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2023
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[2023] ZAECQBHC 38
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Odendaal and Another v MEC for Cooperative Governance and Traditional Affairs EC and Others (3752/2022) [2023] ZAECQBHC 38 (15 June 2023)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 3752/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In the matter between:
RETIEF
ODENDAAL
First
Applicant
DEMOCRATIC
ALLIANCE
Second
Applicant
and
MEC
FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS EC
First
Respondent
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY
Second
Respondent
AFRICAN
NATIONAL CONGRESS
Third
Respondent
ECONOMIC
FREEDOM FIGHTERS
Fourth
Respondent
NORTHERN
ALLIANCE
Fifth
Respondent
AFRICAN
CHRISTIAN DEMOCRATIC PARTY
Sixth
Respondent
FREEDOM
FRONT PLUS
Seventh
Respondent
DEFENDERS
OF THE PEOPLE
Eight
Respondent
PATRIOTIC
ALLIANCE
Ninth
Respondent
ABANTU
INTEGRITY MOVEMENT
Tenth
Respondent
UNITED
DEMOCRATIC MOVEMENT
Eleventh
Respondent
AFRICAN
INDEPENDENCE CONGRESS
Twelfth
Respondent
GOOD
Thirteenth
Respondent
PAN
AFRICANIST CONGRESS OF AZANIA
Fourteenth
Respondent
MIINISTER
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
Fifteenth
Respondent
JUDGMENT
POTGIETER J
A.
INTRODUCTION
[1]
The first respondent (“the MEC”) gave notice on 27 July
2022 to the Executive Mayor of the second respondent (“the
Metro”) in terms of section 16(3) of the Local Government:
Municipal Structures Act
[1]
(“the Municipal Structures Act”) to amend the existing
notice in terms of section 12 of the Municipal Structures Act
in
respect of the Metro. The effect of the amendment is to change
the existing type of the Metro from a mayoral to a collective
executive system with ward participation. The latter system allows
for the exercise of executive authority through an executive
committee in which the executive leadership of the municipality is
collectively vested. The former system vests the executive authority
in the mayor assisted by a mayoral committee. The amendment was made
on 1 December 2022 and was promulgated in the Provincial Gazette
on
12 December 2022 effecting the said change in the executive system of
the Metro.
[2] The change spawned the present
application which was launched as a matter of urgency on 19 December
2022 by the then Executive
Mayor, as the first applicant, and his
political party, the Democratic Alliance (“DA”), as the
second applicant. As
more fully set out below, the first applicant
has since been removed as Executive Mayor through a motion of no
confidence and the
governing DA led coalition has lost power to an
African National Congress (“ANC”) led coalition.
[3] The 3
rd
- 14
th
respondents are the various political parties that are represented on
the municipal Council and the 15
th
respondent is the
national Minister of Cooperative Governance and Traditional Affairs.
[4] The application was brought in two
parts as had become the wont in matters of this nature. Part “A”,
which I am
seized with, is for interim interdictory relief preserving
the
status quo ante
pending the determination of Part “B”,
(which is presently standing over), dealing with the review of the
decision
of the MEC to change the executive system (“the
impugned decision”).
[5] The application is opposed by the
MEC who filed a comprehensive answering affidavit. The 5th, 8th,
11
th
, 13
th
and 14
th
respondents all
filed affidavits in largely similar terms supporting the relief
sought by the applicants. The affidavit of the
13
th
respondent (“
GOOD”)
was deposed to on 23 December
2022 after it had filed a notice on 21 December 2022 to abide the
decision of Part “A”.
All the affidavits in effect mirror
the averments in the founding affidavit. None of the other
respondents has entered the matter.
[6] Directions were sought and issued
on 19 December 2022 in terms of Rule 12(a)(i) of the
Eastern Cape
Joint Rules of Practice
stipulating a timetable for the filing of
papers and heads of argument and enrolling the matter for hearing on
30 December 2022.
On the latter date the matter was postponed by
agreement between the applicants and the MEC to 16 February 2023
stipulating a new
timetable for filing papers and heads of argument.
The operation of the MEC’s notice promulgated on 12 December
2022 was
suspended until the final determination of Part “A”
of the application and costs were reserved.
[7] On 10 February 2023
GOOD
filed a more substantive answering affidavit deposed to on 9 February
2023, amongst others, reiterating its support for the relief
sought
by the applicants. The stated purpose of the affidavit was,
inter-alia,
to provide evidence in support of the application.
It in fact made common cause with all material aspects of the
applicants’
case. No condonation or leave was sought with
regard to the filing of the further affidavit.
[8]
On 15 February 2023, the MEC filed a notice of intention to apply at
the hearing of the matter on 16 February 2023, for the
striking out
of the answering affidavits of
GOOD
as
well as the 5th, 8th, 11
th
,
and 14
th
respondents.
[9]
Only the applicants, the MEC and
GOOD
were represented at the hearing on 16 February
2023. There were no appearances for any of the other respondents.
Under those circumstances
the presiding judge understandably
expressed concerns about proceeding with the matter in view of the
striking out application
that had been filed the previous day. The
upshot was that the matter was postponed to 16 March 2023 and
GOOD,
the 5th, 8th, 11
th
,
and 14
th
respondents were afforded an opportunity until 23 February 2023 to
indicate their attitude to the striking out application in writing
and to file any submissions by 8 March 2023 with the remaining
parties being able to respond by 10 March 2023. The costs were again
reserved.
[10]
On 24 February 2023
GOOD
brought an application conditional upon the
striking out application of the MEC succeeding, to be joined as the
third applicant
and that its answering affidavit and supplementary
answering affidavit stand as its founding affidavits in the matter.
[11]
This resulted in the MEC bringing an application, conditional upon
the conditional application of
GOOD
succeeding to be joined as the third applicant,
that the further answering affidavit of
GOOD
filed on 10 February 2023 be struck out.
[12]
All these interlocutory applications involving the MEC and
GOOD
are opposed, save for
GOOD’s
joinder application and the application for its 23
December 2022 answering affidavit to stand as its founding affidavit.
[13]
At the hearing before me on 16 March 2023, the applicants were
represented by Mr Mullins SC and Mr Bishop, the MEC by Mr Ngcukaitobi
SC and Ms Sephton, and
GOOD
by Mr Van Reenen. None of the other respondents
appeared at the hearing. The parties agreed to argue the
interlocutory issues together
with the merits of the application and
for
GOOD
to
be considered as a co-applicant for this purpose. It is apposite to
deal with the interlocutory issues first before considering
the
merits of the application.
B.
