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[2022] ZAECMKHC 27
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Malawu v MEC for Cooperative Governance and Traditional Affairs, Eastern Cape and Another (CA & R 118/2021) [2022] ZAECMKHC 27 (31 May 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO: CA & R 118/2021
In
the matter between:
SIYABULELA
MALAWU

Appellant
and
MEC
FOR COOPERATIVE GOVERNANCE AND

First Respondent
TRADITIONAL
AFFAIRS, EASTERN CAPE
THE
MUNICIPAL COUNCIL,

Second
Respondent
AMAHLATHI
MUNICIPALITY
JUDGMENT
MBENENGE
JP:
Introduction
[1]
Item 14 (1) of Schedule 1
[1]
to
the Local Government: Municipal System Act 32 of 2000
[2]
confers the power on a municipal council to -
“
(a)
investigate and make a finding on any alleged breach of a provision
of [the] Code; or
(b)
establish a special committee -
(i)
to investigate and make a finding on any alleged breach of [the]
Code; and
(ii)
to make appropriate recommendations to the council.”
[2]
In terms of item 14(2) of the Code, if the council or a special
committee finds that
a councillor has breached a provision of the
Code, the council may -
(a)
issue a formal warning to the councillor;
(b)
reprimand the councillor;
(c)
request the MEC for local government in the province
[3]
to suspend the councillor for a period ;
(d)
fine the councillor; and
(e)
request the MEC to remove the councillor from office.
[3]
If a municipal council does not conduct an investigation contemplated
in item 14(1)
and the MEC considers it necessary,
[4]
she/he may appoint a person or a committee to investigate any alleged
breach of the Code and make a recommendation as to the appropriate

sanction in terms of item 14(2).
[4]
If the MEC is of the opinion that a councillor has breached a
provision of the Code
and that such breach warrants a suspension or
removal from office, the MEC may remove the councillor from
office.
[5]
[5]
At all times relevant to these proceedings, the appellant was a
councillor of the
second respondent.
[6]
On 18 March 2020, he was removed from this office pursuant to a
decision by the MEC that he had breached certain provisions of
the
Code.
[6]
Disgruntled at this, on 20 March 2020, the appellant launched an
urgent application
before the court below challenging the decision.
His quest for an interdict restraining the respondents from removing
him from
office pending the finalization of proceedings to review the
decision was not successful. Eventually, the review application was

dismissed on 03 November 2020. The appeal is a sequel to such
dismissal and serves before this court with the leave of the Supreme

