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2017
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[2017] ZALMPPHC 23
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Ndlovu and Others v Thabazimbi Municipality and Others (5374/2017) [2017] ZALMPPHC 23 (11 August 2017)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 5374 / 2017
In
the matter between:
SANNY
NDLOVU AND 09
OTHERS
APPLICANT
and
THABAZIMBI
MUNICIPALITY AND 15
OTHERS
RESPONDENTS
JUDGMENT
SIKHWARI
AJ
[
1]
On 03 August 2017 I made the following order in this matter:
1.
That the
application is struck off he roll due to lack of urgency.
2.
That no order as
to cost.
3.
That the reasons
for my ruling will be handed down on the 11 August 2017 at 09:00 in
the morning.
[2]
I hereby hand down my reasons as follows:
[3]
On 31 July 2017 the applicants approached this court on urgency for
relief in the following terms:
1.
That this matter
be treated as one of urgency and that for the purposes thereof
condonation is granted for non-compliances with
the normal Rules of
Court with regard to service, form and tome-periods as contemplated
in Rule 6 (12).
2.
That a
Rule
Nisi
be
issued calling on the Respondents to show cause on 22 August 2017 at
10am or so soon as this matter may be heard why the following
order
set out in paragraph 3 to 5 should not be made final.
3.
That the first
respondent and any of its office bearers be interdicted from
proceeding with the Special Meeting of the Council of
the first
respondent scheduled for 10:00 am on the 31
st
of July 2017.
4.
That the fifteenth
respondent be ordered with immediate effect to inform the chief
electoral officer that Midah Moselane and Mpho
Moloko no longer hold
office.
5.
That the first
respondent be ordered to pay the costs of tis application on a scale
as between attorney and own client, save in
the event of any other
party opposing this application that such party jointly and severely
with the first respondent paying the
costs on a scale as between
attorney and own client.
6.
That prayer 3
operates as an interim interdict with immediate effect.
7.
That such further
and/or alternative relief as may be appropriate in the circumstances
be granted.
[4]
This matter came to court for the first time on urgency on momday the
31 july 2017. It was heard by brother AML Phatudi ADJP
who made the
following interim order:
1.
The matter is
postponed to be heard on 03 August 2017.
2.
The first
respondent and an of its office bearers are interdicted from
proceeding with the special meeting of the council of the
first
respondent scheduled for 10:00 am on the 331
st
of July 2017 until
the current application has been disposed of.
3.
The respondents to
file their answering affidavit, if any, on or before 16:00 on the 01
August 2017.
4.
The applicants to
file their replying affidavit, if any, on or before 02 August 2017 at
14:00.
5.
Costs are
reserved.
[5]
Justice Phatudi ADJP did not determine the question of urgency. The
respondents were not able to comply with paragraph 3 of
the order of
Justice AML Phatudi ADJP. They filed their answering affidavits on
the 2 August 2017. I condoned this delay due to
the urgency of the
matter and the fact that the applications themselves were physically
served on some of the respondents on the
3 August 2017. The
applicants have filed a replying affidavit to the third and
thirteenth respondents’ answering affidavit.
[6]
I further made a ruling to determine urgency first before I may
consider the applicants’ application for postponement
of the
application and the point
in
limine
in
terms of Rule 7(1) challenging the right of the first and fifteenth
respondents to oppose the application.
[7]
Applicants’ counsel submitted that urgency is based on the
averments in paragraph 9 of the founding affidavit. Briefly
stated,
the applicants submitted that on Thursday the 27 July 2017 at 15:56
in the afternoon they received cellphone sms’s
inviting them to
a special meeting of council of the first respondent scheduled for
Monday the 31 July 2017 at 10h00 in the morning.
There was no agenda
attached thereto. However, the agenda for the said special meeting
was later emailed to councillors on Friday,
the 28 July 2017.
[8]
Applicants submitted that the manner in which they were invited to
the said meeting is contrary to Rules 5 & 6 of the Rules
of Order
for Meetings of Council and Its Committees of Thabazimbi Local
Municipality, the first respondent. They submitted that
the said
rules require that a special meeting should be called by the Speaker
on at least 48 hours’ notice.
[9]
The said Rules 5 and 6 of the first respondent provides as follows:
5.
SPECIAL
CONCIL METTING:
5.1.
The speaker may
at any time of own accord and shall, call a special meeting of the
council, provided that no such special meeting
shall take place
unless all councillors were given at least 48 hours’ notice
prior to the date and time set for the meeting.
5.2.
In the event
where the speaker falls and/or refuses to call a special meeting when
requested in accordance with 5.1 above, the Municipal
Manager of the
Municipality may call the meeting.
6.
SERVICE
OF NOTICES
At least 7 days
before any ordinary meeting of the council and at least forty eight
hours before any special meeting of the council,
a notice to attend
the meeting, specifying the business proposed to be transacted
thereat and signed by the Speaker or the Chief
Whip as contemplated
in 5.2 above shall be left or delivered to an accessible distribution
point within the Municipality as determined
by the council from time
to time / sent by electronic mail to an address provided by the
councillor as his/her official address/mail
address.
