Speaker: OR Tambo District Municipality and Others v Premier of the Eastern Cape and Others (3809/2021) [2021] ZAECMHC 36 (25 October 2021)

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[2021] ZAECMHC 36
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Speaker: OR Tambo District Municipality and Others v Premier of the Eastern Cape and Others (3809/2021) [2021] ZAECMHC 36 (25 October 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION, MTHATHA
CASE
NO. 3809/2021
In
the matter between:
THE
SPEAKER: OR TAMBO DISTRICT MUNICIPALITY
First Applicant
OR
TAMBO DISTRICT MUNICIPALITY
Second
Applicant
ROBERT
NOGUMLA
Third Applicant
NOMPUMELELO
GCININDAWO
Fourth Applicant
ZIZIPHO
BOKWE
Fifth Applicant
ZEMEMVULA
GUSANA
Sixth Applicant
UNATHI
MALGAS
Seventh
Applicant
and
THE
PREMIER OF THE EASTERN CAPE
First
Respondent
THE MEC FOR LOCAL
GOVERNMENT
&
TRADITIONAL AFFAIRS
Second Respondent
THE
EXECUTIVE COUNCIL OF THE EASTERN CAPE
Third
Respondent
THE MINISTER FOR
LOCAL GOVERNMENT &
TRADITIONAL
AFFAIRS
Fourth
Respondent
THE CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
Fifth
Respondent
BASIL
MASE N.O.
Sixth
Respondent
THE PROVINCIAL
SECRETARY
OF
THE EASTERN CAPE
Seventh Respondent
REASONS
RUGUNANAN,
J
[1]
Two applications were
before this court on 29 September 2021 and having heard argument by
the parties’ counsel, the following orders
were issued on 8 October
2021 with an indication that reasons will be given in due course.
[2]
In respect of the
first application the order reads:
“
(i)
The decision of 4 August 2021 by the third respondent, being the
Provincial Executive
Council of the Eastern Cape, and adopted by the
second respondent, being the Member of the Executive Council of the
Eastern Cape
Province for Co-operative Governance and Traditional
Affairs, by publication in the Provincial Gazette No. 4606 on 6
August 2021
to dissolve the OR Tambo District Municipal Council by
invoking the provisions of section 139(1)(c) of the Constitution of
the Republic
of South Africa be and is hereby reviewed and set aside.
(ii)
The First, Second, Third and Seventh respondents shall pay the
applicants’ costs
of suit jointly and severally, the one paying the
other to be absolved; such costs shall include the reserved costs
attendant on
the orders granted by Bloem J on 26 August 2021 and
by Nhlangulela DJP on 9 September 2021.”
[3]
In the second application the order reads:
“
The
application by the Member of the Executive Council of the Eastern
Cape Province for Co-operative Governance and Traditional Affairs
for
contempt of the order of Bloem J dated 26 August 2021, is dismissed
with costs.”
[4]
What was essentially before this court was
an urgent review under Part B of a notice of motion issued by the
first and second applicants
on 22 August 2021 (and subsequently
amended) in which they sought an order reviewing and setting aside
the decision of the second
and third respondents to dissolve the
Municipal Council of the second applicant, the OR Tambo District
Municipality (“the Municipality”).
The dissolution was effected
in terms of section 139(c) of the Constitution. The third to seventh
applicants, as intervening parties,
supported the review application
and supported the opposition to the contempt proceedings against the
second applicant. The fourth,
fifth and sixth respondents did not
oppose the review application.
[5]
Simultaneously with the review application,
was an application at the instance of the second respondent, the
Member of the Executive
Council for Cooperative Governance and
Traditional Affairs (“the MEC”). The MEC sought a declaratory
order to the effect that
paragraph 2 of an agreed interim order
granted by Bloem J on 26 August 2021 be extended to mean that the
first and second applicants
may only continue to exercise their
duties and functions with the concurrence of the administrator (the
sixth respondent) and that
the Council of the second applicant (“the
Municipality”) be held in contempt of that order.
[6]
Paragraph 2 of the interim order reads as
follows:
“
2.
In the interim, pending a further determination, if needs be, on 9
September 2021, the
Council and Executive of the second applicant,
the OR Tambo District Municipality, are entitled to return to the
Municipality and
continue to exercise all their duties and functions
which existed prior to the notice which was issued in terms of
section 139(1)(c)
of the Constitution, in consultation with the
Administrator, the sixth respondent, duly assisted by his team of
officials.”
