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[2021] ZAECBHC 8
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Gamnca v MEC for Co-Operative Governance and Traditional Affairs and Others (73/2021) [2021] ZAECBHC 8 (13 May 2021)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 73/2021
In
the matter between:
NTOMBIZODWA
GAMNCA
Applicant
and
MEC
FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
First
Respondent
BUFFALO
CITY METROPOLITAN
MUNICIPALITY
Second
Respondent
THE
INDEPENDENT ELECTORAL
COMMISSION
Third
Respondent
REASONS
FOR GRANT OF
INTERLOCUTORY
INTERDICT
HARTLE
J
[1]
On 6 April 2021 I granted a ruling in respect of an urgent
application for the grant of
an interim interdict pending the
determination of a review application launched under Bhisho case
number 73/2021 in the following
terms:
“
1.
Pending the finalization of the review application launched under
case number 73/2021 the respondents
are interdicted from:
1.1
implementing the first respondent’s decision to remove the
applicant from the office of
the councillor for Ward 20 in the
Buffalo City Municipality and withholding her remuneration and other
benefits.
1.2
Conducting by-ward elections in Ward 20 in the Buffalo City
Metropolitan Municipality in respect
of the vacancy created by the
first respondent’s decision under review.
2.
The costs of this interlocutory application for interim relief will
be costs
in the review application.
3.
Any party requiring reasons for my ruling may request same within ten
days.”
4.
The first respondent requested reasons.
5.
It is
common cause that the applicant without delay issued out the review
application in the main application immediately upon being
apprised
by the first respondent on 26 January 2021 of the fact that she had
with immediate effect been removed from office as
ward councillor
[1]
on the premise that she had breached the provisions of item 2 (b) of
Schedule 1 (the Code of Conduct for Councillors) of the Local
Government: Municipal Systems Act No 32 of 2000 (“the
Code”).
[2]
6.
The provisions of the relevant item require a councillor in
peremptory terms
to “(b) at all times act in the best interest
of the municipality and in such a way that the credibility and
integrity of
the municipality are not compromised”.
7.
The stated basis for the review,
inter alia
, is that the
decision of the first respondent to remove her as councillor was
reached in a procedurally unfair manner, was arrived
at without
taking into account relevant considerations, and was made arbitrarily
or capriciously. The applicant submits further
that the
impugned investigation report (which formed the premise for the
applicant’s removal) was the “product of a
process
undertaken contrary to the rules of natural justice” thus
providing cause for the court ultimately hearing the review
application to set aside the first respondent’s decision.
8.
In respect of the process undertaken by the first respondent
culminating in his
decision to remove her as councillor, the
applicant notes,
inter alia
, that details of the investigation
were advised to her after the fact (meaning that she was denied the
opportunity to meaningfully
participate by responding to the
allegations before the “finalization of the investigation
report”); that the first
respondent instead of conducting an
investigation such as is mandated by the Code in effect merely
accepted the (one-sided) allegations
made by those who complained
against her; and that the first respondent “hijacked” the
investigation whereas it was
supposed to have been undertaken
strictly in line with the Code. Indeed, the applicant claims
that the first respondent allegedly
usurped the powers of the
Municipal Council in this respect.
9.
Concerning the substantive basis for the anticipated review, the
applicant’s
complaint is that the first respondent’s
decision was unreasonable and that he harbored a mistaken belief that
the conduct
complained of amounted to a breach of the Code.
Further if her conduct indeed constituted such a breach or
contravention
(the premise for his decision in any event being
fundamentally flawed or mistaken according to her), she denies that
such conduct
warranted the sanction of her permanent removal in all
the circumstances.
10.
The premise of the application for the interdict was that she enjoys
good prospects of success
in the proposed review application and
would suffer irreparable harm if the two key consequences flowing
from her removal as councillor
were implemented pending the
determination of the review application. These are, firstly,
that she stood to be deprived of
her remuneration and benefits earned
by her in this position and, secondly, the selfsame vacancy opened up
as a result of her removal
was about to be filled pursuant to a
by-election scheduled to take place in the ward on 21 April 2021.
11.
Before proceeding I set out below what the Code provides in respect
of an investigation undertaken
against a councillor accused of being
in breach of the Code’s provisions, whether initiated by the
chairperson of the municipal
council or the member of the executive
council:
“
13. Duty
of chairpersons of municipal councils.
—
(1)
If the chairperson of a municipal council, on reasonable suspicion,
is of the opinion that a provision of
this Code has been breached,
the chairperson must—
(
a
)
authorise an investigation of the facts and circumstances of the
alleged breach;
(
b
)
give the councillor a reasonable opportunity to reply in writing
regarding the alleged breach; and
(
c
)
report the matter to a meeting of the municipal council after
paragraphs (
a
) and (
b
) have been complied with.
(2)
A report in terms of subitem
(1) (
c
)
is
open to the public.
(3)
The chairperson must report the outcome of the investigation to the
MEC for local government in the province
concerned.
(4)
The chairperson must ensure that each councillor when taking office
is given a copy of this Code and that
a copy of the Code is available
in every room or place where the council meets.
14.
Breaches of Code.
—
(1)
A municipal council may—
(
a
)
investigate and make a finding on any alleged breach of a provision
of this Code; or
(
b
)
establish a special committee—
(i)
to investigate and make a finding on any
alleged breach of this Code; and
(ii)
to make appropriate recommendations to
the council.
(2)
If the council or a special committee finds that a councillor has
breached a provision of this 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 to suspend the
councillor for a period;
(
d
)
fine the councillor; and
(
e
)
request the MEC to remove the councillor from office.
(3)
(
a
) Any
councillor who has been warned, reprimanded or fined in terms of
paragraph
(
a
), (
b
) or (
d
) of subitem (2) may
within 14 days of having been notified of the decision of council
appeal to the MEC for local government in
writing setting out the
reasons on which the appeal is based.
(
b
)
A copy of the appeal must be provided to the council.
(
c
)
The council may within 14 days of receipt of the appeal referred to
in paragraph (
b
) make any representation pertaining to the
appeal to the MEC for local government in writing.
(
d
)
The MEC for local government may, after having considered the appeal,
confirm, set aside or vary the decision
of the council and inform the
councillor and the council of the outcome of the appeal.
