About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 1
|
|
Mdunge v Ubuhlebenzwe Municipality and Others (14159/17P) [2019] ZAKZPHC 1 (21 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 14159/17P
In
the matter between:
MDUNGE
NICHOLAS
APPLICANT
AND
UBUHLEBEZWE
MUNICIPALITY
FIRST RESPONDENT
SPEAKER
OF UBUHLEBEZWE
MUNICIPALITY
(and in his personal
Capacity
as CZ MNGONYAMA) SECOND
RESPONDENT
MUNICIPAL
MANAGER UBUHLEBEZWE
MUNICIPALITY
(and in his personal
Capacity
as GM SINEKE) THIRD
RESPONDENT
MEC
FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS-KZN FOURTH
RESPONDENT
INDEPENDENT
ELECTORAL COMMISSION FIFTH
RESPONDENT
E B
NGUBO SIXTH
RESPONDENT
C N
NTABENI SEVENTH
RESPONDENT
E T
SHOBA EIGHTH
RESPONDENT
G J
NGUBO NINTH
RESPONDENT
B M
CALUZA TENTH
RESPONDENT
T C
DLAMINI ELEVENTH
RESPONDENT
H C
JILI TWELFTH
RESPONDENT
N Z
JILI THIRTEENTH
RESPONDENT
B M
KHUBONI FOURTEENTH
RESPONDENT
Z C
KHUMALO FIFTEENTH
RESPONDENT
V C
MKHIZE SIXTEENTH
RESPONDENT
P B
MPUNGOSE SEVENTEENTH
RESPONDENT
S M
MSIMANGO EIGHTEENTH
RESPONDENT
M C
NDLOVU NINETEENTH
RESPONDENT
P
NDLOVU TWENTIETH
RESPONDENT
B R
MDULI TWENTY-FIRST
RESPONDENT
M C
NKOTWANA TWENTY-SECOND
RESPONDENT
T B
NXUMALO TWENTY-THIRD
RESPONDENT
N G
RADEBE TWENTY-FOURTH
RESPONDENT
Z M
SHABALALA TWENTY-FIFTH
RESPONDENT
B R
ZULU TWENTY-SIXTH
RESPONDENT
ORDER
The
following order is made:
1.
The application is dismissed.
2.
The first respondent is to pay the applicant’s costs up to and
including
costs for the 28 March 2018 which costs are to include
costs for one counsel.
JUDGMENT
Delivered on:21
January 2019
Masipa
J
Background
[1]
The applicant in this matter approached court for interim relief set
out in part A
of Notice of Motion. In terms of part A, the
relief sought was as follows:
‘
1.
Dispensing with the forms and service provided for in the Uniform
Rules of Court
and directing that the application be heard on an
urgent basis in terms of Uniform Rule of Court 6(12);
2.
Pending the outcome of Part B below, paragraphs 3-9 shall operate as
an interim interdict
and Court Order;
3.
Ordering the first respondent to reinstate me with immediate effect
as Ward 9 Councillor
with all the benefits and entitlements;
4.
Ordering the third respondent not to inform the fifth respondent in
terms of s 18(1)(b)
of Schedule 1 [Electoral System for Metro and
Local Councils] of the Municipal Structures Act 117 of 1998 (the
act), as amended,
to fill my vacancy;
5.
Ordering the fifth respondent not to declare my position as ward 9
Councillor as vacant
in terms of s 18(1)(a) in terms of Schedule 1
[Electoral System for Metro and Local Councils] of the Act; and
6.
Ordering the second respondent to permit me to carry out my duties
and responsibilities
as Ward 9 Councillor and participate in all
activities of the first respondent.
7.
Granting the Applicant leave to supplement his founding papers within
(10) Court days
from the granting of an order under part A;
8.
Granting the Applicant further or alternative relief; and
9.
That costs be reserved for determination under Part B save in the
event of opposition
in which event any party opposes Part B be held
jointly and severally liable.’
[2]
The application also sought relief in terms of part B of the Notice
of Motion which
was effectively for the review and setting aside of
numerous decisions by the first, second and third respondents and
that such
decisions be declared unlawful and void.
The
relief sought in respect of part B, the review application was as
follows:
PART B
1.
Setting
aside the dismissal of the Applicant as the Ward 9 Councillor as
unlawful and invalid;
2.
Setting
aside the decisions and resolutions of the in-committee meeting of
the 16
th
November 2017, chaired by the second respondent;
3.
Setting
aside the correspondence of the third respondent dated 7 December
2017 addressed to the Applicant as unlawful and invalid;
4.
Declaring
the conduct of all Councillors who participated, voted and took a
decision to dismiss the Applicant as unlawful and invalid
and thereby
set aside.
5.
