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[2022] ZAECELLC 21
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Ncitha v Buffalo City Metropolitan Municipality (EL107/2022) [2022] ZAECELLC 21 (25 August 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
[EAST
LONDON CIRCUIT LOCAL DIVISION]
CASE
NO: EL107/2022
In
the matter between:
ZUKISWA
VERONICA
NCITHA
Applicant
and
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Respondent
JUDGMENT
DAWOOD
J:
[1]
The applicant herein brought an application against the respondent
wherein she sought
the following relief: -
“
1.
That the decision by the respondent dated 28 September 2021 that the
applicant does not qualify to receive
legal services support be and
is hereby reviewed and set aside.
2.
That the decision referred to at 1 above be
and hereby substituted with a decision that the applicant
qualifies
to receive legal services.
3.
That the respondent provides the applicant
with legal services for the conduct of her impending criminal
case.
4.
That the respondent pays the costs of this
application on attorney and client scale.”
[2]
The applicant stated
inter alia
that: -
a)
She was elected as Executive Mayor of
Buffalo City Metropolitan Municipality, the respondent, on 31 May
2011 and acted in that position
until 2016.
b)
During 2015, she was arrested and charged
with fraud and corruption. She is currently out on bail in respect of
that case.
c)
During July 2021, she received a telephone
call from Mr. Zenzile, the head of Legal Services of the respondent,
who requested that
she reapply for legal representation support. She
duly completed the written request in terms of section 109
A
of the Municipal Systems Act again on 23 July 2021 and submitted the
same to the respondent. This request did not attract any response

from the respondent.
d)
It was only after her attorney of record
sent the second letter dated 28 September 2021 that the respondent
responded to her request
on the same date. This is ‘the
decision’ which she seeks to have reviewed, set aside and
substituted.
e)
She was advised through her attorney of
record that, according to the response by the respondent, she does
not qualify for legal
services support as outlined in section 109
A
of the Municipal Systems Act No. 32 of 2000. No further explanation
was provided in the response.
f)
There were anomalies in the response by the
respondent in annexure “D”:
(i)
The written request which she had completed and submitted to the
respondent was not completed by the
Chief Whip and Speaker of
Council, like with the first request she had submitted.
(ii)
There was no indication on the request that it was approved or not
approved, like with the first request.
(iii)
The response was from Mr. Zenzile, the Head of Legal Services.
g)
Further to the above letter, her attorneys
received by email on 6 October 2021 a memorandum from Mr Zenzile. The
memorandum was
directed to the Head of Directorate Executive Support
Services: Ms Sidukwana. The memorandum makes reference to the
decision of
Zuma v DA and
EFF
in
case number 1028/19 [2021] ZASCA dated 13 April 2021. In the
memorandum, Zenzile made reference to her request for legal
representation
support. Zenzile also concluded in the memorandum that
she is to convey to her legal representatives that the respondent
will no
longer incur any further costs with regards to her case.
h)
She instructed her attorneys and he then
drafted and sent an appeal in terms of PAJA. In the appeal, her
attorney advised the respondent
that its interpretation of
Zuma
decision is incorrect, and they do not agree with it. In the appeal,
they further advised the respondent that in terms of the policy,
the
Legal Officer, Mr Zenzile, was not the correct person to have
considered her request for legal representation support. Her
attorney
also advised Zenzile that the correct person to have considered her
request in terms of the policy is the City Manager.
i)
According to clause 11.2 of the policy, the
person vested with authority to consider an application for legal
representation support
shall be the Speaker in respect of the
Executive Mayor and all other councillors, the Executive Mayor for
the accounting officer
and directors directly accountable to the
accounting officer after consulting the whips of the various parties
and the accounting
officer in respect of all employees. It is further
provided that the responsible person on behalf of the respondent
shall exercise
the discretion of the respondent to refuse an
application or approve an application with or without conditions.
j)
Section 1 of PAJA defines administrative
action as any decision taken, or any failure to take a decision by an
organ of state when
exercising a power in terms of the Constitution
or a provincial constitution or exercising a public power or
performing a public
function in terms of any legislation, which
adversely affects the rights of any person, and which has a direct,
external legal
effect.
k)
An empowering provision is defined in the
PAJA as a law, rule of law. A rule of common law, customary law or an
agreement, instrument
or other document in terms of which an
administrative action was purportedly taken.
l)
Section 6(2)(
a
)
of the PAJA provides that a court or tribunal has the power to review
an administrative action if the administrator who took it
was not
authorised to do so by the empowering provision; or acted under a
delegation of power which was not authorised by the empowering

