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[2013] ZANCHC 28
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Nama Khoi Municipality and Others v Member of the Executive Council for Local Government: Northern Cape Provincial Government and Others (973/2013) [2013] ZANCHC 28 (8 August 2013)
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate
to Magistrates: YES / NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case No: 973/2013
Heard: 01/07/2013
Delivered: 08/08/2013
In
the matter between:
THE NAMA KHOI MUNICIPALITY
.................................
First
Applicant
THE
SPEAKER OF THE NAMAKHOI
LOCAL
MUNICIPALITY: JOSHUA
CHARLES
LOSPER
....................................................
Second
Applicant
THE
MAYOR OF THE NAMA KHOI
LOCAL
MUNICIPALITY
SCHALK
WILLEM LUBBE
.............................................
Third
Applicant
WILLEM
STEENKAMP JORDAAN
................................
Fourth
Applicant
GERT
JACOBUS COETZEE
.............................................
Fifth Applicant
KATRINA
SOLDA VENTURA
.........................................
Sixth
Applicant
STEPHANUS
JAN COETZEE VAN WYK
.....................
Seventh
Applicant
WILLEM
JACOBUS GOEDEMAN
..................................
Eighth
Applicant
VERONICA
VAN DYK
..................................................
Ninth
Applicant
THE
MUNICIPAL MANAGER, NAMA
KHOI
LOCAL MUNICIPALITY:
AUBREY
BAARTMAN N.O.
...........................................
Tenth
Applicant
AND
THE MEMBER OF THE EXECUTIVE
COUNCIL FOR LOCAL GOVERNMENT:
NORTHERN CAPE PROVINCIAL
GOVERNMENT
..........................................................
First
Respondent
LORENZO
FABIO FABER
.......................................
Second
Respondent
EDLYN
FERDINAND MARITZ
...................................
Third
Respondent
FRANSCISCUS
ZAVIER CUPIDO
............................
Fourth
Respondent
SIMON
KLEINBOOI
..................................................
Fifth
Respondent
GEORGE
CLOETE
.....................................................
Sixth
Respondent
SERAH
DAHLIA HOSKINS
...................................
Seventh
Respondent
GILLIAN
YVETTE PIETERS
....................................
Eighth
Respondent
ALETTA
MAXINE MAARMAN
....................................
Ninth
Respondent
JUDGMENT
MAMOSEBO AJ
[1] This is an application for
interim relief (Part A) by the applicants pending a review
application (Part B). Having heard argument
by Adv Ploos Van Amstel
SC assisted by Adv Simon for the applicants and Adv Nkosi-Thomas SC
for the first respondent and Adv Standton
for the second to ninth
respondents on 01 July 2013 and having read the documents filed I
reserved judgment and ordered as follows:
That neither party shall convene
any other council or special council meeting of the first applicant[
Nama Khoi Municipality],
pending the finalization of Part A of this
application; and,
Neither party shall, pending
finalization of Part A of this application, institute any further
application or proceedings in relation
to any matter that forms the
subject of the applications brought under case numbers 817/2013,
943/2013 and 973/2013, except in
the event of a breach of the
provisions of the orders granted under case numbers 817/2013,
943/2013 and 973/2013.
[2] The Nama Khoi Municipality (the
municipality), has been duly established in terms of s12 of the Local
Government: Municipal
Structures Act, 117 of 1998 (“the
Municipal Structures Act”) with its seat at the municipal
offices in Namakwa Street,
Springbok, Northern Cape. The second
applicant is the Speaker and councillor of the municipality, Mr
Joshua Charles Losper, the
third applicant is its Mayor, Mr Schalk
Willem Lubbe, the fourth to ninth applicants are its councillors:
They are Mr Willem Steenkamp
Jordaan, Mr Gert Jacobus Coetzee, Ms
Katrina Solda Ventura, Mr Stephanus Jan Coetzee Van Wyk, Mr Willem
Jacobus Goedeman and Ms
Veronica Van Dyk. The tenth applicant is the
Municipal Manager, Mr Aubrey Baartman NO. The second to tenth
applicants are members
of the Democratic Alliance (DA) and the
Congress of the People (Cope) who jointly constitute the municipal
Coalition.