Declaring
any alleged concurrence granted by the Fourth Respondent to the First
Respondent to dismiss me as Ward 9 Councillor as
unlawful and invalid
and thereby set aside;
6.
Ordering
all the Councillors who participated and supported an unlawful
decision to expel the Applicant as liable for all the legal
costs of
the urgent application of 20 December 2017 and the main application
(review) together with the third respondent, occasioned
by the
employment of two Counsel;
7.
Ordering
the Fourth Respondent for her role in granting the First Respondent
the alleged unlawful and invalid concurrence to expel
the Applicant
as liable for the legal costs of this application; and
8.
Granting
the Applicant further or alternative relief.’
Condonation
[3]
The applicant in this matter filed its heads of argument on 8 August
2018 and failed
to apply for condonation for the non-compliance with
the provisions of Rule 9.4.1 of the Practice Directive for this
court.
[1]
[4]
In terms of the Practice Directive, the applicant was required to
deliver its Heads
of Argument not less than ten clear court days
before the hearing of the matter. The ten clear days ended on 4
August 2018.
In view of the late filing of the Heads of Argument the
applicant was required to seek the court’s indulgence by
applying
for condonation as provided for in the Practice Directive
but failed to do so.
[5]
According to Mr
Sethene
appearing or the applicant, since the
merits of the matter are not in dispute, it is unnecessary for him to
seek the indulgence
of the court. Ms Bhagwandeen who appeared
for the first to third respondents and sixth to 26
th
respondents held a different view. She however indicated the
need to bring this mater to finality and suggested that the
absence
of the applicant’s condonation application be considered when
the court deals with the issue of costs.
[6]
In view of voluminous papers in the matter and the issues involved
which required
finality, and having read the papers, I proceeded to
listen to arguments on the merits of the matter. This however
should
not be mistaken as being an approval or condonation of the
applicant’s disregard of the Practice Directive. In fact,
as has been suggested by Ms Bhagwandeen this issue will be re-visited
when the Court considers the issue of costs.
The
Rule Nisi
[7]
Pursuant to an urgent application which was heard by Chetty J, the
rule
nisi
was issued in respect of part A of the relief sought
with the return date being 31 January 2018. On 31 January 2018,
the
rule
nisi
was extended to 26 February 2018 and the parties
were directed to exchange affidavits.
[8]
On 26 February 2018, the matter was postponed to 28 March 2018. There
was no mention
of the rule
nisi
being extended. The purpose
for the postponement on 31 January 2018 was to allow for the joinder
of the second to 26
th
respondents. Prior to dealing with
the merits of the review application which is relevant to this
judgment, I deal with the one
issue of the rule
nisi
which was
not extended on the 26 February 2018.
[9]
Ms Bhagwandeen submitted that since the rule
nisi
was not
extended on 26 February 2018, it had effectively lapsed and so was
the protection afforded by it to the applicant. I agree
with this
submission since a
rule
nisi
is an order of court with a fixed period of validity and once the
period of validity has expired the rule lapses.
[2]
If the applicant sought the revival of the rule, he could have made
the necessary application as provided for in uniform
rule 27(4). In
the absence of such application, and since there had been no court
order extending the rule nisi
,
it has
lapsed.
[10]
It is necessary to distinguish this case from C
rundall
Brothers (Pvt) Ltd v Lazarus
[3]
where
the court held that the postponement of a rule
nisi
had an automatic effect of extending the rule. In that case, the only
relief was provided by the rule
nisi
and consequently, the court found that to hold that the rule had
lapsed would render the postponement nugatory as there would be
no
rule to confirm on the postponed return date
.
In the
current matter, the relief sought in respect of the review
application is not dependant on the existence or otherwise of
the
rule and is capable of being determined even in the absence of the
lapsed rule
nisi
.
What was removed by the lapsing of the rule was the interim
protection of the applicant.
The
Review
The
Facts
[11]
The facts in this matter are that the applicant was elected as a ward
councillor of ward 9 of
the first respondent on 3 August 2016,
following the local Government elections which he contested as an
independent candidate.
The first respondent is a Municipality
established in terms of s 12 of the Local Government: Municipal
Structures Act, 117 of 1998
(‘the Municipal Structures Act’).
Save for the fourth and fifth respondents, the respondents are
responsible
for the management of the first respondent and serve as
its executive committee members. The fourth and fifth
respondents
are cited as interested parties.
[12]
The applicant was formerly a member of the African National Congress
(‘the ANC’)
and was in 2011 elected as a ward councillor
following local government elections serving a term of 5 years.
In 2016, he
resigned from the ANC and contended the 2016 local
government elections as an independent candidate.
