About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2023
>>
[2023] ZAECQBHC 26
|
|
Odendaal and Another v Speaker Of The Nelson Mandela Metropolitan Municipality Council and Others (1284/2023) [2023] ZAECQBHC 26 (12 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
Case
Number 1284/2023
Date
Heard: 12 May 2023
Date
Delivered: 12 May 2023
In
the matter between:
RETIEF
ODENDAAL, EXECUTIVE MAYOR OF THE
NELSON
MANDELA METROPOLITAN MUNICIPALITY First Appplicant
DEMOCRATIC
ALLIANCE Second
Applicant
and
SPEAKER
OF THE NELSON MANDELA
METROPOLITAN
MUNICIPALITY COUNCIL
First
Respondent
CITY
MANAGER OF THE NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY Second
Respondent
AFRICAN
NATIONAL CONGRESS Third
Respondent
ECONOMIC
FREEDOM FIGHTERS Fourth
Respondent
NORTHEN
ALLIANCE Fifth
Respondent
AFRICAN
CHRISTIAN DEMOCRATIC PARTY Six
Respondent
FREEDOM
FRONT PLUS Seventh
Respondent
DEFENDERS
OF THE PEOPLE Eight
Respondent
PATRIOTIC
ALLIANCE Ninth
Respondent
ABANTU
INTEGRITY MOVEMENT Eleventh
Respondent
UNITED
DEMOCRATIC MOVEMENT Eleventh
Respondent
AFRICAN
INDEPENDENCE CONGRESS Twellth
Respondent
GOOD Thirteenth
Respondent
PAN
AFRICANIST CONGRESS OF AZANIA Fourtheenth
Respondent
JUDGMENT ON COSTS
Introduction
[1]
On Friday, 5 May 2023 the applicants
requested the duty judge, Gwala AJ, to issue a directive allowing for
the enrolment of an urgent
application (“the application”)
for hearing at 8:00 on Monday, 8 May 2023, in terms of which they
sought the following
relief:
1.1.
reviewing and setting aside the decision
taken by the first respondent that any motions of no-confidence in
the Executive Mayor,
the Deputy Executive Mayor, the Speaker, or the
Chief Whip (“the functionaries”) of the Nelson Mandela
Bay Metropolitan
Municipality (“the municipality”) may be
considered at the special meeting of the council of the municipality,
scheduled
for 09:00 on Monday, 8 May 2023 (“the meeting”);
1.2.
interdicting the first respondent from
permitting any motion of no-confidence in the functionaries to be
considered at the meeting;
1.3.
ordering the first respondent to pay the
costs of the application, including the costs attendant on the
employment of two counsel,
where so employed.
[2]
The duty judge duly authorised the
enrolment of the application in respect of the relief foreshadowed in
paragraphs 1.2 and 1.3,
above.
[3]
After the directive, the following
transpired over the weekend of 6 and 7 May 2023:
3.1.
the second respondent (the municipality)
delivered a notice of its intention to abide the application;
3.2.
the first respondent gave notice of his
intention to oppose the application and contemporaneously delivered
an opposing affidavit;
3.3.
the applicants filed an affidavit in reply
to the first respondent’s opposing affidavit.
[4]
On Monday, 8 May 2023 I was approached in
Chambers by counsel for the applicants, the first respondent and the
fifth respondent.
Counsel for the fifth respondent handed me an
affidavit described in the accompanying filing notice as an
explanatory affidavit.
I was further advised that the meeting had
been cancelled.
[5]
Later, during the morning of 8 May 2023 I
was provided with a letter emanating from the office of the first
respondent confirming
that the meeting had been cancelled. The first
respondent was given an opportunity to respond to the affidavit of
the fifth respondent
and for the latter to reply to the response, if
so advised. The matter stood down until Friday, 12 May 2023 for the
parties to
consider their positions and to approach me as to the
further conduct of the matter, given that the urgency which had
originally
attached to the matter had dissipated due to the
cancellation of the meeting.
[6]
On Thursday, 11 May 2023 the first
respondent delivered a notice in terms of which he withdrew his
opposition to the application.
I was advised by the legal
representatives of the applicant that they would, in the
circumstances, at the hearing on Friday, 12
May 2023, ask that I
direct the first respondent to pay the costs of the application. It
is to that aspect which this judgment
relates.
