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[2008] ZANCHC 29
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Lubbe v Nama khoi Municipality and Others (1542/2007) [2008] ZANCHC 29 (18 April 2008)
Reportable: Yes / No
Circulate to Judges:
Yes / No
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Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case
no: 1542/2007
Date
heard: 31/03/2008
Date
delivered: 18/04/2008
In
the matter of
:
SCHALK
WILLEM BURGER LUBBE
APPLICANT
versus
NAMA
KHOI MUNICIPALITY
FIRST
RESPONDENT
UNA
ELIZABETH SIMBOYIA SECOND RESPONDENT
AUBREY NEVE
BAARTMAN THIRD RESPONDENT
MEC:
DEPT HOUSING & LOCAL GOVERNMENT
NORTHERN CAPE FOURTH
RESPONDENT
Z
DE JONGH FIFTH RESPONDENT
M
ISAACS SIXTH RESPONDENT
R
MOUTON SEVENTH RESPONDENT
J
VAN DER WESTHUIZEN EIGHTH RESPONDENT
L
KHUZE NINTH RESPONDENT
JM
THEUNIS TENTH RESPONDENT
Coram:
MAJIEDT
J
et
WILLIAMS
J
JUDGEMENT
MAJIEDT
J:
A. INTRODUCTION
This
is an application for the review and setting aside
of
two decisions taken by the first respondent on 27 September 2007 and
6 November 2007 respectively. These decisions are to
the same
effect, namely:
to
note an appeal against
a
judgment of this Court in the matter between the applicant and the
first respondent and others under case number 1293/2006;
that the legal costs
incurred in respect of the said appeal be paid by the first
respondent; and
that
the third respondent be appointed as acting municipal manager to
the first respondent retrospectively from 1 October 2006
until a
permanent municipal manager is appointed by way of a five year
contract.
Although
the applicant had originally
sought
an order compelling the third respondent to vacate his post as
acting municipal manager to the first respondent with immediate
effect and also for a costs order
de
boniis propriis
against the 2
nd
,
5
th
,
6
th
,
7
th
,
8
th
,
9
th
and 10
th
respondents, alternatively against first and second respondents,
this relief was not proceeded with during the course of argument
by
counsel for the applicant, Mr. Coetzee. The applicant merely seeks
an order reviewing and setting aside the aforementioned
decisions.
B. THE PARTIES
3.1 The
applicant is a councillor of the first respondent’s council
and
also a member of its Executive Committee.
3.2 The
first respondent is a municipality duly established in terms of the
provisions contained in the Local Government: Municipal
Systems Act,
32 of 2000 (“
the
Systems Act”
).
Its offices are situated at Springbok. For the sake of convenience,
I shall refer to the first respondent’s council herein
simply
as “
the
Council
”.
3.3 The
second respondent is a councillor and mayor of the first respondent.
3.4 The third respondent
is the acting municipal manager of the first respondent. His
appointment as acting municipal manager lies
at the heart of the
dispute between the parties herein.
3.5 The fourth respondent
is cited in his official capacity as the political authority
responsible for all local governments in
this province. No relief is
sought against him.
3.6 The
fifth to tenth respondents are all councillors of the first
respondent. The sixth respondent is the Speaker of the Council.
The
second, fifth, sixth, seventh, eighth, ninth and tenth respondents
are all members of the majority party in the Council, namely
the
African National Congress, while the applicant belongs to an
opposition party.
C. BACKGROUND
and ISSUES
The
respondents have
quite
properly conceded that the decision taken on 27 September 2007
stands to be reviewed and should be set aside, by reason
of the fact
that the meeting whereat the aforementioned decision had been taken
had not been quorate. Nothing further needs
to be said about this
decision, save to make mention of it in the chronology of events
insofar as it may be relevant to the decision
of 6 November
2007.
The
present matter constitutes the latest in a
growing
saga of litigation between the parties herein. It is of some
considerable concern to us that this Court is increasingly
being
asked to intervene in disputes emanating from the Council and more
will be said about this at the end of this judgment.
After
the previous municipal manager of
the
Council, Mr. Engelbrecht, had reached retirement age and had
declined an offer to continue in an acting capacity, a need had
arisen to appoint a new municipal manager on a permanent basis. In
the interim, the third respondent was appointed, first as
an office
manager to the mayor (second respondent) and to the speaker (sixth
respondent) and thereafter as acting municipal manager.
