Oliver Reginald Tambo District Municipality v Independent Electoral Commission and Others (1995/2021) [2021] ZAECMHC 31 (24 August 2021)

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[2021] ZAECMHC 31
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Oliver Reginald Tambo District Municipality v Independent Electoral Commission and Others (1995/2021) [2021] ZAECMHC 31 (24 August 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: 1995/2021
In
the matter between:
OLIVER
REGINALD TAMBO DISTRICT
MUNICIPALITY
Applicant
and
INDEPENDENT
ELECTORAL COMMISSION
First
Respondent
EXECUTIVE MAYOR,
O R TAMBO DISTRICT
MUNICIPALITY
Second
Respondent
AND
OTHERS
Third
to Forty Third Respondents
JUDGMENT
BROOKS
J:
[1]
The applicant is a district municipality as described in section 155
(1) of the Constitution
[1]
, that
has municipal executive and legislative authority over an area that
includes the local municipalities cited in the application
as the
39
th
to 43
rd
respondents and that falls within the geographical area of
jurisdiction of this court.
[2]
The first respondent is a chapter 9 institution
[2]
responsible for elections within the Republic of South Africa.
[3]
The second respondent is cited in his official capacity as the
executive mayor of the
applicant. He holds office within the
applicant and has certain duties and obligations to the applicant.
The application papers focus
inter alia
upon the consequences of a failure on
his part to discharge the duty and obligation to implement with
accuracy resolutions taken by
the applicant’s council.
[4]
Apart from the 39
th
to 43
rd
respondents, the local municipalities that share municipal executive
and legislative authority in their respective areas with the
applicant, the remaining respondents are either councillors of the
applicant or employees of one of the 39
th
to 43
rd
respondents.
[5]
In the notice of motion the applicant seeks the following relief:
1.
That the applicant be granted leave to
bring this application as one of urgency in terms of rule 6 (12) of
the Uniform Rules of Court
and that time frames for serving and
filing be dispensed with;
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’s 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;
6.
Those respondents who oppose this
application are ordered to pay costs of this application jointly and
severally with the one paying
the others to be absolved from
liability;
7.
Granting such further and/or alternative
relief as this Honourable Court may deem meet.
[6]
The application has been opposed by the 3
rd
,
4
th
,
5
th
,
6
th
,
10
th
and 11
th
respondents, as well as the 39
th
to 43
rd
respondents.
[7]
Some of the persons who would be affected by the grant of an order in
accordance with
prayers 4 and 5 of the notice of motion have brought
counter-applications against the applicant, the 21
st
to
26
th
respondents and the 29
th
to 43
rd
respondents. The relief set out therein can be amalgamated and
summarised as follows:
1.
That the failure by Oliver Reginald Tambo
District Municipality to invite the applicants to the meetings of its
municipal council,
to accord and extend to the applicants the status
of the municipal councillors who represent [the relevant local
municipality] in
the municipal council of Oliver Reginald Tambo
District Municipality, with effect from 03 March 2021, be and is
hereby declared unlawful;
2.
That the counter-applicants be and are
hereby forthwith permitted to discharge the functions of municipal
councillors who represent
[the relevant local municipality] in the
municipal council of Oliver Reginald Tambo District Municipality,
unreservedly in accordance
with the law;
3.
That Oliver Reginald Tambo District
Municipality, acting through anyone of its officials, political
office bearers or otherwise, be
and is hereby interdicted and
restrained from, in any manner whatsoever unlawfully taking steps
and/or failing to take steps, the
effect of which would be to denude
the applicants of the authority, power and status which the position
of municipal councillors
who represent [the relevant local
municipality] in the municipal council of Oliver Reginald Tambo
District Municipality confers on
them;
4.
That the meetings and resolutions taken in
the meetings of the municipal council of Oliver Reginald Tambo
District Municipality on
5 March 2021, 10 March 2021, 17 April 2021
and 07 May 2021 be and are hereby reviewed, set aside and declared
unlawful;
5.