[3] The first respondent is the MEC
for Local Government in the Northern Cape (“The MEC”),
the second to ninth respondents
are councillors in the
municipality:They are Mr Lorenzo Fabio Faber, Mr Edlyn Ferdinand
Maritz, Mr Franciscus Xavier Cupido, Mr
Simon Kleinbooi, Mr George
Cloete, Ms Serah Dahlia Hoskins, Ms Gillian Yvette Pieters and Ms
Aletta Maxine Magerman, respectively.
The respondents are members of
the African National Congress (ANC).
[4] The relief sought by the
applicants is:
(a) To maintain the status quo of
the municipality, the municipal council and the councillors until the
proposed review proceedings
have been finalized;
(b) To restrain and prohibit the MEC
from interfering in the activities of the municipal council.
[5] Part A of this application was
set down on the urgent roll for 25 June 2013 before Coetzee AJ under
case number 943/2013 who
postponed it to 01 July 2013. He granted the
following order:
5.1 The application stands down
until Monday 01 July 2013;
5.2 The respondents, if they so
wish, to file their answering affidavits by no later than 14:00 on
Thursday 27 June 2013;
5.3 The applicants to file their
replying affidavits by no later than 16:00 on Friday 28 June 2013;
5.4 The second up to and
including the ninth applicant, the second up to and including the
ninth respondent (herein after referred
to as “the
“Councillors”) and the tenth applicant attend the council
meeting of the first applicant [the municipality]
of the 27 June
2013, and remain in attendance thereat until:
5.4.1 Councillor HS Apollis is
duly inaugurated; and
5.4.2 The 2013/2014 draft budget
is approved;
5.5 The meeting of 27 June 2013
shall take place at the council chambers of the first applicant and
shall remain convened at the
council chambers of the first applicant
until items 5.4.1 and 5.4.2 above are concluded.
5.6 Neither party shall interfere
with the proper functioning of the council of the first applicant in
addressing the agenda as
per the Court Order granted on 20 June 2013
under case number 943/2013;
5.7 Neither party shall convene
any other council meeting or special council meeting of the first
applicant, pending the finalization
of Part A of this application. It
is recorded that the council meeting of the [municipality], pending
the finalization of part
A of this application, shall be the meeting
convened to commence on 27 June 2013 at 10:00 and that neither the
second applicant
[the Speaker], nor any other person purporting to
act on his behalf, shall postpone the meeting of 27 June 2013;
5.8 Neither party shall, pending
the finalization of Part A of this application, institute any further
application or proceedings
in relation to any matter that forms the
subject of the applications brought under cases number 817/2013;
943/2013 and 973/2013,
except in the event of a breach of the
provisions of the orders granted under cases number 817/2013,
943/2013 and 973/2013;
5.9 The inauguration of the newly
elected councillor for Ward 1 of the [municipality], Mr HS Apollis,
at the Namakwa District Municipality
on 20 June 2013 to be annulled;
5.10 The costs of today are
reserved for determination on 01 July 2013.
[6]
It need also be mentioned that prior to the application before
Coetzee AJ on 25 June 2013 the same
parties appeared before
Williams J on 03 June 2013 under
case number 817/2013, who
granted the following order:
6.1 The 1
st
respondent is directed to apply his mind in considering whether
the 2
nd
to 9
th
respondents should be removed from the offices as councillors of
the 1
st
applicant in terms of the
Local
Government Municipal Systems Act, 32 of 2000
, and
Section 4(2)
of the
Code of Conduct for Councillors;
6.2 The 1
st
respondent
is directed to authorize the 1
st
applicant to take such
steps as may be deemed necessary to pass the Annual Municipal
2013/2014 Budget of the 1
st
applicant at a date later than
1 July 2013, if necessary, but in any event as soon as practically
possible;
6.3 The relief set out in prayers
1; 2.1; 2.2; 2.4 and 2.7 stand over for later determination;
6.4 The applicants are granted
leave to file supplementary affidavits, if necessary, by 16:00 on 10
June 2013;
6.5 The respondents are to file
the answering affidavits by 14 June 2013;
6.6 The applicants are to file
their replying affidavits, if any, by 21 June 2013;
6.7 The date for the argument of
the application must be arranged between the parties and the
Registrar;
6.8 The Costs of today
[03/06/2013] stand over for later determination.
