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[2012] ZAKZPHC 77
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MEC for Co-operative Governance and Traditional Affairs v Imbabazane Municipality and Others (5238/12) [2012] ZAKZPHC 77 (21 December 2012)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: 5238/12
In the matter between:
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
...............................................................................
Applicant
and
IMBABAZANE MUNICIPALITY
........................................................
First
Respondent
MOSES MTHETHELELI NDLELA
...............................................
Second
Respondent
COUNCILLOR: M.C. MKHIZE
..........................................................
Third
Respondent
COUNCILLOR: T.Y NCUBUKA
.....................................................
Fourth
Respondent
COUNCILLOR: A S NDLOVU
...........................................................
Fifth
Respondent
COUNCILLOR: M.D MAZIBUKO
.....................................................
Sixth
Respondent
COUNCILLOR: S.A JIYANE
.......................................................
Seventh
Respondent
COUNCILLOR: S.W KHUMALO
....................................................
Eighth
Respondent
COUNCILLOR: M.N MTHEMBU
......................................................
Ninth
Respondent
COUNCILLOR: B.D MAZIBUKO
.....................................................
Tenth
Respondent
COUNCILLOR: T.P DUBAZANE
...............................................
Eleventh
Respondent
COUNCILLOR: L.M MLABA
........................................................
Twelfth
Respondent
COUNCILLOR: T.E MCHUNU
.................................................
Thirteenth
Respondent
COUNCILLOR: M.T MVELASE
..............................................
Fourteenth
Respondent
COUNCILLOR: P.T SHELEMBE
...............................................
Fifteenth
Respondent
THE MINISTER OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS
................................
Intervening
Party
JUDGMENT
Henriques
J
Order
:
The Second Respondent’s
contract of employment dated 3 November 2008, concluded with the
First Respondent terminated by
operation of law on the 17 May 2012,
one year after the election held on the 18 May 2011.
The appointment and/or continued
employment of the Second Respondent by the First Respondent beyond
the 17 May 2012, as its Municipal
Manager is null, void and invalid.
The proceedings of the meeting of the
Municipal Council of the First Respondent held on the 20 June 2012
and all resolutions passed
at such meeting are null and void
ab
initio
and invalid.
The respondents are ordered to pay
the applicant’s and intervening party’s costs of this
application jointly and severally,
the one paying the other to be
absolved.
Background
This application which was enrolled
for hearing on 26 June 2012, was instituted as a matter of urgency,
with the founding affidavit
deposed to on 22 June 2012. It was
envisaged that interim relief would be granted, however, no interim
relief was granted.
On 26 June 2012, Steyn J granted the
respondent’s leave to file an answering affidavit in which the
constitutional challenge
to Section 54 (a) of the Local Government:
Municipal Systems Act 32 of 2000 (the “Systems Act”) was
raised. Initially,
only the first to fifteenth respondents were
cited. However, when the constitutional challenge was raised, the
Minister of Co-Operative
Governance and Traditional Affairs, as
required to do, sought to intervene.
K Pillay J granted an order, on 27
August 2012, giving the Minister leave to intervene and directing
that an affidavit be filed
by 3 September 2012. It was also recorded
that the reason for the postponement of the matter on the 27 August
2012, was the application
to intervene, which becomes relevant to
the issue of costs.
On 20 September 2012, when the matter
served before me, there were two preliminary issues namely;
4.1. an application for condonation
for the late filing of the Minister’s affidavit;
4..2 an application to admit
documents.
5. I was advised by Mr Dickson SC who
appeared for the applicants and Mr Moodley SC who appeared for the
respondents, that both
applications would not be opposed, and that
the respondents did not pursue their challenge to the authority of
the deponent to
the applicant’s founding affidavit. In addition
the applicant was seeking final relief.
