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[2013] ZAECMHC 2
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Speaker, Mnquma Local Municipality v Municipal Manager- Mnquma Local Municipality and Others (1383/2012) [2013] ZAECMHC 2 (18 January 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA
CASE NO: 1383/2012
In the matter between:
THE SPEAKER, MNQUMA LOCAL
MUNICIPALITY
............................................................................
APPLICANT
And
MUNICIPAL MANAGER – MNQUMA
LOCAL MUNICIPALITY
..................................................
1
ST
RESPONDENT
EXECUTIVE MAYOR- MNQUMA
LOCAL MUNICIPALITY
..................................................
2
ND
RESPONDENT
MNQUMA LOCAL MUNICIPAL COUNCIL
.................
3
RD
RESPONDENT
THE MEC FOR LOCAL GOVERNMENT,
HOUSING AND TRADITIONAL AFFAIRS,
EASTERN CAPE
.................................................................
4
TH
RESPONDENT
JUDGMENT
PAKADE ADJP:
[1]
As apparent from the Notice of
Motion, this litigation concerns a dispute between the Speaker, on
the one hand and the Municipal
Manager and the Executive Mayor on the
other, of Mnquma Local Municipality.
[2]
The
A
pplicant
seeks an urgent review and setting aside of the entire proceedings
and resolution
s
of the
Third
Re
spondent’s
C
ouncil
meetings
which were
held on the 3
0
March 2012 and
on
29 May 2012,
respectively. He also seeks an interdict restraining the
implementation of the resolutions and/or anything emanating from the
meetings
held in
the
aforesaid dates. He
sought
an interim interdict
o
n
these two reliefs pending the
final
d
etermination of the application.
[
3
] On
the
29 June 2012
,
Dawood
J
granted
a rule nisi, together with an
interim relief,
returnable on the 26 July 2012.
The
interim relief was preceded by a hearing in which full argument was
presented by counsel who represented the parties.
[
4
]
The
M
unicipal
M
anage
r
and the E
xecutive
M
ayor had been
sued in their official capacit
ies.
[
5
] The
T
hird
R
espondent was joined because it is the
proceedings and the resolution
s
of its
meetings that are sought to be impugned. The
Fo
urth
R
espondent was joined as a party that
might have an interest
i
n the relief
sought since it is the functiona
ry
of
the
G
overnment which
controls
the functioning of the municipalities in the Eastern Cape.
Otherwise there is no relief sought against the
F
ourth
Re
spondent
and
c
onsequently is not opposing the application.
[
6
]
T
he
F
irst,
Se
cond
and
T
hird
Re
spondent
s
deposed to
answering affidavits
in
opposition of
the applicant
's
averments in
her founding papers and the relief
sought in the notice of motion .
[
7
] On
the
23
rd
August 2012 the
A
pplicant
instituted contempt of court
proceedings
against th
e First, Second and T
hird
Re
spondents alleg
ing
that they had contemptuously failed to comply with the
o
rder
issued by Dawood J on the 29 June 2012. That application is opposed
only by the
F
irst and
S
econd
R
espondents,
the
main answering affidavit,
duly confirmed
by the
Fi
rst
R
espondent
having been deposed to
by the
Se
cond
R
espondent.
[8
] The
substantive
defense raised in
the answering affidavit is that the
interdict has no practical effect and cannot be implemented in its
present formulation
because
it
required the
R
espondents not to
implement or confirm the resolution
s
of
the
30
March 2012 and 29 May 2012 in the
respondents
'
meeting of 29 June 2012 or
in any subsequent
C
ouncil meeting. The
st
ance adopted by the
R
espondents
in their opposition is t
hat the
T
hird
Re
spondent does not intend to adopt,
confirm
or implement any pre
vi
ous
resolution
s
by way of further
resolution. They contend that the resolution
s
of 30 March 2012 and 29 May 2012 are not affected by the
interdict and
so
they remain valid.
[9]
O
n 20 September 2012
the
E
xecutive
M
ayor
of Mnquma Local Municipality brought an application
,on an urgent basis,
in his official capacity together with
the Municipal Manager, in his personal capacity under case no:
2010/2012
,
seeking a declarator
declaring
Mr
Ngamela Pakade a Municipal
Manager of Mnquma Local Municipal
ity
pending the determination of case no: 1383/2012 (the main
application) including interlocutory, incidental and associated
applications
under the same case n
umber .
They
also sought a
declarator
against Mr
Mxolisi Waxa declaring
him
not to be the
municipal manager of Mnquma Local Municipality pending the
determination of case no: 1383/2012 and its associated
application.
