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[2013] ZAGPPHC 405
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Muldersdrift Sustainable Development v Mogale City Local Municipality and Others (12005/13) [2013] ZAGPPHC 405 (12 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
Case Number: 12005/13
Date: 12 November 2013
Not Reportable
Not of interest to other judges
In the matter between:
MULDERSDRIFT SUSTAINABLE DEVELOPMENT
….................
APPLICANT
and
MOGALE CITY LOCAL MUNICIPALITY
........................
1ST
RESPONDENT
KOKETSO CALVIN
SEERANE
............................................2
ND
RESPONDENT
DAN METLANA
MASHIISHO.
.............................................
3RD
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 12 November 2013
Heard on: 22 October 2013
HUGHES J
1. This is an opposed application that I encountered during the
opposed motion roll on 22 October 2013.
2. The applicant seeks the order as set out below:
"1. Declaring that the Third Respondent has not been duly
appointed as Municipal Manager for the Mogale City Local Municipality
in accordance with the provisions of
Local Government: Municipal
Systems Act; 32 of 2000
, as amended, for the period 1 October 2011 to
30 September 2016.
2. Declaring that the appointment of the Third Respondent as
Municipal Manager for the Mogale City Local Municipality to be null
and void.
3. That the costs of the application be paid by the Respondent or
Respondents who oppose this application."
3. From the outset the respondents have raised a challenge as regards
the applicant's locus standi in their answering affidavit.
This aspect, it is noted, is not challenged in the applicants
replying affidavit.
4. Essentially the points raised in respect of the applicants locus
standi are as follows:
4.1 the applicants bring their application before this court as a
voluntary association which does not in the circumstances have
any
juristic or legal capacity;
4.2 the members of this voluntary association have not deposed to
confirmatory affidavits to substantiate the resolution taken;
4.3 the resolution itself which gives authority to the deponent to
depose to the founding affidavit is irregular, as the body,
organisation or association of persons or members are without legal
standing; and
4.4 finally, the application is not brought in terms of section 38 of
the Constitution of the Republic of South Africa, nor is
it brought
in the interest of the public, in that the application seeks to
benefit the applicant or its members.
5. For the reasons set out above the respondents argue that the
applicant has failed to demonstrate the legal capacity in which
it
acts and its right to launch this application.
6. The facts briefly are that the Municipal Manager, the third
respondent, had an initial contract of employment for a period of
five years with the Mogale City Municipality, the first respondent.
This initial contract came to an end on 30 September 2011.
The
contract of the third respondent was extended or renewed for a
further five years, commencing on 1 October 2011 and ending
on 30
September 2016. It is this power exercised by the Executive Mayor,
the second respondent, to renew or extend the contract
of the third
respondent, that is in dispute.
7. On an examination of the founding affidavit the applicant cites
itself as follows:
"3.
The applicant is the
MULDERSDRIFT SUSTAINABLE DEVELOPMENT FORUM,
an unincorporated voluntary association of residents in Muldersdrift
of
26 VAN ZUL STREET, STEYNSVLEIf MULDERSDRIFT
. A copy of its
constitution is attached hereto as
Annexure "B".
It is respectfully submitted that the Applicant has the necessary:
4.2 Legal personality in view of its nature, its constitution, its
objects and activities as more fully appears form Annexure "B".
4.3 Locus standi to bring this application on behalf of its members
who are permanent residents of the area of jurisdiction of
the Mogale
City Local Municipality, and in particular members of the Applicant
who permanently reside and/or own immovable property
in the Municipal
Area"
8. It is also prudent to set out as did the applicant in the founding
affidavit the nature of the application it is pursuing:
"NATURE OF THIS APPLICATION:
9.
This is an application to declare that the Third Respondent has
not been duly appointed as Municipal Manager for the Mogale City
Local Municipality in accordance with the provisions of
Local
Government: Municipal Systems Act, 32 of 2000
, as amended (the Act)
and that it be declared that the appointment of the Third Respondent
as Municipal Manager for the Mogale
City Local Municipality to be
null and void."
9. The respondent persisted with its argument that the application of
the applicant was not brought in terms of section 38 of the
Constitution in that the applicant was not acting in the public
interest (S38(d)). For easy reference section 38 is quoted below:
"38 Enforcement of Rights
1) Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.
