About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2013
>>
[2013] ZAKZPHC 62
|
|
MEC for KwaZulu-Natal of the Department of Co-operative Governance and Traditional Affairs v Inkatha Freedom Party and Others (10304/13) [2013] ZAKZPHC 62 (13 November 2013)
In the High Court of
South Africa
KwaZulu-Natal Division,
Pietermaritzburg
Case No : 10304/13
In the matter between :
The Member of the
Executive Council
for KwaZulu-Natal of the
Department of Co-operative
Governance and
Traditional Affairs
....................................................................
Applicant
and
Inkatha Freedom Party
..........................................................................
First
Respondent
Vusumuzi Joseph Mthembu
.............................................................
Second
Respondent
Abaqulusi Municipal
Council
.................................................................
Third
Respondent
Executive Committee,
Abaqulusi Municipal
Council
................................................................................................
Fourth
Respondent
P N Khaba N.O.
.....................................................................................
Fifth
Respondent
M P Mtshali N.O.
...................................................................................
Sixth
Respondent
National Freedom Party,
Abaqulusi
.................................................
Seventh
Respondent
Democratic Alliance,
Abaqulusi
..........................................................
Eighth
Respondent
African National
Congress, Abaqulusi
..................................................
Ninth
Respondent
Tandolwethu Manda
............................................................................
Tenth
Respondent
Judgment
___________________________________________________________________
Lopes J
[1] Prior to setting out
the question I am required to determine in this application, it is
helpful to set out the history of the
dispute thus far :
(a) it became necessary
for the Abaqulusi Municipal Council (‘the Council’) (the
third respondent in this application)
to appoint a new municipal
manager;
(b) applications were
received and on the 16
th
October 2012, an interview panel
shortlisted various candidates including, Vusumuzi Joseph Mthembu
(‘Dr Mthembu’) (
the second respondent in this
application) ;
(c) on the 7
th
November 2012 the executive committee of the Abaqulusi Municipal
Council (the ‘Executive Committee’) (the fourth
respondent
in this application) resolved to recommend to the Council
the appointment of Dr Mthembu as the municipal manager;
(d) although suggestions
were made that Dr Mthembu had misrepresented his credentials in
applying for the post of municipal manager,
on the 4
th
December 2012 the Council adopted the recommendation of the Executive
Committee to appoint Dr Mthembu as the municipal manager.
On the 6
th
December 2012 the mayor of the Council, P N Khaba, (‘the
Mayor’) (the fifth respondent in this application) notified
the
Member of the Executive Council for KwaZulu-Natal of the Department
of Co-operative Governance and Traditional Affairs (‘the
MEC’)
(the applicant in this application) of the Council’s resolution
to appoint Dr Mthembu as the municipal manager;
(e) despite a response by
the Mayor that she had noted that the reference checks on the
credentials put up by Dr Mthembu revealed
that he had misrepresented
his position, on the 5
th
March 2013 and at an adjourned
special Council meeting, the appointment of Dr Mthembu as municipal
manager was confirmed, with
the direction that he was to assume
duties with immediate effect on the 6
th
March 2013. It was
also recorded at that Council meeting that the Executive Committee
would discuss the conditions of service and
the employment contract
of Dr Mthembu and finalise the process by noon on the 7
th
March 2013;
(f) the Executive
Committee and the Mayor did not, however, ensure the finalisation of
Dr Mthembu’s conditions of service
and employment contract
including his salary package as per the minutes of the Council
meeting of the 5
th
March 2013. The Inkatha Freedom Party
(the first respondent in this application) and Dr Mthembu accordingly
sought a mandamus from
this court ordering the Executive Committee
and the Mayor to implement the resolution of the 4
th
December 2012 as confirmed in the subsequent resolution of the 5
th
March 2013, for the appointment of Dr Mthembu as municipal manager
for the Abaqulusi Municipality;
(g) that application came
before Ntshangase J and on the 30
th
August 2013 he granted
an order in terms of which the Executive Committee and the Mayor were
ordered to implement the resolutions
of the Council of the 4
th
December 2012 and the 5
th
March 2013;
(h) the order provided
that the Executive Committee and the Mayor were to do all things
necessary to install Dr Mthembu as municipal
manager and to that end
were required, in terms of s 57 of the Local Government : Municipal
Systems Act, 2000 (‘the Municipal
Systems Act’) :
(aa) to negotiate Dr
Mthembu’s employment contract and salary package within five
days of the date of the order;
(bb) to negotiate Dr
Mthembu’s performance contract within sixty days of the date of
his appointment;
(i) on the 2
nd
September 2013 six councillors of the Council requested the Mayor to
call a meeting to deal with the order of Ntshangase J and
the
appointment of Dr Mthembu as municipal manager. The Mayor set that
meeting down for the 5
th
September 2013;
(j) on the 4
th
September 2013 those councillors met (in the absence of the Mayor,
and without her knowledge) and took a decision to appoint Dr
Mthembu
as municipal manager;
(k) on the same day, a
matter of hours later, an attorney for the Department of Co-operative
Governance and Traditional Affairs
notified the parties of the MEC’s
intention to apply for leave to appeal against the decision of
Ntshangase J. A notice of
application for leave to appeal was
delivered to all parties on that day.