The last
relief
they seek is the
interdict restraining the
R
espondent
(Speaker)
from interfering with,
impeding or obstructing the municipal manager of Mnquma
L
ocal
M
unicipality
in
the
exercise of his duties as such.
[10] In the application brought
by
the Mayor and Ngamela Pakade
under case no: 2010/2012
,
the
S
peaker and Mxolisi Waxa are
cited as
F
irst an
d
Second
Re
spondents
,
respectively
,
and the MEC for
L
ocal
G
overnment
Housing
and
Tr
aditional
A
ffairs
,
as the
T
hird
Re
spondent. The
Council
of Mnquma Local Municipality has not been
joined
in these proceedings.
The
application
is opposed by the
F
irst and
Se
cond
respondent
s
and have
deposed
to an
answering affidavit to that effect.
[11] In
her
opposition
of the relief sought in the 2010/2012 application, the
Sp
eaker
raised four points in
limine
,
being
lack of
locu standi
of the
Executive Mayor and Municipal Manager by reason of the interim order
and resolution of the 18 September
2012;
lack of urgency; lack of power of attorney against
Mpeto
and
A
ssociates
Attorneys constituting lack of authority to
represent the respondents in the main application
and
inappropriateness of the relief sought.
She
sought, on
these points,
to have the
application dismissed
and
the rule nisi
in the main application
under case no: 1383/2012
confirmed
with
punitive costs against the Mayor,
to be paid by him
debonis propris
.
[12] On 02 October 2012, the Speaker, the Municipality
and the Acting Municipal Manager, instituted another application in
this
Court seeking an order restraining Mr Ngamela Pakade, Ms Ndileka
Boya and Mr Mzimasi Mtolo from removing office documents of the
Mnquma Municipality from the offices of the Director: Corporate
Services, Director: Community Services and from the Municipal
Manager's office .The allegation against these Respondents is that on
20 September 2012 (two days after the resolution of the 18
September
2012 was issued ) these Respondents removed crucial office documents
from the Municipal offices aforesaid for the purpose
of frustrating
investigation that was going to be conducted by the Municipality on
allegations of fraud and maladministration against
the deposed
municipal manager , Mr Ngamela Pakade . The application is opposed
and the main answering affidavit was deposed to
by Mr Ngamela Pakade,
still expressly asserting himself to be the Municipal Manager of that
Municipality.
[13] While all these application
s
are before me by reason of
their
having
been consolidated, the only issue that is pertinent for decision at
this stage
is
the points in
limine
raised
under the
2010/2012
application .Both counsel, Mr Zilwa and Mr Quinn SC, who represent
the Applicant and the Respondents, respectively,
are
ad
idem
that the points in
limine
are dispositive of
both
application
s brought
under
case no’s: 2010/2012
and
1383/2012
if they are sustained. Accordingly it was agreed by both counsel
that
I should first
entertain argument on the points
in
limine
and decide thereon
before hear
ing
the
main
application
,
should it be necessary to
hear it.
I now first set out the points in
limine
in detail before analysing and applying the law to them.
Locu standi
in judicio o
f
the 1st Applicant
[14] Mr Zilwa submitted that
al
though the
First A
pplicant
in the 2010/2012
application is suing
in his official
capacity as the Executive Mayo
r
of
Mnquma Local Municipality,
he has not referred to any
C
ouncil
resolution from the said
Municipality
showing that he was authorized to
bring
this application. If no
Co
uncil
resolution exist
s,
the First Applicant has omitted to state where he
derives his authority to institute the
se
proceedings. By reason hereof, the
F
irst
A
pplicant
lacks the authority to institute the application in his official
capacity.
Secondly,
the Mnquma Local Municipality
C
ouncil
took a resolution on 18 September 2012 that ‘the
C
ouncil
immediately revokes delegation 28 of the delegation document to the
E
xecutive
M
ayor
and further delegates the
S
peaker
to deal with all administrative and legal implications flowing from
the outcome of the resolution’.
That resolution is valid as
it has not been set aside, so goes the submission of Mr Zilwa. He
cited
Oudekraal Estates (Pty) Ltd v The
City of Cape Town and Others
1
as authority for his
proposition. I agree that it is trite law that an invalid
administrative action is valid until it is set aside.
As at the time
of the hearing of this matter on the 9
th
October 2012 and 16 October
2012 this portion of the Council resolution had not been set aside
and is therefore valid.