[13]
In October 2017, he attended a political rally by the Young Communist
League and the Congress
of South African Trade Unions (COSATU) in
Durban. At the rally he wore a kanga bearing an ‘ANC’
insignia and
had on few other occasions worn a T-shirt on which the
writing ‘CR17’ appeared, which is a reference to Cyril
Ramaphosa
as a presidential candidate.
[14]
According to the applicant, this angered his adversaries within the
ANC. While not a member
of the ANC he wished for Mr Ramaphosa
to be elected the president of the ANC which he said was for the good
of the country.
Subsequent to the rally and on 10 November
2017, the applicant received correspondence from the second
respondent raising allegations
of him attending a public rally
wearing regalia of a political party which was said to be at odds
with s 27(f)(ii) of the Local
Government Municipal Structures Act
(the Municipal Structures Act’’) regulating the code of
conduct for councillors,
The section relied on was in fact
incorrectly cited since the said section deals with instances where a
councillor becomes a member
of a party which had not nominated him to
the position and has nothing to do with the conduct of councillors..
[15]
The applicant’s conduct was categorised as serious misconduct
and he was called upon to
show cause in writing by 13 November 2017
as to why he should not be charged. According to the applicant,
s 27(f)(ii) applied
to members who were part of political parties
which he was not. Consequently, he did not respond to the
substance of the
allegations raised in the letter of 10 November
2017.
[16]
On 16 November 2017, following a full council meeting, an
in-committee meeting was held and the
applicant was asked to leave
the said meeting. He was thereafter not allowed to return and
was informed that he was no longer
a councillor. On 7 December
2018, he was informed in writing that it had been unanimously
resolved on 16 November 2017 that
he be released as a councillor for
breaching the Municipal Structures Act and that he was dismissed from
his position with effect
from 7 December 2017.
[17]
The applicant contends that he was never charged or served with
charges and was never called
upon to appear before a disciplinary
hearing. The applicant contends further that in addition to s
27(f)(ii) of the Municipal
Structures Act not being applicable to
him, it is not relevant, since it makes no reference to wearing
political regalia. Consequently,
there was no basis to dismiss him as
he had not breached the provisions of the code of conduct for
councillors.
[18]
The applicant sought a cost order against the respondents on the
basis that they exercised public
power without lawful authority and
that such exercise was illegal or
ultra vires
. He contended
further that the first respondent’s councillors contravened
item 2A of schedule 1 of the Local Government:
Municipal Systems Act,
2011 when they moved for his dismissal since this was in conflict
with legislation applicable to local government.
Therefore the sixth
to the 26
th
respondents should be held personally
responsible for costs. Indeed the relevant provision regulating
conduct of councillors is
provided for in schedule 1 of the Local
Government: Municipal Systems 2011 (‘the Municipal Systems
Act’) and not as
was suggested by the first to third
respondents that this was regulated by S27(f)(ii) of the Municipal
Structures Act.
[19]
The applicant also contends that the third respondent is a seasoned
municipal manager having
served in a similar capacity before. He was
required to advise the first respondent’s council to ensure
that its decisions
and resolutions are within the bounds of legality
at all times. Having failed to do so, his conduct amounted to
dereliction his
statutory duties. On 8 December 2017 the applicant’s
attorney responded to the third respondent and advised him that the
applicant’s letter of dismissal was illegal and invalid and is
to be set aside. The third respondent denied any illegality.
It was his conduct which led to the urgent applications resulting in
the first respondents incurring financial costs.
[20]
In their opposing affidavits the first, second and third respondents
raised four points in
limine
which mainly related to the issue
of urgency. The Court when it granted the rule
nisi
would have
considered those issues. Having ruled earlier in this judgment
that the rule
nisi
lapsed, this court will not consider those
issues. In any event, these were not advanced during arguments
by Ms
Bhagwandeen
.
[21]
According to the first to third respondents the applicant had, seven
months prior to the August
2016 elections, been removed as a
councillor of ward 9 by his then political organisation, the ANC.
Effective from 3 August
2016, the applicant was an independent
councillor who was precluded from membership of, or affiliation or
associations with, any
political party, or organisation, as such
conduct would contravene s 27(f)(ii) of the Municipal Structures Act.
Having considered
the provisions of the Municipal Structures Act, I
find that this section was incorrectly relied upon and was
irrelevant to
the allegations raised against the applicant.
[22]
In view of his position as an independent ward councillor, the
applicant was accountable to the
people who elected him and not any
political party. During July 2017, the second respondent
received a complaint from one
Jeffrey Nhlanhla Shoba that on 23 July
2017 the applicant arrived at Shoba’s farm to transport a large
number of ANC members
to an ANC Women’s League meeting.
The complaint was that in doing so, the applicant was associating
himself with certain
members of the ANC who were intimidating members
of the ANC Women’s League. Shoba also laid a criminal
charge against
the applicant.