APPLICATION TO SET ASIDE THE ANSWERING
AFFIDAVITS
[14]
In view of the MEC’s aforesaid stance in respect of
GOOD’s
joinder as the third applicant and the status of
its initial answering affidavit of 23 December 2022, it is only
GOOD
’
s
further affidavit filed on 10 February 2023 that remains included in
the striking out application together with the answering
affidavits
of the 5
th
,
8
th
,
11
th
and 14
th
respondents.
[15]
Only
GOOD
is
opposing the striking out application.
[16] The application was brought on
the grounds that it constituted an irregularity in violation of the
accepted rules relating
to motion proceedings for the respondents in
question to have filed answering affidavits supporting the relief
sought by the applicants.
They could not do so under the guise of
being respondents. The options at their disposal were to oppose the
relief sought in which
event they were entitled to file an answering
affidavit refuting the applicants’ case, to elect not to oppose
the application
but abide by the decision of the court, or be joined
as applicants in order to make out their own case in support of the
relief
being sought by the applicants. The answering affidavits must
therefore be struck out.
[17] The MEC submitted in his heads of
argument that the application was brought on the basis that the
relevant affidavits constituted
irregular or improper proceedings and
did not comply with rule 6 or the law dealing with the adjudication
of motion proceedings.
[18]
Reference was made to the well-known rule ordinarily applicable to
disputes of fact in motion proceedings which was set out,
inter-alia,
in
Plascon
Evans
[2]
.
In light of the
Plascon
Evans
approach, the respondent is required to deal in its answering
affidavit with the case made out in the founding affidavit.
It
follows that the respondent is not obliged to deal with allegations
in the affidavit of a co
-
respondent
which happened to support the applicant’s case, because there
is no
lis
between the co-respondents. As a corollary the applicant cannot seek
to make out its cause of action based on allegations in the
answering
affidavit which did not form part of the case in the founding
affidavit. Since the co-respondent is not entitled to claim
any
relief until it enters the fray as an applicant, there is nothing for
the respondent to oppose.
[19] It was pointed out that the
further answering affidavit of 10 February 2023 contained evidence
not brought before the court
by the applicants and which is not
relevant to the legal dispute, and furthermore supported a ground of
review not raised by the
applicants. The affidavit was not filed with
the leave of the court (as is necessary when a party seeks to file a
second affidavit).
No condonation application was filed with it and
no notice was filed withdrawing the earlier notice to abide. It was
submitted
that this amounted to an ambush.
[20]
The MEC relied upon the matter of
Kruger
& Others v Aciel Geomatics (Pty) Ltd
[3]
for the
proposition that it is not permissible and the court had no
discretion to allow a co-respondent to file answering papers
in which
it seeks the relief sought by the applicant, while not taking steps
for itself to be joined as an applicant in the proceedings.
He
contended that this would place the respondent in the position where
it had to conduct a defence on two fronts, one against
the applicant
and one against the co-respondent.
[21]
It was accordingly submitted on behalf of the MEC that the answering
affidavits of the 5
th
,
8
th
,
11
th
,
and 14
th
respondents and the further affidavit of
GOOD
deposed to on 9 February 2023 should be struck out
with costs.
[22]
Much of the argument on behalf of
GOOD
was devoted to the MEC’s
non-compliance with the procedure in rule 23. It was submitted that
the application should be dismissed
on that ground alone. This is,
however, a mischaracterisation of the application. The gravamen of
the MEC’s attack was that
the relevant affidavits constituted
irregular or improper proceedings. The application thus effectively
resorts under rule 30 for
the setting aside of the affidavits.
However, virtually identical procedural requirements attach to both
rule 23 and rule 30 applications.
[23]
It is readily apparent that the application to strike out was sparked
off by the further affidavit that
GOOD
filed on 10 February 2023, shortly before the
hearing on 16 February 2023. As indicated, the only issue between the
MEC and
GOOD
concerned
the latter affidavit. Neither party complied with any of the
prescribed procedural requirements in respect of either the
filing of
or opposition to that affidavit. This failure should in my view, not
constitute a bar to dealing with the present application.
The matter
was fully argued and it is in the interests of justice for it to be
decided.
[24]
GOOD
furthermore
submitted that the MEC did not allege, nor could he have suffered,
any prejudice due to the filing of the relevant affidavits
which to a
large extent dealt with issues that had already been traversed in the
applicants’ founding and replying papers.
It was pointed out
that the High Court has in fact permitted respondents to deliver
papers making submissions in support of the
relief sought by the
applicant. Reference was made in this regard in the 13
th
respondent’s heads of argument to
Resilient
Properties (Pty) Ltd v Eskom Holdings & Others
[4]
.
In that matter the court had no difficulty with Eskom, as a
respondent, supporting part of the relief sought to allow the
applicant
to make payment directly to Eskom in order to avoid having
its electricity supply being interrupted due to the local authority
having failed to pay its account to Eskom. Reference was also made to
Democratic
Alliance v Minister of International Relations and Co-operation &
Others (Council for the Advancement of the South
African Constitution
intervening)
[5]
,
Public Protector of South Africa v Speaker of the National Assembly &
Others
[6]
,
and
Magidiwana
& Another v President of the Republic of South Africa &
Others
[7]
where the court, according to
GOOD,
had no difficulty that some of the respondents supported the relief
that was sought by the applicant. It was also submitted that
the
matter of
Aciel
Geomatics
relied upon by the MEC is distinguishable for a number of reasons.
This included that, unlike the respondent in
Aciel
Geomatics,
GOOD
is not seeking independent relief but merely supports the relief
sought by the applicant (although it must be added that this has
changed now that it has brought a conditional unopposed application
to be joined as the third applicant and itself seeking the
relief
applied for by the applicants); that
GOOD
has never been misleading or been a “
Trojan
horse”
in respect of its support for the relief sought by the applicants;
the
Plascon
Evans
test finds no application in the matter; and
GOOD
is not seeking to advance a case while not being held liable for
costs. During argument Mr Van Reenen handed up a copy of the judgment
in the matter of
Clairison’s
CC v MEC for Local Government, Environmental Affairs and Development
Planning & Another
[8]
where the second respondent, a municipality, had initially filed a
notice to abide by the court’s decision. It subsequently
filed
an answering affidavit supporting the relief sought by the applicant
and containing wide-ranging attacks on the first respondent
and his
department generally. The latter applied for the striking out of the
said affidavit on the ground that it constituted an
abuse of the
court process. The court in that matter held that the first
respondent failed to show that it suffered any prejudice
or that
there was an abuse of the court process. The court held that it was
open to a respondent who abides to file an affidavit
setting out
relevant facts and its position with regard to the application. This
could be done even after having filed a notice
to abide.
[25] The MEC submitted, as already
indicated, that he was prejudiced because instead of having to
contend with the applicants’
case only, he was now also
required to conduct a defence on the further front constituted by the
case advanced by
GOOD
. He submitted that the cases cited on
behalf of
GOOD
are of no assistance to it and pointed out that
in
Resilient Properties,
Eskom supported only one aspect of
the relief while it contested the remainder of the relief.