(4)
The MEC for local government may appoint a person or a committee to
investigate any alleged breach of a provision
of this Code and to
make a recommendation as to the appropriate sanction in terms of
subitem (2) if a municipal council does not
conduct an investigation
contemplated in subitem (1) and the MEC for local government
considers it necessary.
(5)
The Commissions Act, 1947 (Act No. 8 of 1947), or, where appropriate,
applicable provincial legislation,
may be applied to an investigation
in terms of subitem (4).
(6)
If the MEC is of the opinion that the councillor has breached a
provision of this Code, and that such contravention
warrants a
suspension or removal from office, the MEC may—
(
a
)
suspend the councillor for a period and on conditions determined by
the MEC; or
(
b
)
remove the councillor from office.
(7)
Any investigation in terms of this
item must be in accordance with the rules of natural justice
.”
(Emphasis added.)
12.
Although not stating when exactly, the first respondent averred that
he initiated an investigation
acting in terms of his powers contained
in item 14 (4) of the Code. The premise for an investigation
pursuant to this item
is (1) that the municipal council having the
primary responsibility to investigate the facts and circumstances of
the alleged breach
and make a finding of a reasonably suspected
breach of the Code’s provisions does not conduct an
investigation (or conclude
it I believe can be read in here) and (2)
he considers it necessary. If this jurisdictional basis exists,
the first respondent
is in my view according to the provisions of
item 14 (4), expected to appoint a person or a committee to
investigate the alleged
breach of a provision of the Code and, as is
provided for in item 14 (1), to make a finding thereanent as well as
recommendations
to him as to the appropriate sanction that befits the
finding of the relevant breach of the Code’s provisions.
The
investigation, whether initiated by the chairperson of the
municipal council or the member of the executive council acting
pursuant
to the jurisdictional basis provided for in item 14 (4),
clearly takes place subject to the rules of natural justice which
according
to item 13 (1)(b), as an elementary procedural safeguard,
requires that the person suspected of a breach is given “a
reasonable
opportunity to reply in writing regarding
the alleged
breach
”.
13.
The first
respondent claims that in this instance he tasked the Amathole
District Support Centre (“ADSC”) which is a
component
part of his department to conduct the relevant investigation.
The report which he identifies as the work of the
ADSC, or the
outcome of the investigation is the impugned report in the record of
decision to which I will shortly refer.
This report focuses on
allegations against the applicant concerning her claimed manipulation
of a beneficiary list by using her
Area Committee to distribute food
parcels and vouchers during the COVID 19 State of Emergency instead
of adhering to a list provided
to her by the ward committee of the
area, in the process benefiting her friends and close associates who
would otherwise not have
benefitted from the programme. He also
alludes to “other findings in the report.”
[3]
These findings, included the fact that the applicant has a criminal
record obtained whilst a councillor in March 2019 and that
she
purportedly “also committed fraud” in that she sold a
house to a Ms. Mabileni for R300 000.00 in June 2019
(also
during her term of office) which, although paid for in full, was
never transferred to her. Transfer is however supposedly
not
possible, so the first respondent asserts, because the same house has
been sold by the applicant to a different person as well.
14.
The report adds that the applicant “also committed another
fraud” involving property
by selling a different house to a Mr.
Odwa Matshaya which the applicant has also failed to transfer to him
to date.
15.
This investigation report the first respondent references as being
the premise for his decision
that will go under scrutiny in the
anticipated review hearing must have existed before 2 July 2020
because the first respondent
claims that on this date he wrote to the
Speaker Councillor Mr. Mtsi “bringing to his attention
the
serious findings in the report
” and that he directed him to
investigate and invite the implicated councillors, including the
applicant, to provide written
submissions in response to the
findings. He alludes to the fact that in the letter aforesaid
he had specifically stated that
he was of the view that the conduct
of the implicated councilors including that of the applicant,
may
have amounted to a breach of the Code.
16.
Five days
after the dispatch of the letter Mr. Mtsi unfortunately succumbed to
COVID. The first respondent avers that due
to his untimely
death, the “misconduct issues (he) had raised with him remained
unresolved” but he clarifies that this
“was mainly due to
factional power dynamics within the Council”.
[4]
As a result, so he rationalized, no action was taken or could be
taken against implicated councilors including the applicant
since
July 2020. This is the situation that pertained until 27
November 2020 when he himself wrote to the applicant,
inter
alia
,
“bringing to her attention
the
serious findings against her
in the
report
”.
He specifically informed her in that letter of his view “that
she may have acted in breach of the Code”
and of his “powers
in terms of the Code to act against her when, in (his) opinion, there
(was) evidence of such breach including
(the) possible removal of her
as a Councillor”.
17.
The first respondent felt obliged to explain the circumstances under
which he felt constrained
to step in and exercise the power referred
to in item 14 (4) of the Code to address the peculiar conundrum as
follows:
“
22.
The aforesaid factional divisions have perpetrated an untenable
situation where the Council may act and deal with
some rogue
councilors but fails to deal with others for political expediency
depending on the factional power dynamics in the Council.
This
state of affairs if allowed to continue would certainly not only
undermine the constitutional mandate of Council but also
be
detrimental to the interests of the communities served by the
municipal over which as the MEC, I am legally required to conduct
my
oversight duties.
23.
It is therefore my honest view that the enforcement of discipline in
terms of the Code is paramount and should
be prioritized in a
universal manner in respect of all councilors implicated in
wrongdoing and the enforcement cannot be seen or
perceived to be
selective depending on the political allegiance or political power
dynamics between factions in the Council.
24.
I submit that as the MEC and political head of COGTA, I cannot
therefore be expected to watch helplessly where
evidence exists of
protracted and flagrant violations of the Code by some councilors
with no decisive action taken against them
or where action against
them is unreasonably delayed by the Council due to the factionalism
prevailing at the municipality.”
18.
The applicant’s attorneys addressed a response to the first
respondent’s letter of
27 November 2020 which the first
respondent explains did not deal directly and substantively with his
request to the applicant
to make representations “on (the)
specific allegations in the report against her”. He
further laments that she
had failed to provide him with “any
reasons as to why (he) must not proceed suspending her as councillor
pending an investigation
or, provide (him) with reasons as to why he
should not remove her as a councillor for breach of the Code”.
