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[2014] ZAGPPHC 400
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Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and Others (35248/14) [2014] ZAGPPHC 400; [2014] 4 All SA 67 (GP) (19 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 35248/14
DATE: 19 JUNE
2014
REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MOGALAKWENA
LOCAL
MUNICIPALITY
..............................................................................
Applicant
and
PROVINCIAL
EXECUTIVE COUNCIL,
LIMPOPO
........................................................
First
Respondent
MEMBER
OF EXECUTIVE COUNCIL FOR
COGHSTA,
LIMPOPO
......................................................................................................
Second
Respondent
NATIONAL MINISTER
OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
............................................................
Third
Respondent
NATIONAL
COUNCIL OF
PROVINCES
...........................................................................
Fifth
Respondent
DH
MAKOBE
.........................................................................................................................
Sixth
Respondent
JUDGMENT
Tuchten
J
:
1 This urgent
application has as its genesis a disunity amongst the councillors
elected as members of the municipal council of the
applicant for the
ruling party in the municipal council. I shall refer to the applicant
as the municipality or the council of the
municipality. Pursuant to a
decision of the first respondent (“the province”) on 17
March 2014, the province has sought
to intervene in the government of
the municipality by assuming responsibility for what the province
asserts are certain executive
obligations of the municipality under s
139(1 )(b) of the Constitution as amended by s 4 of Act 3 of 2003.
The province appointed
the sixth respondent to act on its behalf in
this regard. The municipality objects to this intrusion into its
governmental competence
and seeks relief directed at staying the
implementation of the province’s decision pending a review of
the decision in due
course.
2
Only the applicant, the province, the second respondent (“the
MEC”) and the sixth respondent were represented before
me.
These respondents were represented by the same counsel, to whom I
shall refer as counsel for the respondents. Two preliminary
issues
were urged upon me by counsel for the respondents: firstly that the
matter was not urgent and should be struck off the roll;
secondly
that the case sought to be made by the municipality was
res
judicata
,
ie had already been decided against the municipality in a prior legal
proceeding. Counsel invited me to consider these issues
in the
context of the case as a whole and I shall proceed to do so.
3 Because this
application has been brought as a matter of urgency and because what
is sought is interim relief, I shall not excessively
burden this
judgment with recitation of authority. The case was fully argued on
both sides, with copious reference to relevant
authority, and I bear
the submissions of counsel and the authorities cited in mind. I make
no final findings of fact or of law
for these are the province of the
review court. My findings are thus provisional and made on the
evidence presently before me.
4 The disunity which
I have mentioned focussed around the persons of the former mayor of
the municipality, Mr Mashamaite (“the
former mayor”) and
a group of councillors, alleged to be the associates of the former
mayor, on the one hand, and the municipal
manager, Mr Kekana, on the
other. The former mayor tried to have Mr Kekana removed as municipal
manager This gave rise to extensive
litigation. At one stage Mr
Kekana physically left, or was forced to leave, his office premises.
Mr Kekana appears ultimately to
have won the support of the majority
of councillors and kept his job. But the former mayor did not manage
to keep his. The disunity
within the ruling party in the municipality
resulted in a resolution being proposed and ultimately passed by the
council of the
municipality on 17 April 2014 pursuant to the
provisions of s 59 of the Local Government: Municipal Structures Act
117 of 1998
(“the Structures Act”), removing the former
mayor from office. A new mayor, Mr Mabuela, was then appointed and
presently
holds office.
5
Mr Kekana was instrumental in having forensic investigators appointed
to investigate whether there had been any financial irregularities
in
the conduct of the municipality’s affairs during his absence
from office, ie from 12 July to 11 October 2013.
6 The investigators
found that there had been irregularities. During the period 1 July to
30 October 2013, the mayoral discretionary
fund was depleted from R1
784 311 to R192 352,20. The money was used primarily for what were
claimed to be mayoral outreach initiatives
toward the community.
T-shirts were handed out to those who attended. Lavish catering was
provided. The public were bussed to the
venues. All this was paid for
by the municipality. But the conclusion of the investigators was that
these were political events,
not genuine mayoral outreach events. If
this is correct, the most probable inference is that the former mayor
organised these events,
at the municipality’s expense, to
promote his personal popularity.
7 The former mayor
and certain other councillors were invited by the investigators to
respond to the allegations. All of them declined
to do so. I must
thus for the purposes of this application treat the allegations as
established.
8
The former mayor assumed office in 2012. According to the evidence
presently before me, for some years before the former mayor’s
accession to office, the municipality had an excellent record in
exercising its powers, especially in the field of service delivery.
The municipality received unqualified reports from the
Auditor-General for the financial years 2009-2010.2010-2011 and 2011
-2012.
Apparently unqualified audit reports at municipal level are
regrettably the exception rather than the rule in our country. A
ratings
agency rated the municipality as the best in Limpopo from
2007 through 2011. The municipality also received for two years in a
row the Greenest Municipality Award.
1
9 But in the
Auditor-General’s report for 2012-2013 in relation to the
municipality was qualified. The Auditor-General reported
substantial
unauthorised expenditure for that period. The respondents allege that
this unauthorised expenditure amounted to nearly
R70 million. What
went wrong? The municipality says that the former mayor was to blame.
The respondents point out that the unauthorised
expenditure took
place under Mr Kekana’s leadership. I am of course not called
upon to decide this dispute. I have not heard
the former mayor on the
subject. But given the former mayor’s decision to remain silent
and be of no assistance to the forensic
investigators, I am driven
for present purposes to accept the applicant’s version, which
effectively stands uncontradicted.
10 By letter dated
28 February 2014, the speaker of the municipality wrote to the second
respondent (“the MEC”) to say
that the council of the
municipality had resolved to ask the MEC to exercise certain powers
vested in the second respondent to
remove the former mayor and
certain other councillors mentioned in the report of the forensic
investigators. On 10 March 2014,
the MEC replied, advising the
municipality to apply the rules of natural justice and hear those in
question in relation to the
complaints against them. By letter dated
17 March 2014, the speaker told the MEC that the municipality would
do as suggested.
