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[2012] ZAECMHC 16
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Mhlontlo Local Municipality v Jikijela and Another (CA 47/12) [2012] ZAECMHC 16 (29 November 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
CASE
NO. CA 47/12
In
the matter between:
MHLONTLO
LOCAL MUNICIPALITY
............................................
Appellant
and
MZIMKHULU
JEREMIAH JIKIJELA
....................................
1
st
Respondent
RUTH
MANDISA GIYOSE
.......................................................
2
nd
Respondent
FULL BENCH APPEAL JUDGMENT
GRIFFITHS, J.:
[1] Dissatisfied with a judgment granted against them by
Mjali J, the appellants in this matter sought leave to appeal. They
were
granted leave by the court of first instance to appeal to this
court on a limited basis.
[2] The respondents, then sitting members of the first
appellant's council and members of its Executive Committee ("Exco"),
launched an application in which they sought an order declaring their
removal from Exco to be unlawful, an order of reinstatement
and an
order that they be paid all attendant benefits and emoluments with
retrospective effect from 20 February, 2009 to date of
reinstatement.
They also sought an order condoning their failure to institute the
proceedings within 180 days together with an
order that they be
exempted from exhausting any internal remedies that may be required
in terms of section 7(1) and section 7(2)(c)
of the Promotion of
Administrative Justice Act
1
("PAJA"). The application was opposed by the
appellants being the municipality itself ("Mhlontlo"), and
the
two councilors who were elected to Exco in the respondents’
stead. It is perhaps apposite at this stage to mention that the
application for leave to appeal was brought by Mhlontlo, the second
and third respondents having filed a notice to abide the decision
of
the court
a quo
.
However, the order granting leave to appeal was headed "
MHLONTLO
MUNICIPALITY COUNCIL & ORS APPELLANTS
”
and
the notice of appeal and subsequent documentation has referred to
Mhlontlo "
And Others
"
as the "
APPELLANTS
".
It is however clear, and has been confirmed by counsel, that it is
indeed only Mhlontlo that is before us on appeal.
[3] The respondents’ cause of action was, in
essence, that they were elected during March 2006 to their positions
as councilors
with Mhlontlo. Subsequent thereto they were elected as
members of Exco. However, at a meeting of Exco held on Friday, 20
February
2009, they were removed by a majority vote from their
positions on Exco. According to the respondents, this resolution
taken by
Exco was unlawful for various reasons, in particular because
they were not given due notice thereof pursuant to the provisions of
section 53 of the Municipal Structures Act
2
.
Accordingly, the resolution to remove the respondents from their
positions on Exco was taken unlawfully and fell to be set aside.
[4] The appellant’s response to this was that
proper notice of the intention to move a motion for their removal was
indeed
given to the respondents and certain documentation, including
minutes, was put up as proof thereof. The appellant denied that a
case had been made out for condonation of the failure to comply with
the 180 day period mentioned in section 7(1) of PAJA and,
in
limine
, maintained that the application ought to be dismissed on
this basis alone. In reply, the respondents dealt at length with the
question of the appellant's failure to give them notice of the
meeting and maintained that the reason as to why there had been a
delay of almost one and a half years in instituting the application
was because they had attempted to resolve the matter by appealing
to
political structures of the ANC and that Mhlontlo and its officials
had been involved in such processes, but that their endeavors
had
come to naught.
[5] Mjali J, after hearing argument on the papers, found
that a proper case had been made out for condonation of the
respondents’
failure to launch the application within a
reasonable period. She also found that, despite the contention by the
appellant that
there was an extensive dispute of fact which could
only be resolved by oral evidence, there was sufficient evidence
before her
on the papers to make a finding that the appellant's
officials were not telling the truth in their affidavits before her
to the
effect that they had given due and proper notice to the
respondents. She accordingly held that the respondents’
evidence
that they had indeed not received such notice was the
truthful version. Based on these findings, she granted the
respondents relief
in the following terms by way of a judgment
delivered on 9 May 2011:
“23.1 The applicants’ failure to institute proceedings
within 180 days is hereby condoned and that in the interests
of
justice the applicants are exempted from exhausting any internal
remedies that there may be as required in terms of
section 7(1)
and
7
(2)(c) of the
Promotion of Administrative Justice Act No. 3 of 2000
23.2 The first respondent’s action of removing the applicants
as members of the first respondent’s Executive Committee
(EXCO)
without complying with the prescribed legal procedures, in particular
section 53 of the Municipal Structures Act No. 117
of 1998 is set
aside.
