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[2021] ZAKZPHC 17
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Motloung and Others v Nquthu Local Municipality and Others (6062/2020P) [2021] ZAKZPHC 17 (17 May 2021)
IN THE HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO:
6062/2020P
In
the matter between:
TAHLEHO
JOHANNES MOTLOUNG
FIRST APPLICANT
CONSTANCE
THANDIWE BUTHELEZI
SECOND APPLICANT
LEPHLA
SIZAKELE HOFFMAN
THIRD APPLICANT
NTHABISENG
CYNTHIA
XULU
FOURTH APPLICANT
NTOMBFIKILE
SAMKELISIWE MKHIZE
FIFTH APPLICANT
LEHLOHONOLO
CYPRIAN MOLOI
SIXTH APPLICANT
SIMANGELE
GRACE KUNENE
SEVENTH
APPLICANT
MOSES
SIPHO KEVIN
GUMBI
EIGHTH APPLICANT
GOODWILL
FUKANG
MOLEFE
NINTH APPLICANT
SIBUSISO
MANDLENKOSI CHARLES ZIKODE
TENTH APPLICANT
NLEBUHENG
MAUREEN KHANYE
ELEVENTH APPLICANT
and
NQUTHU
LOCAL
MUNICIPALITY
FIRST RESPONDENT
COUNCIL
OF NQUTHU LOCAL MUNICIPALITY
SECOND RESPONDENT
BONGINKOSI
PAUL
GUMBI
THIRD RESPONDENT
WELCOME
SAKHILE MPANZA
FOURTH RESPONDENT
MPUMELELO
BALDWIN JIYANE
FIFTH RESPONDENT
ZANELE
SITHOLE
SIXTH RESPONDENT
RICHARD
SIKHUMBUZO LANGA
SEVENTH RESPONDENT
EMMANUEL
MBEKEZELI MKHWANAZI
EIGHTH RESPONDENT
MBONGENI
EPHRAIM
MNGUNI
NINTH RESPONDENT
EMMANUEAL
LINDOKUHLE SHABALALA
TENTH RESPONDENT
NJABULO
MBONGISENI BUTHELEZI
ELEVENTH RESPONDENT
SIFISO
MSALOFY BUTHELEZI
TWELFTH RESPONDENT
SABELO
PRAISEGOD MATHE
THIRTEENTH RESPONDENT
FANA
ALFRED HLETSHWAYO
FOURTEENTH
RESPONDENT
SIYABONGA
MABILABILA KUNENE
FIFTEENTH RESPONDENT
JERRY
NATHI KHOZA
SIXTEENTH RESPONDENT
JOYCE
ZANDILE NDIMA
SEVENTEENTH RESPONDENT
SAKHILE
DERRICK MASIMULA
EIGHTEENTH
RESPONDENT
PERTUNIA
PHINDILE NTOMBELA
NINETEENTH RESPONDENT
NTOMBIKAYISE
GOODNESS MDLALOSE
TWENTIETH RESPONDENT
MENGIWE
RONIT NGOBESE
TWENTY FIRST RESPONDENT
THAMSANQA
ABION DLAMINI
TWENTY SECOND RESPONDENT
BONGINKOSI
INNOCENT ZWANE
TWENTY THIRD RESPONDENT
EVELYN
THULISILE NHLEBELA
TWENTY FOURTH RESPONDENT
HOLIHLAHLA
MNTOMBUHLE SHELEMBE
TWENTY FIFTH RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
TWENTY SIXTH RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
FINANCE AND TREASURY
KWAZULU-NATAL
TWENTY SEVENTH RESPONDENT
SITHEMBISO
BLESSING MTHEMBU
TWENTY EIGHTH RESPONDENT
NOMBUSO
ZANDILE MBONGWA
TWENTY NINTH RESPONDENT
BHEKANI
BRIAN SOKHULU
THIRTIETH RESPONDENT
ABSA
BANK
THIRTY FIRST
RESPONDENT
FIRST
NATIONAL BANK
THIRTY SECOND RESPONDENT
THE
STANDARD BANK OF SOUTH AFRICA
THIRTY THIRD RESPONDENT
NEDBANK
THIRTY FOURTH RESPONDENT
INVESTEC
BANK
THIRTY FIFTH
RESPONDENT
Coram:
Mnguni J
Heard:
29
January 2021
Delivered:
17 May 2021
O
R D E R
The
following order shall issue:
As
to the main application
(a)
The first impugned decision be and is hereby declared invalid.
(b)
The declaration of invalidity shall take effect from the date of this
order.
(c)
The first, sixth to twenty second respondents and twenty eighth
respondent are directed
to pay the costs, jointly and severally, the
one paying the other to be absolved.
As
to the counter application
(a)
The counter-application be and is hereby dismissed with costs, such
costs to include the
costs occasioned by the employment of two
counsel.
J U D G M E N T
Mnguni
J
[1]
Two applications (the main and counter-application) are before this
court for determination.
In the main application, the applicants seek
to declare invalid the decisions taken on 2 September 2020 relating
to the appointments
of the 28
th
to 30
th
respondents to the positions of Acting Municipality Manager, Acting
Chief Financial Officer and Acting Director of Planning, Housing
and
Land Administration respectively of the first respondent, Nquthu
Local Municipality (the Municipality) (the first impugned
decision).
In the counter-application, the 26
th
respondent, the
Member of the Executive Council for Cooperative Governance and
Traditional Affairs (the MEC) seeks to declare invalid
the decision
taken on 26 March 2020 appointing the 10
th
respondent to
the Executive Committee (the Exco) of the second respondent, the
Council of Nquthu Local Municipality (the Council)
and his subsequent
election as the Mayor of the Municipality.