Aciel
Geomatics
is not distinguishable because
GOOD
supported
the relief sought by the applicant; it misled the court because it
filed a notice to abide and thereafter filed two supporting
affidavits; it filed the affidavits, one only 3 days before the
hearing, without leave of the court; it advanced submissions on
grounds not included in the applicants’ pleaded grounds of
review; the
Plascon Evans
test applies because the applicants
must make out their case in the founding affidavit and not on a case
supplemented by
GOOD
in the further affidavit filed in support
of the application; and
GOOD
asked in its supplementary
affidavit that it should not be ordered to pay costs, regardless of
the outcome of the case.
[26]
Having considered the matter, I am in respectful agreement with the
conclusion of the Labour Appeal Court in
Aciel
Geomatics
that it is impermissible for
a co-respondent to file answering papers which seek the relief sought
by the applicant while not taking
steps itself to be joined as an
applicant in the proceedings. This would clearly prejudice the
opposing respondent who must now
contest the application on two
fronts, namely in respect of the case of the applicant as well as
that of the supporting respondent.
In my view, the matter of
Resilient Properties
is
distinguishable in that Eskom only supported the relief that was to
its benefit and not relief that was inimical to the interests
of a
co-respondent. The matter of
Clairison’s
CC
is also distinguishable in that the
first respondent in that matter failed to establish any prejudice and
the second respondent
did not independently seek the relief sought by
the applicant. In any event, if that decision has to be understood as
being contrary
to the decision of the Labour Appeal Court in
Aciel
Geomatics
, it does not constitute
binding precedent and I respectfully decline to follow it. The
present issue was not pertinently raised
or considered in any of the
remaining three decisions relied upon by
GOOD
.
[27] As indicated none of the 5
th
,
8
th
, 11
th
or 14
th
respondents is
opposing the present application. For the reasons set out above, the
answering affidavits filed by them fall to
be set aside as irregular
or improper proceedings in terms of rule 30. In my view no
costs order should be made against them.
[28]
As indicated, the further answering affidavit of
GOOD
deposed to on 9 February 2023, was filed without
leave or seeking condonation, a few days before the hearing on 16
February 2023.
At that stage a complete set of papers had already
been filed in the interdict application. For the same reasons as
stated above,
this affidavit similarly falls to be set aside as an
irregular or improper proceeding in terms of rule 30.
[29]
It is appropriate that
GOOD
should be ordered to pay the costs of the present
application. I proceed to deal with the joinder application before
considering
the main application.
C.
JOINDER APPLICATION IN
RESPECT OF THE THIRTEENTH RESPONDENT
[30] As indicated,
GOOD
has
made a conditional application to be joined as the third applicant
should the striking out application succeed. In the
event it
did.
GOOD
also applied for its affidavit of 23 December 2022
to stand as its founding affidavit. This is not opposed by the MEC.
It follows
that this application should succeed.
GOOD
is not
seeking costs in respect of its application.
D.
THE MAIN (INTERDICT)
APPLICATION
[31]
As indicated, Part A of the application is for an interim interdict
pending the review of the MEC’s impugned decision.
The
requirements for such relief are trite, namely a
prima
facie
right, though open to some doubt; a reasonable apprehension of
irreparable and imminent harm to the right if interim relief is
not
granted and the ultimate relief is eventually granted; the balance of
convenience must favour the granting of the interim relief;
and the
absence of any other satisfactory remedy.
[9]
The court retains an overriding discretion whether or not to grant an
interim interdict which is clearly a discretionary remedy
not least
because of the need to consider the balance of convenience.
[10]
[32]
The nature of this discretion has been analysed in
Knox
D’Archy Ltd & Others v Jamieson & Others
[11]
where the
court concluded that:
“
It would
seem to follow from the above case that the word ‘discretion’
was not used in a strict sense. That this word
is capable of
different meanings appears from Media Workers Association of South
Africa and Others v Press Corporation of South
Africa Limited
(‘Perskor’) 1992(4) SA 791 (A) at 796H-I and 800 C-G. In
the present context the statement that a Court
has a wide discretion
seems to mean no more than that the Court is entitled to have regard
to a number of disparate and incommensurable
features in coming to a
decision.”
[12]
[33]
The above dicta in
Knox D’Archy
appear to be
obiter,
but they nonetheless accord with good sense.
However, this issue has not been raised directly in this matter and
nothing further
needs to be said about it.
[34]
The following observations of the Constitutional Court in
OUTA
[13]
are apposite in the present matter where the impugned decision
amounts to executive as opposed to administrative action:
“
A court
must also be alive to and carefully consider whether the temporary
restraining order would unduly trespass upon the sole
terrain of
other branches of government even before the final determination of
the review grounds. A court must be astute not to
stop dead the
exercise of executive or legislative power before the exercise has
been successfully and finally impugned on review.
This approach
accords well with the comity the courts owe to other branches of
government, provided they acted lawfully.”
[35]
In the context of the applicable test for granting interim interdicts
the court in
OUTA
also
confirmed the suitability of the well-known approach developed more
than a century ago in
Setlogelo
[14]
and
refined 34 years later in
Webster
[15]
,
but added the following considerations:
“
[44] The
common-law annotation to the Setlogelo test is that courts grant
temporary restraining orders against the exercise of statutory
power
only in exceptional cases and when a strong case for that relief has
been made out. Beyond the common law, separation of
powers is an even
more vital tenet of our constitutional democracy. This means that the
Constitution requires courts to ensure
that all branches of
government act within the law. However, courts in turn must refrain
from entering the exclusive terrain of
the executive and the
legislative branches of government unless the inclusion is mandated
by the Constitution itself.
[45] It seems to me that it is
unnecessary to fashion a new test for the grant of an interim
interdict. The Setlogelo test, as adapted
by case law, continues to
be a handy and ready guide to the bench and practitioners alike in
the grant of interdicts in busy magistrates
courts and high courts.
However, now the test must be applied cognisant of the normative
scheme and democratic principles that
underpin our Constitution. This
means that when a court considers whether to grant an interim
interdict it must do so in a way
that promotes the objects, spirit
and purport of the Constitution.
[46] Two ready examples come to
mind. If the right asserted in a claim for an interim interdict is
sourced from the Constitution
it would be redundant to enquire
whether that right exists. Similarly, when a court weighs up where
the balance of convenience
rests, it may not fail to consider the
probable impact of the restraining order on the constitutional and
statutory powers and
duties of the state functionary or organ of
state against which the interim order is sought.