11 It seems that
some nine councillors hold the balance between the two factions. This
fact is important in the light of how the
intervention arose and
developed.
12 The intervention
decision under attack was made on 17 March 2014. It was conveyed to
the municipality in a notice of the same
date and reached the
municipality on 18 March 2014. It was signed by the second respondent
as MEC with political responsibility
for the provincial department of
Cooperative Governance, Human Settlements and Traditional Affairs
(“COGHSTA”) and
is addressed to the municipality and
reads:
Notice that the
Provincial Executive Council of Limpopo Province is assuming
responsibility for some executive obligations of the
Mogalakwena
local Municipality in terms of section 139(1)(b) of the Constitution
1
The Provincial Executive Council has resolved to intervene in
Mogalakwena Local Municipality in terms of section
139(1
)(b),
by
assuming responsibility of some executive obligations and to appoint
an [sic] designate a person to act on its behalf with regard
to the
implementation thereof.
2 The Provincial
Executive Council has reason to believe that the Municipal Council
does not fulfil an executive obligation in terms
of the Constitution
or legislation as follows:
a) Financial
Management;
b) Coordination of
Executive Committee and Municipal Council;
c) Implementation
and review of IDP and budget
d) Development of
Policy and initiation of bylaws.
3 The Provincial
Executive Council is therefore intervening in terms of section
139(1)(b) of the Constitution by assuming responsibility
for the
executive obligations listed in paragraph 2 above.
4 The Provincial
Executive Council assumes responsibility for the executive
obligations listed in paragraph 2 and for those executive
obligations
the performance of which is incidental to the fulfilment of those
mentioned in paragraph 2 until such time as the Municipal
Council can
resume responsibility for those obligations in a sustainable manner.
5 The Provincial
Executive Council will designate a person to act on its behalf with
regard to the further implementation of the
assumption of
responsibility, and the Municipal Council will be informed thereof.
6 The Municipal
Council must give its full cooperation to that person in the
execution of his or her task to ensure that the Municipal
Council can
resume responsibility for these obligations in a sustainable manner.
7 The Municipal
Council should take note that this intervention may be reviewed or
terminated by the Minister of Cooperative Governance
and National
Council of Provinces as prescribed. [Emphasis as in original]
13 As I have shown,
the MEC had at the time been in correspondence with the municipality
about matters which the MEC, as a member
of the first respondent,
must have been considering in relation to the intervention decision
of 17 March 2014. It is strange that
the second respondent did not
allude in the correspondence to the contemplated decision and tell
the municipality that the province
had concerns which, if not
attended to, might drive the province to intervene. As I shall
demonstrate, the advice to hear the former
mayor and other affected
councillors before any action was taken against them appears to have
been somewhat disingenuous: because
the MEC, as well as the province
and the sixth respondent, intended that the powers of the
municipality should fall under the dictation
of the sixth respondent
before the municipality could undertake the processes recommended by
the MEC. And the proposed hearing
of the allegedly delinquent council
members does not, from what is before me, appear to be something
which the sixth respondent
intended to give any priority, if he
intended to deal with it at all.
14 For a proper
appreciation of the import of the intervention decision, I must quote
s 139 of the Constitution in full:
Provincial
intervention in local government
(1) When a
municipality cannot or does not fulfil an executive obligation in
terms of the Constitution or legislation, the relevant
provincial
executive may intervene by taking any appropriate steps to ensure
fulfilment of that obligation, including-
(a) issuing a
directive to the Municipal Council, describing the extent of the
failure to fulfil its obligations and stating any
steps required to
meet its obligations;
(b) assuming
responsibility for the relevant obligation in that municipality to
the extent necessary to-
(i) maintain
essential national standards or meet established minimum standards
for the rendering of a service;
(ii) prevent that
Municipal Council from taking unreasonable action that is prejudicial
to the interests of another municipality
or to the province as a
whole; or
(iii) maintain
economic unity; or
(c) dissolving the
Municipal Council and appointing an administrator until a newly
elected Municipal Council has been declared elected,
if exceptional
circumstances warrant such a step.
(2) If a provincial
executive intervenes in a municipality in terms of subsection (1)
(b)-
(a) it must submit a
written notice of the intervention to-
(i) the Cabinet
member responsible for local government affairs; and
(ii) the relevant
provincial legislature and the National Council of Provinces, within
14 days after the intervention began;
(b) the intervention
must end if-
(i) the Cabinet
member responsible for local government affairs disapproves the
intervention within 28 days after the intervention
began or by the
end of that period has not approved the intervention; or
(ii) the Council
disapproves the intervention within 180 days after the intervention
began or by the end of that period has not
approved the intervention;
and
(c) the Council
must, while the intervention continues, review the intervention
regularly and may make any appropriate recommendations
to the
provincial executive.
(3)
If a Municipal Council is dissolved in terms of subsection (1)(c)-
(a) the provincial
executive must immediately submit a written notice of the dissolution
to-
(i) the Cabinet
member responsible for local government affairs; and
(ii) the relevant
provincial legislature and the National Council of Provinces; and
(b) the dissolution
takes effect 14 days from the date of receipt of the notice by the
Council unless set aside by that Cabinet
member or the Council before
the expiry of those 14 days.
(4) If a
municipality cannot or does not fulfil an obligation in terms of the
Constitution or legislation to approve a budget or
any
revenue-raising measures necessary to give effect to the budget, the
relevant provincial executive must intervene by taking
any
appropriate steps to ensure that the budget or those revenue-raising
measures are approved, including dissolving the Municipal
Council
and-
(a) appointing an
administrator until a newly elected Municipal Council has been
declared elected; and
(b) approving a
temporary budget or revenue-raising measures to provide for the
continued functioning of the municipality.
