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[2023] ZAKZPHC 155
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Ndaba v Mavundla and Others (18155/2023P) [2023] ZAKZPHC 155 (20 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE:
18155/2023P
In
the matter between:
NOXOLO
PRECIOUS NDABA
APPLICANT
and
PHILANI
GODFREY MAVUNDLA
FIRST
RESPONDENT
UMVOTI
LOCAL MUNICIPALITY
SECOND
RESPONDENT
BONGIWE
MCHUNU
THIRD
RESPONDENT
SIBUSISO
LUKHELE
FOURTH
RESPONDENT
THE
INDEPENDENT ELECTORAL COMMISSION
FIFTH
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant (Noxolo Precious Ndaba) brought an application on an urgent
basis against First Respondent
(Pilani Godfrey Mavundla), Second
Respondent (Umvoti Local Municipality), Third Respondent (Bongiwe
Mchunu), Fourth Respondent
(Sibusiso Lukhele) and Fifth Respondent
(Independent Electoral Commission). The notice of motion
consists of an “A”
and “B” section and
Applicant seeks the relief in part A of the notice of motion pending
the review which is sought
in terms of part B of the notice of
motion. In part A Applicant seeks
inter alia
that her
precautionary suspension by First and Second Respondent be declared
unlawful, invalid and reviewable and that the appointment
of an
Acting Municipal Manager invalid and reviewable. (Main
application)
[2]
The matter came before court on 7 December 2023 and was opposed by
First, Second and Third Respondent
who handed up an interim answering
affidavit. This dealt mainly with the fact that it was
contended that the matter was not
urgent and that there was a
misjoinder and that Applicant did not make out any case for the
relief sought.
[3]
However when the matter was called there was also appearance on
behalf of one Mbuyiseni Majozi,
who sought to intervene as an
intervening party. However the relief which was being sought in
the notice of motion did not
only deal with the issue of intervention
but also that a rule
nisi
be issued that pending final
determination of the application for review First Respondent be
interdicted and restrained from holding
himself out as a councilor as
well as mayor of Umvoti Local Municipality and does not meddle or
interfere in the affairs of Umvoti
Local Municipality. (Majozi
application)
[4]
A further application was then handed up on behalf of ten (10) other
councilors who wanted to
intervene in the main application. The
first applicant therein is one Nolothando Patricia Dlamini. The
further relief
which is sought in the notice of motion is similar to
that of the Majozi application. (Dlamini application)
[5]
First, Second and Third Respondents then indicated that they wish to
oppose both the intervention
applications of Majozi and Dlamini.
It was submitted on behalf of First, Second and Third Respondent that
they have the right
to oppose the intervention and the relief which
is being sought in the notice of motions in the said two applications
seeking more
relief than just an order to intervene as applicants and
that they wish to file an answering affidavit in that regard.
[6]
The further two applications were brought with the same case number
as this main application.
[7]
It was then agreed between the parties that the question of the
intervention by the said parties
must first be dealt with before any
further consideration of the issues in the main application and in
the notice of motions of
the Majozi and Dlamini applications.
[8]
Applicant in the main application indicated that she does not oppose
the intervention application
of both the Majozi and the Dlamini
applications. As already indicated First, Second and Third
Respondents indicated that
they wish to oppose it and wish to file
affidavits in that regard.
[9]
It is common cause that on 27 November 2023 the council of Second
Respondent placed Applicant
in the main application on cautionary
suspension for a period of three (3) months and appointed Third
Respondent as the Acting
Municipal Manager. It was contended on
behalf of Applicant in the main application that on 30
November
2023 a letter from the Mayor indicated that the suspension or special
leave has been withdrawn.
[10]
From the papers in the answering affidavit of First, Second and Third
Respondents it appears that on 20 September
2023 a rule
nisi
was granted that First Respondent, in the main application,
membership of the Abantu Bantu Congress (ABC) shall not be
terminated.