provision; or was biased or reasonably suspected of bias.
m)
She submitted that she had previously
requested legal representation support in terms of section 109
A
of the Municipal Systems Act and the policy from the respondent and
such support had been approved by the then City Manager.
n)
She was a councillor (Executive Mayor) when
the cause of action arose, or alleged offence took place during her
tenure as Executive
Mayor.
o)
The legal proceedings for which she is
seeking legal representation support falls within the definition of
legal proceedings in
the policy of the respondent.
p)
She qualified and met the criteria for
approval of her request for legal representation by the respondent.
q)
She alleged that the decision not to
approve her application (request) for legal representation support
falls within the meaning
of administrative action as contemplated in
section 1 of PAJA.
r)
The respondent is an organ of state, namely
local government, which was exercising a power in terms of the
Constitution and was
performing a public function in terms of
legislation, namely the policy in terms of section 109
A
of the Municipal Systems Act.
s)
The decision adversely affects her rights,
which has a direct external legal effect.
t)
The decision that she does not
qualify for legal services support was reached without proper
application thereto.
u)
The decision-maker, Zenzile merely
stated that she does not qualify for legal services support as
outlined in section 109
A
of the Municipal Systems Act No. 32 of 2000. No specific reference is
made to the applicable provision of section 109
A
of the Municipal Systems Act.
v)
The decision-maker was irrational in
reaching his decision that she does not qualify for legal services.
Zenzile merely stated in
the decision that the respondent has
assessed her application (request) and informed her that she does not
qualify to receive legal
services support.
w)
Her application for legal
representation support should have been considered by the Speaker of
Council and not the Head of Legal
Services, Zenzile. The
decision-maker should have been the Speaker of the Council and not Mr
Zenzile.
x)
The Speaker should have exercised
his/her discretion in respect of her application for legal
representation support and not the
Head of Legal Services, Zenzile.
y)
She accordingly alleged that the
person who took the decision of the respondent must be reviewed and
set aside for
inter alia
the following reasons:
(i)
The administrator who took the decision was not authorised to do so
by the empowering provision;
(ii)
A cursory reading of the decision of the respondent shows that the
administrator who took the
decision did not exercise his discretion
when he took the decision to refuse the request for legal
representation support;
(iii)
If the administrator is to contend that he did exercise his
discretion when he made the decision,
he exercised it irrationally in
the circumstances;
(iv)
The administrator who took the decision acted under a delegation of
power which was not authorised
by the empowering provision; and
(v)
The same administrator was biased or reasonably suspected of bias.
[3]
The respondent
inter alia
pleaded as follows to the
applicant’s case: -
(i)
First, that the applicant has brought her application within the four
corners of the Promotion
of Administrative Justice Act, 3 of 200
(“PAJA”).
(ii)
That the applicant alleges that the decision which she seeks to have
reviewed and set aside, the decision
by the respondent on 28
September 2021 to refuse the applicant legal representation in the
criminal proceedings confronting her,
constitutes administrative
action.
(iii)
That the applicant is wrong in that:
a)
The decision does not have an external legal effect. The decision
is one which arises from the applicant holding the office of mayor
of
the respondent, it is purely a decision internal to the respondent,
with no direct consequence for or impact on any other citizen,
and
therefore does not fall within the compass of the definition of
administrative action in section 1 of PAJA.
b)
The second reason is that the decision does not adversely affect the
rights of a person.
This is because the applicant has no right to be
granted legal representation by the respondent
.
(iv)
The applicant has accordingly not disclosed a cause of action in her
founding affidavit.
(v)
The application accordingly falls to be dismissed on this basis
alone, with costs.
(vi)
The conduct in respect of which the applicant faces criminal charges
does not fall within the compass of
what section 109
A
(
a
)
of the Local Government Municipal Systems Act, 32 of 2000, (“the
Systems Act”) as stated as follows:
a)
The charges against the applicant, which are contained in the charge
sheet which is annexed
to annexure “B” to the applicant’s
founding affidavit, have not been brought against her as a result of
any act
or omission by her in “
in the exercise of her powers
or the performance of her duties
” as contemplated by
section 109
A
(
a
) of the Systems Act.
b)
It will be noted from the charge sheet that they all relate to issues
of procurement by an
organ of State, the respondent, arising from the
funeral arrangements made after the death on 5 December 2013 of the
former President
of South Africa, Mr Nelson Rolihlahla Mandela.
c)
It is apparent from the preamble that the charges all relate to
matters of procurement by
an organ of State in respect of which
section 217 of the Constitution of the Republic of South Africa,
1996, demands that this
be done in accordance with a system which is
fair, equitable, transparent, competitive and cost-effective.
d)
The applicant, however, as a councillor and then mayor of the
respondent was statutorily
prohibited from involving herself in
procurement matters by virtue of section 117 of the Local Government:
Municipal Finance Management
Act, 56 of 2003 (“the MFMA”).
In addition, the applicant’s Supply Chain Management Policy
(“the SCMP”)
has clear and strictly confined rules as to
how procurement by the respondent of goods and services must take
place. There is no
provision in the SCMP which allows for, or
requires, the mayor of the respondent to engage in procurement
processes – in
any manner whatsoever. On the contrary, section
4(5)(
a
) of the respondent’s Supply Chain Management
Policy also prohibits councillors from participation in procurement
matters.
e)
As mayor, the applicant was an elected political leader of the
respondent who carries the
responsibility for ensuring good
governance in the area of financial management and who is required to
provide political leadership,
oversight and monitoring of the
executive. The general responsibilities of a mayor of a municipality,
moreover, are spelt out in
section 52 of the MFMA. She is required,
inter alia
, to provide political guidance over fiscal and
financial affairs of a municipality. However, neither section 52 of
the MFMA, nor
any other provision thereof, allows a mayor to become
proactively involved in, and to implicate herself in, procurement
processes
generally and specifically in the manner alleged in the
charges preferred against the applicant.
f)
It is apparent, therefore, that when involving herself in the
procurement of the goods
and services which form the subject matter
of the charges against her, the applicant was not exercising a power
conferred upon
her nor was she performing her duties. On the
contrary, she was acting outside both her powers and her duties.
Importantly, the
applicant is accused of acting dishonestly and
corruptly; her conduct in doing so, does not advance any governmental
interest or
purpose.
g)
In these circumstances, section 109
A
(
a
) of the Systems
Act finds no application in respect of the applicant and the charges
confronting her. She is thus not entitled
legal representation, at
the cost of the respondent, in the criminal proceedings she currently
faces.
(vii)
Finally, the respondent averred that, on their proper construction,
both section 109
A
(
a
) of the Systems Act (if found to
apply) and the respondent’s policy confer a wide discretion on
the respondent as to whether
or not to grant an application by an
applicant for the costs of legal representation. It will be argued
that there is no closed
list of considerations which must be taken
into account in the exercise of that discretion. Given the matter
raised above and in
particular:
§
That the applicant in conducting herself in
the manner alleged was not exercising a power conferred upon her nor
was she performing
her duties;
§
That the applicant is accused of acting
dishonestly and corruptly; and
§
That her conduct does not advance any
interest or purpose of the respondent.
a)
It is manifest that this is a case where, in refusing the applicant’s
application,
the respondent exercised its discretion in an
appropriate manner. Stated differently, in deciding the application
in the manner
which it did, the respondent’s decision was
rational.
b)
The applicant, on this score, other than to advance impermissible
assertion has placed no
evidence before the honourable Court as to
why it may be concluded that the discretion was exercised wrongly.
c)
On this basis, as well the application falls to be dismissed with
costs.
(viii)  On the
merits it was pleaded
inter alia
on behalf of the respondent:
-
a)
That the charges preferred against the applicant and in respect of
which approval of legal
representation was granted on 20 March 2019,
as is apparent from the signatures to annexure “A” to the
founding affidavit,
were withdrawn by the National Prosecuting
Authority in May 2019.
b)
That during or about February 2021, the National Prosecuting
Authority instituted fresh criminal
proceedings and preferred new
charges against the applicant, such charges being annexed to the
letter from the applicant’s
attorney dated 23 July 2021 which
is annexure “B” to the applicant’s founding
affidavit.
c)
A reading of the preamble to the charge sheet makes it plain that the
applicant, and her
co-accused, are accused of:
aa)
First, engaging with matters of procurement, something which falls
outside of the applicant’s
powers and duties; and
bb)
Second, acting dishonestly and corruptly, something which does not
advance the respondent’s interest
or purpose.
d)
The effect of this is, as the provisions of section 109
A
of
the Systems Act are not available to the applicant and, even if they
are, the respondent nonetheless discharged the discretion
conferred
on it by the section and its policy appropriately and rationally
having regard to the nature of the charges preferred
against the
applicant.
e)
When the National Prosecuting Authority instituted fresh criminal
proceedings against the
applicant, she – of her own accord –
once again applied for representation at the cost of the respondent.
In reapplying
for legal representation, the applicant no doubt
appreciated – correctly – that the approval previously
given no longer
applied given the withdrawal of the earlier charges
by the National Prosecuting Authority.
f)
The decision itself, to refuse the applicant’s legal
representation, was taken
by the Speaker of the respondent’s
municipal council, Mr Humphrey Maxegwana, after consultation by him
with the executive
mayor, Mr Xola Pakati, the then deputy executive
mayor, Ms Helen Neale-May, the then chief whip, Mr Mawethu Marata,
and the municipal
manager, Mr Andile Sihlahla. This after Mr Zenzile
had briefed those present. A meeting between them took place in
August 2021.
This was directly before a meeting of the political
office bearers, which is known in local government terminology as a
meeting
of the troika. It is not a formal meeting and consequently no
minute or records are kept of such meetings.
g)
To the extent that it may be argued that the appeal was in terms of
section 62(1) of the
Systems Act, it that the section is available to
the applicant. As pointed out above, the applicant has no rights in
terms of section
109
A
of the Systems Act and, this being the
case, it follows that section 62 does not confer on her the right to
an appeal.
h)
In any event, the applicant does not seek to attack the alleged
failure by the respondent to deal
with her appeal and seeks no relief
in respect of that alleged failure. The applicant’s complaints,
therefore, about the
appeal are not relevant for this reason as well.
i)
It was alleged that Mr Zenzile was not the decision-maker. The
decision taken by the
Speaker was rational for the reasons already
dealt with in this affidavit. Annexure “D” merely conveys
the final result
of the decision taken by the Speaker but does not
give reasons for such decision. No reasons were ever requested.
[4]
The issues for determination are
inter alia
the following:
a)
Did the applicant qualify for the provision of legal services in
terms of section 109
A
of the Systems Act read with the BCMM
policy document;
b)
Did the respondent’s refusal fall within the ambit of review in
terms of PAJA;
c)
If PAJA is applicable, then has the applicant established any of the
grounds for review under
PAJA entitling her to the relief she seeks.
[5]
Applicability of section 109
A
of the Systems
Act read with the BCMM policy document
.
[A]
In order to make a determination of this issue it is necessary to
examine the policy document which
incorporates the provisions of
section 109
A
and relevant parts and reads as follows―
(i) Policy Statement:
“
It
is the policy of BCMM to support its employees and councillors with
legal representation in legal matters arising from their
official
duties.
Scope of Policy:
This policy applies to
all councillors and employees who qualify to be provided with legal
representation from BCMM in terms of
Section 109A of the Municipal
Systems Act.
legal Framework:
The statutory framework
on which sound provision of legal representation for BCMM councillors
and employees Policy is founded is
the following:
Section 109A of the Local
Government: Municipal Systems Act (Act No.32 of 2000) which reads as
follows:
‘
109A
– Legal representation for employees or councillor of
municipality.
A municipality may,
subject to such terms and conditions as it may determine, provide an
employee or councillor of the municipality
with legal representation
where –
a)
Legal proceedings have been instituted against the employee or
councillor as a result of any act or omission
by the employee or
councillor in the exercise of his or her powers or the performance of
his or her duties; or
b)    The
employee or the councillor has been summoned to attend any inquest or
inquiry arising from the exercise
of his or her powers or the
performance of his or her duties.”
[B]
It is evident from the reading of this policy that:
(i)
the entitlement to legal representation arises only when the
councillor, in this case the
mayor, is going about exercising her
powers or performing her duties.
(ii)
the Constitutional Court has held that it is fundamental to “…
our
constitutional
order
that
the
Legislature and Executive in every sphere are constrained by the
principle that they may exercise no power and perform no function

