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2023
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[2023] ZAKZPHC 100
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Dlamini and Others v Municipal Manager Umvoti Local Municipality and Others (14327/2023P) [2023] ZAKZPHC 100 (6 October 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO. 14327/2023P
In the matter between:
NOLUTHANDO PATRICIA
DLAMINI
FIRST APPLICANT
GABRIEL ZAMANI
MALEMBE
SECOND APPLICANT
MBONGISENI RICHARD
DLAMINI
THIRD APPLICANT
VINCENT SILAM
ZONDI
FOURTH APPLICANT
VUKANI
GWALA
FIFTH APPLICANT
LINDOKUHLE NU
ZONDI
SIXTH APPLICANT
MBUYISENI NDABA YAKHE
MAJOZI
SEVENTH APPLICANT
and
MUNICIPAL MANAGER
UMVOTI LOCAL
MUNICIPALITY
FIRST RESPONDENT
INDEPENDENT ELECTORAL
COMMISSION
SECOND RESPONDENT
MEC FOR CO-OPERATIVE
GOVERANCE AND
TRADITIONAL AFFAIRS
KAWAZULU-NATAL
THIRD RESPONDENT
COUNCILLORS FOR UMVOTI
LOCAL MUNICIPALITY FOURTH
RESPONDENT
UMVOTIL LOCAL
MUNICIPALITY
FIFTH RESPONDENT
MINISTER OF
CO-OPERATIVE GOVERNANCE
AND TRADITIONL
AFFAIRS
SIXTH RESPONDENT
JUDGMENT
P
C BEZUDENHOUT J
:
[1]
In this matter Applicants are seeking interim relief pending an
application to review
their expulsion from the council for the Umvoti
Local Municipality. The only Respondent which is not opposing
the relief
claimed is the Independent Electoral Commission (Second
Respondent). The Municipal Manager Umvoti Local Municipality,
the
Council for Umvoti Local Municipality and the Umvoti Local
Municipality (First, Fourth and Fifth Respondents) were represented
by Mr Luthuli and the MEC for Co-operative Governance and Traditional
Affairs Kwazulu-Natal (Third Respondent) by Mr Pammenter SC
who
appeared together with Ms Mbonena. Applicants were represented
by Mr Xulu.
[2]
A similar application was brought by Petros Mthandeni Ngubane as the
Applicant represented
by Mr Moodley SC but in that matter the
Respondents are different in that Mr Ngubane was also a member of the
Umzinyathi District
Municipality.
[3]
Both matters result from the expulsion of Applicants from the Umvoti
Municipality
council and although there are many similarities between
the two applications I will deal with them separately. It was
however
submitted by Mr Xulu appearing on behalf of Applicants in
case number 14327/2023P and Mr Moodley SC appearing in case number
14399/23P
for Applicant that in the event of Applicants being
successful they both seek an order similar to that which is sought in
case
number 14399/2023P.
[4]
Only interim relief pending the review application is sought at this
stage.
The main issues are that of urgency and whether a case
has been made out for interim relief. There was further
contentions
by Respondents that there was non-joinder of the other
political parties in the council.
[5]
Mr Singh appeared on behalf of the Abantu Batho Congress handed up an
affidavit and
requested that the party be granted leave to
intervene. Mr Xulu submitted he did not receive the affidavit
and Mr Pammenter
SC and Mr Luthuli submitted that they have no
objection if the Abantu Batho Congress is granted leave to be joined.
Mr Singh
aligned himself with the Respondents submissions and
made no further submissions.
[6]
The expulsion of Applicants results from allegations that they did
not attend certain
meetings of the Umvoti Council. It is
contended by Applicants that on 18 September 2023 Third Respondent
communicated her
decision to First and Second Respondent. This
was after Third Respondent appointed a committee of three persons to
conduct
an investigation on 4 September 2023. Applicants were
expelled without observing the procedure provided for in Rule 16(8)
read with section 3 of PAJA. It was further contended that the
sanction was not appropriate in the circumstances.