Directing Oliver Reginald Tambo District
Municipality and any other respondent who opposes the relief sought
in the counter-application
to pay the costs of the
counter-application on an attorney and client scale.
6.
That such further and/or alternative relief
as this Court may deem fit be granted in the applicants’ favour.
[8]
The counter-applications are opposed by the applicant in the main
application.
[9]
It is unnecessary to set out in detail the time frames that were
contained in the notice
of motion. It is sufficient for present
purposes to record that in the notice of motion the applicant
included a prayer seeking leave
of the court to bring the application
as contemplated in rule 6 (12) of the Uniform Rules of Court, that is
as an urgent application.
In response to the service of the main
application, those respondents who decided to oppose the relief
sought by the applicant ensured
that notices of opposition, answering
affidavits and the notices of their counter-applications were served
and filed within a truncated
time period. Indeed, it was at the
instance of certain respondents that the matter was enrolled for
hearing through the office of
the registrar of this court. Initially,
the matter was allocated to the opposed motion court roll in this
court for 2 December 2021.
Subsequent to an approach being made to
the acting deputy judge president, who entertained the matter in
accordance with current
case flow management principles and
practices, an agreement was reached by the attorneys of record
representing the various parties.
Pursuant thereto, a directive was
issued on 19 July 2021 in the following terms:
By agreement between
the parties the following order is made:
1.
The matter is brought forward and set down
for 12 August 2021.
2.
The applicant is to deliver heads of
argument on or before 29 July 2021.
3.
The respondents are to deliver their heads
of argument on or before 5 August 2021.
4.
The parties are to file a joint practice
note on 6 August 2021.
[10]
It is a well-established principle that an applicant has to set forth
explicitly the circumstances which
he or she avers render the matter
urgent. More importantly, the applicant must state the reasons why it
is claimed that he or she
cannot be afforded substantial redress at a
hearing in due course.
[3]
These
requirements must be met in the allegations made in the founding
affidavit.
[4]
On behalf of the
39
th
to 43
rd
respondents it was argued that the main application fell to be
dismissed because the applicant had failed to make out a case for
urgency in the founding affidavit. It was submitted that not only did
it fail to set forth explicitly the circumstances which it
averred
rendered the matter urgent, but it failed to state reasons why it
claimed that it could not be afforded substantial redress
at a
hearing in due course. The argument was developed by placing reliance
upon the judgment in
Caledon
Street Restaurants CC v Monica D’Aviera
[5]
where the applicant was non-suited for its failure to accord the
respondent or her legal representatives proper respect by adhering
to
the time periods set out in rule 6 of the Uniform Rules of Court.
There the court held that it was irrelevant that at the time
the
matter was heard a full set of affidavits had been exchanged and the
respective parties were represented in court.
[11]
It is so that in the founding affidavit the applicant has failed to
deal specifically with the circumstances
upon which it relies in
seeking that the application be heard as a matter of urgency. It has
also failed to address the reason why
it would be unable to seek
redress at a hearing in due course. In my view, where the matter is
of such a nature that the court is
required to address allegations
pertaining to irregularities and illegality within the realms of
local, provincial or national governance,
but specific allegations
relating to urgency are not made in the founding affidavit, it
remains open to a court to assess the facts
placed before it in the
founding affidavit to determine whether or not the matter indeed is
urgent. The court has a wide discretion.
It is incumbent upon it to
ensure that its constitutional role in providing access to justice is
not fettered by placing an emphasis
on form, regulated by the Uniform
Rules of Court, over substance, in circumstances where the need for
speedy intervention is clearly
demonstrated in the facts set out in
the founding affidavit. The present matter contains allegations which
reveal a significant failure
on the part of an executive mayor to
perform with due diligence certain basic duties required of him.
There are also allegations
that demonstrate that the Electoral
Commission has failed to deal effectively with communications from
the applicant addressing the
need to ignore a communication from its
acting municipal manager relating to the replacement of councillors.
At the end of the day,
the application reveals that the Electoral
Commission in any event failed to promulgate the names of some of the
respondents who
are intended by the relevant local municipalities to
replace others as their councillors within a district municipality.