Summary of the
grounds on which the application was brought
[7]
In terms of
section 29(1)
of the
Local
Government: Municipal Structures Act, 117 of 1998
, the speaker of a
municipal council decides when and where the council meets. If,
however, a majority of the councillors requests
the speaker in
writing to convene a Council meeting, the speaker must convene a
meeting at a time set out in the request.
[8]
Concomitantly
rule 4.2
of the rules of
order of the municipality (“the rules”) provides that if
a majority of the councillors or the Executive
Mayor request the
Speaker in writing to convene a special council meeting, the Speaker
must convene a meeting at a time set out
in the request. Such a
meeting shall not take place before the expiry of five business days
after the date of the request.
[9]
These provisions are directed solely at the
convening of a meeting but are silent on how motions are placed on
the agenda for the
requested meeting. Thus, the rules must apply in
this regard. The rules, unambiguously, provide that any motion must
be signed
and dated by a counsellor and must be moved by that
counsellor. In terms of
rule 25.1
the notice of intention to
introduce a motion or question must be submitted in writing, signed,
and dated by the counsellor submitting
the motion and must contain
the motion or question to be submitted at the meeting and must be
delivered to the Speaker at least
10 clear business days before the
date of the meeting at which it is intended to be introduced or
asked.
[10]
The rules are clear - for a motion to be
validly before the council of the municipality, it must be signed and
dated by the counsellor
submitting the motion.
[11]
The request for the meeting, in this case,
in summary, describes its purpose as being a meeting to deal with
motions of no-confidence
in the functionaries. The request then
purports to substantiate the removal from office of the Executive
Mayor and the Deputy Executive
Mayor. It contains no motivation in
respect of the other functionaries.
[12]
Crucially, while the request for the
meeting describes its purpose, no motion of no-confidence in the
functionaries, complying with
the rules, accompanied the request and
no motion of no-confidence, complying with the rules was separately
submitted by any councillor.
[13]
Thus, while the request for the meeting may
have been valid because, on the face of it, the request was supported
by a majority
of councillors, there was no valid motion accompanying
the request which could be considered at the meeting.
[14]
On 3 May 2023 the attorneys for the
applicants wrote to the first respondent demanding confirmation by 4
May 2023 that the meeting
would not proceed and that if the meeting
did indeed proceed that the suggested motions of no-confidence would
not be debated and
voted on because they had not been submitted in
proper form in terms of the rules. The first respondent ignored this
letter. A
media advisory issued by the municipality on 5 May 2023
stated that the meeting would proceed on 8 May 2023.
[15]
Further, on Friday, 5 May 2023 the second
respondent provided the first respondent with a copy of a legal
opinion the second respondent
had obtained on receipt of the
abovementioned demand made on behalf of the applicants. This opinion
confirmed the view adopted
by the applicants’ attorneys to the
effect that there was no valid motion that could be entertained at
the meeting.
[16]
Despite this opinion being provided to the
first respondent, he gave no indication that the meeting would not
proceed. In fact,
it is common knowledge that in
The
Herald
newspaper of Monday, 8 May 2023
the first respondent was quoted as saying that the meeting would
proceed.
[17]
Against this background the applicants
contend that they were constrained to launch and persist with the
application.
Summary of the
first respondent’s grounds of opposition to the application
[18]
The first respondent opposed the
application on three main grounds, contending in essence that:
18.1.
the applicants had not satisfied the
requirements for a final interdict;
18.2.
the application was not urgent; and
18.3.
it was for him and/or the council of the
municipality to decide whether the meeting could proceed and if there
was a valid motion
before it for decision.
[19]
The ground of opposition set out in
paragraph 18.3 above is not lucidly dealt with in the first
respondent’s opposing affidavit
and it is difficult, if not
impossible to discern a cogent defence to the application from the
content of the affidavit. The first
respondent, in his affidavit,
concludes his contentions with the statement that “
I
am of the view that this application is presumptuous and preclusive
(sic)
of the position and it should not
be allowed but be dismissed and sent back to the office of the
Council for proper internal processes
which are still pending.
”
Exactly what these internal processes would entail is not explained.
Did the applicants
make out a case for the relief they sought
[20]
This matter was clearly of sufficient
urgency to warrant my immediate attention.
[21]
The first respondent contended that the
matter was not urgent because the circular convening the meeting was
sent out on 24 April
2023. The applicants had waited until 5 May to
launch the application. This contention misses the point. The
applicants approached
the application on the basis that the meeting
had been validly convened. Their bone of contention was that by 3 May
2023 no valid
motion (i.e., a motion which complied with the rules)
had been produced for consideration at the meeting.