[23]
The first to third respondents contend that the applicant’s
conduct demonstrated that he
was not an independent councillor. His
conduct demonstrated that he was associating himself with a political
party in clear violation
of the prohibition on him to do so.
During November 2017, the second and third respondents as well as
members of the Executive
Committee of the first respondent received
further reports from members of the public and other officials that
the applicant was
affiliating or associating himself with the ANC.
[24]
The reports were that the applicant had been seen wearing political
regalia of the ANC and attending
meetings plus those of its alliance
partner, the South African Communist party (‘the SACP’).
This was supported
by photographs which the respondents contend was
posted on the applicant’s Facebook account. Several such
photos were
annexed to the opposing affidavit covering the period of
15 - 31 October 2017. On 15 October 2017, he was photographed
wearing
a T-shirt bearing the words ‘SIYAVUMA’ which the
respondents said was a slogan for the ANC deputy president. The
photograph
was at the SACP and Young Communist League rally.
[25]
On 21 October 2017 the applicant posted or published on Facebook that
Cyril Ramaphosa, the deputy
president of the ANC, was his incoming
president. On 31 October 2017 the applicant was photographed wrapped
in a kanga with the
ANC emblem. The respondents contended that the
applicant was at all material times conducting himself as a member of
the ANC and
was canvassing for a preferred candidate with ANC
members. It is contended further that the applicant was
instructing such
members which he was precluded from doing as an
independent councillor.
[26]
Arising from the applicant’s aforesaid conduct the respondents
contended that he had indisputably
re-joined the ANC or affiliated or
associated with the ANC in contravention of s 27(f)(ii) of the
Municipal Structures Act. According
to the respondents, the applicant
no longer qualified to be a councillor. He was said to have
vacated the office by conduct.
The respondents’ council
forwarded the letter of 10 November 2017 to him.
[27]
The applicant replied to that letter on 13 November 2017 by disputing
the allegations raised
against him and requesting evidence to remind
him of the incidents wherein he was said to have beached the
provisions of s 27(f)(ii)
of the Municipal Structures Act. The
respondents provided the applicant with photographs of the
incidents. The applicant
failed or ignored the respondents’
letter calling upon him to show cause why he should not be charged.
The respondents
contended that the applicant was not entitled to the
relief sought since he failed to provide a plausible explanation for
his conduct.
[28]
The first respondent confirmed that on 16 November 2017 its council
continued to debate the applicant’s
purported contravention.
The Deputy Mayor presented the allegations against the applicant
before the council being briefly
that as an independent councillor
the applicant made public his affiliation to the ANC thereby
renouncing his seat as an independent
councillor and that the first
respondent’s council was required to take corrective action.
[29]
Although not specifically stated by the respondents, it is apparent
that the applicant had been
requested to leave the meeting when the
issue was discussed. This is consistent with his version since
the respondent mentions
that the applicant was not allowed back into
the meeting and was informed that he would be advised of the outcome
of the meeting
in respect of his issue.
[30]
The meeting resolved that the applicant be removed as a councillor
and for all necessary steps
to be taken in this regard which included
advising the fourth and fifth respondents and the initiation of a
bi-election; hence
the letter to the applicant dismissing him from
his position as a councillor. The respondents contended that, in view
of the applicant’s
conduct associating himself with the ANC,
the applicant showed a total disregard to the constituency as an
independent councillor.
They averred that there was no merit for this
application launched by the applicant. The respondents asked for a
punitive cost
order against the applicant.
[31]
In reply to the respondents’ contention, the applicant avers
that it was unclear from the
opposing affidavit whether he was
dismissed on 16 November 2017 or 7 December 2017. He contends
further that the respondents
have placed no evidence before the court
to prove that he joined a political party subsequent to his
appointment as an independent
councillor. The applicant
correctly submitted that this was because no proof existed.
[32]
The applicant denied that the first respondent had powers to send him
the letters of 10 November
and 7 December 2017, to take action
against him, or to expel him as a councillor, and submitted that the
first to third and the
6
th
to 26
th
respondents
failed to refer the court to any municipal legislation which granted
them the authority to act against him. He
averred that the
powers which the respondents purported to exercise vest with the
fourth respondent in terms of the Code of Conduct
for councillors
(‘the Councillor’s code’).
[33]
The applicant denied that he had ignored the first respondents’
letter of 10 November 2017
and referred to his letter of the 13
November 2017. He denied that he was present at the meeting of
16 November 2017 when
his fate was deliberated upon.
Importantly, the applicant contends that he was not afforded the
opportunity to be heard before
his fate was decided despite being
present in the vicinity of the meeting and his attempts to gain
entry. The applicant was unaware
of any complaints by his
constituency.