(5) If a
municipality, as a result of a crisis in its financial affairs, is in
serious or persistent material breach of its obligations
to provide
basic services or to meet its financial commitments, or admits that
it is unable to meet its obligations or financial
commitments, the
relevant provincial executive must-
(a) impose a
recovery plan aimed at securing the municipality's ability to meet
its obligations to provide basic services or its
financial
commitments, which-
(i) is to be
prepared in accordance with national legislation; and
(ii) binds the
municipality in the exercise of its legislative and executive
authority, but only to the extent necessary to solve
the crisis in
its financial affairs; and
(b) dissolve the
Municipal Council, if the municipality cannot or does not approve
legislative measures, including a budget or any
revenue-raising
measures, necessary to give effect to the recovery plan, and-
(i) appoint an
administrator until a newly elected Municipal Council has been
declared elected; and
(ii) approve a
temporary budget or revenue-raising measures or any other measures
giving effect to the recovery plan to provide
for the continued
functioning of the municipality; or
(c) if the Municipal
Council is not dissolved in terms of paragraph (b), assume
responsibility for the implementation of the recovery
plan to the
extent that the municipality cannot or does not otherwise implement
the recovery plan.
(6) If a provincial
executive intervenes in a municipality in terms of subsection (4) or
(5), it must submit a written notice of
the intervention to-
(a) the Cabinet
member responsible for local government affairs; and
(b) the relevant
provincial legislature and the National Council of Provinces, within
seven days after the intervention began.
(7) If a provincial
executive cannot or does not or does not adequately exercise the
powers or perform the functions referred to
in subsection (4) or (5),
the national executive must intervene in terms of subsection (4) or
(5) in the stead of the relevant
provincial executive.
(8) National
legislation may regulate the implementation of this section,
including the processes established by this section.
15 Before its
amendment, the provisions of s 139(1) were substantially identical to
those of s 100(1) of the Constitution before
the amendment of this
section by s. 2 (b) of the Constitution Eleventh Amendment Act, 3 of
2003, which provides for intervention
by the national executive in
the administration of a province. Section 100(1) presently reads:
National
intervention in provincial administration
(1) When a province
cannot or does not fulfil an executive obligation in terms of the
Constitution [or legislation], the national
executive may intervene
by taking any appropriate steps to ensure fulfilment of that
obligation, including-
(a) issuing a
directive to the provincial executive, describing the extent of the
failure to fulfil its obligations and stating
any steps required to
meet its obligations: and
(b) assuming
responsibility for the relevant obligation in that province to the
extent necessary toil) maintain essential national
standards or meet
established minimum standards for the rendering of a service;
(ii) maintain
economic unity;
(iii) maintain
national security; or
(iv) prevent that
province from taking unreasonable action that is prejudicial to the
interests of another province or to the country
as a whole. [Words in
brackets added by amendment]
16
Section 100(1), prior to its amendment, was interpreted by the
Constitutional Court to mean that an assumption of responsibility
under s 100(1)(b) was not competent unless a directive had first been
issued under s 100(1)(a).
2
Counsel were agreed that as it stood before its amendment, s 139(1)
had to be interpreted in the same way.
17 The assumption of
responsibility in the present case was not preceded by a directive.
But, submitted counsel for the respondents,
the amendment to s 139
had changed the position and an intervention by the province under s
139(1 (b) was lawful even if it had
not been preceded by a directive.
Counsel’s submission had two legs: firstly, counsel pointed to
the omission between subss
(1) and (2) of the conjunction “and”
which had previously linked the two subsections; secondly, counsel
pointed to
a recourse to the minister in the national government,
said to be enjoyed by an aggrieved municipality under subs 2(b).
18
There is apparently no decision directly in point but counsel for the
respondents referred me to
Mnquma
Local Municipality and Another v Premier of the Eastern Cape and
Others
(Bisho
High Court case no 231/2009)
[2012] JOL 28311
ECB. This case dealt
with a dissolution under s 139(1 )(c) and is therefore not directly
in point but I have found the decision
valuable for forming my own
conclusions and I have drawn heavily on the industry and insight
displayed, if I may say so with respect,
by the learned judge.
19
Drawing heavily on linguistic factors, the learned judge concluded
that the conjunction “or” between subss 2(b) and
2(c) was
a decisive indication of a legislative intention to sever any
sequential connection between subs (2)(a) and subs 2(c).
The judgment
in
Mnquma
was
delivered before decisions such as
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
4 SA 593
SCA and
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
2013
6 SA 520
SCA, the latter of which laid down at para 16 that
... in interpreting
any document the starting point is inevitably the language of the
document but it falls to be construed in the
light of its context,
the apparent purpose to which it is directed and the material known
to those responsible for its production.
Context, the purpose of the
provision under consideration and the background to the preparation
and production of the document
in question are not secondary matters
introduced to resolve linguistic uncertainty but are fundamental to
the process of interpretation
from the outset.
20 The legislature
is presumed to know the law. In my view, the likelihood is that if
the legislature had intended to withdraw the
safeguard previously
expressed to exist by the Constitutional Court in relation to the
requirement that an intervention under subs
1 (b) be preceded by a
directive, it would have said so in clear and direct language and not
contented itself with the excision
of the conjunction “and”
and the enactment of s 139(2)(b).
21 In my view, in
the interpretation of s 139(1) in its amended form significant weight
should be given to the policy of the Constitution
to separate the
powers of the three spheres of government applicable in this context.
As has been said authoritatively, the power
to intervene in the
affairs of a municipality is most intrusive. The electors of the
municipality have in such a case chosen their
representatives.
Section 139(1)(c) itself provides that the power to dissolve may only
be employed in extreme cases.
22
Furthermore, s 139(1) provides that an intervention might be effected
by the taking of
any
appropriate
steps by the province. Subsections (1), (2) and (3) are only examples
of such steps. In my respectful view, a dissolution
might well
require a prior directive if it would be
appropriate
that
one be given. In deciding
Mnquma
,
the learned judge considered, convincingly in my respectful view,
what the nature of appropriate
substantive
steps
would be but did not, apparently, consider whether a directive or
other step would be appropriate before a decision to dissolve
was
made.