The prejudice
to them is self-evident. These allegations are largely
unchallenged. It is plain that, viewed from the perspectives of
constitutionality
and public policy, such circumstances require
speedy attention. The urgency, too, is self-evident. The applicant
should not be penalised
for its failure to address the issue of
urgency more directly in the founding affidavit. Indeed, had it done
so, many of the same
factual allegations and legal conclusions as are
set out in the founding affidavit already would merely have been
repeated under
an appropriate sub-heading relating to urgency. The
matter is entirely distinguishable from one which addresses a purely
commercial
dispute, such as
Caledon
Street Restaurants CC v Monica D’Aviera
[6]
.
[12]
There is another development which distinguishes this matter from
others that have given rise earlier
to the development of the basic
legal principles relating to the issue of urgency. This matter was
the subject of a case flow management
process before the acting
deputy judge president. This was attended by the attorneys of record
representing the various parties.
It produced an agreement which had
the effect of advancing the date upon which the matter would be heard
and setting a time frame
for the production of heads of argument. No
prejudice to any party was recorded in respect of the time periods
which had governed
the development of the matter, the case flow
management procedure, or the subsequent directive, and none was
claimed during argument
in this court.
[13]
In the absence of any prejudice having been demonstrated by the
respondents as a consequence of the invocation
of rule 6 (12) of the
Uniform Rules of Court by the applicant, and particularly in the
light of the issues with which this matter
is concerned, I am of the
view that there is no merit in the argument advanced on behalf of
some of the respondents to the effect
that the application should be
summarily dismissed because the applicant failed to make out a case
for urgency in the founding affidavit.
[14]
Both the applicant and the first respondent are organs of state. It
is plain that a dispute between them
has given rise to the relief set
out in prayers 4 and 5 of the notice of motion in the main
application. Section 41 (3) of the Constitution
[7]
provides as follows:
“
An
organ of state involved in an intergovernmental dispute must make
every reasonable effort to settle the dispute by means of mechanisms
and procedures provided for that purposed and must exhaust all other
remedies before it approaches a court to resolve the dispute.”
The
Intergovernmental Relations Framework Act
[8]
gives effect to this principle.
[15]
It was argued on behalf of some of the respondents that the applicant
had failed to give effect to the
principle of exhausting all other
remedies before approaching the court for relief. The argument lacks
merit. There is no dispute
about the fact that on 19 April 2021 the
applicant addressed a letter to the first respondent. The letter was
copied to the local
municipalities that are now before the court as
respondents. In the first paragraph of the letter the applicant
quotes in full the
provisions of s 41 (3) of the Constitution
[9]
.
In the second paragraph of the letter the applicant refers to the
Intergovernmental Relations Framework Act
[10]
.
Thereafter the applicant sets out unequivocally the nature of the
dispute that had arisen between it and the first respondent and
the
fact that as organs of state they had an obligation to make every
reasonable effort to settle the dispute. A specific paragraph
in the
letter records that it is to be regarded as constituting a reasonable
effort to settle the dispute. The letter sets out fully
the
circumstances which gave rise to the dispute and attaches the five
memoranda
it
received from the local municipalities within its district. It
requests them to furnish specific information in respect thereof
as
part of the mechanism of achieving an
extra
curial
resolution
of the dispute that had arisen. It refers to the subsequent chain of
communications between the applicant and the first
respondent that
form an integral part of the circumstances which gave rise to the
dispute. Notwithstanding the care and clarity with
which the contents
of the letter express the origin and nature of the dispute that had
arisen and solicit assistance from the first
respondent and the
respective local municipalities in its settlement, no response to the
letter was ever received by the applicant.
[16]
In such circumstances it is difficult to imagine what else the
applicant could have done in an attempt
to settle the dispute that
had arisen. There was also an obligation on the part of the first
respondent, as an organ of state, to
make every reasonable effort to
resolve the dispute. What was required was a response to the
applicant’s letter, followed by a
genuine attempt to resolve the
dispute. It was not only the first respondent that failed to respond
to the applicant’s letter.