[2]
The applicants are all councilors and representatives of the African
National Congress
(the ANC) in the Municipality. The 6
th
to 22
nd
respondents are all councilors and representatives
of the Inkatha Freedom Party (the IFP) in the Municipality. The 9
th
respondent was the speaker of the Council at the time of the events
giving rise to these applications. The 23
rd
to 25
th
respondents are each councilors and representatives of the Democratic
Alliance (the DA), National Freedom Party (the NFP) and Economic
Freedom Fighters (the EFF) respectively. I shall refer to the 6
th
to 25
th
respondents collectively as the municipal
respondents and individually as cited in these proceedings.
[3]
The 27
th
respondent is the Member of the Executive Council
for Finance and Treasury, KwaZulu-Natal. The 31
st
to
35
th
respondents are ABSA Bank, First National Bank,
Standard Bank of South Africa, Nedbank and Investec Bank
respectively. I shall
refer to the 31
st
to 35
th
respondents collectively as the banks and individually as cited in
these proceedings. The banks are cited because they provide
banking
services and hold certain deposits on behalf of the Municipality. No
relief is sought against the banks.
[4]
The issues arising in these applications will be better understood
against the background
that follows. Following the local government
elections on 3 August 2016 the political composition of the Council
of the Municipality
comprised of 33 Councilors of which 15 were IFP,
14 were ANC, two were the NFP and one each for the DA and EFF. The
3
rd
to 5
th
respondents were employed as senior
managers of the Municipality pursuant to contracts concluded on 24
August 2015. On 23 June
2017, the Council resolved to renew and
extend their contracts for a period from 23 June 2017 to until a year
after the next local
government elections which were held on 3 August
2017. The contracts giving effect to those arrangements were signed
two days later
after the passing of the resolution. The then MEC was
not happy with those arrangements and considered the contracts to be
illegal
on the basis that the contracts did not comply with the
legislation governing that level of employment. She subsequently
sought,
in her monitoring and oversight role, to obtain the necessary
documents pertaining to those contracts with the aim of establishing
whether the contracts were compliant with all the legal requirements
and processes applicable to the senior managers’ appointments.
[5]
When the documents were not forthcoming, the then MEC instituted an
application to
compel delivery of the documents and, simultaneously
sought an order suspending the 3
rd
to 5
th
respondents’ appointments. On 28 November 2017 Mahabeer AJ
granted the interim relief substantially as asked for.
Notwithstanding
Mahabeer AJ’s order, the information requested
was only partially responded to and the 3
rd
to 5
th
respondents continued to hold themselves out as the officials of the
Municipality in defiance of Mahabeer AJ’s order.
[6]
As a result of the 3
rd
to 5
th
respondents
unlawful conduct, the then MEC brought an application reviewing and
setting aside their appointments on the basis that
the contracts
underlying their appointments were illegal and ultra vires. That
application served before Gorven J on 12 August
2019 who granted the
order substantially as asked for. On 11 September 2019 the Council
and the 3
rd
to 5
th
respondents sought and were
refused leave to appeal Gorven J’s order. Aggrieved by that
outcome the Council and the 3
rd
to 5
th
respondents petitioned the Supreme Court of Appeal for leave to
appeal which petition met the same fate on 13 November 2019.
[7]
As the 3
rd
to 5
th
respondents continued to hold themselves out as the officials of the
Municipality the MEC brought a further urgent application
in February
2020 to, inter alia, compel the 3
rd
to 5
th
respondents to comply with Mahabeer AJ’s order and to direct
them to vacate their respective unlawful appointments with immediate
effect and not to return to the Municipality’s offices and
premises until those proceedings were finally determined. On 3
August
2020 Moodley AJ confirmed Mahabeer AJ’s order of 28 November
2018. By that time the 3
rd
to 5
th
respondents had already approached the Supreme Court of Appeal for
reconsideration of its decision to refuse leave to appeal Gorven
J’s
order under s 17(2(f) of the Superior Courts Act.
[1]
On 5 March 2020 the Supreme Court of Appeal refused the
reconsideration application. Subsequently the 3
rd
to 5
th
respondents applied to the Constitutional Court for leave to appeal
Gorven J’s order which application was dismissed on 24
June
2020.
[8]
The next episode of relevance to the present applications occurred on
15 March 2020
when the President of the country declared a National
Disaster in terms of the Disaster Management Act
[2]
(the DMA). That declaration was followed by the issuing of the COVID
19 Regulations
[3]
by the Minister of Cooperative Governance and Traditional Affairs
(the Minister) on 18 March 2020. On 19 March 2020 the 9
th
respondent issued a notice convening a meeting of the Council which
he scheduled for 26 March 2020.
[9]
On 23 March 2020 the President announced that the country would enter
a National Lockdown
for 21 days with effect from midnight on 26 March
2020. On 24 March 2020 the IFP advised the 9
th
respondent that it had removed the 16
th
respondent from the Exco and from his position as the Mayor. The IFP
advised the 9
th
respondent that it had elected the 10
th
respondent to be in the Exco and to the position of Mayorship in the
16
th
respondent’s stead. On 25 March 2020 the Minister published
directions applicable to the provinces and municipalities in
respect
of certain matters in response to the COVID 19 pandemic.
[4]
Shorn of words not now relevant regulation 6.7.2(e) directed the
municipalities to suspend all ordinary council meetings. In line
with
the Minister’s direction, the MEC issued circular No 8 of 2020
(annexure ‘TJM5’) on the same day setting
out such things
that the municipalities could do during the period of lockdown. The
MEC’s circular also suspended the council
meetings and all
plenary sittings of Municipal Council and their structures during the
period of the lockdown.
[10]
On 26 March 2020, the Deputy Director (Mr T A Mdadane) in the office
of the MEC addressed a letter
to the 9
th
respondent confirming a telephone conversation between him and the
9
th
respondent regarding the scheduled meeting of 26 March 2020 and
advised the 9
th
respondent to postpone the meeting on the ground that a continuation
with the meeting would be unlawful given the directives issued
by the
Minister on 25 March 2020. However, due to some other reasons, the
meeting scheduled for 26 March 2020 did not proceed.