Court of Appeal,
[7]
the court
below having refused such leave.
[7]
When the appeal was heard, the appellant’s term of office as
councillor had
expired, and new councillors had been elected.
Factual
background
[8]
It came to pass that during 2018 and 2019, the appellant faced
allegations that he
breached the Code in,
inter alia
-
(a)
having been involved in a fight with a
member of the public during a council meeting, resulting in a halt of
the meeting;
(b)
attacking, with a machete, a member of the
public after the meeting had resumed;
(c)
making a mockery, on social media networks,
of the intervention by the Executive Council of the Eastern Cape
Province to appoint
an administrator;
(d)
utilizing
the letterhead of the municipal manager of Amahlathi Municipality
[8]
without having been authorised to do so; and
(e)
failing to attend four consecutive council
meetings.
[9]
The Council resolved to request its Ethics and Integrity Committee
[9]
to investigate these allegations. To this end, on 21 November 2019,
the appellant received a letter from the Ethics Committee whereby
he
was required to account for his absence at the meetings. In so doing,
the
Committee only investigated one of the allegations against the
appellant. The appellant was accused of contravening item 3 of
the
Code requiring that a councillor attend each meeting of the Council
and of a committee of which that councillor is a member
except when
leave of absence is granted or in an instance where the councillor is
required to withdraw from the meeting in terms
of the Code.
[10]
Besides challenging the authority of the Ethics Committee and calling
upon it to furnish him
with its terms of reference, in his response
letter of 24 November 2019, the appellant stated that he had “
advised
the Speaker telephonically of
[his]
absence for
(sic)
all
meetings
,” which he was yet “
to confirm in
writing
.” Otherwise, in the letter, the appellant expressed
concern about the safety of officials and councillors in instances
when
council meetings had been held at Mlungisi Location. The letter
is bereft of any reasons for the appellant’s alleged failure
to
attend meetings of the Council.
[11]
It is not in dispute that the Ethics Committee resolved to reprimand
the appellant for his failure
to attend the meetings.
[12]
In his letter dated 20 January 2020, the speaker of the Council
advised the MEC of the alleged
violations of the Code by the
appellant. The letter also mentioned that the appellant’s
constituency had expressed their
dissatisfaction with the appellant’s
behaviour and demanded his resignation.
[13]
On 24 January, the Council endorsed the resolution of the Ethics
Committee reprimanding the appellant
for failing to attend Council
meetings.
[14]
According to the papers, on 24 January, the Council also resolved
that the Ethics Committee investigate
and make recommendations on the
alleged breaches of the Code by the appellant.
[15]
The terms of reference of the Ethics Committee
[10]
were-
·
“
to establish whether Cllr. S. Malawu
was one of the leading councillors when Former Mayor, Cllr P. Qaba
convened a secret meeting
with selected Councillors to present COGTA
support plan;
·
to establish whether Cllr S. Malawu was a
ring leader in mobilising the councillors who organized themselves as
a faction of the
Mayor to sabotage and not attend Council Meetings;
·
to establish whether Cllr S. Malawu
attacked the member of the public with the machete inside the Council
Chambers during the Council
Meeting where the Former MEC Xasa was
presenting the COGTA support plan;
·
to establish whether Cllr S. Malawu
provoked the community members of wards 6,13,14 and 15 by employing
only comrades from his ward;
·
to establish whether Cllr S. Malawu
organised a meeting at eMjojweni where he was making a list of jobs
for unemployed youth in
ward 14 even though he was not the Councillor
of that ward;
·
to establish whether Cllr S. Malawu was
involved in organising a protest to remove the previous TROIKA;
·
to establish whether Cllr S. Malawu tried
several times to stop community projects in wards 14 and 15;
·
to establish whether Council Speaker once
received a memorandum and petition on the vote of no confidence
against ward 13 (Councillor
S Malawu) as well as removal of the
appellant from office;
·
to establish whether Cllr S. Malawu wrote
on social network in ridiculed Dr S Maclean who was an administrator
in terms of section
139 (1)(b) in Mahlathi Local Municipality and the
appellant rendered the intervention as useless, waste of time and
waste of resources,
concluding that the intervention made the
municipality worse than before;
·
to establish whether Cllr S. Malawu on the
same communication on social networks alleged that Chief Sandile who
is the weep of traditional
leaders is corrupt which was viewed as
defamatory;
·
to establish whether Cllr S. Malawu
utilised the letterhead of the municipal manager, to communicate
serious municipal issues without
being authorised to do so; and
·
to establish whether Cllr S. Malawu
continued to send threatening messages to the Speaker.”
[16]
The MEC was informed of the Council’s resolution on 27 January.
He thereupon wrote to the
speaker acknowledging receipt of the letter
and proposing time frames within which the investigative process
should be finalised.
[17]
On 29 January, the MEC addressed a letter to the appellant stating:
“
This
office is in receipt of a letter from the Speaker of Amahlathi Local
Municipality. The letter is indicating that Council has
taken a
resolution to investigate the allegations levelled against you.
I have since responded to
the letter written by Speaker on behalf of Council and I’ve
requested them to handle this matter
with speed as some of the
allegations are dating back as far as 2018.
I’m writing this
letter to request you to cooperate with this process. This process
will give you an opportunity to explain
yourself on the allegations
levelled against you.”
[18]
In his response letter dated 17 February, the appellant challenged
the MEC’s authority
to correspond with him.  In relevant
part, the letter reads:
“
I
must bring forth to your attention that you are not following due
process; you have no authority to write me a correspondence
at this
stage. As per the law MEC Nqata, you only come into effect once
Council submits a request to your office to suspend myself
and only
when it has declared that I Councillor Malawu have indeed breached a
provision of the Code of Conduct. . .
Furthermore, on 01
November 2018 MEC Nqata served me with a copy of a letter of
suspension coming from the ANC, which was later
uplifted. I must
highlight that once again you had no authority for such action,
consequently not following due process for the
second time. . .
In closing, I feel that
you MEC Nqata have shown that you have a personal interest in matters
concerning myself and your actions
. . . amount to interference. You
have failed to demonstrate consistency in your office.”
[19]
Having been of the view that the Council was incapable of handling
the investigation against
the appellant, the MEC, by way of letter
dated 18 February, informed the speaker that he ( the MEC) was
“
empowered by [item 14 (4) of the Code
that governs
Council conduct to take over this matter and investigate it by
(sic) [his]
office
” and that, to that end, he would
“
send a team to do an investigation and
[he]
would
like
[the speaker]
to provide the investigating team with all
the relevant information
.”
[20]
On 28 February, the MEC wrote to the speaker advising him that a task
team comprising officials
“
from
Municipal Administration, Legal Advisory Services and Public
Participation Unit
[would]
visit
[Amahlathi]
municipality
on Tuesday, 03 March 2020 to conduct an investigation on the alleged
breach of the Code
. . . [by the appellant].”
[11]
There is nothing, from the evidence, to suggest that the terms of
reference made applicable to the Ethics Committee were extended
to
apply to or adopted by the task team. There is also paucity of
information regarding whether the MEC provided the task team
“
with
all the relevant information
”
and what the nature and content of such information was.
[21]
By letter dated 04 March, the appellant was invited, by the speaker,
to avail himself “
as
a candidate
”
to “
an
interview
”
that would be conducted by the Department of Cooperative Governance
and Traditional Affairs
[12]
at
the Sutterheim Library, on 05 March.
[22]
The appellant spurned this invitation, contending that the speaker or
the Council, and not the
MEC, was empowered to conduct investigations
into alleged breaches of the Code against him; he imputed bias on the
part of the
MEC and minced no words that he would not “
partake
in an unlawful process
.”
[13]
[23]
It is not in dispute that on 09 March, the MEC penned a letter to the
appellant -
(a)
setting out the allegations the appellant was said to
be facing;
(b)
informing the appellant of the provisions of the Code
that he had
allegedly breached; and
(c)
affording the appellant seven days within which
to respond to the
allegations and provide reasons why he should not be removed from
office.
[24]
Despite receipt of the letter on 10 March, the appellant remained
supine and proffered no response
to the letter.
[25]
On 18 March, the MEC removed the appellant from councillorship. The
MEC alleges that his decision
was informed by a memorandum embodying
the report
[14]
and
recommendations
[15]
of the
task team allegedly received on 06 March.
[26]
Even though on the face thereof the memorandum makes provision for
the appending of signatures
by other functionaries of the
Department
[16]
to signify
support for recommendations or the converse thereof, and in the case
of the head of the Department whether the recommendations
were
approved or not, only “
L
C Sihunu,
”
in his capacity as Acting General Manager: Municipal Governance and
Support, appended his signature on the memorandum, on
20 March, after
the appellant had been removed from councillorship.
The
dispute
[27]
The nub of the appellant’s case before the court below was that
the impugned decision had
been arrived at prematurely because the
memorandum on which the MEC predicated the decision was, on the face
thereof, dated 20
March - which suggests that when the impugned
decision was taken the memorandum had not yet been generated. The
appellant further
contended that he was not afforded the opportunity
to make representations prior to the decision being taken.
The
findings of the court below
[28]
The court below pronounced:
“
In my view,
[there] is a genuine and
bona fide
dispute of fact which lies
at the core of this application. Having found that a genuine dispute
has arisen and in view of the fact
that the [appellant] seeks final
relief, there is no reason why the factual dispute should not be
resolved on the first respondent’s
version. Namely that
the
report was received prior to taking the impugned decision
.
Besides, if first respondent had not received the report when he
penned the letters to the [appellant] on the 09 March 2020 and
18
March 2020 respectively, how would he have known that [the appellant]
did not cooperate with the investigations and therefore
did not
refute the allegations against him? This in my view lends credence to
first respondent’s version that he received
a report from the
investigation team on the basis of which he took the impugned
decision prior to taking the decision.” (emphasis
added)
[29]
In addition, the court below was satisfied that the appellant had
been given sufficient notice
and invited to make representations
prior to the impugned decision being taken, but spurned the
opportunity.
Appeal
proceedings
[30]
It is common cause that after leave to appeal had been granted
[17]
and the appeal set down for hearing, elections for municipal
councils, the country over, were held on 01 November 2021; the
current
municipal council of Amahlathi was declared elected upon the
conclusion of the elections on 01 November 2021; the appellant has

