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Mahapane and Others v Mohokare Local Municipality and Others (4913/2022) [2022] ZAFSHC 344 (6 December 2022)

85 Reportability
Municipal Law
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Brief Summary

Municipal Law — Abuse of Power — Individual Liability of Councillors The Speaker and Mayor of the Mohokare Local Municipality appointed a Municipal Manager without proper council resolution, leading to an urgent application by the Applicants to challenge the appointment. The court found that the Speaker and Mayor acted recklessly and negligently, disregarding their duties and the legal requirements for such appointments. The legal issue concerned the individual liability of the councillors for costs arising from their abuse of power in the decision-making process. The court held that the councillors should bear the costs of the application due to their improper conduct and failure to comply with legal obligations, emphasizing the need for accountability in local government decision-making.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an urgent application in the Free State Division of the High Court, Bloemfontein, arising from the purported appointment of a municipal manager at the Mohokare Local Municipality. Although substantive interim relief was granted by agreement on 7 October 2022, the matter later served before the court primarily for the determination of costs, including wasted costs occasioned by postponements and non-compliance.


The applicants were Pule Mahapane, Teboho Mochechepa, Thabiso Emmanuel Na, and Tsepo November. The respondents included the Mohokare Local Municipality (first respondent), the Speaker of the Council (second respondent), the Mayor (third respondent), and additional respondents including Molotelo Johannes Kanwendo (fourth respondent, the individual purportedly appointed as municipal manager) and others. The MEC for the Free State Department of Governance & Traditional Affairs was also cited.


Procedurally, the urgent application culminated in an order on 7 October 2022 which interdicted implementation of the purported appointment pending a proper council resolution and compelled production of specified records. That order postponed the issue of costs for later determination. The present judgment (delivered on 6 December 2022) determined who should bear the costs of the litigation and addressed accountability mechanisms for potential cost recovery against political office-bearers or officials.


The general subject-matter of the dispute concerned unlawful and procedurally defective municipal decision-making, specifically the manner in which the Speaker and Mayor handled the purported appointment of a municipal manager, and the appropriate judicial response in costs where the court found abuse of power and grossly negligent or deliberate unlawful conduct in local government decision-making.


2. Material Facts


The court accepted as established that the Speaker and the Mayor were responsible for a process culminating in the purported appointment of a municipal manager in a manner the court described as patently illegal, and that the appointee was clearly not fit and proper in the relevant sense. The court treated the unlawfulness of the process, and the absence of a council resolution authorising the appointment, as common cause on the papers before it.


Chronologically, the municipality advertised the municipal manager vacancy on 23 May 2022. A selection panel was constituted, including the Mayor, another councillor, and a COGTA representative. The fourth respondent was among the candidates. A special council meeting was convened for 31 August 2022, at which the appointment was an agenda item. The Speaker did not circulate the selection panel report and recommendations to councillors in advance and only made it available during the meeting. During that meeting, the Speaker insisted that the fourth respondent would be appointed despite objections from some councillors, and the Speaker proceeded to unilaterally appoint the fourth respondent.


The court recorded that councillors were told they were not entitled to the minutes of the selection committee, which the court characterised as incorrect. The objections at the meeting were significant and the meeting became disorderly, resulting in the Speaker adjourning the meeting without concluding the agenda. The meeting was adjourned to 7 September 2022, but this later meeting did not materialise.


Despite the lack of a council resolution, the Mayor informed another respondent that the fourth respondent had been appointed, knowing that no council resolution existed. Arrangements were made for the fourth respondent to assume office, prompting the applicants to write to the MEC for intervention and, in due course, to launch an urgent application.


Material concerns underlying the objections included that the fourth respondent had achieved only a “basic” competency score, which (on the applicants’ version accepted as material) rendered the appointment unlawful, and that subsequent screening difficulties emerged. On 29 September 2022, the Human Resources Manager allegedly discovered that screening could not confirm South African citizenship, the candidate’s claimed qualification could not be verified, and certain screening results were not attached.