beyond that conferred upon them by law.”
[1]
(iii)
the Supreme Court of Appeal held that “
the
proper question always is not whether an action by an official is
precluded by law but whether it is permitted by law”.
[2]
(iv)
the conduct of which the applicant stands charged, and in respect of
which she has applied for legal
representation, relates to her
involvement in issues of procurement by an organ of state, the
respondent, arising from the funeral
arrangements made after the
death on 5 December 2013 of the former President of South Africa,
President Nelson Rolihlahla Mandela.
(v)
section 117 of the MFMA provides that councillors such as the
applicant (who was the mayor of
the respondent and a councillor at
the time) are statutorily prohibited from involving themselves in
procurement matters; and section
4(5)(
a
) of the Supply
Management Policy also expressly prohibits councillors from
participating in procurement matters.
(vi)
the applicant had no powers to involve herself in procurement
matters.
(vii)
the applicant was in the circumstances neither exercising her powers
when involving herself in procurement
matters nor was she performing
any of her duties. She was engaged in conduct which was not permitted
by law and was acting outside
the ambit of both her powers and
duties.
(viii)   the
legal proceedings for which she seeks financial support accordingly
falls outside the ambit and definition
of legal proceedings covered
by the policy and section 109
A
(
a
) of the Systems Act.
(ix)
the applicant is accordingly precluded from claiming legal
representation since the charges which she
is facing do not arise as
a result of an act or omission by her in the exercise of her powers
or the performance of her duties.
(x)
the applicant is not entitled to be provided with any legal
representation by the respondent as
the conduct complained of falls
outside of purview of section 109
A
(
a
) and the policy.
[C]
The application is accordingly dismissed on this basis alone.
[6]
Applicability or otherwise of PAJA to the proceedings
(i)
There is no need to go into the applicability or otherwise of PAJA as
the finding above pertaining
to section 109
A
not being
available to the applicant suffices for the dismissal of her
application. However, for the sake
of
completeness I shall briefly deal with PAJA in the context o
f
this matter.
(ii)
In
Minister
of Defence and Military Veterans v Motau and Others
[3]
it was stated that PAJA’s definition of “administrative
action”, when read with the definition of “decision”,