He further
criticizes her for opting to provide a “bare denial”
to the serious allegations of fraud and corruption against her
using
this as a basis to conclude that her response was not only dishonest
but also evasive with regard to the serious allegations
levelled
against her. He expresses surprise at the notion that “as
part of her defence” she opted to question
his approach
employed to investigate the allegations including his legal standing
to conduct the investigation in terms of item
14 (4) of the Code.
19.
Evidently, however, as appears from my appraisal of the record of
decision below, the first respondent
took whatever admissions the
applicant made in her reply into consideration in justifying his
decision to remove her as a councillor
with immediate effect.
20.
For the rest, in opposing the application for interim relief the
first respondent denied that
the applicant had established the
requirements for the grant of an interim interdict. He also
resisted the application on
the basis that it lacked urgency.
21.
He further lamented the fact that if this court were to rule in the
applicant’s favour that
such an order would render futile the
powers lawfully exercised by him in enforcing and ensuring compliance
by councillors with
the Code and that it would in fact be “legally
harmful to the principle of public accountability”.
22.
An applicant who seeks an interdict
pendente lite
must
establish the usual requirements for the grant of an interim
interdict. These are: the existence of a
prima facie
right even if it is open to some doubt; a reasonable apprehension of
irreparable and imminent harm to the right if an interim order
is not
granted; the balance of convenience must favour the grant of the
interdict; and the applicant must have no other satisfactory
remedy
at her disposal.
23.
Inter
alia
as
regards the requirement to prove a
prima
facie
right, the court held in SA Informal Traders Forum and Others v City
of Johannesburg & Others, South African National Traders
Retail
Association v City of Johannesburg & Others
[5]
that the proof thereof may be established by the applicant when he or
she is capable of demonstrating prospects of success in an
anticipated review application, as
in
casu
,
the express purpose of the application argued before me being to
maintain the status
quo
pending the determination of such an application.
24.
The proper
manner of approach in establishing a
prima
facie
right is to take the facts as set out by the applicant together with
any facts set out by the respondent which the applicant cannot
dispute and to consider whether, having regard to the inherent
probabilities, the applicant could on those facts obtain final relief
at the trial. The facts set up in contradiction by the
respondent should then be considered, and if serious doubt is thrown
upon the case of the applicant, he could not succeed in obtaining
temporary relief.
[6]
In
this instance however there was hardly a factual dispute at play, the
prospects of success in the review application almost
suggesting
themselves from the record of decision and what the first respondent
himself says guided his actions and considerations.
25.
The
requirements for an interim interdict have to be considered not
separately or in isolation but in conjunction with one other
in order
to determine whether the court should exercise its discretion in
favour of granting the interim relief. Our courts
have
consistently applied the “sliding scale test”. The
stronger the prospects of success, the less the need
for the balance
of convenience to favour the applicant, the weaker the prospects of
success, the greater the need for the balance
of convenience to
favour the applicant.
[7]
26.
In
considering the balance of convenience this court must also weigh the
prejudice to the applicant if the interim interdict is
refused
against the prejudice to the first respondent should it be
granted.
[8]
27.
As indicated above, apart from what course of action the first
respondent says he took and the
justification provided by him for his
decision, it was necessary for me to have regard to the record of
decision as well, which
by the time the interim application was
argued before me had already been filed by the first respondent
pursuant to the provisions
of rule 53 (1)(b) and on its own in my
view was somewhat instructive of the situation of the applicant’s
prospects of success
in the anticipated review application,
especially in respect the applicant’s complaint that the rules
of natural justice
were denied to her.
28.
As an
aside, Mr. Phoshera on behalf of the first respondent argued
vociferously on the basis of the authority in Masina v MEC for
Co-Operative Governance and Traditional Affairs & Another
[9]
that the first respondent was well placed to have commissioned the
investigation pursuant to the provisions of item 14 (4) of the
Code.
I have no quarrel with that finding that members of the
executive council are required to act consistently in
enforcing the
Code in all the municipalities under his jurisdiction and that he
need not wait by helplessly before stepping in
unless and until a
municipal council has investigated the matter as provided for in
sub-item (1) and/or concluded it if the circumstances
warrant such
intervention.
29.
One has only to peruse the Memorandum on the Objects of the Local
Government Laws Amendment Bill,
2007 (preceding the enactment of the
Local Government Laws Amendment Act, No. 19 of 2008
) to understand
the clear objective of the legislature by the amendment to item 14
(4) of schedule 1 to the Systems Act. Paragraph
1.21 thereof
provides that clause 20 (which corresponds to
section 21
of the
Local
Government Laws Amendment Act, No. 19 of 2008
) is amended “to
provide that where the municipality does not conduct an investigation
in terms of sub-item 1 and the member
of the executive council in his
or her discretion considers it necessary the member of the executive
council may appoint a person
or committee to do so.”
30.
I was accordingly not of the view that sentiments of the notion of
co-operative government precluded
the first respondent
in casu
from acting as he contended for, but rather that the applicant had
raised an arguable case that the first respondent had perhaps
not
acted in accordance with the prescripts of the provisions of item 14
(4) of the Code in assuming the reins, more especially
in recognizing
her rights in the first place to procedural fairness in pursuit of
his objective.
31.
I turn now to consider the record of the first respondent’s
decision.
32.
The focus or ambit of the investigation undertaken against the
applicant (I will assume for present
purposes at the instance of the
first respondent and in terms of his entitlement to invoke the
provisions of item 14 (4) of the
Code) is recorded in the said
undated investigation report. This is the primary
document on which the first respondent
says his decision to remove
the applicant rested. The investigation referenced in the
report however ostensibly related only
to complaints against her
around the issue of the allocation of food parcels or vouchers in
certain affected wards.
33.
The purpose and background to the investigation referenced in the
report is outlined as follows:
“
1.
PURPOSE
The
purpose of this memorandum is to give a report on the fact-finding
investigation on the alleged food parcel corruption in the
Buffalo
City Metropolitan Municipality.
2.
BACKGROUND
The
ADM/BCMM DSC Senior manager received a WhatsApp message alleging
corrupt activities in the distribution of food parcels in the
following wards: wards: 01, 08, 10, 20, 41 and 49 in the Buffalo City
Metropolitan Municipality.”
