Khai-Ma Municipality v Groenwald (291/2009, 325/2009) [2009] ZANCHC 11 (3 April 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2009
>>
[2009] ZANCHC 11
|

|

Khai-Ma Municipality v Groenwald (291/2009, 325/2009) [2009] ZANCHC 11 (3 April 2009)

Reportable: Yes/No
Circulate
amongst Judges: Yes/No
Circulate
amongst Magistrates: Yes/No
IN THE HIGH COURT OF SOUTH-AFRICA
(NORTH CAPE DIVISION)
KIMBERLEY
CASE
NO.: 291/09 – 325/09
DATE
HEARD: 17-03-2009
DATE
OF JUDGMENT: 03-04-2009
In
the matter between:
291/2009
THE
KHAI-MA MUNICIPALITY APPLICANT
And
MAGDALENE
BRUINTJIES GROENWALD RESPONDENT
AND
In
the matter between: 325/2009
THE
KHAI-MA FIRST APPLICANT
LOCAL
MUNICIPALITY
BAKER
PJ SECOND APPLICANT
BRUINTJIES
GRONEWALD M THIRD APPLICANT
And
VAN
ROOYEN FXJ FIRST RESPONDENT
VAN
ROOI L SECOND RESPONDENT
BRANDT
S THIRD RESPONDENT
GALL
M FOURTH RESPONDENT
CORAM:
H J LACOCK J et C C WILLIAMS J:
J U D G M E N T
WILLIAMS
J:
1. On
17 February 2009, at a special council meeting of the Khai-Ma Local
Municipality (
”the
Municipality”
)
attended by
councillors
FXJ Van Rooyen, L Van Rooi, S Brandt and M Gall, the following
resolutions were
inter
alia
adopted:
1.1 That
the suspended Municipal Manager (Mr. LD Beukes) be reinstated and all
disciplinary charges against him be withdrawn and
that the tenure of
the acting municipal manager (Mr. PJ Baker) be terminated and he
return to his previous position as Corporate
manager
1.2 That
the mayor and speaker of the Municipality (Ms. M.
Bruintjies-Groenewald) be suspended without pay, effective from 18
February
2009, pending a disciplinary enquiry and that the Council be
authorised to take legal action to prevent Bruintjies-Groenewald from