The court placed weight on the conduct of the Speaker and Mayor during and after the meeting. It found that they were warned of the legal deficiencies yet persisted, refused to provide pertinent records, and only admitted error on 7 October 2022, after the urgent matter came before court and counsel directed them. The court further noted non-compliance with the court’s 7 October 2022 order requiring production of documents, late filing of papers causing a further postponement, and an incident on 14 October 2022 where the Speaker convened another council meeting at which a resolution on the appointment was taken notwithstanding that the item was allegedly not on the agenda (which the judgment indicated was the subject of separate urgent proceedings).


3. Legal Issues


The central legal issue for determination in this judgment was costs, namely whether the applicants should bear the costs as contended by the first to fourth respondents, or whether costs should follow the event in favour of the applicants, and if so, against whom those costs should be ordered.


A further legal question concerned the appropriate mechanism for accountability in circumstances where the court regarded the Speaker’s and Mayor’s conduct as deliberate or grossly negligent and unlawful, but where a direct costs order against individuals might still practically result in the municipality (and thus taxpayers) ultimately paying. This raised the question of the court’s reliance on and invocation of section 176(2) of the Local Government: Municipal Finance Management Act 56 of 2003, in directing the municipal council to investigate potential recovery of the costs from political office-bearers and officials.


The dispute primarily concerned the application of legal principles governing costs and governmental accountability to the established facts, including evaluative judgments about the conduct of the relevant office-bearers and the fairness of burdening the municipality and taxpayers with costs generated by unlawful conduct.


4. Court’s Reasoning


The court’s reasoning proceeded from its factual conclusion that the Speaker and Mayor had engaged in conduct that was not a naïve, bona fide mistake, but rather amounted to abuse of power coupled with reckless and negligent (indeed, on the court’s characterisation, deliberate and grossly negligent) conduct in the municipal decision-making process. The court emphasised that the Speaker and Mayor were not lay persons unfamiliar with constitutional democracy and could not plausibly claim ignorance, particularly because they were warned during and after the council meeting about the unlawfulness.


In addressing the respondents’ contention that litigation could have been avoided if the applicants had written to them first, the court rejected that explanation on the facts. It accepted that the Speaker and Mayor did not heed reason, refused to make records available, and only conceded error after judicial intervention. The judgment further endorsed the principle (articulated in the applicants’ submissions and linked to authority) that even where government acknowledges a decision is defective, it should not simply withdraw or ignore the consequences informally; it should generally follow proper review processes so that a court may set aside the decision in a manner that properly considers its effects.


The court treated the applicants as having been substantially successful in obtaining urgent interdictory and regulatory relief by agreement on 7 October 2022, and it applied the general principle that costs follow the event, absent special circumstances justifying a departure. It found no such special circumstances in favour of the respondents. Instead, the court considered the respondents’ approach to costs obstructive and aggravated by failures to comply with the 7 October order, late filing causing further postponement, and conduct the court described as disdainful towards the court process.


On the question of who should bear the costs, the applicants sought costs against the municipality and/or against the Speaker and Mayor jointly and severally, together with an order modelled on authority directing investigation into recovery in terms of section 176(2) of the MFMA. The court accepted that the Speaker’s and Mayor’s conduct required investigation and management by the municipality and that they should not escape with impunity. At the same time, the court was concerned that a direct order of joint and several liability might still in practice permit one party’s payment to exempt others, with the likely effect that the municipality would foot the bill and taxpayers would bear the brunt. The judgment therefore sought to avoid a result where the municipality automatically and finally absorbs the financial consequences without internal accountability mechanisms being triggered.


The court accordingly ordered the municipality to pay the costs, but coupled that costs order with a directive to the municipal council to investigate and determine whether the costs should be recovered from political office-bearers and officials under section 176(2) of the MFMA, reflecting the court’s view that deliberate or negligent unlawful actions by functionaries should not simply translate into unavoidable public expense where recovery may be available.


5. Outcome and Relief


The court ordered that the Mohokare Local Municipality (first respondent) must pay the costs of the case, including the wasted costs incurred on 3 November 2022.


