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[2011] ZAECMHC 7
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Jikijela and Another v Mhlontlo Local Municipal Council and Others (1698/10) [2011] ZAECMHC 7 (9 May 2011)
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IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN CAPE
HIGH COURT, MTHATHA)
Case No: 1698/10
Heard: 18/02/2011
Delivered: 09/05/2011
In the matter between
:
MZIMKHULU JEREMIAH
JIKIJELA
…...............................
1
st
APPLICANT
RUTH MANDISA GIYOSE
….............................................
2
nd
APPLICANT
VERSUS
MHLONTLO LOCAL
MUNICIPALITY COUNCIL
….......
1
st
RESPONDENT
NOZIPHIWO SONGCA
…..............................................
2
nd
RESPONDENT
MBULELO JARA
….......................................................
3
rd
RESPONDENT
JUDGMENT
MJALI
J:
The applicants seek an
order couched in the following terms:
That the applicants
failure to institute proceedings within 180 days be and 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
.
The review and setting
aside of 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.
Their reinstatement by
the first respondent into their positions as members of its EXCO as
well as payment of all attendant
benefits and emoluments with
retrospective effect from 20 February 2009 to the date of their
reinstatement.
That the first
respondent pays the costs of this application and that the second
and third respondents be ordered to pay the
costs of this
application jointly and severally with the first respondent only in
the event of them opposing the application.
The applicants were duly
elected as Ward Councillors of the first respondent in March 2006
subsequent to the Local Government
elections that had taken place
during that year. They were also elected as members of the Executive
Committee (EXCO) of the first
respondent’s Council. They
continued serving as EXCO members until they were allegedly removed
there from in a Special
Council Meeting that was held on 20 February
2009. The aforesaid removal was consequent upon a decision taken on
an alleged motion
without a notice that was introduced by a certain
Councillor Sabisa proposing the removal of the applicants from EXCO.
Their
removal as members of the first respondent’s EXCO was
unlawful in that the legislative prescripts, in particular, section
53 of the Municipal Structures Act No. 117 of 1998 were not complied
with, so contend the applicants.
The second and third
respondent having filed notices that they will abide by the decision
of the court, the application is opposed
only by the first
respondent on the grounds that such removal took place on 23 March
2009 and not on 20 February 2009 and was
preceded by the required
notice. Thus was lawful. In limine the first respondent raised the
point that the proceedings are in
the nature of a review and should
have been brought without undue delay, the applicants had taken
inordinately and unreasonably
long before instituting these review
proceedings. It was submitted that the application ought to be
dismissed on this ground
alone. The first respondent submitted
further that there is a serious dispute of fact pertaining to the
issue of whether there
was compliance with the legislative
procedures or not prior to the removal of the applicants. Such
dispute of fact cannot be
resolved on paper, so contended the first
respondent.
I deal first with the
issue of undue delay. In terms of section 7(1)(b) of the Promotion
of Administrative Justice Act, 3 of
2000 (PAJA),
“
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 on which any proceedings instituted in terms of
internal remedies as contemplated in subsection (2)(a) have
been
concluded; or
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.”
In
deciding whether
the applicants had taken inordinately and
unreasonably long before instituting these review proceedings
I
must take into account a number of considerations. Such
considerations were eloquently stated by
Brand JA in
Associated Institutions Pension Fund v Van Zyl
2005 (2) SA
302
(SCA) at 321 as follows :
“
[46]
. . . It is a longstanding rule that courts have the power,
as part of their inherent jurisdiction to regulate their
own
proceedings, to refuse a review application if the aggrieved party
had been guilty of unreasonable delay in initiating the
proceedings.
The effect is that, in a sense, delay would ‘validate’
the invalid administrative action (see eg Oudekraal
Estates (Pty) Ltd
v City of Cape Town and others
2004 (6) SA 222
(SCA) ([2004]
3 All SA
1
at para [27]). The raison d’être of the rule is said to
be twofold. First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent. Secondly, there is a
public interest element in the finality of administrative decisions
and the exercise of administrative functions (see eg Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)
at 41).