[34]
The applicant confirms that he attended ANC rallies and that he
wrapped himself with a kanga
bearing the ANC emblem. Also, that
he was seen wearing the ‘CR17’ T-shirt, which conduct he
suggests angered
his adversaries who were campaigning for Dr
Nkosazana Dlamini Zuma (‘NDZ’). He confirmed the
Facebook posts which
were intended to encourage the ANC members to
vote for Mr Ramaphosa as their president.
[35]
According to the applicant, the letter of 10 November 2017 was
influenced by the NDZ camp.
In terms of s 19(1)(c) of the
Constitution of the Republic of South Africa, 1996 (‘the
Constitution’) every citizen
has the freedom to make political
choices including campaigning for a political party or any cause.
According to the applicant,
campaigning for Mr Ramaphosa was an
exercise of his constitutional right. He averred therefore that
his dismissal was an
infringement of his constitutional right.
[36]
The applicant contends that the fourth respondent’s office
failed its constitutional duty
to prevent the first respondent’s
unlawful conduct. The applicant contends that the resolution by the
first respondent’s
council contravened the principle of
legality and that the decision to dismiss him was irrational,
arbitrary and attacked the principles
of natural justice. He
contends that he committed no misconduct or criminal offence.
[37]
The applicant also contends that in terms of s 44 of the Municipal
Structures Act, his dismissal
should have been discussed by the first
respondent’s executive committee which was then required to
recommend the dismissal
to the municipal council. In the
absence of this, the decision to dismiss and the resolution taken
were illegal, irrational
and arbitrary and must be reviewed and set
aside.
[38]
While the fourth respondent filed an affidavit abiding the decision
of the court, in that affidavit
the fourth respondent denies having
supported the first respondent in the dismissal of the applicant and
denies any justification
for a declaratory order sought by the
applicant against the fourth respondent.
[39]
On 22 November 2017, the fourth respondent received a letter from the
first respondent advising
of its resolution to release the applicant
as a councillor and sought for the fourth respondent’s
concurrence. Pursuant
to this, a meeting was held between the
first respondent’s representative and the lawyers of the fourth
respondent. At this
meeting it was explained that any complaint of a
breach under the Councillor’s Code of Conduct was actionable by
the fourth
respondent. There was therefore no support by the fourth
respondent that the applicant be removed from his position as a
councillor.
Further
Affidavits
[40]
Pursuant to the delivery of the applicant’s replying affidavit
and without leave of the
court, the applicant filed a supplementary
affidavit dated 8 May 2018 which he contends was necessitated by the
letter of 22 March
2018 from the third respondent seeking to rescind
its decision to dismiss him. This conduct was, according
to the applicant,
not competent since the applicant was legally
represented and also that it amounted to a concession that his
dismissal had been
unlawful from the beginning. He submitted that the
fourth and fifth respondents should be absolved from paying costs and
that a
cost order should be made against the first to third
respondents and the sixth to twenty sixth respondents (‘the
respondents’)
jointly and severally he one paying the other to
be absolved.
[41]
Similar to the applicant’s conduct, the respondents filed
supplementary answering affidavits
dated 1 August 2018 without leave
of the court. Uniform rule 6(5)(e) provides that further affidavits
may only be allowed at the
discretion of the court. As was held in
Hano
Trading CC v JR 209 Investments (Pty) Limited
[4]
a court ‘has the sole discretion whether to allow the
affidavits or not. A court will only exercise its discretion in this
regard where there is good reason for doing so’
[5]
and that ‘to permit the filing of further affidavits severely
prejudices the party who has to meet a case based on those
submissions’
[6]
.
[42]
The court
stated in
James
Brown
&
Hamer
(
Pty
)
Ltd
[7]
that:
‘
It
is in the interests of the administration of justice that the
well-known and well established general rules regarding the number
of
sets and the proper sequence of affidavits in motion proceedings
should ordinarily be observed. That is not to say that those
general
rules must always be rigidly applied: some flexibility, controlled by
the presiding Judge exercising his discretion in
relation to the
facts of the case before him, must necessarily also be permitted.
Where, as in the present case, an affidavit is
tendered in motion
proceedings both late and out of its ordinary sequence, the party
tendering it is seeking not a right, but an
indulgence from the
Court: he must both advance his explanation of why the affidavit is
out of
time
and satisfy
the
Court
that,
although
the
affidavit
is
late, it
should,
having
regard
to
all
the circumstances of the case,
nevertheless be received…’
[43]
In
Standard
Bank
of
SA
Ltd
v
Sewpersadh
&
another
[8]
the court correctly held that a litigant is not allowed to simply
take it upon himself to file an additional affidavit. Where a
party
wishes to file a further affidavit, a formal application for leave to
do so must be made. The court ruled that the affidavit
fell to be
regarded as non-existent.
