The Speaker: OR Tambo District Municipal and Another v Madzidzela and Others (2417/21) [2021] ZAECMHC 18 (18 June 2021)

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[2021] ZAECMHC 18
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The Speaker: OR Tambo District Municipal and Another v Madzidzela and Others (2417/21) [2021] ZAECMHC 18 (18 June 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, MTHATHA)
Case
No: 2417/21
In
the matter between:
THE
SPEAKER: O R TAMBO DISTRICT MUNICIPAL
First Applicant
O
R TAMBO DISTRICT
MUNICIPALITY
Second Applicant
And
LUYANDA
MADZIDZELA
First
Respondent
THOKOZILE
SOKHANYILE
Second
Respondent
FEZEKILE
MPHAKO
Third
Respondent
JUDGMENT
TOKOTA
J:
[1]
The relief sought by the applicants is twofold: In part A, they seek
an order in terms
whereof:
(a)
the first respondent is restrained and interdicted from performing
any duties and functions of
an Acting Municipal Manager at the O R
Tambo District Municipality;
(b)
a declaratory order is made declaring the decision taken by the
second applicant on 22 May
2021 suspending the first respondent to be
of full force and effect;
(c)
ordering the second respondent to pay costs of the application in her
personal capacity.
Only
the relief sought in (a) and (c) was pursued during argument. The
relief sought in part B is to be heard in due course and therefore
is
not relevant for purposes of this judgment.
[2]
The second respondent (the Mayor) is resisting the application and
has brought a counter-application
seeking an order that:
(a)
the decision to convene meetings, and consequent resolutions taken
thereat by the municipal
council of O R Tambo District Municipality
(O R Tambo Municipality), held on 22 and 26 May 2021, be reviewed and
set aside as unlawful;
(b)
the Speaker of O R Tambo (the Speaker) be ordered to issue a notice,
within five days of this
order, convening a special council meeting
of the second applicant at which the removal of the Speaker and
Deputy Executive Mayor
of the second respondent and the appointment
of the Acting Municipal Manager shall be debated;
(c)
in the event the Speaker fails to convene such meeting referred to
above within the specified
period then in that event the first
respondent shall convene such meeting;
(d)
the first applicant be ordered to pay costs of the counter
application on attorney and client
scale
de
bonis propriis
together with the second applicant jointly and severally the one
paying the other to be absolved.
Factual
background:
[3]
On 2 May 2018 a former Municipal Manager one Mr Owen Hlazo was
dismissed by O R Tambo
Municipality. Mr Hlazo unsuccessfully
challenged his dismissal in the Labour Court. He then turned to this
court and on 4 May 2021,
this court upheld his challenge and ordered
that he be reinstated to his former position. On 5 May 2021, O R
Tambo Municipality filed
an application for leave to appeal the order
and when Mr Hlazo reported for duty to render his services on that
day he was informed
that the O R Tambo Municipality has applied for
leave to appeal. He then left the offices and did not come back on 6
May 2021.
[4]
On 26 February 2021 the Municipal Council appointed Ms Dunywa as
Acting Municipal Manager
for a period of three months commencing from
1 March 2021 to 31 May 2021.
[5]
On 21 May 2021 the Mayor issued a circular informing the senior
managers that she had
appointed Mr Madzidzela, the first respondent,
as an Acting Municipal Manager with effect from 21 May 2021. On the
same day the Mayor
‘terminated’ the appointment of Ms Dunywa as
Acting Municipal Manager with immediate effect.
[6]
On 22 May 2021 the Municipal Council convened a special meeting
whereat the conduct
of the Mayor in ‘terminating’ the appointment
of Ms Dunywa and the appointment of Mr Madzidzela was deliberated.
The Council
reaffirmed its appointment of Ms Dunywa as Acting
Municipal Manager and resolved that Ms Dunywa should write a letter
to the Mayor
warning her to refrain from interfering with Council’s
decisions and in particular to inform the Mayor that the power to
appoint
an Acting Municipal Manager vested in the Council in terms
section 54A of the Local Government: Municipal Systems Act 32 on 2000
(the Systems Act). Further to inform the Mayor that in terms of
clause 43.2 of the Political Delegations Framework of the O R Tambo
Municipality the Executive Mayor has only “
the
power to recommend to Council the appointment of a Municipal Manager
and, when necessary, the Acting Municipal Manager when the
position
of the Municipal Manager becomes vacant
.”
