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2023
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[2023] ZAKZPHC 78
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Khumalo v Zululand District Municipality and Another (10569/2023P) [2023] ZAKZPHC 78 (1 August 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:10569/2023P
In
the matter between:
KHAYELIHLE
BHEKINKOSI KHUMALO
APPLICANT
and
ZULULAND
DISTRICT MUNICIPALITY
FIRST RESPONDENT
COUNCIL
OF ZULULAND DISTRICT MUNICIPALITY SECOND
RESPONDENT
JUDGMENT
Nicholson
AJ:
[1]
This matter served before me on an urgent basis. The applicant seeks
inter alia
to be restored and reinstated as a member of the
executive council of the second respondent.
[2]
Although the matter was heard on an urgent basis, I reserved judgment
because of the
various authorities that were presented to me on the
day, the fact that the applicant presented heads of argument mere
hours before
the hearing, and the respondents handing up an answering
affidavit in court.
[3]
The facts that appear common cause are:
(a)
On Friday, 7 July 2023, a councillor submitted a motion to the
Municipal
Manager proposing to remove the applicant as a member of
the executive committee. The said motion was supported by Councillor
Victor
Dlamini.
(b)
On 10 July 2023, the Speaker of the Municipality issued a notice
convening
a special meeting of council on 11 July 2023 at 11h00.
(c)
On Tuesday, 11 July 2023, the council held the special meeting and a
resolution
removing the applicant as a member of the executive
committee was adopted.
[4]
The applicant avers that the crisp question that arises in this
application is whether
he was given adequate notice of the meeting in
terms of which his removal was sought. The applicant was effectively
provided with
less than 24 hours' notice of the meeting.
[5]
The applicant avers that the short notice contravenes
s 53(1)
of the
Local Government: Municipal Structures Act 117 of 1998
and
s
160(3)(c)
read with s 160(8) of the Constitution. In essence, the
applicant's argument is that his removal is in contravention of the
Constitution
and is therefore invalid.
[6]
Mr Broster, who appeared for the respondents, conceded that the
notice was inadequate
and therefore could not advance any argument to
the contrary. This concession was, in my view, correctly made.
However, he argued
that there was non joinder of the African
National Congress, being the political party of whom the applicant is
a member and
holds the seat on behalf of.
[7]
Mr Broster further pointed out that the council's notice of motion
[1]
is irregular because it refers to the incorrect sections of the
legislation and does not provide any reasons. Accordingly, the
applicant's attack ought to have been properly phrased to attack the
legal requirements of the said notice of motion.
[8]
Mr Xulu, who appeared for applicant, stated that the said notice of
motion is the
responsibility of the respondents and not the
applicant. Furthermore, the councillors who proposed and seconded the
resolution
are not ANC members. He argues that his application is
based solely on legal grounds in that the relevant sections of the
Municipal
Structures Act were not complied with by affording adequate
notice of the special meeting to the applicant.
[9]
I understand this matter to be a legality review where I am asked to
enquire into
the non-compliance of the constitution and set the
decision aside on that basis. In the circumstances, the narrow issue
before
me, is 'was applicant provided reasonable notice of is removal
from the executive committee?". Accordingly, whether the Notice
of Motion was correct, with respect, is irrelevant to the enquiry.
[10]
I pause to mention that Mr Brester also suggested that in terms of
the recent developments in
law, the Constitutional Court has
suggested that matters of this nature are not urgent. This point was
not argued with much vigour.
[11]
It is trite that in deciding urgency, the courts have a wide
discretion which ought to be exercised
judicially. I am of the view
that this application is urgent. The applicant has referred me to
various cases.
[2]
The crux of
these judgments supported the applicant's contention that where the
required procedure was not followed, notwithstanding
any perceived
non-joinder, the correct approach is to restore the councillor to the
position and allow council to remedy the defect.
I find no reason to
depart from these judgements.
[12]
Section 53 of the Municipal Structures Act does not prescribe a
specific notice period. It merely
requires that prior notice be given
to the member.