None of the local municipalities to whom
it had been copied made any attempt to reply to the letter or to
provide the applicant with
the explanations it sought therein. The
first respondent has not opposed the relief sought against it in the
notice of motion. In
my view the point raised
in
limine
that the application should be
dismissed because the applicant failed to make a reasonable effort to
settle the dispute has no merit.
[17]
The merits of the dispute can be addressed shortly. Many of the
allegations upon which the relief in
the main application is founded
are undisputed in the respondents’ answering affidavits. The more
important of these establish
the following:
~ In November 2020
the applicant convened a council meeting to deal with the widely
publicised alleged maladministration and fraud
that had taken place
within the applicant.
~ An investigating
team was set up to probe allegations of financial maladministration
and looting.
~
The applicant’s council took a decision to suspend the municipal
manager.
~
The applicant wrote to the Minister of Cooperative Governance and
Traditional Affairs and to the Member of the Executive Council
responsible for Cooperative Governance and Traditional Affairs in the
Eastern Cape, seeking an intervention in terms of s 154 (1)
of the
Constitution
[11]
to assist the
applicant with administrative support in certain areas of governance.
~ A team was
accordingly despatched to provide the applicant with the support that
it required.
~ On 26 February
2021 the applicant’s council met and decided to appoint an acting
municipal manager until such time as the applicant
was in a position
to appoint a permanent municipal manager. It was resolved to appoint
the director of local economic development,
Ms Dunywa, as acting
municipal manager for a period of three months.
~ Notwithstanding
the clarity of the resolution the second respondent unlawfully and
unconstitutionally appointed Ms Dunywa as acting
municipal manager
for a period of three days.
~ Thereafter the
second respondent unlawfully and unconstitutionally appointed a
friend, Mr Madzidzela, as acting municipal manager
for a period of
two days.
~ On 4 March 2021 Mr
Madzidzela wrote to the first respondent and attached certain
correspondence and resolutions received from the
local municipalities
that are now respondents in this application, stating that the
applicant “notes and approves the replacement
of local
representatives to the district council…declares the vacancies and
requests the IEC to process the referred replacements.”
~ On 5 March 2021,
and acting in accordance with a resolution of the applicant’s
council bearing the same date, Ms Dunywa wrote
to the first
respondent and alerted it to the fact that the applicant had never
appointed Mr Madzidzela as its acting municipal manager
and that the
correspondence emanating from him the day before and addressed to the
first respondent was unlawful and had been nullified
by the
applicant’s council.
~ On 15 March 2021
the applicant’s attorneys of record addressed a letter to the first
respondent and confirmed that it had been
advised of the “fraudulent
activity committed by Mr Madzidzela of misrepresenting” the
applicant. It was confirmed therein that
there was no council
resolution declaring a vacancy within the applicant. A demand is made
on behalf of the applicant that “an
unequivocal undertaking” be
given by close of business on the same day that the first respondent
“will not give effect to and
implement any and all instructions
given to you by Mr Madzidzela”.
~
Relying upon the legitimacy and accuracy of the letter addressed to
it by Mr Madzidzela on 4 March 2021, the first respondent has
relied
upon the provisions of item 23 of Schedule 2 of the Local Government:
Municipal Structures Act
[12]
(the Act). It issued
memoranda
on
13 April 2021 and 14 April 2021 declaring those whose names had been
forwarded to it by Mr Madzidzela “elected” to the applicant’s
council “as prescribed in item 23 of Schedule 2…”
~
No vacancies had arisen within the applicant’s council.
[18]
At this point it is convenient to record that at the commencement of
the proceedings Mr
Katz
SC,
who appeared on behalf of the applicant together with Mr
Maliwa,
identified what he referred to as a
“speed wobble”. It had been established that in fact the first
respondent had not published
the names of the “replacement
councillors” in the Government Gazette on 15 April 2021. Nor had it
taken the “decision” to
replace eighteen of the applicant’s
councillors. Accordingly, prayer 4 of the notice of motion did not
accurately express the nature
of the conduct on the part of the first
respondent that had resulted from the letter written to it by Mr
Madzidzela. Counsel sought
the amendment of prayer 4 to read:
The
first respondent’s conduct of accepting and acting upon the
unlawfully appointed municipal manager of the applicant’s letter
to
it dated 4 March 2021 is declared inconsistent with the Constitution
and invalid.