[7]
On 28 May 2021 the Mayor attended a budget Steering Committee meeting
where, in defiance
of the Council’s decision, she introduced Mr
Madzidzela as the Acting Municipal
Manager. Mr Madzidzela made
representations under items relevant to the Acting Municipal
Manager’s portfolio in that capacity.
Lawfulness of the
meeting of 22 May 2021:
[8]
The Mayor contends that the following Local Municipalities had
replaced their councillors
at O R Tambo District Municipality;
Ingquza Hill, Nyandeni, King Sabata Dalindyebo and Port St John’s.
There is a serious dispute
as to whether the elected councillors who
were deployed by these municipalities were properly replaced. The
Mayor contends that at
the meeting of the Council on 22 May 2021 and
26 May 2021 convened by the Speaker the new councillors were not
invited. She submits
therefore that for this reason those meetings
were not lawfully convened and therefore resolutions taken thereat
are invalid.
[9]
The Mayor has listed 13 “councillors” who she claims were not
invited and should
have been invited to the meetings of 22 May 2021
and 26 May 2021. The Speaker contends that he invited all the
officially recognised
councillors to the meetings. He contends that
the people mentioned by the Mayor are not councillors of the
Municipality and do not
appear in the register thereof and therefore
he was not obliged to invite them.
[10]
The status of these so-called councillors is the subject matter of a
pending case under case number 1995/21
where the Independent
Electoral Commission (IEC) is challenged for placing these people as
councillors where no vacancies existed.
[11]
The first respondent, Mr Madzidzela, sent names under cover of a
letter to the IEC on 4 March 2021 purporting
to act as an Acting
Municipal Manager where he informed the IEC that vacancies existed
and that the names were for the newly elected
councillors. When this
was brought to the notice of the Speaker, he immediately convened a
special meeting on 5 March 2021. It was
at this meeting that the
Council once again reaffirmed the appointment of Ms Dunywa as the
Acting Municipal Manager in line with
the decision of 26 February
2021.
[12]
After the expiry of three months i.e. 31 May 2021 the Council
appointed the third respondent to act as
a Municipal Manager with
effect from 1 June 2021. As a result of the conduct of the Mayor and
Mr Madzidzela, the Council resolved
to suspend Mr Madzidzela and that
the conduct of the Mayor be investigated.  Notwithstanding his
suspension, Mr Madzidzela is
still masquerading as an Acting
Municipal Manager.
[13]
In the letter dated 4 March 2021 addressed to the IEC Mr Madzidzela
represented himself as the Acting
Municipal Manager. He informed the
IEC,
inter
alia,
that
“
O R Tambo District Municipality notes
and approves the replacement of local representatives to the district
council. In line with
the contents of the correspondences and
resolutions of O R Tambo District Municipality declares the vacancies
and requests the IEC
to process the referred replacements."
Signed L Madzidzela
Acting
Municipal Manager
[14]
Although no letter of appointment could be traced in this regard, it
is common cause that the Mayor appointed
Mr Madzidzela as an Acting
Municipal Manager for two days from 4 March 2021 to 5 March 2021
hence he described himself as such to
the IEC. The challenge of this
appointment by the second applicant is contained in prayer 2 of the
notice of motion in case number
1995/21. It is also common cause that
the Council never appointed Mr Madzidzela as an Acting Municipal
Manager. The second appointment
of Mr Madzidzela by the Mayor was
that of 21 May 2021. At all times material, the appointment of Ms
Dunywa was still in place. Mr
Bodlani
who together with Mr
Ntikinca
appeared for the Mayor, contended that when Mr Hlazo came back on 5
May 2021 he effectively nullified the acting appointment of Ms
Dunywa.
[15]
On 22 May 2021 the Council resolved to appoint the third respondent
for a period of three months as Acting
Municipal Manager taking over
from Ms Dunywa effective from 1 June 2021. In this meeting, the
Council further resolved that the Mayor
be placed on special leave
pending an investigation by the special ad-hoc committee. It resolved
further that Mr Madzidzela be suspended
from duty pending the
finalisation of a disciplinary process against him.