[5]
More
about this meeting later as it is central to the MEC’s
counter-application.
[11]
Pursuant to Moodley AJ’s order, on 5 August 2020 the 9
th
respondent issued a notice convening a special council meeting for 13
August 2020 to be conducted through virtual platforms. This
meeting
did not proceed due to technical glitches. On 24 August 2020 the 9
th
respondent issued another notice convening a special council meeting
for 27 August 2020 which he later cancelled.
On
31 August 2020 the 9
th
respondent issued another notice convening another special council
meeting for 2 September 2020. In the notice convening
this
meeting the 9
th
respondent stated the following: ‘Councilors are requested to
bring along special council agenda for 13
th
August 2020’. This aspect is one of the issues which is hotly
contested by the parties, and I shall return to it later.
[12]
Although the 1
st
applicant has not given specific date(s)
in relation to this, he asserts that he had asked the 9
th
respondent whether the meeting of 2 September 2020 would be a
continuation of the adjourned or discontinued meeting of 13 August
2020. In response the 9
th
respondent had answered in the
affirmative. The 1
st
applicant asserts that in his
subsequent interaction with the 9
th
respondent about this
meeting the 9
th
respondent had produced a document which
from a cursory gleaning appeared to be a report on the appointments
of the 28
th
to 30
th
respondents. The 1
st
applicant asserts that he directed the 9
th
respondent to
the provisions of clause 13 of the standing rules and orders (the
standing rules) which prohibit the introduction
of new items to a
meeting which is a continuation of a meeting that was adjourned
previously.
[13]
On 8 September 2020 the 9
th
respondent made available to the Council the minutes of the council
meeting held on 2 September 2020 (annexure ‘TJM12’).
A
perusal of annexure ‘TJM12’ reveals that all applicants
attended this meeting. It also records, inter alia, that
a decision
was taken and the resolution was passed appointing the 28
th
to 30
th
respondents to fill the positions in the first impugned decision. The
applicants are asserting that annexure ‘TJM12’
is a
fraudulent document because no appointments were made in any Council
meeting. They also assert that these vacancies were never
advertised
and that no request was made to the MEC to second any person to fill
those positions on a temporary basis whilst the
Municipality was
embarking on the recruitment process to fill them. They assert that
these appointments are unlawful. I hasten
to record that whether
annexure ‘TJM12’ is a fraudulent document remains an
allegation which cannot be determined by
this court in these
proceedings on the basis of untested allegations on paper.
[6]
[14]
On 15 September 2020 the 9
th
respondent issued another notice convening a special council meeting
for 18 September 2020. The meeting of 18 September 2020 did
not
proceed as it was not quorate. This meeting was adjourned to 22
September 2020. Seventeen councilors attended the meeting on
22
September 2020. The meeting proceeded and councilors unanimously
resolved to appoint Mlungisi Ndlovu
[7]
(Mr
Ndlovu) and the 28
th
and 29
th
respondents in acting capacities for a period of three months as
Senior Manager of Planning, Housing and Land Administration,
Municipal Manager and Chief Financial Officer respectively. I
interpose to record that Mr Ndlovu is not a party in the proceedings
and that the decisions taken at this meeting are not challenged in
these applications.
[15]
Against this background, the applicants launched the main application
on 17 September 2020 contending
that the first impugned decision is
susceptible to challenge on two main grounds. First, they contend
that the municipal respondents
have contravened the provisions of s
54 of the Local Government: Municipal Systems Act,
[8]
(the Systems Act) in that the 28
th
respondent was appointed as a municipal manager without the Council
adhering to the procedures embodied in the Systems Act and
its
Regulations. They contend further that flowing from the 28
th
respondent’s unlawful appointment, the 28
th
respondent had unlawfully appointed the 29
th
and 30
th
respondents in the first impugned decision, without following the
provisions of s 56 of the Systems Act.
[16]
Second, they contend that the Council meeting of 2 September 2020 was
irregularly convened in
that the 9
th
respondent had failed
to give the applicants clear 72 hours’ notice of the meeting as
required by s 4.2(b) of the standing
rules and that the 28
th
to 30
th
respondents’ appointments were made in
contravention of clause 13.1 of the standing rules. The linchpin of
the complaint
is that the first impugned decision could not be dealt
with in the meeting of 2 September 2020 because clause 13.1 prohibits
introducing
of new item in a meeting which is a continuation of a
meeting that was adjourned. Allied to that is their contention that
the Municipality
had not yet declared those positions at the time and
that the agenda of 13 August 2020 did not have any item relating to
those
appointments.
[17]
The MEC has aligned himself with the main relief which the applicants
are seeking. And on his
part, he also launched the
counter-application challenging the second impugned decision on two
grounds. First, he contends that
the special council meeting of 26
March 2020 was unlawful because it was held in contravention of COVID
19 directions issued by
the Minister on 25 March 2020. Second, he
contends that there was non-compliance with the standing rules in
respect of a change
of the venue of the meeting, the 10 minutes’
rule for quorum for the commencement of the meeting and s 43 read
with schedule
3 and ss 48(4), (2) and (3) of the Local Government:
Municipal Structures Act
[9]
(the Structures Act) when the 10
th
respondent was elected to the Exco and eventually the Mayor of the
Municipality. In consequent, the MEC seeks to declare all the
decisions taken in this meeting invalid.
First
impugned decision
Standing
rules
[18]
Though the parties initially held a divergent view as to which
standing rules are applicable
for the purposes of adjudication of
these applications, by the time the applications were heard, it had
become common cause that
the applications fall to be considered in
light of the standing rules published in Provincial Gazette no 25 of
2009 dated 17 April
2009 (2009 standing rules). The 2018 standing
rules devised by the MEC were not gazetted although they were
approved by the Municipality
were not published by the Municipality
as envisaged in s 13 of the Systems Act. In the result, this aspect
had withered in the
vine as an issue for determination in these
proceedings.