23.3 The first respondent is ordered to reinstate the applicants into
their positions as members of its EXCO with immediate effect
and to
pay all attendant benefits and emoluments with retrospective effect
from 20 February 2009 to the date of their reinstatement.
23.4 The first respondent is to pay the costs of this application on
an attorney and client costs (sic).”
[6] The appellant applied for leave to appeal on three
bases, namely the question of condonation of the 180 day period, the
decision
on the merits without a referral to oral evidence and costs.
However, leave was granted by the court
a quo
on the following
limited issues:
"1. That leave to appeal granted (sic) on the issue of whether
or not the late filing of the review proceedings is not inordinately
long in the circumstances of the matter;
2. That the issue of cost (sic) should be reconsidered on appeal."
[7] Leave to appeal was accordingly refused on the
remaining issue, that being the question as to whether the court
a
quo
was correct in finding on the merits in
favour of the respondents without hearing oral evidence.
[8] As an opening gambit both counsel, in their heads of
argument, relied on section 21A of the Supreme Court Act
3
.
This section reads as follows:
"When at the hearing of any civil appeal to the Appellate
Division or any Provincial or Local Division of the Supreme Court
the
issues are of such a nature that the judgment or order sought will
have no practical effect or result, the appeal may be dismissed
on
this ground alone."
[9] Mr. Mpofu, for the appellant, argued that due to the
fact that municipal elections were held shortly after the order in
this
matter was granted by the court
a quo
(a fact which was common cause between the parties on
appeal), the order granted by the court had no practical effect or
result
and thus the order should not have been granted. Mr. Zilwa,
for the respondents, argued that any order which this court might
make
would, on the same reasoning, have no practical effect or result
and thus the appeal should be dismissed on this basis alone. The
net
effect of these arguments is that, because a new council was to be
voted in shortly after the orders were granted, the order
granting
reinstatement of the respondents to their former positions on Exco
became redundant and thus of no practical effect.
[10] The appellant's argument is, in my view, misplaced
in that section 21A clearly relates to a "judgment or order"
which
is sought on appeal, and not a judgment or order which has
already been granted in the lower court. However, the reliance by
both
counsel on the question of redundancy only relates to one part
of the orders granted by Mjali J. It does not take into account the
fact that Mjali J, after ordering that the appellant was to reinstate
the applicants as members of Exco, also ordered the appellant
to "
pay
all the attendant benefits and emoluments with retrospective effect
from 20 February 2009 to the date of their reinstatement
."
As I have indicated, this order was granted on 9 May 2011 and thus,
should this order stand, the appellant is obliged to
pay such
benefits and emoluments for the period 20 February 2009 to, I
presume, the date of the municipal elections held shortly
after 9 May
2011. Although we have not been apprised of the quantum of such
benefits, they cannot be negligible and thus this part
of the order
cannot be regarded as having no practical effect. Additionally, Mjali
J also granted leave to appeal as against the
costs order which was
granted on the attorney and client scale.
[11] In my view, therefore, the appeal cannot be
dismissed on this ground.
[12] This then leaves the question as to whether or not
the court
a quo
was
correct in condoning the late institution of the application
proceedings pursuant to the provisions of section 7(1) as read
with
section 9 of PAJA.
[13] Section 7 of PAJA insofar as it is relevant to this
matter reads as follows:
"
7
Procedure for judicial review
Any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
(a) subject to subsection (2)(c), on which any proceedings instituted
in terms of internal remedies as contemplated in subsection
(2) (a)
have been concluded; or
(b) where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the
action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.
(2) (a) Subject to paragraph (c), no court or tribunal shall review
an administrative action in terms of this Act unless any internal
remedy provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice."
[14] Section 9 of that Act deals with the question of
extensions of time as follows:
"9
Variation of time
(1) The period of-
90 days referred to in section 5 may be reduced; or
90 days or 180 days referred to in sections 5 and 7 may be extended
for a fixed period,
by agreement between the parties or, failing such agreement, by a
court or tribunal on application by the person or administrator
concerned.
The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require."
[15] It is common cause between the parties that the
actions of the appellant in dismissing the respondents as members of
Exco amounted
to "administrative action" for the purposes
of PAJA and thus that the provisions of sections 7 and 9 of the Act
are applicable.
Mjali J found (which finding is not on appeal before
us), despite the contentions of the appellant to the contrary, that
the respondents
were in fact dismissed on 20 February 2009. The
question which then arises is as to when the period of 180 days
commenced?