[44]
It is trite that there are three sets of affidavits allowed in
proceedings which are dealt
with by way of application. Further
affidavits may only be filed with leave of the court which will only
be granted in special
circumstances such as where something new
arises from a replying affidavit.
[9]
In that instance, there must be a satisfactory explanation why the
information was not placed before the court in the initial
affidavits.
[10]
A reading of
the further affidavits filed make it apparent that there were issues
which arose pursuant to the permitted affidavits
which called for the
filing of further affidavits. While leave of this court was not
sought as is required by the provisions of
uniform rule 6(5)(e), such
affidavits were essential for the proper consideration of the matter
since they placed relevant facts
before the court. It is therefore in
the interest of justice that they be allowed.
[45]
The third respondent as the deponent of the further affidavit filed
on behalf of the respondents
set out the history of the matter. This
included a contention that the rule
nisi
lapsed on 26 February
2018 as it was not extended, with the result that the applicant’s
protection arising from the interim
relief had expired.
[46]
The third respondent confirmed the meeting between the
representatives of the first respondent
and the fourth respondent.
He averred however that following the meeting a decision was taken by
the representatives of the
first respondent to rescind its decision
to remove the applicant as a councillor. To formalise this, a
resolution was taken
on 22 March 2018.
[47]
On 22 March 2018 the first respondent’s attorneys sent an email
to the applicant’s
attorneys with the proposed settlement that
the first respondent withdraws the decision to dismiss the applicant
as a ward councillor
coupled with a tender to pay the applicant’s
party and party costs including fees for one counsel. The
applicant’s
attorney undertook to revert to the offer by 23
March 2018. This was prior to the joinder of the sixth to the
26
th
respondents. The offer was rejected as the
parties could not reach agreement on the issue of costs.
[48]
The first to the third respondents contended that the matter was
resolved as the applicant was
effectively re-instated following the
rescission of the first respondent’s council decision.
According to the respondents,
an appropriate order finalising the
matter should have been taken on 28 March 2018 when the matter was in
court.
[49]
The third respondent contended that he was erroneously cited as a
respondent in his personal
capacity since he was not present at the
council meeting when the resolution was taken. He
contended further
that since the essence of one matter, being the
dismissal, was reserved, the joinder of the sixth to 26
th
respondents was unnecessary.
The
Issue to be decided
[50]
What is apparent in terms of the main issues in this matter is that
this court is called upon
to determine whether the first respondent’s
decision to dismiss the applicant should be reviewed and set aside.
Another
issue is that relating to costs of this application.
Analysis
[51]
As set out from the facts above, the applicant seeks this court to
review and set aside the decision
by the first respondent to dismiss
him. It is apparent that the first respondent lacked the
requisite authority to dismiss
the applicant and that such power
vests with the fourth respondent in terms of item 14 of schedule 2 of
the Municipal Systems Act.
[52]
Consequently, the first respondent’s resolution and subsequent
conduct to dismiss the applicant
was invalid and of no force and
effect. However, since this was put into operation with the
applicant being removed from
office and prevented from performing his
functions, it was necessary for him to approach court to seek
appropriate relief.
[53]
It is evident that following the meeting between the representatives
of the first respondent
and those of the fourth respondent, some
concession was made regarding the wrongfulness of the resolution
passed by the first respondent’s
council and the subsequent
conduct of dismissing the applicant. Consequently, the first
respondent resolved to rescind the resolution
and to reinstate the
applicant as ward councillor for ward 9. The applicant suggests that
the first respondent’s conduct
of rescinding the resolution was
impractical and of no force since there is no provision for it and it
was not sanctioned by the
principles of legality.
[54]
The applicant relied on
Economic
Freedom Fighters and Others v Speaker of the National Assembly
[11]
at para 75 where the following was said:
‘
The rule of law requires that
no power be exercised unless it is sanctioned by law and no decision
or step sanctioned by law may
be ignored based purely on a contrary
view we hold. It is not open to any of us to pick and choose which of
the otherwise effectual
consequences of the exercise of
constitutional or statutory power will be disregarded and which given
heed to. Our foundational
value of the rule of law demands of us, as
a law-abiding people, to obey decisions made by those clothed with
the legal authority
to make them or else approach courts of law to
set them aside, so we may validly escape their binding force.’
[55] In
Member of the Executive
Council for Health, Eastern Cape and another v Kirland Investments
(Pty) Ltd t/a Eye & Lazer Institute
[12]
the court stated that the nature of the mandate the Constitution
entrusts to public officials does not require them to be infallible
and that the Constitution anticipates imperfection, subject to the
corrections and constraints of the law. Therefore administrators
cannot without recourse to legal proceedings, disregard
administrative actions by their peers, subordinates or superiors if
they
consider them mistaken as this would amount to self-help. This
would allow officials to take the law into their own hands by
ignoring
administrative conduct they consider incorrect. The result
would be confusion and conflict, to the detriment of the
administration
and the public and would undermine the courts’
supervision of the administration.