[10]
Applicants submitted that “48 hours” should be calculated
as being the hours of a normal working day in line with
the
definition of a day in the rules of the first respondent which states
that “a day shall mean a day that is not a public
holiday,
Saturday or Sunday, and for the calculation of days the first day
shall be excluded and the last day included”.
It was further
argued that the invitation and agenda of the meeting were not
properly signed by Speaker in accordance with dictations
of the
aforesaid rules.
[11]
Applicant justified their urgency further on the basis that the
agenda of the meeting shows that the meeting will discuss the
appointment of Municipal Manager whose recruitment did not follow the
proper procedures. Counsel outlined, extensively, the regulations
and
procedures which were violated in the process of shortlisting the
candidates for the position of municipal manager and subsequent
interview process and recommendation of a particular candidate. On
the onset, I indicated to counsel that I am not persuaded that
the
disagreements about the suitability of a particular candidate or the
unhappiness about the recruitment process is a sound ground
to
justify urgency or refusal to attend such a meeting. I still remain
unpersuaded in this regard.
[12]
Applicants conceded that prayer 4 of their notice of motion is not
urgent. This prayer refers to the third and thirteenth respondents.
Counsel had no explanation as to why the said prayer was not brought
on ordinary motion court process. Counsel indicated that the
only
urgent prayer was prayer 3 of the notice of motion for the
interdicting of the special meeting of the first respondent of
the 31
July 2017.
[13]
Counsel for the first and fifteenth respondents submitted that the
application lacks urgency, he indicated the “48 hours”
in
Rules 5.1 and 6 of the first respondent should be considered to be
hours of a normal day irrespective of whether the said day
is a
holiday Saturday or Sunday. He stated further that if applicants had
a problem with the said interpretation, they should have
attended a
meeting and seek the interpretation of the Rule 10.1 which states
that “
the
ruling of the Speaker or the Chairperson in the event of a meeting
other than a council meeting, with regard to the application
and
interpretation of the rules as well as other procedural matters not
dealt with in the rules shall be final and binding: Provided
that the
Speaker / Chairperson may be required to provide reasons for ruling”.
[14]
Counsel for the third and thirteenth respondent accepted the
concession of the applicant that the case against the said
respondents
is not urgent. He applied for punitive costs order in
view of strong language used by the applicants in referring to the
third
respondent as a person committing fraud by masquerading as
Major or councillor.
[15]
It is common cause that the meeting of the 31 July 2017 has not taken
place due to the order of this court of the 31 July 2017
as stated
above. Tis issue has now become moot. There is nothing which prevents
the first respondent from calling a proper meeting
in terms of its
rules. However, the interim order made by this court on the 31 July
2017 remains in force until finalisation of
this matter. That order
has the effect of preventing the first respondent from holding
meetings in line with the agenda which was
supposed to be discussed
on the 31 July 2017. For that reason, I cannot extend the said order.
I will rather prefer to finalize
this matter.
[16]
In view of the above, I am not going to decide on the correct
interpretation or computation of the “48 hours” in
the
rules of the first respondent as it is not an issue before at this
stage. However, I am of the view that the intention of the
regulation
was to provide an extra-ordinary mechanism through which council of
the first respondent can operate and / or convene
outside normal
working hours or outside normal working days if exigencies of the
time require same. Therefore, “an hour”
in this context
cannot be confined within the hour of a normal working day.
[17]
Based on the concession of the applicants, the other prayers in the
notice of motion are not urgent. Therefore, I will not
express a view
on them.
[18]
The attack on the third respondent on allegations of a fraudulent
conduct should be seen in light of political contestation
and the use
of the “fraud” word in a simplistic way. Such allegations
are no uncommon in a heated political climate
like the one in
Thabazimbi Local Municipality although the court does not encourage
at all. Leaders must learn to use decent language
in political
engagements notwithstanding the political stakes and tensions. In the
final analysis, I do not see the applicants’
utterances in
their founding affidavit as justifying a costs order against them,
let alone on a punitive scale.
[19]
The applicants rushed to court on their understanding of the
calculations of the 48 hours within the ambit of a working day.
This
may be right or wrong; but it does not show
mala
fides
on
their part. I see no reason to make a costs order against the
applicants. The applicants do have redress in due course. The
applicants may attend the special council meeting and raise their
points there. If not treated in accordance with the rules of the
first respondent, the applicants may approach the court on review.
There are two matters pending in this court involving same parties
or
their proxies or about the same dispute in which the applicants can
join and contest issues there.
[20]
In view of the foregoing, I see no urgency in this application. There
was no sound justification for the applicants to drag
everyone to
court to interdict the meeting of the 31 July 2017. The other prayers
were bound to fail as they lack urgency by any
stretch of
imagination.
[21]
In the circumstances, I make the following order:
1.
That the
application is struck off the roll due to lack of urgency.
2.
That the interim
order of the 31 July 2017 is discharged.
3.
That there is no
order as to costs.
___________
MS
SIKHWARI, AJ
Acting
Judge of the High Court,
Limpopo
Division, Polokwane
1.
Date
of hearing
:
03 August 2017
2.
Date
handed down :
11 August 2017