This
decision had been taken at a meeting of the executive committee of
first respondent on 4 October 2006 and thereafter at
a meeting of
the first respondent on 30 October 2006. These decisions were set
aside on review by a judgment of this Court (per
Olivier J,
Mokgholoa AJ concurring) under case number 1293/2006. The
ratio
decidendi
of
the judgment setting aside the aforementioned decision is that the
executive committee had no authority in law to appoint an
acting
municipal manager and secondly that the Council was not empowered in
law to ratify an invalid act, namely the “appointment”
of the third respondent by the executive committee which had no
authority to do so.
From
the aforegoing exposition of the facts it is plain that the
decisions of the first respondent
(and
here I am referring to its council and its executive committee) had
been set aside on the basis that there was no authority
in law to
take the decisions which it did. As I have already alluded to, a
further decision of 27 September 2007 regarding the
same matter was
also invalid (and that much is common cause between the parties) by
virtue of the fact that the meeting was inquorate.
This pattern of
invalid administrative actions is quite troubling and I will revert
to same later herein.
The
decision taken on 6 November 2007 has to be seen in the context that
the first respondent had (correctly so) viewed its earlier
decision
taken on 27 September 2007 as being invalid by reason of the
absence
of a quorum at that meeting. A decision in the exact same terms was
then taken again on 6 November 2007 so as to remedy
the
aforementioned defect. It bears repetition herein that the effect
of the decision of 6 November 2007 is that an appeal be
lodged
against the judgment of Olivier J and Mokgholoa AJ, that the
first respondent bears the cost of that appeal and that
the third
respondent be appointed as acting municipal manager with
retrospective effect from 1 October 2006 until such time as
a
permanent fulltime appointment is made.
The
applicant
primarily
attacks the aforementioned decision of the first respondent on two
bases, namely:
That
the provisions
of
clause 42(1) of the Regulations governing the first respondent’s
meeting procedures were not complied with; and
That
the provisions of s30(5) of the Local Government: Municipal
Structures Act, No 117/1998 (“
the
Structures Act”
)
had to be complied with.
I
shall
discuss these two grounds of attack separately. Before doing so,
however, it is necessary to consider first an aspect raised
by the
respondents which, if they are correct in their contentions, would
render these two grounds of attack academic.
D. EFFECTIVENESS OF
THE REVIEW ORDER SOUGHT BY THE APPLICANT
Mr.
Albertus
,
who appears for the respondents herein, has raised the issue of
whether an order in favour of the applicant would have any effect
in
view of a decision taken by the first respondent on 28 May 2007. On
his argument, even if the applicant should succeed in
having the
decision of 6 November 2007 reviewed and set aside by this Court, it
would be ineffective in view of the existence
of this decision taken
by the first respondent on 28 May 2007.
Mention
is made by the applicant in his replying affidavit
of
this decision of 28 May 2007 when the Council had appointed the
third respondent as the acting municipal manager. An extract
from
the minutes of that meeting is also appended to the replying
affidavit. That extract reflects the following:
“
2.4 Aanstelling
van Waarnemende Munisipale Bestuurder.
Die vergadering word
meegedeel dat Mnr. Baartman tydens die vergadering van die
Uitvoerende Komitee op 25 Mei 2007 aangestel is
as Kantoorbestuurder
in die kantoor van die Burgermeester en Speaker. Die versoek is nou
dat die aanstelling vanaf Waarnemende
Munisipale Bestuurder verskuif
word.
Besluit
deur die Spesiale Raadsvergadering van 28 Mei 2007 dat Mnr.
NA Baartman aangestel word as Waarnemende Munisipale Bestuurder
van Nama Khoi Munisipaliteit totdat die proses vir die aanstelling
van die Munisipale Bestuurder afgehandel is. Hierdie aanstelling
is
onderworpe daaraan dat Mnr. Baartman nie daarop kan aandring dat hy
in die pos van Munisipale Bestuurder aangestel moet word
omdat hy vir
6 maande of langer waargeneem het in die pos. Hy word aangestel op
posvlak 1 kerf 2.”
According
to the said minutes the applicant had seconded this motion which the
second res
pondent
in her capacity as mayor had introduced. The extract of the verbatim
minutes is of some importance and I quote it in full
below. Firstly
the mayor, the second respondent herein, introduces the resolution as
follows:
“
Wat ek na die Raad toe bring is
ons aanbeveling dat hy voortgaan om waar te neem as die Munisipale
Bestuurder. Dit is al wat ons
na die Raad toe bring. Dankie
Speaker.”
I must
explain that the “hy” refer
red
to in the aforementioned extract is the third respondent, Mr.