Sections
54 and 56 of the Systems Act
[19]
Section 54 of the Systems Act deals with the Code of Conduct for
councilors contained in Schedule
1 to the Systems Act. It provides
that the Code of Conduct contained in Schedule 1 applies to every
member of the municipal council.
Schedule 1 of the Systems Act
enumerates the particular obligations imposed on each municipal
councilor together with the sanctions
which a municipal council may
impose on a particular municipal councilor for a breach of such Code.
The applicants have not specified
on which of the provision(s) in
Schedule 1 they are relying on nor do they make reference to any
particular transgressions of the
Code in relation to any particular
respondent who may have contravened the Code. The allegations are
broadly asserted with no specificity
to any identifiable breach by
any of the respondents. In the circumstances, I am not persuaded that
the applicants have established
any ground for a review emanating
from s 54. The applicants’ contentions under this section is
built on a foundation of sand,
and is obviously unsustainable.
[20]
In any event, it was s 54A of the Systems Act
which dealt with the appointment of municipal managers and
acting
municipal managers. This section was introduced by the Local
Government: Municipal Systems Amendment Act
[10]
(the Systems Amendment Act). On 9 March 2017 the Constitutional Court
declared this section unconstitutional in
SAMWU
[11]
and such declaration was suspended for a period of 24 months to allow
the legislature an opportunity to correct the defect. When
the
Constitutional Court was approached to extend the period of
suspension of the declaration of invalidity, it refused the
application.
On 9 March 2019 the declaration of invalidity became
final when the legislature failed to correct the defect.
Consequently, the
sections introduced or amended by the Systems
Amendment Act have since been inoperative. The first impugned
decision was taken
on 2 September 2020 at the time when s 54A was
inoperative.
[21]
In any event, it was s 56 of the Systems Act which
dealt with the appointment of managers directly accountable
to
municipal managers. As is the case with s 54, the amendment to this
section introduced by the Systems Amendment Act was declared
unconstitutional and invalid in
SAMWU.
[12]
Prior to the amendment, s 56(1)(a) provided that ‘A municipal
council, after consultation with the municipal manager, appoints
a
manager directly accountable to the municipal manager’. Section
56(1)(b) provided that ‘A person appointed as a manager
in
terms of paragraph (a), must have the relevant skills and expertise
to perform the duties associated with the post in question,
taking
into account the protection or advancement of persons or categories
of persons disadvantaged by unfair discrimination’.
The
amendment introduced by the Systems Amendment Act in which s 56 in
its original form was substituted by s 3 and amended by
s 4 of the
Systems Amendment Act and read ‘A person appointed in terms of
paragraph (
a
)(i)
must at least have the skills, expertise, competencies and
qualifications as prescribed’. At the time of the first
impugned decisions, s 56 in its unamended form would have been
applicable and in that form, what s 56 required was that a municipal
council must make the appointments after consultation with the
municipal manager and that the person appointed as a manager must
have the relevant skills and expertise to perform the duties
associated with the post in question.
[22]
Of significance, the letters of appointment
(annexures ‘TJM2’ and ‘TJM3’) make it
clear
that the Council resolved to appoint the 29
th
and 30
th
respondents on the first impugned decision at a special meeting held
on 2 September 2020. It is not the applicants’ case
that these
acting appointments were made by the Council without consultation
with the municipal manager and that the 29
th
and 30
th
respondents did not have relevant skills and expertise to perform
such functions. In the circumstances, the applicants have not
shown
any cause of action or basis for a review based on a breach of s 56
of the Systems Act.
Non-compliance
with s 4.2(b) of the standing rules
[23]
The applicants’ complaint under this head is that when the 9
th
respondent scheduled the special council meeting for 2 September
2020, he did so without complying with s 4.2(b) of the standing
rules. In its relevant part this section provides that notice to
attend a meeting in terms of sub-rule (1) shall be given at least
72
hours prior to a special meeting. The applicants assert that a notice
convening this special meeting was issued on 31 August
2020 and the
special meeting was scheduled to be held on 02 September 2020. For
that reason, they contend that the notice fell
short of the threshold
required by s 4.2(b).
[24]
The municipal respondents disagree. They contend
that the meeting of 2 September 2020 was the return date
of an
adjourned special council meeting which was previously set down for
13 August 2020 which notice was issued on 5 August 2020,
which is
more than 72 hours’ notice. They contend that rule 13.1 which
deals with the adjourned meeting provides that when
a meeting is
adjourned, notice of the continuation meeting shall be served in
terms of rule 2 of these standing rules. They observe,
correctly in
my view, that the standing rules do not have rule 2 instead they have
s 2 which deals with the frequency of council
meetings. In terms of
rule 12.1 a council meeting may be adjourned to any day or hour. Rule
12.1 does not impose a 72-hour limitation
on the adjourned meeting.
[25]
As I see it, the applicants do not dispute that the meeting of 2
September 2020 was the return
date of an adjourned special council
meeting previously set down for 13 August 2020. They also do not
dispute that the notice for
the meeting of 13 August 2020 was issued
on 5 August 2020. I say this because the 1
st
applicant
deposed in the founding affidavit that he had asked the 9
th
respondent whether the meeting of 2 September 2020 was a continuation
of the meeting of 13 August 2020 which had been adjourned
or
discontinued because of the glitches. The 1
st
applicant
states that the 9
th
respondent had answered this question
in the affirmative. The 1
st
applicant deposed further that
the 9
th
respondent had shown him a document which
purported to be a report on the appointments of the 28
th
to 30
th
respondents as acting managers and that at that
point he directed the 9
th
respondent to rule 13 of the
standing rules. It seems to me that the force of the applicants’
assertion that the 9
th
respondent had failed to comply
with s 4.2(b) is diminished by the 1
st
applicant’s
aforesaid version of the events recorded in this paragraph.