4
In terms of section 7(1) of the Act, this period would
have commenced on the date upon which any internal remedies that may
have
been instituted had been concluded. Should no such internal
remedies exist, the 180 day period would have commenced when the
respondents
became aware of the administrative action, namely on 20
February 2009.
[16] It appears that the only internal remedy which was
available to the respondents was that which is provided for in
section 62
of the
Local Government: Municipal
Systems Act
5
which, in effect, provides that the respondents could in
the circumstances have appealed to the municipal council or, if the
council
is comprised of more than 14 councillors, a committee of
councillors appointed by the council who were not involved in the
decision
to remove the respondents.
[17] It is common cause that the respondents did not do
this. Instead, they "appealed" to the political structures
of
their party, the ANC, to assist them. As alluded to earlier in
this judgment, despite the fact that this took a period of almost
one
and a half years, they achieved no success by following this route.
Mjali J, in her judgment in this regard dealt with this
aspect thus:
"In so far as condonation for the late launch of these review
proceedings is concerned, the applicants noted their appeal
against
their removal on the same day they were removed from EXCO. When the
results were not forthcoming they moved up the structures
of the ANC
in an attempt to resolve the issues. Some meetings were called and
some investigations into the issue of their removal
were promised but
all was in vain. These all in my view entailed giving the various
structures some time to investigate and make
a decision on the issue
of their removal from EXCO. In terms of section 7(1)(a) of PAJA the
proceedings launched in terms of the
internal remedies must be
concluded before any review proceedings are instituted. The
applicants waited in anticipation of a resolution
and when the wait
proved too long the applicants launched the present review
proceedings. Whilst it is true that the applicants
delayed in
launching the present review proceedings,
I do not deem such delay
to be unreasonable in the light of the explanation given by them
."
[18] In my view, Mjali j was incorrect in taking this
approach as it seems clear that the purported remedies which the
respondents
followed, namely appeals to the various structures of
their political party for assistance in resolving the issue, where
not "internal
remedies" as envisaged in section 7 of PAJA.
Because of her view in this regard, Mjali J did not determine the
point in time
when the 180 day period commenced. It is thus incumbent
upon this court to make that determination. As it is common cause
that
no such internal remedy as envisaged by the section was pursued
by the respondents, and because Mjali J exempted the respondents
from
exhausting any internal remedies pursuant to the provisions of
section 7(2)(c) (an aspect which is not before us on appeal),
it
follows that the 180 day period commenced running from 20 February,
2009. Accordingly, the 180 day period envisaged in section
7 of PAJA
completed its course on 20 August, 2009. The respondents instituted
the application on 26 July 2010, some 11 months thereafter.
[19] The next inquiry, one which involves the exercise
of a discretion, is the question as to whether or not the delay in
instituting
the application should be condoned. Because of her
approach to the matter as set out above, Mjali J did not pursue the
twofold
approach in this regard as set out in the
Beweging
vir Christelik-Volkseie Onderwys
matter
6
.
In this regard, Mr. Mpofu has argued that section 9(2) of PAJA
requires an application to be made for an extension of the 180
day
period and, because the respondents did not apply for such an
extension but applied instead for condonation of their failure
to
institute the application within the 180 day period, they should have
been non-suited on this basis alone. I do not agree. It
is clear in
my view that section 9(2) of PAJA envisages the granting of such
condonation
7
.
[20] The approach to the question of condoning a delay
in terms of PAJA was dealt with by the SCA in the matter of
Camps
Bay Ratepayers' and Residents' Association v Harrison
8
.
It said in the following:
"Section 9(2) however allows the extension of these time frames
where "the interests of justice so require". And
the
question whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each
case: the
party seeking it must furnish a full and reasonable explanation for
the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success."
[21] Holmes JA explained the judicial discretion vested
in a court in granting condonation in the following manner:
“In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case. Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible with a true
discretion, save of course that if there are no prospects of success
there would be no point in granting condonation. Any attempt
to
formulate a rule of thumb would only serve to harden the arteries of
what should be a flexible discretion. What is needed is
an objective
conspectus of all the facts. Thus a slight delay and a good
explanation may help to compensate for prospects of success
which are
not strong. Or the importance of the issue and strong prospects of
success may tend to compensate for a long delay. And
the respondent's
interest in finality must not be overlooked. I would add that
discursiveness should be discouraged in canvassing
the prospects of
success in the affidavits. I think that all the foregoing clearly
emerge from decisions of this Court, and therefore
I need not add to
the evergrowing burden of annotations by citing the cases."