23
So if the amendment removed the mandatory requirement that an
intervention under subs 1(b) be preceded by a directive and provided
that a prior directive is not mandatory before a decision to dissolve
is made under subs 1(c), I think it is at least arguable
that the
proper construction of s 139(1) is that it depends on the facts: much
the same as the principle that the requirement that
a fair hearing
before a court or an administrative tribunal demands a hearing of the
affected party before a decision is made may
be relaxed in cases of
urgency or other exigency. In legal proceedings, such cases are known
as ex
parte
applications
and the caution with which courts will make orders, even interim
orders, in the absence of affected parties is well
known.
24 The powers of the
minister and of the national cabinet to put an end to the
intervention are not administrative powers. They
are executive
powers, constrained only by the principle of legality. A power to
intervene under subs 1(b) could have devastating
effects on a
municipality if wielded by the political opponents of those in power
in the municipality. The present case, on the
municipality’s
version, is an example of just that. An interpretation that in all,
or all but the most extreme, cases a directive
must precede an
intervention would enable a municipality to answer the allegations
against it or, if it had been remiss in the
fulfilment of an
executive obligation, get its house in order and thus forestall any
intervention. The ability to ask the minister
or the cabinet, both of
whom might not be unduly distressed by the political demise of those
in power in the affected municipality,
would provide scant safeguard.
25
I therefore lean toward an interpretation that would require the
province to issue a directive in a case such as the present.
Such an
interpretation would in my view promote the constitutional values of
democracy and separation of powers.
3
I therefore hold that the municipality has good prospects of success
in the review on this ground.
26 The municipality
has forthrightly asserted that the province has exercised its power
of intervention for the ulterior purpose
of promoting the interests
of the Mashamaite faction over the faction now in control of the
municipality. It is common cause that
the party in power in the
province is the same as the party in power in the municipality and
that Mashamaite and the Mr Kgetjepe,
who held the office of MEC until
after the present application was launched, are friends.
27 Before I deal
with the facts at this level, I shall say something about the nature
of government as a legal institution under
the Constitution.
Government authority vests in three levels of government, the
national provincial and local spheres. These spheres
are distinctive,
interdependent and interrelated. Every organ of state within such a
sphere mst respect the constitutional status,
institutions, powers
and functions of government in the other spheres and must exercise
its powers in a manner that does not encroach
on the functional or
institutional integrity of the others. Each has its own budget. Under
our dispensation a municipality is autonomous.
Executive and
legislative authority within its jurisdiction and sphere of operation
vests in the municipal council, which has the
right to govern, in
accordance with law but otherwise as it sees fit, the local
government affairs of the community it serves.
The national and
provincial spheres may not compromise or impede a municipality in the
exercise of its powers or performance of
its functions.
28 The Constitution
establishes a relationship between the organs in these three spheres
based on cooperation, aimed at the advancement
of inter-governmental
participation and support. Provincial governments are under a
constitutional duty to support municipalities
within their provinces
and promote their developmental capacities. National and provincial
governments must support and strengthen
the capacity of
municipalities to perform their functions and exercise their powers.
29 Local government
provides a forum for local community participation in matters
entrusted to municipalities. The members of municipal
councils are
democratically elected by those they serve. Municipal government
provides for grass roots democracy. It follows from
this application
of the democratic principle that the choices made by voters at the
municipal level must be respected, as they
must in relation to
voters’ choices at the provincial and national levels. The
corollary is that voters must generally live
with their bad
democratic choices until the next election, when they may show their
dissatisfaction with their representatives
by voting them out.
30
Provinces may not, however, stand supinely by when there is
performance by a municipality which is less than effective. The
Constitution provides that provincial governments must not only
support but also monitor municipalities and see to the effective
performance of their functions. A provincial executive is fully
entitled, if not obliged, to ensure that the Constitution and
applicable legislation is adhered to by municipalities.
4
31
The notice of intervention which I have quoted is exceptionally
vague. It is impossible on a reading of the notice to grasp what
executive obligations the first respondent had in mind when it took
its decision. This is of the utmost importance in the present
context
because the interventions contemplated by s 139 are not designed to
be punitive. Neither the national nor a provincial
government may
usurp the functions of a municipality except temporarily and in
compliance with strict procedures.
5
The notice to the municipality conveying the decision of the province
to intervene, even assuming, for the sake of argument and
against my
contrary inclination, that such a notice need not be given before the
s 139(1 )(b) intervention decision is made, must
tell the allegedly
delinquent municipality what executive obligations it allegedly
cannot or does not fulfil. This is so for at
least three reasons:
firstly, a specific notice would enable the municipality to identify
its alleged shortcomings and contribute
its resources towards
remedying the respects in which it is allegedly remiss, thus removing
the need to perpetuate the intervention;
secondly, it would enable
the municipality to challenge the intrusion into its sphere, whether
by representations to the minister
or the National Council of
Provinces under s 139(2)(b) or by way of judicial review; and,
thirdly, the notice would demarcate the
scope of the intervention by
the province into the areas of power and function which the
Constitution has otherwise vested in a
municipality.
32
For these reasons, in my view, the municipality has established a
strong
prima facie
case
for setting the decision aside on review on the grounds that it is
unduly vague and therefore lacks rationality.
33
The notice does not assert that the alleged shortcomings objectively
exist but that the decision maker had reason to believe
that there
were such shortcomings. Section 139 requires an objective state of
affairs, not a mere opinion by the decision maker
that such a state
of affairs exists.
6
It seems therefore likely that the first respondent misconceived the
scope of its powers of intervention. However, the test in
this regard
is not that applicable to administrative action. It was common cause
before me that the contemplated review is what
is called a review for
legality. It may be open to the province to attempt to demonstrate
the objective existence of that which
it claimed to have reason to
believe existed. I shall thus make no finding in this regard.
34 I have described
how the MEC kept secret from the municipality the fact that the
province was considering an intervention. This
is quite at odds with
the cooperative governance regime which the Constitution imposes on
all spheres of government. It is also
at odds with the national
legislation enacted to regulate the supervisory and monitoring power
of provinces in relation to municipalities.
