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[2023] ZAKZPHC 99
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Ngubane v MEC for Co-Operative Governance and Traditional Affairs (COGTA) KZN and Others (14399/2023P) [2023] ZAKZPHC 99 (6 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
14399/2023P
In the matter between:
PETROS MTHANDENI
NGUBANE
APPLICANT
And
THE MEC FOR
CO-OPERATIVE GOVERANCE
AND TRADITIONAL
AFFAIRS (COGTA) KZN
FIRST REPODNENT
UMVOTI (GREYTOWN)
LOCAL MUNICIPALITY
SECOND RESPONDENT
MUNICIPAL MANAGER:
UMVOTI (GREYTOWN)
LOCAL MUNICIPALITY
THIRD RESPONDENT
UMZINYATHI DISTRICT
MUNICIPALITY
FOURTH RESPONDENT
MUNICIPAL MANAGER:
UMZINYATHI DISTRICT
MUNICIPALITY
FIFTH RESPONDENT
SPEAKER: UMVOTI
LOCAL MUNICIPALITY
SIXTH RESPONDENT
SPEAKER:
UMZINYATHI DISTRICT MUNICIPALITY
SEVENTH RESPONDENT
ADMINSITRATOR OF
UMZINYATHI
DISTRICT
MUNICIPALITY
EIGHTH RESPONDENT
INDEPENDENT ELECTORAL
COMMISSION
NINTH RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
In this matter Mr Moodley SC appeared on behalf Applicant (Petros
Mthandeni Ngubane),
Mr Pammenter SC with Ms Mbonena on behalf of
First Respondent (the MEC of Co-operative Governance and Traditional
Affairs KZN)
and Mr Luthuli on behalf of the Umvoti Local
Municipality, the Municipal Manager: Umvoti Local Municipality
and the Speaker:
Umvoti Local Municipality (Second, Third and
Sixth Respondents respectively).
[2]
Applicant is also a member of the Umzinyathi District Municipality
and has been a
councillor for many years. He is one of the
persons that was expelled as a councillor from the Umvoti Council by
First Respondent
and accordingly this also affected his position in
the Umzinyathi District Municipality. As already stated in case
number
14327/2023P these two matters are to a great extent similar
and the basis in both cases for the expulsion is due to allegations
of non-attendance of three meetings by Applicants in case 14327/2023P
and Applicant in this matter.
[3]
The application is not opposed by the Fourth, fifth, Seventh, Eighth
and Ninth Respondents.
[4]
The relief which is claimed is
inter alia
a stay of
Applicant’s expulsion pending a review application which is to
be heard. As stated in case number 14327/2023P
it was requested
by Mr. Xulu appearing in that matter that in the event of Applicants
in these two applications being successful
that the order which is to
be granted be in terms of the notice of motion in case number
14399/2023P.
[5]
Mr Moodley SC referred to the letter by Mr. Mvundla wherein he stated
that he wanted
to bring to the attention of the Speaker the conduct
of various members which included Applicant. This letter is
attached
at page 74 of Applicant’s papers. The complaint
which was laid by Mr Mvundla was then dealt with by the Rules and
Ethics
Committee which was established and of which Mr Mvundla was a
member. Although lodging the complaint he also formed part of
the committee and then made a report to First Respondent. It
was accordingly submitted that this was totally irregular in
that
being the complainant he forms part of the committee and then also
reports to the member of the executive council, First Respondent.
[6]
At a meeting of the council on 4 September 2023 Mr. Kathede advised
the meeting that
an Investigation Committee had been appointed and
that interviews with the affected individuals will be conducted at
the COGTA
Offices and COGTA will liaise directly with the affected
individuals. An extract of the minute is then attached to
Applicant’s
founding papers but the meeting with Applicant
never transpired. It was further submitted that First
Respondent realised
that the matter needs to be investigated further
and appointed an Investigating Committee. However despite this
First Respondent
then on 18 September 2023 merely makes a decision
and issues a letter to Applicant expelling him as a Councillor.
It is further
submitted that the report is flawed.
[7]
It was submitted on behalf of Applicant that the urgency emanates not
merely due to
the conduct of Mr Mvundla but also by the expectation
to have an interview with members of COGTA which was never done.
In
addition there is the loss of income suffered by Applicant as he
serves on both councils.
[8]
In respect of the 72 hours’ notice that had to be given to
First Respondent
it was submitted that it was served Friday morning
and that accordingly it complied with the said provision, Respondents
did not
pursue this point any further. In a letter to the
Speaker of the Umvoti Municipality (Sixth Respondent) the First
Respondent
sets out that she has removed the various councillors in
terms of Rule 16(7) of the Code of Conduct of Municipal Councillors
and
that such letters have been issued to them. She sets out in
the letter that the Municipal Manager (Third Respondent) must
declare
the said vacancies with the IEC for by-elections to be held.
Also that a vacancy has occurred in the Umzinyathi District
Municipality as contemplated in section 27(e) of the Local Government
Municipal Structures Act for the Municipal Manager to declare
such a
vacancy. She refers to Councillor Makhaye and that there is
still a pending assessment.
[9]
It was submitted that First Respondent could not have been satisfied
with the report
she received from Second Respondent as she therefore
appointed a committee to investigate the matter. The report of
this
committee recognises the problem created with the participation
of Mr. Mvundla but ignores it. It is set out by Applicant
that
he has been a councillor for some time and earning an income which
now has come to an end.