[19]
The respondents did not oppose the amendment but remained opposed to
the relief sought.
[20]
In support of the relief claimed in the counter-application it was
submitted that all Mr Madzidzela had
done was to act as a conduit for
the announcement of the outcome of the resolutions taken by the local
municipalities to replace
certain councillors with others. It was
submitted that those councillors fell within the category referred to
in s 23 (1) (b) of
the Act. The relevant portion of s 23 reads:
(1)
The council of a district municipality consists of –
(a)…
(b)
councillors appointed in accordance
with Schedule 2 by the councils of the respective local
municipalities within that district municipality,
to directly
represent those local municipalities; and
(c)…
The submission was
that the provisions of s 27 of the Act are also applicable. The
relevant provisions of the section read:
A
councillor vacates office during a term of office if that councillor
–
(a)…
(b)…
(c)…
(d)…
(e)
is a representative of a local council
in a district council and ceases to be a member of the local council
which appointed that councillor
to the district council or is
replaced by the local council as its representative in the district
council; or
(f)…
[21]
It is apposite to record that the applicant does not seek any relief
in the main application which makes
a direct challenge to the
validity of the council resolutions taken by the local municipalities
with a view to replacing the councillors
who acted as their
representatives on the applicant’s council.
[22]
The applicant’s opposition to the counter-applications is based
upon the illegality of the communication
to the first respondent by
Mr Madzidzela of the names of councillors who were intended by the
relevant local municipalities to replace
others as councillors
representing the local municipalities on the applicant’s council.
The opposition is also based upon a number
of allegations made on
behalf of the applicant in the answering affidavit filed in response
to the counter-applications. It is clear
from the title given to the
affidavit that it also serves as the applicant’s replying affidavit
in the main application. Therein
the following allegations are made:
~
The only issue in the counter-applications is the proper construction
of the Constitution
[13]
and
the Act
[14]
.
~ On their version,
the applicants in the counter-applications were sworn in as district
councillors by the chief magistrate on 17
April 2021, rather than at
a meeting of the applicant’s council. Consequently, their “swearing
in” was irregular and of no
force and effect.
~ Those councillors
on the applicant’s council who have purportedly been replaced by
the applicants in the counter-applications
have launched proceedings
to review and set aside the resolutions taken by the relevant local
municipalities to replace them as councillors
on the applicant’s
council.
~
This court has already decided
[15]
that the applicant’s council meeting on 5 March 2021 was scheduled
lawfully and constituted validly. Accordingly, it is not open
to the
applicants in the counter-applications to challenge, as they have
done, the validity of the applicant’s council meeting
on 5 March
2021.
[23]
In the applicant’s answering affidavit to the counter-applications
the relevant local municipalities,
which were cited therein as
respondents, are invited to file affidavits to indicate:
~
who was invited to the five meetings held by the local
municipalities;
~
who attended the five meetings;
~ whether the
replacement of district councillors was on the agenda of each of the
five meetings;
~ if it was on the
agenda, when it was placed thereon;
~ who voted in
favour of the resolutions to replace the district councillors;
~ who voted against
the resolutions to replace the district councillors;
~
whether the persons proposed as replacements for those representing
the local municipalities as district councillors on the applicant’s
council had consented to replace the existing district councillors
and, if so, when such consents were furnished.
[24]
In the answering affidavit in the counter-applications the applicant
makes a number of observations and
calls upon the relevant local
municipalities, cited by the applicants in the counter-applications
as co-respondents along with the
applicant, to explain the apparent
relationship between the important resolution to put an end to
corruption and looting within the
applicant, taken by the applicant’s
council on 25 February 2021, and the resolutions purportedly taken by
the relevant local municipalities
to “replace” district
councillors who represented them on the applicant’s council. The
deponent to the applicant’s answering
affidavit in the
counter-applications states unequivocally that if no explanation is
forthcoming it would be argued at the hearing
of this matter that
what had occurred was an attempt to “reshuffle” district
councillors on the applicant’s council “to achieve
a nefarious
unlawful purpose”.