34.
The report
records further that the mandate of the first respondent is derived
from Item 14 (4), (5), (6) and (7) of the Code, the
provisions of
which I have set out above.
[10]
35.
The process
followed, according to the investigation report, is that, on getting
the message (referred to in the “background”
described
above) “the senior manager
[11]
required sworn statements from the affected wards and reports from
the departmental CDWs
[12]
to
solicit information as to what transpired in the wards concerned”.
It was pursuant to receipt and analysis of the
written affidavits
from the complainants and reports from the ward CDWs, so the
investigation report records, that a summary was
provided in respect
of each ward.
[13]
36.
It is not
evident what affidavits exactly or what reports were provided or who
exactly the “complainants” were, but
the investigation
report reflects the following “findings”
[14]
specifically against the applicant in summary form:
The
Findings
:
“
Ward
20:
The Ward Councillor did not involve the Ward Committee in the
identification of beneficiaries for the food parcel. It was
found that she utilized her friends and allocated vouchers to those
who were close associates.
It
was found that Councillor Gamnca (Ward 20) has committed fraud, and
conviction was obtained against her for breaking a cellphone
belonging to a member of the community.”
37.
The second
paragraph above appears to have nothing to do with the subject of the
investigation and strangely (as will be seen below)
was not responded
to by the applicant in the context of the investigation at hand.
I should add that the applicant in her
replying affidavit referred to
the report of the Speaker to the Premier arising from the allegations
concerning the food parcel
complaints (seemingly in conclusion of the
investigation as at that time) which is bereft of any mention of any
contemporaneous
allegation that she had committed fraud or was
convicted.
[15]
38.
On the simple face of it, the reference to the latter complaint is
discordant with the rest of
the investigation report. It is
also not clear when and under what circumstances the finding in the
second paragraph above
was made. The applicant’s case
made out in the application however is that she was not apprised that
she was under
investigation for fraud or on the basis of her admitted
criminal conviction until 27 November 2020.
39.
The summary
of the applicant’s input or response, supposedly in relation to
“the allegations levelled against (her)”
is summarized as
follows:
[16]
The
response
:
“
Councillor
Gamnca stated in her response that in her ward she included all the
ward committee and political parties’ representatives
in the
identification of the 800 beneficiaries. There are problems in
the ward and the Toika are in the process of intervening
to try and
resolve the impasse.”
[17]
40.
There is plainly nothing said about the applicant’s responses
in the context of anu investigation
into the purported fraud and
conviction complaints, yet the recommendation in the impugned
investigation report concludes as follows:
“
7.
RECOMMENDATIONS
The Code of Conduct for
Councillors states that a councillor must-
(a)
Perform the functions of office in good faith, honestly and in
a transparent manner; and
(b)
At all times act in the best interest of the municipality and in
such a way that the credibility and integrity of the municipality
are
not compromised.
In
terms of item 6 of the code,
a councillor may not use the position
or privileges of a councillor, or confidential information obtained
as a councillor, for private
gain or to improperly benefit another
person
.
Based
on the abovementioned disposition, on the face of things the cited
Councillors have transgressed the spirit of the Code of
Conduct and
as such for the Honourable MEC must:
a.
Cause the Speaker of BCMM to submit a report on steps that have
been taken against Councillor Gamnca (Ward 20)
who is alleged to
have committed fraud with conviction, and also Ward 01 Councillor who
is alleged to have solicited a bride of
R50 000.00 from the
artist.
b.
The MEC
must request the affected councillors to make representations on the
findings against them.
[18]
c.
In the event of an unsatisfactory response, the MEC must take
necessary steps
to enforce provisions of the code by imposing an
appropriate sanction.
d.
Going forward the following are the recommendations:
7.4.1
Working relations between Ward Committees and Ward Councillors need
to be strengthened to avoid unnecessary conflicts within
the ward.
7.4.2
Ward Councillors need to develop word-based profiles so as to be able
to identify indigent members of the Ward instead of
thumb sucking as
to who is indigent in the ward.
7.4.3
Proper planning should take place before a decision on distribution
of food parcels as a solution is taken as this puts the
municipality
in a difficult position in that Ward Councillors are requested in a
short space of time to come with names of indigent
people in the
ward.
7.4.4
CDWs must develop in conjunction with other service departments like
Social Development; Health; Education etc. ward profiles
to assist
Councillors in times like these where lists are required for relief
of distress assistance.
7.4.5
An administrative function should only be performed by administrators
to avoid allegation of being partisan by politicians.
7.5.6
Breach of COVID-19 regulations become serious as this exercise
exposes communities to danger.
Public
participation exercise which is meaningful need to be adhered by to
by state organs when rendering services to the people.”
(Emphasis added.)
41.
It is again significant in my view that paragraph (a) appears
discordant with the rest of the
conclusions naturally related to the
issue of the allegations of corruption concerning the distribution of
food parcels.
It also refers to “steps taken”
against the applicant relating to having “committed fraud with
conviction”
yet the applicant denied that these allegations
surfaced until 27 November 2020. This allegation was not
gainsaid by the
first respondent in his answering affidavit.
42.
A further anomaly is that the affidavits in which the applicant is
accused of wrongdoing in breach
of the Code ostensibly on the basis
of the alleged fraud and the fact of her having a criminal conviction
only came to hand on
1 December 2020, which is when the three
affidavits on which the allegations are purportedly premised were
obviously deposed.
These (among other random unexplained
documents) are listed in the index to the investigation report as
annexures that on the first
respondent’s version must have been
prepared before his letter to the late speaker dated 2 July 2020, yet
they postdate the
report.
43.
The affidavits said to have fostered suspicion that the applicant was
in breach of the Code’s
provisions comprise firstly a hearsay
affidavit by one Ms. Magela. She confirms that she is the sister of
one Ms. Malibeni who
purportedly bought a house (1963 NU6 Mdantsane)
from the applicant for R300 000.00. It suggests that she
wanted the
purchase price paid cash but that her sister disagreed
with such an arrangement and that the money was instead deposited to
the
applicant’s husband’s banking account with Nedbank
only to find later that the applicant had sold it to someone else
before. The affidavit further promises that there is proof.
Proof of payment of R300 000.00 into the banking account
of A Gamnca appears to be related.
44.