not been elected as councillor of Amahlathi.
[18]
[31]
The appeal is founded principally on the contention that the court
a
quo
erred in finding that there was a
bona fide
dispute of
fact on whether the first respondent had been in possession of an
investigation report on the strength of which she
took the impugned
decision.
[32]
Besides opposing the appeal as lacking merit, the respondents contend
that the relief sought
is moot between the parties and will have no
practical effect or result. The appellant holds the opposite view;
because he is a
politician and a career councillor, for as long as
the impugned judgment is extant, he contends, he is precluded from
being considered
for nomination in future, and that the impugned
decision should, in any event, not be allowed to stand as it
effectively breaches
the principle of legality.
[33]
In terms of
section 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
,
[19]
when, at the hearing of an appeal, the issues are of such a nature
that the decision sought will have no practical effect or result,
the
appeal may be dismissed on this ground only. Save under exceptional
circumstances, the question whether the decision would
have no
practical effect or result is to be determined without reference to
any consideration of costs.
[20]
[34]
In light of the aforegoing, the issues to be determined and which are
dispositive of this appeal
are -
(a)
whether the lawfulness or otherwise of the appellant’s
removal
from office has become moot; and
(b)
what cost order should be made.
Mootness
[35]
Section 16(2)
(a)
corresponds in material respects with its
predecessor,
section 21A
(1) to (3) of the now repealed Supreme Court
Act 59 of 1959 so much so that pronouncements on section 21A apply
with the changes
required by the context to section 16.
[36]
The object of section 16(2)
(a)
is founded on the principle that courts of law exists for the
settlement of concrete controversies and actual infringements of