The persons who may approach a court are:
a) anyone acting in their own interest;
b) anyone acting on behalf of another person who cannot act in their
own name;
c) anyone acting as a member of, or in the interest of, a group or
class of persons;
d) anyone acting in the public interest; and
e) an association acting in the interest of its members."
10. The respondent submitted that, it was not sufficient if one
examined section 38. The qualification being that one needs to
allege
that a right in the Bill of Rights has been infringed or threatened.
In this instance the applicant has failed to demonstrate
which right
in terms of the Bill of Rights has been infringed or threatened and
as such even as a group or class of persons or
as a association
acting in the interest of its members, the applicant has no right nor
legal capacity to bring this application.
11. Counsel for the respondent developed the argument further by
pointing out that as individuals the applicant members could advance
that their rights in terms of chapter 2 of the Bill of Rights were
being infringed or threatened, however as an association or
group
they cannot claim in these circumstance as each individual member has
not provided confirmation in the form of a confirmatory
affidavit as
to what rights were being infringed or threatened of the Bill of
Rights.
12. The applicant on the other hand argued that, the applicant did
fall within the parameters of section 38 as it was acting "as
a
member of or in the interest of, a group or class of persons -
(S38(c)) and it was an association acting in the interest of its
members - (S38 (e))". However, the applicant set the record
straight and advised that this application was not being brought
in
terms of section 38 but in terms of section 34 of the Constitution
which reads as follows:
"34 ACCESS TO COURTS
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum."
13. From the rounding papers of the applicant it is evident that a
declarator is sought, if one looks at the nature of the application
as set out in paragraph 9 supra, it is clear that the allegation made
is that the third respondent has not been appointed in accordance
with the provisions of Local Government: Municipal Systems Act 32 Of
2000 ("the Act").
14. It is trite that section 38 of the Constitution empowers a court
to grant a declaration of rights. This power is not explicitly
conferred in respect of provisions outside the ambit of the Bill of
Rights and the rest of the Constitution does not confer 'rights'.
See
Ex Parte Speaker of National
Assembly: In re Dispute Concerning the Constitutionality of Certain
Provisions of the National Education
Policy Bill 83 of
[1996] ZACC 3
;
1995 1996 (3)
SA 289
(CC)
at paragraph
[40]
"[40] The National Party submitted that this Court should
make an order declaring that the Bill is not unconstitutional, and
that it does not empower the Minister to compel the provinces to
implement the policy set out in clause 3 of the Bill. The Democratic
Party asked for a similar order in the event of it being held that
the Bill did not empower the Minister to compel the provinces
to
implement national policy. The only question referred to this Court
is whether the Bill is unconstitutional. The provisions
of s 7(4)(a)
of the Constitution authorising this Court to make declarations of
rights applies to infringements of chap 3 and not
to the Court's
jurisdiction under s 98(2)(d). The Bill is not a law; it creates no
rights and cannot be made the subject of a declaration
of rights. All
that this Court is empowered to do is to resolve the dispute as to
the constitutionality of the Bill. In the circumstances
the only
order that can properly be made is that the provisions of the
National Education Policy Bill submitted to this Court by
the Speaker
are not inconsistent with the Constitution on any of the grounds
advanced on behalf of the petitioners."
15. A declarator sought in terms of section 38 is a flexible remedy
and of particular value to a constitutional democracy as it
allows
the courts to clarify and declare right on the hand while leaving the
decision on how best to realize the rights to the
other branches of
the state. See
Rail Commuters Action Group v Transnet ltd t/a
Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC)
at Paragraph
[106]
-
[108]
. I set out paragraphs [106] and [107] below:
"[106] ... The first form of relief that is sought by the
applicants is declaratory. Section 172(l)(a) of the Constitution
states that this Court must declare "any law or conduct that is
inconsistent with the Constitution"... It does not mean,
however, that this Court may not make a declaratory order in
circumstances where it has not found conduct to be in conflict with
the Constitution. Indeed section 38 of the Constitution makes it dear
that the Court may grant a declaration of rights where it
would
constitute appropriate relief::
"Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has
been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. “
"[107] It is quite clear that before it makes a declaratory
order a court must consider all the relevant circumstances. A
declaratory
order is a flexible remedy which can assist in clarifying
legal and constitutional obligations in a manner which promotes the
protection
and enforcement of our Constitution and its values."