Baartman. The minutes reflect that the speaker then responds
as
follows:
“
Baie dankie Burgermeester. Wat
die Burgermeester dus vra is ‘n voorstel van die Raadslede se
kant om – as ek dit reg
had, Mnr. Baartman aan te stel as
Waarnemende – dis ‘n aanbeveling – of as
Waarnemende Munisipale Bestuurder
totdat die proses afgehandel is van
die aanstelling vir ‘n Munisipale Bestuurder. Raadslid John
stel dit voor. Enige sekondant?.”
The
applicant
is
then recorded by the minutes to state as follows:
“
Voorsitter, ek wil dit
sekondeer met ‘n duidelikheidstelling. Die
waarnemings-gedeelte gekondoneer word en dat hy aangaan
totdat die
proses voltooi soos wat u nou gesê het, maar met geen
toekomstige eis om te sê ek het aanmekaar diens gehad
–
langer as ses maande en nou is ek reeds (onhoorbaar) en ek het weer
gaan kyk na die notule wat ons gekry het wat ons gelees
het en
geteruggerapporteer het dat dit in orde is.”
Mr.
Albertus’ argument is that, by virtue of the applicant
seconding the aforementioned resolution, even if the decision
of 6
November 2007 is set aside, this decision of 28 May 2007 had been
reached by
consensus,
including that of the applicant, has never been assailed, nor is it
the subject of the attack in the review application
now before us.
I am in agreement with
Mr. Coetzee that this argument has no merit whatsoever.
Firstly,
it must be understood that in the context of the events, the third
respondent had been appointed as office manager
of the Speaker and
the Mayor on 25 May 2007. At the time of this particular meeting,
i.e. 28 May 2007, the decision taken
on 6
October
2006 and 30 October 2006 appointing the third respondent as acting
municipal manager was the subject of the dispute
between the very
same parties in this matter now before us, namely as a review
application under case number 1293/2006, referred
to earlier
herein, to have the said decision set aside. That eventually
culminated in the judgment by Olivier J and Mokgholoa AJ
granting the relief sought on review. There was, therefore, in the
minds of all concerned an existing decision of October
2006
appointing the third respondent as acting municipal manager. The
applicant had taken the view at that stage that such
decision was
reviewable and had therefore launched his application under case
number 1293/2006. The respondents on the other
hand, took the
contrary view that the October 2006 decision was valid and binding
and they consequently fiercely resisted the
relief sought under
case number 1293/2006.
Given
the aforementioned facts, there would be no reason whatsoever for
the
Council to take a new decision regarding the very same topic,
namely the appointment of an acting municipal manager. In
the same
vein, there would be no reason whatsoever for the applicant to
retract his earlier stance, namely that the decision
of October
2006 was reviewable. It is utterly illogical that the applicant
would all of a sudden during May 2007 support a
new resolution for
the appointment of third respondent as acting municipal manager.
The probabilities therefore overwhelmingly
indicate that at the
meeting of May 2007 the Council did not intend, as I hereby hold,
to take a new resolution to have the
third respondent appointed as
acting municipal manager.
What
must also be borne in mind further is the fact that originally the
aforementioned appointment had been made in October 2006
on a month
to month basis. In my view, the object of the meeting in May 2007
was to provide a firmer
basis
for appointment of the third respondent in an acting capacity,
namely until a permanent appointment is made. Furthermore,
as Mr.
Coetzee has correctly submitted, from the applicant’s
perspective the emphasis during this meeting was placed on
the fact
that no legitimate expectation should be raised with the third
respondent that he would be entitled to a permanent appointment
in
the post, for having acting therein for a lengthy period of time.
Put differently, from the applicant’s perspective
(and the
minutes reflect this), what he was supporting was not a new
resolution appointing the third respondent as acting municipal
manager, but a firmer basis for his acting stint with regard to
period of time and also that a caveat be placed on record that
the
third respondent should not expect to be permanently appointed in
the position only by virtue of the fact that he had acted
in the
position for a lengthy period of time. Consequently Mr. Albertus’
reliance on this particular “resolution”
is misconceived
in my view.
I now turn to a
discussion of the two bases of atttack against the decision of
6 November 2007.
E. ALLEGED
NON-COMPLIANCE WITH THE PROVISIONS CONTAINED IN SECTION 30(5) OF THE
STRUCTURES ACT
Section 30(5) of the
Structures Act provides as follows:
“
(5) Before a
Municipal Council takes a decision on any one of the following
matters it must first require its executive committee
or executive
mayor, if
it
has such a committee or mayor, to submit to it a report and
recommendation on the matter:
a) Any
matter mentioned in section 160(2) of the Constitution;
b) The
approval of an integrated development plan for the Municipality, and
any amendmend to that plan;
c) The appointment and conditions of
service of the Municipal Manager and the Head of the Department of
the Municipality.”