visiting the Municipality.
1.3 That
councillor FXJ Van Rooyen be appointed mayor of the municipality.
2. The
two applications before us are a direct consequence of the meeting of
17 February 2009 and the resolutions adopted thereat.
2.1 The
first application under case no 291/09 was launched on 23 February
2009. Herein the Municipality seeks the following relief
against
Bruintjies-Groenewald:
“
2.1 That
the respondent be interdicted from and/ or restrained from visiting
applicant’s offices.
2.2 That
respondent be restrained from interfering with the workers at
applicant’s offices.
2.3 That
respondent be interdicted and/ or restrained from intimidating
applicant’s personnel herself and/ or with the assistance
of
outside agencies.
2.4 That
respondent be interdicted and/ or restrained for disrupting services
at applicant’s offices.
2.5 That
respondent be interdicted and/ or restrained from misrepresenting
herself as to be acting and/ or doing business in the
name and stead
of applicant.
2.6 That
respondent be ordered to pay any legal costs incurred by herself, the
same which was done in the name and stead of applicant.
2.7 That
the resolution taken by applicant on 17 February 2009, to suspend
respondent without pay until a full investigation was
conducted, be
confirmed.”
2.2 The
second application under case no 325/09 was launched on 25 February
2009. Herein the Municipality as the first applicant
and Baker and
Bruintjies-Groenewald as second and third applicants respectively
(citing the four councillors who attended the meeting
of 17 February
2009 as respondents), seek an order in the following terms:
“
[2] 1.1 That
the Fourth Respondent is hereby declared not
to
be councillor of the First Applicant’s Council.
1.2 The
Fourth Respondent is hereby interdicted and restrained form holding
himself out to be a Councillor of the First Applicant’s
Council.
1.3 The
Special Meeting, held by the Respondents, on the 17
th
of February 2009, at the Pofadder Hospital, is hereby declared
unlawful, invalid and null and void.
1.4 The
resolutions adopted by the Respondents at the aforesaid Special
Meeting, held on the 17
th
of
February 2009, at the
Pofadder Hospital, contained in annexure “K2” to the Applicants’
founding affidavit
herein,
are hereby declared unlawful, and null and void ab initio.
1.5 In
the alternative to paragraph 1.4 hereinabove, that the resolutions
adopted by the Respondents at the aforesaid Special Meeting
held by
the Respondents, on the 17
th
of February 2009, at the Pofadder Hospital, contained in annexure
“K2”, be hereby reviewed and set aside.
1.6 The Respondents
are hereby ordered to pay the Applicants’ cost herein on the
Attorney and Own Client scale, jointly and severally,
the one paying,
the others to be absolved.”
3. By
agreement between the parties on 27 February 2009 Lacock J ordered
that both applications be heard on 17 March 2009, that
the
respondents and applicants not hold any council meetings of the
Municipality until finalisation of the applications and that
Mr. PJ
Baker continue to act as municipal manager.
4. In
argument before us Mr. Simon who appeared for the applicant in case
no 291/09 and the respondents in case no 325/09 and Mr.
Cronje his
opposite side in both matters, agreed and conceded that the outcome
of case 325/09 would be largely decisive of both
applications. Put
differently, if application 325/09 is successful and the court finds
the special meeting of 17 February 2009
and the resolutions adopted
there to be unlawful or invalid, the application under case no 291/09
must
necessarily fail. On the other hand, should case no 325/09 fail, the
only real issue to be determined in case 291/09 was whether
Mr. FXJ
Van Rooyen, the deponent to the founding affidavit herein, had the
authority to bring the application in the name of the
municipality.
5. I
now deal with the issues in case no 325/09. A brief background of
the events leading up to and the circumstances surrounding
the
meeting of 17 February 2009, largely common cause, now follow:
5.1 The
council of the Khai-Ma Local Municipality, which serves the town of
Pofadder in the Northern Cape, in happier days consisted
of seven
counsillors; the mayor/speaker and six ordinary councilors, the four
respondents and councillors JJ Swartbooi and DA Swartbooi.
5.2 At
a special council meeting held on 15 December 2008 it was resolved
that the municipal manager, Mr. L Beukes, be suspended
with immediate
effect and that Mr. PJ Baker be appointed as acting municipal
manager.
5.3 On
8 February 2009, the Provincial Executive Committee (
“the
PEC”
)
of the African National Congress (
“the
ANC”)
,
Northern Cape took a decision to expel the third respondent, Mr.
Gall, from the ANC and as a counsillor by reason of his mobilizing

and canvassing for COPE, an
opposing
party. Mr. Gall received written notice of his expulsion from the
ANC on 11 February 2009.
5.4 On
13 February 2009 the four respondents requested the second applicant
(the acting municipal manager) in writing to convene
a special
council meeting to be held at the Pofadder Raadsaal on 16 February
2009.
5.5 On
14 February 2009 the second applicant responded in writing to the
above request, informing the respondents that a request
for a special
meeting had to be made by a majority of councillors and directed to
the Speaker in terms of section 29(1) of the
Local Government:
Municipal Structures Act, no 117 of 1998. That since Mr. Gall was no
longer a member of the ANC, he ceased
to be a councillor and could
not request or attend such a special meeting. In the result the
special meeting was not requested
by a majority of councillors and
could not be convened.
5.6 The
proposed meeting did not take place on 16 February 2009.
5.7 On
17 February the four respondents again in writing requested the
second applicant to convene a special meeting of the council
for
15h00 the same day at the Poffadder Raadsaal.
5.8 The
second applicant somehow discovered that the four respondents were
conducting the proposed meeting at the Pofadder Hospital
and rushed
to the hospital where the meeting was being conducted at the bedside
of the
third
respondent who had been hospitalised. He handed each of the
respondents a copy of his response to their request for a special