[16]
Pursuant to the meeting alluded to above on 26 May 2021 Ms Dunywa
addressed a letter to Mr Madzidzela
suspending him with immediate
effect pending the outcome of a disciplinary process against him. Mr
Madzidzela has ignored the suspension
and is performing his duties as
an Acting Municipal Manager hence he made representations at the
budget Steering Committee under
items listed for Municipal Manager’s
portfolio on 28 May 2021.
[17]
The net result of the current situation at O R Tambo Municipality is
that there are two incumbents acting
as Municipal Managers in a post
of one incumbent. I am therefore effectively called upon to pronounce
that Mr Madzidzela was not
lawfully appointed as Acting Municipal
Manager and therefore he must be interdicted from acting as such.
[18]
Mr
Solomon SC,
who together with Ms
Haskins,
appeared for the applicants, submitted that the applicants seek an
interim order interdicting Mr Madzidzela from performing any duties
and functions of an acting Municipal Manager of the O R Tambo
Municipality. Further I should make a declaratory order that his
appointment
as such by the Mayor was invalid and of no force and
effect.
[19]
Mr
Bodlani,
submitted that the initial case of the applicants was that the Mayor
did not possess powers to appoint an Acting Municipal Manager.
This,
case changed, so the argument ran, as the replying affidavit was
filed. The new case brought about by the applicants is that
while the
Mayor had the power to appoint she did not exercise that power in
concert with the Executive Mayoral Committee. I am not
sure whether
anything turns on this argument in light of the view I take of this
matter. First, no application to strike out the
new point as a new
matter was made. Second, the Mayor has responded by filing an
additional affidavit to deal with the so-called
new matter. Third, it
seems to me in any event, that to analyse the point in that way would
amount to splitting hairs. To say that
the Mayor had no power to
appoint the Acting Municipal Manager must of necessity include the
failure to take the decision with the
Executive Mayoral Committee.
[20]
Mr
Bodlani
contended
that the holding of the meetings of 22 May 2021 and 26 May 2021 at
which the decisions were taken was unlawful and invalid
because of
the fact that councillors who should have been invited to the
meetings were not invited by the Speaker. Mr
Solomon
on the other hand submitted that the Speaker was not obliged to
invite the councillors referred to by the Mayor on the grounds that
they were not registered councillors of O R Tambo Municipality. He
argued further the inclusion of these councillors in the O R Tambo
Municipality was the subject matter of a pending litigation in this
court in case number 1995/2021. In that case the parties are,
inter
alia
O R Tambo Municipality and the
disputed councillors including the IEC.
[21]
I deem it expedient to set out fully the relief sought in case number
1995/21 excluding the prayer for
urgency and costs the relief sought
there is an order:
“
2.
That the second respondent’s appointment on 3 March 2021 of Mr
Madzidzela as the Acting
Municipal Manager for two days on 4
and 5 March 2021 (the appointment) of the applicant was in direct
contravention of the
applicant’s Council resolution of 26 February
2021 was inconsistent with the Constitution of the Republic of South
Africa, 1996
and invalid;
3.
Reviewing and setting aside the appointment;
4.
Declaring the first respondent decision to replace eighteen of the
applicant’s
councillors (the replacement) and the publication on 15
April 2021 of such replacements in the Government gazette was
inconsistent
with the constitution and invalid;
5.
Reviewing and setting aside the replacement.”
From
the above it is obvious that the validity of the appointment of Mr
Madzidzela for two days by the Mayor and the replacement of
the
disputed councillors are challenged.
[22]
At the hearing of this matter I invited both Counsel to address me as
to why I should make a ruling on
the validity of the impugned
meetings in this matter in view thereof that there is a pending
dispute in relation to the replacement
of councillors in another
court. Mr
Solomon
submitted that the dispute about the replacement of councillors is
lis pendens
in case number 1995/2021. Furthermore, he submitted as a matter of
fact that this dispute is
res judicata
in that in case number 1029/2021 Nhlangulela DJP dismissed the
application for the recognition of these councillors on the basis
that there was a dispute of fact which could not be resolved on the
papers and the applicants did not ask for referral to oral evidence.
[23]
Mr
Bodlani
submitted
that the dispute is not
lis pendens
.