35 Section 106(1)(a)
of the Local Government: Municipal Systems Act,
32
of 2000, (“the Systems Act”) provides that an MEC who has
reason to believe that a municipality in the province cannot
or does
not fulfil a statutory obligation or that maladministration, fraud,
corruption of any other serious malpractice has occurred
or is
occurring in a municipality within his province
must
,
by written notice to the municipality request it to supply the MEC
with any information he needs. If the MEC considers it necessary,
s
106(1)(b) empowers the MEC to launch an investigation. Under s
106(3), an MEC acting under s 106(1) must supply a written statement
to the NCP and the minister motivating his actions.
36
Under s 136 of the Local Government: Municipal Finances Management
Act, 56 of 2003, (“the MFMA"), an MEC responsible
for
local government who becomes aware that there is a serious financial
problem in a municipality must consult the mayor, assess
the
situation
and the
municipality's response to the situation
and
determine whether the situation justifies or requires an intervention
under s 139 of the Constitution.
37 There is no
suggestion that the MEC did what was required of him, on the
respondents’ version, under these two statutes.
The conclusion
appears to be irresistible: either the MEC was in dereliction of his
statutory duties or he did not genuinely believe
that there existed a
state of affairs which warranted action under the statutes.
38
Be that as it may, by letter dated 19 March 2014, the MEC wrote to
the speaker of the municipality, calling upon the municipality
to
suspend normal council business and allow him to address the council
on the scope of the proposed intervention. A special meeting
of the
council of the municipality was convened for this purpose on 25 March
2014. This meeting was however prevented by an interdict
(“the
MRA interdict”) obtained ex
parte
by
a Mr Pale and the Mogalakwena Residents Association as applicants in
this court under case no 10200/2014 (“the MRA application”)
on that date. The interdict in its terms interdicted the intervention
pending a review which the order recited commenced “herewith”.
39
The effect of the order was to deny the respondents in the MRA
application
7
any hearing at all relative to the interim relief obtained. This
suited the interests of the municipality but not, obviously, the
MEC.
The
ex
parte
procedure
adopted by the applicants in the MRA application constituted a gross
violation of the rights of the province and therefore
of the MEC.
Fortunately for the administration of justice, the MEC was not left
without a remedy: he brought a reconsideration
application under rule
6(12). The reconsideration application succeeded. On 2 May 2014 the
MRA interdict, which had been obtained
ex
parte
,
was set aside.
40
The present application was launched by the municipality on 27 May
2014 on notice, albeit very short notice, to the respondents.
I have
set out this history because it is relevant to the attack on the
urgent procedure adopted by the municipality and the defence
of
res
judicata.
41 I proceed to
describe the scope of the powers which the first respondent claimed
by virtue of the notice. It was never suggested
that the sixth
respondent acted outside the authority purportedly conferred on him
by the province. It must therefore be accepted
for present purposes
that the province intended, by its decision, to achieve the goals
which the sixth respondent asserted that
he sought to achieve on
behalf of the province.
42 The first
substantive step taken in the intervention by the MEC was to convey
to Mr Kekana, the municipal manager, in a letter
dated 20 March 2014,
on no legal basis that I am able to determine, that the sixth
respondent had been vested with all powers of
the accounting officer
in the municipality and would report to the province via the MEC’s
office. The powers vested in Kekana,
as municipal manager and
accounting officer were, said the MEC, “hereby withdrawn.”
43 The seriousness
of this step cannot be overstated. With a stroke of his pen, the MEC
attempted, in favour of a functionary of
the MEC’s own
choosing, to circumvent the carefully constructed network of
constitutional and other statutory powers which
led to the vesting in
the municipal manager, by the democratically elected representatives
of the community served by the municipality,
of the municipal
manager’s powers to administer the funds of the municipality.
The functionary selected by the province,
declared the MEC, would not
be accountable to the council of the municipality and ultimately the
voters within the municipality
but effectively to the MEC.
44 After the MRA
interdict was set aside, the MEC and the sixth respondent lost no
time pursuing their goal of achieving power in
the municipality.
45
On 4 May 2014, COGHSTA
8
issued a press statement setting out the powers which it claimed
vested in the sixth respondent. In this document, COGHSTA, on
behalf
of the province, sets out what it claims are the duties of the sixth
respondent, whom the statement styles as “the
Administrator".
These are:
45.1 to undertake
all fiscal and financial management functions at the municipality
including being a signatory on the municipal
banking account;
45.2 to ensure that
the duties of the first respondent under s 139(1 )(b) are realised;
45.3 to advise the
council (of the municipality?) on all policy matters in respect of
development and implementation;
45.4 to review all
systems and policies to ensure they are in line with legislation;
45.5 to appoint a
municipal and other managers under ss 54A and 56 of the Systems Act;
45.6 to develop a
turn-around strategy for the municipality;
45.7 to implement a
system to control and approve all expenditure;
45.8 to implement
all governance systems and procedures including appropriate council
oversight mechanisms;
45.9 to ensure
implementation of proper financial systems, policies and procedures;
45.10 to ensure
implementation of the Municipal Property Rates Act;
45.11 to set out a
specific strategy for addressing the municipality’s financial
problems, including a strategy for reducing
unnecessary expenditure
and increasing the collection of revenue;
45.12 to finalise
the integrated development plan and approve the municipal budget
before the end of the current financial year
on 30 June 2014.
46 I wish to say two
things about the plan of action identified in this press release:
firstly, the intervention appears to be an
attempt to gain control of
and administer every facet of the municipality, including the
all-important allocation of its available
funds; secondly, the
municipality has denied that the municipality has any significant
problems. Those that there were, the municipality
says, arose from
the manner in which of the former mayor administered the affairs of
the municipality. And nothing in what the
respondents have put up in
evidence indicates that there were any problems suggested in the
press release which required redressing
by the sixth respondent.
47 By letter dated 6
May 2014, the sixth respondent wrote to Kekana, asserting that the
office of the speaker of the municipality
was vacant because the then
(and present) incumbent was no longer a councillor of the
municipality. He did this in an attempt to
enable the MEC to
“announce and introduce” the intervention. The kindest
explanation for this action would be that
the sixth respondent
thought that the intervention had been executed under s 139(1)(c).