rights, not to pronounce upon abstract questions or to advise upon
differing contentions.
[21]
[37]
A case is moot and therefore not justiciable if it no longer presents
an existing or live controversy
which should exist if the court is to
avoid giving advisory opinions on abstract propositions of the
law.
[22]
[38]
In support of the contention that, whilst the impugned decision
remains extant, he is precluded
from nomination as a candidate, the
appellant places reliance on a document of the African National
Congress headed “
2021
LOCAL GOVERNMENT ELECTIONS ANC RULES: Local Government Candidates
Selection,”
[23]
item 16
of which provides:
“
Nominees must be
screened out if they have been found guilty of any offence that casts
doubt on their suitability to represent the
ANC, in:
(a)
an ANC DC,
(b)
a criminal court,
(c)
a disciplinary process in government or their employment,
or
(d)
in a civil judgment. . . ”
[39]
The appellant’s contention that the decision sought will have a
practical effect or result
flies in the face of section 21(1)(a) of
the
Local Government: Municipal Structures Act 117 of 1998
.
[24]
The section reads:
“
(1) Every citizen
which is qualified to vote for a particular municipal council has the
right –
(a)
to stand as a candidate in an election for that council, except a
person
disqualified in terms of section 158(1) (c) of the
Constitution . . .”
It
is clear from a reading of the section that it confers a right on any
voter within a municipality to stand for election.
Moreover
and in any event, section 19(3) (b) of the Constitution accords to
every citizen the right to stand for public office and,
if elected,
to hold office. In terms of section 2 of the Constitution, law or
conduct inconsistent with the Constitution is invalid.
The ANC Rules
are an internal document that does not detract from the statutory
right created by section 21(1)(a) and the Constitution.
[40]
The provisions of section 158(1)(c)
[25]
have no bearing on the issue that arises in the instant appeal; it is
not related to a decision by the MEC to dismiss a councillor
from
office. The section creates no exception of which the appellant could
avail himself.
[41]
The ANC Rules pertain to local government elections held in 2021, an
event that has come and
gone. From a reading of the Rules there is
nothing suggestive of the fact that the Rules will apply to future
nominations of candidates.
[42]
It is so that the mootness of a matter between parties does not
necessarily constitute an absolute
bar to its justiciability. The
court has a discretion to be exercised according to what the
interests of justice require. A prerequisite
for the existence of the
discretion is that any order which this court may make will have some
practical effect either on the parties
or on others. Other factors
that may be relevant will include the nature and extent of the
practical effect that any possible order
might have, the importance
of the issue, its complexity, and the fullness or otherwise of the
argument advanced.
[26]
Another
compelling factor could be the public importance of an otherwise moot
issue.
[27]
[43]
There is no longer any live issue between the parties. A new council,
of which the appellant
is not a part, has been elected. No purpose
would be served by determining whether the removal of the appellant
was lawful. Nor
is there any practical value in deciding that issue.
In spite of the impugned decision, nothing, from a reading of section
21(1)
(a)
of the Structures Act would preclude the appellant from being
considered for nomination and possible election as a councillor in