He argued that the relief sought in the matter before Nhlangulela DJP
is not the same as the present one and the parties are not
the same.
He argued that the impugned meeting was not the meeting of 22 May
2021 and 26 February 2021 but the meeting of 5 March
2021.
Furthermore, the order of Nhlangulela DJP is the subject matter of
the petition to the Supreme Court of Appeal.
[24]
The principle of
lis pendens
is trite. The substance of the principle and the object thereof is to
avoid a multiplicity of actions with all the inconvenience
and
expense that would be involved and to avoid conflicting judgments in
the same cause of action. In case number 1995/2021 Mr
Bodlani
submitted that the O R Tambo
Municipality seeks an order setting aside the replacement of the
councillors and the replacing councillors
brought a counter
application seeking an order declaring that the failure by the
Speaker to invite them in the meeting of 3 March
2021 was unlawful
and that they should be permitted to perform their duties as
councillors representing their local municipalities.
[25]
Mr
Bodlani
argued
that this court is not called upon to decide whether or not the
disputed councillors are councillors of O R Tambo Municipality.
What
this argument overlooks is that for me to decide whether or not the
disputed councillors should have been invited in the impugned
meetings it must first be established that they are councillors of O
R Tambo Municipality because the Speaker is only obliged to
invite
councillors of the Municipality. Once their legitimacy is challenged
that must be resolved first before I can decide that
the Speaker was
obliged to invite them. In my view, it matters not that the meeting
impugned in the other case was convened on 3
March 2021. There is no
substance in distinguishing these meetings. The point of dispute in
all of them is the failure to invite
these disputed councillors.
Furthermore, the replacement is the subject of dispute in the above
quoted case.
[26]
Mr
Bodlani
further
argued that on the authority of
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA)
the decision to replace
those disputed councillors remains valid until set aside by a court
of law. This debate may be shelved
for another day. In light of the
dispute which cannot be resolved on these papers as shown hereunder I
cannot declare that the meetings
held on 22 May 2021 and 26 May 2021
were unlawful.
Was the
appointment of Mr Madzidzela as acting municipal manager lawful?
[27]
In order to decide on the validity of appointment of Mr Madzidzela,
legislative framework must first be considered.
The Municipalities
derive their existence and powers from sections 151 to 163 of the
Constitution of the Republic of South Africa,
1996. Any National
Legislation regulating the exercise of the powers of the
municipalities must be in line with the Constitution.
[28]
Section 54A
of the
Local Government: Municipal Systems Act 32 of
2000
provides:
“
Appointment
of municipal managers and acting municipal managers
(1) The
municipal
council must
appoint-
(a)
a municipal manager as head of the administration of the municipal
council; or
(b)
an acting municipal manager under circumstances and for a period as

prescribed.
(2) ...
(2A) (a) A person
appointed in terms of subsection (1) (b) may not be appointed to act
for a period that exceeds three months.
(b) A
municipal
council
may, in special circumstances and on good cause shown,
apply in writing to the MEC for local government to extend the period
of appointment
contemplated in paragraph (a), for a further period
that does not exceed three months.
(3) A decision to
appoint a person as municipal manager, and any contract concluded
between the
municipal council
and that person in consequence
of the decision, is null and void if-
(a)
...
(b)
the appointment was otherwise made in contravention of this Act.
(4)
If the post of municipal manager becomes vacant, the
municipal
council must-
(a)
advertise the post nationally to attract a pool of candidates
nationwide;
and
(b)
select from the pool of candidates a suitable person who complies
with
the prescribed requirements for appointment to the post.
(11)
A person who has been appointed as acting municipal manager before
this section took effect, must be regarded as having been
appointed
in accordance with this section for the period of the acting
appointment.”`
It
is perhaps expedient at this stage to observe that the power to
appoint a Municipal Manager including Acting Municipal Manager
is
expressly conferred on the municipal Council. The acting appointment
of any person may not exceed three months unless approval
from the
MEC for the extension of the period has been obtained. I assume that
it was on this basis that Ms Dunywa’s appointment
was not extended
beyond three months.