From
the aforegoing it is plain that the issue
to
be decided by us is the alleged non-compliance of the provisions
contained in s30(5)(c) as quoted above.
In conjunction with this
particular provision should be read the provisions of s82 of the same
Act, which provides as follows:
“
(82) Appointment.
(1) A
municipal council must appoint -
a) A municipal manager as the
head of administration and also the accounting officer for the
municipality;
b) When necessary an acting municipal
manager.
(2) A person appointed as municipal manager
must have the relevant skills and expertise to perform the duties
associated
with that post.”
It is
the
applicant’s contention that the minutes of the meeting of
6 November 2007 reflects that there was no report or
recommendation from the executive committee or executive mayor
before the first respondent when the decision was taken to appoint
the third respondent as the acting municipal manager. It is in fact
common cause between the parties that this is indeed the
case. Mr.
Albertus has met this contention with the submission that s30(5) of
the Structures Act does not deal with the appointment
of an acting
municipal manager at all. He submits that on a proper
interpretation of this subsection, read with the provision
contained
in s82, there can be little doubt that the intention of the
Legislature was to exclude from the operation of s30(5)
the
appointment of an acting municipal manager. Mr. Coetzee, on the
other hand, has submitted that a construction of the statutory
provisions as contended by Mr. Albertus, could lead to absurd
results in practice, something which the Legislature is presumed
not
to have intended.
17.1
Recently,
the SCA cited with approval the following dictum of Wessels AJA
in
Stellenbosch
Farmers’ Winery Ltd v Distillers Corporation (SA) Ltd &
another 1962(1) SA458(A)
at
476 E-G in respect of the proper approach to be followed when
considering a statutory provision:
“
'In my opinion it is the duty
of the Court to read the section of the Act which requires
interpretation sensibly, ie with due regard,
on the one hand, to the
meaning or meanings which permitted grammatical usage assigns to the
words used in the section in question
and, on the other hand, to the
contextual scene, which involves consideration of the language of the
rest of the statute, as well
as the
‘
matter
of the statute, its apparent scope and purpose, and within limits,
its background’.
In the ultimate result the Court
strikes a proper balance between these various considerations and
thereby ascertains the will of
the Legislature and states its legal
effect with reference to the facts of the particular case which is
before it.”
See:
Desert
Palace Hotel Resort v Northern Cape Gambling Board 2007(3) SA 187
(SCA)
at par 8 (190 E-G).
See
also:
Feldman
v Midgin NO 2006(6) SA 12 (SCA)
at par. 16 (17 D-F).
17.2 The
so called “golden rule” of literal interpretation of a
statute was authoritatively laid down by Innes J in
Venter
v R
1907 TS 910
at 914-915 and has been confirmed many times subsequently; see
inter
alia
Van
Heerden v Joubert 1994(4) SA 793 (A)
at 795 E-G;
Manyasha
v Minister of Law & Order
[1998] ZASCA 112
;
1999
(2)
SA 179
(SCA)
at
186 B-C.
17.3 An
application of the aforementioned principles to the present matter
leads to the inescapable conclusion that, as Mr Albertus
has
contended, the statutory provision does not include the appointment
of an
acting
municipal
manager. But is there merit in the contention by Mr. Coetzee that
this can lead to absurd results in practice? I think
not.
17.4 In
Venter
v R,
supra,
Innes J stated (at 914-915) that:
“
(W)hen to give the plain words
of the statute their ordinary meaning would lead to absurdity so
glaring that it could never have
been contemplated by the
Legislature, or where it would lead to a result contrary to the
intention of the Legislature, as shown
by the context or by such
other considerations as the Court is justified in taking into account
…..”
See
further the dictum of Scott JA in
Hanekom
v Builders Market Klerksdorp (Pty) Ltd and others 2007(3) SA 95 (SCA)
at
98 H-I:
“
Over the years courts have
repeatedly warned of the dangers of departing too readily from the
ordinary meaning of the words of the
statute and have stressed that
the absurdity must be 'utterly glaring' or the true intention quite
clear and not merely a matter
of surmise or probability. On the
other hand, as accepted in Venter v Rex, ambiguity in the provision
in question is not a requirement
for departure from its literal
meaning. It has also been accepted that to avoid the absurdity or
give effect to the true intention
of the Legislature, it is
permissible not only to cut down or restrict the language used but
also to expand it. See, for example,
the comments of Corbett J in S v
Burger
1963 (4) SA 304
(C) at 308A - 309B (cited with approval by
Friedman J in De Villiers v Kinsale Properties Share Block Ltd
1986
(2) SA 592
(D) at 594G - 595E).”