But as the sixth respondent has not explained
his actions and because
this would suggest that the sixth respondent had not read s 129(1) or
the intervention notice dated 17
March 2014, this inference cannot be
drawn in his favour. Suffice it to say that nothing in the decision
under attack could possibly
have been divested the speaker of her
appointment as a councillor or divested Kekana of his powers and his
duty to account to the
council of the municipality.
48 By letter of the
same date, the sixth respondent turned his attack upon Kekana
himself. He told Kekana that he was considering
suspending him
pending possible charges of misconduct against Kekana relating to the
unauthorised expenditure found by the Auditor-General
in his report
for the financial year 2012-2013 and to certain other matters. The
irony in this, fortunately abortive, move should
not be overlooked:
the majority of councillors in the municipality suspected the former
mayor of being responsible for these and
other irregularities,
notably in relation to the mayoral outreach functions described in
the report of the forensic investigators.
Kekana had been
instrumental in this process. Now the sixth respondent, on behalf of
the first and second respondents, was manoeuvring
to deflect
attention in relation to the irregularities from the former mayor by
insinuating that Kekana was to blame for them.
There is not the
slightest suggestion that the sixth respondent attempted to
investigate the former mayor (Mr Kgetjepe’s
friend) in these
regards. One wonders from whom the sixth respondent obtained the
information that prompted the letter dated 8
May 2014.
49 It is
incontrovertible that none of the respondents had any powers to
discipline Kekana. The taking of disciplinary steps is
classically
administrative rather than executive action. Nothing in s 139(1 )(b)
gives a province to divest a municipality or its
council of its power
to take administrative action.
50
I have mentioned that nine councillors held the balance between the
two factions of the ruling party in the council of the municipality.
It is not disputed by the respondents that on 5 May 2014, the sixth
respondent visited Kekana in the latter’s office. The
sixth
respondent was accompanied by the general manager: legal services in
COGHSTA as well as some police officers.
9
The sixth respondent told Kekana that he was
taking
over
[s/c]
the duties of the council of the municipality as administrator and
that councillors would perform their functions under the
sixth
respondent’s supervision. He said that while he, the sixth
respondent, was not taking away the powers and functions
of the
municipal manager conferred upon that functionary by legislation, the
municipal manager would perform those functions under
the sixth
respondent’s supervision and control.
51 The sixth
respondent then demanded of Kekana that he declare vacancies of the
seats of the nine councillors on the grounds that
the ruling party in
the council, which had appointed these councillors from a list
contemplated in Schedule 2 to the Structures
Act, had recalled them.
Such councillors are appointed pursuant to what are called
proportional representation elections in the
heading to Part 3 of
Schedule 1 and have, no doubt for that reason, been described in the
papers as the PR councillors. I shall
similarly refer to them. PR
councillors are elected from lists of candidates submitted by the
parties competing in the election.
The number of councillors
appointed by each party is proportionate to the number of votes
secured by the party as a proportion
of total votes cast in the
election.
52 The PR
councillors had faced party disciplinary proceedings for voting in
support of Kekana in the municipal council in his dispute
with the
former mayor. They were found guilty and suspended from membership of
the party for two years. They remained members of
the party. This was
confirmed in a letter dated 10 April 2014 by the secretary general of
the party.
53 Section 27(c)
provides that a PR councillor vacates office (and thus ceases to be a
councillor) when he ceases to be a member
of the party that nominated
him for office. It thus follows that a mere suspension of a PR
councillor by his party has no effect
upon his position as
councillor.
54 The party which
had nominated the PR councillors for election withdrew their names
from its list in response to their suspensions.
That party, and
apparently the province, the MEC and the sixth respondent, believed
that this act removed the PR councillors from
office. I need say no
more than that this view was wrong. Once a person on a party list has
been elected as a councillor, he remains
a councillor until his term
f office expires by effluxion of time or until he vacates his office
pursuant to s 27 of the Structures
Act.
55 It is of great
significance for purposes of these proceedings that the sixth
respondent, who was presented as an impartial administrator,
should
have sought to interfere in the politics of the municipality at all.
Manifestly what the party, the province, the MEC and
the sixth
respondent all had in mind was to replace the PR councillors with
persons who, the party believed, would do the party’s
bidding
in the municipal council. I have not had the benefit of the sixth
respondent’s version but it seems to me, on the
evidence at
this stage before me, that this conduct was anti-democratic and
reprehensible. I say it is reprehensible because the
conduct appears
to have been designed to misuse the Constitution, an instrument
designed to promote democracy (amongst other high
ideals and values)
in this country, to subvert democracy and advance purely factional
party political interests.
56 This conclusion
is reinforced by the grounds which the respondents claim in their
affidavits justified the intervention. They
are four in number.
57 Firstly, the
respondents claim that the municipality has not yet competed the
process which must precede the submission of the
municipality’s
annual budget to its council for approval. The municipality says that
this process is well underway. It is
extraordinary that if the first
respondent genuinely believed that the municipality had become
dysfunctional or was otherwise unable
to approve a budget, this did
not form the subject of correspondence or action under the Systems
Act and the MFMA as described
above. In such a case, moreover, s
139(4) provides a remedy for the problem: a rapid, dedicated
intervention, designed to remedy
the deficiency and otherwise leave
the constitutionally mandated governance of the municipality in the
hands of its democratically
elected representatives.
58 Secondly, the
respondents point to the irregular expenditure apparently uncovered
by the Auditor-General. Here again, no concerns
were expressed or
action taken before the intervention decision. But irregular
expenditure, once suspected or established, is a
matter for the SA
Police to deal with, not the province. There is no suggestion that
the province used its wide statutory powers
or its influence to
establish the facts or promote an investigation by the police.
59 Thirdly, the
respondents claim in vague terms that in “many instances the
municipality does not implement its supply chain
management policy"
and that there is an irregular use of the quotation system of
procurement. The only concrete example of
alleged inappropriate
procurement is that the municipality extended a security services
contract to provide more security guards
for Kekana and the
municipality’s speaker. The municipality claims that proper
procedures were followed in this instance.