Next there is another hearsay affidavit by one Peggy Matshaya that
accuses the applicant of having
sold an unidentified house to her
husband Odwa. He did renovations to the house, but she asserts
that it was never ultimately
transferred into his name.
45.
The third
affidavit is one by a directly affected councillor, Mkhuseli Brian
Nombewu, to the effect that the applicant was convicted
for hurling
insults at him and snatching his cellphone and sentenced by the East
London Magistrate’s Court in March 2019.
It is uncertain
what offence exactly the applicant was convicted of, but she claimed
in reply that she was fined an amount of R5 000.00
only and not
R10 000.00 as asserted by the first respondent. (As an aside it
is only a conviction and sentence for a period
of more than twelve
months without the option of a fine that disqualifies a municipal
councillor from holding office.)
[19]
46.
The record of decision also includes the invitation by the first
respondent to the applicant dated
27 November 2020 to show cause why
she should not be suspended on account of certain concerns regarding
her supposed unbecoming
conduct as a councillor and detailing the
allegations informing these concerns. The applicant says that
this was the first
indication of the purported formal investigation
concerning these issues or accusations levelled against her.
The contents
of the “invitation”, which vacillates
between the suggestion that the applicant
may
be guilty of a
breach of Code versus a finding justifying the imposition of a
sanction already, are repeated below:
“
RE:
THE UNBECOMING CONDUCT OF COUNCILLOR GAMNCA (YOURSELF)
[20]
My
office is in receipt of a report from Amathole District Support
Centre of the department on the unacceptable misconduct and Breach
of
the Code of Conduct for Councillors by Councillor Gamnca (yourself).
The report was premised from a series of complaints
that were raised
through the Community Development Workers of my department, others
through the Hotline of the Office of the Premier.
I
have several times written to the Council Speaker to urgently
institute a thorough investigation on the matter. This proposal
was done in line with the below provisions;
Item
13(1)(a) of Schedule 1 – Code of Conduct for Councillors of the
MSA
provides that: “If the chairperson of a municipal
council, on reasonable suspicion, is of the opinion that a provision
of
this Code has been breached, the chairperson must – (a)
authorise an investigation of the facts and circumstances of the
alleged breach.”
The
above process was meant to give you an opportunity to explain
yourself. The reluctance on the side of the Municipal Council
has left me with no choice but to take an action myself as I am
empowered by Law as one of the role players responsible for the
enforcement of the Code of Conducts for Councillors.
Accusations that are levelled against you are as follows:
A.
Acts of Public Violence:
It is alleged that Councillor
Mganca (sic) committed public violence and was convicted to that
effect as she broke a cell phone
that belongs to a community member
and has since admitted to that and repaid the costs of repairing the
phone.
Fraud
and Corruption Councillor
Gamnca is further seriously accused to
have solicited money from various community members (affidavits to
this effect have been
submitted by the affected people) where she
fraudulently sold house to certain community members and deposits
were made to the
bank account of her spouse, values to that are as
follows:
·
Pumla Marambana – a sum
of R200 000 was paid to the
councillor
·
Viwe Godi – a sum of R180 000
was paid to the councillor
·
Khayalethu Matshaya – a
sum of R15 000 was paid to the
councillor
·
Sindiswa Mage - a sum of R300 000
was paid to the councillor
·
Monde Tyokolo – a sum of
R100 000 was paid to the
councillor
Having
read the detailed report at my disposal and made analysis thereof, I
am of the view that certain Items of the Code of Conduct
for
Councillors may have been breached. It is however required of
me by law that I should act in accordance with the legislation
that
is relevant to the issues at hand.
Item
14 (6)(b) of Schedule 1 – Code of Conduct for Councillors of
the MSA
provides that: “If the MEC is of the opinion that
the councillor has breached a provision of this Code, and that such
contravention
warrants a suspension or removal from office, the MEC
may – (b) remove the councillor from office.”
It
is therefore, in light of the above-mentioned allegations that you
are kindly requested to make written representations on the
allegations and submit valid reasons to my office within
SEVEN (7)
DAYS
from the date of receipt of this letter, why you should not
be suspended without pay pending the criminal investigation or
removed
from office for breaching the Code of Conduct for
Councillors.” (sic)
47.
Next in chronological order is the letter of the applicant’s
attorneys to the first respondent
in response dated 1 December 2020.
It relates that:
47.1
the
applicant had never before been apprised of the investigation taking
place, save that her co-operation had been sought by way
of
representations, “to assist the investigation to arrive at just
and fair conclusion”;
[21]
47.2
the applicant had not received a copy of the complete investigation
report referenced in the first respondent’s
invitation under
reply;
47.3
the first respondent was in the applicant’s view acting
prematurely;
47.4
the
applicant assumed that the only concerns investigated against her up
until that point had been those raised by the Ethics Committee
of the
second respondent;
[22]
47.5
the
applicant complained that the first respondent had failed to appoint
a person or committee to investigate any alleged breach
of the Code
pursuant to the provisions of Item 14 (4);
[23]
and
47.6
the applicant was concerned by the equivocation of the first
respondent between being certain that she had breached
the Code and
was acting upon recommendations and being uncertain both at the same
time by pointing out his view that “the
provisions
may
have been breached”.
48.
In the letter of 1 December 2020 her attorneys demanded that the
first respondent withdraw this
correspondence on the basis that the
first respondent’s intervention was premature and requested him
to refrain from implementing
the provisions of item 14 (6)(b)
prematurely pending compliance with the Code. He was further
prevailed upon to provide the
applicant with the report he purported
to have in his possession so that the applicant could fully respond
to the allegations.
49.
On 8 January 2021 under cover of a letter also included in the record
of decision the legal advisory
services department of the first
respondent’s office provided the applicant’s attorneys
with the impugned investigation
report which it was claimed would
address the applicant’s queries “in detail”.
The letter assures the reader
of the first respondent’s
authority to decide, purports to convince them that the first
respondent indeed took the necessary
procedural steps and concludes
with the assertion that he will not withdraw the correspondence sent
to the applicant. The
applicant is further placed on terms to
provide her representations by 15 January 2021, failing which it is
intimated that the
first respondent will otherwise take a decision
without her representations.
50.
