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[2019] ZAFSHC 151
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Oliphant v Speaker of the Municipal Council: Fezile Dabi District Municipality and Others (5613/2018) [2019] ZAFSHC 151 (15 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
5613/2018
In
the matter between:
ANNA
MAGUGUDI
OLIPHANT
Applicant
And
THE SPEAKER OF THE
MUNICIPAL
COUNCIL: FEZILE
DABI DISTRICT MUNICIPALITY:
LUCKY
KUBEKA
1
st
Respondent
FEZILE DABI DISTRICT
MUNICIPALITY
2
nd
Respondent
PAULUS MOEKETSI
MOSHODI
3
rd
Respondent
HEARD
ON:
07 MARCH 2019
JUDGMENT
BY:
CHESIWE, J
DELIVERED
ON:
15 AUGUST 2019
REASONS FOR
JUDGMENT
[1]
This is an Application to Compel that came before me in the unopposed
motion court on 07
th
March 2019.
[2]
The Applicant seek the following relief in the application:
“
1. That the
Respondents be compelled to comply with the direction of the Notice
of Motion and to provide a complete record of the
proceedings sought
to be reviewed as set out in the Notice of Motion dated 07 November
2018.
2. That the Respondents
be ordered to pay the cost of this application.”
[3]
I granted the order in terms of the above relief as sought by the
Applicant. On the 17 April 2019 the First, Second and
Third
Respondent requested written reasons in respect of the order granted
in the unopposed Motion. These are my reasons.
[4]
The Applicant is the former Executive Mayor of the Fezile Dabi
District Municipality.
[5]
The First Respondent is The Speaker of the Municipal Council for the
Fezile Dabi District Municipality, cited herein in his
official
capacity.
[6]
The Second Respondent is the Fezile Dabi District Municipality, an
Organ of State in terms of the relevant legislation governing
local
spheres of government.
[7]
The Third Respondent is Paulus Moeketsi Mosholi, the newly elected
Executive Mayor of the Second Respondent.
[8]
The background of this matter is summarized as follows: On the
17 October 2018 the Second Respondent passed a resolution
in terms of
which a vote of no confidence was passed against the Applicant in her
capacity as Executive Mayor of the Second Respondent
(a position she
occupied since 2016). After the vote of no confidence was
passed, the Applicant sent a letter dated 11 October
2018 informing
The Speaker that the correct rules as set out in Rule 90 of the
Municipality Standard Rules and Orders was not followed
in the
removal of the Applicant as the Executive Mayor. On the 06
November 2018 the Applicant launched a Review Application
in which
the Applicant sought to be reinstated in her former position as
Executive Mayor, and that the vote of no confidence be
reviewed and
set aside. The Respondents filed a Notice to Oppose the
application on the 20
th
November 2018.
[9]
On the 22 November 2018, the Applicant’s Attorney sent a letter
to
the
Attorney of the Respondents requesting the record of the proceedings,
which letter reads as follows:
“
1. We refer to the
above mentioned matter and your Notice of Intention to Opposed as
served upon our offices on the 20
th
November 2018.
2. In terms of the Notice
of Motion your client has 15 (fifteen) days, after receipt thereof to
file the record of the proceedings.
We thus kindly enquire on when
your client intends on filling the same as such has to be done on or
before the 29
th
November 2018.
3. We trust you find the
above in order and await your response.”
[10]
The Legal Representative on behalf on of the Applicant wrote another
letter requesting for the record of the proceedings and
informed the
Respondents’ Attorney that if the record is not received on 3
rd
December 2018, an application to compel will be launched in this
Honourable Court. The Legal Representative on behalf of the
Respondents
requested in a correspondence attached as annexure “AO5”
to the application that the Application to Compel be put in
abeyance
as the Legal Representative still had to consult with the
Respondents.
[11]
The Applicant on not receiving the record of proceedings proceeded to
launch the Application to Compel which was set down on
the unopposed
roll of the 07
th
March 2019. Though a Notice
to Oppose was filed by the Respondents on 29
th
January
2019, no opposing affidavit was filed.
