Tsotetsi v Mohapi and Another, Mohapi v Motho District Municipality and Another (3444/2004, 3446/2004) [2004] ZAFSHC 130 (11 November 2004)

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[2004] ZAFSHC 130
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Tsotetsi v Mohapi and Another, Mohapi v Motho District Municipality and Another (3444/2004, 3446/2004) [2004] ZAFSHC 130 (11 November 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case Nr: 3444/2004
In
the matter between:
LEBINA
DANIëL TSOTETSI
Applicant
and
NS
MOHAPI
First Respondent
(in
her capacity as Executive Mayor of
the
Motheo District Municipality)
THE
MUNICIPAL COUNCIL OF THE
Second Respondent
MOTHEO
DISTRICT MUNICIPALITY
Case
nr: 3446/2004
In
the matter between:
NS
MOHAPI
Applicant
(in
her capacity as the Executive Mayor of
the
Motheo District Municipality)
and
­
MOTHEO
DISTRICT MUNICIPALITY
First Respondent
LEBINA
DANIEL TSOTETSI
Second
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE J
JUDGMENT:
VAN
DER MERWE J
HEARD
ON:
28
OCTOBER 2004
DELIVERED
ON:
11
NOVEMBER 2004
[1] This judgment deals
with the abovementioned two applications, i.e. application no.
3444/2004 and 3446/2004. By agreement between
the relevant parties
the abovementioned two applications were heard simultaneously on
the basis that subject to the applicable
onus
,
the evidence in the one application may be referred to in respect of
the other.
[2] In application no.
3444/2004 the applicant is Mr. Lebina Daniël Tsotetsi. The first
respondent cited in that application is
Ms. Nontsokolo Selina Mohapi
in her official capacity as executive mayor of the Motheo District
Municipality. The municipal council
of the Motheo District
Municipality is the second respondent in that application. In
application no. 3446/2004 the applicant
is the said Ms. Mohapi in
her capacity as executive mayor of Motheo District Municipality.
The first respondent in that application
is the Motheo District
Municipality and the second respondent in that application is the
aforesaid Mr. Lebina Daniël Tsotetsi.
Neither the Motheo District
Municiaplity nor its municipal council opposed any of the
abovementioned applications. Therefore
also, there was no
appearance on behalf of the municipal council at the hearing. For
the sake of convenience I will in this judgment
refer to the
aforesaid Mr. Lebina Daniël Tsotetsi merely as Mr. Tsotetsi and to
the aforesaid Ms. Nontsokolo Selina Mohapi
in her official
capacity as executive mayor of Motheo District Municipality, as
Ms. Mohapi.
[3] It is in my view
convenient and proper to deal firstly with application no. 3444/2004
and thereafter with application no. 3446/2004.
Application no:
3444/2004
[4] In this application
Mr. Tsotetsi essentially claimed an order in terms of which his
suspension by Ms. Mohapi on 4 October 2004
is rescinded with
immediate effect, that disciplinary proceedings instituted by Ms.
Mohapi against Mr. Tsotetsi is declared null
and void, Ms. Mohapi is
ordered to terminate those proceedings with immediate effect and
Ms. Mohapi is prevented from interfering
with the carrying out of
the official duties of Mr. Tsotetsi. Also Mr. Tsotetsi asked that
Ms. Mohapi in her personal capacity
be ordered to pay the costs of
this application on attorney and own client scale.
[5] It is common cause
between the parties that Mr. Tsotetsi was employed by the Motheo
District Municipality in the capacity of
Strategic Executive
Director: Corporate Services. It is furthermore undisputed that
the municipal council of Motheo District
Municipality during a
meeting held on 10 September 2004, appointed Mr. Tsotetsi as acting
municipal manager. It was accepted by
both parties that the
position of Strategic Executive Director: Corporate Services is
that of a manager of Motheo District Municipality
directly
accountable to the municipal manager as referred to in section 56 of
the Local Government: Municipal Systems Act, No.
32 of 2000 (“the
Systems Act”).