[47] The scope and
content of the rule has been the subject of investigation in two
decisions of this Court. They are the Wolgroeiers
case and
Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale
Vervoerkommissie, en ’n Ander
1986 (2) SA 57
(A). As appears
from these two cases and the numerous decisions in which they have
been followed, application of the rule requires
consideration of two
questions:
(a) Was there an
unreasonable delay?
(b) If so, should the
delay in all the circumstances be condoned?
(See Wolgroeiers at
39C–D.)
[48] The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances of any particular case
(see eg
Setsokosane at 86G). The investigation into the reasonableness of the
delay has nothing to do with the Court’s discretion.
It is an
investigation into the facts of the matter in order to determine
whether, in all the circumstances of that case, the delay
was
reasonable. Though this question does imply a value judgment it is
not to be equated with the judicial discretion involved
in the next
question, if it arises, namely, whether a delay which has been found
to be unreasonable, should be condoned (see Setsokosane
at 86E–F).”
It is thus crucial to
have regard to the facts of this matter in order to determine
whether there has been unreasonable delay
by the applicants in the
launching of the present review proceedings. In their founding and
replying affidavits the applicants
stated that on the same day of
their removal from the first respondent’s EXCO they appealed
to the OR Tambo Region of the
ANC through Mr.Siyakholwa Mlamli the
Regional Secretary of the ANC. A meeting chaired by the chief whip
of the ANC who happened
to be Mr Sabisa, the very same person who
moved a motion for their removal from EXCO could not resolve the
issue. They then made
representations to the Regional Working
Committee of the ANC which promised to consider the matter and
inform them of the outcome.
When such outcome was not forthcoming
the applicants approached the Provincial Executive Committee (PEC)
of the ANC in October
2009. A certain Mr Xolile Nqatha was tasked to
investigate the matter and report back to the PEC. When no results
were forthcoming
from the PEC the applicants launched the present
review proceedings on 26 July 2010. According to the applicants all
attempts
which they had thought would resolve the issue without
having to institute court proceedings had failed when they launched
the
present review proceedings.
Section 62 of the Local
Government: Municipal Systems Act, No. 32 of 2003 provides for an
internal resolution mechanism and states
as follows:
“
Section
62.—(1) A person whose rights are affected by a
decision taken by a political structure, political office
bearer,
councillor or staff member of a municipality in terms of a power or
duty delegated or sub-delegated by a delegating authority
to the
political structure, political office bearer, councillor or staff
member, may appeal against that decision by giving written
notice of
the appeal and reasons to the municipal manager within 21 days of the
date of the notification of the decision.
(2) The
municipal manager must promptly submit the appeal to the appropriate
appeal authority mentioned in subsection
(4).
(3) The
appeal authority must consider the appeal, and confirm, vary or
revoke the decision, but no such variation or
revocation of a
decision may detract from any rights that may have accrued as a
result of the decision.
(4) When
the appeal is against a decision taken by—
(a) a staff member
other than the municipal manager, the municipal manager is the appeal
authority;
(b) the municipal
manager, the executive committee or executive mayor is the appeal
authority, or, if the municipality does not
have an executive
committee or executive mayor, the council of the municipality is the
appeal authority; or
(c) a political
structure or political office bearer, or a councillor—
(i) the municipal
council is the appeal authority where the council comprises less than
15 councillors; or
(ii) a committee of
councillors who were not involved in the decision and appointed by
the municipal council for this purpose is
the appeal authority where
the council comprises more than 14 councillors.
(5) An
appeal authority must commence with an appeal within six weeks and
decide the appeal within a reasonable period.
(6) The
provisions of this section do not detract from any appropriate appeal
procedure provided for in any other applicable
law.
It is important to note
that, in terms of the provision in section 7(2) (a) of PAJA, no
court may review an administrative
action in terms of that Act
unless any internal remedy provided for in any other law has first
been exhausted. In this matter
the decision to remove the applicants
as members of the EXCO was taken at a Municipal Council meeting. In
terms of section 62(4)
the appeal authority would either be the
municipal council or a committee of councillors who were not
involved in the decision
and appointed by the municipal council for
the appeal. Clearly the applicants did not follow that route but
appealed to the political
structures of the ANC that deployed them.