consists of these seven elements:
(i) A decision of an
administrative nature;
(ii) By an organ of state
or a natural or juristic person;
(iii) Exercising a public
power or performing a public function;
(iv) In terms of any
legislation or an empowering provision;
(v) That adversely
affects rights;
(vi) That has a direct,
external legal effect; and
(vii) Does not fall under
any of the listed exclusions
.
(iii)
The applicant in this matter has
inter alia
failed to
establish how her conduct has an external legal effect nor has she
established how the respondent was performing a public
power or
performing a public function since the legislation and policy relied
upon related to internal affairs of its own employees
and the
performance of their duties. Accordingly, the determination of the
applicability or otherwise of the policy and legislation
would not
result in the respondent performing a public power or public function
in relation to any other citizen and this has no
direct, external
effect.
(iv)
The applicant in any event has failed to establish that
she has any right to claim legal representation in terms
of the
relevant legislation and policy having regard to the findings above.
The policy accordingly conferred no rights on the applicant
and
therefore the decision did not affect her rights or have the
potential to affect her rights.
(v)
The application would further have failed for
wrongly relying on PAJA as the basis for claiming relief.
c)
No purpose will be
served by going into merits or further grounds as the above suffices
for the dismissal of the application.
[7]
Costs
(i)
The municipality failed to indicate clearly to the applicant that the
reason that she was being
refused legal representation was that the
alleged unlawful conduct pertaining to procurement fell outside the
ambit of her official
duties and was thus not covered by the policy
of the Systems Act.
(ii)
The letter sent to her simply reads as follows:
“
We
are in receipt of the correspondence dated 28 September 2021
regarding the decision to provide Legal Representation for Ms Zukiswa