[6] It is furthermore
common cause that Ms. Mohapi in her aforesaid capacity instituted
disciplinary proceedings against Mr. Tsotetsi
and that by letter
dated 4 October 2004 signed by Ms. Mohapi, Mr. Tsotetsi was
suspended with immediate effect pending the aforesaid
disciplinary
procedures. This letter was directed to Mr. Tsotetsi as Strategic
Executive Director: Corporate Services and included
the following as
conditions of suspension:
“
4. You
will not be allowed to remove anything from your office, except for
your personal belongings;
5. You will not be allowed to enter
any premises of the Municipality
or your office during the period of
suspension;
You will be prohibited to seek any
information from members of staff or councillors of the
Municipality;
You will furthermore be prohibited to
make any official contact with either staff members or councillors
of the Municipality.”
[7] In her answering
affidavit in this application, dated 19 October 2004, Ms. Mohapi
declared that Mr. Tsotetsi was suspended by
means of the
aforementioned letter only in his capacity as Strategic Executive
Director: Corporate Services and therefore, by necessary
implication, not in the capacity of acting municipal manager. This,
according to the affidavit of Ms. Mohapi was evident from
the letter
of suspension and it is obvious, she added, that Mr. Tsotetsi:
“has
misconceived the capacity in which he was suspended.”
[8] The declaration under
oath that Mr. Tsotetsi was thus only suspended in the capacity of
Strategic Executive Director: Corporate
Services and not as acting
municipal manager, is so clearly untenable that it cannot be
accepted. It will in the first place be
remembered that the
conditions of suspension mentioned in the letter of 4 October 2004
included that Mr. Tsotetsi was prohibited
from entering onto any
premises of Motheo District Municipality and even from making any
official contact with any staff members
or councillors of the
Motheo District Municipality. This is quite incompatible with the
stance that after Mr. Tsotetsi was suspended
per the letter of 4
October 2004, he remained the acting municipal manager. In
application No. 3446/04 Ms. Mohapi in the first
place sought an
order prohibiting Mr. Tsotetsi from participating directly or
indirectly in any way whatsoever in the affairs and
administration
of Motheo District Municipality pending the final adjudication of
the disciplinary enquiry instituted against Mr.
Tsotetsi. In the
second place, in that application, Miss. Mohapi sought an order
preventing the taking place of a meeting of the
municipal council of
Motheo District Council called by Mr. Tsotetsi on 6 October 2004 to
take place on 8 October 2004. This meeting
was called for the
purpose of dealing with a motion for the removal of Ms. Mohapi as
executive mayor of Motheo District Municipality
as well as a motion
for removal of the speaker of this municipality. In her founding
affidavit in that application, dated 8 October
2004, Ms. Mohapi
stated as the very basis of her case in respect of the meeting of 8
October 2004, that because of his suspension,
Mr. Tsotetsi was not
empowered to convene the meeting in the capacity of acting municipal
manager nor was he empowered to chair
the meeting or any part
thereof. Finally, in a letter written by Miss. Mohapi herself and
attached to her founding affidavit,
the following is stated:
“26. It
merits mention to state that Motheo Municipality currently does
not have a Municipal Manager and/or an Acting Municipal
Manager,
since I have already suspended the acting Municipal Manager, Mr.
L D Tsotetsi as a result of the charges already
mentioned
hereinabove. A disciplinary hearing is scheduled for the 18
th
of October 2004. This process is on course and will be finalized
expeditiously. Consequently there is no Municipal Manager
in the
institution to proceed on the mooted motions. I submit that these
motions cannot be carried out for the reasons already
stated.
27. Despite the fact that I have
suspended the acting Municipal Manager, my office was served with
a letter from the now
suspended Acting Municipal Manager who
still refuses to abide with the conditions of suspension, that
a meeting will be held
on the 8
th
October 2004 at 10h00 which will deal with our removal and that
me and the Speaker should attend.”
This letter was sent to
various recipients on 7 October 2004.
The
conduct of Ms. Mohapi of making a patently false statement under
oath, obviously in an attempt to gain an advantage that turned
out
to be futile, is highly deplorable. However, the issue in question
must be decided on the true facts, namely that Mr. Tsotetsi
had been
suspended on 4 October 2004 in the capacity of acting municipal
manager and of Strategic Executor Director: Corporate
Services.
This was conceded by counsel for Ms. Mohapi.
[9] The
case for Mr. Tsotetsi in this application is that Ms. Mohapi as
executive mayor had no power to institute disciplinary proceedings
against him or to suspend him in any of the aforementioned
capacities. Therefore, so it was argued, the suspension of Mr.
