on Saturday, 26 March
2022. I
considered it essential that notice of the application be given to
the respondents and accordingly directed that the
matter was not so
urgent as to warrant the extremely truncated time periods.
[5]
Act
No. 117 of 1998.
[6]
Act
No. 32 of 2000.
[7]
See
Steyler v De Visser:
Local
Government of South Africa
,
1-5.
[8]
1929
CPD 501
at 504.
[9]
[2019] JOL 41153 (LP).
[10]
2013
JDR 1500 (ECP).
[11]
2004
(6) SA 222 (SCA).
[12]
Tshwane
City v AfriForum and Another
[2016] 2 All SA 19
; 2016 (6) 279 (CC)
par 59.