due course. The test is whether the judgment or order will have a
practical effect or result, not whether it might be of importance
in
a hypothetical future case.
[28]
[44]
I am also of the view that this case does not fall in the category of
the exceptional instances
referred to in paragraph [42] above. To the
extent that the appellant seeks to advance a constitutional issue
(the principle of
legality), the case has no practical effect on
others. In this regard, the following remarks by Froneman J in
Notyawa
v Makana Municipality and Others
[29]
are illuminating:
“
Neither would a
determination on the merits of the review have a practical effect on
others . . . [t]he finding involves no Constitutional
or legal issue
that would have an effect on others. It is essentially a factual
finding contingent on the particular circumstances
relating to the
applicant. In the absence of any compelling considerations bearing on
the broader public interest there is no basis
for this court to
exercise its discretion in favour of adjudicating dispute which is
moot.”
[45]
These remarks apply with equal force in this appeal. I agree with Mr
Rorke
,
who, together with Ms
Appel
appeared for the respondents, that there are no compelling
circumstances that have been pointed to by the appellant that are in

the broader public interest as opposed to the narrow interest of the
appellant, on the one hand, and the ANC as a political party,
on the
other. Nor are the issues raised in the appeal of any public
importance. It is also not without significance that there
are no
statutory interpretation issues arising from the section that was
purportedly invoked when the impugned removal from councillorship
was
made, because the Code has since been repealed.
[30]
[46]
In all these circumstances, the appeal must fail. There remains the
question of costs to consider.
Costs
[47]
It is trite law that a decision on costs is in the discretion of the
court to be exercised judicially
upon the consideration of the facts
of each case. Generally, costs are awarded to the party who is
substantially successful on
appeal. This general principle may be
departed from only where there are good grounds or special
circumstances for doing so.
[48]
In
John
Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in
liquidation) and Another
[31]
the approach to be adopted where, as here, mootness is raised in an
appeal, was succinctly set out as follows:
“
Where an appeal or
proposed appeal has become moot by the time leave to appeal is first
sought, it will generally be appropriate
to order the appellant or
would-be appellant to pay costs, since the proposed appeal was still
borne from the onset. Different
considerations apply where the appeal
or proposed appeal becomes moot at a later time. The appellant or
would be appellant may
consider that the appeal had good merits and
that it should not be mulcted in costs for the period up to the date
on which the
appeal became moot.”
[49]
In light of the above quoted remarks and subject to what follows
hereunder, the costs of the
appeal for the period up to the date on
which the appeal became moot,
[32]
ought to be awarded in favour of the respondents.
[50]
As already pointed out, the court below found that there was a
material and
bona
fide
dispute of fact on the papers regarding whether the MEC’s
decision was premised on the report of the task team. Resulting
from
this, it invoked the
Plascon
Evans
rule
[33]
and determined the
case before it on the version of the respondents. It remains to be
seen, however, whether this finding and its
result are borne out by
the facts of this case.
[51]
To begin with, when the MEC did not receive joy from the due process
set in motion by the Council,
he deemed it appropriate to appoint the
task team to investigate the allegations made against the appellant
and make recommendations
to him.
[52]
Whether the MEC ever received the recommendations of the task team
before arriving at the impugned
decision is shrouded in mystery.
[53]
The MEC merely alleges that he received the report of the task team
on 06 March, but there is
a dearth of information regarding which
member of the team gave him the report and the circumstances in which
the report was received.
[34]
None of the members of the task team deposed to affidavits confirming
that they compiled any report. Mr Duna merely confirms having
been
appointed member of the team but does not say he attended the meeting
of 05 March and had complicity in the compilation of
the purported
report. No averment is made by any of the deponents to affidavits
filed in opposition to the application regarding
the purported
attendance register annexed to the MEC’s affidavit. On this
score, a reminder about
Swissborough
Diamond Mines (Pty) Ltd v The Government of the Republic of South
Africa
[35]
is apposite. In this
case, the court held:
“
Regard being had
to the function of affidavits, it is not open to an applicant or a
respondent to merely annex to it affidavit documentation
and to
request the court to have regard to it. What is required is the
identification of the portions thereof on which reliance
is placed
and an indication of the case which is sought to be made out on the
strength thereof. If this were not so the essence
of our established
practice would be destroyed. A party would not know what case must be
met.”
[54]
Mr Sihunu is the only person who appended his signature on the
memorandum embodying the purported
recommendations of the task team
on 20 March, after the appellant had been removed from office. Quite
strangely, Mr Sihunu was
not even a member of the task team. In
Fisher v
Ramahlele
[36]
Theron
et
Wallis JJA said:
“
Turning then to
the nature of our civil litigation in our adversarial system, it is
for the parties, . . . in affidavits . . . ,
to set out and define
the nature of their disputes, and it is for the court to adjudicate
upon those issues . . .”
[55]
In this case, the salutary rule enunciated in
Fisher
[37]
was not heeded by the respondents. We are left to speculate as to
what recommendations predicated the MEC’s decision.
[56]
The argument by counsel for the appellant, Mr
Matotie
, that,
upon a proper construction of item 14(4) of the Code, it was
incumbent on the MEC to act on the strength of the recommendations
of
the task team has merit
.
A
decision arrived at without compliance with a mandatory and material
procedure or a condition prescribed by the empowering provision