They have applied that they be 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
. In the papers and in argument I did not get the impression
that this application was opposed. Instead the first respondent in
its answering affidavit sought to refute that the applicants ever
appealed to any of the ANC structures mentioned in their founding
affidavit. In support of its denial the first respondent stated that
the decision to have the applicants removed from EXCO was
taken by
the regional structures of the ANC due to their lack of performance
and the fact that they brought the ANC and the Municipality
into
disrepute. According to the first respondent the applicants’
removal from EXCO had the support of the provincial structures
of
the ANC. In an elaborate replying affidavit the applicants gave
details of their appeal process as well as those of the persons
that
were involved in the appeals. They (the applicants) further denied
that any of the structures of the ANC were involved in
the decision
to have them removed from EXCO as such structure expressed shock at
their removal. The denial by the first respondent
that the
applicants ever appealed to the ANC structures was not pursued in
argument.
Bearing in mind what was
stated in
Walele v City of Cape Town & Others
2008(6) SA
129 (CC) para 142 that
“
[o]ur
system of administrative justice seeks to encourage internal remedies
to resolve disputes that arise out of administrative
action. That is
the very purpose of
section 7(2)
of PAJA. In my view,
section 62
should be read in the light of this commitment, as it establishes an
internal remedy
.”
I am of the view that by approaching the various structures of the
ANC the applicants sought to resolve a dispute that
arose from a
decision that was allegedly taken by such structures in conjunction
with the Municipal Council or implemented by the
Municipal Council.
For the aforesaid reasons and also the fact that the application for
exemption from exhausting any internal
remedies is not opposed
I
deem it in the interest of justice that the exemption sought by the
applicants be granted.
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
.
Even
if I am wrong in holding that the delay was not unreasonable, I am
of the view that the it must be overlooked as the lapse
of time in
itself is not necessarily decisive having considered all the
relevant factors in this matter. In
Oudekraal
Estates (Pty) Ltd v City of Cape Town:
[2004]
3 All SA 1
(SCA) para 46,
the
SCA, dealing with the necessity for a review to be properly brought
by a party seeking to set aside an alleged invalid administrative
act, referred to the Wolgroeiers (supra) and remarked as follows:
“
No
doubt a court that might be called upon to exercise its discretion
will take account of the long period that has elapsed since
the
approval was granted, but the lapse of time in itself will not
necessarily be decisive: Much will depend upon a balancing of
all the
relevant circumstances, including the need for finality, but also the
consequences for the public at large and indeed for
future
generations, of allowing the invalid decision to stand. In weighing
the question whether the lapse of time should preclude
a court from
setting aside the invalid administrative act in question an important
– perhaps even decisive – consideration
is the extent to
which the appellant or third parties might have acted in reliance
upon it.”
Except for replacing the
applicants with the second and third respondents and that they have
been overseeing various projects
ever since they took over from the
applicants it is by no means clear in this matter how and to what
extent finality will be
disrupted. There is also no evidence as to
what extent third parties have acted on the decision to oust the
applicants as members
of EXCO of the first respondent. There is also
no evidence that in the event of a finding in favour of the
applicants, they cannot
take over where the second and third
respondents left. What is clear is that the respondents were made
aware (through the various
meetings) immediately after the
challenged decision was taken that an appeal was launched. Opposing
the application for condonation
for the late launch of these review
proceedings Mr Noxaka who appeared for the respondents argued that
the municipality would
be prejudiced in that there is a need for
finality in the decisions taken by the council. Mr Zilwa counsel for
the applicants
argued that there will be no prejudice on the part of
the municipality instead the only prejudice will be to allow an
invalid
decision to stand. As pointed out by the SCA in Oudekraal
(supra) para 36
“
[A]
court that is asked to set aside an invalid administrative act in
proceedings for judicial review has a discretion whether to
grant or
to withhold the remedy. It is that discretion that accords to
judicial review its essential and pivotal role in administrative
law,
for it constitutes the indispensable moderating tool for avoiding or
minimising injustice when legality and certainty collide.”