Issues for determination
There were several issues for
determination namely:
6.1 whether the applicant was entitled
to institute these proceedings as an urgent application;
6.2 whether the applicant, was
entitled to the relief based on the principle of legality, or whether
the application ought to have
being brought in terms of the
provisions of the Promotion of Administrative Justice Act, Act 3 of
Act 2000 (PAJA);
6.3. whether the applicant had
locus
standi
to institute these proceedings;
6.4 whether there exists an
inter-governmental dispute between the applicant, the Minister, and
the first respondent and whether
or not the provisions of the
Intergovernmental Framework Act, Act 13 of 2005 (IGFA) applies;
6.5. the validity of the appointment
of the second respondent and the resolutions taken at the meeting of
the first respondent held
on the 20 June 2012;
6.6. the constitutional challenge to
Section 54A.
6.7. the costs occasioned by the
application.
Even though the parties legal
representatives were
ad idem
that disputes of fact existed,
the application was dealt with based on the questions of law which
arose.
Factual Background to the
Application
The application centred around the
employment of the second respondent as Municipal Manager of the
first respondent and involved
his continued employment beyond the 17
May 2012.
The second respondent concluded a
written contract of employment with the first respondent on 3
November 2008 for the position
of Municipal Manager.
He remained in employment with the
first respondent in such capacity beyond the 17 May 2012 and still
held this position on 20
June 2012.
On 4 June 2012 and on 11 June 2012,
the second respondent was advised in writing, that his contract of
employment with the first
respondent had terminated.
Despite this a meeting of the first
respondent was convened on 20 June 2012, by the second respondent
and chaired by him as Municipal
Manager. This was irregular as only
the Speaker can call meetings of first respondent’s council.
The applicant first learnt of the
continued employment of the second respondent as Municipal Manager
on 4 June 2012. On being
advised of the impending meeting on 20 June
2012, the applicant sent two officials to attend such meeting and to
advise the Council
of the first respondent of the illegality of
their actions.
The meeting went ahead nonetheless in
the absence of the officials and certain council members including
the Speaker. The meeting
concluded with the Speaker, Mayor and
Deputy Mayor removed from office. No notice had been given to either
the Speaker or the
Mayor of the intent to remove them from office
A new Mayor and Speaker were elected
and appointed, unlawfully, as there was non compliance with the
procedure set out in the
Local Government: Municipal Structures Act,
No 117 of 1998
.
The appointment of the Municipal
Manager
The appointment of the municipal
manager is regulated by the provisions of sections 56 and 57 of the
Systems Act. On 13 October
2008, Section 57 (6) of the Systems Act
was amended by the
Local Government Laws Amendment Act 19 of 2008
to
provide that the employment contract for a municipal manager must:
“
a)
be
for a fixed term of employment up to a maximum of five years, but not
exceeding a period ending one year after the election of
the next
council of the municipality;
…”
On the 5 July 2011, the Local
Government: Municipal Systems Amendment Act No. 7 of 2011 was
enacted. It introduced Section 54
A.
The amended Section 56 requires the
MEC for local government to be informed of the appointment of the
municipal manager within
14 days of the date of appointment. The MEC
must within 14 days of receipt of that information submit a copy
thereof to the National
Minister.
Should the appointment of the
municipal manager be in contravention of the Systems Act, then
section 54A(8), empowers the MEC
for local government, within 14
days of becoming aware of such appointment, take appropriate steps
to enforce compliance by the
municipality which may include an
application to court for a declaratory order on the validity of the
appointment.
The employment contract of the second
respondent as municipal manager of the first respondent, was
concluded on the 3 November
2008 after the 2008 amendment to the
Systems Act became effective. Consequently, by operation of law and
having regard to section
57 (6)(a), the second respondent’s
contract of employment terminated on 18 May 2012.
The Systems Act makes it clear that
on termination of the second respondent’s contract a new
municipal manager ought to
have been appointed. This was not done
and the second respondent was still holding the position of
municipal manager on the 20
June 2012.
The applicant is thus entitled to the
declaratory order in respect of the termination of the second
respondent’s contract
of employment.
Was the applicant entitled to
institute these proceedings based on the rule of law and principle of
legality as provided for in
the Constitution or as the first to
fifteenth respondents contend, ought proceedings to have been brought
in terms of the provisions
of PAJA.