Was
there a report presented to Council on 2 September 2020 regarding the
appointment of an acting municipal manager?
[26]
It is common cause that the 9
th
respondent issued the
notice on 31 August 2020 (annexure ‘JM11’) in which at
paragraph 3 thereof he requested all councilors
to bring the agenda
of 13 August 2020 (annexure ‘TJM7’). It is common cause
that annexure ‘TJM7’ did not
have any item concerning the
appointment of the acting municipal manager or the item dealing with
the decision of the Constitutional
Court on the appointment of the
3
rd
respondent as the acting municipal manager. The main
thrust of the applicants’ attack in this regard is their
contention
that there is no evidence pointing or establishing as a
fact that a report on the appointment of the acting municipal manager
was
discussed on 2 September 2020 or that there was an item or report
to be discussed by Council on 2 September 2020 relating to the
appointments of the senior managers.
[27]
The municipal respondents accept that rule 13.2 of
the 2009 standing rules precluded the taking of the first
impugned
decision because it constituted a decision on a new business that
could not be transacted at a continuation meeting of
2 September 2020
as it was not specified in the notice for that meeting. However, they
sought to overcome this difficulty by contending
that this was a
procedural error which arose solely because the Council was under the
impression that its adoption of the 2018
standing rules entitled them
to conduct the meetings on the basis of the 2018 standing rules which
in terms of s 26(a) allows general
items of an urgent nature to be
placed on an agenda by the municipal manager or by any member of the
Council with prior consent
of the speaker or chairperson. They
contend that although the 2009 standing rules make no reference to
nor give any consideration
to urgent matters which require
deliberation s 160(1) of the Constitution
[13]
empowers the Council to make decisions concerning the exercise of all
of their powers and the performance of the functions of the
Municipality as long as the pre-requisites of s 160(3) dealing with
the necessary quora are met.
[14]
[28]
According to the municipal respondents those decisions that could not
have been dealt with on
2 September 2020 were then tabled for proper
consideration on 22 September 2020 for new decisions to be taken. The
Council meeting
of 22 September 2020 was not merely a continuation of
the 2 September 2020 otherwise the 30
th
respondent would have been retained as Acting Director of Planning,
Housing and Land Administration. The agenda for the meeting
of
22 September 2020 also made it plain that the meeting was an entirely
new meeting and that the removal of the 30
th
respondent and the new appointment of Mr Ndlovu demonstrates that
entirely new decisions were taken at that meeting resulting in
the
first impugned decision to be superseded and replaced by further
decisions taken on 22 September 2020.
[29]
I point out at the outset that I shall refrain from expressing any
definitive view one way or
the other in respect of the decisions and
resolutions taken at the meeting of 22 September 2020 because those
decisions and resolutions
are not the subject of these applications.
The structure, powers and functions of municipalities and their
functionaries are provided
for in chapter 7 of the Constitution, to
be read primarily with the provisions of the Structures Act and
Systems Act together with
the schedules to those Acts. The 2009
standing rules dealing with procedures in the conduct of the affairs
of the Municipality
were adopted by the MEC and published by the
Municipality on 17 April 2009. They are binding on the Municipality.
The word used
in rule 13.2 of the standing rules is ‘shall’
and it appears to be peremptory.
[30]
The municipal respondents sought to argue that the need to take the
first impugned decision should
be considered as urgent in the light
of the following. The Municipality urgently needed to fill the vacant
positions so that it
could have access to its finances because after
the 3
rd
to 5
th
respondents were removed by
Moodley AJ’s order of 3 August 2020 the Municipality was left
without any authorised signatories
to transact on its bank accounts.
The Municipality was unable to process any transactions for the month
of September 2020 onwards
and was faced with the prospect of being
unable to pay its creditors, its employees and to provide service to
the general community
after the attempts to access its money through
other authorised personnel were refused by the banks. The absence of
the municipal
manager effectively left the Municipality without its
accounting officer.
[31]
It seems to me that the short answer to the municipal respondents’
concerns raised above
is what was said by Brand JA in
Minister
of Environmental Affairs and Tourism v Pepper Bay Fishing (Pty)
Ltd.
[15]
The learned Judge of Appeal stated:
‘
As
a general principle an administrative authority has no inherent power
to condone failure to comply with a peremptory requirement.
It only
has such power if it has been afforded the discretion to do so….’
(References omitted.)
There
appears to be no discretion afforded to the Municipality in rule 13.2
in this matter.
[32]
In
AllPay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer, South African Social Security Agency, and
others
,
Froneman J said:
[16]
‘
Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)(
a
)
of the Constitution requires the decision to be declared unlawful.
The consequences of the declaration of unlawfulness must then
be
dealt with in a just and equitable order under s 172(1)(
b
).
Section 8 of PAJA gives detailed legislative content to the
Constitution’s “just and equitable” remedy.’
(Footnotes omitted.)
[33]
In JR de Ville Judicial Review of Administrative Action in South
Africa (2003) at 331 the following
is said: ‘
A
finding that the action in question is invalid (because a ground of
review is present) will not necessarily mean that the action
is to be
set aside or declared invalid with retrospective effect or even at
all. …. a retrospective declaratory order of
invalidity could
have extremely disruptive effects (especially where a number of
actions had already been taken…).’
It
is important to point out that the 28
th
and 29
th
respondents have been attending to their functions and making
decisions for the period of March 2020 onwards and in the process
took a number of decisions pertaining to, inter alia, awards of
tenders, engagement of services providers, the employment of
personnel,
etc. I shall deal further with this aspect under the head
relief and remedy below.
Was
the meeting of 22 September 2020 convened in accordance with rule 8
read with ss 4 and 5 of the standing rules?
[34]
It is common cause that the special meeting of 22 September 2020 was
originally scheduled for
18 September 2020 and that all 33 councilors
were advised of the meeting by requisite notice accompanied by an
agenda and the report
[17]
to the 9
th
respondent’s
supplementary affidavit. The item to the agenda with reference
SC/01/09/02 dealt with the rectification of the
current acting
appointments which are the subject of this application. This meeting
could not go ahead as a full council quorum
could not be achieved.