offends the principle of legality and is liable to be set aside in
terms of
sections 6
(2) (b) and
6
(2) (f) (i) of the
Promotion of
Administrative Justice Act 3 of 2000
.
[57]
The respondents did not discharge the evidential burden resting on
them to place plausible evidence
that the recommendations of the task
team had served before the MEC when he took the impugned decision.
The respondents’
version in this regard is not plausible.
[58]
There was, therefore, no evidence controverting the appellant’s
version that the impugned
decision was not preceded by the requisite
recommendations. In these circumstances, the question of a dispute of
fact did not arise.
The court below should, accordingly, have
made its finding on this aspect on the version of the appellant.
[38]
After the MEC had deemed it prudent to appoint the task team, it was
not appropriate for him to thereafter investigate and make
a decision
regarding the guilt or otherwise of the appellant.
[39]
[59]
Even though the appellant has not been successful in the appeal, he
ought, by reason of the case
having had good merit, not to be mulcted
in costs for the period preceding 21 November 2021.
[40]
Also, the employment of two counsel was, in my view, wise and
reasonable; it was neither extravagant nor over-cautious.
[41]
The issues of which the court below and this court were seized were
fairly complex. On two previous occasions the matter served
before
the court below
[42]
the
parties to this litigious matter employed two counsel and costs
thereof were allowed. It would have been unavailing for the
appellant
to contend that it was unnecessary, wrong or unfair to require him to
bear the costs incurred in the employment of two
counsel.
Order
[60]
I, therefore, make the following order:
The
appeal is dismissed with costs incurred after 01 November 2021, such
costs to include those consequent upon the engagement of
two counsel.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
TOKOTA
J:
I
agree.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
NONCEMBU
AJ:
I
agree.
V
P NONCEMBU
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant  :
L Matotie
Instructed
by

:
S R Mhlauli and Associates
Mthatha
C/o
Yokwana Attorneys
Makhanda
Counsel
for the respondents

:
S C Rorke
SC (with him
G Appels
)
Instructed
by

:
The State Attorney
Gqeberha
C/o
Whitesides Attorneys
Makhanda
Heard
on

:           25
April 2022
Delivered
on

:
31 May 2022
[1]
The Schedule embodies the Code of Conduct for Councillors and is
otherwise referred to herein after as “
the
Code
.”
The Schedule was repealed by
section 37
of
the Local Government: Municipal Structures Amendment Act 3 of 2021
,
which came into operation on 01 November 2021, hence the Schedule
applies to these proceedings.
[2]
The Systems Act.
[3]
The MEC, cited in these proceedings as the first respondent.
[4]
Item 14(4) of the Code.
[5]
Item 14(6).
[6]
The Council of Amahlathi Municipality (otherwise herein after
referred to as “
the
Council
”).
[7]
The SCA.
[8]
Amahlathi.
[9]
The Ethics Committee.
[10]
They are enumerated in a document signed by the Senior Manager:
Municipal Administration dated 25 February 2020.  None of
the
allegations made in the terms of reference had been investigated by
the Ethics Committee when it resolved to recommend that
the
appellant be reprimanded.
[11]
The task team.
[12]
The Department.
[13]
The letter is addressed to the speaker, the MEC, the Chairperson of
the Standing Committee and the Senior Manager: Municipal