In summary the applicant contends
that in terms of the Constitution and the principle of legality, no
person exercising public
power may exercise such power or perform
functions beyond those conferred upon them by law. Such exercise of
power is reviewable
based on the principle of legality. The
applicant specifically relies on section 56 and section 57 for the
relief its seeks,
and places no reliance on section 33 of the
Constitution or PAJA.
In support of this contention the
applicant contends that the MEC has constitutional powers to
support, monitor and supervise
local government. This is based on
section 151 (3) of the Constitution read with sections 154 (1), 155
(6) and 155 (7). In addition
the applicant submits that the
application is brought in terms of the powers conferred by section
54 A (8) of the Systems Act.
Such section obliges the applicant to
take action immediately.
In opposition the respondents submit
that the conduct complained of constitutes administrative action and
decisions as defined
in terms of PAJA and consequently fall to be
reviewed in terms of PAJA, particularly section 6 thereof. PAJA, is
the first port
of call when one is reviewing administrative action
and decisions, and the principle of legality can only be resorted to
when
the provisions of PAJA do not apply.
In
Pharmaceutical
Manufacturers Association of SA and Another: In Re: Ex Parte
President of the RSA and Others
1
,
the Constitutional Court confirmed that any exercise of public power
must be done within the confines of the law
2
and that a court is entitled, relying
on the principle of legality, to review the exercise by a
functionary of public power.
3
The applicant has powers expressly
conferred by the Constitution to support, monitor and supervise
local government. This is apparent
from sections 151 (3), 154 (1),
155 (6) and 155 (7).
Section 151(3) reads :
“
A
municipality has the right to govern, on its own initiative, the
local government affairs of its community, subject to national
and
provincial legislation, as provided for in the Constitution.”
Section 154 (1) reads:
“
The
national government and provincial governments, by legislative and
other measures, must support and strengthen the capacity
of
municipalities to manage their own affairs, to exercise their powers
and to perform their functions.”
Section 155 (6) makes provision for
each provincial government to establish municipalities in its
province, consistent with national
legislation and must by
legislative or other measures provide for the monitoring and support
of local government in the province
and promote the development of
local government capacity to enable municipalities to perform their
functions and manage their
own affairs.
Section 155 (7) provides that both
national government and provincial governments have legislative and
executive authority to
ensure the effective performance by
municipalities of their functions by regulating the exercise by
municipalities of their executive
authority referred to in section
156 (1).
The Supreme Court of Appeal has held
that the principle of legality applies to the “
exercise
of all public power and is not limited to the narrow realm of
administrative action only
.”
4
In the court a quo, it was held that
the exercise of a public power is reviewable in terms of the
principle of legality quite
apart from whether it is reviewable in
terms of PAJA. This was not challenged on appeal.
Section 139 of the Constitution
specifically makes provision for provincial intervention in local
government. In addition, having
regard to section 1(bb) of PAJA the
review of the exercise of executive powers and functions of the MEC
are excluded. Likewise
section 1 (cc) excludes the review of the
exercise of executive powers and functions of a municipal council.
Consequently, I
agree with the submissions of the applicant that it was entitled to
institute these proceedings based on the principle
of legality. The
Constitution also empowers the MEC to supervise, monitor and support
local government and intervene and take
necessary and appropriate
action in local government. It must then follow that the applicant
has
locus standi
to
institute these proceedings.
Is there an intergovernmental
dispute between the applicant, the Minister, and the first respondent
and do the provisions of the
Intergovernmental Framework Act, Act 13
of 2005 (IGFA) apply
The applicant submits that the IGRFA
gives expression to Section 41 of the Constitution which deals with
the relationship between
intergovernmental departments. The
applicant submits that the provisions of IGFA do not apply as the
applicant invoked the provisions
of Section 139 of the Constitution
and Section 54 A of the Systems Act. The applicant submits that this
is not an intergovernmental
dispute but rather a matter in which the
applicant is intervening in illegal conduct by a municipality. The
conduct complained
of is of such a nature that it requires urgent
action by the MEC.
Even if they do apply, the applicant
submits that she did attempt to settle the matter by sending
officials to advise the respondents
of the illegal conduct
complained of, consequently she acted in accordance with the Act and
the matter was only referred within
14 days.
