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[2018] ZALMPPHC 27
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Thabazimbi Residents Association v Municipality Manager (Acting): Tbabazimbi Local Municipality and Others (4618/2017) [2018] ZALMPPHC 27 (25 May 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 4618/2017
Reportable
25/5/2018
IN
THE MATTER BETWEEN:
THE
THABAZIMBI RESIDENTS
ASSOCIATION
APPLICANT
AND
THE
MUNICIPALITY MANAGER (ACTING): THABAZIMBI
LOCAL
MUNICIPALITY
1
ST
RESPONDENT
ELECTORAL
COMMISSION
2
ND
RESPONDENT
THABAZIMBI
LOCAL
MUNICIPALITY
3
RD
RESPONDENT
MIDAH
MOSELANE
4
TH
RESPONDENT
MPHO
MOLOKO
5
TH
RESPONDENT
JUDGMENT
MULLER
J:
[1]
The applicant is the Thabazimbi Residents Association
[1]
which is a political party. The fourth and fifth respondents are
erstwhile members of the applicant. The applicant obtained two
party
representation seats in the Thabazimbi Local Municipality, (the third
respondent) during the 2016 local government elections.
These seats
were filled by the fourth and fifth respondents. The applicant
instituted disciplinary proceedings against the two
respondents. The
reason for the disciplinary proceedings is irrelevant for purposes of
this judgment. The disciplinary proceedings
continued and resulted in
the expulsion of fourth and fifth respondents from the applicant with
effect from 1 June 2017.
[2]
Whilst disciplinary proceedings were pending, the two respondents
approached this court for an interdict to refrain the applicant
from
proceeding with the disciplinary hearing. The application was
dismissed with costs on 8 May 2017. No steps, in addition to
the
application for an interdict, were taken to review and set aside the
expulsion.
[3]
The first respondent is the acting municipal manager of the third
respondent. On 5 June 2017 notice was given to the first respondent
that the membership of the fourth and fifth respondents had been
terminated. Despite proper notice, the first respondent has failed
to
notify the chief electoral officer of the electoral commission
(second respondent) as he is duty bound to do so in terms of
the
provisions of Item 18(1)(b) to the Municipal Structures Act.
[2]
Item 18(1)(a) and (b) of Schedule 1 to the Act reads:
“
(a) If a
councillor elected from a party list ceases to hold office, the chief
electoral officer must, subject to item 20, declare
in writing the
person whose name is at 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 7 days
after the councillor has ceased
to hold office, inform the chief electoral officer accordingly.”
[4]
The applicant approached this court for an order to compel the first
respondent to comply with Item 18(1)(b).
[5]
The first and third respondents counsel argued that the decision of
first respondent that the two councillors ceased to hold
office is
administrative in nature and subject to judicial review. It is
contended that a municipal manager is required to apply
his mind to
the question and that due to the ongoing dispute between the fourth
and fifth respondents and the applicant, the first
respondent was
unable to make the necessary decision. And, in addition, it was
contended that due to the fact that the fourth respondent,
is also
the elected mayor, only the council have the authority to remove the
mayor.
[6]
The argument by counsel appearing on behalf of the fourth and fifth
respondents, as I understand it, is that this court must
go behind
the decision of the disciplinary committee and reconsider the merits
and also if there were any irregularities in relation
to the
proceedings to determine if the decision of the committee was
correctly arrived at. It was contended that the relief claimed
should
be refused if there were irregularities, without disturbing the
findings of the committee.
[3]
[6]
I turn to deal first with the contentions on behalf of the fourth and
fifth respondents. In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[4]
the court explained that consequences which flow from an unlawful
decision where there is a second decision which follows upon
such
first decision has legal implications or consequences. The court
held:
“
But the question
arises is what consequences follow from the conclusion that the
Administrator acted unlawfully. Is the permission
that was granted by
the Administrator simply to be disregarded as if it never existed? In
other words, was the Cape Metropolitan
Council entitled to disregard
the Administrator’s approval and all its consequences merely
because it believed that they
were invalid provided that its belief
was correct? In our view, it was not. Until the Administrator’s
approval (and thus
also the consequences of the approval) is set
aside by a court in proceedings for judicial review it exists in fact
and has legal
consequences that cannot be simply overlooked.”