Administration. It is inadvertently dated 17 February, as indeed it
served as a response to the letter dated 04 March (and attachments

thereto) and to the terms of reference dated 25 February 2020.
[14]
According to the memorandum, the appellant was found to have
committed serious breaches of the Code, including that he had

absented himself without being granted leave therefor by the
speaker.
[15]
It is recorded in the part of the memorandum embodying the
recommendations -
“
1. That
the report be noted.
2. That the MEC request
[the appellants] to appear before the departmental investigating
team to present
his
side of the story in line with the rules of natural justice.
3.
That the Council rescinds its resolution reprimanding the four
Councillors for non-attendance of more than
three consecutive
council meetings and request the MEC to remove those Councillors.”
[16]
Namely, S Maqungo (Senior Manager: Legal advisory service); P N
Rhoboji (Deputy Director General: Developmental Local Government);
G
Gumbi – Masilela (Head of Department: Cooperative Governance
and Traditional Affairs); and X Nqata (Member of Executive
Council,
Cooperative Governance and Traditional Affairs).
[17]
The SCA granted leave on 21 May 2021 and the notice of appeal was
delivered on 22 June 2021.
[18]
Evidence in this regard was placed before this court by way of a
notice of application to adduce further evidence filed on 22

February 2022 to which is annexed the first respondent’s
affidavit embodying the further evidence. The appellant did not

oppose the tendering of the evidence, but contended that the issue
raised in the appeal was not moot. This resulted in the court

issuing a directive calling upon the parties to address the question
of an appropriate cost order in the event of the contention
on
mootness prevailing.
[19]
The Act.
[20]
Section 16(2)
(a)
(ii) of the Act.
[21]
National
Director of Public Prosecutions v Rautenbach
2005 b(4) SA 603 (SCA) at 610 A - B; Resultant Finance (PTY) Ltd v
Head of Department for the Department of Health, KwaZulu-Natal

(unreported, SCA case number 62/2019 dated 16 July 2020) at para 26;
[2020] JOL 47741
(SCA).
[22]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
; 2000(2) SA 1 (CC); 2000(1) BCLR 39 (CC) at n18; also
see
Radio
Pretoria v Chairperson of the Independent Communications Authority
of South Africa and Another
(2005 (1) SA 47
(SCA)), where it was held that “[c]
ourts
of appeal often have to deal with congested court rolls. They do not
give advice gratuitously. They decide real disputes
and do not
speculate or theorise
. . .”
[23]
The ANC Rules.
[24]
The Structure Act.
[25]
The section provides that every citizen who is qualified to vote for
a municipal council is eligible to be a member of that council,

except anyone who is disqualified from voting for the National
Assembly or is disqualified in terms of section 47(1) (c), (d)
or
(e) from being a member of the Assembly.
[26]
Independent
Electoral Commission v Langeberg Municipality
(CCT 49/00)
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) (07 June 2001); compare
President
,
Ordinary
Court-Martial and Others v Freedom of Expression Institute and
Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC), where Langa DP
throws some light on how such discretion ought to be exercised in
relation to section 172 (2) of the Constitution.
He concludes that
the section does not oblige the court to hear proceedings concerning
confirmation orders of unconstitutionality
of legislative measures
which have since been repealed but has a discretion to do so and
“
should
consider whether any order it may make will have any practical
effect either on the parties or on others
”(para
16); also see Chaskalson
et
al
,
Constitutional Law of South Africa, revision service 2 at 8 –
16, where it is stated:
“
.
. . mootness will be a possible bar to relief in constitutional
cases where the constitutional issue is not merely moot as between