CONSTITUTIONAL
FRAMEWORK OF LOCAL GOVERNMENT
[7]
In
the context of the Constitution, the institution of government is
exemplified by three spheres, i.e. the national, provincial and
local
spheres (the latter consisting of municipalities). Though
interdependent and interrelated, each sphere is distinct from the
other and is cloaked with the autonomy to exercise its functions and
powers within the bounds of its defined space.
[1]
It is anxiomatic that all spheres of government and all organs of
state in each sphere must respect the status, institutions, powers
and functions of government in the other spheres without assuming any
power or function except those conferred on them by the Constitution.
[8]
In
the domain of local government the autonomous nature of
municipalities is underscored by section 151 of the Constitution. The
section
provides that the executive and legislative authority of a
municipality is vested in its municipal council and that a
municipality
is vested with the right to govern, on its own
initiative, the affairs of its community.
[2]
Provincial intervention in local government is sanctioned by section
139 by the intervention of the relevant provincial executive
when a
municipality “cannot or does not fulfil an executive obligation”
– a state of affairs that is concerned with an ongoing
failure and
not a past failure
[3]
. Subject
to various conditions set out in the section, provincial intervention
may include the provincial government itself assuming
responsibility
for the obligation or even dissolving a municipal council and
replacing it with an administrator. The power of intervention
is
drastic and “most intrusive”
[4]
and may only be exercised “if exceptional circumstances warrant
such a step”
[5]
.
THE REVIEW
APPLICATION
[9]
The review application (unopposed by the
fourth, fifth and sixth respondents) concerns a decision to dissolve
the Council of the Municipality
by the invocation of section
139(1)(c) of the Constitution. The decision was ostensibly taken on 4
August 2021 by the third respondent
(‘the PEC”) and communicated
as such in a letter dated 8 August 2021 directed by the MEC to
the first applicant (“the
Speaker”). The decision was followed by
the appointment of the sixth respondent as administrator to manage
the affairs of the Municipality.
[10]
The
review application is grounded in the principle of legality. Legality
is an incident of the rule of law
[6]
- it requires public power to be exercised lawfully, rationally and
in good faith. This standard applies irrespective of whether
or not
the exercise of public power constitutes administrative action in
terms of the Promotion of Administrative Justice Act.
[7]
[11]
The
decision to dissolve the Municipal Council in terms of section
139(1)(c) of the Constitution was premised on the following
categories
of complaints:
[8]
(i)
The legitimacy of the councillors, the
consequent council meetings convened, and the decisions taken
thereat;
(ii)
The
ongoing litigation between the Municipality and the executive mayor,
Independent Electoral Commission
[9]
,
and various councillors;
(iii)
The approval of the municipal budget and
infrastructure grant spend; and
(iv)
Water and sanitation service delivery.
[12]
The
review of the decision to invoke the section is underpinned by
irrationality, capriciousness, arbitrariness, bias, and ulterior
purpose. In addition, the applicants allege that the decision to
dissolve the Council was not properly taken; that the respondents
failed to place information before court to demonstrate that the
required factual position of an ongoing failure persisted; that
the
representations made by the Council in response to the PEC’s
intention to invoke the section were not considered; and that
the
decision was not the appropriate intervention.
[10]
While endorsing these grounds of review the intervening applicants
rely on three further grounds; namely, the failure to consider
a less
invasive alternative;
[11]
the
participation of “non-councillors”; and the imminent local
government elections.
[12]
[13]
As
regards the elections, the argument is directed at the irrationality
of the invocation of section 139(1)(c) on 4 August 2021. At
the time
of the decision, the elections were already scheduled for 27 October
2021. This was by virtue of a proclamation issued by
the Minister of
Cooperative Governance and Traditional Affairs on 3 August 2021.
[13]
It does not assist the respondents to contend that the decision to
dissolve the Council was taken with the expectation that the
elections
would be postponed to a date early in 2022. It was
irrational to have taken the decision before the question of a
postponed local
government election had been dealt with by the
Constitutional Court in
Electoral
Commission v Minister of Cooperative Governance and Traditional
Affairs and Others
[14]
which finally determined that the elections be scheduled for 1
November 2021.