[7]
The complaint was laid by Councillor Mavundla with the Speaker of
Fifth Respondent
that three meetings listed were allegedly not
attended by Applicants. On 5 July 2023 at a meeting to consider
the complaint
a Rules Committee was established of which the said Mr
Mavundla was a member of the committee. This was irregular as
he was
the person that laid the complaint and should therefore not
have been part of the Special Rules and Ethics Committee.
Applicants
were requested to provide written explanations by 19 July
2023 which was done. It was submitted on behalf of Applicants
that
First, Second and Seventh Applicants were proportional
representatives where the other Applicants were elected members of
the Council.
[8]
It was submitted that there was a duty upon Third Respondent to
inform Applicants
that she was to remove them and to allow them to
make submissions. It was accordingly submitted that there was
therefore
prospects of success in the review application. The
matter was urgent because of the consequences that would follow when
the IEC advertises the said vacancies and also that the immediate
removal or expulsion of Applicants has severe consequences.
It
is submitted that the balance of convenience favoured Applicants as
they would suffer more than Respondents if interim relief
was not
granted.
[9]
It was submitted by Mr. Luthuli that the case pleaded by Applicants
was not what was
argued on their behalf. He submitted that the
main aim of Applicants was for the Municipal Manager not inform the
IEC of
the vacancies but this was already done by the Municipal
Manager to the IEC on 26 September 2023. The urgency therefore
fell
away. He submitted that recommendations were made to the
Third Respondent in terms of Rule 16(8) and that the process which
was followed on 4 September 2023 was not needed and can be
abandoned. He further submitted that there was non-joinder of
the other political parties that have a direct interest in this
matter. He submitted that no case was made out for urgency
neither for interim relief to be granted.
[10]
Mr Pammenter SC submitted there was non-joinder of the other
political parties in council and
that this was a fatal error.
He submitted if it was a proportional representative then the next
one on the list would move
up. As far as urgency was concerned
he submitted that new elections would have to be held within ninety
days and accordingly
that there was no urgency. If it was a
proportional representative then as already stated the next one on
the list would
merely move up. No case had been made out for a
loss of income and why the application was brought at such short
notice.
He submitted that the correct procedure was followed
and there was no reasonable prospects of success on review and that
interim
relief should accordingly be refused.
[11]
It was submitted by Applicants that in annexure “A” to
Third Respondent’s affidavit
it set out in paragraph 9.5 that a
certain Mr. Makhaye was not to be expelled. It was also
submitted that Applicants did
not resign and that there was nothing
attached to the letter addressed to the IEC on 26 September 2023 that
the councillors had
resigned as stated in the letter. It was
also submitted that no list from which proportional representation
could be determined
was available.
[12]
The letter which was addressed to the Electoral Commission by the
Municipal Manager dated 26
September 2023 indicates that there are
vacancies for eight councillors and that by-elections should be held
to fill these vacancies.
It provides the names of eight
councillors stating that they were expelled. It then states
that the letters of resignation
are attached and that their last date
was 20 September 2023. Considering the said letter it is
improbable that if a councillor
was expelled he/she would then sign a
letter of resignation. These letters were not attached.
The letter requested
the IEC to hold by-elections. Accordingly
it would appear to me that the urgency which Applicants relies upon
is that on
the 26 September 2023 the IEC was informed to convene the
by-elections. Accordingly the process which would follow would
then be detrimental because if the review application succeeds then
the whole process which has been put in place by the IEC for
elections which could then be completed would have been a waste of
time and unnecessary expenditure. Accordingly it would
appear
to me that it is a matter of urgency that this issue be decided as
soon as possible so as to establish whether interim relief
should be
granted or not. It would be very costly to reverse all the
steps taken and appointments made if the review succeeds.
[13]
The question of Mr. Mvundla who was the complainant and reported the
matter and then also sat
on the committee which investigated the
matter may be a factor which, on review, the court can find was
irregular. Further
Applicants were not granted the right to
make further submissions to Third Respondent before they were
expelled. This can
also be a factor which on review could be
considered to have been irregular or that the procedure was not
fair. Accordingly,
considering these factors, it would appear
to me that there are prospects of success on review and considering
all these factors
that the balance of convenience favours Applicants
more than Respondents and that accordingly the granting of interim
relief is
justified in the circumstances.