The respondents submit that the
applicant ought to have followed the procedure of declaring a formal
intergovernmental dispute
and exhausted the mechanisms provided for
in the IGFA before launching these court proceedings. In addition
the respondents submit
that because Chapter 3 of the Constitution
provides that disputes must be resolved at a political level rather
than resorting
to litigation, this court can, in terms of Section 41
(4) if it is not satisfied that the requirements of sub section (3)
have
been met, refer the dispute to the organs of state involved.
I do not agree that the provisions of
the IGFA apply. Section 3 of the IGFA specifically provides that in
the event of a conflict
with the provisions of the IGFA and another
Act regulating intergovernmental relations, the IGFA does not apply.
In addition
the decision relied upon by the respondents,
5
was decided before the commencement
of the IGFA and section 39 specifically excludes an intervention in
terms of section 139.
I agree with the submissions of the applicant
that this is not an intergovernmental dispute. The conduct of the
first and second
respondents required immediate action by the
applicant and constituted an illegality and consequently the
provisions of the IGFA
do not apply.
Even if I am wrong in finding that
the IGFA does not apply, then having regard to the facts of this
matter, the applicant attempted
to settle the dispute. Two officials
were sent to the respondents.
The Constitutional Challenge to
Section 54 A of the Systems Act.
As indicated
earlier in this judgment, the contract of employment of the Second
Respondent terminated by operation of law on 17
May 2012. The first
respondent was then obliged to advertise the post of municipal
manager subject to the provisions of Section
57(6) of the Systems
Act read with the amendments to the Systems Act introduced by the
Local Government: Municipal Systems Amendment Act No. 7 of
2011. Any subsequent appointment of the
second
respondent as Acting Municipal Manager would have to comply with the
provisions of the Systems Act (section 57(6)). The
question of the
retrospectivity of the Amendment Act consequently does not arise.
In addition, I agree with the
submissions of Mr Lebala, who appeared for the intervening party,
that once a finding is made that
the contract of employment of the
second respondent terminated on 17 May 2012,
caedit questio
.
For reasons mentioned above, it is not necessary to deal with this
challenge. I do not agree however, with the submissions of
the
respondent that section 54 A of the Systems Act infringes against
the separation of powers. Having regard to the authorities
referred
to, I agree with the submission that this relates to the separation
between the executive, legislative and judicial
arms of government
and that this separation can never be absolute.
The Constitution
6
and the
Certification
7
judgment make this
clear. Section 139 of the Constitution specifically makes provision
for provincial intervention in local government,
in “
extreme
cases
”
8
and “
to
supervise the affairs of local governments and to intervene when
things go awry
”
.
9
The Systems Act
10
also caters for
provincial monitoring of municipalities.
In my view, in light of the fact that
the Constitution specifically recognises the right of an MEC to
intervene when necessary,
does not infringe on the separation of
powers.
The validity of the appointment of
the second respondent and the resolutions taken at the meeting of the
first respondent held on
the 20 June 2012;
By the time the matter was argued, it
was admitted that the second respondent who chaired the meeting of
council on 20 June 2012,
in his capacity of municipal manager was
not entitled to do so and consequently any decisions and or
resolutions taken at the
meeting were not valid.
Urgency
Given the facts of this matter, I
agree that the application was urgent. The applicant was advised on
4 June 2012, of the continued
employment of the second respondent.
Immediately on becoming aware of the outcome of the meeting on 20
June 2012, the application
was instituted.
Costs
During the course of argument Mr
Dickson, submitted that given the circumstances all the respondents
save the first respondent,
ought to pay the costs of the
application, jointly and severally the one paying the other to be
absolved. This is in keeping
with the orders sought in the rule
nisi.
It is trite that
where constitutional issues are raised, the normal costs order would
be that each party would bear their own
costs occasioned by such
application
11
.
In instances
however, where actions are considered frivolous, vexatious or
manifestly inappropriate, the general rule relating
to the assertion
of constitutional rights does not apply and a cost order maybe
granted at the discretion of the court
12
.