meeting, which was in essence a repetition of his response to the
first request referred to in sub-paragraph 5.5 above, whereafter
he
left.
6. The
applicants contend that the special meeting of 17 February 2009 was
not properly convened or constituted and that the resolutions
adopted
thereat are thus invalid and unlawful and stand to be set aside.
7. Section
29(1) of the Structures Act sets out the procedure for the convening
of municipal council meetings as follows:
“
The
speaker of a municipal council decides when and where the council
meets subject to section 18(2), but if a majority of the councillors

request the Speaker in writing to convene a council meeting, the
speaker must convene a meeting ata time set out in the request.”
(section
18(2) referred to herein is of no import to the issue at hand since
it only provides for council meetings to be held at
least quarterly.)
8. It
is common cause that contrary to the provisions of section 29(1), the
speaker (third applicant) was not requested to convene
the meeting,
but rather the second applicant.
9. Mr.
Simon argued that it had become the practice of the council to
convene meetings by request to the municipal manager and
referred
us by way of an example to an earlier request for a meeting by
councillors addressed to the municipal manager dated 1 December
2009.
Besides the fact that one previous instance of similar conduct
hardly constitutes a practice, the argument disregards the
fact that
the second applicant in both his written responses to the
respondents’ requests for council meetings specifically referred

the respondents to the provisions of section 29(1) and their
non-compliance therewith.
10. The
other problem which arises is whether all the counsillors had been
notified of the proposed meeting. The founding affidavit
deposed to
by the second applicant is silent in this regard but one would hardly
expect him, being of the view that the proposed
meeting would be
unlawful, to inform the other councillors (the third applicant, Ms. D
Swartbooi and Mr. J Swartbooi) of such a
meeting. Moreover the
respondents had no reason to believe that the second applicant would
inform the remaining counsillors of
the proposed meeting in the light
of his refusal to convene such a meeting.
In
fact, the answering affidavit deposed to by the first respondent,
however contradictory it may appear, seem to confirm that all
the
counsillors were not informed of the meeting. In paragraph 30
thereof he states that:
“
All
the counsillors were informed of the meeting save for the 3(three)
councillors who elected not to attend.”
11. What
further compounds the respondents’ problems with regard to the
convening of the meeting is that no notice had been given
of the
change of venue for the meeting. The respondents’ request for a
special council meeting dated 17 February 2009 specifically
indicates
the venue for the proposed meeting as the
“Pofadder
Raadsaal”
.
It is common cause however that the meeting in fact took place at
the hospital bedside of the third respondent. In his answering

affidavit the first respondent explains the situation as follows in
paragraph 30 thereof:
“
The
meeting of 17 February 2009 was scheduled to take place in the
Hospital “Konferensiesaal”. It was only when it was found
that
is was only the 4 (four) of us that Brandt proposed that we convene
in her ward to conduct the meeting. There was no obscure
reason for
same.”
12. In
the first place, the first respondent is incorrect in his averment
that the meeting was scheduled to take place at the hospital