The second point in
limine
which relates to lack of
urgency in the matter has not been pursued in the hearing. I can
therefore safely assume that it has been
abandoned by Mr Zilwa.
Power of attorne
y
[1
5
] The authority of the
instructing attorneys of record
,
Mpeto
and Associates,
was placed in question
by virtue of the various correspondence
received
by the Applicant’s
Attorneys of record.
That correspondence is comprised of a
letter dated 18 September 2012 wherein the Mnquma Local Municipality
had stated that the mandate
of attorneys Mpeto and Associates to act
on behalf of Mnquma Local Municipality was terminated with immediate
effect. Therefore,
so goes the averment
and
submission of counsel,
Mpeto and Associates Attorneys had no
authority to bring the
2010/2012
application and to continue opposing the
main
application under case no: 1383/2012. The mandate of Mpeto and
Associates was terminated by Council resolution of 18 September 2012
and conveyed to those Attorneys on the same day.
Relief sought
[1
6
] The
F
irst
and
S
econd
A
pplicants
are seeking an order declaring the
Se
cond
A
pplicant to be the municipal
m
anager
of Mnquma Local Municipality pending determination of the application
under case no: 1383/2012. An interim relief was obtained
under case
no: 1383/2012 setting aside the resolution taken by the Mnquma Local
Municipality. This resolution contained an interdict
against
resolution that the employment contract of the
S
econd
A
pplicant would be extended upon its
expiry. The employment contract of the
S
econd
A
pplicant came to an end on 30 March
2012.
Th
e Mnquma Local Municipality
resolved on 18 September 2012 that they are withdrawing their
opposition under case no: 1383/2012 and
that the interim relief may
be made final on 27 September 2012. By virtue of the
Co
urt
O
rder aforesaid and the
C
ouncil
R
esolution dated 18 September 2012, the
S
econd
A
pplicant’s
employment agreement came to an end and was not extended by
C
ouncil.
In the premises, the relief sought in the present application to
declare the
S
econd
A
pplicant
to be the Municipal Man
a
ger pending the
final determination of the action in case no: 1383/2012 is not
appropriate, considering that the Mnquma Local Municipality
has
withdrawn its opposition and in essence consented in the confirmation
of the rule
nisi
with interim relief that was granted. On this
basis the
Speaker
contends that the
application
brought by the First and Second
Respondents
falls to be dismissed with costs on the scale as
between attorney and client.
[17] Although the points in
limine
were raised by the Speaker in her
answering affidavit to the First and Second Respondents' application,
the First and Second Respondents
have not responded to them in their
replying affidavit. All they contented themselves with was a
submission from their counsel,
Mr Quinn, that no foundation or basis
had been laid for the points in
limine
to be raised and argued. This,
however, became patently clear that the submission that there was no
basis laid for the points in
limine
to be raised was flawed and as already observed above, the applicant
had adequately flashed a red light to the Respondents about
them.
[18] Mr Quinn insisted though that the authority of
Mpeto and Associates had not been properly challenged in terms of
Rule 7 of
the Uniform Rules of the High Court which requires that a
substantive application be made on 10 days notice to the other party.
The second submission of Mr Quinn is that there is a dispute of fact
based on the legality of the Council proceedings of the 18
September
2012 which renders them challengeable in the 2010/2012 application
brought by the Mayor and Mr Ngamela Pakade to enable
the Local
Municipality to function. He submitted that the parties, other than
the municipality are entitled to be heard in their
personal
capacities. This submission refers to Mr Ngamela Pakade who is
bringing the 2010/2012 application in his personal capacity.
The
relief sought by the Mayor seeks to validate the resolution of 18
September 2012. Lastly, in developing his counter submission
to the
submission on the validity of the resolution of 18 September 2012 Mr
Quinn submitted that the Oudekraal case is no authority
for that
proposition. I do not agree that the Oudekraal case is no authority
to the presumed validity of the resolution of the
18 September 2012.
As already said in paragraph [15] above the contrary is true.
[19] The genesis of this litigation is Council
Resolutions of the 30 March 2012 and 29 May 2012 respectively. As
already alluded
to in paragraph [2] above, the Speaker obtained an
interim Order setting them aside and restraining their
implementation. The resolutions
of the 30 March 2012 are, inter-alia,
that the Speaker should be suspended and that the contract of
employment of the Municipal
Manager be extended for six months. As
already said above, these resolutions were set aside by the Court
Order of 29 June 2012.