[29]
Section 59
deals with delegations. It provides:
“
(1)
A municipal council must develop a system of delegation that will
maximise administrative and operational efficiency and provide
for
adequate checks and balances, and, in accordance with that system,
may-
(a)
delegate appropriate powers, excluding a power mentioned in section
160 (2) of the Constitution
and the power to set tariffs, to decide
to enter into a service delivery agreement in terms of section 76 (b)
and to approve or amend
the municipality's integrated development
plan, to any of the municipality's other political structures,
political office bearers,
councillors, or staff members;
(b)
instruct any such political structure, political office bearer,
councillor, or staff
member to perform any of the municipality's
duties; and
(c)
withdraw any delegation or instruction
.
(2) A delegation
or instruction in terms of subsection (1)-
(a)
must not conflict with the Constitution, this Act or the Municipal
Structures Act;
(b)
must be in writing;
(c)
is subject to any limitations, conditions and directions the
municipal council may impose;
(d)
may include the power to sub-delegate a delegated power;
(e)
does not divest the council of
the responsibility concerning the exercise of the power or the
performance of the duty;
and
[30]
Section 36 of Local Government: structures Act 117 of 1998 (the
Structures Act) deals with the
election of speakers and provides that
each municipal council must have a chairperson who will be called the
speaker.
The functions of the Speaker are
set out in section 37 and they are:
“
The
speaker of a municipal council-
(a)
presides at meetings of the council;
(b)
performs the duties and exercises the powers delegated to the speaker
in terms of section
59 of the Local Government: Municipal Systems
Act, 2000 (Act 32 of 2000);
(c)
must ensure that the council meets at least quarterly;
(d)
must maintain order during meetings;
(e)
must ensure compliance in the council and council committees with the
Code of Conduct
set out in Schedule 1 to the Local Government:
Municipal Systems Act, 2000 (Act 32 of 2000); and
(f)
must ensure that council meetings are conducted in accordance with
the rules and
orders of the council.”
[31]
The functions of a Mayor are set out in section 49 of the Structures
Act as follows:
“
(1)
The mayor of a municipality-
(a)
presides at meetings of the executive committee; and
(b)
performs the duties, including any ceremonial functions, and
exercises the powers
delegated to
the mayor by the municipal council or the executive committee
.”
[32]
Mr
Bodlani
persisted
that the appointment of Mr Madzidzeni was lawful in that the Mayor
was authorised by means of a delegation to appoint the
Acting
Municipal Manager. He contended that the decision of the Mayor
remains valid until set aside by a court of law. In this regard,
he
relied on
Oudekraal’s
case quoted above. On the other hand, Mr
Solomon
argued that the Mayor did not have
authority to appoint the Acting Municipal Manager. He referred me to
the case of
Muldersdrift Sustainable
Development Forum v Council of Mogale City Local Municipality and
Others
[2015] ZASCA 118:
para [13]
[33]
As can be gleaned from section 54A (1)(b) the power to appoint an
Acting Municipal Manager vests in the
Municipal Council. In support
of the argument that the Mayor had no authority to appoint an Acting
Municipal Manager Mr
Solomon
relied
heavily on the case of
Mogale City Local
Municipality
supra
.
In that case, the SCA was dealing with an appointment of a Municipal
Manager. It concluded that the delegation of that power was
impermissible. In my view since the power to appoint an Acting
Municipal Manager is also vested in the Council in terms of section
54A(1)(b) of the Systems Act I see no distinction in this case from
that of
Mogale City Local Municipality
.
I did not understand Mr
Bodlani
to
be contending otherwise.
[34]
In my view reliance on
Oudekraal
is misplaced. The Mayor cannot act in contravention of the Systems
Act and expect this court to endorse such acts. It is trite law
that
anything done in contravention of the statute is unenforceable in a
court of law.
[1]
Mr Bodlani’s
argument can be dealt with by reference to the statement of Cameron J
in
Merafong City v AngloGold Ashanti Ltd
2017 (2) SA 211
(CC)
para 116
Where
he said
“
I
must state at the outset that Oudekraal is not authority for the
proposition that an invalid administrative act is binding as long
as
it is not set aside by a competent court. No court has the power of
converting an unconstitutional and invalid act with no legal
force
into a valid act with binding effect. This is so, it must be
stressed, because the Constitution is supreme and it declares
that
conduct inconsistent with it is invalid. That which is proclaimed to
be invalid by the Constitution cannot be overruled by any
court.