In addition, the court directed the Council of the first respondent to investigate and determine whether, in terms of section 176(2) of the Local Government: Municipal Finance Management Act 56 of 2003, the costs ordered by the court should be recovered from any political office-bearers and officials.


No direct costs order was made in this judgment against the Speaker or the Mayor personally; rather, the court required an internal process aimed at determining potential recovery.


Cases Cited


Mlokoti v Amathole District Municipality & another [2009] 2 BLLR 168 (E).


Oudekraal Estates Pty Ltd v City of Cape Town 2004 (6) SA 222 (SCA).


Heyneke v Umhlatuze Municipality [2010] JOL 25625 (LC).


Legislation Cited


Local Government: Municipal Finance Management Act 56 of 2003, section 176(2).


Local Government: Municipal Structures Act 117 of 1998, section 82.


Rules of Court Cited


Uniform Rules of Court, in relation to condonation for non-compliance and the enrolment and hearing of matters on an urgent basis (as reflected in the 7 October 2022 order).


The court’s Practice Directives were referenced in relation to the filing of heads of argument (as recorded in the 7 October 2022 order).


Held


The court held that the applicants were substantially successful in the urgent proceedings and that the Speaker and Mayor’s conduct in relation to the purported appointment was unlawful and sufficiently culpable to justify an adverse costs order against the municipality, together with further accountability steps. The respondents’ attempt to shift responsibility for costs onto the applicants was rejected.


The municipality was ordered to pay the costs, including wasted costs, and the municipal council was directed to consider recovery of those costs from political office-bearers and officials under section 176(2) of the MFMA.


LEGAL PRINCIPLES


The judgment applied the principle that costs ordinarily follow the event, particularly where a party has achieved substantial success and the opposing party cannot demonstrate special circumstances warranting a different outcome. The court treated obstructive litigation conduct and non-compliance with court orders as relevant to the exercise of the costs discretion.


The judgment endorsed the principle (invoked in argument with reference to authority) that even where government recognises a decision is unlawful, it should generally be held to proper process rather than informally withdrawing or bypassing review, so that a court can set aside the defective decision with due regard to its effects.


In the local government context, the judgment emphasised that senior political office-bearers such as a Speaker and Mayor bear an important duty to ensure the legality of actions taken in their official capacity, and that they cannot avoid accountability through claims of ignorance where illegality is apparent and raised contemporaneously.


Finally, the judgment applied section 176(2) of the Local Government: Municipal Finance Management Act 56 of 2003 as a mechanism enabling a municipality, where appropriate, to recover losses or damages (including costs consequences) from political office-bearers or officials responsible for deliberate or negligent unlawful actions, and it utilised a directive to the municipal council to investigate whether recovery should occur in the circumstances.

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[2022] ZAFSHC 344
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Mahapane and Others v Mohokare Local Municipality and Others (4913/2022) [2022] ZAFSHC 344 (6 December 2022)

FLYNOTES:
MUNICIPALITY – ABUSE OF POWER AND COSTS
Costs
– Municipality – Abuse of power – Reckless and
negligent conduct in the decision-making process in
local
government – Individual liability of councillors for costs –
Local Government: Municipal Finance Management Act 56 of 2003
,
s
176(2).
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4913/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PULE
MAHAPANE
First
Applicant
TEBOHO
MOCHECHEPA
Second
Applicant
THABISO
EMMANUEL
NA
Third
Applicant
TSEPO
NOVEMBER
Fourth
Applicant
and
MOHOKARE
LOCAL MUNICIPALITY
First
Respondent
SPEAKER
OF THE COUNCIL OF MOHOKARE
LOCAL
MUNICIPALITY: MR RJ THULO
Second
Respondent
MAYOR
OF
MOHOKARE
LOCAL MUNICIPALITY:
MR
ZINGESI
MGAWULI
Third
Respondent
MOLATELO
JOHANNES KANWENDO
Fourth
Respondent
PHAKAMISA
DYONASE
Fifth
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
FREE STATE DEPARTMENT OF GOVERNANCE
&
TRADITIONAL
AFFAIRS
[1]
Sixth
Respondent
CORAM:
OPPERMAN,
J
HEARD
ON:
1
December 2022
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII

on 6 December 2022. The date and time for hand-down is deemed to be 6
December 2022 at 15h00
JUDGMENT
BY:
OPPERMAN,
J
SUMMARY:
Costs
- individual liability of councillors for abuse of power and reckless
and negligent conduct in the decision-making process
in local
government
JUDGMENT
[1]
It
is a proven fact that the Speaker
[2]
and the Mayor
[3]
of the Mohokare
Local Municipality appointed a Municipal Manager that was clearly not
fit and proper to be so appointed and in
a process that was patently
illegal. This case does not revolve around a naïve
bona
fide
blunder by the Speaker of the Council of the Mohokare Local
Municipality. The Speaker and the Mayor admitted the above but want

for the Applicants to carry the costs of this case.
[2]
This
is how the cause for the application unfolded:
1.
On
23 May 2022 the First Respondent; the Municipality, advertised a
vacancy for Municipal Manager.
2.
The
panel that was appointed for the selection of the candidate consisted
of the Mayor (the Third Respondent), a Councillor Mr.
Damon Job and a
representative of Cogta, one Seipati Dlamini. The Fourth Respondent
was one of the Applicants for the vacancy.
3.
On
29 August 2022 the Speaker gave notice to the Councillors of a
Special Council Meeting scheduled for Wednesday, 31 August 2022.
4.
The
appointment of the Municipal Manager was on the agenda.
5.
The
Speaker failed to disseminate the Mayor’s panel report and
recommendations on the appointment of the Fourth Respondent
to the
Council in advance. It was only made available during the meeting.
6.
The
Speaker insisted during the meeting that the Fourth Respondent will
be appointed; this notwithstanding vehement opposition by
some
Councillors. He proceeded to unilaterally appoint the Fourth
Respondent.
7.
The
Councillors were informed by the Speaker that they were not entitled
to the minutes of the selection committee; this is incorrect.
8.
The
objections of the Councillors were so severe that:
21.
The majority of the council was up in arms and disgruntled with this
ruling and the meeting became so disorderly that Second
Respondent
adjourned the meeting without concluding the agenda business. So,
Second Respondent’s ruling was plainly inspired
by his attempt
to discard unhappiness of councillors regarding the aspects stated
above, and not because the fact that the Applicants
suggested that
Fifth Respondent be appointed.
[4]
9.
The
meeting of the 31
st
of August 2022 was digitally recorded to prove the allegation. The
meeting was adjourned to 7 September 2022 but it never materialised.
10.
The
Mayor informed the Fifth Respondent that the Fourth Respondent was
appointed as Municipal Manager whilst knowing that there
was not a
Resolution by the Council. The letter is alleged to be misleading and
disingenuous. It is common cause that there was
not a Resolution by
the Councillors.
11.
Arrangements
were made by the Mayor for the Fourth Respondent to take up his
position as Municipal Manager and the Applicants addressed
a letter
to the MEC: Cogta to intervene.
12.
Of
grave concern was the “proximal” relationship between the
Mayor and the now illegitimately appointed Municipal Manager.
13.
The
objections were based on real and valid concerns in that firstly, the
Fourth Respondent had only attained a competency score
of “basic”
and on this alone the appointment was unlawful.
14.
The
Human Resources Manager revealed on 29 September 2022 she discovered
that the screening report from the Office of the Premier
could not
confirm that the Fourth Respondent is a South African Citizen, the
Fourth Respondent’s qualification, claimed to
be a Bachelor’s
Degree Certificate, could not be verified and the screening results
for employees who have resigned prior
finalisation of their cases of
misconduct, were not attached.
15.
Delayed
and insufficient reaction from the MEC caused an urgent application
to the Court.
16.
The
Mayor and the Speaker maintain that if the Applicants directed a
letter to them to address the issue, litigation would not have