Bearing in mind that the
internal remedies resorted to by the applicants failed to yield any
results and that they were not concluded
by the time these review
proceedings were instituted, the computation of the 180 day period
envisaged in
section 7
(1)(a) of PAJA the presents some difficulty.
In Wolgroeiers Afslaers v Munisipaliteit van Kaapstad
the SCA
set out the parameters of a court’s discretion in relation to
delay:
“
What
has indeed been prescribed by our Courts is that proceedings should
be instituted within a reasonable time and, as I have already
mentioned, the Court is at liberty, depending on the circumstances
and in the exercise of its discretion, to condone unreasonable
delay
in appropriate cases. l cannot possibly accept that in the
formulation of the requirement that proceedings should be instituted
within a reasonable time, it was intended to fetter the Court’s
discretion to such an extent that even where a litigant disregards
the Court’s directive by unnecessary and excessive delay in
bringing proceedings, the Court does not have the right to refuse
the
application merely because it is not proved or cannot be proved that
the respondent was not materially prejudiced, even though
there were,
on a review of all the circumstances, other well- founded reasons for
the exercise of its discretion against the applicant.
I accept that
prejudice to the respondent and the degree thereof are relevant
factors in the consideration of whether unreasonable
delay ought to
be overlooked, and that they can sometimes be the decisive factor,
especially in cases of comparatively trivial
delays . . . Whilst, as
I have already indicated, the question whether there was an
unreasonable delay requires a factual finding,
the answer to the
question whether an unreasonable delay ought to be overlooked rests
in the discretion of the Court, exercised
by taking into
consideration all the relevant circumstances and factors.”
In the present case, the
time lapse before the appellants acted was sufficiently explained.
For all the aforesaid reasons,
I conclude that the delay in
launching the present review proceedings should be condoned.
I turn now to the issue
of the alleged dispute of facts on papers. It has been argued on
behalf of the first respondent that there
is a serious dispute of
fact pertaining to the issue of whether there was compliance with
the legislative procedures or not prior
to the removal of the
applicants and that such dispute of fact cannot be resolved on
paper. Mr Zilwa for the applicants argued
that the disputes raised
are spurious, dishonest and can be resolved on paper. It is
instructive at this stage to have regard
to the dictum of
Heher
JA in
Wightman t/a JW Construction v
Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
[2008]
2 All SA 512
(SCA) at par 12
where he
stated:
“
Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks
final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s allegations
are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched or clearly
untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E–635C [also reported at
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A)
– Ed]. See also the analysis by Davis J in Ripoll-Dausa v
Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A–153C with which I
respectfully agree. (I do not overlook that a reference to evidence
in circumstances discussed
in the authorities may be appropriate.)”
It is common cause that
the applicants were removed as members of the first respondent’s
EXCO and that in terms of section
53 of the Municipal Structures Act
they must be given notice prior to such removal. Whilst it is true
that there is a dispute
pertaining to the date on which the
applicants were ousted from the EXCO of the first respondent and
whether proper procedures
were adhered to prior to their removal, I
am inclined to agree with Mr Zilwa that such disputes can be
resolved without the necessity
to refer them to oral evidence. In
doing so I will be guided by the dictum in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
(supra) and the authorities cited therein.
The respondent’s
case that the removal of the applicants from the EXCO was preceded
by the required notice is not borne
out by the papers instead it
reflects a clumsy and desperate attempt to mislead this court. In
its answering affidavit the respondent
avers that a meeting was
convened for 23 March 2009. The notice of such meeting together with
the agenda including motions to
be moved was served to the
applicants by the Municipal manager, Monde Sondaba. In support of
this averment the respondent attached
a copy of such notice (as
annexure ZM1) which was said to have been served to the applicants
on 4 March 2009. On closer scrutiny
the said annexure is dated 23
March 2009 which is much later than the day of the alleged service
on the applicants. What is even
more glaring is that a different
person signed on behalf of Monde Sondaba who was said to have
effected service of the notice
to the applicants. A copy of a notice
of a meeting of 23 March 2009 filed by the applicants as MJ4 negates
any suggestion that
the applicants were served with a notice of that
meeting on 4 March 2009 as the date appearing thereon is 16 March
2009.