The consequence of the setting aside of these
resolutions is that the Speaker was still in office legally as such
and the incumbent
of the office of the Municipal Manager had ceased
to be the Municipal Manager hence the appointment of an acting
Municipal Manager.
This is what in essence is the order of the court
which the Mnquma Local Municipality resolved on the 18 September 2012
to abide
by and execute. This Council Resolution can be captured in
the following terms:
"RESOLVED THAT:
The Council executes the Court Order of the 29 June
2012 with immediate effect as there is no counter order that has been
granted
in lieu of the existing ones.
The Speaker is hereby mandated to sign the
termination letters and acting appointment letters, and further
mandated to inform the
Security personnel to remove the Municipal
Manager from office after he handed back all Council assets in his
possession.
The Council immediately revokes delegation 28 of the
delegation document to the Executive Mayor and further delegates the
Speaker
to deal with all administrative and legal implications
flowing from the outcome of the resolutions.
Councillors further resolved to appoint the Acting
Municipal Manager, and that:-
Mr Mxolisi Waxa be appointed as Acting Municipal
Manager with immediate effect for a period of 3 months."
[20] As already said above on the same day of the
Resolution, the Speaker addressed a letter to Mpeto & Associates
informing
them that Mnquma Local Municipal Council was no longer
opposing the main application and that their services were
terminated. For
the sake of completeness, I need to reproduce the
Speaker’s letter to these Attorneys. It reads as follows:
“
RE: HIGH COURT CASE/ SPEAKER MNQUMA
MUNICIPALITY VS THE MUNICIPAL MANAGER MNQUMA LOCAL MUNICIPALITY AND
TWO OTHERS CASE NO: 1383/2012.
Please be informed that the Mnquma Local Municipal
Council on the 18th September 2012 resolved not to further defend the
above-mentioned
case but to abide by and execute the Rule Nisi handed
down by the High Court on the 29th June 2012.
Please be further informed that your services as
Council’s Attorney [including any Advocate briefed ] for
defense of this
case has been terminated with immediate effect ".
[21] On the 19th September 2012, the Speaker informed Mr
Ngamela Pakade that he had been relieved of his duties as Municipal
Manager
by Council Resolution SC/12/006,6.1 and called upon him to
vacate his office with immediate effect. On the 20 September 2012,
Mpeto
& Associates instituted the 2010/2012 proceedings seeking
an order declaring Mr Pakade a Municipal Manager of the Mnquma Local
Municipality pending the final determination of the main application
under case no.1383/2012 and an order declaring Mr Mxolisi
Waxa not a
Municipal Manager. The notice of motion cited the Mayor as the First
Applicant and Mr Ngamela Pakade, as the Second
Applicant. The Mayor
brought the application and asserted himself in his founding
affidavit to be “the Executive Mayor of
Mnquma Local
Municipality". He brought the application on behalf of the
Municipality to ensure its smooth operation.
[22] The persons who may approach the court are, in
terms of section 38 of the Constitution of the Republic of South
Africa Act
108 of 1996 – (a) Anyone person 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. The First Applicant does not feature in any of these
categories. He is not affected by the removal of Mr Ngamela Pakade as
Municipal Manager of Mnquma Local Municipality because he
is no
longer the Mayor of that Municipality.
[23] As Mr Zilwa has submitted, the executive mayor
omitted to mention that he had been duly authorized by the Mnquma
Local Municipal
Council to institute the proceedings on its behalf
and has also not produced Council Resolution to Court notwithstanding
that he
had been pertinently challenged to produce it. That
challenge, as alluded to in paragraph [14] above, had not been
responded to
by "the Executive Mayor”.
[24] In
Merlin
Gerin (Pty) Ltd v All Current and Drief Centre (Pty) Ltd
2
,
the applicant’s director, who signed the founding affidavit,
had not been authorized to do so. The Respondents objected
to the
director’s lack of authority. Thereafter the applicant’s
board of directors ratified the act of the director.
Dealing with
this issue, Conradie J stated as follows at page 660 F- G:
“
For the enforcement of this right, the
respondent has only one remedy, to move for dismissal of the
application. Moving for dismissal
is not itself a right, but a remedy
for the right not to be unfairly proceeded against.
And applicant now has two options. If he had no
authority to begin with he would attempt to defeat the remedy
(dismissal of his
application) by obtaining authority by way of
ratification and by putting proof of that before the court. Or he
might put better
proof of pre-existing authority before the court.
Once the applicant has done this, he will be bound by an order for
costs against
him. In this way, ratification would not harm but
benefit the respondent, and so would be unequivocal proof of
pre-existing authority.”