The next letter from the applicant’s attorneys to the first
respondent dated 21 January
2021 constitutes the applicant’s
representations. They deny that there is any foundation to the
allegations and suggest
that an underhanded agenda is at play.
Contrary to the first respondent’s contention that she vaguely
brushed off the
serious allegations against her, the letter deals on
her behalf with each allegation separately as follows:
“
Acts
of Public Violence
Councillor
Gamnca strongly denies that she was ever charged and appeared before
any court of law in the Republic facing charges
of public violence
especially against a member of the public. The only incident
which Councillor Gamnca can recall which
led to her conviction in
court, was an altercation with a fellow party member and councillor
Mr Mkhuseli Nombewu which occurred
at a private organizational
meeting which was held at the ANC regional office in East London.
The meeting had nothing to
do with her duties as a councillor but was
meant to deal with organizational matters.
The
incident was well choreographed by the complainant who wanted to
achieve his selfish interest at the time. You will note
from
the affidavit of the complainant Mr Nombewu that he states that he is
a councillor himself with his address as City Hall.
Unfortunately, he declared himself an opponent within the movement,
hence our client reiterates that this is nothing but dirty
politics
at play.
I
therefore deny that I violated the code of conduct in any manner
especially with reference to your correspondence.
Fraud
and Corruption
Pumla
Marambana
– Councillor Gamnca has no knowledge of the
allegations brought by Ms Marambana. She is adamant that she
never accepted
any money in whatever form from Ms Marambana, and if
possible may she be furnished with proof of payment.
Viwe
Godi
– Councillor Gamnca denies that she ever received an
amount of R180 000.00 from Viwe Godi.
Ms
Godi
is the former Ward Committee member in the previous
administration who never accepted transition. Ms Godi refused
to vacate
a house where her mother was boarding in Mdantsane.
Councillor Gamnca had a duty to intervene on behalf of the family
that
Ms Godi had refused accommodation. That is why Ms Godi
campaigns against Councillor Gamnca. Ms Godi is once again
challenged
to produce any proof of payment to prove her claim.
Khayalethu
Matshaya
– Councillor Gamnca denies ever receiving any
money from Mr Matshaya. Proof of payment is requested as these
allegations
are denied in the strongest terms. Even the report
commissioned by the MEC bears no proof of these allegations.
Sindiswa
Magela
– Councillor Gamnca admits that she sold her house to Ms
Ntombizanele Malibeni a cousin of Sindiswa Magela. According
to
Councillor Gamnca there has never been a complaint from Ms Malibeni
who purchased the house. Even the affidavit attached
to the
report is deposed to by Ms Magela which is quite strange, and the
person who sold the house is quiet. According to
our client’s
knowledge, the reason why the house has not been transferred is
because Ms Ntombizane Malibeni has not yet financially
instructed her
own attorneys to proceed with transfer, hence she has to submit the
complaint with the office of the MEC.
Ms Sindiswa Magela also
declared herself an opponent of councillor Gamnca within the ANC.
We attach herewith Deed of Sale
for ease of reference and mark same
HN.
[24]
Monde
Tyokolo
– Councillor Gamnca can confirm that on or about
2009/2010 she sold one of her properties to Mr Tyokolo but the deal
fell
through as Mr Tyokolo failed to fulfil the terms of the
agreement. The sale took place before I was even a councillor.”
51.
The
culmination of it all is the first respondent’s decision
advised to the applicant in the letter 26 January 2021 (apparently
without any preceding “finding” or recommendation having
first being made to him by his appointee) that in his view
she has
breached the Code, more especially Item 2 (b) thereof, and that he is
removing her for this reason believing that the breach
or
contravention in question warrants the sanction of her removal from
office.
[25]
52.
The reasons given by the first respondent for so concluding are also
instructive and suggest that
he opportunistically seized upon the
fact of the applicant’s concessions rather noted in her
attorney’s letter dated
21 January 2021. This is
self-evident from his reply in the following terms:
“
1.
In your own representations you admit being convicted of a criminal
offence. The duty to act in
the best interest of municipality
and without compromising municipality’s credibility or
integrity, must be maintained at
all times until you cease to be a
councillor. You cannot engage yourself in violent conduct just
because you are dealing
with another councillor. Conviction of
a councillor seriously compromises the integrity of the municipality
to which that
councillor is a member of.
2.
Your response in relation to sale of immovable property between
yourself and Ms Malibane (sic)
leaves much to be desired. The
seller has an obligation to transfer or deliver the property to the
buyer, even if the buyer
pays costs of transfer. You have
failed in your response to mention the name of the conveyancing
attorney that was to be
responsible for the transfer. It must
be said identifying a conveyancing attorney is the responsibility of
the seller, even
if the buyer is obliged to pay the transfer costs.
It is disturbing that more than two (2) years after the purported
sale
agreement, you are now raising an issue to say that Ms Malibeni
did not pay the transfer costs. I must indicate that my office
has consulted with an angry Ms Malibeni.
[26]
She advised that you have failed to carry out you responsibilities as
a seller and to date she does not know who is the conveyancing
attorney and has never received any statement of account from that
attorney. You took advantage of a vulnerable member of
the
community and received payment of R300 000 which was paid to
your husband’s account. It must be said this
is an
unusual practice, financial transactions in the contract of sale of
immovable property are handled by the conveyancer.
Your
failure to furnish me with the firm of attorneys handling this
transfer and receipt of the purchase price immediately after
the
conclusion of “sale agreement” has left my office to
conclude that you defrauded Ms Malibeni herein.
You
are therefore advised that in terms of Item 14 (6) (b) of the Code of
Conduct applicable to Councillors you have been removed
from office.”
53.
It is a
trite principle of law that procedural fairness in the form of the
audi
alteram partem
rule
presupposes that persons are given an opportunity to participate in
decisions that will affect them and, crucially, a chance
of
influencing the outcome of those decisions.
[27]
54.
Such
participation is a safeguard that not only signals respect for the
dignity and worthy of the participants but is also likely
to improve
the quality and rationality of administration decision making and to
enhance its legitimacy. As was stated by
Mokgoro J in De Lange
v Smuts N.O.:
[28]
“
Everyone
has the right to state his or her case, not because his or her
version is right, and must be accepted, but because, in
evaluating
the cogency of any argument, the arbiter, still a fallible human
being, must be informed about the points of view of
both parties in
order to stand any real chance of coming up with an objectively
justifiable conclusion that is anything more than
chance.”