[14]
In my view it was not necessary to join the other political parties
as the relief claimed only
affected the rights of Applicants.
If the review is not successful then the other parties would be
entitled to contest the
by-elections which would then be held.
[15]
As the parties are not exactly the same in both cases it is difficult
to grant an order by merely
stating that the order herein should be
as per the order in case number 14399/2023P. The order would
have to be amended to
ensure that it is in line with that of case
number 14399/2023P. I have amended the order accordingly.
[16]
I can see no prejudice to any of the parties if the Abantu Batho
Congress is granted leave to
intervene as a Respondent.
Order
1.
An order is therefore
granted in terms of paragraphs 1 and 2 of the order attached hereto
dated and initialled.
2.
The Abantu Batho
Congress is granted leave to intervene and to be joined as the
Seventh Respondent in this case.
P C BEZUIDENHOUT J.
1.
That a Rule
Nisi
do
hereby issue calling on the Respondents and any other interested
parties to show cause before the above Honourable Court, on
the 10
th
day of November 2023 at 9h30 or so soon as counsel may be heard why,
pending the final determination of the relief sought in Part
B, an
order in the following terms should not be granted.
1.1
That the decision taken
by the Third Respondent on 18 September 2023 and communicated to the
Applicants on 19 September 2023 to
remove Applicants as Councillors
of the Umvoti (Greytown) Local Municipality (Fifth Respondent) be and
is hereby stayed with immediate
effect:
1.2
That the First
Respondent, Second Respondent, Third Respondent, Fourth Respondent,
Fifth Respondent and Sixth Respondent be and
are hereby interdicted
and restrained from implementing the decision by the Third Respondent
taken on or about 18 September 2023
to remove Applicants as
Councillors of the Fifth Respondent.
1.3
That the First
Respondent, Second Respondent, Third Respondent, Fourth Respondent,
Fifth Respondent and Sixth Respondent are interdicted
from taking any
action to call for or hold by-elections in respect of the seats held
by Applicants as Councillors on the council
of the Fifth Respondent.
1.4
That the Speaker of
Umvoti Local Municipality alternatively the First Respondent be and
is hereby directed and ordered to give Applicants
proper notice of
any Council Meeting to be held in respect of the Fifth Respondent and
he or any other person shall not block Applicant
from attending and
participating at such Council Meeting.
1.5
The First Respondent,
Fourth and Fifth Respondents are ordered to pay Applicants costs on
an attorney and client scale such costs
are to include the costs
consequent upon the employment of Senior Counsel if applicable and in
the event of any of the other Respondents
opposing the application,
they be ordered to pay the costs of the application on the same scale
as referred to above jointly and
severally with the first, Fourth and
Fifth Respondents, the one paying the other to be absolved.
2.
That pending the final
determination of the review application as set out in Part B of the
Notice of Motion, the orders referred
to in sub-paragraphs 1.1 to 1.4
operate as interim interdicts and/or orders against the respective
Respondents.
JUDGMENT
RESERVED ON:
2
OCTOBER 2023
JUDGMENT
HANDED DOWN:
6
OCTOBER 2023
COUNSEL
FOR APPLICANTS:
MR
XULU
Instructed
by:
S
M Mbatha Inc.
Durban
Tel:
031 701 8015
Ref:
Mr Nkosi
Email:
reception@smmbathainc.com
c/o:
S L Kunene & Partners Attorneys
Pietermaritzburg
Tel:
033 345 5025
Email:
Royce.kunene@yahoo.com
COUNSEL
FOR
1
ST
, 4
TH
& 5
TH
RESPONDENTS:
MR
LUTHULI
COUNSEL
FOR 3
RD
RESPONDENT:
MR
PAMMENTER SC
Together
with his junior:
Ms
Mbonena
Instructed
by:
Xaba
Attorneys
Pietermaritzburg
Tel:
033 345 7927
Ref:
D Xaba/S nene/pnn/01
Email:
info@xabainc.com