[56]
It is correct that public figures must operate within the rule of law
and that unless decisions
have been set aside, they must be complied
with. It is trite that a
municipal
council acts through its resolutions. As was stated by Nugent JA in
Manana v
King Sabata Dalindyebo Municipality
[13]
:
‘
No doubt a municipal council is
entitled to rescind or alter its resolutions. And no doubt an
interested party is entitled to challenge
its validity on review. But
once a resolution is adopted in my view its officials are bound to
execute it, whatever view they might
have on the merit of the
resolution, in law or otherwise, until such time as it is either
rescinded or set aside on review.’
[57]
When errors are committed by the municipal council, these should be
capable of correction by
the rescission of such resolution and where
necessary, the passing of necessary resolutions. This cannot amount
to self-help since
a correctly sanctioned administrative process
would have been invoked for the correction of such error. It would
not be necessary
to approach court each time an error is committed
and corrected by the municipal council otherwise the courts would be
inundated
with review applications to deal with resolved issues.
[58]
The suggestion by the applicant that once a matter is before court,
parties cannot resolve their
dispute cannot be correct since this
would prevent parties from settling matters out of court adding
unnecessary work on the judiciary
which is already heavily loaded
with work. Parties are in fact encouraged to resolve their own
disputes and this can be seen in
Rule 37 conferences
[14]
which amongst others consider whether parties have attempted to
settle their disputes. Indeed the first respondent’s conduct
in
rescinding its resolution to dismiss the applicant was competent and
in compliance with the rule of law.
[59]
Since it was competent for the first respondent to rescind its
decision, the basis for the review
application fell away. Therefore
the only issue remaining before the parties is that of costs. The
relief sought by the applicant
reviewing and setting aside the
resolution is no longer necessary in light of this. This was in fact
conceded to by the parties
in their Heads of Argument.
Counsel’s
Costs
[60]
The respondents contended that the applicant is only entitled to the
costs of one counsel since
the matter was not unduly complicated and
both counsel representing him were junior having practiced for two
years and below. The
applicant’s conduct of pursuing the matter
when the cause had fallen away was said to be a misuse of the court
process which
ought to be met with a punitive cost order.
[61]
It is evident as has been found in this judgment that the decision of
the first respondent was
invalid
[15]
since the first respondent’s council usurped powers which rest
with the fourth respondent. The applicant was therefore operating
within the protection of his rights when he approached court for the
relief he sought in part B, the review application. This was
accepted
by the first to third respondents hence the tender for costs which
was made prior to the hearing of the joinder application.
[62]
The applicant seeks a punitive costs order to hold the third
respondent and the sixth to 26
th
respondents personally
liable for his costs. As set out in the further affidavit filed by
these respondents, the third respondent
was not present when the
decision sought to be reviewed was taken. Consequently, the
applicant’s contention that the third
respondent failed to
advise the first respondent’s council cannot be sustained. As
regards the sixth to 26
th
respondents, the merits of the
case could have been resolved by 28 March 2018 which would have
rendered the joinder application
nugatory.
[63]
According to the applicant, the nature and complexity of the matter
is such that it was reasonable
for him to employ more than one
counsel. Further that there were important questions of law raised in
the matter. In the circumstances,
it was argued that it was not
overcautious for the applicant to employ two counsel. The applicant
relies on the respondents’
conduct of the matter, mainly the
fact that it took approximately eight months for the respondents to
realise that the first respondent’s
decision to dismiss the
applicant was wrong. Mr
Sethene
relied on
Newman
v Prinsloo
[16]
where the court considered the use of two counsel and set the test to
be whether it is ‘a wise and reasonable precaution’
for
two counsel to be appointed.
[64]
Ms Bhagwandeen denied that there was any complexity in the matter nor
were there any issues of
law which arose necessitating two counsel in
the matter. This was especially because both counsel were junior with
below two years’
experience.
[65]
In
City
of Cape Town v Arun Property Development (Pty) Ltd & another
[17]
,
the court held that when considering the reasonableness of counsel’s
fees, consideration must be given to among others ‘the
complexity of the matter; the volume of the case; the level of
counsel’s fees . . .; inflation; and the fact that counsel
must
be fairly compensated for preparation and presentation of argument’.
[66]
While it was correct that the first respondent only became aware of
the wrongfulness of its decision
after meeting with the fourth
respondent’s attorneys, this does not mean the matter is
complex. There is no indication that
the first respondent had
consulted its own attorneys for advice. What is apparent from the
evidence is that the first and third
respondents dealt with the
matter on their own and clearly misinterpreted the extent of their
powers.