[25]
Both invitations extended by the applicant to the relevant local
municipalities have been ignored. No
answering affidavits were filed
by the relevant local municipalities. Moreover, none of the
applicants in the counter-applications
have filed a replying
affidavit.
[26]
The provisions of s 26 (1) of the Act are relevant to the issue of
whether or not the applicants in the
counter-applications are
entitled to the relief sought therein. The same provisions are
relevant to the issue of the legality of
the communication on 4 March
2021 by Mr Madzidzela to the first respondent and the first
respondent’s action in response thereto.
The relevant portions of
the section read:
Term
of office of councillors
(1)
A person –
(a)
Is elected as a member of a municipal
council for a period ending when the next council is declared
elected; or
(b)
Is appointed as a representative of a
local council to a district council for a period ending when the next
local council is declared
elected, except that where such a person is
replaced as a result of the provisions of item 6
(a)
of Schedule 6B to the Constitution, the
newly appointed representative is appointed for the remainder of the
replaced representative’s
term.
In
terms of the provisions of s 26 (1) (b) of the Act, the district
councillors remain in office as representatives of the relevant
local
municipalities on the applicant’s council until such time as the
next local council is declared elected. Nothing in the main
application or the counter-applications suggests that elections were
held which led to the declaration of the next local council
as
elected. There is nothing in the main application or the
counter-applications to suggest that any of the applicants in the
counter-applications
are entitled to appointment because of a
replacement as a result of item 6
(a)
of
Schedule 6B to the Constitution
[16]
.
Accordingly, no basis emerges from any of the affidavits or the
annexures thereto which have been placed before the court upon which
the court might conclude that the applicants in the
counter-applications have a legitimate entitlement to their
appointment as district
councillors on the applicant’s council.
This may well explain why none of the relevant local municipalities
accepted the invitation
extended by the applicant to file an
affidavit dealing with the circumstances which gave rise to and
surrounded the local council
resolutions to “replace” councillors
on the applicant’s council. The councils of local municipalities
have no right to simply
ignore the provisions of the Act and to
“reshuffle” district councillors. The allegation made by the
applicant that this was
done “to achieve a nefarious unlawful
purpose” is met only by a deafening silence.
[27]
In the circumstances, the allegation made by the applicant that no
vacancies had arisen within the applicant’s
council, which is
unchallenged, excludes a finding that the applicants in the
counter-applications are entitled to “replace”
the existing
district councillors appointed to the applicant’s council. The
information and request to that end that was forwarded
to the first
respondent on 4 March 2021 was invalid. Moreover, given that his
appointment was not authorised by the applicant’s
council, the
second respondent’s appointment of Mr Madzidzela as acting
municipal manager for two days was unlawful. His communication
to the
first respondent on 4 March 2021 was unlawful. Pursuant to the
resolution taken by the applicant’s council on 5 March 2021,
the
communication directed by the legitimate acting municipal manager, Ms
Dunywa, to the first respondent on the same day, addressing
the
nullity of the communication from Mr Madzidzela on the previous day,
ought to have been heeded by the first respondent. It was
not. In the
circumstances, the first respondent’s conduct of accepting and
acting upon the unlawfully appointed acting municipal
manager’s
letter to it dated 4 March 2021 was unlawful and must be set aside.
The outcome found expression in the
memoranda
issued by the first respondent on 13 April 2021 and 14 April 2021.
Those
memoranda
must
be set aside.