the parties but is also moot relative to the society at large.”
[27]
The
Director-General Department of Home affairs v Mukhamadiva
[2013] ZACC 47
; 2013 JDR 2860 (11);
2014 (3) BCLR 306
(CC) at para
40.
[28]
Absa
Bank Ltd v Van Rensburg
2014 (4) SA 626
(SCA) at 629 d - e;
City
Capital SA Property Holdings Ltd v Chavonnes Badenhorst St Clair
Cooper
2018 (4) SA 71
(SCA) at 85b - d; also see
President
of the Republic of South Africa v Democratic Alliance
2020(1) SA 428 (CC) at paras 14 - 16.
[29]
(CCT 115/18)
[2019] ZACC 43
;
2020 (2) BCLR 136
(CC); [2020] 4 BLLR
(CC); (2020) 41 ILJ 1669 (CC) (21 November 2019), para 62.
[30]
Footnote 1 above
.
Also,
section
21(1A) of the Structures Act (inserted by section 8 of Act 3 of
2001,operative from 01 November 2021) which provides that
“[a]
councillor
who is removed from office by the MEC
. . .
in
terms
of item
16 (7) (b) of the Code of Conduct
[set out in Schedule 7 to the Structures Act]
may
not stand as a candidate in an election for any municipal council
for a period of two years from the date on which such person
was
removed from office”
finds
no application to this matter; the appellant was not removed in
terms of item 16 (7) (b),  and section 21 (1A) does
not apply
retrospectively.
[31]
2018 (4) SA 433
(SCA), para 10; compare
Douglasdale
Dairy (Pty) Ltd and Others v Bragge and Another
2018 (4) SA 425
(SCA), para 28, where the court held that neither
party was deserving of a cost order on appeal in an instance were
the need
for canvasing the merits of an appeal had fallen away due
to a change in the circumstances of the case (the death of the
responded)
and the court had itself requested the parties to file
supplementary heads on the issue of costs and
Hugo
Networks (Pty) Ltd v Telemax (Pty) Ltd
(A56/21;
89823/19) [2022] ZAGPPHC 300 (06 May 2022), where, on the basis of
mootness, the court, having been of the view that
the appellant was
partially successful, awarded the appellant 50% of the costs
occasioned by the appeal.
[32]
A new council was declared elected on 01 November 2021.
[33]
This rule is based on
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A). Under this rule, where, in motion proceedings,
dispute of facts arise on the affidavits, a final order can be
granted only
if the facts averred in the applicant’s
affidavits, which have been admitted by the respondent, together
with the facts
alleged by the latter, justify such order; also see
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 55 and
National
Director of Public Prosecutions v Zuma
(573/08)
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA);
2009 (4) BCLR 393(SCA)
; [2009] 2 AllSA  243 (SCA) ( 12
January 2009), para 26.
[34]
He says:
“
I
deny that my decision was taken prematurely. Even though the
investigation report was signed on 20 March 2020, it was presented

to me by the investigation committee on 06 March 2020.”
[35]
1999 (2) SA 279
(T) at 344 F - G.
[36]
2014
(4) SA 614
(SCA), para 13.
[37]
Supra
.
[38]
See
Mouton
v Park 2000 Development 11 (Pty) Ltd and Others
2019 (6) SA 105
(WCC), para 85, where it was stated:
“
. . . it is equally well
established that where a dispute of fact is not a ‘real,
genuine or
bona fide’
one the court will be justified
in ignoring it and may proceed to find on the applicant’s
version thereof.”
[39]
Compare
Van
Wyk v Uys NO
[2001] JOL 8976
;
2002 (5) SA 92
(C) 99 H-J to 100 A-B, where the
court held:
“
Whatever
might have been the view of respondent [the MEC] as to the speed
with which the council had acted, the evidence reveals
that within a
month of the complaint having been lodged, the matter was placed
before a special meeting of the council. On 13
June 2001 the council
appointed its own sub-committee to deal with the complaint.
Notwithstanding such action, respondent sought
to continue with the
Kleynhans investigation and to act on his own.
In
my view, such actions cannot be justified in terms of the powers
granted to respondent in terms of item 14(4) and (6) of Schedule
1.
Respondent should have awaited the recommendation of the council and
considered it accordingly. It might have been the case
that, if he
had been dissatisfied with the basis of such an enquiry and
considered, as he stated in his answering affidavit,
that the very
composition of the sub-committee produced a completely unjustifiable
result, he may have been entitled to invoke
his powers under section
106 of [the Systems Act].”
[40]
This is the date on which a new council was declared elected. The
appeal became moot thereafter.
[41]
Burroughs
Machines v Chennine Corporation of SA (Pty) Ltd
1964 (1) SA 669
(W) (cited with approval by Dambuza J in
Bouwer
v Bouwer and Another
(361/04)
[2008] ZAECHC 28
(7 April 2008)).
[42]
Parts A and B hearings.