[5]
In
MEC For
Health Eastern Cape and Another v Kirkland Investments (Pty) Ltd t/a
Eye Lazer Institute
[6]
the constitutional court, with reference to and with the approval of
the
Oudekraal
decision held:
“
Can a decision by
a state official, communicated to the subject, and in reliance on
which it acts, be set aside by a court even
when the government has
not applied (or counter-applied) for the court to do so? Differently
put, can a court exempt government
from the burdens and duties of a
proper review application, and deprive the subject of the protections
these provide, when it seeks
to disregard one of its own officials’
decisions? That is the question the judgment of Jafta J (main
judgment) answers. The
answer it gives is Yes. I disagree. Even where
the decision is defective-as the evidence here suggests - government
should generally
not be exempt from the forms and processes of
review. It should be held to the pain and duty of proper process. It
must apply formally
for a court to set aside the defective
decision..”
[7]
[7]
Counsel on behalf of applicant relied on
Cathcart
Residents Association v Municipal Manager for the Amahlathi
Municipality
[8]
where it was held that the same considerations apply with equal force
to decisions taken by voluntary associations. I agree.
[8]
The Act prescribes instances in terms whereof a councillor vacates
his/her seat and puts up a system whereby a municipal manager
must
notify the chief electoral officer should a vacancy occur if a
councillor ceases to hold office. This system will be unworkable
if
councillors and the municipal manager disregard the provisions of
section 27 with impunity, which states:
“
A councillor
vacates office during a term of office if that councillor-
(a) resigns in writing;
(b) is no longer
qualified to be a councillor;
(c) was elected from a
party list referred to in Schedule 1 or 2 and ceases to be a member
of the relevant party;
(d) ….
(e) ….
(f) ….”
[9]
A municipal manager may not disregard a notice to him/her informing
him/her that a decision had been taken by a political party
to expel
a councillor. Nor may the fourth and fifth respondents, as the
councillors concerned, simply disregard a decision taken
by the
applicant to terminate their membership. The validity of the first
decision is of vital importance for their ongoing eligibility
to the
office of councillors. It forms the foundation for the validity of
the subsequent decision by the first respondent to notify
the chief
electoral officer of the vacancy. The proper enquiry, as stated
above, is not whether the initial act is valid but rather
whether its
validity was a necessary pre-condition for validity of the consequent
act.
[10]
The respondents must be held to the pain of proper process to set
aside decision, even defective. Since Semenya J dismissed
the
application of the fourth and fifth respondents to halt the
disciplinary hearing, no further steps were taken by either of
them
to set aside the decision by the TRA. The inescapable conclusion is
that the decision of the disciplinary committee is valid
and final,
which is a pre-condition for the validity of the notification by the
municipal manager to the chief electoral officer
that a vacancy
exist, because of the termination of the fourth and fifth respondents
membership from the applicant.
[11]
Reverting to facts in the present case, it is clear that the initial
act of conducting a disciplinary hearing which resulted
in the
termination of the membership of the fourth and the fifth respondents
from the TRA is a necessary pre-condition for the
validity of the
consequent act of the municipal manager. The factual existence of the
first decision is, therefore sufficient for
the consequent act to be
valid as long as the first decision has not been set aside by a
competent court. But before the obligation
in terms of Item 18 arises
a municipal manager must first satisfy himself/herself that a
councillor has vacated office during a
term of office in one or more
of the circumstances referred to in section 27 of the Act.
[12]
The establishment of the aforementioned jurisdictional fact obliges a
municipal manager to notify the chief electoral officer
that a
councillor has ceased to hold office. The municipal manager must
however be satisfied that the decision is final in the
sense that all
internal remedies have been exhausted and that there are no pending
proceedings to set the decision of the political
party aside. The
municipal manager in compliance with Item 18, acts simply as a
nuntius
to report to the chief electoral officer what has been
reported to the municipal manager.
[13]
Whether a counsellor has vacated his office in instances where he/she
has tendered a written resignation, more often than not,
will not
present any difficulty to confirm. It is not an uncommon occurrence
in South African politics that disputes may arise
between a political
party on the one hand, and its members on the other, if the
membership of a councillor has been terminated
by the party. The
result of the notification, in terms of Item 18 will no doubt have
serious consequences for an incumbent councillor,
if the chief
electoral officer declares that the next person on the party list is
duly appointed in a vacancy which has not arisen
or is disputed.