[29]
Section 172 (1) (a) of the Constitution
[17]
mandates the court to issue a
declarator
in circumstances where a finding of constitutional unlawfulness is
made. With some amendment, the relief sought by the applicant
in
prayers 2 to 5 of the notice of motion would constitute such an
order. Section 172 (1) (b) thereof permits a court making such
a
declarator
to
exercise its discretion in considering whether the circumstances of
the matter require the court to issue a further order that
is just
and equitable. Given that the uncontested allegations in the
applicant’s affidavits state that the resolutions taken by
the
councils of the respective local municipalities are to be taken on
review and that, in any event, local elections may well be
held in
October 2021, which will have a direct bearing on the issue of who is
to represent those local municipalities on the applicant’s
council,
I am of the view that it would be undesirable to make any further
order purporting to address what the first respondent
should do in
respect of the status of the district councillors serving on the
applicant’s council or those who seek to replace
them.
[28]
Bedevilled by the blight caused by the failure on the part of the
relevant local municipalities to have
regard to the provisions of the
Act and to respect the integrity of those district councillors who
had been appointed to represent
them on the applicant’s council,
the receipt and transmission on 4 March 2021 by an unlawfully
appointed acting municipal manager
to the applicant of decisions
taken by the same local municipalities to “replace” district
councillors that palpably are in contravention
of the provisions of
the Act, the resultant unlawfulness and invalidity of the first
respondent’s acceptance of the communication
and its subsequent
actions, the relief sought by the respondents who have filed counter
applications cannot be granted. It follows
that the
counter-applications must be dismissed.
[29]
What remains is the question of liability for costs. In the notice of
motion the applicant seeks an order
for costs against those
respondents who oppose the application. In the circumstances of this
matter, it is lamentable that the respondents
filed and pursued
opposition to the relief sought by the applicant in the main
application. So palpable is the illegality of the
conduct on the part
of the second respondent identified in the applicant’s affidavit
and the resultant unlawfulness and invalidity
of the first
respondent’s conduct, that one would reasonably have expected the
relevant local municipalities, the individual respondents
who
entertained the idea that they had rights created or confirmed by the
first respondent, and their respective legal representatives,
to
appreciate that the applicant’s main application had merit and
should not be opposed. However, not only did some of the respondents
oppose the main application, they also introduced
counter-applications in which they sought costs on an attorney and
client scale
against the applicant “and any other respondent who
opposes the relief sought in the counter-application”. After
argument on
behalf of the applicant had been heard, the court took
the mid-morning adjournment. Before doing so, the court urged those
appearing
on behalf of the respondents to reconsider the opposition
by the respondents to the relief sought. It had been indicated on
behalf
of the applicant that if the opposition was withdrawn, even at
that late stage, the applicant would seek no order for costs.
However,
if upon a resumption of the court proceedings the
respondents persisted with their opposition, the applicants would
seek a costs
order.  When the court proceedings resumed, the
respondents’ legal representatives had made their election. It was
to continue
with the opposition to the main application and to argue
the counter-applications. In my view, nothing emerges at the end of
the
day to justify a departure from the ordinary principle that costs
should follow the result. Accordingly, liability for the costs
of the
litigation must accrue to the respondents. This must include the
costs that result from the dismissal of the counter-applications.
[30]
The following order will issue:
1. The applicant is
granted leave to bring this application as one of urgency in terms of
rule 6 (12) of the Uniform Rules of Court.
2. The second
respondent’s appointment on 3 March 2021 of Mr Madzidzela as the
acting municipal manager of the applicant for a period
of two days
(4
th
and 5
th
March 2021) is declared to be in
direct contravention of the applicant’s council resolution of 26
February 2021, inconsistent with
the provisions of the Constitution
of the Republic of South Africa, 1996 and invalid.
3. The appointment
referred to in paragraph 2 of this order is reviewed and set aside.
4. The first
respondent’s conduct of accepting and acting upon the unlawfully
appointed municipal manager of the applicant’s letter
to it dated 4
March 2021 is declared inconsistent with the Constitution of the
Republic of South Africa, 1996 and invalid.
5. The replacement
of district councillors in the applicant’s council declared in the
memoranda
issued by the first respondent on 13
th
and 14
th
April 2021 is reviewed and set aside.
6. Those respondents
who opposed the application are ordered to pay the costs of the
application jointly and severally, the one paying
the others to be
absolved.