Courts are established and derive their powers from the Constitution
which is binding on all arms of government, including
the judiciary.”
[35]
Courts are obliged in terms of the Constitution to ensure that all
branches of the State in the performance
of their public duty act
within the parameters of the law and anything contrary thereto will
not be enforced.
[2]
Consequently, I hold that the Council was not entitled to delegate
the power to appoint Acting Municipal Manager to the Mayor.
Accordingly,
the appointment of Mr Madzidzela by the Mayor was
unlawful for this reason alone.
[36]
In any event even if the Council had authority to delegate its power
to the Mayor, which I hold it did
not have, the Mayor had no right to
exercise that power in the face of the existing appointment of Ms
Dunywa having already been
made by the Council. In terms of section
59(2)(e) the Council was still entitled to exercise this power itself
notwithstanding any
delegation.
[37]
The Mayor contends that the meeting of 22 May 2021 at which the third
respondent was appointed was unlawful
by reason of the exclusion of
certain Councillors in that meeting. She contends that it is her
appointment of 24 May 2021 of Mr Madzidzela,
which is valid. I have
already found that the delegation was unlawful and that she was not
entitled to override the Council’s appointment.
[38]
In my view there is no legal basis for contending that the meeting of
22 May 2021 was unlawful. There
is no statutory sanction to the
effect that if certain disputed councillors are not invited to a
meeting such a meeting is unlawful.
Furthermore, there is no
contention that there was no Coram in that meeting. However, for
purposes of this judgment I refrain from
deciding the status of the
disputed councillors. I agree with Nhlangulela DJP that the dispute
is so serious that it cannot be resolved
on the papers. In support of
the Mayor, thirteen people have deposed to affidavits contending that
they had replaced certain councillors
in their respective local
municipalities. Again, in support of the Speaker thirteen councillors
have deposed to affidavits denying
that they had been replaced.
Consequently, in the absence of the resolution of the dispute of fact
I must reject the argument that
the councillors have been replaced.
[39]
What attracts curiosity in this whole saga is the conduct of the
Mayor. On 3 March 2021, the Mayor appointed
Mr Madzidzela as the
Acting Municipal Manager for two days. The appointment was to
commence on 4 March 2021 and to end on 5 March
2021. On 4 March 2021,
Mr Madzidzela wrote a letter to the IEC stating that the Council had
approved the replacements of the councillors
from various local
municipalities and requested the IEC ‘
to
process the referred replacements’.
At that time Ms Dunywa was still the Acting Municipal Manager. The
inference is irresistible that the Mayor appointed an additional
Acting Municipal Manager in order to request the IEC to replace
councillors. In my view, the applicants are entitled to the
restraining
order sought.
Counter-application:
[40]
This brings me to the counter-application. The Mayor seeks an order
nullifying the decisions taken by
the Council at the meetings of 22
and 26 of May 2021 by reason of failure to invite the disputed
councillors. In order to succeed
the Mayor must show that the
disputed councillors are indeed councillors of the local
municipalities and therefore were entitled
to be invited to the
meetings. Secondly, it must be established that failure to invite
them to those meetings rendered the decisions
taken thereat null and
void in terms of the Structures Act or any statutory provision.
Furthermore, the Mayor does not contend that
the meetings took place
in the absence of a Coram as required by the Structures Act.
[41]
I have already dealt with the decisions, which were taken at the
meeting of 22 May 2021 I have made a
finding that I cannot pronounce
that the meeting was unlawful because of the dispute of fact.
[42]
As regards the meeting of the 26
th
of May 2021 there is no record of such a meeting and the Mayor has
not pointed out to any resolutions in relation to that date. What
the
Mayor is saying is that on 26 May 2021 councillors of the second
applicant convened a meeting in anticipation that the first
applicant
would convene that meeting. She does not take the matter any further
than that.
[43]
As regards the meeting of 26 May 2021 no resolution has been put
forward which is alleged to be unlawful.
In any event, the same
reasoning in relation to the meeting of 22 May 2021 would apply here.