9
[22] It seems to me therefore that in dealing with
condonation pursuant to the provisions of section 9(1)(b) of the Act,
a court
should not mechanically tick off the various factors involved
but should accord due weight to each factor in accordance with the
circumstances of the matter. Thus, as expressed by Holmes JA in the
above-mentioned passage, "
…
the
importance of the issue and strong prospects of success may tend to
compensate for a long delay
". Clearly,
in such circumstances, more weight is accorded to the facts that the
issue is an important one and that there are
strong prospects of
success than is accorded to the question of a long delay and, I might
add, a weak explanation therefor
10
.
[23] In the present matter the respondents delayed
institution of the application proceedings for a period of a year and
five months
after they became aware of the administrative action, and
for a period of 11 months after the period provided for in PAJA for
the
institution of such proceedings had expired. In my view, this is
a long delay which has not been fully explained by the respondents.
Apart from mentioning, in general terms, that they made application
to the local and provincial structures of the ANC for assistance
and
that such assistance was not ultimately forthcoming, very little
detail in this regard has been provided. It seems to me that,
in this
regard, the respondents failed to provide a "full and reasonable
explanation for the delay which covers the entire
duration"
thereof. Of particular importance in this regard is the fact that the
respondents maintained that they reported
the matter to the
Provincial Executive Committee of the ANC in October 2009. The
replying affidavit in this regard proceeds to
state:
"The current member of the PEC, Xolile Nqatha, was tasked to
investigate the matter and report back to the PEC. We waited
in vain
for word from the PEC until we decided to approach this Honorable
Court when no such word was forthcoming."
[24] No explanation whatsoever was given by the
respondents in this regard as to what was done, if anything, during
the period between
October 2009 and 26 July 2010 when the application
was launched. This, on its own, is an inordinately long delay and one
would
have expected some explanation for this delay other than their
having "waited in vain" for word from a political body
which was not even the body tasked with an internal appeal against
the decision under challenge. As pointed out by Mr. Zilwa in
this
regard, however, it should be remembered that the respondents were,
during this period, waiting for word from a person whom
they must
have regarded as being a reasonably important official.
[25] Mr. Mpofu has argued in this regard that as there
is a dispute of fact as to whether or not the respondents did indeed
approach
the structures of the ANC for relief as alleged, this
question ought to have been resolved in favour of the appellant and
the court
a quo
ought
thus to have found that no such approach was made. I do not agree
with this submission for two reasons. Firstly, it is most
probable
that the respondents, having been summarily dismissed as members of
Exco, would have done something about their dilemma.
It is most
improbable that they would have remained supine for such a long
period. Secondly, unless palpably improbable or false,
the court will
generally accept an explanation given in an application for
condonation and will not enter into a
voir
dire
in this regard.
[26] He has also argued that the explanation was only
dealt with in reply, after the question of delay had been pertinently
raised
in the appellant's answering affidavit. In my view this
question was properly raised by the respondents in their founding
affidavit.
In their founding affidavit an explanation was given for
the delay, albeit not detailed. In answer to the challenge raised in
this
regard by the appellant, the respondents merely sought to
elaborate in reply.
[27] As against this, it must be borne in mind that
there can be little if any prejudice to the appellant by the granting
of such
condonation. As indicated by the appellant, the reinstatement
itself as granted by Mjali J has little or no effect at this stage.
No indication has been forthcoming from the appellant to the effect
that the delay resulted in their being prejudiced in the presentation
of their defence to the action. On the contrary, the appellant put up
extensive evidence to establish its case, both documentary
and by
affidavit.
[28] There is, however, a further important factor to be
considered. Whether or not the court of first instance was correct in
its
finding that the appellant forged documentation and that its
officials were untruthful in their affidavits is of no consequence
in
this appeal as it is not an aspect which is before us. Accordingly we
are obliged to accept for the purposes of this appeal
that, indeed,
the appellant, through its officials, acted in this manner. This
being so, one cannot escape the conclusion that
the respondents had
very strong prospects of success on the merits and this is an aspect
which must weigh heavily in considering
whether or not the lengthy
delay in instituting the application ought to be condoned.