17.4 In
the present matter the absurdity contended for has not been outlined.
No examples of such absurdities have been advanced,
save that an
acting appointment may be effected for such lengthy periods that it
may in effect become a
de
facto
permanent
appointment. But that is not the case here. No such averments are
to be found in the applicant’s papers, nor am
I convinced that
there are grounds for such a belief.
17.5 I am therefore
satisfied that s30(5) does not apply to the appointment of an acting
municipal manager and that such an interpretation
would not lead to
absurd results.
F. ALLEGED
NON-COMPLIANCE WITH CLAUSE 42(1)
Only
the Afrikaans
version of the regulations governing the first respondent’s
meeting procedures had been placed before us. Clause 42(1)
thereof
reads as follows:
“
42. MANIER VAN STEM
(1) Elke
geopponeerde mosie of voorstel sal deur die Voorsitter by die Raad
ingedien word, wat die lede sal vra om deur middel van
die opsteek
van hande, behalwe waar die Raad anders besluit, te wys of hulle
daarvoor of daarteen is. Hy/sy sal daarvolgens die
uitslag van die
stem verklaar.”
The
applicant’s case is that there had been no show of hands when
the decision of 6 November 2007 had been taken. Instead,
the
applicant and certain
councillors
had voiced their opposition to the resolution and requested the
speaker (the sixth respondent) to note their said opposition.
Thereafter the speaker simply assumed that the other councillors were
in favour of the resolution and noted the decision of the
Council.
It is important to repeat the minutes in this regard
verbatim
.
It reads as follows:
“
Raadslede
KR Groenewald, SJ Engelbrecht, HP Cloete, RC Rainers
van die Onafhanklike Demokrate, asook Raadslid
LL Vries versoek
dat hulle teenstem teen die voorstel van Raadslede Simboyia/De Jongh,
genotuleer word. Die besluit van Raadsvergadering
van 6 November
2007 is dus
(1) dat die besluit wat nou geneem word
terugwerkend is tot en met 27 September 2007;
(2) dat Nama
Khoi Munisipaliteit appél aanteken teen die uitspraak van die
hofsaak tussen SWB Lubbe v Nama Khoi
Munisipaliteit;
(3) dat
die regskostes ten opsigte van die hofsaak betaalbaar is deur Nama
Khoi Munisipaliteit;
(4) dat Mnr. NA Baartman
terugwerkend vanaf 1 Oktober 2006 aangestel word as waarnemende
munisipale bestuurder totdat
Nama Khoi Munisipaliteit ‘n
permanente munisipale bestuurder op ‘n vyfjaar kontrak basis
aanstel.”
The
respondents
have not in their answering affidavits controverted the averment
that no show of hands had occurred. This aspect
is therefore common
cause. Mr. Coetzee, on behalf of the applicant, has submitted that
in view of this common cause fact, no
proper decision had been
taken, since the peremptory stipulations of clause 42 above had not
been complied with. Mr. Albertus
on the other hand, has submitted
that since clause 42(1) makes provision therefor that the Council
may deviate from the procedure
of the showing of hands, a proper
decision had in fact been taken.
In my
view the proviso in regulation 42(1) above (“
behalwe
waar die raad anders besluit”
)
envisages situations where the Council may take the view that voting
by secret ballot would be more apposite in the circumstances
of a
particular agenda item. The ultimate effect of this particular
regulation is that a decision must be taken through a vote,
which
must be recorded. This entails the making of a choice, whether by
show of hands or by secret ballot, by all councillors
for or against
a particular resolution. It is inconceivable, in my view, that a
situation can arise where assumptions are made
that all those who
have not requested that their vote against a particular resolution
be noted,
a
fortiori
vote in favour of the resolution.
Moreover,
and related to my aforementioned view, is the fact that the approach
advocated by Mr. Albertus, does not make provision
for a situation
where a
councillor/s
may choose to abstain from voting for or against a particular
resolution. In all the circumstances I am of the view
that Mr.
Coetzee is correct that there has not been compliance with this
particular regulation.
Mr.