[7]
The applicants initially asked the Court for the following prayers
which
for
convenience will be listed as appearing on the notice of motion:
4.1
The [MEC] be interdicted and restrained from instructing and/or
designating Ms M Brandt, Municipal Manager of Namakwa District
Municipality, to convene a council meeting of the municipality to be
held at 10:00 on 27 June 2013 at the Nama Khoi municipality;
and the
letter issued by Ms Brandt to this effect, on the instruction of the
[MEC] be declared invalid;
4.2
[The MEC] be interdicted and restrained from convening the council
meeting scheduled for 27 June 2013 and/or any other future
council
meeting scheduled by [the municipality] at the Namakwa District
Municipality;
4.3
[The MEC] to be interdicted and restrained from:
(a)
interfering with the duties of the Municipal Manager and the Speaker
of the municipality; and/or
(b)
preventing the Municipal Manager and the Speaker of the municipality
from carrying out their duties; and/or
(c)
doing anything whatsoever, that is directed at preventing the
Municipal Manager and/or the Speaker of the first applicant to
convene the council meeting of 27 June 2013 at the municipality
and/or any future council meeting;
4.4
The second to ninth respondents are interdicted and restrained from
taking any decision; and/or tabling any motion that is directed
at
changing the current status of any of the second to ninth applicants;
4.5
The first to ninth respondents are interdicted and restrained from
taking any decision that is directed at and/or is intended
to
interfere with:
(a)
the administration of the [municipality]; and/or
(b)
the position of the [Municipal Manager]; and/or
(c)
the work of the [Municipal Manager];
4.6
The first to ninth respondents are interdicted and restrained from
carrying out any action in any terms whatsoever which may
affect the
current status of the [municipal council], and/or which is intended
at affecting and/or may affect the administration
of the
[municipality], save for the [MEC] to assist in approving the budget
of the [municipality];
4.7
No other council meetings are held, save for the meeting scheduled
for 27 June 2013;
4.8
The inauguration of the newly elected councillor for Ward 1 of the
[municipality], Mr HS Apollis, at the Namakwa District Municipality
on 20 June 2013, by and/or on the instruction of the [MEC], be
annulled.
Prayers 4.1, 4.2, 4.3(c) , 4.7 and
4.8 of the Notice of Motion have already been dealt with, which
leaves for determination prayers
4.3 (a) and (b), 4.4, 4.5 (a), (b)
and (c), and 4.6.
The background
[8] In May 2011, Local Government
Elections were held in the Nama Khoi area of jurisdiction. In
consequence thereof, the DA won
six wards; the ANC won eight wards,
Cope won three wards. Cope and DA formed a Coalition as a result of
which they held a one seat
majority over the ANC. A former DA
councillor resigned and crossed the floor to the ANC and caused an
8:8 equal number of votes
between the ANC and the Coalition. Mr
Hendrik Selodis Apollis subsequently won the vacated Ward 1 on 22 May
2013 as a member of
the ANC, which caused the pendulum to swing the
ANC way with the equation as ANC 9:8 the Coalition.