[12]
The issues for determination is whether the Respondents failed to
deliver the record of proceedings as requested by the Applicant
as
set out in the notice of motion and in accordance with Rule 53 of the
Uniform Rules of Court.
[13]
Rule 53 of the Uniform Rules of Court provides that:
“
(1) save where any
law otherwise provides, all proceedings to bring under review
the decision or proceedings of any inferior
court and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of
notice of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate, presiding
officer, chairman of that
court, tribunal or board or to the officer, as the case may be, and
to all other affected parties-
(a) Calling upon such
persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside,
and
(b)
Calling upon the magistrate, presiding officer, chairman of other
officer, as the case may be, to dispatch, within fifteen days
after
receipt of the notice of motion, to the registrar the record of such
proceedings sought to be corrected or set aside, together
with such
reasons as he is by law required or desires to give or make, and to
notify the applicant that he has done so.”
[14]
Section 6 of the Promotion of Administration Justice Act 3 of 2000
provides that:
“
(1) any person may
institute proceedings in a court or a tribunal for the judicial
review of an administrative action.
(2) A court or tribunal
has the power to judicially review an administrative action.”
[15]
Section 33 of The Constitution of South Africa Act 108 of 1996
provides that:
“
(1) everyone has
the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) everyone whose rights
have been adversely affected by administrative action has the right
to be given written reasons.”
[16]
Section 34 of the Constitution of South Africa Act 108 of 1996
provides that: “everyone has the right to have any dispute
that
can be resolved by the application of law decided in a fair public
hearing before a court or where appropriate, another independent
and
impartial tribunal or forum.”
[17]
The Applicant served the Respondents with a Notice of Motion on the
8
th
November 2018, whereby the Respondent was called upon
to supply the record of proceedings to the Applicant. After
numerous
letters to the Respondents’ Attorneys requesting these
records, the Applicant had no option but to launch the Application
to
Compel which was served on the Respondents’ Attorneys on 25
February 2019. Bearing in mind that the letters, annexures
“AO3” dated 22 November 2018 and “A04” dated
3 November 2018, where dispatched to the Respondents in order
for the
Applicant to be supplied with the record of the proceedings. In
both these correspondence the Applicant made the
same request.
Instead the Respondents answered with a letter dated 05 December
2018, annexure “A05” that reads
as follows:
“
1. We refer to the
above and both your letters sent per fax to our offices on the 22
nd
December 2018 and 03 December 2018 respectively.
2. We are in the process
of consultations with clients herein and shall be in a position to
file the said documents during the course
of next week and such
kindly accept our sincere apologies for the delay as we have
encountered circumstances being and our control
3. In light thereof,
kindly put in abeyance your intended application to compel our client
herein.
4. We hope the above is
in order and request further that we use electronic mail herein for
purposes of correspondence for swift
and efficient exchange herein.”
[18]
It appears from the Applicant’s founding affidavit, the
Respondents failed to file a complete record of the proceedings
and
that prompted the launch of the Application to Compel which was
acknowledged and signed by the Respondents’ Legal
Representative
on 25 February 2019. It was filed in court on 25
February 2019. The Respondents opposed the application and
filed same
on 29 March 2019. On closer analyses of the dates.
The Respondent only filed the record of proceedings on the 01 March
2019,
which is a further indication that the records were furnish
only after the launched of the Application to Compel was filed on 25
February 2019.
[19]
Indeed the Respondents opposed the application to compel by filling a
notice of intention to oppose. However, failed to file
an opposing
affidavit within the required 10 days after receipt of the
Application to Compel. Thus the matter was placed
correctly on
the unopposed roll and that the court had to deal with it as an
unopposed matter and to grant the Applicant the relief
sought.
[20]
Rule 53 (b) provides that within 15 days after receipt of the Notice
of Motion the Applicant is to be supplied with the record
of the
proceedings. The court stamp on the record of the proceedings
as filed is dated 01 March 2019. From the date
the Review
Application was launched, the Respondents took approximately three
months to furnish the Applicant with the record of
the proceedings.