Albertus has referred to the provisions contained
in regulation 42(2) which make provision that an objection may be
raised by a councillor and that a division of votes may be
declared.
He has pointed out in his argument that not a single councillor had
raised an objection in terms of this regulation.
I am of the view
that this does not assist the respondents at all. Where the
procedure had not been correctly followed, it
constitutes an
irregularity and the question that arises next is what the effect
thereof is.
Regulation
42(1)
supra
is couched in peremptory
terms
as is illustrated by the use of the word “
sal
”.
These regulations were issued in accordance with s156(2) of the
Constitution, Act 108 of 1996, which reads as follows:
“
(2) A municipality may make and
administer by-laws for the effective administration of the matters it
has the right to administer.”
Section
14 of the
Systems
Act makes provision for the manner of publication of such by-laws.
In my view, therefore, these regulations have statutory
force in the
form of subordinate or delegated legislation. Local government
institutions are therefore bound by them and can exercise
powers only
insofar as it is permitted by such subordinate legislation (it goes
without saying that applicable subordinate or delegated
legislation
will prevail only in the absence of applicable supreme or original
legislation). This doctrine of legality is firmly
entrenched in our
law; See inter alia:
Fedsure Life Assurance
Ltd and others v Greater Johannesburg Transitional Metropolitan
Council and others 1999(1) SA374 (CC);
President of the
Republic of South Africa and others v SARFU and others 1999(2) SA14
(CC);
Pharmaceutical
Manufacturers of South Africa: in re Ex Parte President of the RSA
2000(2) SA675 (CC)
at
687 B-H.
In the
Fedsure case
supra
,
the Constitutional Court held as follows:
“
It seems
central to the concession of our Constitutional order that the
legislature and executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this
sense then
the principle of legality is implied within the terms of the interim
constitution.”
- at par58.
Quite
clearly delegated legislation must pass constitutional muster and
must meet the we
ll
established common law tests for validity such as:
Competence of
delegation;
Delegated legislation
may not conflict with original legislation;
The requirement of
administrative lawfulness must be met;
Delegated
legislation must not be
ultra
vires
;
There is a prohibition
on the vagueness of delegated legislation;
The common law
prohibitions on the unreasonableness, unfairness and discriminatory
operation of delegated legislation are now
encapsulated by the
investing thereof with constitutional supremacy.
See in
this regard, generally: Joubert (ed),
Law
of South Africa
,
1
st
reissue, Vol. 25 (Part 1) and cases cited there.
In the present matter
there is no attack at all on the validity of the
delegated/subordinate legislation in question here.
Consequently and for the
reasons aforementioned, I am of the view that the first respondent’s
failure to comply with peremptory
subordinate legislative
provisions, renders its decision reviewable.
G. CONCLUSION
The
decision of 6 November 2007 should, for the
aforegoing
reasons, be set aside.
Costs
should follow the outcome and I include the reserved costs of 30
November 2007 and 14 March 2008. The respondents who have
opposed
this matter and who are councillors of the first respondent (i.e.
2
nd
,
5
th
,
6
th
,
7
th
,
8
th
,
9
th
and 10
th
respondents) are somewhat fortunate to escape not being mulcted in
costs
de
boniis propriis
herein.
The consistent pattern of unlawful administrative action, largely
due to their conduct, is extremely troubling. It may
conceivably
stifle service delivery to the citizens of Springbok and surrounding
areas. This sort of persistent conduct borders
on malfeasance and,
if continued, may well culminate in costs orders against individual
councillors in their personal capacities.
Such continued conduct is
to be deprecated in the strongest terms.
The following order is
issued:
The
first respondent’s decision of 6 November 2007 where it was
decided,
inter
alia
,
that first respondent lodges an appeal against the judgment of
Olivier J et Mokgholoa AJ in case number 1293/2006,
that
all costs in the said matter be for the account of first respondent
and that the third respondent is appointed as acting
municipal
manager of the first respondent retrospectively from 1 October
2006, is hereby set aside.
The first respondent is
ordered to pay the costs of this application.
___________
__
SA MAJIEDT
JUDGE
I CONCUR.
______________
CC WILLIAMS
JUDGE
FOR
THE
APPLICANT : ADV
W COETZEE
instructed by ENGELSMAN MAGABANE INC
FOR
THE
RESPONDENTS : ADV
MA ALBERTUS SC
instructed by TOWELL & GROENEWALD ATTORNEYS
DATE
OF HEARING : 2008-03-31
DATE
OF JUDGEMENT :
2008-04-18