[14]
A
reading of the section makes it plain that the express purpose of a
dissolution is to appoint an administrator “until a newly
elected
Municipal Council has been declared elected”. Under section 159(2)
of the Constitution an election must take place within
90 days of the
date of the dissolution of a municipal council. It is inevitable that
a new Municipal Council will be elected on 1
November 2021. This
eventuality will intercede before the 90 day period expires after
that date. The respondents realised this as
is evident in their “with
prejudice” offer made to the applicants on 23 September 2021.
[15]
The applicants’ repudiation of and their counter-proposal to that
offer - which counter-proposal entailed taking an order by agreement
together with costs - is vindicated by the end result in these
proceedings.
[15]
The grounds for review relied on by the
applicants and those intervening are expatiated in considerable
detail in their supplementary
affidavits. The facts were argued by
the applicants with reference to relevant authority set out in heads
of argument. This judgment
will not be burdened with a recital of the
facts grounding the review since the main issues turned on whether
the decision had become
moot or whether the applicants were entitled
to relief as at the date of the hearing of this matter.
[16]
The
answering papers deposed by the MEC in which he does so on behalf of
the first, third and seventh respondents makes it obvious
that the
relief sought by the applicants is not contested, neither is the
invocation of section 139(1)(c) defended in response to
the grounds
for review on which the application is posited. The answering
affidavit does not answer the material allegations pertinent
to the
review grounds set out in the founding and supplementary
affidavits.
[16]
[17]
Significantly, the MEC states:
“…
I
do not propose to deal with the affidavits deposed on behalf of the
Applicants in the main application in any detail.”
But in the same
breath he makes the assertion:
“…
as
far as the merits of the main application are concerned, the
applicants must have foreseen a dispute of fact incapable of
resolution
on the papers.”
[18]
In
was incumbent on the MEC to have raised the disputes by pleading the
relevant facts. Plainly, the disputes have not been raised,
and until
they have been pleaded, only then do they arise. Where it is clear
that facts, though not formally admitted, cannot be
denied, they must
be regarded as admitted,
[17]
and accepted as proven. The stance taken by the MEC is tantamount to
a concession and acceptance that the decision cannot be credibly
sustained and is reviewable. That is exactly where the matter ends.
[19]
Referring
to the answering affidavit, and quoting in relevant part, the MEC
states:
[18]
“
Exco
… only has one general meeting a month, on the last Wednesday of
the month, which is 29 September 2021 …
…
I
have every reason to believe that Exco will approve, at that meeting,
my recommendation, that in the interests of co-operative government
…
the decision to dissolve the Council should be rescinded, an
eventuality which would obviate the need for the court to decide
the
main application.”
[20]
It
was contended for the MEC that the relief claimed in the review
application has become moot. In the answering affidavit the
respondents
argue for the dismissal of the application but ask that
the interim order granted by Bloem J be maintained pending the
upcoming municipal
elections. The respondents maintain that the
invocation of section 139(1)(c) pertains to the exercise of executive
powers and functions,
which they accept are reviewable
[19]
.
They contend however that the self-determined rescission, to be
exercised internally by the PEC, constitutes the exercise of a
discretionary
executive power or function which is of importance for
the political functioning of government. The argument stems from the
proposition
that the authority under section 139(1)(c) to dissolve a
municipal council is discretionary
[20]
and that the scope of that discretion permits, as in this instance,
the PEC to change its approach by having the decision rescinded.
This
court was urged to accord recognition to that discretion and to
decline assistance to the applicants, this in the light of the
history of the matter. The stance adopted by the intervening
applicants is that an internal rescission is not competent. Their
argument
is that the
functus
officio
doctrine
[21]
applies and the
decision regardless of whether it is administrative or executive in
nature remains extant until it is set aside by
a court.
[22]
As a matter of fact as at the date of the hearing of this matter the
decision to dissolve the Council was not set aside. For reasons
set
out elsewhere in this judgment the applicants presented a case that
is unanswered and unanswerable. That being so, they were
entitled to
the order granted by this court. From this perspective of the matter
the issue of mootness does not arise and it is unnecessary
to engage
with the
functus
officio
debate or to address the issue whether the self-determined rescission
is a discretionary power and whether it complies with the
Constitution.