[47] The balance of convenience
enquiry must now carefully probe whether and to which extent the
restraining order will probably
intrude into the exclusive terrain of
another branch of government. The enquiry must, alongside other
relevant harm, have proper
regard to what may be called separation of
powers harm. A court must keep in mind that a temporary restraint
against the exercise
of statutory power well ahead of the final
adjudication of a claimant’s case may be granted only in the
clearest of cases
and after a careful consideration of separation of
powers harm. It is neither prudent nor necessary to define ‘clearest
of
cases’. However, one important consideration would be
whether the harm apprehended by the claimant amounts to a breach of
one or more fundamental rights warranted by the Bill of Rights.”
[36] The individual requirements for
interim interdicts need to be considered against the above background
and in the light of the
case made out by the applicants.
1.
Prima facie right
[37]
Ordinarily in matters such as the present, a ‘
prima
facie
right
may be established by demonstrating prospects of success in the
review’
.
[16]
[38]
The majority decision in
Eskom
Holdings SOC Limited v Vaal River Development Association (Pty) Ltd &
Others
[17]
pointed out that an applicant can invoke any constitutional right
being violated by the impugned action in order to establish the
present requirement and not only the right sought to be vindicated in
the review. Furthermore, that ‘
multiple
rights protected in the Bill of Rights can be violated by a single
action … what informs the need for their vindication
is the
fact of their violation’
.
[18]
The right to be protected ‘
may
take whatever form based on what we know of that concept in common
law, statutory law or in respect of constitutionally protected
rights’
.
[19]
[39] Applicants for an interim
interdict thus need not only show prospects that the review will
succeed, but could obtain the relief
if any of their rights will be
irreparably harmed in the interim.
[40]
In
Economic
Freedom Fighters v Gordan & Others; Public Protector and Another
v Gordan & Others
[20]
the Constitutional Court held that:
“
In
addition, before a court may grant an interim interdict, it must be
satisfied that the applicant for an interdict has good prospects
of
success in the main review. The claim for review must be based
on strong grounds which are likely to succeed. This
requires
the court adjudicating the interdict application to peek into the
grounds of review raised in the main review application
and assess
their strength. It is only if a court is convinced that the
review is likely to succeed that it may appropriately
grant the
interdict. The rationale is that an interdict which prevents a
functionary from exercising public power conferred
on it impacts on
the separation of powers and should therefore only be granted in
exceptional circumstances”.
[41] It is trite that the standard of
proof in respect of the existence of the right is not a balance of
probabilities, but the
existence of the right may be open to some
doubt. Furthermore, as pointed out at paragraph [51] of
OUTA
and confirmed at paragraph [292] of
Vaal River
that ‘
[i]f
the right asserted in a claim for an interim interdict is sourced
from the Constitution it would be redundant to enquire whether
that
right exists
’.
[42]
The Supreme Court of Appeal (“SCA”) explained in
Simon
NO v Air Operations of Europe AB
[21]
that:
“
The
accepted test for a prima facie right in the context of an interim
interdict is to take the facts averred by the applicant,
together
with such facts set out by the respondent that are not or cannot be
disputed and to consider whether, having regard to
the inherent
probabilities, the applicant should on those facts obtain final
relief at the trial. The facts set up in contradiction
by the
respondent should then be considered and, if serious doubt is thrown
upon the case of the applicant, he cannot succeed”.
[43] In the present context, this
means that in view of the applicants’ reliance on the prospects
of success of the review,
they must show that no serious doubt can be
cast on the grounds of review.
[44]
It is necessary to consider the case of the parties with regard to
the existence of a
prima facie
right.
[45]
The applicants submitted that for the purpose of establishing a
prima
facie
right, reliance is being placed
on both the prospects of success of the review as well as the
infringement of various constitutional
rights should interim relief
not be granted. The arguments in respect of these issues need to be
set out and assessed in turn.
(a)
Prospects of success of the
review
[46]
It was submitted on behalf of the applicants that if regard is had to
the grounds of review, it is clear that the review will
succeed since
the MEC failed to throw serious doubt on the applicants’ case.
He instead strengthened their case.
GOOD
supported this contention. It submitted
that the review grounds were strong and advanced similar arguments to
those of the applicants
in support of the relief sought.
[47]
The applicants at this stage invoked four grounds of review, namely
(a) ignoring public comments and participation; (b) ulterior
purpose;
(c) irrationality given the MEC’s reasons; and (d) ignoring an
intergovernmental dispute. In its heads of argument
GOOD
placed emphasis on grounds (a) and (b). The above
grounds need to be considered in turn bearing in mind that the review
record is
yet to be filed and the applicants’ case is still to
be supplemented. The court is required to peer into the review
grounds
to determine if there is a likelihood of the review
succeeding, although any conclusions in this regard can only be
provisional
at this stage given,
inter
alia,
that full papers have not yet
been filed. Ultimately the merits of the review are for final
determination by the review court.
(i)
Public participation process
[48]
The applicants as well as
GOOD
contended
that the MEC’s answering affidavit revealed that the public
participation process was a farce because he had already
decided to
change the executive system long before the public participation
process was completed. Section 16(3)
[22]
of the Municipal Structures Act requires the MEC to give written
notice, at the commencement of the process to amend, to organised
local government in the province and all affected municipalities of
the proposed amendment of a section 12 notice. Before publishing
the
amendment notice the MEC must consult organised local government in
the province and all affected municipalities and thereafter
publish
particulars of the proposed notice for public comment.
[49] The MEC gave notice of the
intended amendment on 28 August 2022 and invited public comment
within 14 days. On 27 September
2022 the MEC extended the period for
public comment by a further 14 days. The earliest date on which the
MEC could thus legitimately
have taken the impugned decision was 15
days after the extension, namely on 12 October 2022.
[50] Reference was made to paragraph
43.7 of the MEC’s answering affidavit where he stated that ‘
the
decision was taken when the ANC was in control over the municipality,
and it was not anticipated that it would lose power at
that stage’.
It was furthermore pointed out that the ANC was in control of the
municipality prior to 21 September 2022 being the date on which
the
DA led coalition assumed control of the municipality.
[51] It was submitted that the entire
public participation process, certainly the process between 27
September to 11 October 2022,
was therefore a sham. The MEC had by
then already taken the impugned decision which fact renders the
decision unlawful. The purpose
of section 16(3) is to ensure
consultation before a decision is taken. This purpose was flouted by
the MEC who took the decision
before consultation.
[52] The MEC submitted that the
argument that public participation was ignored, is misguided. The
decision that amended the municipal
executive system was taken on 1
December 2022 as indicated in the relevant notice in the Provincial
Gazette. The averments in paragraph
43.7 of the answering affidavit
must be read in context. It is clear that the ‘
decision’
referred to is not the final decision to change the executive system,
but the decision to initiate the process concerning the proposed
change. This is evidenced by the letter of the MEC dated 27
July 2022 giving notice of the intention to amend the section
12
notice in respect of the Metro. This occurred when the ANC led
coalition governed the Metro.