[67]
The applicant’s institution of this application was well
merited at least up until the
22 March 2018 (which is when the
resolution was rescinded), including any subsequent consultation
between him and his attorney
and counsel to consider the legality of
that rescission. Once the resolution was rescinded, he should
have withdrawn the
application. Therefore his cost should be limited
to the 28 May 2018 when the matter was in court and could have been
withdrawn.
[68]The applicant had the
benefit of his attorneys including that of counsel. It was
unnecessary for him to have two counsel in
the matter. In fact, there
is nothing before court to suggest what role was played by each of
the counsel. Of course there appears
to be some concession from Mr
Sethene
that the costs for two counsel be restricted only to
part A of the matter. In my view, part A fell away when the rule nisi
which
was granted lapsed on 28 March 2018
[69]
In respect of the costs associated with part B of the matter, the
applicant’s conduct of
the matter in failing to file heads of
argument timeously and then disregarding the provisions of the
Practice Directive must be
met with the contempt that it deserves. I
am of the view that this can be met by not awarding the applicant any
cost order. In
any event, the relief sought by the applicant fell
away when the decision to dismiss him was rescinded and the
application in respect
of Part B ought to have been withdrawn at that
stage. Any costs incurred thereafter were unnecessary. The court is
also displeased
with the litigants disregard of the provisions of
Uniform rule 6(5)(e) when they proceeded to file further affidavits
without seeking
leave of the court, notably, the respondents further
affidavit was quite lengthy. Consequently, the courts view is that
none of
the parties in this mater deserve a cost order.
[70]
In the premises, the following order is made:
1.
The application is dismissed.
2.
The first respondent is to pay the applicant’s costs up to and
including
costs for the 28 March 2018 which costs are to include
costs for one counsel.
Masipa
J
DETAILS
OF THE HEARING
Date
of hearing:
22 August 2018
Date
of Judgment:
21 January 2019
Appearances
Counsel
for the applicant:
Mr
Sethene
Instructed
by:
Sifiso Chili & Associates
Counsel
for the first to third
and
sixth to 26
th
respondents: Ms
Bhagwandeen
Instructed
by:
Gcolotela & Peter Incorporated
[1]
Practice Manual of the KwaZulu-Natal Division of
the High Court of 2 April 2004, as amended
[2]
[zRPz]
Fisher
v Fisher
1965
(4) SA 644 (W).
[3]
C
rundall
Brothers (Pvt) Ltd v Lazarus NO
1991
(3) SA 812
(ZH) at 823G-I
[4]
Hano
Trading
CC
v
JR
209
Investments
(Pty)
Limited
[2012]
JOL
29725
(SCA)
[5]
Hano Trading,
para
11
[6]
Hano Trading,
para
14
[7]
James
Brown
&
Hamer
(
Pty
)
Ltd
(
previously
named
Gilbert
Hamer
&
Co
Ltd
)
v
Simmons
NO
1963 (4) SA 656
(A) at 660D-F,
[8]
Standard
Bank
of
SA
Ltd
v
Sewpersadh
&
another
2005 (4) SA
148
(C) para 12-13.
[9]
Afric Oil (Pty)
Ltd v Ramadaan Investments CC
2004 (1) SA 35
(N) at 38I-39B.
[10]
Herbstein and Van Winsen
Civil
Practice of the High Courts and the Supreme Court of Appeal of South
Africa
5ed (2009) at 435.
[11]
Economic
Freedom Fighters v Speaker of the National Assembly & others;
Democratic Alliance v Speaker of the National Assembly
& others
(Corruption Watch (RF) NPC as
amicus
curiae) 2016 (5) BCLR 618 (CC).
[12]
Member of the
Executive Council for Health, Eastern Cape & another v Kirland
Investments (Pty) Ltd t/a Eye & Lazer Institute
2014 (5) BCLR 547
(CC)
para 88 - 89.
[13]
[zRPz]
Manana
v King Sabata Dalindyebo Municipality
[2011]
3 All SA 140 (SCA)
[14]
Uniform rule
37.
[15]
See para 29(a) of Ngqele v King
Sabata
[2011] 8 BLLR 817
(ECM)
[16]
Newman v Prinsloo & another
1974 (4) SA 408
(W) at 411C-F. See
also
Burroughs Machines Ltd
v Chenille Corporation of SA (Pty) Ltd
1964 (1) SA 669
at 678B
[17]
City of Cape
Town v Arun Property Development (Pty) Ltd & another
2009 (5) SA 227
(C), para 24. See also
D
B M Huurmasjiene v Administrateur, Oranje-Vrystaat
1987 (4) SA 264
(O) and
President
of the Republic of South Africa & others v Gauteng Lions Rugby
Union & another
[2001] ZACC 5
;
2002
(1) BCLR 1
(CC)