conference room as is clear from the request mentioned in paragraph
11 above. Secondly the question remains as to who decided
and when
was it decided to change the venue from the
“Raadsaal”
to the hospital. One can only surmise as to the answer but the fact
remains that the three remaining councillors were not notified
of the
change of venue.
13. There
can be no doubt in the circumstances that the special meeting of 17
February 2008 was not convened in accordance
with
the prescriptions of the Structures Act and was therefore invalid and
unlawful. It follows that whatever resolutions were
adopted at the
meeting have the same fate. On this basis alone the meeting and the
resolutions adopted thereat cannot stand.
We do not consider it
necessary in these circumstances to deal with the issue of whether
the special meeting was properly constituted.
14. The
applicants also ask for a declaratory order that the fourth
respondent is no longer a councillor of the municipal council
as well
as an order interdicting and restraining him from holding himself out
to be a councillor.
15. Item
1(2) of Schedule 6B of the Constitution of the Republic of South
Africa, No 108 of 1996 provides inter alia as follows:
“
Loss of retention
of Council membership
(1) …
(2) A
councillor representing a ward in a Municipal Council ceases to be a
member of that Council if that councillor, other than
in accordance
with item 2, 3 or 7-
a) ceases
to be a member of a party which nominated that councilor as candidate
in the ward election
b) …”
16. The
power of the PEC, ANC, Northern Cape, to expel party members for the
actions that the fourth respondent is accused of, derives
from a
decision taken by the National Executive Committee (
“the
NEC”)
of the ANC during December 2008. Instructions in this regard are
contained in a letter from the
Secretary
General of the ANC to all provincial secretaries dated 3 February
2009 and which was delivered to the fourth respondent
together with
his letter of expulsion and reads as follows”
“
The NEC of December
2008 had a detailed discussion on how best to deal with ANC members
who work for other parties from within the
ANC structures. It was
decided that:-
a) The
long standing decision about ANC members who stand as independent
candidates in election against ANC candidates are assumed
to have
expelled themselves.
b) Equally
ANC members who work for any other party in opposition to the ANC
should be treated the same i.e. as having expelled
themselves.”
17. The
applicants contend that by virtue of the provisions of Schedule 6 B
of the constitution, referred to above in paragraph
15 above, the
fourth respondent on receiving notification of his expulsion from the
ANC on 11 February 2009 automatically ceased
to be a councillor of
the municipal council.
18. The
respondents however aver that the fourth respondent had noted an
appeal against his expulsion from the ANC on 13 February
2009. The
respondents in the answering affidavit, maintain at paragraph 51
thereof that:
“
It is trite that a
member revives his/her membership at the noting of an appeal. In
fact, not only does the National Constitution
1996 guarantee same but
it forms the bedrock of the ANC Constitution.”
19. The
ANC constitution does not form part of the papers before us, although
alluded to, as is indicated in paragraph 18 above
and in the
respondents Heads of Argument. On the day of the hearing Mr. Simon
attempted to hand in copies of the ANC constitution
but was countered
with an objection from Mr. Cronje on the basis of it being
inadmissible hearsay and that the applicants would
be prejudiced by
not previously having been given an opportunity to deal with its
contents. The objection was upheld.
20. Be
that as it may, under our common law, the execution of a decision is
suspended when an appeal is noted, pending the outcome
of the appeal.
There is nothing before us which points to a reversal of this rule
in the present case.
21. Mr.
Cronje argued strongly that the wording of the NEC decision
(paragraph 16 above) is indicative thereof that there can be
no
appeal in the circumstances of the fourth respondent’s expulsion,
since such a person is deemed to have expelled himself.
Further
argument for the applicants on the issue of the fourth respondent’s
appeal is that the notice of appeal is wholly inadequate
since it
does not disclose any grounds or reasons for the appeal and it
therefore does not constitute a proper notice of appeal.
The fourth
respondent’s notice of appeal addressed to the ANC Secretary
General and the ANC Provincial Secretary merely states
the following:
“
Hiermee wil ek
skriftelik appelleer teen my skorsing as
ANC Lid. Hoop u vind
dit in orde”
22. The
arguments of Mr. Cronje may or may not have any merit, but in the
absence of any direct provision, either in the NEC decision
or the
ANC Constitution, that the ordinary rules do not apply, we are not at
liberty to make an order with such far-reaching consequences
as to
deny the fourth respondent his right to due process. See
Max
v Independent Democrats and Others
2006(3) SA 112(CPD).
23. The
issues of appealability and the validity of the notice of appeal are
best left to the internal disciplinary processes of
the ANC. In the
circumstances therefore, we do not intend the grant the relief sought
in prayers [2]1.1 and 1.2 of the Notice
of Motion in case no. 325/09.
24. The
respondents have furthermore attacked the authority of the second
applicant to bring the application on behalf of the municipality.