[2] Despite the MEC’s
notice of application to apply for leave the appeal, the Inkatha
Freedom Party and Dr Mthembu have taken
the view that the appointment
of Dr Mthembu as municipal manager of the Abaqulusi municipality
pursuant to the meeting of the 4
th
September 2013 is to
stand, and that any possible appeal by the MEC has become perempted.
That attitude has precipitated this application
in which the MEC
seeks :
(a) an interdict
restraining all the cited respondents from giving effect to the
appointment of Dr Mthembu as the municipal manager
of the Abaqualusi
municipality.;
(b) an order that any
employment contract or salary package in respect thereof, or any
performance contract, or any appointment
of Dr Mthembu, be suspended
pending the final determination of the MEC’s appeal processes,
(c) an order declaring
that the application for leave to appeal delivered by the MEC
suspends the effect and implementation of the
judgment of Ntshangase
J, and that all purported compliance with that court order prior to
delivery of the notice of application
for leave to appeal is declared
to be invalid and a nullity;
(d) that the meeting of
the executive committee of the 4
th
September 2013 is
declared to be illegal and of no force and effect in law and all
resolutions passed thereat to be declared invalid.
[3] This application came
before Poyo-Dlwati AJ who, on the 1
st
October 2013,
granted a rule as sought by the MEC, together with interim relief
effectively interdicting and restraining the respondents
from giving
any effect to the appointment of Dr Mthembu as municipal manager.I am
now required to consider whether that order should
be made final.
[4] Mr
Phillips
who appeared for the first and second respondents together with Ms
Pudifin-Jones
submitted the following defences to the
confirmation of the rule :
(a) the right of the MEC
to appeal the decision of Ntshangase J had become perempted;
(b) this court should
scrutinise carefully the reasons why the MEC wishes to appeal the
judgment of Ntshangase J, because the only
order made directly in
respect of her was a costs order occasioned by her decision to oppose
that application. In this regard it
is important to look at what such
an appeal, even if successful, could achieve;
(c) because the MEC was
motivated by reasons which go beyond the exercise of her oversight
powers granted in terms of the Constitution,
1996 she should be
directed to pay the costs in her capacity as MEC, and in addition a
rule nisi should issue calling upon her
to show cause why she should
not be personally liable de bonispropriis to pay those costs.
[5] Mr
Phillips
submitted that the only thing which becomes suspended by the noting
of the application for leave to appeal is the threat of a judicial
sanction for the failure by Dr Mthembu to carry out his duties. To
consider this, it is necessary to examine the terms of the order
granted by Ntshangase J. The first part of his order required that
the Executive Committee and the Mayor implement the resolution
of the
Council of the 4
th
December 2012 as confirmed in the
meeting of the 5
th
March 2013. The second part of the
order required that the Executive Committee and the Mayor do all
things necessary to appoint
Dr Mthembu as municipal manager by
negotiating his employment contract and salary package within five
days and by negotiating his
performance contract within sixty days of
the date of his appointment. Both these functions were to be
performed in terms of the
provisions of the Municipal Systems Act.