7. The
counter-applications are dismissed with costs.
R
W N BROOKS
JUDGE
OF THE HIGH COURT
Appearances
For
the applicant                                       Adv
A Katz SC and Adv S Maliwa
Instructed
by                                              Z
MFIKI INC
60
Wesley Street
Mthatha
For
the 39
th
to 42
nd
respondents              Adv
A Bodlani, Adv B Flathela,
Adv
S Mapekula, Adv L Ntikinca,
Adv
Z Mashiya and Adv B Maswazi
Instructed
by                                              T
L LUZIPHO ATTORNEYS
Cnr
Victoria and Madeira Streets
Mthatha
JOLWANA
MGIDLANA INC
19
Park Road
Mthatha
W
T MNQANDI ATTORNEYS
74
Madeira Street
Mthatha
MAKHANGELA
MTUNGANI INC
50
Blakeway Road
Mthatha
For
the 43
rd
respondent                            Adv
Z Matabese SC and Adv N Mxotwa
Instructed
by                                              TONISE
ATTORNEYS
4
Prestwitch Avenue
Mthatha
Date
heard                                                  12
August 2021
Date
delivered                                            24
August 2021
[1]
Constitution
of the Republic of South Africa, 1996.
[2]
Chapter
9 of the Constitution of the Republic of South Africa, 1996,
provides for the establishment of a group of institutions to
guard
democracy within the country. The first respondent is referred to
inaccurately in the application papers as the Independent
Electoral
Commission (the IEC). This was the original name of the body created
in 1993 to oversee the first democratic elections
and other
elections thereafter. See
s 4
(1) of the
Independent Electoral
Commission Act 150 of 1993
. It is now called the Electoral
Commission (the EC). See
s 3
of the
Electoral Commission Act 51 of
1996
.
Section 24
of this Act states that the EC is the successor in
title of the IEC.
[3]
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another
1977
(4) SA 135
(W);
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010)
31 ILJ 112 (LC) par 18;
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2012]
JOL 28244
(GSJ) par 6;
Mojaki
v Ngaka Modiri Molema District Municipality and Others
(2015)
36 ILJ 1331 (LC) par 17.
[4]
Maqubela
v SA Graduates Development Association and Others
(2014)
35 ILJ 2479 L(LC) par 32;
Transport
and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others
(2015)
36 ILJ 2148 (LC) par 11.
[5]
[1998]
JOL 1832 (SE)
[6]
Footnote
5
(supra).
[7]
Footnote
1
(supra).
[8]
Act
13 of 2005.
[9]
Footnote
1
(supra).
[10]
Footnote
8
(supra).
[11]
Section
154 (1) of the Constitution provides: “
the
National government and Provincial government by legislative and
other measures, must support and strengthen the capacity of
municipalities to manage their own affairs, to exercise their powers
and to perform their functions.”
[12]
Act
117 of 1998. Item 23 of Schedule 2 deals with the filling of
vacancies. It states: “
If
a councillor elected from a candidates’ list ceases to hold office
or the list has become exhausted, the corresponding provisions
of
item 11 must be applied to the extent that that item can be
applied.”
Item
11 also deals with the filling of vacancies. It states: “
(1)
(a) If a councillor elected from a party list ceases to hold office,
the chief electoral officer must, subject to item 13, declare
in
writing the person whose name is on the top of the applicable party
list to be elected in the vacancy. (b) Whenever a councillor
referred to in paragraph (a) ceases to hold office, the municipal
manager concerned must within seven days after the councillor
has
ceased to hold office, inform the chief electoral officer thereof.
(2) Where a party list has become exhausted, item 10, adjusted
as
may contextually be necessary, applies to the supplementation of the
list, and if the party fails to supplement its list, or
if the party
has ceased to exist, the vacancy must remain unfilled.”
[13]
Footnote
1
(supra).
[14]
Footnote
12
(supra).
[15]
Dambuza
and Others v Oliver Reginald Tambo District Municipality and Others,
Case
number 1029/2021.
[16]
Footnote
1
(supra).
[17]
Footnote
1
(supra).