[22]
The first respondent’s failure to
respond to the applicants’ demand of 3 May 2023 and the
objective indications that
the meeting was to proceed in the absence
of a valid motion self-evidently established urgency.
[23]
I am also satisfied that the applicant had
satisfied the requirements of a final interdict, as:
23.1.
the council of the municipality must
conduct its business lawfully. In the absence of a valid motion
complying with the rules the
meeting could not proceed and any
“motions” passed at the meeting would be unlawful. In
such circumstances any interested
party would have a clear right to
stop the meeting from proceeding;
23.2.
a reasonable apprehension of irreparable
harm was present in this case, given that:
23.2.1.
the first respondent had ignored the
applicants’ demand and the applicants could therefore expect
that he intended to allow
the “motions” referred to in
the notice convening the meeting to be discussed and decided upon at
the meeting;
23.2.2.
the first applicant was lawfully elected to
the office of Executive Mayor of the municipality. If he were to be
unseated as the
result of an invalid motion being passed at the
meeting, he would have been unlawfully deprived of his position. A
review of the
decision to oust him would not temporarily reinstate
him and the municipality and indeed the citizens of Nelson Mandela
Bay would
be at the mercy of an unlawfully elected Executive Mayor.
Accordingly, the apprehension of irreparable harm was manifestly
present;
23.3.
there was no alternative remedy available
to the applicants, as the application was directed at preventing the
council of the municipality
from unlawfully considering “motions”
of no-confidence in circumstances where they were no motions
complying with the
rules before it. A review later could not
immediately remedy that illegality as the unlawful conduct would
already have occurred.
By the time a review was heard further actions
would have followed, pursuant to the initial unlawful action. The
subsequent actions
of an unlawfully elected Executive Mayor would be
equally unlawful. Obviously, this situation would be unconscionable,
as the Executive
Mayor of the municipality is required daily to take
numerous decisions and fulfil numerous functions in the execution of
his duties.
Interdictory relief was the only basis on which this
potential irreparable harm could be addressed.
[24]
The contention that it was for the first
respondent or the council of the municipality to decide at the
meeting whether the meeting
could entertain motions of no-confidence
in the functionaries needs only to be stated to be rejected. The
meeting could only proceed
on the basis of a motion or motions which
complied with the rules, i.e., lawful motions. There were no such
motions. Thus, the
meeting would have been unlawful, and any
“motions” adopted at the meeting would be equally
unlawful and therefore
void.
[25]
It is the duty of the first respondent to
apply the rules impartially. He may not act contrary to those rules,
nor may the council
do so. Any action by the first respondent or the
council allowing the consideration of invalid and unlawful motions
would be contrary
to the rules and would also be unlawful. The
council cannot by way of a majority decision make an action which is
contrary to the
rules, and therefore unlawful, valid. If a decision
is unlawful, it is invalid and void.
[26]
It is only a court which can decide on the
lawfulness and therefore the validity of actions in the nature of the
“motions”
which the first respondent sought to place
before the council of the municipality at the meeting.
[27]
Therefore, I conclude that the applicants
would have been entitled to the interdictory relief set out in prayer
3 of the notice
of motion.
The costs of the
application
[28]
As I have concluded that the applicant
would have been entitled to the interdictory relief they applied for
the first respondent
must be directed to pay the costs of the
application.
[29]
Apart from the normal rule that a
successful party is entitled to costs I am fortified in this view by
the following factors:
29.1.
the first respondent ignored the
applicants’ demand in which the correct legal position was
clearly enunciated;
29.2.
similarly, he ignored the legal opinion
obtained by the second respondent, which also set out the legal
position correctly;
29.3.
he was prepared to act contrary to the
rules and failed to apply the rules impartially and rather sought to
further a political
agenda.
Order
[30]
Thus, I make the following order:
The first respondent
is directed to pay the costs of the application, such costs to
include the costs attendant on the employment
of two counsel, where
so employed.
OH RONAASEN
ACTING JUDGE OF THE
HIGH COURT
Appearance:
Counsel for Applicant:
Adv
N Mullins SC
Instructed by:
Minde
Schapiro & Smith Inc.
Counsel for 5
th
Respondent: Adv
AN Masiza
Instructed by:
Nkonhla
Attorneys
c/o Siyila Attorneys