THE CONTEMPT
APPLICATION
[21]
The applicants placed two broad issues
before this court: the non-joinder of the administrator, and the
merits of the application.
I accept that the administrator is a
necessary party who ought to have been joined as a co-applicant in
the contempt proceedings
but do not believe that the application as a
whole should be dismissed merely on the joinder conundrum. The fate
of the application
as evidenced by the order made on 8 October 2021
fell to be determined on its merits.
[22]
In so far as the new matter contained in
the replying affidavit by the MEC is concerned, I have deviated from
the general approach
that a litigant cannot rely on new matter in
reply. The MEC deposed to the founding affidavit on 6 September 2021
and could not have
been in possession of all the facts pertaining to
events in the period subsequent to that date. Despite the indulgence,
its influence
on the merits, from what appears below, is
insignificant.
[23]
The essential relief sought by the MEC, in
addition to claiming costs on a punitive scale, is for an order:
(i)
declaring the Municipality to be in
contempt of paragraph 2 of the order by Bloem J (“the order”);
and
(ii)
declaring that paragraph 2 of the order
means that the Municipal Council and the Executive of the
Municipality are entitled to return
to the Municipality and continue
to exercise all the duties and functions which existed prior to the
notice which was issued in terms
of section 139 (1) (c) of the
Constitution only with the concurrence of the administrator duly
assisted by his team of officials.
[24]
What
bears directly on the contempt application is the meaning and
practical effect attributed to the phrase “in consultation with
the
Administrator” as it appears in the order by Bloem J (“the
order”). The MEC contends that the phrase “in consultation
with
the administrator” means “with the concurrence of the
administrator”. The authority cited in support of this contention
is not disputed.
[23]
[25]
The
practical effect of the meaning advocated by the MEC is that the
Council and executive of the Municipality shall require the
concurrence
of the administrator for the exercise of their duties and
the performance of the functions referred to in the order.
[24]
The issue in these proceedings is whether the Council knew that it
was impermissible to have taken the resolutions at the special
meetings convened on 27 and 31 August 2021, and on 10 and 16
September 2021. In the nature of these proceedings the issue, as I
see
it, affects the
onus
.
[26]
It
is vital to the administration of justice and the rule of law - a
founding value of the constitution - that those affected by court
orders must obey them. Contempt of court is a crime unlawfully and
intentionally to disobey a court order, the essence of which lies
in
violating the dignity, repute and authority of the court. Disregard
for court orders tarnishes the authority of the courts (see
Fakie
N.O. v CII Systems (Pty) Ltd
[25]
).
It
upsets the foundations of the law and compromises the status and
constitutional mandate of the courts.
[26]
[27]
Tritely,
it is required of an applicant in contempt proceedings to prove the
requisites of contempt (i.e. the order, service or notice,
non-compliance and wilfulness (intent) and
mala
fides
)
beyond reasonable doubt.
[27]
(Parenthetically, I add that the standard of proof on a balance of
probabilities only applies if a declarator or other civil remedies
short of committal are sought
[28]
as in the present matter). Once the applicant has proved the order,
service or notice, and non-compliance, the respondent bears an
evidential burden in relation to wilfulness and
mala
fides
.
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established on the applicable standard of
proof.
[28]
Turning
to the issue affecting the
onus
as set out earlier, it was submitted for the MEC that the Speaker, as
head of the Council, has not stated that they have a different
understanding of what is meant by the phrase “in consultation
with”. This submission proceeds from the premise that there was
non-compliance with the order hence wilfulness is inferred and the
onus
[29]
will then be on the respondents to rebut the inference of wilfulness
(see
Consolidated
Fish Distributors (Pty) Ltd v Zive and Others
1968 (2) SA 517
(C) at 522H). On the facts, I have doubt about the
correctness of this submission.
[29]
The facts indicate that the Council called
meetings and gave notification to the administrator for his
attendance. Except for having
attended the meetings of 10 and 16
September 2021, the administrator did not attend the meetings
scheduled for 27 and 31 August 2021.
The MEC argues that the
non-attendance of the administrator at those meetings did not
exonerate the Council from its duty to request
and obtain his
concurrence for whatever resolutions they wanted to adopt. The
resolutions adopted at the meeting of 27 August
2021 were to:
(i)
reinstate the provision of security for the
chief financial officer of the Municipality and all the services that
were terminated
by the administrator with immediate effect;
(ii)
pay back all the salaries of councillors
and traditional leaders who were allegedly short-paid;
(iii)
direct the acting municipal manager to
write to all service providers to reinstate their services; and
(iv)
nullify all the decisions taken by the
administrator after the dissolution of the Municipal Council.