[9] A municipal council is
responsible for exercising powers and performing functions of the
municipality. Although a Speaker has
a casting vote,
s30
(4) read
with s30(1) of the Municipal Structures Act requires a specified
number of councillors to be present in a meeting to form
a quorum. In
this instance the municipality required a minimum of nine councillors
to constitute a quorum. S 160(3) (a) of the
Constitution of the
Republic of South Africa, Act 108 of 1996, requires that there be a
majority of members of the municipal council
present before voting on
any matter. The ANC respondent councillors missed attending three
consecutive meetings (26 March 2013,
28 March 2013 and 25 April
2013). It was submitted on behalf of the applicants that these
absences were deliberate and were intended
to render the municipality
dysfunctional in that the 2013/2014 budget which should have been
tabled by the Mayor before 31 March
2013, at least 90 days before the
start of the financial year, was aborted. The municipality is
therefore
paralysed
as all expenditures are
or would become unauthorized. A meeting was held on 27 June 2013 at
which the budget was discussed and
the inauguration of councillor
Apollis as Ward 1 councillor was finalized.
[10] It is common cause that all
these council meetings, including the one of 09 April 2013, were
properly convened and all councillors
signed an acknowledgement of
receipt of the invitation to attend. However, the ANC councillors did
not attend as reflected on the
attendance registers attached to the
applicants’ papers. The meetings were scheduled to table and
discuss the draft budget,
the Integrated Development Plan and the
public accounting committee report. The respondents’ written
response in respect
of their failure to attend the meeting of 26
March 2013 is that they were busy with door to door election
campaigning that coincided
with the council meeting. The second
respondent (Faber) was allegedly authorized by the municipality to
attend a SALGA meeting
in Kimberley on that date, an allegation
disputed by the Coalition Speaker. The meeting of 09 April 2013 was
cancelled by the Municipal
Manager on 08 April 2009 as the Mayor had
taken ill.
[11] The Coalition applicants allege
that there is political infighting between the adversaries as a
result of which service delivery
and good governance are being
sacrificed at the altar of political expediency. Reference is made to
the two meetings called by
the respondents for 06 and 13 June 2013 to
discuss the Integrated Development Plan and the draft budget. It is
claimed that the
real motive by the ANC was to unseat the members of
the Coalition; more pertinently to elect a new Speaker, a Mayor and
thereby
dissolve the Coalition and substitute it with an ANC
executive. The Speaker in para 54 of his founding affidavit states
that submissions
were made by him and the Coalition Mayor on 05 April
2013 to the MEC to intervene in the stalemate but the MEC has failed
to take
appropriate action against the defaulting respondent
councillors to ensure that the budget was approved timeously. This
allegation
is vehemently denied by the MEC who submits that he has
done everything in his power to support the municipality and has
applied
his mind to the complaint and decided not to remove the
respondent councillors.
[12] In an effort to force
compliance by the respondent councillors the Speaker wrote three
threatening letters to them with a possibility
of withholding their
salaries if they continue to absent themselves wantonly from council
meetings. The subsequent withholding
of their salaries was
countermanded by an instruction by the MEC to the Speaker to pay out
the withheld salaries of the second
to ninth respondents, which were
accordingly reinstated.
[13] There was an exchange of
letters between the Speaker and the MEC pertaining to fixing the next
date to convene a council meeting.
The MEC proposed 14 June 2013 to
inaugurate councillor Apollis as Ward 1 councillor and to attend to
the draft budget. The Speaker
indicated that a suitable date would be
20 June 2013 as the initial budget had to be adjusted. The draft
budget had a surplus which
did not cater for landfill sites and
depreciation of assets. It is pointed out that National Treasury
directed all municipalities
to increase their tariffs. The MEC issued
an instruction by letter to the Speaker that the council meeting
should be held on 20
June 2013 for the suggested purposes as well.
[14] It is after the letter of 20
June 2013 was written by the MEC to the Speaker that a second
interlocutory application under
case 943/2013 was brought on an
urgent basis to this Court and heard on 20 June 2013 by Coetzee AJ.