[13]
In Psychological Society of South Africa v Qwelane and others
[3]
,
the Constitutional court stated:
'[33]
That was wrong. It is trite that at common law and in terms of the
tenets of natural justice, hearing the other party audi
alteram
partem is an indispensable condition of fair proceedings. As
Donaldson LJ put it in Cheall:
"[N]atural
justice is not always or entirely about the fact or substance of
fairness. It has also something to do with the
appearance of
fairness. In the hallowed phrase, 'Justice must not only be done, it
must also be seen to be done'."
[34]
The principle is underpinned by two important considerations of legal
policy. The first is recognising
the subject's dignity and sense of
worth. Second, there is a more pragmatic consideration. This is that
audi alteram partem inherently
conduces to better justice. Milne JA
summarised both considerations in South African Roads Board. He said
the application of the
audi alteram partem principle:
"has
a twofold effect. It satisfies the individual's desire to be heard
before he is adversely affected; and it provides an
opportunity for
the repository of the power to acquire information which may be
pertinent to the just and proper exercise of the
power."
[35]
So the "no difference" approach is generally anathema.
Courts resist accepting that
the right to a hearing disappears when
it is unlikely to affect the outcome. This was elucidated in Zenzile:
"It
is trite ... that the fact that an errant employee may have
little or nothing to urge in his own defence is a factor
alien to the
inquiry whether he is entitled to a prior hearing. Wade
Administrative Law 6th ed puts the matter thus at 533 - 534:
'Procedural
objections are often raised by unmeritorious parties. Judges may then
be tempted to refuse relief on the ground that
a fair hearing could
have made no difference to the result. But in principle it is vital
that the procedure and the merits should
be kept strictly apart,
since otherwise the merits may be prejudged unfairly'".
(Footnotes omitted)
[14]
It is apparent that the short notice of the meeting contravened the
rules of natural justice,
which has been enshrined in the
Constitution via Section 33.
[15]
Having considered the issue of the prospects of success in the
ultimate review, my view is that
the applicant enjoys a likely
prospect of success given the very narrow ground of their legality
review. I am also of the view
that applicant has made out a case for
the interim interdict.
[16]
In the premises, the application must succeed.
[17]
In the result, I make the following order:
1.
The applicant's failure to comply with the provisions of the Uniform
Rules of
Court relating to service, notices and prescribed time
periods is condoned, and the application is enrolled and heard as one
of
urgency in terms of the provisions of Uniform rule 6(12).
2.
A
rule nisi
is issued calling upon the respondents to show
cause, if any, on 1 September 2023 at 09h30, or so soon thereafter as
the matter
may be heard, why the following order should not be made
final:
(a)
that the resolution passed by the second respondent at a special
council
meeting held on 11 July 2023, in terms of which the applicant
was removed as a member of the executive committee, be and is hereby
reviewed, declared invalid, and inconsistent with
s 53(1)
of the
Local Government: Municipal Structures Act 117 of 1998
as well as s
160(3)(c) of the Constitution and is accordingly set aside;
(b)
that the applicant be and is hereby restored and reinstated as a
member
of the executive committee of the second respondent; and
(c)
that the respondents pay the costs of this application, jointly and
severally,
one paying the other be absolved.
3.
The relief sought in paragraph 2(a) above operates as an interim
relief with
immediate effect until either confirmed or discharged.
NICHOLSON
AJ
Date
heard:
21 July 2023
Date
handed down:
1 August 2023
Appearances
For
applicant:
Mr
Xulu
Instructed
by:
M
Dlamini Attorneys
374
Lillian Ngoyi Road
Windermere
c/o S
N Nxumalo Attorneys Inc
20
Otto Street
Pietermaritzburg
For
respondents:
Mr
Brester SC
Instructed
by:
Not
stated
[1]
Annexure "KB2" of the founding at indexed page 27.
[2]
lngquza
Hill Local Municipality and another v Mdingi
[2021] ZASCA 75
;
2023 (1) SA 70
(SCA):
Phalatse
and another v Speaker of the City of Johannesburg and others
[2022] ZAGPJHC 1054; and
Buthelezi
and others v Ditsobotla Local Municipality and others
[2021] ZANWHC 37.
[3]
2017
(8) BCLR 1039
(CC)