[53] In my view, if proper regard is
had to the context of the relevant paragraph in the MEC’s
answering affidavit, it is
readily apparent that it responds to the
applicants’ contention that the MEC was actuated by the purpose
to protect his political
party, the ANC, when the impugned decision
was taken. The relevant averments in the answering affidavit were
clearly directed at
rebutting the contention that the MEC’s aim
was to secure the participation of the ANC in governing the Metro
against the
threat of it losing political power. Read in its proper
context, the answering affidavit contends that there is no merit in
the
allegation that the MEC’s purpose was to protect the ANC
because the latter was in control of the Metro at the time when the
process to change the executive system was initiated. This is a
far cry from the contention that the final decision was taken
even
before or shortly after the process was initiated. The notice to the
Metro of 27 July 2022 was expressly given in terms of
section
16(3)(a) of the Municipal Structures Act. Provincial Notice 477 of
2022 dated 1 December 2022 which published the amendment
of the
section 12 notice in respect of the Metro, expressly indicated that
the amendment was being effected after the consultation
process
prescribed by section 16(3)(b) of the Municipal Structures Act had
been engaged in.
[54] The contention that the public
participation process was flouted is accordingly not supported by the
facts. In my view the
review ground that the MEC ignored public
participation is not established on the papers as they stand.
(ii)
Ulterior purpose
[55]
As indicated, the applicants together with
GOOD
contended that the real purpose of the MEC in
effecting the amendment was to protect the ANC. That is unlawful and
warrants the
setting aside of the impugned decision. As pointed out
above, the MEC disputes this contention.
[56] In my view, the aforesaid
contention is speculative. It is not supported by the facts. As
indicated, the ANC led coalition
was in power at the time when the
process was initiated to amend the executive system. There is no
basis for concluding that the
MEC had anticipated on 27 July 2022
when the notice of intention to amend was given to the Metro, that
the ANC would lose political
power on 21 September 2022 as had
subsequently occurred. There is neither a factual basis for such
conclusion nor does it follow
by necessary implication from the fact
that the ANC subsequently lost power. This appears simply to have
been part of the vagaries
of coalition politics. It is demonstrated
by the fact, dealt with below, that the DA led coalition government
in the Metro has
since lost power which currently once again vests in
an ANC led coalition.
[57] It follows that no likelihood has
been established of this ground succeeding.
(iii)
Irrationality
[58] The applicants contend that the
decision of the MEC is rendered irrational by the reasons advanced
for such decision in the
notice of 27 July 2022 as well as in the
answering affidavit. The reasons given for the decision are that (a)
the management and
administration of the Metro have become
politicised; (b) the mayoral committee and its section 80 committees
do not function as
a cohesive unit in that councillors do not
cooperate with the mayor and committee members do not attend
committee meetings; (c)
coalition politics has undermined service
delivery and accountability over the executive; and (d) the proposed
change of the executive
system will result in a more inclusive
government.
[59] The applicants submitted with
regard to the first reason (
politicisation of the administration
)
that changing the executive system is irrational because the
composition of the executive will not prevent political allegiances
of the administration. The means used has no link to the purpose of
preventing improper politicisation of the administration.
[60] The MEC indicated in response
that there is overwhelming evidence of the politicisation of the
administration. This is demonstrated,
for example, by the power
struggles surrounding the appointment of the Municipal Manager which
resulted in a failure to appoint
a Municipal Manager for an extended
period of time; conflict between the Speaker and the Municipal
Manager with regard to Council
meetings; conflicts within the
management involving two of the officials ostensibly appointed in
quick succession to the position
of Municipal Manager resulting in
mutual attempts by the incumbents to have the opponent removed from
the position; and a conflict
between the Municipal Manager and the
Executive Director of Safety and Security about closure of the City
Hall which led to a political
stand-off resulting in the police
having had to escort the Municipal Manager from the municipal offices
after one of the political
parties attempted to force open her office
door to have her removed from office. The inability of the political
parties to work
together poisoned the atmosphere and politicised
officials thus incentivising politicians and administrative officials
to sabotage
one another. The collective executive system which
ensures proportional representation of political parties, removes
this perverse
incentive resulting from the ‘
winner takes
all’
mayoral executive system. This, according to the MEC,
establishes the required rational connection between means and ends.
It is
not required that there should be a perfect outcome or that in
the court’s estimation it is the best decision on the facts
or
even that the measure taken will result in the intended goal. Whether
there are less invasive or more effective means of achieving
the goal
of eliminating political allegiances of the administration, falls
outside the scope of the rationality enquiry. The choice
between the
two executive systems vests in the elected political branch of
government and courts may not usurp that power or function.
The court
must recognise rational choices of that branch notwithstanding
judicial preferences between the two systems.
[61] In my view, the applicants have
failed to establish that the first reason was irrational. The
decision to involve the political
parties proportionally in the
governance of the Metro is a rational means of defusing the current
situation of political contestation
and de-incentivising the wont for
politicising the administration and to sabotage one another among
politicians and officials alike.
Whether there are better or more
preferable means of achieving this end is not part of the objective
of the rationality enquiry.
[62] Insofar as the second and third
reasons (
dysfunctionality of the Council and of the committees;
lack of service delivery and accountability
) are concerned, the
applicants accept that promoting service delivery and municipal
functionality is a legitimate purpose. However,
it was contended that
given the type of dysfunctionality raised by the MEC, changing the
executive system to address those deficiencies
is irrational for
obvious reasons. The MEC recognises that the Municipal Council is the
appropriate structure to address the various
issues that he raised.
It is responsible to avert the dysfunctionality that is highlighted
by the MEC. It appoints the Municipal
Manager and approves budgets.
The political composition of Council is the reason why councillors
refused to cooperate. Council’s
resultant paralysis caused the
withdrawal of national funding and compromised a water project. The
MEC accepts that not even appointing
an Administrator at the Metro
would resolve the issues of concern. It follows that changing the
executive system will not resolve
any of these issues. It will not
affect the balance of political power on the Council. The problems of
appointing a Municipal Manager,
adopting budgets or obtaining
national funding will remain entirely unresolved. Changing the
executive system for these reasons
is thus irrational.
[63] The MEC disputed, what he termed,
the fatalistic stance adopted by the applicants with regard to the
inevitability of the non-cooperation
among Council members. It was
submitted that this attitude on the part of the applicants is
regrettable and is not shared by the
MEC. Councillors are legally and
constitutionally bound to work together in the interests of the City
and the residents. The lack
of cooperation is not an inevitable
outcome of their political affiliation, but is a conscious choice
they make to sabotage one
another. In any event, a crucial feature of
the rationality enquiry is that it demands merely a rational
connection, not perfect
or ideal rationality. The view of the
applicants is hardly relevant that the collective executive system
has disadvantages and
that a mayoral executive system offers
advantages that are absent in a collective executive system. It is
not part of the enquiry.