[29]
55.
Fairness is
a highly variable concept and what makes a hearing fair has always
depends on the circumstances.
Section 32
(2) of the
Promotion
of Administrative Justice Act, No. 3 of 2000
expressly recognizes
that a fair procedure “depends on the circumstances of each
case”.
[30]
In the
present instance the Code clearly sets forth the elementary
procedural standard that is required to safeguard the
rights of a
councillor who is suspected of being in breach of a provision of the
Code. Even recognizing and accepting the
first respondent’s
version that he was constrained to conduct his own investigation
under the relevant circumstances, the
provisions of items 14 and 13
mandate the process applicable, underscored by of sub-item (7) that
states in peremptory terms that
any investigation in terms of item 14
“must be in accordance with the rules of natural justice”.
[31]
56.
What the evidence demonstrated in
casu
is that the purported
investigation report on the face of it appears to be irregular and
self-evidently raises concerns that the
preliminary step envisaged by
sub-item (4) was not complied with
before
the applicant was
asked to make representations concerning the damning allegations
which surfaced for the first time on 27 November
2020, this despite
the fact that a suspicion and an allegation of a breach of Code is
quintessential to justify an investigation
in the first place.
57.
Further,
after providing the report to the applicant’s attorneys as a
basis for getting to that point, the record of decision
suggests that
the sworn statements in proof of those allegations were only obtained
after the applicant was placed on terms.
As Jolwana J remarked
in Masina
[32]
“investigation
is about establishing facts or confirming the veracity of allegations
so that appropriate action is taken”
which means that an
investigation properly undertaken cannot possibly be to the detriment
of anyone concerned. To the contrary
in this instance the record
appears to be bereft of a proper investigation into the specific
allegations which led to the applicant’s
removal as councillor
that instills comfort in one that the process undertaken was beyond
reproach.
58.
Further, even assuming that the applicant was in effect given the
chance to reply and exercise
her right to reply albeit after the fact
(co-incidentally through the assistance of her attorney), it appeared
to me that a review
court may well find that the obvious manner in
which the applicant’s right to procedural fairness was
undermined vitiates
the process employed by the first respondent to
achieve his objectives.
59.
I am also constrained to observe that the decision ultimately taken
by the first respondent to
remove the applicant may not have being
reasonable or rational.
60.
In weighing up the requirements for an interim interdict I was also
influenced by the fact that
the first respondent had condemned the
applicant as a “rogue councillor” (pejorative in itself)
and branded her as
a fraudster whereas the bases for these
allegations stem from hearsay allegations with the flimsiest of
detail nowhere near suggesting
criminal fraud.
61.
In the premises I concluded that the applicant enjoyed good prospects
of success in the anticipated
review application and that she stood
to be deleteriously impacted by the two highlighted consequences
flowing from her removal
unless I granted the interdict. Indeed, I
was taken in by Mr Nzuzo’s submission that it would be costly
to “reverse
transactions made consequent to the first
respondent’s impugned decision” if the pending review
(were) determined in
her favour. The absence of her benefits
arising from her appointment would also cause her penury.
62.
It is common cause that the second respondent at a council meeting
held on 27 January 2021 resolved
to note the decision of the first
respondent and by implication to implement same by stopping her
salary and allowances as of 27
January 2021. Evidently due to
claimed delays in processing her removal as a councillor the second
respondent was unable
to stop her February 2021 “salary”
in time from being paid to her but warned in a letter dated 2 March
2021 that this
would be deducted from any amounts owing to her by the
second respondent or alternatively would be deducted from her pension
and/or
retirement fund before any payments would be made to her.
63.
The alleged
urgency was premised on the consequences to the applicant of not
receiving payment of her salary and the knock-on-knock
effect of
that. Her medical aid would lapse, and she claimed that she had
a sick child and could not afford to be without
this benefit pending
the review. Although Mr. Phoshera sought to persuade me that
such a loss does not ordinarily warrant
the intervention of a court
on the basis of urgency, the more compelling consequence was the fact
that her removal created a vacancy
that was about to be filled by way
of the impending by-election. These two components of her status as a
councillor go hand in
hand and both were impacted by her removal
which she submitted had been caused by the first respondent’s
impugned decision
which ought not to stand. In any event the court
held in South African Informal Traders Forum and Others v City of
Johannesburg
and Others; South African National Traders Retail
Association v City of Johannesburg and Others
[33]
that the ability of people to earn money and support themselves and
their families is an important component of the right to human
dignity. Without it they faced “humiliation and
degradation” meaning that it is a vital interest worthy of
seeking
to protect on an urgent basis.
64.
On the
issue of costs, I was inclined of the view that these should depend
on the ultimate success of the intended review application.
[34]
Mr. Nzuzo submitted that I should make a special costs order against
the first and second respondents given their haste to
achieve their
“evil desires” by the questionable decision in the first
place and then failing to agree to hold off
the implementation
thereof pending the determination of the review application (despite
a purported undertaking given by the second
respondent that it would
not follow through with it in the meantime), but I am not in
agreement that the perceived undertaking
not to carry the
consequences of the decision into immediate effect, was read in
proper context.
65.
In this respect a letter put up by the second respondent’s
attorneys confirming the way
forward was ostensibly misunderstood by
the applicant. It reads as follows:
“
Our
instructions are that your client’s assertion that there are
attempts to fill her position are untrue and the law is clear
on how
to replace a councillor in her position.
Our client reiterates its
instructions that it will abide by the Court’s decision.”
66.
To my mind the second respondent meant nothing more than that the law
would take its course. The
fact that it expressed the view that the
vacancy being filled was not hers is neither here nor there.
67.
There was further no basis to conclude that the second respondent had
done an about turn as it
were by warning her in a letter dated 2
March 2021 that she should not expect any remuneration or benefits
going forward and that
the payment received in February 2021 was
simply because it had failed to process her removal in time.
68.