resulted. This is not correct because they did not want to heed to
reason during and after the Council Meeting. They also refused
to
make pertinent records available to the Applicants and the Court had
to order this after the urgent application. Only after
Counsel
directed them so, did they, on 7 October 2022 admit the error.
[5]
This is on their own evidence.
17.
Neither
the Mayor nor the Speaker are lay-people to the demands of
constitutional democracy. They cannot claim a
bona
fide
mistake on the spur of the moment. They were warned of their legally
inapt behaviour during the meeting and afterwards. They
misrepresented
the legality of the appointment by the fact that there
was not any Resolution in existence. The autocratic mentality of a
belief
in the legality of a “casting ruling” in the
circumstances of the case is without veracity in the Republic of
South
Africa that has its foundation in the Constitution.
18.
There
is an incontrovertible and crucial duty on the Speaker and the Mayor
to ensure the legal veracity of any act or decision executed
in their
official capacity.  They cannot plea ignorance on the facts of
this case.
19.
The
haughtiness of their conduct is emphasized by the fact that they want
to blame the Applicants for the litigation and are now
in contempt of
the Court Order of 7 October 2022.
20.
They
maintain that they immediately took steps to rectify the situation by
referring the case back to the Council; but in the same
breath
declared that they only admitted the error of their ways on 7 October
2022 when the case already served before the Court.
They, again,
wanted to defy proper process by unceremoniously referring the
decision back to Council.
21.
The
statement of the Applicants is correct that:
Even
where a decision is defective or unlawful, government should
generally not be exempt from the forms and processes of review.
It
should be held to the pain and duty of proper process. It must apply
formally for a court to set aside the defective decision,
so that the
court can properly consider its effects on those subject to it.
[6]
22.
The
conspectus of the contempt of the Constitutional imperative is
broadened by the fact that the Second and the Third Respondents
did
not provide all the documents which they were ordered to provide in
the 7 October - Court Order.
23.
Even
worse; prior to the documents being provided, the Speaker of the
Municipality convened a Council meeting at 11h00 on 14 October
2022
and notwithstanding that the relevant item (appointment of the
Municipal Manager) was not on the agenda, the Council again
took a
Resolution on the appointment of the Municipal Manager.
24.
The
above is apparently the subject of another urgent application for
another interdict.
25.
The
First, Second and Third Respondents blatantly disregarded the further
terms of the 7 October - Court Order by the late filing
of their
papers that caused another postponement of the case that was
postponed, in the first place, to adjudicate the costs of
the
litigation.
26.
As
the Applicants correctly pointed out in their Heads of Argument:
13.
Applicant succeeded substantially when respondents conceded to the
granting of an interdict, and consequently costs should
follow the
event unless there are special circumstances.  Respondents have
not demonstrated any special circumstances but
instead, have
demonstrated an obstructive approach to the issue of costs, they have
acted disdainfully towards the court by failing
to comply with the
terms of the court order and have put a dishonest version of events
forward for attempting to justify the so
- called casting ruling –
causation of which they insincerely place at the feet of the
Applicants.  Respondents ought
to be mulcted with costs as a
mark of the Courts disapproval of their conduct.
14.
The Speaker’s conduct amounted to the usurpation of the
council’s powers whilst he clearly seems not to have
considered
the very reason for the relevant prescripts.  The Mayor on the
other hand refused to provide councillors with relevant
information.
Neither the speaker nor the Mayor were prepared to entertain the
concerns of the Applicants and other councillors,
and it was
ultimately their conduct which led to the impugned decision.
The situation is no different to Mlokoti
supra.
[7]
15.
The purported defense that Applicants should have addressed a letter
to Second or Third Respondent, whereupon they would
have withdrawn
the decision, has no merit.  It has become trite, ever since
Oudekraal,
[8]
that a decision of
the nature cannot simply be withdrawn, but must be challenged by way
of legal process.  The Applicants
were compelled to approach
court for relief.
[3]
Research
has shown that increased litigation involving the abuse of power and
improper conduct of Municipal Councillors brought
the issue of
individual responsibility and liability for costs to the fore in the
recent past. It is believed that the attribution
of individual
liability on Councillors for abuse of power will improve the
decision-making process in local government, individual
liability
will restore public confidence as regards the decision-making of the
council, behavioural patterns will not unfavourably
affect
decision-making in the council, Councillors influenced by the culture
of party discipline will not vote in support of resolutions
that are
in conflict with any legislation applicable to local government, it
will promote a culture of sound decision-making in
local government
as well as good governance and Councillors will endeavour to be
diligent in casting their votes and act in good
faith in the exercise
of their functions.
[9]
[4]
As
indicated and by agreement between the parties and on 7 October 2022