The evidence shows that the severe service
delivery problems in the Metro are related to political instability.
These challenges
arose under the mayoral executive system. Given its
composition, the collective executive system may be less prone to
deadlocks.
It was further submitted that it would in any event be the
height of irresponsibility for the MEC to simply fold his arms in the
face of the crisis in the Metro.
[64] I cannot find without more that
the perceived inevitable inclination of politicians to compete along
party political lines,
renders the decision of the MEC irrational to
resort to a collective executive system to address the systemic
problems of the Metro.
It cannot be concluded that the MEC’s
stance was not rational. In particular his view that the
‘
winner takes all’
nature of the mayoral executive
system promoted the Metro’s dysfunctionality and that a
collective executive system would
de-incentivise the contestation at
the Metro in the interests of service delivery and municipal
functionality.
[65]
The applicants finally contend that the MEC’s fourth reason
(
improving inclusivity
)
lacks merit. They submitted that it was irrational to amend the
Metro’s structure in order to ensure recognition is given
in
equal proportion to the major political parties (the ANC and DA) that
garnered the same number of votes insofar as number of
seats on the
executive is concerned. Section 12 of the Municipal Structures Act
does not authorise the amendment of the executive
system to boost
‘
inclusivity’
and
‘
representation’.
It is illegitimate for an MEC to do so. It is naked political
interference in the affairs of another branch of government for the
MEC to nullify the resolution of a Municipal Council as to who is to
constitute its executive, because he would prefer bigger parties
to
be represented in the executive. It undermines democracy and majority
rule within the Council and is usurping its role between
elections
and after a stable coalition has formed. There is no rational link
between a more representative executive and promoting
decisions
representing the will of the majority of residents or councillors.
The parties represented on the executive might not
make decisions
that reflect the will of the majority of councillors or residents.
Such will may well be thwarted because councillors
are precluded from
working together on the executive despite the possibility of having a
coalition. Accordingly, even if the MEC
acted for the reasons
advanced, his decision is irrational.
[66] It was submitted on behalf of the
MEC that it makes no sense to contend that it was illegitimate to
change the type of executive
system in order to promote or enhance
inclusivity. It is plainly rational to create an inclusive government
in the face of the
crippling instability of the Metro. It is in line
with the objectives of the Constitution. It does not interfere with
the choices
of the voters as the composition of the Council remains
unaffected. The goal of an inclusive government is objectively
rational
where it plainly gives effect to the choices of the voters.
The applicants’ argument furthermore ignores the provisions of
section 160(8) of the Constitution which entitles Council members to
participate and be fairly represented in Council committees
in a
manner consistent with democracy. The decision to install a
collective executive system gives effect to those constitutional
provisions. Ensuring that each political party is proportionally
represented in an executive committee amounts to fair representation
as required by the constitution. The applicants’ grounds of
review are accordingly weak.
[67] In my view, there is no merit in
the applicants’ contention that it was illegitimate for the MEC
to pursue the goal of
inclusivity. It is sanctioned by the
constitution. It was not irrational for the MEC to change the
executive system to create an
inclusive government to address the
current dysfunctionality and political instability that are
paralysing the Metro.
[68] It follows that the applicants
have not succeeded to establish that the decision of the MEC was
irrational.
(iv)
Intergovernmental dispute
[69] The material facts in this regard
are not really in issue. The first applicant wrote to the MEC on 23
September 2022 declaring
a formal dispute in terms of the
Intergovernmental Relations Framework Act, 13 of 2005, (“IRFA”)
in respect of the
relevant section 12 notice. The only response from
the MEC appears to have been his letter to the first applicant dated
24 November
2022 requesting a meeting with regard to the section 12
notice either on 26 or 28 November 2022. The MEC requested the office
of
the first applicant to reply in writing by 25 November 2022. The
first applicant failed to comply with the deadline but sent a
WhatsApp message to the MEC’s office on 29 November 2022
indicating that he did not receive the request for a meeting
timeously
and that it was only forwarded to him that same morning. He
requested that the meeting be rescheduled. In its response the MEC’s
office confirmed that the message was forwarded to the MEC who was
attending a meeting of the South African Local Government Association
for the next two days. There was no further correspondence in this
regard. As indicated, the impugned decision was taken by the
MEC on 1
December 2022 and was published in the Provincial Gazette on 12
December 2022.
[70]
The applicants, supported by
GOOD,
submitted that once the formal dispute was
declared, the MEC was precluded from taking the impugned decision and
had to follow the
binding process set out in IRFA for resolution of
the dispute. The MEC breached these provisions by ignoring the
dispute and taking
the impugned decision regardless. It was
accordingly contended that the applicants were entitled to compel
compliance with the
obligations under IRFA and to obtain appropriate
relief in this regard. This included an interdict pending a review of
the impugned
decision taken in defiance of such obligations.
[71]
The MEC contended that the intergovernmental dispute was declared by
the second applicant, the DA. Only organs of state can
declare a
dispute. There is no evidence that the dispute enjoyed the support of
the Council or that the political parties represented
on the Council
had an opportunity to make representations before the dispute was
lodged. The DA elevates its dispute to the status
of an interdict.
There is no law stating that if a dispute is lodged, no other steps
may be taken until the dispute has been resolved.
The DA furthermore
failed to show even on a
prima facie
basis that the complaint was actually submitted in
terms of IRFA.
[72] It is neither possible nor
necessary to finally decide the factual disputes raised by the MEC in
respect of this issue. The
applicants indicate that the dispute was
submitted on behalf of the Metro. This is
prima facie
borne
out by the fact that the notice of the dispute was given on a
letterhead of the Metro emanating from the office of the Executive
Mayor. The MEC’s request for a meeting was addressed to the
Executive Mayor. For present purposes, I am satisfied that there
is
no serious doubt that the applicants have, at least on a
prima
facie
basis, established the formal declaration of an
intergovernmental dispute by the Metro. This triggered the binding
processes in
terms of IRFA which were not followed. The MEC was
accordingly
prima facie
precluded from taking the impugned
decision prior to having complied with the obligations imposed by
IRFA. Suffice it to say that
for present purposes, this failure
prima
facie
constitutes a good ground of review of the impugned
decision. The MEC has in my view failed to cast serious doubt upon
the case
made out by the applicants in this regard.