[10]
It was submitted that there was not a non-joinder as it was not
necessary to cite other political
parties as they would continue in
their respective positions and that accordingly there was no need to
join them as Respondents
in this matter. It was for this reason
also that Applicant opposed the application by Abantu Batho Congress
to intervene
in these proceedings.
[11]
In respect of urgency it was submitted that it sets out in paragraph
36 of the founding affidavit
that Applicant became aware on 19
September 2023 of the decision to expel. He then addressed a
letter to First Respondent
and received a response on Saturday 23
September 2023. He also consulted with his attorney and
thereafter the necessary papers
had to be drawn. Information
had to be obtained and this all took time. It is further
contended that he has information
that First Respondent is brining
pressure on the IEC to declare the seats vacant and to arrange the
by-elections. A letter
dated 26 September 2023 was sent by the
Municipal Manager (Third Respondent) to the Electoral Commission
requesting it to advertise
the said vacancies and hold by-elections.
This was done at the request of the First Respondent. It was
further submitted
that there are indeed prospects of success on
review for the reasons which were mentioned above as well as
contained in the affidavit.
[12]
Mr Pammenter SC in response contended that the urgency was dealt with
at length in the founding
affidavit but that only one subparagraph
dealt with the issue why it was brought so urgent and that was
paragraph 36.15 which I
have just referred to that the IEC has to
declare a by-election. He accordingly submitted that there was
no urgency and that
the matter should be struck from the roll with
costs.
[13]
He further submitted that there was non-joinder and that the other
political parties and representatives
should have been joined as
Respondents in the said application. He submitted that on the
merits that there was only the contention
that the procedure followed
by First Respondent was incorrect as she held her own investigation
in this matter.
[14]
Mr. Luthuli also contended that the application should be struck off
the roll as it was not urgent.
He also referred to paragraph 36.15
and that the test for urgency was not met. It was already known
during July that there
was a recommendation that they be removed and
that a resolution was taken that it be reported to the member of the
Executive Council.
He further submitted that there was no
conflict in the conduct of Mr Mvundla as he only had to decide on the
complaint and it therefore
did not matter whether he was the
complainant and sat as a member of the committee.
[15]
In reply it was submitted by Mr Moodley SC that First Respondent
wrote to Third Respondent on
20 September 2023 stating that there was
an error in the letter of 18 September 2023 as it referred to the
removal of nine councillors
where it should only have been eight and
that the communication of 18 September 2023 be ignored and that the
attached communication
which is also dated 20 September 2023 should
be taken as the official notification. That was exhibit “E”
wherein
it states that Applicant is removed as councillor of both
Umvoti and Umzinyathi Municipalities. It was submitted that
there
are prospects on review for the reasons provided.
[16]
Having considered all these submissions and the papers herein I am
satisfied that there is urgency
in the matter resulting from the
letter which was addressed to the IEC on 26 September 2023. If
the IEC commences with the
process of a by-election resulting from
the said expulsion of these Applicants then it would result in
unnecessary and fruitless
expenditure if the said review application
is successful. It will be costly to reverse the process which
had then been done.
[17]
The conduct of Mr Mvundla being the complainant being part of the
committee and then reporting
to First Respondent that Applicant be
expelled that this could be seen to be irregular and unfair procedure
and create a wrong
perception. The fact that First Respondent
had herself appointed a further committee which was to consult
inter
alia
with Applicant but did not do so and merely thereafter sent
a letter that he
inter alia
with the other Applicants in
the other matter was expelled may also be a factor which can be seen
as unfair and which on review
could have prospects in that she did
not comply with what she had informed them would happen but merely
expelled them without granting
them the opportunity to make further
submissions which she had indicated they would be entitled to do.
[18]
The question further arises as to whether a case has been made out
for interim relief.
In my view this has indeed been done.
The balance of convenience also favours Applicant more than that of
the Respondents.
I am also of the view that it was not
necessary to join the other parties as they would not be affected by
the result of this application.
[19]
Mr Pammenter SC and Mr Luthuli did not oppose the request by the
Abantu Batho Congress for leave
to intervene. I can find no
prejudice to any party if such leave is granted.
Order:
1.
I accordingly grant an
order in terms of paragraphs 2 and 3 of Part A of the notice of
motion, the date in paragraph 2 to be 10
November 2023.
2.
The Abantu Batho
Congress is granted leave to intervene and be joined as the Tenth
Respondent.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
2
OCTOBER 2023
JUDGMENT
HANDED DOWN ON:
6
OCTOBER 2023
COUNSEL
FOR APPLICANT:
MR
MOODLEY SC
Instructed
by:
Kathy
James Attorneys and Conveyancers
Durban
Tel:
031 309 8778
Ref:
K/kzm/LIT.112
Email:
kathy@kathyjames.co.za
c/o
Stowel and Company
Pietermaritzburg
033
845 0500
Ref:
SMyhill
COUNSEL
FOR FIRST RESPONDENT:
MR
PAMMENTER SC
Together
with:
MS
MBONENA
Instructed
by:
Xaba
Attorneys
Pietermaritzburg
Tel:
033 345 7927
Ref:
D Xaba/S Nene/pnn/01
Email:
info@xabainc.com
COUNSEL
FOR RESPONDENTS:
MR
LUTHULI