The Coalition applicants were
asking the Court to compel the MEC to
apply his mind to whether or not the second to ninth respondents
should be removed from their
offices as councillors by not later than
28 June 2013 due to their said absenteeism; and that the said ANC
respondents were not
to attend any council meeting pending the MEC’s
decision. The Court was asked to direct that the meeting of 20 June
2013
be suspended pending the outcome of such a decision. By
agreement between the parties the Court ordered that the application
be
removed from the roll;
that the
Speaker, failing him,
a person designated by the MEC
,
shall
convene a council meeting
not later than 10 o’clock
on 21 June 2013 to commence at 10:00 on Thursday, 27 June 2013 with
the business of the day;
that the agenda shall include the
inauguration of Mr Apollis as a councillor in the municipality; the
presentation and adoption
of the 2013/2014 budget; and that the
special council meeting to remain convened or in session until the
2013/2014 budget was approved.
[15] Counsel for the Coalition, Mr
Ploos Van Amstel, argued that proceeding with the meeting in
Springbok on 20 June 2013 while
the urgent application was being
heard on the same day in the Kimberley High Court shows the
undermining of the authority of the
Court by the MEC as he should
have been present in Court that day. I should point out that the
presence of the MEC in Court in
an application was not a legal
requirement. Counsel submitted that the MEC’s procrastination
to remove the second to ninth
respondents, who belong to his party,
and the fact that he gave written instructions to the Municipal
Manager, a member of the
Coalition, amounts to interference with the
functioning of the municipality which the Court must prohibit through
an interdict.
This argument was, however. countered by counsel for
the MEC, Ms Nkosi-Thomas that the date of 20 June 2013 for the
meeting came
from the applicants. Para 5 of their letter Annexure JL
13 reads:
“
Our clients have
instructed us to give an undertaking that a meeting will be convened
on 20 June 2013, which is only a week away.”
[16] In order to put into
perspective what has been characterized as interference by the MEC
the relevant sections of the Municipal
Structures Act as well as the
Code of Conduct are quoted below.
16.1 The Code of Conduct for
Councillors, Schedule 1 of the
Local Government: Municipal Systems
Act, 32 of 2000
, provides:
“
Attendance of meetings
3
A councillor must attend each
meeting of the municipal council and of a committee of which that
councillor is a member, except when-
leave of absence is granted in
terms of an applicable law or as determined by the rules and orders
of the council; or
that
councillor
is required in terms of this Code to withdraw
from the meeting.
Sanctions for non-attendance
of meetings
4(1) A municipal council may
impose a fine as determined by the standing rules and orders of the
municipal council on a councillor
for:
not attending a meeting which
that councillor is required to attend in terms of item 3; or
failing to remain in attendance
at such a meeting.
A councillor who is absent
from three or more consecutive meetings of a municipal council, or
from three or more consecutive meetings
of a committee, which that
councillor is required to attend in terms of item 3, must be removed
from office as a councillor
.
Proceedings for the
imposition of a fine or the removal of a councillor must be
conducted in accordance with a uniform standing
procedure which each
municipal council must adopt for the purposes of this item. The
uniform standing procedure must comply with
the rules of natural
justice.”
(own emphasis added)
Breaches of the Code
16.2
14(1) A municipal council
may-
Investigate and make a finding
on any alleged breach of a provision of this Code; or
Establish a special committee-
to investigate and make a
finding on any alleged breach of this Code; and
to make appropriate
recommendations to the council.
(2) If the council or a special
committee finds that a councillor has breached a provision of this
Code, the council may-
(a) issue a formal warning to the
councillor;
(b) reprimand the councillor;
(c)
request the MEC for
local government in the province to suspend the councillor for a
period
;
(d) fine the councillor; and
(e)
request the MEC to
remove the councillor from office.”
(Emphasis added)
The MEC for
local government
may
appoint
a person or a committee to investigate any alleged breach of a
provision of this Code and to make a recommendation on
whether the
councillor should be suspended or removed from office.
The Commission’s Act 8 of
1947, or where appropriate, applicable provincial legislation, may
be applied to an investigation
in terms of sub-item (4).