[73] The applicants have accordingly,
on the above ground, set out a sufficient basis at this stage of the
matter to support the
conclusion that the review enjoys a reasonable
likelihood of succeeding. As indicated, whether it will satisfy the
reviewing court
is for that court to determine.
(b)
Breach of constitutional rights
[74]
The affected rights being invoked by the applicants are first, the
right of the first applicant, in terms of section 19(3)(b)
of the
Constitution, to stand for political office and, if elected, to hold
office. This must also entail the right not to be removed
from office
unlawfully. The impugned decision of the MEC removed the first
applicant from office. If the review succeeds, the first
applicant’s
removal was unlawful and his right would have been violated every day
that he was out of office in the interim
period. Second, a similar
violation of the section 19(3)(b) rights of the members of the
mayoral executive committee (which included
the single
GOOD
member of the Council) as a result of their
removal from office pursuant to the impugned decision of the MEC.
Third, the violation
of the right of the residents of the Metro to
have lawfully appointed political office bearers govern the
municipality. This right
is based on section 19(1) of the
Constitution which allows citizens to make political choices; section
19(2) which guarantees free,
fair and regular elections; and section
19(3) which entitles adult citizens to vote for legislative bodies.
[75] The applicants submitted that all
these rights are negated if leaders are in office unlawfully. This
would be the case if the
impugned decision is implemented in the
interim and the review eventually succeeds. It was argued that the
existence of these constitutional
rights cannot be denied.
[76] This issue has, however, been
overtaken by recent developments at the Metro. It is a
notorious fact that the political
control of the Council has shifted
during May 2023 to an ANC led coalition that is currently governing
the Metro. The first applicant
has been removed from the office of
Executive Mayor pursuant to a vote of no-confidence in him.
[77]
The members of his mayoral executive committee have likewise been
replaced by representatives of the new dominant coalition.
The
claimed rights (assuming that they have been established) have
accordingly ceased to exist and consequently any potential violation
thereof by the impugned decision has fallen away. The issue
concerning the section 19 rights of the first applicant and the
former executive committee members not to have been removed from
office, has therefore become academic and does not require any
further attention. The same applies to the applicants’
contention concerning the residents’ right to have lawfully
appointed political office bearers govern the municipality. Nothing
further needs to be said with regard to this issue. I
proceed
to consider the remaining requirements for an interim interdict.
2.
Irreparable harm
[78] The applicants contend that they
will not be able to obtain effective relief in the review if the
MEC’s decision is implemented
in the interim. This undermines
the right of the applicants to review the impugned decision. It will
take a considerable period
of time to finalise the review
application, potentially years if there are appeals. The Metro would
have operated with a collective
executive committee in the interim if
an interdict
pendente lite
is not granted. The reviewing court
will be unable to reverse the consequences of having had such system
operating for months or
even years. It would cause chaos in the Metro
should all decisions taken under this system be set aside. No court
would or could
do so. The review will therefore be cold comfort. The
Metro would be saddled with various unlawful decisions. The harm
suffered
will be irreparable as there is no way of repairing the
effects of governance by unlawfully appointed officials. For example,
it
is not feasible to obtain a damages award to compensate residents
for having been governed by unlawfully appointed officials.
[79]
GOOD
submitted that it
suffered the irreparable harm of having lost the political power
vested in it as a member of the governing coalition
occupying a seat
on the executive committee.
[80] It was submitted on behalf of the
MEC that neither of the applicants could suffer any irreparable harm
if the impugned decision
is implemented pending the review. First
applicant has no right to be elected as the mayor. This is dependent
on him obtaining
support from a majority of councillors. He is not
being removed as a councillor and can still compete for the mayoral
position
under a collective executive system. He may or may not
succeed, but that risk obtains as long as the DA is not the majority
party
in the Metro. If the review succeeds, he could be reinstated as
mayor. The DA will suffer no harm. It will continue to be
represented,
albeit proportionally, in the new executive as it was in
the old executive, although it held a dominant position in the
latter.
If the review succeeds, the previous system will be
reinstated. Moreover, there is no evidence of any decisions that will
be taken
in the meantime that will be harmful to the interests of the
residents. The decisions that are taken in the meantime will not
automatically
be unlawful. The applicants base their contention in
respect of irreparable harm on this misconception. The correct legal
position
is that each decision by an unlawful structure would have to
be scrutinised on its own merits to determine its lawfulness. The
applicants have accordingly failed to establish irreparable harm
which is a pivotal requirement for an interim interdict restraining
executive action as applies in this case.
[81]
Having considered the matter, I am persuaded that it is likely that
in view of the anticipated delay in finalising the pending
review
that, in the event of the review succeeding, there would potentially
be a number of affected decisions taken by the new
executive that
would be susceptible to challenge. While I accept that such decisions
would not automatically be invalid, it would
in all likelihood lead
to chaos if such decisions are individually challenged necessarily
over a period of time. The matters affected
by such challenge would
effectively be in flux pending finalisation of the relevant
litigation. Such a situation would be untenable.
The potential
harm that could result, particularly to the Metro and its residents,
from such a scenario, is manifest and would
ultimately be
irreparable. However, I agree with the submission on behalf of the
MEC that neither of the applicants would themselves
suffer comparable
harm.
GOOD
similarly
still enjoys the prospect of regaining a seat on a collective
executive committee should it form part of a governing coalition.
As
indicated, the first applicant has in any event been removed from the
position of Executive Mayor and
GOOD
from the seat it held on the previous executive
committee.
[82] I am nonetheless satisfied for
the stated reasons that this requirement has been established.
3.
Balance of convenience
[83] It is trite that this requirement
entails a balancing exercise involving various factors. This includes
the harm to the applicants
if interim relief is not granted and the
review ultimately succeeds; the harm to the respondent if interim
relief is granted; the
relative prospects of success of the review in
that where the prospects are weak the balance of convenience should
favour the applicants
more; where the exercise of public power is
being restrained, as in this case, the separation of powers principle
should be considered
on a sliding scale in the sense that the more
policy laden or polycentric the decision, the bigger the role that
this factor must
play.
[84] The applicants relied on the harm
referred to above which they, the councillors and the residents of
the Metro would apparently
suffer, while indicating that the MEC will
suffer no harm and nowhere alleges that he will suffer any harm. He
instead invokes
the harm to the ANC as a result of being out of power
and argues erroneously that the current executive system prevents
majority
rule while his decision to change the executive system
ensures majority rule in the Metro. Furthermore, the impugned
decision is
not at the extreme end of polycentricity where the
applicant must make out ‘
the clearest of cases’.
It is rather a classic case of an MEC implementing legislation, where
at best the degree of polycentricity is on the lower end
of the
sliding scale. Thus, according to the applicants, the nature of the
rights at stake together with the balance of harm, mandate
that
separation of powers considerations cannot militate against granting
interim relief.