[6] The judgment of
Ntshangase J does not call into question the resolutions of the 4
th
December 2012 and the 5
th
March 2013. Indeed it affirms
those resolutions. The consequence of noting an appeal therefore is,
in respect of the first part
of the order, to suspend the order of
Ntshangase J to implement the resolutions.
[7] The second part of
the order does not only deal with the threat of a judicial sanction
for the failure to carry out the order.
It directs the Executive
Committee and the Mayor to negotiate Dr Mthembu’s employment
contract and salary package within
five days of the order. The effect
of a suspension of the second part of the order by way of the noting
of the application for
leave to appeal would therefore mean that the
Executive Committee and the Mayor could not negotiate with Dr Mthembu
in order to
determine his employment contract and salary package. The
same applies with regard to the negotiations between the Executive
Committee
and the Mayor on the one hand, and Dr Mthembu on the other,
for Dr Mthembu’s performance contract.
[8] It is important to
note that, in terms of s 57(1) of the Municipal Systems Act :
‘
(1)
A person to be appointed as the municipal manager of a municipality …
may be appointed to that position
only
–
(a) in terms of a
written
employment contract
with the municipality complying with the
provisions of this section; and
(b) subject to a separate
performance agreement concluded annually as provided for in
subsection (2).’
(my
underlining)
[9] The order of
Ntshangase J required the appointment of Dr Mthembu in terms of
subsec 57(1)(a). Although the Council may have
resolved to appoint Dr
Mthembu, until the provisions of subsec 57(1)(a) were complied with,
he was not appointed municipal manager.
This only happened on the 4
th
September 2013.
[10] There can be no
suggestion then that the order of Ntshangase J only had the effect of
a threat of judicial sanction. The order
directed that the parties
conclude the contract of employment. It is clear from the papers that
the MEC, in the exercise of her
oversight function in terms of s
139(1)(b) of the Constitution, seeks to prevent the appointment of Dr
Mthembu as municipal manager.
This is on the basis that his
application contained false information, and in terms of the relevant
Human Resources Municipal Policy
manual, he is disqualified from
being so appointed.
[11] In my view the
effect of the noting of an appeal in the normal course would have
been to prevent the Executive Committee and
the Mayor from acting as
they were ordered to do by Ntshangase J.
[12] With regard to the
fact that by the time the appeal was noted by the MEC the judgment
had been executed in that a contract
of employment had been concluded
with Dr Mthembu, I understand the submission of Mr
Phillips
to
be that because the order of Ntshangase J had been executed, the
noting of the application for leave to appeal leaves nothing
to be
suspended (save perhaps costs) and accordingly there is nothing to be
interdicted by this court. Whilst the order of Ntshangase
J gave a
very limited time period within which the second part of the order
was to be carried out by the Executive Committee and
the Mayor, that
in no way abrogated the time limits which are set down for the noting
of an application for leave to appeal. Indeed,
even if the MEC had
taken the full period of fifteen days to which she was entitled in
terms of Rule 49(1)(b) of the Uniform Rules,
that cannot in my view
affect the situation.
[13] Were it to be a
correct submission that an appeal can become perempted because
execution takes place prior to the lodging of
an application for
leave to appeal, the legal process of an appeal would develop into a
race where the prospective appellant could
be precluded from
appealing simply because the successful litigant sought to execute on
the judgment promptly, and prior to the
noting of the application for
leave to appeal.
[14] Had the Executive
Committee and the Mayor wished to implement the order of Ntshangase
J, their wisest course of conduct, once
they were aware of an
intention to apply for leave to appeal, was to apply for leave to
execute the order in terms of Rule 49(11)
of the Uniform Rules. That
Rule provides :
‘
(11)
Where an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order
of court has
been made, the operation and execution of the order in question shall
be suspended, pending the decision of such appeal
or application,
unless the court which gave such order, on the application of a
party, otherwise directs.’
[15] This is more
particularly so in circumstances where the Executive Committee and
the Mayor must have anticipated that the MEC
would appeal the
decision of Ntshangase J. Indeed, a letter was addressed to the
attorneys for theAbaqulusi municipality on the
4
th
September 2013 notifying them of the intention to apply
for leave to appeal which was filed on the same day. Instead they
adopted
the attitude that the installation of Dr Mthembu stood.