Suspending the operation and execution of the
decision to terminate First Respondent’s membership of the ABC
pending final
determination of that application. This was part
of the interim relief which was granted and the rule
nisi
was
extended to 30 October 2023. On 30 October 2023 it was further
adjourned and the rule
nisi
extended to 11 December 2023.
Accordingly at that stage in terms of that court order First
Respondent could not be expelled
from the party. This effects
the relief which is sought in the intervention applications of
Dlamini and Majozi as to the
positions occupied by First Respondent
in the main application. However it is not necessary to deal
therewith at this stage.
It is not known what transpired on the
11 December 2023.
[11]
During argument it was contended on behalf of applicant in the main
application that it was not clear due
to the suspension of Applicant
in the main application and the appointment of the Acting Municipal
Manager, Third Respondent, who
would be the person to conduct the
necessary affairs of the Municipality at this stage.
[12]
In the agreement of employment which Applicant in the main
application signed when appointed as Municipal
Manager during
February 2023 it sets out in paragraph 13 that the Municipality may
suspend the employee in terms of the Local Government
Disciplinary
Regulations for Senior Managers 2010 No.344 of 21 April 2010.
It sets out in subparagraph 5 of paragraph 13
that the Municipal
Council may suspend the employee. As appears from the minutes
of 27 November 2023 it was indeed the Council
which suspended
Applicant in the main application. None of the parties could
provide any authority that the Mayor could cancel
the suspension of
the employee by the Council on his own. The suspension can only
be for three (3) months and if no disciplinary
steps are taken within
this time it automatically lapses.
[13]
Accordingly in this matter it is just and equitable that First,
Second and Third Respondents be granted the
opportunity to oppose the
intervention applications of Majozi and Dlamini. It would
therefore be necessary for them to file
an answering affidavit in
both these applications and then also the applicants in the
intervention applications would be entitled
to file a replying
affidavit. It does not appear that it is necessary for
Applicant in the main application to file any further
papers in this
regard as she indicated that she does not oppose the said
intervention applications.
[14]
It would accordingly appear that as Applicant in the main application
was suspended by Council that that
will remain in force until it is
revoked by the Council. Accordingly Applicant therein will
remain under suspension at this
stage and the Acting Municipal
Manager, Third Respondent, would then take over the duties of the
Municipal Manager in the interim.
Accordingly the following
order is made:
1.
The matter in respect
of the intervention applications and the main application are
adjourned to 12 January 2024.
2.
First, Second and Third
Respondents are to file their answering affidavit opposing the
intervention applications by 8 January 2024
and the applicants in the
intervention applications to file any reply thereto by 11 January
2024.
3.
Costs are reserved.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
7
DECEMBER 2023
JUDGMENT
HANDED DOWN:
20
DECEMBER 2023
COUNSEL
FOR APPLICANT:
C
S MLOTSHWA
Instructed
by:
NJ
Attorneys
Durban
Tel:
083 967 3440/064 539 3469
Email:
nyamekojodwana@vodamail.co.za
Sibusisodlamini0@gmail.com
info@njattorneys.co.za
c/o:Tenza-Zondi
Attorneys
Pietermaritzburg
Tel:
078 183 36179
Email:
admin@Tenza-zondi.co.za
COUNSEL
FOR
1
ST
, 2
ND
& 3
RD
RESPONDENTS:
ADV
KUBONI
(IN
THE MAIN APPLICATION)
Tel:
082 600 2234
Email:
sandile.kuboni@gmail.com
COUNSEL
FOR MAJOZI APPLICATION:
MR
XULU
Instructed
by:
S
M Mbatha Inc
Durban
Tel:
031 701 8015
Email:
reception@smbathainc.co.za
c/o:
Pranesh Indrajith attorney
Pietermaritzburg
Tel:
033 387 1410
COUNSEL
FOR DLAIMIN APPLICATION:
MR
MZELEMU
Instructed
by:
Scelo
Zuma Attorneys
Durban
Email:
scelozuma@gmail.com
Tel:
079 015 7487
c/o:
Chief Albert Luthuli Street
Pietermaritzburg