It is on this basis that the applicant seeks an order for costs.
In respect of the
third to fifteenth respondents,
section 28
of the
Local Government:
Municipal Structures Act and
the decision in
Swartbooi
& Others v Brink & Others
13
avails the
respondents. At paragraph 18 of the judgment, the court held that “
s
28
covers the conduct of members of a municipal council that
constitutes participation in deliberations of the full council in
the
course of legitimate business of that council.”
Given the facts of this matter the
applicant submits that the third to the fifteenth respondent’s
ought not to enjoy the
protection offered by
section 28
and be
ordered to pay the costs of the application, jointly and severally
with the first and second respondents.
It is evident from the papers that
the second respondent knew that his contract of employment had
terminated. Yet he continued
in the position. He convened a meeting
of the Council of the First Respondent without compliance with the
relevant prescripts.
Decisions were taken at the meeting without due
process and were tantamount to illegal acts. This despite the
warnings issued
by the applicant . The conduct in my view fell
outside the protection afforded by
section 28
and was illegal.
In the result, I make the following
orders:
1. The Second Respondent’s
contract of employment dated 3 November 2008, concluded with the
First Respondent terminated by
operation of law on the 17 May 2012,
one year after the election held on the 18 May 2011.
2. The appointment and/or continued
employment of the Second Respondent by the First Respondent beyond
the 17 May 2012, as its Municipal
Manager is null, void and invalid.
3. The proceedings of the meeting of
the Municipal Council of the First Respondent held on the 20 June
2012 and all resolutions
passed at such meeting are null and void
ab
initio
and invalid.
4. The respondents are ordered to pay
the applicant’s and intervening party’s costs of this
application jointly and
severally, the one paying the other to be
absolved.
______________
HENRIQUES J
DATE OF HEARING: 20 SEPTEMBER 2012
DATE OF JUDGMENT: 21 DECEMBER 2012
APPLICANT’S ATTORNEYS: NGUBANE
WILLS INC.
SUITE 3 THE MEWS
REDLANDS ESTATE
1 GEORGE MACFARLANE LANE
PIETERMARITZBURG
APPLICANTS COUNSEL: A.J.DICKSON SC
RESPONDENTS ATTORNEY: BOTHA AND
OLIVIER INC
239 PETER KERCHHOFF STREET
PIETERMARITZBURG
RESPONDENTS COUNSEL: Y.N.MOODLEY SC
V MOODLEY
INTERVENING PARTY’S ATTORNEY:
STATE ATTORNEY (KZN)
6
th
FLOOR METLIFE BUILDING
391 ANTON LEMBEDE STREET
DURBAN
C W DORKIN (Snr Assistant State Att)
INTERVENING PARTY’S COUNSEL:
S.M.LEBALA S C
K.RAMAIMELA
1
2000
(2) SA 674 (CC)
2
Pharmaceutical
supra at paragraphs 33 to 51
3
Pharmaceutical
supra at
paragraphs 17
to 20, 85 to 90
4
Judicial
Service Commission, The Chairperson, Judicial Service Commission v
Cape Bar Council (Centre for Constitutional Rights
as amicus curiae)
Case no 818/2011 delivered on 14 September 2012 at paragraph 21.
5
Uthukela
District Municipality and Others v President of the Republic of
South Africa and Others
[2002] ZACC 11
;
2003 (1) SA 678
(CC)
6
Section
151(3)
,
154
(1),
155
(6) and
155
(7)
7
">
7
1996
(4)
SA 744 (CC) at paragraphs 370 to 372.
8
MEC
for Local Government, Housing and Traditional Affairs v Utrecht
Municipal Council and Others 2007(3) SA
436 NPD
9
Premier,
Western Cape and Others v Overberg District Municipality and Others
2011 (4) SA 441
(SCA) at paragraph 1
10
Section
105
11
">
11
Biowatch
Trust v Registrar Genetic Resources
2009 (6) SA 232
(CC) at
paragraphs 21 to 23
12
Biowatch
supra at paragraph 24
13
2006
(1) SA 203
(CC)