During argument Mr. Simon launched an attack on the
locus
standi
of the second respondent to bring the application in his personal
capacity as well.
25. As
far as bringing the application in his personal capacity is concerned
I do not believe that there can be any question of
the second
applicants’ direct interest in the relief sought. In fact the
respondents conceded this in their answering affidavit.
26. The
issue as to whether the second applicant has
locus
standi
to bring the application on behalf of the Municipality is however not
as clear cut.
27. A
municipal manager derives his powers and functions from section 55 of
the Local Government: Municipal Systems Act, No 32
of 2000, (
“the
Systems Act”
),
“subject to the policy directions of the municipal council.” He
is also the accounting officer of the Municipality.
28. Section
55 of the Systems Act does not
per
se
give
a municipal manager the authority to litigate on behalf of a
municipality without council authorisation. He is however as

accounting officer responsible and accountable for:
“
a) all
income and expenditure of the municipality;
b) All
assets and the discharge of all liabilities of the municipality; and
c) Proper
and diligent compliance with the Municipal Finance Management act”.
29. An
attempt had been made by the third applicant to convene a special
meeting of the council scheduled for 09h00 on 23 February
2009 to
address and discuss the meeting of 17 February 2009 and the
resolutions adopted thereat. A proposed resolution
“that
the meeting held by Councillors Van Rooyen, Van Rooi, Brandt and Mr.
M Gall, on the 17
th
February 2009, at the hospital bedside of Ms. Brandt in the
Pofadder Hospital and
the resolutions purportedly adopted thereat were unlawful, invalid,
null and void for non-compliance
with
section 29
of the
Local Government: Municipal Structures Act, no 117
of 1998
.”
appeared on the agenda.
The
respondents failed to attend the meeting which resulted in the
meeting being inquorate. It is therefore rather disingenuous
for the
respondents to argue that a council resolution is necessary to bring
the application on behalf of the Municipality if it
is clear from the
above mentioned attitude of the respondents that no such resolution
could have been obtained.
30. In
these circumstances we are of the opinion that the second applicant
was duty bound by virtue of his position as manager and
accounting
officer of the Municipality to bring the application of behalf of the
Municipality, not only in the interests of the
municipality but also
the community which it serves. See
Pepcor
Retirement Fund and Another v Financial Services Board and Another
2003(6) 38(SCA) paragraphs 10-15.
31. Having
come to the conclusions that we have, the application under case no
291/2009 must necessarily fail. The only outstanding
issue would be
that of costs.
32. In
case no 291/09 Mr. FXJ Van Rooyen brought the application in the name
of the Municipality without any authority or good
cause
to do so. There is no reason why the Municipality should bear the
costs of this application.
33. In
case no 325/09 the respondents have conducted themselves in a manner
unbecoming of public office bearers, willfully ignoring
the statutory
requirements which regulate the council meetings of the municipality.
In the light of the partial success of their
opposition to the
application we are however of the opinion that it is appropriate to
make no order as to costs in case no 325/09
In
the circumstances the following orders are made:
In
case no 291/2009
a) The
application is dismissed.
b) Mr.
FXJ Van Rooyen is ordered to pay the costs of the opposed application
de bonis
propriis.
In
case no 325/2009
a) The
Special Council Meeting held by the respondents on 17 February 2009
at the Pofadder Hospital is hereby declared unlawful,
invalid and
null and void
ab
initio
b) The
resolutions adopted by the respondents at the aforesaid special
meeting are hereby declared unlawful, invalid and void
ab
initio
c) No
order is made as to costs.
___________________________
C.C
WILLIAMS
JUDGE
I
concur
____________________________
H
J LACOCK
JUDGE
For
applicants in case no. 325/09,
and
respondents in case no 291/09 -Adv Cronje
Mathews & Partners
For
respondents in case 325/07,
and
applicants in case no 291/09 -Adv Simon
Haarhoffs Inc