Accordingly the court held that ratification saved the
application. The First Applicant remained supine and did nothing to
remedy
his lack of authority.
As a matter of fact and by necessary implication, the
Executive Mayor conceded in the replying affidavit that before the
Resolution
of the 18 September 2012 he had authority to represent the
Mnquma Municipality and had none after that resolution. The
concession
is properly made because it is inconceivable that the
Mnquma Local Municipality would revoke delegation 28 of the
delegation document
to the mayor but simultaneously authorize him to
litigate on its behalf. Nothing further to be said on this point than
that the
executive mayor had no authority to bring the proceedings
under case no. 2010/2012. Without further ado, his application falls
to be dismissed with punitive costs on an attorney and client scale
to be paid by him in his personal capacity.
[25] Similarly in
Contralesa
v Minister for Local Government, Eastern Cape
3
,
the authority of the deponent to institute motion proceedings against
the applicant, a voluntary association, was challenged.
In his
founding affidavit, in support of the application, Chief Gwadiso
stated that he is a Traditional Leader and secretary general
of the
applicant in the Eastern Cape Province. He described the applicant as
being the voluntary association of Traditional Leaders
in the
Province having its office at Mthatha. He stated that he was duly
mandated by the Applicant to depose to this affidavit
on its behalf.
I note that the Executive Mayor in the present application has not
stated that he is deposing on behalf of Mnquma
Local Municipality.
Chief Gwadiso also stated that on 11 August 1995, the National
Executive Committee of the applicant held a
meeting in Johannesburg
and endorsed the decision of the applicant to take the respondents to
court. However, no copy of the resolution
or endorsement was made
available to the court, notwithstanding the request having been made
by the respondent to that effect.
In his judgment, Pickering J
reaffirmed the thrite principle that a voluntary association is
required to set out in its founding
affidavit the requisite to
institute the proceedings. It is therefore safe to say that the law
is settled on the point that a person
instituting motion proceedings
on behalf of a company or a voluntary association or municipality or
an artificial person must establish
his authority to do so in his
founding affidavit failing which the defect can be ratified with
retrospective effect if the deponent
to the founding affidavit was
indeed acting on its behalf and not on his own frolic (
Smith
v KwaNongqubela town Council)
4
.
[26] I must herein after set out in a summary form, the
defence raised by the respondents. It is that:
(i) the interdict has no practical effect and cannot be
implemented
as Third Respondent does not intend to adopt, confirm or
implement any previous resolutions by way of further resolutions;
(ii) the resolutions of the 30 March 2012 and 29 May
2012 are valid because they are not affected by the interdict;
(iii) the challenge to the authority of Mpeto and
Associates is flawed as it did not comply with rule 7 of the Uniform
Rules of
Court, and
(iv) the resolution of the 18 September 2012 is invalid.
I now deal with the defences
seriatim
.
Interdict has no practical
effect and cannot be implemented
[27] The essence of the complaint is that the interdict
has no legal effect. I do not agree with this contention. The
interdict
withdraws or curtails the right of Mr Ngamela Pakade to
have his contract of employment renewed or extended. By withdrawing
delegation
28 of the document assigning this responsibility to the
executive Mayor, the interdict withdrew or curtailed the right of the
executive
mayor to perform his functions as such. I am of the
respectful view that this defence cannot be sustained.
Challenge to the authority of Mpeto and Associates
- Rule 7 of the Uniform Rules
[28] Indeed the remedy of a
Respondent who wishes to challenge an authority of a person allegedly
acting on behalf of the purported
applicant is provided for in rule 7
(1).
5
The rule provides that
“…the authority of any one acting on behalf of a party
may within ten days after it has come
to the notice of a party that
such person is so acting, or with the leave of the court on good
cause shown at any time before judgment,
be disputed, whereupon such
person may no longer act unless he satisfied the court that he is
authorized so to act and to enable
him to do so, the court may
postpone the hearing of the action or application”
[29] When the challenge was raised
as a point in
limine,
the hearing of
the application was adjourned to a later date to enable the
Applicants and Mpeto and associates to either produce
authority to
court or present argument in that respect. They did not produce
authority but instead presented argument.
[30] The rule does not specify any
procedure for challenging the authority of a party to institute
proceedings. Mr Quinn, however,
submitted that ‘good cause’
shown means that a substantive application has to be made within ten
days challenging the
authority of the party. It does not seem to me
that this submission is entirely correct as good cause may be shown
by a party challenging
another’s authority by way of an
affidavit and, as in
casu
,
by raising it as a point
in
limine.