[16] In the matter of
Betlane v Shirley Court CC
2011
(1) SA 388
(CC) a writ of execution for the ejectment of a tenant
from premises was executed after an application for leave to appeal
was
delivered. The Constitutional Court found that the execution of
the order was unlawful and that the writ was unlawful and fell to
be
set aside.In my view it cannot matter (save,
perhaps,
for the question of costs) whether the execution of the order takes
place before or after the noting of the application
for leave to
appeal, provided that is done in accordance with the Rules of Court.
[17] The effect of noting
an appeal was set out by Hurt J in
Besselaar v
Registrar, Durban and Coast Local Division, and others
2002 (1) SA 191
(D) at 197 F – G where the learned
judge stated :
‘
The
noting of an appeal by the State would have suspended the operation
of the judgment of Squires J. Thereafter, and until the
judgment was
confirmed, varied or set aside
“…
no
results [could] flow from that judgment which would place [Sadler] in
a position different from that which [he] enjoyed immediately
before
judgment was given.
The judgment, until set
aside or varied, remains the same judgment but … it does not,
once an appeal is noted, have any effect
which would change the
status quo ante?
Per Williamson AJ (as he
then was in
Alexander v Jokl and Others
1948 (3) SA 269
(W) at 278 and 279”’
[18] Mr
Phillips
referred me to the matter of
Qoboshiyane
NO and others v Avusa Publishing (Pty) Ltd and others
2013
(3) SA 315
(SCA) where Wallis JA dealt with the principle that a
party who unequivocally conveys an intention to be bound by a
judgment abandons
any right of appeal. He recorded that the principle
can be traced back to the judgment of Innes CJ in
Dabner
v South African Railways and Harbours
1920 AD
583
at 594 where the learned Chief Justice stated :
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the
onus
of
establishing that position is upon the party alleging it. In doubtful
cases acquiescence, like waiver, must be held non-proven.’
[19] Mr
Phillips
submitted that in this regard the persons at whom the
order of Ntshangase J was directed – the Executive Committee
and the
Council – had emphatically accepted the judgment. In
those circumstances they had complied with the test laid out in
Dabner
, and no appeal
could lie against the order of Ntshangase J.
[20] This may be correct
insofar as it relates to the Council and the Executive Committee,both
having now changed the stance they
adopted before Ntshangase J.
However, it is clear that their decisions do not bind the MEC who,
for the reasons I give, was affected
by the judgment to a far greater
degree than a mere question of costs. There can be no suggestion that
she ‘indubitably and
necessarily’ gave the impression
that she did not intend to attack the judgment. Indeed, the contrary
is the case.
[21] With regard to the
second point that this court should carefully scrutinise the basis
upon which the MEC wishes to appeal the
judgment of Ntshangase J
because she is only directly affected by a costs order, that
submission grossly understates the effect
of the order. The MEC has
an oversight function to perform with regard to the appointment of Dr
Mthembu. Where she acts in accordance
with that oversight function
and attempts to prevent the appointment of Dr Mthembu, and a court
then orders the Executive Committee
and the Mayor to conclude the
contract of employment and salary of Dr Mthembu, the right of the MEC
to appeal relates to far more
than a simple question of costs.
Whatever her legal reasons may be, she has exercised a right granted
to her in terms of the law,
and has done so timeously. Her reasons
fall to be scrutinised by the court hearing the application for leave
to appeal. In this
regard it is important to note that the
Abaqulusimunicipality is under the administration of the MEC and Mr
Manda, as representative
of the provincial executive committee. The
very appointment which the MEC challenges requires the confirmation
of Mr Manda, which
has not yet been granted.