[44]
In terms of section 30 of the Structures Act a majority of the
councillors must be present at a meeting
of the Council before a vote
may be taken on any matter. Subsection (3) provides that all other
questions before a Municipal Council
must be decided by a majority of
the votes cast, subject to section 34. I have not been referred to
any statutory requirements, which
would render the impugned meetings
unlawful. Above all in the midst of the conflicting evidence relating
to the replacements of councillors
and in the light of failure to
request a referral to oral evidence I have decided to reject the
so-called newly elected councillors.
Consequently, the Mayor cannot
succeed on this prayer.
[45]
In addition to the above the Mayor has asked this court to make an
order compelling the Speaker to issue
a notice, within five days of
this order, convening a special Council meeting of the second
applicant at which the removal of the
Speaker and Deputy Executive
Mayor including the appointment of the Acting Municipal Manager shall
be debated. In the event the Speaker
fails to convene such a special
meeting within the stipulated period the Mayor or any other person be
authorised to convene it.
[46]
With regard to the above prayer the Mayor stated that the councillors
have petitioned the Speaker for
the special meeting. In terms of
section 18(2) of the Structures Act, a Municipal Council must meet at
least quarterly. In terms
of section 29(1) it is the duty of the
speaker of a Municipal Council to decide when and where the Council
meets subject to section
18 (2), but if a majority of the councillors
requests the speaker in writing to convene a council meeting, the
speaker must convene
a meeting at a time set out in the request to
debate the matter referred to in the request. In terms of Rule 9 of
the Standing Rules
where there is a request of a special meeting of
the Council the Speaker must give at least forty eight hour notice
before the start
of the meeting.
[47]
The Speaker denies that the notice complied with the statutory
requirements. He maintains that the petition
was not signed by a
majority of councillors. The names on the petition included the names
of the disputed councillors and that the
dispute in relation thereto
is pending in this court. Out of 29 people who petitioned only 20
names appeared in the register as councillors.
The petition therefore
was not signed by a majority of councillors. Furthermore, the
inclusion of the disputed councillors in the
petition had an effect
on the validity of the petition. In the circumstances, this prayer
has to be refused as well.
Costs:
[48]
What remains is a question of costs. The general rule is that costs
should follow the event. The court
however, depending on facts of
each case, has a discretion in this regard. Both parties have asked
for costs
de
bonis propriis
in the event of succeeding in the case. Mr
Bodlani
has
argued that the principle regarding costs in
Biowatch
[3]
supra
was applicable. He submitted that the matter involved constitutional
issues and therefore the State would not be entitled costs in
the
event of succeeding.
[49]
Generally in cases where a public official of the organ of State is
acting in his/her official capacity
costs are borne by that organ of
State. However, the conduct of the official concerned may turn the
scale and invite court’s attention
to that conduct to decide
whether the conduct is reprehensible or that he acted in the
furtherance of his interests rather than the
interests of the State.
Where an official acts in bad faith or is grossly negligent, the
courts will visit him/her with cost orders
in his/her personal
capacity.
[50]
In this case the following can be noted in the conduct of the Mayor:
On 3 March 2021 despite the presence
of an Acting Municipal Manager,
she appointed her own manager, and, immediately thereafter, a letter
was written to the IEC to change
the face of the O R Tambo
Municipality councillors. This appointment appears to have been done
for this purpose hence there is no
explanation why, in the face of an
existing Acting Manager, an additional manager was appointed.
Secondly, there is no explanation
why the appointment was for only
two days. Furthermore, the Council had appointed an Acting Manager
but despite knowledge thereof,
the Mayor went around introducing Mr
Madzidzela as the Acting Manager.
[51]
On 21 May 2021 she issued circular informing senior managers that Mr
Madzidzela was the Acting Municipal
Manager and on 28 May 2021, she
allowed him to play a role of an Acting Manager in the Budget
Steering Committee. On 21 May 2021,
she arrogated to herself the
power she did not have by terminating the Council’s appointment of
Dunywa as an Acting Municipal Manager.
Her fight appears to be the
removal of the Speaker and her deputy. The reasons for this action
have not been disclosed in the papers.
It seems to me that this is a
fight for positions rather than furthering the service delivery of
the Municipality. In terms of Structures
Act, her functions are
limited to presiding in executive meetings and performance of
delegated work. She abused her position as the
Mayor and acted in
flagrant disregard of her constitutional duties. She was obliged to
respect the Council’s decisions and to set
an example to members of
the staff of the Municipality.