Veronica Ncitha. As Buffalo City Metropolitan Municipality, we have
assessed your application and it is with regret to inform you
that Ms
Zukiswa Veronica Ncitha does not qualify to receive legal services
support as outlined in section 109A of the Municipal
Systems Act No.
32 of 2000”.
(iii)
The respondent has further conceded that it has not given reasons for
its decision but states that no reasons
were requested.
(iv)
The obligation, in my view, is upon the respondent to
indicate, as it did in the answering affidavit, the basis
upon which
it is refusing to grant legal representation and why it says the
applicant was not eligible. This is particularly so
in this case
where, rightly or wrongly, it had previously granted her legal
representation.
(v)
In light of the aforegoing, I deem it just and equitable that each
party pay its own costs.
[7]
Order
:
I
accordingly make the following order
:
-
(i)
The application is dismissed.
(ii)
Each party to pay its own costs.
FBA
DAWOOD
JUDGE
OF THE HIGH COURT
Date
heard:
28
July 2022
Judgment
delivered:      25 August 2022
Appearances
For
the
applicant
:
Adv Pitt
Instructed
by:

M.A FREDERICKS & ASSOCIATES
19
Stewart Drive
East
London
Tel:

043 7431357
For
the
respondent
:
Adv Korke S.C
Instructed
by:

WESLEY PRETORIUS & ASSOCIATES INC
24
Tottenham Road
Baysville
East
London
Tel:

043 7211740
[1]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58.
[2]
Compcare
Wellness Medical Scheme v Registrar of Medical Schemes
and
Others
2022
(1) SA 15
(SCA) at para 30.
[3]
2014 (5) SA 69
(CC) at para33.