Further, annexure ZM1 is
in direct conflict with the minutes of the Council meeting of 23
March 2009 which were filed of record
by the respondent on 15
September 2010. Those minutes were signed by both the speaker and
the municipal manager on 9 April 2009.
In those minutes the
reshuffling of the EXCO is listed under item 4 as a motion without a
notice. Which motion was eventually
discussed under item 7 and a
resolution taken. In an attempt to explain this glaring discrepancy
the respondent stated that those
minutes were erroneously signed by
both officials without being proof read and were not confirmed by
the Council. This explanation
does not hold water. It is difficult
to imagine that two officials who both hold responsible positions
can sign a document containing
important resolutions of the Council
without satisfying themselves as to the veracity of the contents
thereof. Of note is that
such document was filed in support of their
case on 15 September 2010 and is dated 09 April 2009. It is
inconceivable that a
wrong document would be kept for that long
without noticing an “obvious error”.
The respondent’s
version that the applicants removal from EXCO took place on 23 March
2009 and was lawful falls flat in
the light of the following. An
extract of the minutes of the meeting of 20 February 2009 filed by
the applicants ( MJ 5) reflects
under Resolution No. 04-20/02/2009
that the applicants were removed from the EXCO on 20 February 2009
with immediate effect.
Further the first applicant’s salary
slips filed as MJ 6 & 7 show a negative change in the salary of
the first applicant
for the month of March 2009. The respondent
could not deny the fact that EXCO members earn more than the
ordinary members of
the council. On papers and in argument the
applicants submitted that if they were only removed from the EXCO on
23 March 2009
the negative change in their salary could not have
been effected on 25 March 2009 which is two days thereafter as more
than two
days are required to process salaries in the municipal
system. The argument went further to say that even if the salary
section
of the municipality could miraculously process salaries
within two days, the negative change in their salaries should have
been
marginal as they would have been removed from the EXCO two days
before month end. No convincing counter argument could be advanced
on behalf of the respondents in this regard. I am inclined to agree
with counsel for the applicants that documents submitted
by the
applicants show beyond pale that they were removed from the EXCO on
20 February 2009 on a motion without a notice and
not on 23 March
2009 as contended by the first respondent.
I accordingly find
that the applicants’ removal from the EXCO was done without
complying with the legislative prescripts.
I turn now to the issue
of costs.
It is trite that the award of costs is
in the discretion of the court which must be exercised judicially
with due regard to all
relevant considerations. These would include
the nature of the litigation being conducted before it and the
conduct of the parties
(or their representatives).
Intercontinental
Exports (Pty) Ltd v Fowles
1999 2 SA
1045
(SCA) 1055F-G.
Mala fides,
unreasonableness and frivolousness have been found to be factors
justifying the imposition of an adverse costs order.
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union
[1993] ZASCA 201
;
1994 (2) SA 204
(A) at
221A–C.
The general rule is that
costs follow the event, in other words the successful party should
be awarded costs. This rule should
be departed from only where good
grounds for doing so exist. In this matter the first respondent
persisted with its ill conceived
defence when it should have avoided
litigation altogether. After so many attempts by the applicants to
resolve the issue of their
removal without resorting to court had
failed, it became clear to them that litigation was the only way
that would resolve the
matter. In
Skotnes v SA Library
[1997] ZASCA 28
;
1997 2
All SA 379
(SCA) at p386 VIVIER JA stated
,
“
Unsuccessful
litigants cannot escape liability for
costs........................... when it is clear that a resort to
litigation
was the only way in which the successful party could
obtain delivery of that which the unsuccessful party unlawfully
refused to
deliver.”
The first respondent’s
conduct was most unreasonable and unfair and as such mala fide
justifying an order on an attorney
and client scale against the
respondent.
In the result the
following order is made:
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
.
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.
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.
The first respondent
is to pay the costs of this application on an attorney and client
costs
.
.
_________________
GNZ MJALI
JUDGE OF THE
HIGH COURT.
On behalf of the
Applicants
Adv. P.H.S, Zilwa
Instructed by
X.M. Petse
Incorporated
On behalf of the
Respondents
Mr. Notyesi
Instructed by
Messrs Mvuzo Notyesi
Incorporated