The reserved costs of 30 March 2021 remain reserved for final
determination at the hearing of
the review application. These
costs arose ostensibly because there was a defect in the first
respondent’s papers (Mr
Pitt who appeared for the applicant on
this day together with Mr Mhlanti submitted that I could not hear the
matter in the absence
of a properly commissioned affidavit by the
first respondent), but as pointed out by Mr. Phoshera the following
day once his client
had fixed the defect overnight, the applicant’s
papers also suffered from a shortcoming in that the applicant had not
initialed
each page of her replying affidavit. To my mind these were
technical issues which did not detract from the substantive issues on
hand which the applicant ironically had asked the court to adjudicate
upon urgently.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF APPLICATION: 31 March 2021
DATE
OF RULING: 6 April 2021
DATE
OF REQUEST FOR REASONS: 9 April 2021
DATE
OF REASONS: 13 May 2021
*Reasons
delivered electronically on this date by email to the parties.
APPEARANCES
:
For the applicants:
Mr. S Nzuzo instructed by Godongwana Pakade Attorneys, East London
(ref. Mr. Godongwana)
For
the first respondent: Mr. Phoshera instructed by the State Attorney,
East London (ref. Mr Ngwenya).
For
the second respondent: No appearance.
[1]
The
review application was issued on 2 February 2021.
[2]
The
Code was established, according to the Preamble to the Schedule, in
order to ensure that councillors fulfil their obligations to their
communities and support the achievement by the municipality
of its
objectives set out in section 19 of the Municipal
Structures Act, No. 117 of 1998.
[3]
What
the alleged breaches were in exact terms, the fact and circumstances
of which required investigation, is not stated.
[4]
What
these are are not stated with any clarity.
[5]
2014
(4) SA 271
(CC) at par 25.
[6]
Webster
v Mitchell
1949 SA 1186
(W) at 1189.
[7]
Eriksson
Motors (Welkom) v Protean Motors, Warrenton
1973 (3) SA 685
A at 961
F – G.
[8]
Eriksson
Motors (Welkom)
supra
at 619 F – G and 11 LAWSA 408, page 423.
[9]
(223/2020) [2020] ZAECBHC 21 (5 November 2020).
[10]
Reading
from the first respondent’s affidavit he did not think it
necessary to invoke these provisions until the investigation
in the
hands of the municipal council had reached a stalemate. That
eventuality on the first respondent’s own timeline
happened
after the death of the Speaker Mr Mtsi so it is surprising that an
investigation report compiled ostensibly before then
references
these powers.
[11]
This
person was not identified. It is also not clear if he/she is
the same A.Z. Bokwe who evidently prepared the report
and who would
have been appointed by the first respondent to investigate a breach
of the Code’s provisions.
[12]
I
expect that this is a reference to community development workers and
can only relate to the concerns about the distribution
of food
parcels.
[13]
The
sworn statements and reports here referenced are not pertinently
identified by the first respondent but again from the context
they
seem to relate to the distribution of the food parcel complaints.
[14]
One
looks in vain for the corresponding allegation of a breach of the
Code that led to the “findings” in the second
paragraph
of the excerpt.
[15]
Annexure
“GG1” to the applicant’s replying affidavit.
[16]
The
investigation report notes that these responses were obtained via
the speaker of the second respondent who was requested by
the first
respondent to prevail upon them to reply to the allegations levelled
against them.
[17]
It
appears from Annexure GG1 to the applicant’s replying
affidavit that the issue or complaint against the applicant was
dealt with conclusively on the basis of what was reported to the
Office of the Premier,
viz
that the “Cllr included all the ward committees and political
parties’ representatives. We have intervened
as Troika
for purposes of solving a problem at Ward 20. At the moment we are
busy handling the matter with affected community
members”.
This report to the Premier is unfortunately also undated. Reference
is further made to an annexure “C”
to the report which
was not attached to the applicant’s papers.
[18]
This
makes absolutely no sense.
[19]
See
firstly section 21(1)(b) of the Structures Act which cross
references section 158 (1)(c), read together with the provisions
of
section 47 (1) of the Constitution.
[20]
The
notice is addressed to councillor Witbooi incidentally although its
contents appear to concern the applicant herself.
[21]
I
assume that this relates to the food parcel investigation which the
applicant says was concluded without any adverse outcome
against
her. Indeed, the first respondent is silent regarding the
upshot of these allegations that were investigated against
her which
seems to suggest that nothing negative came of them.
[22]
Again,
this must be a reference to the food parcel corruption allegations.
[23]
Indeed,
given the anomalies with the investigation report highlighted above,
this does not appear to be an authentic contemporaneous
report by
Mr./Ms. Bokwe in relation to the allegations which costs her her
appointment as ward councillor. It appears to
me that the
supposed investigation by the first respondent was tacked on to the
earlier report, or that a cut and paste template
was used that
unfortunately gives the impression of an irregularity.
[24]
Incidentally,
the deed of sale relates to Erf 1962, NU5, Mdantsane, a totally
different property than the one referred to in the
affidavit by Ms.
Magela. The purchase price is also stated to be in the sum of
R310 000.00. Costs of transfer
are expected to be paid by
the purchaser and the transfer clause suggests that property shall
be passed by the conveyancer and
shall be given and taken upon the
purchaser having complied with her obligations to pay both the full
purchase price and the
costs of transfer. Vacant occupation of
the property was to be given by 30 June 2018.
[25]
Incidentally
in paragraph 58.9 of his answering affidavit he asserts that it was
proved that the applicant was in breach of item
2
(a)
and (b)
of the Code.
[26]
This
is evidently the first heard of any complaint by the purchaser
herself, not in the form of a sworn affidavit.
[27]
Administrative
Law in South Africa, Cora Hoexter, 2
nd
Ed at page 363 (See also footnote 5 on that page.)
[28]
1998
(3) SA 785 (CC).
[29]
Supra
at
para
131
[30]
Hoexter
supra
at pages 364 - 365
[31]
See also the provisions of section 27 (d) of the Structures Act
which stipulates that a councilor vacates office during a term
if
he/she contravenes a provision of the Code and is removed from
office “
in
terms of the Code
”.
[32]
Supra
at
para [38].
[33]
Supra
,
at [31]. See also Mpumulanga Economic Growth Agency v Mthembu Qiniso
Christocentric ZALCJHB 2015/352 at paras [7] and [8].
[34]
The
review court may well adopt the approach that despite any
shortcomings in the process the applicant was meaningfully heard
and
that her input warranted the decision to remove her.