[22] Mr
Phillips
pointed to the lack of any legal steps taken by the MEC as indicative
of her acceptance of the appointment of Dr Mthembu prior
to, and
after the hearing before Ntshangase J. In this regard he relied upon
the authority in
Oudekraal Estates (Pty) Ltd v City of Cape Town
and Others
2004 (6) SA 222
(SCA) for the submission that until
legally set aside, the appointment is valid and cannot be ignored. Mr
Dickson
SC, who appeared for the applicant,pointed to the
correspondence between the parties revealed in the matter before
Ntshangase J
to demonstrate the MEC’s ongoing opposition of,
and resistance to, the appointment of Dr Mthembu. Even though the MEC
initiated
no legal steps, she opposed the installation of Dr Mthembu
as municipal manager prior to, and during the proceedings before
Ntshangase
J and does so now by way of wanting to appeal his
decision.
[23] Taking into account
the rule under the common law and the provisions of Rule 49(11), it
is clear that the execution of the
order of Ntshangase J by the
Executive Committee and the Mayor can have no validity. I see no
legal barrier to the grant of the
order requested in prayers 2.1 to
2.3 of the MEC’s notice of motion. With regard to the relief
sought in prayer 2.4 of the
MEC’s notice of motion, I do not
believe that it is necessary or desirable in determining the outcome
of this application
to decide on the validity of the meeting of the
4
th
September 2013. Its effect is undone by the order in
prayer 2.3.
[24] The MEC has
satisfied the necessary requisites for a temporary interdict and the
balance of convenience favours the grant of
the order I intend to
make. There can be no prejudice to the continued operation of the
municipal function where an acting municipal
manager is in place, and
has been for some time. I have also considered the prejudice to Dr
Mthembu who finds himself in an unemployed
position. I have also
considered the submission made by Mr
Phillips
that in a
democratic process the majority of those elected to make the
decisions for the Abaqulusimunicipality must prevail. Those
submissions however, overlook the nature of the relief sought in this
application which essentially deals with the right to have
the
operation of the order of Ntshangase J suspended pending the outcome
of the leave to appeal process. A further consideration
in favour of
the order sought is the benefit to the public if the MEC is allowed
to complete her oversight function.
[25] Mr
Phillips
also referred me to the matter of
Constantinides v Jockey Club of
South Africa
1954 (3) SA 35
(C) which dealt with an application
for the suspension of the execution of a judgment pending a decision
on appeal. In my view
that matter is distinguishable from the
circumstances of the present matter because the appeal of
Constantinides against the decision
of the Jockey Club to suspend him
from being able to train race horses, was a decision which the court
held would severely prejudice
the Jockey Club if the coming into
operation of the decision was delayed. The point was made that any
loss suffered by Constantinides
in that case was recoverable by way
of damages if it turned out that the Jockey Club decision was wrong.
That differs from the
circumstances of the present matter.
[26] With regard to the
question of costs, there is no reason why the costs in this matter
should not follow the result. Indeed,
given the level of the
litigation between the parties in this matter, and after reading the
papers, one is left with a deep-seated
suspicion that the Executive
Committee and certain members of the Council thought that they would
gain an advantage by acting with
the utmost expedition in executing
the first and second parts of the order of Ntshangase J. The ‘five
days’ in the
order of Ntshangase J referred to five court days,
and it would have been prudent in litigation of this nature were the
Abaqulusimunicipality’s
attorney to have enquired from the
MEC’s attorney whether or not the order was to be appealed.
Failing a response to that
or an indication to the contrary, it may
have been reasonable to proceed with the execution of the order
towards the end of the
first week after the order was granted. The
attitude of the municipality demonstrated a strong desire to place
form above substance.
[27] In all the
circumstances I make the following order :
(a) The rule nisi granted
in terms of prayers 2.1 to 2.3 inclusive of the prayers to the notice
of motion dated 10
th
September 2013 is confirmed.
(b) The rule nisi granted
in terms of prayer 2.4 of the prayers to the notice of motion dated
10
th
September 2013 is discharged.
(c) The first and second
respondents are directed, jointly and severally, the one paying the
other to be absolved, to pay the applicant’s
costs of this
application, such costs to include those consequent upon the
employment of senior counsel.
Date of hearing : 7
th
November 2013
Date of judgment :13
th
November 2013
Counsel for the Applicant
: A J Dickson SC (instructed byNgubane Wills Inc).
Counsel for the
Respondents : D Phillips, with him Ms S Pudifin-Jones (instructed
byLourens de Klerk Attorneys).