the Court interdicted and forbade the appointment of the
Municipal
Manager with further regulatory orders to remedy the situation. The
conduct was so grossly inappropriate that the following
order was
issued by the Court:
1.
Applicants’ non-compliance with the Uniform Rules pertaining to
form, process, forms,
service and time periods is condoned and the
matter is heard as one of urgency.
2.
The decision pertaining to the appointment of Municipal Manager of
the Mohokare Local Municipality
(“First Respondent”) is
referred back to the Council pf the First Respondent for an
appropriate resolution in terms
of
Section 82
of the
Local
Government:  Municipal Structures Act, 117 of 1998
.
3.
Pending the Council resolution referred to in paragraph 2 above:
3.1
The Fourth Respondent is interdicted from performing or purporting to
perform any functions of or related to the office
of the Municipal
Manager of the First Respondent;
3.2
The Fourth Respondent is interdicted from holding himself out as a
Municipal Manager of the First Respondent;
3.3
The Fourth Respondent is interdicted from enlisting the assistance of
any acts related to the office of the Municipal
Manager of the First
Respondent;
3.4
The Fourth Respondent is ordered to immediately vacate the offices of
the First Respondent;
3.5
The Fourth Respondent is interdicted from entering the offices of the
First Respondent with the intent to report for work
and/or carry out
the functions of a Municipal Manager;
3.6
The First, Second and Third Respondent are ordered not to give effect
to or to cease giving effect to the purported decision
by the Second
Respondent to appoint Fourth Respondent as a Municipal Manager of the
First Respondent.
4.
Second and Third Respondents shall, within five (5) days of date of
this order, deliver to
the Applicants’ attorneys, the following
documents:
4.1
Copies of the advertisements published in accordance with
Regulation
10(1)
of the Regulations on appointment and conditions of employment
of Senior manager (“the Regulations”);
4.2
Copies of all applications referred to in
Regulation 11
, specifically
including the documents contemplated by Sub-regulation (11)(4) of the
regulations.
4.3
A copy of the Council resolution appointing a selection panel as
contemplated by
Regulation 12
of the regulations.
4.4
A copy of the report by the Mayor on the consultation with the
selection panel, pertaining to the short-listing as performed
in
accordance with
Regulation 13(1)
, alternatively the Minutes of such
short-listing meeting.
4.5
A copy of the written report of the outcome of the screening process
as contemplated by
Regulation 14(2)
of the regulations.
4.6
A copy of the Minutes of the selection panel pertaining to the
interviews as contemplated by
Regulation 15(1).
0cm
; line-height: 200%">
4.7
A copy of the attendance register of Applicants who attended
interviews.
4.8
A copy of the records of the individual assessment of each panel
member as contemplated by
Regulation 15(3).
0cm
; line-height: 200%">
4.9
A copy of the competency assessment of each candidate, as
contemplated by
Regulation 16(1)
read together with Regulation 16(2).
5.
The issue of the costs of the application is postponed for
determination by the above Honourable
Court on 3 November 2022.
6.
The Respondents opposing the application are to file answering
affidavits (dealing with costs)
if any, on or before 19 October 2022.
7.
The Applicants are to file replying affidavits, if any, on or before
26 October 2022.
8.
Heads of Argument will be filed in accordance with the Practice
Directives of the Court.
[5]
The
issue of costs was now opposed by the First to Fourth Respondents.
They wanted for the Applicants to bear the costs. In light
of the
above, the claim is without legal sense.
[6]
The
Applicants claim to be entitled to an order on the basis that the
costs be paid by the First, Second and Third Respondents jointly
and
severally, including the costs of 3 November 2022. It is the
Applicants prayer, in the alternative, for the Court to order
that
the Mohokare Local Municipality carries the costs and in addition;
make an order in terms of the
Heyneke
v Umhlatuze Municipality
[2010] JOL 25625
(LC) dictum that:
The
council of the respondent is directed to investigate and determine
whether in terms of
section 176(2)
of the
Local Government: Municipal
Finance Management Act 56 of 2003
[10]
the
costs ordered above should be recovered from any political office
bearers and officials.
[7]
The
Second and Third Respondent’s unlawful conduct is indeed to be
labelled as deliberate and grossly negligent. The taxpayer
and
already financially besieged Municipalities, cannot be mulcted with
costs that were incurred in a manner as is the case here.
If
the Court orders accountability jointly and severally, it might
follow that the one paying to exempt the other. The Municipality
will
foot the bill and the taxpayer will bear the brunt. This is
unfortunately the relief motioned for by the Applicants. The
Applicants were substantially successful in the application and acted
with due diligence in the protection of the public’s
interest.
The conduct of the Speaker and the Mayor must be investigated and
managed by the Municipality. They may not escape with
impunity.
[8]
ORDER
1.
The
First Respondent is ordered to pay the costs of this case including
the wasted costs incurred on 3 November 2022.
2.
The
Council of the First Respondent is directed to investigate and
determine whether, in terms of
section 176(2)
of the
Local
Government: Municipal Finance Management Act 56 of 2003
, the costs
ordered above should be recovered from any political office bearers
and officials.
M
OPPERMAN, J
APPEARANCES
For
the Applicants:

ADVOCATE MC LOUW
Chambers, Bloemfontein
Instructed
by:
J
Nortje
Kramer Weihmann
Incorporated,
Bloemfontein
Christine@kwinc.co.za
For
the First, Second &
Third
Respondents:

ADVOCATE JS
RAUTENBACH
Chambers, Bloemfontein
Instructed
by:
L
Radley
Peyper Attorneys,
Bloemfontein
everlona@peyperattorneys.co.za
[1]
“
Cogta”.
[2]
“
Second
Respondent”.
[3]
“Third
Respondent”.
[4]
Page
101 of the Bundle indexed on 24 November 2022.
[5]
Page
77 of the Bundle indexed on 24 November 2022.
[6]
Page
103 at paragraph 24 of the Bundle indexed on 24 November 2022.
[7]
Mlokoti
v Amathole District Municipality & another
[2009]
2 BLLR 168
(E).
[8]
Oudekraal
Estates Pty Ltd v City of Cape Town
2004
(6) SA 222
SCA.
[9]
Tom, SA,
A
CRITICAL ANALYSIS OF INDIVIDUAL LIABILITY OF COUNCILLORS IN SOUTH
AFRICA
,
University of the Western Cape, December 2012, http://etd.uwc.ac.za
› bitstream › Tom_LLM_2012 on 2 December 2022.
[10]
176.   Liability of functionaries exercising
powers and functions in terms of this Act. —
(1)
No municipality or any of its
political structures, political office-bearers or officials,
no
municipal entity or its board of directors or any of its directors
or officials, and no other organ of state or person exercising
a
power or performing a function in terms of this Act, is liable in
respect of any loss or damage resulting from the exercise
of that
power or the performance of that function in good faith.
(2)
Without limiting liability in terms
of the common law or other legislation, a municipality
may recover
from a political office-bearer or official of the municipality, and
a municipal entity may recover from a director
or official of the
entity, any loss or damage suffered by it because of the deliberate
or negligent unlawful actions of that
political office-bearer or
official when performing a function of office
.

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