Wherever the truth may lie
on this issue, there is a plethora of legislative machinery to
counter such alleged malpractices, none
of which the first respondent
has ever used. Section 139(1) requires that any intervention under
this subsection be taken by way
of “appropriate steps”.
There is no attempt by the respondents to explain why none of the
other, less intrusive, steps
were taken while leaving the government
of the municipality in the hands of its elected representatives.
60 Fourthly, the
respondents complain that the municipality has not yet completed the
annual review of its integrated development
plan for purposes of the
2014-2015 financial year. The municipality says that the review has
been completed and steps to approve
the plan and submit the budget
for council approval are “running like clockwork”. Again,
the first respondent has never
before raised these concerns or taken
the statutorily mandated steps to correct them.
61 Wherever the
truth may lie in relation to these allegations, nothing put up by the
respondents in its affidavits before me justifies
an intervention
under s 139(1 )(b) of the Constitution.
62 The applicant has
forthrightly accused the first respondent of having used s 139(1 )(b)
and having made the decision under attack
with ulterior motives and
in bad faith. Because these are proceedings for interim relief, I
shall say no more than that there appears
to be substance in this
accusation and that the applicant has prospects of establishing its
case on this ground in its review in
due course.
63 Against this
background, I proceed to evaluate the respondents’ submission
that the matter is not urgent. The evaluation
must be undertaken by
an analysis of the applicant’s case taken together with
allegations by the respondent which the applicant
does not dispute.
Rule 6(12) confers a general judicial discretion on a court to hear a
matter urgently. Rule 6(12)(b) provides:
In every affidavit
or petition filed in support of any application under paragraph (a)
of this subrule, the applicant shall set
forth explicitly the
circumstances which he avers render the matter urgent and the reasons
why he claims that he could not be afforded
substantial redress at a
hearing in due course.
64 It seems to me
that when urgency is in issue the primary investigation should be to
determine whether the applicant will be afforded
substantial redress
at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot
be urgent.
Once such prejudice
is established, other factors come into consideration. These factors
include (but are not limited to): whether
the respondents can
adequately present their cases in the time available between notice
of the application to them and the actual
hearing, other prejudice to
the respondents and the administration of justice, the strength of
the case made by the applicant and
any delay by the applicant in
asserting its rights. This last factor is often called, usually by
counsel acting for respondents,
self-created urgency.
65 The case for the
applicant is that the respondents are seeking unlawfully to take away
its lawfully derived power to govern the
municipality at a local
government level. That case, if ultimately substantiated, is directed
at redressing nothing less than a
serious violation of the rule of
law. The prejudice to the applicant is manifest. Every action taken
by someone who is in law a
usurper of power is unlawful and,
especially where third parties are involved, might give rise to
complex questions of fact and
law. Where the funds of a municipality
are disbursed by such a usurper, recovery might be attended by
serious problems and even
be impossible. I find that the applicant
has shown that it will suffer prejudice which cannot be redressed at
a hearing in due
course.
66 The main point
taken by counsel for the respondents in relation to urgency is that
the applicant delayed impermissibly in launching
its application from
18 March 2014, when it received notice of the impugned decision,
until 15 May 2014, when it gave notice of
this application to the
respondents.
67 I think that the
delay point is entirely met by the fact that pursuant to the MRA
application, the respondents were precluded
by interdict of this
court from taking action. There was not only no need for the
applicant to take any action itself but if it
had done so, it would
have been met with the answer that because of the very existence of
the MRA interdict, there was no reason
why the applicant could not be
afforded substantial redress at a hearing in due course. Once the MRA
interdict was discharged,
the applicant acted very speedily.
68 In addition, the
respondents have put what they wanted to before the court. This
Division has a proud tradition of making judges
available at short
notice for cases which deserve prompt attention. This is such a case.
There was no prejudice to the administration
of justice: this case
alone was assigned to me for hearing on the day it came before me. So
no other litigants were prejudiced
by the applicant’s effort to
promote itself in the queue of pending cases.
69 Weighing ail
this, I hold that the matter is urgent and permit it to remain on the
roll for hearing.
70
As to the
res
judicata
point
taken by counsel for the respondents: the first difficulty I have is
that I do not know on what grounds the MRA interdict
was set aside. I
cannot tell whether the learned judge made her decision on the merits
of the MRA application or on some other
basis. For example, the order
to set aside the MRA interdict might have been based simply on the
abuse by the MRA applicants of
the ex
parte
procedure
or on the footing that it was inappropriate to exercise the
discretions vested in the court in interim interdict applications.
Put shortly, I am unable to determine whether the order was
equivalent to judgment for the second respondent or merely absolution
from the instance.
71
There is a legion of additional difficulties in the way of the
respondents. The “same parties” requirement for a
successful plea of
res
judicata
is
to my mind not met by the fact that the present applicant was joined
as a nominal respondent in the MRA application with no relief
being
asked against it. And finally, the relief sought was interim in
nature and the order refusing interim relief cannot satisfy
the
requirement that the order be final. The defence of
res
judicata
is
dismissed.
72
Because this is an application for interim interdicts, the applicant
must establish a
prima
facie
right,
a well grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is granted,
an absence
of any other satisfactory remedy and a balance of convenience in
favour of the grant of interim relief. Where there
are factual
disputes, the facts set out by the applicant must be taken together
with any facts set out by the respondent which
the applicant cannot
dispute and the court must consider whether, having regard to the
inherent probabilities, the applicant should
on those facts obtain
final relief. The facts set up in contradiction by the respondent
then fall to be considered. An applicant
upon whose case serious
doubt is thrown cannot succeed in obtaining temporary relief.
73
Once a well grounded apprehension of irreparable harm is established,
in the absence of an adequate ordinary remedy the court
is vested
with a discretion, which will usually resolve into a consideration of
prospects of success and the balance of convenience.
The stronger the
prospects of success, the less need for such balance to favour the
applicant. Conversely, the weaker the prospects
of success, the
greater the need for the balance of convenience to favour the
applicant.