This meeting was adjourned to 22 September 2020. On 22 September 2020
the meeting proceeded with only 17
councilors in attendance after the
applicants refused to attend.
[35]
The applicants’ contentions are that whoever attended the
meeting of 18 September 2020
did not have the standing and could not
by way of passing a resolution, convene or resolve to adjourn the
meeting to a specific
date because, such number of persons present,
did not have quorum or were not a majority to make a decision. They
assert that the
meeting of 22 September 2020 was not a meeting of
Council because it was not convened by the 9
th
respondent
as envisaged in s 4 of the standing rules. The applicants have also
placed reliance on s 5 and rule 8 of the standing
rules in support of
this contention. Section 5 of the standing rules deal with service of
notices. Subsection 5.1 provides:
‘
Notice
to attend a meeting, and any other official communication from the
Council, shall be collected/delivered to
(a)
a physical address within the area of jurisdiction of the
municipality; or
(b)
an email address, supplied by each councilor to the municipal manager
in writing within
two days of their election and, thereafter,
whenever the councilor wishes to change either address.’
Subsection
5.7 provides:
‘
In
addition, notice to attend a meeting shall be displayed on the public
notice board at the municipality’s heads office.’
Rule
8.3 provides that when a meeting is adjourned as a result of no
quorum, the meeting shall be convened as a continuation meeting
in
terms of rule 5 of the 2009 standing rules.
[36]
In the Council meeting of 22 September 2020 the decision was taken to
rescind the appointment
of the 30
th
respondent as Acting
Director: Planning, Housing and Development of the Municipality and
that decision was replaced with the appointment
of Mr Ndlovu in that
position. As already stated, the decisions and resolutions taken in
the council meeting of 22 September 2020
are not challenged by the
applicants in these proceedings. I may hold a certain view on whether
the reference to the phrase ‘shall
be convened as the
continuation in terms of rule 5 of these by laws’ is to be
interpreted as meaning the starting of the
entire process afresh, but
I have already issued a disclaimer under paragraph 29 above. To the
extent that the invitation would
have this court consider the
decisions and resolutions not properly before it, in this case, it is
politely but firmly declined.
The
10
th
respondent could not, as a matter of fact, present a
report to the special meeting of Council of 22 September 2020
concerning the
appointment of the acting municipal manager, and did
Council appoint the 28
th
respondent as the acting
municipal manager?
[37]
On 17 September 2020 Balton J granted the municipal respondents leave
to supplement their answering
affidavit in order to deal with certain
matters which the municipal respondents contended that they omitted
from their answering
affidavit because they had to respond to the
applicants’ papers on an urgent basis. Pursuant to Balton J’s
order, the
9
th
respondent delivered his supplementary affidavit. Of importance to
the applicants in relation to their contention under this head
is
what I have recorded in paragraph 30. The applicants contend that the
facts set out by the 9
th
respondent in his supplementary affidavit do not support the
municipal respondents’ contentions that the appointment of the
28
th
respondent was made by Council in accordance with the provisions of s
82 of the Structures Act. On the respondents’ own version
and
as it is evidenced on annexure ‘SA5’
[18]
to the 9
th
respondents’ supplementary affidavit, the meeting of 18
September and later the meeting of 22 September dealt with the
rectification
of the appointment of the Acting Chief Financial
Officer and Acting Director Planning, Housing and Land
administration. They assert
that there was no report to be discussed
on 18 September 2020 and later on 22 September 2020 concerning the
appointment of the
acting municipal manager.
[38]
It is common cause that the applicants seek to review and set aside
the decision taken by the
Council on 2 September 2020 appointing the
28
th
to 30
th
respondents in the first impugned
decision and have not challenged the decisions and resolutions taken
at the meeting of 22 September
2020. In the circumstances, I am
hamstrung to express a view on the unlawfulness or otherwise of the
decisions and resolutions
taken in the meeting of 22 September 2020.
Again, the invitation to deal with this issue is politely but firmly
declined.
Relief
and Remedy
[39]
I have already set out in some detail in paragraph 30 above how the
first impugned decision came
about. As said by the Supreme Court of
Appeal in
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province and others
:
[19]
‘
The
difficulty that is presented by invalid administrative acts, as
pointed out by this court in
Oudekraal
Estates
is
that they often have been acted upon by the time they are
brought under review…To set aside the decision
to accept
the tender, with the effect that the contract is rendered void from
the outset, can have catastrophic consequences for
an innocent
tenderer, and adverse consequences for the public at large in whose
interests the administrative body or official purported
to act. Those
interests must be carefully weighed against those of the disappointed
tenderer if an order is to be made that is
just and equitable.’
(Footnote omitted.)
[40]
In
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others
[20]
the Constitutional Court pointed out that the circumstances of each
case need to be examined in order to determine whether factual
certainty requires some amelioration of legality and, if so, to what
extent. It is undeniable that the consequences of declaring
the
first impugned decision invalid and setting it aside with
retrospective effect would be to taint all decisions taken by the
incumbents, all contracts concluded by or appointments made by them
with invalidity with potentially devastating consequences for
the
Municipality and its residents as well as for those parties who may
have contracted with the Municipality represented by the
28
th
to 30
th
respondents.
[41]
The evidence reveals that the 28
th
to 30
th
respondents have taken decisions daily relating to the continuous
operation of the Municipality, which in part would have dealt
with
the award of contracts for tenders and conclusion of contracts with
Municipality service providers. Ultimately, the applicants’
salvation rests on a technical contravention of rule 13.2 of the
standing rules precluding the transaction on new business at an
adjourned meeting.