[29] In my judgment this is a case where the facts that
the respondents have a strong case on the merits and where there is
little,
if any, prejudice to the appellant, must outweigh any
deficiencies in their explanation for the lengthy delay. In this
regard it
must also be borne in mind that, although her approach may
not have been absolutely correct as dealt with earlier, Mjali J was
nonetheless vested with a discretion in this regard which she
exercised judicially. It is trite that a court on appeal will be slow
to interfere with the exercise of such a discretion.
[30] As regards the question of costs, the court
a
quo
once again exercised a discretion. In my view this court
cannot interfere therewith in particular because of the fact that it
was
necessary to show disapproval of the appellant's conduct.
[31] In the circumstances, I would propose that:
The appeal be dismissed with costs, such costs to
include the costs of two counsel
.
JUDGE OF THE HIGH COURT
HARTLE, J. : I agree
JUDGE OF THE HIGH COURT
MAKAULA, J. : I agree and it is so ordered
JUDGE OF THE HIGH COURT
HEARD ON : 16 NOVEMBER 2012
DELIVERED ON : 29 NOVEMBER 2012
COUNSEL FOR APPELLANT : Mr Mpofu
INSTRUCTED BY : Mvuzo Notyesi Inc.
COUNSEL FOR RESPONDENTS : Mr Zilwa with
: Mr Bodlani
INSTRUCTED BY : X. M. Petse Inc.
1
No.
3 of 2000
2
No.
117 of 1998
3
No.
59 of 1959
4
See:
Beweging
vir Christelik-Volkseie Onderwys & Others v The Minister of
Education & Others (308/2011)
[2012] ZASCA 45
(29 March 2012
)
at paragraph 46 where Plasket AJA said at paragraph 46: "In the
application of both the delay rule and ss 7 and 9 of the
PAJA, a
two-stage approach is required. That is the way of the courts have
always applied the delay rule and the structure of
the PAJA requires
two distinct inquiries. The first question that arises is whether
the delay in launching an application was
unreasonable, or whether
it was launched more than 180 days after internal remedies had been
exhausted or the applicant had been
informed of, had knowledge of or
ought to have had knowledge of the administrative action under
challenge. The second question
is whether, if the first question is
answered in the affirmative, the delay ought to be condoned or
whether it is in the interests
of justice that the 180-day period be
extended (or the failure to bring the application timeously should
be condoned)."
5
No.
32 of 2000
6
footnote
4 above
7
In
the
Beweging vir Christelik-Volkseie Onderwys
matter
(footnote 4 above) Plasket AJA specifically alluded to this when he
stated "…. or whether it is in the interests
of justice
that the 180-day period be extended (or the failure to bring the
application timeously should be condoned)."
This view is also
in line with the generally accepted view of the courts when
condoning a failure to comply with a time period
imposed in terms of
the rules of court pursuant to the provisions of rule 27(1) which
provides that a court may "make an
order extending... any time
prescribed by these rules or by an order of court..."
8
[2010]
2 All SA 519
(SCA) para 54 (confirmed on appeal in
Camps Bay
Ratepayers' and Residents' Association & another v Harrison &
another
2011 (4) SA 42
(CC
).
9
Melane
v Santam Insurance Co Ltd
1962 (4) SA 532
(A)
10
See
also
:
Carolus
v Saambou Bank; Smith v Saambou Bank
2002 (6) SA 346
(SE) at 349 B
-E
where Jones J said the following: "
Both
applications are out of time and the applicants seek condonation.
The explanation for the delay in each case is weak. So
also the
explanation of each applicant for allowing judgment to be taken
against him in the first place, which affects the bona
fides of the
applications for rescission (Grant v Plumbers C (Pty) Ltd
1949 (2)
SA 470
(O); HDS Construction (Pty) Ltd v Wait
1979 (2) SA 298
(E) at
300F - 301C; De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance
Co Ltd
1994 (4) SA 705
(E)). In these circumstances the strength of
the applicants' defence on the merits of the case becomes crucial.
Condonation will
be granted and rescission will be ordered only if
the applicants can satisfy me that the defence they wish to raise on
the merits
if the matter goes to trial has reasonable prospects of
success. If it is a weak defence the applications have little chance
of succeeding. See, for example, Zealand v Milborough
1991 (4) SA
836
(SE) at 838D - E where the following guideline appears:
'.
. . (A) measure of flexibility is required in the exercise of the
Court's discretion [to grant rescission]. An apparently good
defence
may compensate for a poor explanation (Harms Civil Procedure in the
Supreme Court 313 (K6)), and vice versa.'"