[30]
At the meeting on 31 August 2021 the
Council appointed an acting municipal manager without consultation
with the administrator.
[31]
In
response to these allegations, the answering affidavit by the Speaker
of the Council
[30]
discloses
that the administrator took arbitrary decisions prior to the lapse of
the 14 day period stipulated in section 139(3)(b)
of the
Constitution
[31]
and without
his terms of reference having been gazetted. Regarding the decision
to appoint an acting municipal manager, the three-month
term of the
relevant appointee at that time came to an end on 31 August 2021. The
Municipality required a new appointment, the duty
for which rested on
the Council in keeping with legislation.
[32]
As for the administrator’s presence at
the meetings of 10 and 16 September 2021, the Council took a decision
regarding the advertisement
of the post of the municipal manager (on
a full-time basis) and a further decision favouring amendment of the
institutional organogram,
notwithstanding objections raised by the
administrator. In all instances pertaining to these meetings my sense
is that the Council
complied with the order by seeking the
administrator’s attendance. In these circumstances I am unable to
conclude that there was
non-compliance with the order.
[33]
Should I be mistaken in that regard, I turn
to address to the question of wilfulness and
mala
fides
. It was incumbent for the MEC to
have placed evidence before this court indicating that the Council
went ahead and took decisions
or passed resolutions in the knowledge
that they were not permitted to do so.
[34]
Where such evidence has not been adduced,
wilfulness cannot readily be inferred. A factual basis must be
established before the inference
can be drawn. In terms of
Fakie,
the
onus
to have adduced such evidence was on the MEC. Once that evidence has
been adduced, only then did the Council have an evidential burden
to
adduce evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and
mala fide
.
The omission by the MEC to have placed the requisite evidence before
court is fatal to the contempt application.
[35]
In these
circumstances the conventional rule that costs follow the result must
apply in respect of both applications.
S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For the First and
Second
Applicants:         Advv R A
Solomon SC and L Haskins
Instructed
by Mvuso Notyesi Inc
Mthatha
Tel:
047-531 4714
Email:
mnotyesi@telkomsa.net
For the Third to
Seventh
Applicants:         Advv A
Katz SC D Cooke and S Maliwa
Instructed
by Z Mfiki Inc
Mthatha
Tel: 047-531 3255
Email:
zingisa@mfikiinc.co.za
For the First,
Second,
Third and Seventh
Respondents:
Advv J Heunis SC and
A Bodlani
Instructed by The
Office Of The State Attorney (Ref1407/21 A8H)
Mthatha
Tel:
047-502 9900
Email:
MNqiwa@justice.gov.za
Xhanise@justice.gov.za
Date
heard on virtual platform:
29 September 2021
Order
issued:

08 October 2021
Reasons:

25 October 2021
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 11h00 on 25 October
2021.
[1]
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
2020 (6) SA 182
(CC) at paragraph [42]
[2]
There
is a limitation– the right of municipalities to govern is subject
to national and provincial legislation and also arises
from the
concept of co-operative government in terms of which a provincial
government must by legislative and other means provide
support and
assistance to local governments and maintain supervision and
monitoring. See
Mnquma
Local Municipality and Another v Premier of the Eastern Cape and
Others
(231/2009) [2009] ZAECBHC 14 (5 August 2009) at paragraphs [43]-[44]
[3]
The
section is concerned with an omission or an inaction by the
municipality and not positive misconduct. It is also framed in the
present tense, being concerned with an ongoing failure and not a
past failure. Intervention would not be appropriate where a past
omission had already ceased. See
City
of Cape Town v Premier, Western Cape and Others
2008 (6) SA 345
(C) at paragraph [94]
[4]
Mogalakwena
Local Municipality v Provincial Executive Council, Limpopo and
Others
(35248/14)
[2014] ZAGPPHC 400 (19 June 2014) at paragraph [20]
[5]
See
Section 139(c).