The
second impugned decision
[42]
As stated, in his counter-application, the MEC contends that the
special council meeting convened
on 26 March 2020 was irregular and
illegal. Therefore, the decision taken to appoint the 10
th
respondent to the Exco of the Council and his subsequent appointment
as the Mayor should be declared illegal and ultra vires and
set
aside. The foundation of his contention is the directives published
by the Minister on 25 March 2020 in response to the COVID
19
pandemic. The MEC’s deponent, Mr Tubane deposed that on 26
March 2020 the department was advised that the Council of the
Municipality intended to hold a meeting. Upon hearing that Mr Mdadane
telephonically contacted the 9
th
respondent and advised
him that the Council meeting scheduled for 26 March 2020 should not
proceed as it would be unlawful given
the directives of 25 March 2020
in response to the COVID 19 pandemic, specifically regulation s
6.7.2(e) which directed the Municipalities
to suspend all ‘ordinary
council meetings’.
[43]
The MEC’s deponent did not give any cogent reason(s) why he
came to the conclusion that
regulation 6.7.2(e) found application to
the special council meeting in light of the directive unequivocally
stating that it applies
to ordinary Council meetings. I have already
referred to Circular No 8 of 2020 (annexure ‘TMJ5’)
issued by the MEC
on 25 March 2020. At para 8 of annexure ‘TMJ5’,
the MEC suspended the Council meetings and meetings of the
Municipality,
all plenary sittings of municipal Council and their
structures during the lockdown. Importantly, annexure ‘TMJ5’
did
not suspend the special council meetings. I can, therefore, find
no evidence suspending the convening of the special council meetings.
In the circumstances, the MEC’s contention is anchored on an
unsound foundation and falls to be rejected as devoid of any
merit.
[44]
The MEC also raised certain procedural challenges based on alleged
contraventions of s 4.1 and
rule 8.1 of the standing rules. Section
4.1 provides that the Speaker convenes the meetings of the Council
through a duly signed
notice of Council meeting stating the date,
place and time of the meeting and accompanied by or containing the
agenda of the proposed
meeting. Rule 8.1 provides that no meeting
shall take place, if no quorum has assembled at the expiry of ten
minutes after the
time at which a meeting is due to commence, unless
it is unanimously agreed by the Councilors present to allow further
time not
exceeding ten minutes for a quorum to assemble. The MEC’s
deponent states that on 26 March 2020 the Department was advised
that
the Council intended to hold a meeting. On receipt of that
information, Mr Mdadane contacted the 9
th
respondent
telephonically and advised him that the Council meeting would be
unlawful given the Minister’s directives of 25
March 2020. The
9
th
respondent had advised Mr Mdadane that he was under
pressure to proceed with the meeting. He undertook to consult with
the Council
and revert to him but did not do so.
[45]
After some delay Mr Mdadane contacted the Municipality and was
advised that approximately 150
members of the community had occupied
the Council chamber which was the venue of the meeting and that the
meeting had not yet commenced.
Mr Mdadane was advised that the 9
th
respondent appeared intent on moving the venue for the Council
meeting to a different place. The MEC’s contention is that
it
was not possible to change the venue of the meeting given the
requirements of s 4.1 and that the meeting could no longer take
place
given the provisions of rule 8.1. The MEC contends further that any
meeting would have contravened paragraph 6.7.2 of the
Minister’s
directives and the prohibition on gatherings of more than 100 people
provided for in regulation 3 of the COVID
19 regulations of 18 March
2020. Mr Mdadane also sent a letter to the 9
th
respondent
advising him of this. Despite that the meeting proceeded and the 10
th
respondent was elected to the Exco and to the Mayorship position.
[46]
By contrast the municipal respondents contend that the purpose of s
4.1 is to give notice of
the venue of the meeting. They contend that
all the councilors who attended the meeting were present when the
decision was taken
to move to another venue and all of them moved
there. As for rule 8.1, the municipal respondents’ evidence is
that the meeting
commenced at 08h45 and thereafter had to be moved to
a new venue as a result of unrest engineered by the applicants. They
contend
that the
MEC’s
assertion that the meeting commenced at 09h40 is not within his
personal knowledge. They point out, correctly in my
view, that in
terms of the standing rules, a Council meeting only commences once a
quorum is met and that once the meeting has
commenced, rule 8.1
cannot apply.
[47]
Interestingly, the MEC does not disclose the source from which Mr
Mdadane might have obtained
this information. Oddly enough, the MEC’s
deponent’s founding affidavit only states in this regard that
Mr Mdadane
‘contacted the Municipality and was advised’
and nothing more. Importantly, his informant is not identified.
[48]
It is common cause that later that same day the department received a
letter from the 1
st
applicant (annexure ‘T11’)
in his capacity as the chief whip of the ANC in which he raised,
inter alia, the following
concerns that, (a) the meeting had
commenced at 09h46 as opposed to the time given in the notice for the
meeting being 09h00, (b)
there were violations of the rules resulting
in the meeting ultimately only starting at 12h00, (c) more than 100
people had illegally
attended the meeting (apparently 160 people) in
breach of the lockdown regulations and directives and (d) the meeting
was chaotic
and took place ‘in a complete pandemonium’.
[49]
It is not within the MEC’s knowledge that this meeting
commenced at 09h40. I am mindful
that the 1
st
applicant
has also advanced a similar assertion in this regard. On the other
hand, the municipal respondents’ assertion is
that the meeting
commenced at 08h45. On accepted rules of motion court proceedings,
the municipal respondents’ version must
therefore stand. In the
circumstances, I am not persuaded that the process of the election of
the 10
th
respondent was not in accordance with sections 43
and 48 read with schedule 3, particularly item 5 of the Structures
Act which
provides that ‘if only one candidate is nominated,
the person presiding must declare that candidate elected’.
[50]
Lastly, the MEC contends that the election of the 10
th
respondent to the Exco was irregular and illegal in that it
contravened section 43 read with schedule 3 and ss 48(1), (2) and (3)
of the Structures Act. I have already recorded in paragraphs 36 and
37 above, the basis on which the MEC is contending that the
26 March
2020 meeting was irregular and illegal. The basis of his attack on
the manner of election of the 10
th
respondent is based on
the same facts.