Cipia
Medipro (Pty) Ltd vAventis Pharma SA and Reiated Appeai
2013
4 SA 579
SCA para 40.
74
I have found that the applicant has established a strong
prima
facie
case,
with good prospects of success in the contemplated application for
final review relief. The harm to my mind if an interdict
is not
granted is manifest. I have dealt with this aspect in the course of
considering urgency.
75 Counsel for the
respondents submitted that the requirement of absence of another
satisfactory remedy had not been met and pointed
to the possibility
that the applicant might approach the minister for relief under s
139(2)(b) of the Constitution. I am by no
means satisfied that the
minister is obliged to hear an aggrieved municipality in these
circumstances. I think that the powers
vested in the minister under s
139(2)(b) are executive rather than administrative.
76 The point was not
taken on the papers so the applicant has not had the opportunity to
deal with the point at a factual level.
Had the point been raised in
the papers, as it ought to have been, the applicant might, for
example, possibly have taken the position
that it did not anticipate
that the minister would act impartially in this factional dispute
within the minister’s own party
and that accordingly the
applicant could not expect justice from any approach to the minister.
77 But I think,
ultimately, that the point must fail for the reason submitted by
counsel for the municipality: the minister has
the power to
perpetuate the intervention or to bring it to an end. The minister
does not have the power vested in this court to
suspend the
implementation of the decision pending a full hearing in due course.
I hold that the applicant has demonstrated the
absence of another
satisfactory remedy.
78 The balance of
convenience strongly favours the municipality. Its council is the
lawfully elected government of the municipality.
As long as legal
requirements are met, its legislative decisions are valid, as are the
acts of its office bearers in their capacities
as such. On the other
hand, I have found that the municipality has good prospects of
showing that the powers sought to be exercised
by the province
through the sixth respondent may not lawfully be exercised by them.
No prejudice will arise to the respondents
or to the public if the
present dispensation remains in office pending the review. On the
other hand, considerable prejudice may
follow if the sixth respondent
is allowed to assume the office the province and the MEC claim for
him.
79 It follows that
interim interdicts must issue. Because these are interim proceedings
it is appropriate that costs, including
the question whether the
employment of both senior and junior counsel was justified, be
reserved for consideration by the review
court. I wish, however, to
sound a note of warning in regard to costs.
80
There is a prospect that the review court might hold that the
measures provided by s 139(1)(b) are not being used for their proper
purpose but to resolve a political dispute in favour of a preferred
political faction within the party in power in the municipality.
In
my view, public money should not used to resolve such a political
dispute and should not, in a local government context, be
diverted
from its proper purpose of building communities and supplying them
with resources. The courts have wide powers to regulate
the
remuneration of their officers.
Tasima
(Pty) Ltd v Department of Transport and Others
2013
4 SA 134
GNP para 73. It would be open to a court to order, as it did
in
Tasima
,
that no public money might be used to remunerate the lawyers for any
party who is found to have acted in the fashion which I have
described. I myself made such an order in
Mosiane-Segotso
and Another v Tlokwe City Council and Others
,
a case I decided in this Division on 29 July 2013 under case number
41251/2013.
81
I make the following order:
1 Pending the final
determination in this court of the application for relief on review
set out in Part B of the applicant’s
notice of motion dated 15
May 2014:
1.1 the first,
second and sixth respondents are interdicted and restrained from:
1.1.1 implementing
in any manner whatsoever, the first respondent’s decision to
assume, under s 139(1 )(b) of the Constitution,
responsibility for
executive obligations of the applicant; and
1.1.2 interfering in
any way whatsoever with the ability or right of council of the
applicant, its municipal manager or any of its
officials to exercise
powers or perform functions vested in them under the Constitution or
any other applicable legislation;
1.2 the first
respondent is interdicted and restrained from intervening in the
applicant’s affairs in terms of s 139(1) of
the Constitution
and particularly from appointing an administrator to act on its
behalf in terms of this subsection;
1.3 the effect of
the first respondent’s decision to assume responsibility for
executive obligations of the applicant under
s 139(1 )(b) of the
Constitution as set out in annexure M2 to the applicant’s
notice of motion as well as of any actions
performed by the sixth
respondent relating to such decision are suspended with immediate
effect.
2 The costs of this
application, including the questions whether the costs of the
employment of both senior and junior counsel and
the scale upon which
such costs should be awarded, are reserved for the consideration of
the court hearing the review.
NB Tuchten
Judge of the High
Court
17 June 2014
For the applicant:
Adv J Dreyer SC and
Adv JAL Pretorius
Instructed by
Mohulatsi Attorneys
Pretoria
For the first,
second and sixth respondents:
Adv WR Mokhari SC
and Adv TB Hutamo
Instructed by the
State Attorney
Pretoria
1
The
evidence is silent upon whether municipalities were assessed for
attractive vegetation, a reduced carbon footprint or on some
other
criterion.
2
Ex
parte Chairperson of the Constitutional Assembly: in re Certification
of Amended Text of the Constitution of the Republic of
South Africa
1996
1997 2 SA 97
CC para 119
3
Steytler
and De Visser, Local Government Law of South Africa (looseieaf ed)
chapter 15 para 5.2.3A consider that a notice prior
to
any
intervention
under s 139(1) is mandatory in all cases.
4
The
propositions contained in this paragraph and the preceding three
paragraphs are derived largely from
Mnquma,
supra
,
paras 40-48, where the authorities have been collected and the
applicable principles expounded. A recitation in this judgment
of the
authorities collected in
Mnquma
would
be otiose.
5
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
2010
6 SA 182
CC para 44
6
See
South
African Defence and Aid Fund and Another v Minister of Justice
1967
1 SA 31
C 34H-35D
7
The
municipality, the second respondent and the premier of the province
of Limpopo
8
Apparently
Mr Kgetjepe is no longer the provincial minister politically
responsible for COGHSTA, having been moved to another portfolio
in a
provincial cabinet reshuffle. It is not clear when the reshuffle took
place.
9
Passions
were running high in the area at the time and persons on both sides
feared, or said they feared, for their physical safety.