[6]
NDPP
v Freedom Under Law
2014 (4) SA 298
(SCA) at paragraph [28]
[7]
Act
3 of 2000. See
Freedom
Under Law v NDPP and Others
2014
(1) SA 254
(GNP) at paragraph [124]; also
NDPP
v Freedom Under Law supra
at
paragraph [29]; and
Airports
Company South Africa v Tswelokogotso Trading Enterprises CC
2019 (1) SA 204
(GJ) at paragraph 7
[8]
Heads
of argument – first and second applicants, paragraph [37]
[9]
Now
called the Electoral Commission. See
OR
Tambo District Municipality v Independent Electoral Commission and
Others
(1995/2021) [2021] ZAECMHC 31 (24 August 2021) at footnote 2
[10]
Supplementary
founding affidavit pages 246-247
[11]
See
also
Mnquma
supra
at
paragraph [68] and
Democratic
Alliance and Others v Premier for the Province of Gauteng and Others
[2020] 2 All SA 793
(GP) at paragraph [94] where the section has
been construed to sanction the taking of less intrusive measures
before the more drastic
step of dissolving a municipal council is
taken.
[12]
Heads
of argument – 3
rd
to 7
th
applicants, pages 6-11
[13]
see
Electoral
Commission v Minister of Cooperative Governance and Traditional
Affairs and Others
(CCT
245/21) [2021] ZACC 29
[14]
(CCT
245/21) [2021] ZACC 29
[15]
Answering
affidavit annexures AA1 and AA2
[16]
Answering
affidavit in main application and replying affidavit in contempt
application, paragraphs [16] and [17]
[17]
Ripoll-Dausa
v Middleton NO and Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151E
[18]
at
paragraphs 10.8 and 10.9
[19]
If
it is shown to fall outside the definition of administrative action
in the
Promotion of Administrative Justice Act 3 of 2000
[20]
Mnquma
supra
at paragraph [67]
[21]
See
the discussion thereof in
Retail
Motor Industry Organisation and Another v Minister of Water and
Environmental Affairs and Another
2014 (3) SA 251
(SCA) at paragraph [22]
[22]
Reliance
is sought on
MEC
for Health Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC) at paragraph [105] and
Pharmaceutical
Manufacturers Association of South Africa and Another : In re Ex
Parte President of the RSA and Others
2000 (2) SA 674 (CC)
[23]
See
Premier,
Western Cape v President of the Republic of South Africa
[1999] ZACC 2
;
1999 (3) SA 657
(CC) at paragraph
[85]
footnote 94, and
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999
(4) SA 147
(CC) at paragraph
[63]
[24]
MEC’s
founding affidavit paragraph [19]
[25]
Fakie
N.O. v CII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 332-333
[26]
Department
of Transport and Others v Tasima (Pty) Limited
2017 (2) SA 622
(CC) at paragraph [183]
[27]
Fakie
supra
at paragraph [42]
[28]
Fakie
supra
at 345A and
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018 (1) SA 1
(CC) paragraph [64]
[29]
The
onus
must be understood in the context of the distinction between the
burden of proof properly so called and the evidential burden as
was
expressed in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 548 where, quoting in relevant part, the
following was stated: “… the word
onus
has often been used to denote,
inter
alia
,
two distinct concepts: (i) the duty which is cast on the particular
litigant, in order to be successful, of finally satisfying
the court
that he is entitled to succeed on his claim or defence, as the case
may be; and (ii) the duty cast upon a litigant to
adduce evidence in
order to combat a
prima
facie
case made by his opponent. Only the first of these concepts
represents the
onus
in its true or original sense. In
Brand
v Minister of Justice
1959
(4) SA 712
at 715 Oglivie-Thompson JA called it ‘the overall
onus’. In this sense the onus can never shift from the party on
whom it originally
rested. The second concept may be termed, in
order to avoid confusion, the burden of adducing evidence in
rebuttal (‘weerleggingslas’).
This may shift, or be transferred
in the course of the case, depending upon the measure of proof
furnished by the one party or
the other.” See also Schwikkard Van
Der Merwe,
Principles
of Evidence
,
2
nd
ed Juta at page 539
[30]
Paragraphs
61 and 62
[31]
The
section provides that a dissolution under
section 139(1)(c)
takes
effect 14 days from the date of receipt of the notice of dissolution
by the municipal council unless set aside by the cabinet
member
responsible for local government affairs or the council before
expiry of that period.