If the MEC is of the opinion that
the councillor has breached a provision of this Code, and that such
contravention warrants a
suspension or removal from office, the MEC
may –
Suspend the councillor for a period
and on conditions determined by the MEC;
Remove the councillor from office.
Any
investigation in terms of this item must be in accordance with the
rules of natural justice.
(emphasis
added)
[17] Para 6 of the aforementioned
letter, JL 13, further reads:
“
This brings us to another
aspect of the matter which is troubling in the extreme. You appear to
have ignored the part of the court
order which instructs you to
investigate the removal of the councillors who failed to attend
meetings.”
[18] It is apposite to quote from
item 13 of the Code of Conduct for Councillors, which states:
Duty of a chairperson of
municipal councils
13(1) If the chairperson of a
municipal council, on reasonable suspicion, is of the opinion that a
provision of this Code has been
breached,
the
chairperson
must:
authorize an investigation of
the facts and circumstances of the alleged breach;
give the councilor a reasonable
opportunity to reply in writing regarding the alleged breach; and
report the matter to a meeting
of the municipal council after paragraphs (a) and (b) have been
complied with.
A report in terms of sub item 1
(c) is open to the public.
The chairperson must report
the outcome of the investigation to the MEC
for local
government in the province concerned.
The chairperson must ensure that
each councilor when taking office is given a
copy
of this Code and that a copy of the Code is available in every
room or place where the council meets.”
(My emphasis)
Interference by the MEC (first
respondent)
[19] I have noted the order by
Williams J which directed the MEC to apply his mind to consider
whether the second to ninth respondents
should be removed from office
as councillors. Item 13 of the Code cited above in para 16, requires
the Chairperson, who is also
the Speaker, to submit a report to the
MEC after he had investigated the matter and afforded the respondent
councillors an opportunity
to comment as required by the Code.
However, this requirement has been superseded by the Court order
Williams J made on 03 June
2013 directing the MEC to apply his mind,
which order appears in para 6 above.
[20]
In
Bangtoo Bros v National Transport
Commission
1973 (4) SA 667
(N)
at 685 A-D, Henning J stated:
“
I am for the
moment concerned with what is meant by the expression ‘apply
its mind to the matter’, certain aspects of
which have already
been covered by this judgment. It seems to me essential that the
tribunal is essentially obliged to consider
all relevant and material
information placed before it. To pay mere lip-service to this
obligation is not sufficient, just as it
would be a dereliction of
duty to hear representations which are pertinent, and then to ignore
them. The problem arises whether
the Court is concerned with the
degree of importance which the tribunal attaches, in the exercise of
an honest judgment, to the
relevant considerations. Take a case, for
example, where a factor which is obviously of paramount importance is
relegated to one
of insignificance, and another factor, though
relevant, is given weight far in excess of its true value. Accepting
that the tribunal
is the sole judge of the facts, can it be said that
it has in the circumstances postulated properly applied its mind to
the matter
in the sense required by law? After much anxious
consideration I have come to the conclusion that the answer must be
in the negative.”
[21] I have further noted the order
by Williams J directing the municipality to take such steps as may be
deemed necessary to pass
its Annual Municipal 2013/2014 Budget at a
date later than 01 July 2013, if necessary, but in any event as soon
as practically
possible. This order, coupled with the undertaking to
hold the meeting on 20 June 2013 by the applicants, cannot be seen as
interference
by the MEC because he was mandated to carry out certain
official functions.
[22] S139 (4) of the Constitution
reads:
“
If a municipality cannot
or does not fulfill 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 –
appointing an administrator
until a newly elected Municipal Council has been declared elected;
and
approving a temporary budget or
revenue-raising measures to provide for the continued functioning of
the municipality.”
(My emphasis)
[23] Item 4(2) of the Code of
Conduct for Councillors provides that a councillor who is absent from
three consecutive meetings of
a municipal council must be removed
from office as a councillor. Item 4(3) requires that rules of natural
justice must be applied
which are in conformity with the Uniform
Standing Procedure which each municipal council must adopt for
purposes of this item.