The Applicant cannot be faulted for having approached the Honourable
court with an Application to Compel.
The Applicant only
launched the Application to Compel in January 2019, this was actually
very accommodative towards the Respondents
as the extension had
already surpassed the required fifteen (15) days by far. It is
understandable that the Applicant was
exhausted by the delay caused
by the Respondents in obtaining the record of the proceedings.
The Applicant had been quite
patient with the Respondents and thus
acted within her constitutional rights to obtain the record of
proceedings as is imperative
to have the record for purpose of the
review application.
[21]
It has been emphasized by the courts in several review matters that
without the records, a court cannot perform its
constitutionally entrenched review function.
[1]
The consequences of lack of such information will in effect affect a
litigant’s rights in terms of section 34 of the
Constitution,
and thus violated those rights and nor will such a litigant
have a fair public hearing before court without
the record of
proceedings.
[22]
Thus Rule 53 is available to an applicant wishing to review decisions
before court. It requires the decision-maker against
whom a
review application is made, in this instance the First, Second and
Third Respondents to produce the record of proceedings
and furnish
such record within fifteen days of the application. Undeniably
a Rule 53 record is an invaluable tool in the
review process.
[2]
[23]
It is clear from the correspondence between the parties, that is,
annexure “AO3” dated 22 November 2018, annexure
“AO4”
dated 3 November 2018 and annexure “AO5” dated 05
December 2018, that the Applicant has requested
the record of
the proceedings but to no avail. The Applicant only received
such records on the 01 March 2019. The letter
from the Respondents
gave the Applicant the impression that the record will be furnished,
but nothing came forth. The
dies
referred in the Notice
of Motion run with no filing of the record of proceedings. The
Applicant in annexures “AO3”
and “AO4”
forewarned the Respondents that the Application to Compel will be
instituted if no records are received.
Consequently due to the
Respondents lack of timeous response, the Applicant had no other
remedy than to launch the Application
to Compel.
[24]
Indeed it is so that for the court to perform its judicial functions
in terms of the provisions of Rule 53 of the Uniform Rules
of Court,
the court relies on the record of proceedings. The purpose of
Rule 53 was stated in the matter of
Helen
Suzman Foundation v Judicial Service Commission,
[3]
that:
“by facilitating access to the record of the proceedings under
review, the rule enables a the courts to perform their
inherent
review function to scrutinise the exercise of public power for
compliance with the constitutional prescripts.”
[25]
Hence the purpose of Rule 53 is to facilitate applications of review
and thus it was imperative for the Applicant to be provided
with the
record of the proceedings. The Applicant had no other relief
than to approach the Honourable court with an Application
to Compel.
Thus in my view the Respondents failed to comply with
supplying the Applicant with the record of the proceedings
within the
prescribed period of 15 days as required. In my view the
Applicant should be granted the relief sought.
[26]
The Applicant would not have incurred costs had the Respondents
timeously supplied the record of proceedings. As the Applicant
has
succeeded in this application, there was no reason not to grant the
usual order that costs follow the successful party.
ORDER
[27]
In the premises, I accordingly made the following order;
1. The Respondents be
compelled to comply with the direction of the Notice of Motion and
provide a complete record of the proceedings
sought to be reviewed as
set out in the Notice of Motion dated 07 November 2018.
2. That the Respondents
be ordered to pay the cost of the application.
________________
S. CHESIWE, J
On
Behalf of the Applicant: Adv. D.C. Hattingh
Instructed
By: Kramer Weihmann & Joubert Attorneys
BLOEMFONTEIN
On
behalf of the First to Third Respondents: Mr. T Malgas
Instructed
By: Moroka Attorneys
BLOEMFONTEIN
[1]
Democratic
Alliance v The Acting National Director of Public Prosecution
(288/11)
2012 ZASCA 15
20 March 2012.
[2]
Turnbull-Jackson
v Hibiscus Coast Municipality and Others
[2014] ZACC 11
September
2014.
[3]
(CCT289/16)
[2018] ZACC 8
;
2018 (4) SA 1
(CC);
2018 (7) BCLR 763
(CC) (24 April 2018)