[14]
The municipal manager, first of all, has to be satisfied that a
vacancy, in fact, exists. Put differently, he/she must notify
the
chief electoral officer that there is a vacancy once he/she is
satisfied that the councillor concerned has ceased to hold office.
The municipal manager is exercising public power in terms of Item 18,
to the Act. The enquiry which municipal manager must adopt
to verify
whether the counsellor has vacated office is informal but has to be
procedurally fair.
[15]
Ordinarily, in the normal course of events, a political party will
notify the municipal manager in writing of the fact that
a member of
the party, and who is a councillor, has ceased to hold office for any
of the reasons mentioned in section 27, and that
there is a vacancy.
The municipal manager cannot question the validity of the decision of
a political party. It remains open to
him/her to confirm the
authenticity of the notification, if the authenticity of the document
is in doubt. Once authenticity is
verified the municipal manager is
obliged to accept the truth of the contents. The written notice to a
municipal manager must at
least contain specific information that the
councillor concerned has exhausted his/her all internal remedies and
that no other
proceedings have been instituted to upset the decision
of the political party nor that notice of such proceedings has been
furnished
and that all disputes have been finally disposed of between
the political party and the councillor.
[16]
To make an informed decision the councillor concerned should be
afforded the opportunity to respond to the contents of the
notification. The
audi
alteram partem
principle is applicable to the municipal manager to give the
councillor concerned, who will be detrimentally effected by his/her
decision, a fair opportunity to confirm the correctness of the facts
stated by the political party.
[9]
The
audi
alteram partem
principle, in the context of what is required from the first
respondent, was stated in
Heatherdale
Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and
Another
:
[10]
“
It is clear on the
authorities that a person who is entitled to the benefits of the
audi
alteram
partem
rule need not be afforded all the facilities which are allowed to a
litigant in a judicial trial. He need not be given an oral
hearing,
or allowed representation by an attorney or counsel; he need not be
given an opportunity to cross-examine and he is not
entitled to
discovery of documents. But on the other hand (and for this no
authority is needed) a mere pretence of giving the person
concerned a
hearing would clearly not be a compliance with the Rule. For in my
view will it suffice if he is given such a right
to make
representations as in the circumstances does not constitute a fair
and adequate opportunity of meeting the case against
him.”
[11]
[17]
Whether or not the decision by the disciplinary committee or the
first respondent is reviewable in terms of PAJA, matters little
on
the facts of this matter, save to state that a refusal or failure by
the first respondent to notify the chief electoral officer
is in my
view reviewable under PAJA.
[12]
[18]
I do not agree, in conclusion, with the submission by counsel for the
first and third respondents’ that a different procedure
has to
be followed all together where the councillor concerned is the mayor.
A distinction should be drawn between a mayor appointed
in terms of
section 48 and an executive mayor appointed in terms of section 55.
There is no evidence that the fourth respondent
was appointed as the
latter. She stated that she is the mayor. Neither she, nor the first
respondent, says that the third respondent
qualifies, as a Class B
municipality, for the appointment of an executive mayor. There is no
evidence that third respondent has
resolved to appoint her as an
executive mayor.
[19]
The first respondent states further that the fourth respondent had
been appointed in terms section 48 but then asserts that
an executive
mayor can only be removed in terms of section 58. The evidence of the
first respondent with regard to this aspect
is confusing and lacks
substance. The fourth respondent, in my view was not appointed as an
executive mayor in terms of section
55.
[20]
Counsel appearing for the first and third respondents, in his heads
of argument, relied on
Marais
v Democratic Alliance
[13]
for the proposition that a mayor cannot be removed from office by the
political party to which he/she belongs. The political party
in the
Marais
case decided to strip the executive mayor of his mayoral status and
of his membership. The court was called upon, in that case,
to review
those very decisions. It is not what the applicant had done in the
present matter. The applicant
in
casu
made no decision to remove the fourth respondent as the mayor. That
case is, on the facts, distinguishable and of no assistance
to the
first respondent. In the present case the termination of the
membership of the fourth respondent is uncontroversial and
is not the
subject of review proceedings.
[21]
A mayor, appointed in terms of section 48, is first and foremost, a
councillor who is a member of the executive committee and
as such is
subject to the provisions of the Act, like any other councillor. The
mayor is a member of the executive committee and
presides at the
meetings of the executive committee.