[85] The MEC submitted that given the
‘
separation of powers harm’
which he is exposed
to, the applicants must demonstrate that this matter resorts under
‘
the clearest of cases’
for interim relief. This
they failed to do. The grounds of review are both contested and
contestable. Any harm at issue is merely
a temporary, minor
inconvenience. The first applicant and the members of the executive
committee have not been removed from their
positions as councillors.
They remain eligible to sit in the executive committee, although no
longer on terms dictated by the mayor
through the mayoral committee.
The first applicant can still contest the position of mayor as a DA
candidate and be elected if
the DA musters the requisite majority
vote as was the case previously. The Constitutional Court authority
is clear that the court
should exercise caution and engage in deeper
reflection and not act unreflectingly and overzealously in cases such
as the present.
It cannot be suggested on the present facts
that the balance of convenience favours the granting of an interim
interdict. The correct
outcome is to dismiss the application.
[86]
Bearing in mind in particular the above findings in respect of harm,
I am persuaded that the balance of convenience favours
the granting
of interim relief in this matter. There is no conceivable harm that
could eventuate should the current mayoral executive
system continue
to apply (as it had done up to now) pending finalisation of the
review. This system has applied for a considerable
period of time,
albeit not always with the best possible results arguably due to the
precarious balance of political power in the
Metro. It cannot,
however, be concluded that that system was simply an outright
calamity for the Metro and that the consequences
of its continuation
in the interim would be ruinous. I accordingly find that the balance
of convenience favours that the
status
quo ante
be maintained pending
finalisation of the review. Even accepting that the impugned decision
does entail a measure of polycentricity,
I am not persuaded that any
potential ‘
separation of powers
harm’
outweighs the balance of
convenience in favour of granting interim relief.
4.
Absence of an alternative
remedy
[87] It is not in issue that there is
no alternative satisfactory remedy available to the applicants.
E.
CONCLUSION
[88] It follows that the applicants
have made out a case for the relief being sought herein. In my view,
there are no factors justifying
the exercise of the court’s
discretion against the granting of an interim interdict.
F.
COSTS
[89] It would not be appropriate in my
view to decide the issue of costs in respect of the interdict at this
stage. The court hearing
the review will be better placed to decide
the issue of costs having had the benefit of the case being
ventilated in a complete
set of papers and of having heard full
argument on the merits of the matter. Presently, the review record is
still to be filed
and the case of the applicants supplemented. It
would be premature to decide the issue of costs of the interdict
under these circumstances
and on a piecemeal basis. Such costs ought
to be reserved.
G
.
ORDER
[90] In the result the following order
shall issue:
(a)
The
ordinary rules in respect of time limits and service as provided for
in the Uniform Rules of Court are dispensed with and this
matter is
allowed to be heard as one of urgency in terms of rule 6(12);
(b)
The
answering affidavits filed by the 5
th
,
8
th
,
11
th
and 14
th
Respondents, as well as the affidavit filed by the 13
th
Respondent on 10 February 2023, are struck out;
(c)
Good
(the former 13
th
Respondent) is joined as the Third Applicant and its answering
affidavit filed on 23 December 2022 shall stand as its founding
affidavit;
(d)
It
is declared that pending the resolution of the application and the
relief sought in Part B of this matter, including all appeals,
the
Nelson Mandela Bay Metropolitan Municipality (“the
Municipality”) shall continue to have a mayoral executive
system
as defined in section 7(b) of the Local Government: Municipal
Structures Act, 117 of 1998 (“Municipal Structures Act”);
(e)
Pending
the resolution of the application and the relief sought in Part B of
this matter, including all appeals, the First Respondent
and the
Municipality are interdicted and restrained from taking any steps to
implement a collective executive system as defined
in section 7(a) of
the Municipal Structures Act;
(f)
Good
(the former 13
th
Respondent) is ordered to pay the costs of the First Respondent in
respect of the striking-out application;
(g)
Save
as aforesaid, the costs of this application stand over for later
determination.
D.O. POTGIETER
JUDGE OF THE HIGH COURT
APPEARANCES-
For
the Applicants:
Adv
N Mullins with Adv M Bishop,
instructed
by Minde Shapiro & Smith Inc,
Ascot
Office Park,
Building
7,
Conyngham
Road,
Greenacres
Gqeberha
For
the First Respondent:
Adv
T Ngcukaitobi SC with Adv S Sephton,
instructed
by State Attorney,
29
Western Road,
Central
Gqeberha
For
the Thirteenth Respondent:
Adv
D van Reenen,
instructed
by LMSL Attorneys
Date
of hearing
:16 March 2023
Date
of delivery of judgment
:15 June 2023
[1]
Act
117 of 1998
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A).
[3]
37
ILJ 2567 (LAC) para [11];
[2016] ZALC 29.
[“
Aciel
Geomatics”
]
[4]
2019(2)
SA 577 (GJ) [“
Resilient
Properties”
]
[5]
2017(3)SA
212 (GP) [“
Democratic
Alliance
”]
[6]
[2023]
1 All SA 256 (WCC)
[7]
[2014]
1 All SA 76 (GNP)
[8]
2012(3)
SA 128 (WCC) [“
Clairison’s
CC”
]
[9]
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others
2012(6)
SA 223 (CC) at [41]
"OUTA"
;
Erasmus
Superior
Court Practice
(2 ed) D6-16A.
[10]
Erasmus
op
cit
D6-23;
Hotz
v University of Cape Town
2017(2) SA 485 (SCA) at 497I fn 8.
[11]
1996(4)
SA 348 (A) at 360E-362E [‘
Knox
D’Archy’]
.
[12]
at
361H-I
[13]
fn
9
at
para [26].
[14]
Setlogelo
v Setlogelo
1914
AD 221.
[15]
Webster
v Mitchell
1948(1)
SA 1186 (W).
[16]
South
African Informal Traders Forum and Others v City of Johannesburg and
Others
2014(4)
SA 371 (CC) at [25].
[17]
[2022]
ZACC 44
(23 December
2022); 2023(5) BCLR 527
(CC) [“
Vaal
River
”].
[18]
at
para [194].
[19]
At
para [280].
[20]
2020(6)
SA 325 (CC) at [42] (“
Economic
Freedom Fighters”
).
[21]
1999(1) SA 217 (SCA) at 228 G-H.
[22]
The subsection provides as follows: ‘
(3)
The MEC for local government must-
(a)
at the commencement of the process to amend a section 12 notice,
give written notice of the proposed amendment to organised
local
government in the province and any existing municipalities that may
be affected by the amendment;
(b)
before publishing the amendment notice consult-
(i)
organised local government in the province; and
(ii)
the existing municipalities affected by the amendment; and
(c) after such
consultation publish particulars of the proposed notice for public
comment.’