The word ‘must’ denotes that the
adoption of this procedure is peremptory. Therefore, the
audi
alteram partem
rule which is fair and transparent must be
observed. It is interesting to further note that item 14(7) also
emphasizes that the
investigation has to accord with rules of natural
justice.
[24] I have noted that the
municipality has not adopted any Uniform Standing Procedures which
are essential for the municipality
to address issues of governance
and regulate the conduct of councillors. In my view, failure by the
municipality to develop such
procedures should not be used as a
scapegoat to hamstring the effective and efficient functioning of a
municipality in line with
its constitutional imperatives. Rules of
natural justice ensure the safeguarding of the principle of
audi
alteram partem.
It promotes and respects the participation of
those who will be affected by the outcome but also aims at improving
the quality and
rationality of administrative decision-making.
Goldstone J in
Janse Van Rensburg NO and Another v Minister of
Trade and Industry and Another NNO
2001 (1) SA 29
(CC)
linking the importance of fairness to the growth of discretionary
power said the following at para 24:
“
In modern States it has
become more and more common to grant far-reaching powers to
administrative functionaries. The safeguards
provided by the Rules of
procedural fairness are thus all the more important….
Observance of the rules of procedural fairness
ensures that an
administrative functionary has an open mind and a complete picture of
the facts and circumstances within which
the administrative action is
to be taken. In that way the functionary is more likely to apply his
or her mind to the matter in
a fair and regular manner.”
See also
De Lange v
Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) para 131, where Mokgoro J said:
“
Everyone has the right to
state his or her own case, not because his or her version is right,
and must be accepted, but because,
in evaluating the cogency of any
argument, the arbiter, still a fallible human being, must be informed
about the points of view
of both parties in order to stand any real
chance of coming up with an objectively justifiable conclusion that
is anything more
than chance.”
[25] The applicants argue that an
interim interdict pending the outcome of the review should be granted
because their prospects
of success in the review application are
high. The applicants must show the requisites for the grant of
temporary interdict pending
the determination of the main action. In
LF Boshoff
Investments
(Pty) Ltd v Cape Town
Municipality: Cape Town Municipality v LF Boshoff (Pty) Ltd
1969
(2) SA 256
(C) Corbett J said at 267 B-F:
“
Briefly these requisites
are that the applicant for such temporary relief must show -
(a) that the right which is the
subject-matter of the main action and which he seeks to protect by
means of interim relief is clear
or, if not clear, is prima facie
established, though open to some doubt;
(b) that, if the right is only
prima facie established, there is a well-grounded apprehension of
irreparable harm to the applicant
if the interim relief is not
granted and he ultimately succeeds in establishing his right;
(c) that the balance of
convenience favours the granting of interim relief; and
(d) that the applicant has no
other satisfactory remedy.
(See Gool v Minister of Justice
and Another,
1955 (2) SA 682
(C) at pp. 687 - 8; Pietermaritzburg
City Council v Local Road Transportation Board,
1959 (2) SA 758
(N)
at p. 772). Where the applicant cannot show a clear right, and more
particularly where there are disputes of fact, the Court's
approach
in determining whether the applicant's right is prima facie
established, though open to some doubt, is to take the facts
as set
out by the applicant, together with any facts set out by the
respondent which the applicant cannot dispute, and to consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial of the
main
action (see Gool's case, supra).”
See also
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E – 635C.
[26] I am satisfied that the
application by the applicant Coalition is not
bona fide
. It
anticipates the inevitable. The Coalition has realized and has in
fact said so in so many words that the ANC majority (with
the
addition of Apollis) intends to bring a motion of no confidence in
the DA/Cope Mayor and Speaker and institute their own executive.
Well, this is how democracy works.