[52]
In litigations between the government and a private party seeking to
assert a constitutional right, the
Constitutional Court established
the principle that ordinarily, if the government loses, it should pay
the costs of the other side,
and if the government is successful,
each party should bear its own costs.
[4]
This is the point Mr
Bodlani
was trying to advance.
[53]
Mr
Bodlani
argued that this matter ‘implicates’ constitutional issues. He
submitted that if the counter- application is successful the Mayor
would be entitled to her costs. I cannot understand this argument if
reliance is placed on
Biowatch.
I was under the impression that the Mayor has brought the
counter-application in her official capacity and not as an ordinary
private
individual. This aspect was not made clear either in papers
or during argument hence the request for an order
de
bonis propiis
.
[54]
In my view the relevant case in this matter is that of
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC):
In
that case it was said:
“
[t]he
imposition of a personal costs order on a public official, like the
Public Protector, whose bad faith or grossly negligent conduct
falls
short of what is required, vindicates the Constitution. The Supreme
Court of Appeal in Gauteng Gambling Board opined that public
officials who act improperly in 'flagrant disregard of constitutional
norms' should be personally liable for legal costs incurred
by the
state. The Supreme Court of Appeal reasoned that the imposition of
personal liability might have a 'sobering effect on truant
public
office bearers' and would avoid the taxpayer ultimately having to
bear those costs.
[159]
The fears that the Public Protector has about the impact of a
personal costs order on the institution of the Public Protector
are
unwarranted. Personal costs orders are not granted against public
officials who conduct themselves appropriately. They are granted
when
public officials fall egregiously short of what is required of them.
There can be no fear or danger of a personal costs award
where a
public official acts in accordance with the standard of conduct
required of them by the law and the Constitution.” [
Footnotes
omitted]
[55]
The above
ratio
takes care of the
Biowatch
argument. In my view, this fight at the O R Tambo Municipality ought
to be discouraged by making the losing parties who are grossly
in
violation of their constitutional duties to fill the chilling effect
of the litigation risks rather than depleting the public
purse, which
is so hopelessly needed for the service delivery.
[56]
In the result the following order is made:
1.
The first respondent is hereby interdicted and restrained from
performing any duties
and
functions of an Acting Municipal Manager of O R Tambo District
Municipality;
2.
The second respondent’s appointment of the first respondent dated
21 May 2021
as an Acting Municipal manager for O R Tambo District
Municipality is hereby declared invalid and of no force and effect.
3.
The second respondent is ordered to pay costs of the application in
her personal
capacity and such costs are to include costs of two
Counsel
4.
The counter-application is dismissed with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For the
applicants:
R
Solomon SC
L
Haskins
Instructed by Mvuzo
Notyesi Inc.
Mthatha
For the second
respondent:
A Bodlani
N
Ntikinca
Instructed by T L
Luzipho Attorneys
Mthatha
Date
Heard:
11 June 2021
Date delivered

18 June 2021
[1]
Municipal
Manager: Qaukeni Local Municipality and Another v FV General Trading
CC
2010 (1) SA 356
(SCA) ([2009] ZASCA 66): para [16] ; Valor
It v Premier, North West Province and Others
2021 (1) SA 42
(SCA) para.41; Premier, Free State, and Others v Firechem Free State
(Pty) Ltd
2000 (4) SA 413
(SCA) ([2000]
3 All SA 247
;
[2000]
ZASCA 28)
para 30; Eastern Cape Provincial Government and Others v
Contractprops 25 (Pty) Ltd
2001 (4) SA 142
(SCA) ([2001]
4 All
SA 273)
paras 8 – 9.
[2]
My
Vote Counts NPC v Speaker of the NA
2016 (1) SA 132
(CC)
(2015
(12) BCLR 1407
;
[2015] ZACC 31)
para. 152; Merafong Demarcation
Forum v President of the RSA
2008 (5) SA 171
(CC)
(2008 (10)
BCLR 969
;
[2008] ZACC 10)
para.262
[3]
Biowatch
Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232
(CC)
[4]
Affordable
Medicines Trust and Others v Minister of Health and Others
2006
(3) SA 247
(CC)
(2005 (6) BCLR 529
;
[2005] ZACC 3)
at para 139.