16. I turn to deal with the applicant's reliance on section 34 of the
Constitution. The purpose of section 34 is to guarantee the
right
"...that the courts and other fora which settle justiciable
disputes are independent and impartial." See
Bernstein v
Bester N. O.
[1996] ZACC 2
;
1996 (2) SA 751
(CC)
at [105]
17. Bearing the aforesaid in mind the threshold which must be met to
access the right (access to courts) is that there must be
a dispute
capable of resolution by law. Once this is present the three
components of section 34 of access, independence and impartiality,
and fairness are triggered. See
The Bill of Rights Handbook Sixth
Edition by Iain Currie and Johan de Waal
at page 711.
18. As stated above the application of section 34 comes to the fore
when there is a dispute that can be resolved by the application
of
law. From the nature of this application quoted above it is evident
to me that the dispute concerned is the decision to appoint
the
Municipal Manager of the Mogale City Local Municipality. This
decision was taken by an organ of the state, the municipality,
in
terms of the Constitution and or Provincial Constitution. The
decision as alleged by the applicant was not in accordance with
the
Local Government: Municipal Systems Act 32 of 2000
, thus the public
power or function that was exercised in this instance was in terms of
the legislations. This being the case, the
action of the Municipality
amounts in my view to an administrative action as defined by Section
1 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA).
The applicable section reads:
"'
administrative action means'
any decision taken, or any
failure to take a decision, by-
(a) An organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation; or"
19. In the
Bill of Rights Handbook Sixth Edition
at page 656
the author's set out what constitutes an administrative action under
PAJA:
"In summary, an action will qualify as administrative action
under the PAJA if it is:
1. a decision
2. by an organ of state (or a natural or juristic person)
3. when exercising a public power or performing a public function
4. in terms of any legislation (or in terms of an empowering
provision)
5. that adversely affects rights
6. that has direct, external legal effect
7. and, that is not specifically excluded by the list of exclusions
in subparas (aa) to (ii)of the definition of administrative
action."
20. Having concluded that the decision in this instance constitutes
an administrative decision then it is clear that any dispute
of this
nature is governed by section 33 of the Constitution which provides
for procedurally fair administrative action and thus
there is no need
or room for the application of section 34. See
Sidumo v Rustenburg
Platinum Mines ltd
2008 (2) SA 24
(CC)
at paragraph [146] to
[147].
21. In the circumstances, as the administrative function (that is the
decision having been taken) is complete the recourse now
available to
the applicant is to approach the courts to review the administrative
action and at this review stage, section 34 is
then applicable or
invoked. See Koyabe v
Minister of Home Affairs
2010 (4) SA 327
(CC)
at paragraph [36].
22. The applicant's reliance on section 34 of the Constitution to
seek the declaritor clearly amounts to the incorrect process
followed
in the prevailing circumstances. The correct process would have been
the application of section 33 by way of review to
the court to
eventually invoke section 34 of the Constitution.
COSTS
23. Counsel for the respondent Adv. Mokhari SC, argued that a costs
order be made in the circumstances of this case, as the applicant
was
not the sort of applicant, that a cost order would have a "chilling
effect" against a prospective litigant, so it
was held in
Biowatch Trust v Registrar, Genetic Recourses
2009 (6) SA 232
(CC)
at paragraph [21]. It was further argued that the applicant had prior
to this application brought a review application under case
no.
61071/2012 which application deals with the same aspects of the
appointment of the third respondent as Municipal Manager. Therefore
in my view this is not an instance where an adverse costs order will
have the potential of chilling the applicant's prospects of
litigation. In fact a balance needs to be struck between the
applicant being able to pursue legitimate claims and the impact on
the defendant who successfully defends such claims to recover costs
of its defence.
24. In the circumstances the following order is made:
24.1 The application is dismissed with costs. These costs to include
the employment of senior counsel.
W. Hughes Judge of the High Court
Delivered on: 12 November 2013
Heard on: 22 October 2013
Attorney for the Applicant:
HENK VENTER ATT.
c/o BARES & BASSON Woltemade Building
144 Paul Kruger Street
Pretoria
Tel: 012 324 4375
Ref: H VENTER
Attorney for the Respondent:
TWALA ATT.
c/o MATSEGO RAMAGAGA ATT
5th Floor, Nedbank Building
Pretoria
Tel: Oil 832 2073 Ref:
Mr Mzinyathi/M1679