[27] Mr Ploos Van Amstel has argued
that the facts in this matter are similar to those in the Australian
case of
Shire of Waroona and Fitzpatrick
[2007] WASAT
219
(29 August 2007). In that case the Court observed at para 19-20:
“
(19) The object of the
section is readily apparent. In effect, it imposes an obligation on
councillors to attend meetings, and not
to fail to attend three
consecutive meetings unless the reasons are such that the council has
considered the circumstances and
made express resolution to grant
leave of absence. Whether that strict rule should be relaxed to cater
for exceptional circumstances,
and whether the Tribunal should have
some discretion to consider exceptional circumstances, is a matter
for government. Given the
circumstances of this case, the Tribunal
proposes to forward a copy of this decision to the Minister for Local
Government for information.
(20) It is appropriate to take
the opportunity to make an observation about a matter asserted in Mr
Fitzpatrick’s letter of
18 May 2007. That is the proposition
that a Councillor needs to be in attendance to apply for leave of
absence. There is nothing
in s2.25 which requires the attendance of a
member at the meeting at which leave of absence for some future
meeting is granted.
It is necessary that leave of absence be granted
prior to a particular meeting. Thus it would not appear possible, if
a member
is unexpectedly prevented from attending a particular
meeting, to have a motion of leave for absence moved at that meeting.
Where,
however, a member absent at one meeting, anticipates that he
or she will not be able to attend the following meeting, there is
nothing to prevent the Council resolving to grant leave of absence in
respect to the following meeting, notwithstanding the absence
of the
member at the time the motion is put and carried.”
For the aforegoing reasons the
councillor was removed from office. However, in the matter at hand,
and for the reasons that follow
it is not necessary for me to
determine the issue of the removal of the ANC councillors. However, I
would be failing in my duty
if I did not point out that it is the
height of irresponsibility to default on attending a properly
scheduled council meeting on
the flimsy pretext that they, the ANC
councilors, were canvassing for votes. I will leave it there for
present purposes.
[28] It is not the purpose of this
application to decide whether the nine ANC councillors must be
removed. This application has
to determine whether the minority
DA/Cope Coalition must remain in power pending the determination by
the municipal council or
the MEC or the Court in a review application
on whether the nine ANC councillors disqualified themselves as
councillors through
their alleged failure to attend three consecutive
council meetings.
[29] It is up to the DA/Cope
Coalition to bring the review application for the removal of the nine
ANC councilors (Part B of the
relief sought) irrespective of the fact
that they are unsuccessful in this application. As is the practice in
this Division such
a review will have to serve before two judges.
[30] It is as well to remind all the
councillors, irrespective of their party affiliation, of what the
Preamble in the
Local Government Municipal Structures Act, 117 of
1998
, provides:
“
Whereas there is
fundamental agreement in our country on a vision of democratic and
developmental local government, in which municipalities
fulfill their
constitutional obligations to ensure sustainable, effective and
efficient municipal services, promote social and
economic
development, encourage a safe and healthy environment by working with
communities in
creating
environments and human settlements in which all our people can lead
uplifted and dignified lives;
Whereas municipalities across our
country have been involved in a protracted, difficult and challenging
transition process in which
great strides have been made in
democratising local government; and
Whereas municipalities now need
to embark on the final phase in the local government transition
process to be transformed in line
with the vision of democratic and
developmental local government."
Costs
[31] For the aforegoing reasons the
application must fail. No case has been made out for costs
de
bonis propriis
against the 2
nd
to 10
th
applicants
.
The costs will follow the result.
ORDER
Application for the interim
relief is refused.
The applicants are to pay the
costs of this application together with the previous applications of
03 and 25 June 2013 on party
and party scale.
____________________________
M
C MAMOSEBO
ACTING
JUDGE
Northern
Cape High Court, Kimberley
``
On
behalf of the Applicant: Adv. C Ploos Van Amstel
Assisted
by : Adv C Simon
Instructed by: Messrs
Cornelissen Inc
On
behalf of the First Respondent: LG Nkosi-Thomas SC
Instructed
by: Mr O F Lategan
Office
of the State Attorney
On
behalf of 2
nd
–
9
th
Respondents: Adv A Stanton
Instructed by: Messrs
Duncan & Rothman Inc