Once
that is done and the affidavit is served to the other party,
sufficient notice has, in my view, been given.
[31] In
Unlawful
Occupiers, School site v City of Johannesburg
case , supra, the challenge
to authority appeared in the applicant’s founding affidavit
when the applicant asserted that he
was authorized to bring the
application which the respondent denied in his answering affidavit.
Brand JA held that a party who
wishes to raise an issue of authority
should not adopt the procedure by way of argument based on no more
than a textual analysis
of the words used by a deponent in an attempt
to prove his or her own authority. This means, in my view, that
challenge to authority
can be raised in a variety of ways but must be
raised directly either by way of notice accompanied by evidence or
without evidence;
in the defendant’s plea or special plea; or
in interlocutory application such as an application for summary
judgment or in
an application for rescission of summary judgment or
even orally at the trial.
6
[32] To Mr Quinn’s further
submission that the authority of Mpeto and Associates was not
challenged properly as it had not
been challenged by the Speaker in
her earlier affidavit in the main application, I can adopt no more
than what Jansen J said in
South
African Allied Workers Union v De Klerk and Another NO
7
that:
“
The power of attorney contemplated in Rule
7(1) is a power to take certain formal procedural steps, namely, to
issue process and
to sign court documentation such as summons or
notice of motion on behalf of a litigant. It does not contemplate a
general authority
by one person to another to represent him in legal
proceedings, There is a clear distinction between an attorney being
mandated
in the form required by Rule 7 to issue formal court process
and the general authority of one litigant to act in all respects on
behalf of others.
”
[33] As already said above, the resolution of Council
terminating the mandate of Mpeto and Associates was issued on the 18
September
2012 and communicated to them on the same day. The main
application had by order of Court issued on 13 September 2012
adjourned
for hearing on 27 September 2012. On the 27 September 2012
the Respondents were still represented by Counsel when the main
application
and other applications were adjourned for hearing on 9
October 2012 and 16 October 2012. As at the 27 September 2012 the
mandate
of Mpeto and Associates had been terminated and had no
authority to represent the Respondent beyond that date in the main
application
and 2010/2012 application. The effect of Council
Resolution of 18 September 2012 is that the representation of the
Respondents
in these applications on the 09 October 2012 and 16
October 2012 was not authorised as Mpeto and Associates were no
longer Attorneys
representing the Respondents. Having so decided, it
is not necessary to consider further submissions of Counsel on this
point.
The Mnquma Local Municipality withdrew its defence and
conceded to the confirmation of the interim order of the 29 June
2012.
[34] This brings me to the
locu standi
of Mr
Ngamela Pakade in the 2010/2012 application. The renewal or the
extension of his contract of employment was interdicted by
Court on
the 29 June 2012 and by Council Resolution of the 18 September 2012.
The relief sought by the Speaker in the main application
is no longer
being opposed by Mnquma Municipal Council which had also withdrawn
its mandate to its Attorneys of record (Mpeto and
Associates).
Without further ado once again the Rule Nisi together with the
interim relief in the main application stands to be
confirmed with
costs. Common logic dictates that after the Municipal Council had
withdrawn its mandate on its Attorneys, the matter
ended there and
there could never have been justification for the matter to proceed
beyond the 27 September 2012.
[35] In the circumstances, I make the following order:
1. That the Rule Nisi granted by this Court on the 29
June 2012 is confirmed with costs.
2. That the 2010/2012 application is dismissed with
costs on an Attorney and Client scale and such costs to be paid by
Baba Mntuwoxolo
Ganjana in his personal capacity.
______________
LP Pakade
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
For the applicant : Adv Zilwa
Instructed by : Tinto, Duplessis & Associates
c/o Keightley, Sigadla & Nonkonyana
No. 60 Cumberland Street
Mthatha
For the Respondents : Adv Quinn SC with Adv Hobbs
Instructed by : Mpeto & Associates
No. 26 Maderia Street
Mthatha
Heard on : 09 October 2012
16 October 2012
Delivered on : 18 January 2013
1
2004(6)
SA 222 (SCA) at para[26]
2
1994(1)
SA 659 (C)
3
1996(2)
SA 892 (TKSC)
4
1999(4)
SA 947(SCA)
5
Eskom
v Soweto City Council 1992 (2)SA 703 (WLD); Unlawful Occupiers,
School site v City of Johannesburg
2005 (4) SA 199(SCA)
6
Erasmus:
Superior court practice B1-60
7
1990(3)
SA 425 (E) at 437