[14]
A member of the executive committee vacates his/ her office when
he/she ceases to be councillor.
[15]
The councillor who has been elected the mayor
inter
alia
vacates his/her office when he/she ceases to be a member of the
executive committee.
[16]
The
one leads logically to the other. No decision is necessary by the
council for removal the mayor, if the mayor ceases to be
a member of
the executive committee, or ceases to be a councillor. To put it
slightly differently, in such a situation, by virtue
of the
provisions of section 27 read with section 47(1)(c) and 48(4)(c) the
councillor concerned as a matter of law, simply vacates
his/her
office as mayor when he/she ceases to be a member of the executive
committee because he/she is no longer a councillor,
which is a
prerequisite to be a member of the executive committee and
ultimately, the mayor.
[22]
The first respondent, in my view, unreasonably failed to make a
decision to notify the chief electoral officer. He had ample
time and
opportunity to determine whether the fourth and fifth respondents
have ceased to be councillors. It is not required of
him to conduct
an in depth investigation of his own into the merits or demerits of
the decision to be satisfied that a councillor
has ceased to hold
office which was certainly not envisaged by the legislator. He was
informed some time ago that the membership
of fourth and fifth
respondents have been terminated. The fourth and fifth respondents
did not take any steps to set aside their
expulsion from the
applicant. Their expulsion from the party is final. It remains for
the first respondent to notify the chief
electoral officer of that
fact, so that the electoral officer may declare in writing the person
whose name is at the top of the
applicable party list to be elected
in the vacancy.
[17]
[23]
It is not to the benefit of the council and the community and
certainly not in the interest of good governance of the third
respondent that there is further delay or continued confusion with
regard to the status of the fourth and fifth respondent in the
council.
[24]
In the premises the application must succeed. I see no reason why the
costs should not follow the result.
Order
1. Prayers 1 and 2 are
granted
2. The first, third,
fourth and fifth respondents are ordered to the costs of the
application, the one paying the others to be absolved.
______________
G C MULLER
JUDGE
OF THE HIGH COURT LIMPOPO DIVISION: POLOKWANE
APPEARANCES
1.
COUNSEL FOR APPLICANT :
:R Raubeheimer
2.
COUNSEL FOR FIRST AND THIRD RESPONDENTS
:L G F Putter SC
3.
COUNSEL FOR FOURTH & FIFTH RESPONDENTS
:Q Pelser SC
:M Molea
4.
DATE OF
HEARING
:26 March 2018
5.
DATE
DELIVERED
:25 May 2018
[1]
Hereinafter “the TRA”.
[2]
Act 117 of 1998. Hereinafter “the Act”.
[3]
Counsel did not rely on a collateral challenge.
[4]
2004 (6) SA 222 (SCA).
[5]
Para 26.
[6]
2014 (3) SA 481 (CC).
[7]
Para
64.
[8]
2014 JDR 0797 (ECG) para 14-15. Also
Shunmugam
and Others v The Newcastle Local Municipality and Others; The
National Democratic Convention v Mathew Shunmugam and
Others
[2008] 2 All SA 106 (N).
[9]
s 3 of
Act
3 of 2000. Hereinafter “PAJA”. Also
Du
Preez and Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(AD) 231G-H;
Nortje
en ‘n Ander v Minister van Korrektiewe Dienste
2001
(3) SA 472
(HHA) para 17-18.
[10]
1980 (3) SA 476
(T).
[11]
486D-F.
[12]
Definition of “decision” and s 6(2)(g) of PAJA.
[13]
[2002] 2 All SA 413
(C) para 55.
[14]
s 49(1)(a).
[15]
s 47(1) states: “A member of an executive committee vacates
his office during a term if that member-
(a) resigns as a member
of the executive committee;
(b) is removed from
office as a member of the executive committee in terms of section
53; or
(c) ceases to be a
councillor.”
[16]
s 48(4) states: “A mayor and deputy mayor is elected for the
duration of that person’s term as a member of the executive
committee, but vacates office during a term if that person-
(a) resigns as mayor or
deputy mayor;
(b) is removed from
office as a member of the executive committee in terms of section
53; or
(c) ceases to be member
of the executive committee.”
[17]
Item
18(1)(a).