Tsotetsi
and the disciplinary proceedings must be set aside.
[10] I am convinced that
Ms. Mohapi, as executive mayor, had no power to suspend Mr. Tsotetsi
either in the capacity of acting municipal
manager or of Strategic
Executive Director: Corporate Services or to institute disciplinary
proceedings against Mr. Tsotetsi.
The functions and powers of
executive mayors are listed in section 56 of the Local Government:
Municipal Structures Act No. 117/1998
(“the Structures Act”).
These functions and powers include, according to section 56(3)(f) of
the Structures Act, such duties
and powers as the relevant
municipal council may delegate to the executive mayor in terms of
section 59 of the Systems Act. In
terms of section 59(2)(b) of the
Systems Act, such delegation by a municipal council must be in
writing. It is common cause
that the municipal council of the
Motheo District Municipality did not delegate any such duties and
powers to its executive mayor.
Apart from any delegated powers or
the performance of a ceremonial role determined by a municipal
council, in my judgment, the
powers and functions of executive
mayors in terms of section 56 of the Structures Act are to give
direction to the municipal council
by policy formulation, to monitor
and oversee the performance of the municipality and to report to the
municipal council. See
in this regard
DEMOCRATIC
ALLIANCE
AND ANOTHER v MASONDO N.O. AND
ANOTHER
[2002] ZACC 28
;
2003 (2) SA 413
(CC)
at 424 para [32]. These powers and functions of an executive mayor
do not include the power to institute disciplinary proceedings
against officials or employees of a municipality or to suspend any
such official or employee. Moreover, in terms of section 82
of the
Structures Act, a municipal council must appoint a municipal manager
who is the head of administration and also the accounting
officer of
the municipality and must when necessary, appoint an acting
municipal manager. Similarly a manager directly accountable
to the
municipal manager is appointed in terms of section 56 of the Systems
Act by a municipal council after consultation with
the municipal
manager. In my judgment, in the absence of any contrary provision,
a municipal manager, acting municipal manager
or manager of
accountable to the municipal manager, may, by necessary implication,
only be suspended or removed from office by
the municipal council or
person(s) to whom the municipal council has properly delegated these
powers.
[11] The principle of
legality of our law provides that a public body and public official
may exercise no power and perform no function
beyond that conferred
upon them by law. The exercise of public power is only legitimate
where lawful. See
FEDSURE
LIFE ASSURANCE LTD AND OTHERS v
GREATER
JOHANNESBURG TRANSITIONAL
METROPOLITAN
COUNCIL AND OTHERS
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
at 399 - 400.
[12] It follows that the
suspension of Mr. Tsotetsi by Ms. Mohapi must be set aside. Counsel
for Mr. Tsotetsi accepted that in
the event of a dismissal of
Application No. 3446/04 the further substantial relief claimed in
the Application No. 3444/04 should
not be granted. Although there
are strong indications that Ms. Mohapi suspended Mr. Tsotetsi in
order to attempt to prevent her
removal as executive mayor on 8
October 2004, a factual finding to that effect cannot be made on
the papers. In the absence of
a finding of
mala
fide
conduct
on the part of Ms. Mohapi, I am not prepared to order her to pay
costs in personal capacity or on a higher scale than party
and party
costs.
APPLICATION NO.
3446/2004
[13] In view of the
conclusion that I have reached in this application, I do not
consider it necessary to provide a detailed exposition
of the
factual background thereof. Suffice it for present purposes to say
that on 6 October 2004 Mr. Tsotetsi, acting as acting
municipal
manager, gave notice that a special council meeting of the municipal
council of Motheo District Municipality will be
held on Friday 8
October at 10h00 in the council’s chamber, Bloemfontein. The
purpose of the meeting was to consider motions
for removal by the
municipal council of Ms. Mohapi as executive mayor and also for
the removal of the speaker of the municipal
council of the Motheo
District Municipality. On the morning of 8 October 2004 Ms. Mohapi
brought the present application on
an urgent basis. In the notice
of motion essentially a
rule
nisi
was sought calling upon the respondents in this application to show
cause firstly, why Mr. Tsotetsi should not be ordered not
to
participate directly or Indirectly in any affairs and administration
of Motheo District Municipality pending the final adjudication
of
the disciplinary enquiry instituted against him and secondly, why
the taking place of the meeting of the municipal council of
the
Motheo District Municipality scheduled for 8 October 2004 at 10h00
should not be prevented from taking place, on the basis
that the
meeting had not been properly convened. In terms of the notice of
motion, it was asked that an interim interdict with
immediate effect
be issued in accordance with the above.