[51]
The objective evidence from the minutes of the meeting of 26 March
2020 reveals that the 9
th
respondent received two letters from the 15
th
respondent, one relating to his resignation as an Exco member and the
other his resignation as a Mayor. He explained to the meeting
that
the election of the Mayor would be conducted in terms of schedule 3
of the Structures Act, as amended and thereafter outlined
the
procedures. He thereafter requested nominations from the floor for
candidates for an Exco member. Subsequently, the 20
th
respondent seconded by the 19
th
respondent nominated the 10
th
respondent. The 10
th
respondent signed and accepted the nomination.
Thereafter,
the Council resolved that the 10
th
respondent was duly elected during the special council meeting held
on 26 March 2020 as an Exco Member.
[52]
Thereafter the 9
th
respondent requested nominations from the floor for the candidate of
Mayor. Councilor S P Khumalo proposed the name of the 10
th
respondent. The 21
st
respondent seconded the nomination of the 10
th
respondent. Since there were no further nominations from the floor
for the candidate of the Mayor, the 9
th
respondent, in terms of schedule 3 of the Structures Act declared the
10
th
respondent as the Mayor of the Municipality. The objective evidence
also reveals that the meeting adjourned at 13h33 due to chaotic
members of the community. After giving this aspect a careful thought
I am not persuaded that the MEC has been able to demonstrate
that the
meeting of 26 March 2020 was tainted with the irregularities that the
MEC has sought to advance in these proceedings.
[53]
According to the minutes of this meeting only 27 councilors out of 33
attended this meeting.
No apologies or requests for leave of absence
are recorded in the meetings in respect of the councilors who did not
attend. The
MEC sought to contend that in the context of the
prohibition against the meeting by the Minister’s directives,
the councilors
who did not attend might have felt that they were
obliged to stay away in compliance with the directives. They contend
that not
only did this affect the legitimacy of the meeting but it
also affected the legitimacy and democratic nature of the election of
the 10
th
respondent as the Mayor. They assert that those
six councilors had the right to vote and to stand for election.
Attractive though
this argument may be, it remains a speculation
because no evidence has been produced showing that their failure to
attend was attributed
to what has been asserted to by the MEC and Mr
Tubane.
[54]
In the circumstances, I conclude that the evidence before this court
does not sustain MEC’s
contentions herein. The
counter-application falls to be dismissed.
Order
[55]
In the result the following order shall issue,
As
to the main application
(a)
The first impugned decision be and is hereby declared invalid.
(b)
The declaration of invalidity shall take effect from the date of this
order.
(c)
The first, sixth to twenty second respondents and twenty eighth
respondent are directed
to pay the costs, jointly and severally, the
one paying the other to be absolved.
As
to the counter-application
(a)
The counter application be and is hereby dismissed with costs, such
costs to include the
costs occasioned by the employment of two
counsel.
Mnguni J
APPEARANCES
:
For
the applicants:
Mr M.N Xulu
INSTRUCTED
BY:
S.M. Mbatha Incorporated
REF.:
email:
reception@smmbathainc.co.za
TEL:
031-701 80 15
For
the 1
st
, 6
th
-22
nd
and 28
th
-30
th
Respondents:
Ms A.M. Annandale SC and Mr I Veerasamy
INSTRUCTED
BY:
Rose Pereira Correia Attorneys
REF.:
Nquthu Municipality
TEL:
072 325 46 50
For
the 26
th
Respondent:
Mr A.J. Dickson SC
INSTRUCTED
BY:
PKX Attorneys
REF.:
W. Makhathini
TEL:
033-347 53 54
[1]
10 of
2013.
[2]
57 of
2002.
[3]
Regulations
published in GN 318,
GG
43107, 18 March 2020.
[4]
Regulation
Gazette No 11063 vol. 657,
GG
43147, 25 March 2020.
[5]
According
to the applicants the Council meeting did not proceed because
members of the community who gathered in the Council chamber
made it
impossible for that meeting to proceed resulting in the 9
th
respondent moving the Council meeting to another venue in
contravention of the standing rules of the Municipality.
[6]
Hyprop
Investments Ltd and others v NSC Carriers and Forwarding CC and
others
2014
(5) SA 406 (SCA).
[7]
He was
one of the Managers in the Municipality during that time.
[8]
32 of
2000.
[9]
117 of
1998.
[10]
7 of
2011.
[11]
South
African Municipal Workers’ Union v Minister of Co-operative
Government and Traditional Affairs
and
others
2017 (5) BCLR 641 (CC).
[12]
SAMWU
above.
[13]
The
Constitution
of the Republic of South Africa, 1996.
[14]
Section160(3)
of the Constitution provides: ‘(a) A majority of the members
of a Municipal Council must be present before
a vote may be taken on
any matter.
(b)
All questions concerning matters mentioned in subsection (2) are
determined by a decision taken by a Municipal Council with
a
supporting vote of a majority of its members.’
[15]
Minister
of Environmental Affairs and Tourism and others v Pepper Bay Fishing
(Pty) Ltd;
Minister
of Environmental Affairs and Tourism and others v Smith
2004
(1) SA 308
(SCA) para 31.
[16]
AllPay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer, South African Social Security Agency,
and others
2014
(1) SA 604
(CC) para 25.
[17]
Annexures
‘SA4’ and ‘SA5’ respectively.
[18]
Annexure
‘SA5’ at 429 of the indexed papers is headed
‘Implementation of the Constitutional Court order and
Rectification of the appointment of the Acting CFO and Director
Planning’.
[19]
Millennium
Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo
Province
and
others
2008
(2) SA 481
(SCA) para 23.
[20]
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd
and
others
2011
(4) SA 113
(CC) para 85.