[14] However, counsel for
Ms. Mohapi and Mr. Tsotetsi only appeared in the Judge’s chambers
in connection with this application
at approximately 10h25 on 8
October 2004, i.e. after the meeting had already commenced.
Conseqently the matter was postponed
by agreement between counsel
for Ms. Mohapi and Mr. Tsotetsi. Answering affidavits and replying
affidavits have since been filed.
It is common cause that the
municipal council of the Motheo District Municipality on 8 October
2004 unanimously resolved to remove
Ms. Mohapi as executive mayor
and also to remove its speaker.
[15] At the hearing
counsel were agreed that it would serve no useful purpose to issue a
rule
nisi
in
respect of the application. Counsel were also agreed that the
application should be determined on the basis that the the following
final orders plus costs are claimed, namely an order interdicting
Mr. Tsotetsi from participating directly or indirectly in any
way
whatsoever in the affairs and administration of Motheo District
Municiaplity pending the final adjudication of the disciplinary
inquiry instituted against Mr. Tsotetsi and an order in the
following terms:
“Declaring
the meeting called by the Second Respondent as scheduled for
Friday, the 8
th
of OCTOBER 2004 at 10:00 in the Council’s Chambers, Freepan
Building, Bloemfontein to have no force and effect.”
[16] In the light thereof
that the suspension of Mr. Tsotetsi must be set aside with immediate
effect, he cannot be prohibited from
participating in the affairs
and administration of Motheo District Municipality and therefore the
first aforesaid order must
be refused.
[17] It is clear that the
second order now claimed, is a declaratory order. The applicant
seeks an order declaring the meeting
as such to have no force and
effect, without attacking or dealing with the resolutions taken at
that meeting. In terms of section
19(1)(a)(iii) of the Supreme
Court Act, no. 59 of 1959, I have a discretion to make such order.
In my view however, there are
weighty reasons for exercising my
discretion against Ms. Mohapi and for refusing to make the
declaratory order sought. As stated
above, the municipal council of
Motheo District Municipality at a meeting of 8 October 2004 resolved
to remove Ms. Mohapi as executive
mayor and also resolved to remove
its speaker at the time. Even if these resolutions may have been
flawed in some manner, they
stand and are of force until set aside
by a competent court. See in this regard
OUDEKRAAL
ESTATES
(PTY) LTD v CITY OF CAPE TOWN AND
OTHERS
2004 [3] ALL SA 1 (SCA)
.
No application to review and set aside any of these resolutions,
serves before me. There is a real prospect that such proceedings
may be instituted in future. The question whether the meeting of 8
October 2004 had been improperly convened on any of the grounds
mentioned in this application, may be an important issue in such
proceedings. In these circumstances a declaratory order with
the
effect that the meeting of 8 October 2004 has no force or effect as
is claimed, will pre- empt such proceedings. What is more,
such
pre-emption of proceedings will take place in the absence of
interested parties, such as the speaker that had been removed
as
well as people that may since have been appointed as executive
mayor and speaker respectively in the place of those removed
on 8
October 2004.
[18] It follows that this
application must be dismissed with costs, including costs that stood
over for later determination.
[19] In the result, I
make the following orders:
APPLICATION
NO: 3444/2004
Prayer 1 of the Notice
of Motion is granted, with costs
APPLICATION
NO: 3446/2004
The application is
dismissed with costs, including the costs that stood over.
________________________
C.H.G
VAN DER MERWE, J
CASE
NO: 3444/2004:
On
behalf of Applicant: Advocate J.P. Daffue
Instructed
by
Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of Respondents: Advocate W.J. Edeling
Instructed
by
Bokwa
Attorneys
BLOEMFONTEIN
CASE
NO: 3446/2004
On
behalf of Applicant: Advocate W.J. Edeling
Instructed
by
Bokwa
Attorneys
BLOEMFONTEIN
On
behalf of Respondents: Advocate J.P. Daffue
Instructed
by
Lovius
Block Attorneys
BLOEMFONTEIN
/ECoetzee