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
>>
2024
>>
[2024] ZANCHC 6
|
|
Democratic Alliance and Others v Municipal Manager of the Gamagara Local Municipality and Others (1492/2023; 1793/2023) [2024] ZANCHC 6 (26 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE
NUMBER:
1492/2023
In
the application of:
DEMOCRATIC
ALLIANCE
1
ST
APPLICANT
HENRIETTE
DU
PLESSIS
2
ND
APPLICANT
SHEPHERD
MINES
3
RD
APPLICANT
and
MUNICIPAL
MANAGER OF THE GAMAGARA
1
ST
RESPONDENT
LOCAL
MUNICIPALITY
LEBOGANG
SEETILE
2
ND
RESPONDENT
JOHANNES
ROMAN
3
RD
RESPONDENT
GOITSEONE
SEKGOPI
4
TH
RESPONDENT
STEPHEN
MAGAGANE
5
TH
RESPONDENT
OPHAKETSE
HANTISE
6
TH
RESPONDENT
KELONEILWE
DITHUPE
7
TH
RESPONDENT
MOLUSI
JAFTA
8
TH
RESPONDENT
MICHAEL
MOTSOARE
9
TH
RESPONDENT
ERNEST
TIROYAME
10
TH
RESPONDENT
COUNCIL
OF THE GAMAGARA LOCAL MUNICIPALITY
11
TH
RESPONDENT
GAMAGARA
LOCAL MUNICIPALITY
12
TH
RESPONDENT
NORTHERN
CAPE MEC FOR CO-OPERATIVE GOVERNANCE, 13
TH
RESPONDENT
HUMAN
SETTLEMENT AND TRADITIONAL AFFAIRS
AND
:
In
the Counter-Application of:
JOHANNES
ROMAN
1
ST
APPLICANT
GOITSEONE
SEKGOPI
2
ND
APPLICANT
STEPHEN
MAGAGANE
3
RD
APPLICANT
OPHAKETSE
HANTISE
4
TH
APPLICANT
KELONEILWE
DITHUPE
5
TH
APPLICANT
MOLUSI
JAFTA
6
TH
APPLICANT
MICHAEL
MOTSOARE
7
TH
APPLICANT
ERNEST
TIROYAME
8
TH
APPLICANT
and
DEMOCRATIC
ALLIANCE
1
ST
RESPONDENT
HENRIETTE
DU
PLESSIS
2
ND
RESPONDENT
SHEPHERD
MINES
3
RD
RESPONDENT
MUNICIPAL
MANAGER OF THE GAMAGARA
4
TH
RESPONDENT
LOCAL
MUNICIPALITY
LEBOGANG
SEETILE
5
TH
RESPONDENT
COUNCIL
OF THE GAMAGARA LOCAL MUNICIPALITY
6
TH
RESPONDENT
GAMAGARA
LOCAL MUNICIPALITY
7
TH
RESPONDENT
NORTHERN
CAPE MEC FOR CO-OPERATIVE GOVERNANCE,
8
TH
RESPONDENT
HUMAN
SETTLEMENT AND TRADITIONAL AFFAIRS
AND
:
CASE
NUMBER:
1793/2023
In
the application of:
DEMOCRATIC
ALLIANCE
1
ST
APPLICANT
HENRIETTE
DU
PLESSIS
2
ND
APPLICANT
SHEPHERD
MINES
3
RD
APPLICANT
and
MUNICIPAL
MANAGER OF THE GAMAGARA
1
ST
RESPONDENT
LOCAL
MUNICIPALITY
LEBOGANG
SEETILE
2
ND
RESPONDENT
JOHANNES
ROMAN
3
RD
RESPONDENT
GOITSEONE
SEKGOPI
4
TH
RESPONDENT
STEPHEN
MAGAGANE
5
TH
RESPONDENT
OPHAKETSE
HANTISE
6
TH
RESPONDENT
KELONEILWE
DITHUPE
7
TH
RESPONDENT
MOLUSI
JAFTA
8
TH
RESPONDENT
MICHAEL
MOTSOARE
9
TH
RESPONDENT
ERNEST
TIROYAME
10
TH
RESPONDENT
COUNCIL
OF THE GAMAGARA LOCAL MUNICIPALITY
11
TH
RESPONDENT
GAMAGARA
LOCAL MUNICIPALITY
12
TH
RESPONDENT
NORTHERN
CAPE MEC FOR CO-OPERATIVE GOVERNANCE, 13
TH
RESPONDENT
HUMAN
SETTLEMENT AND TRADITIONAL AFFAIRS
DATE
HEARD
:
2
November 2023
DATE
DELIVERED
:
26
January 2024
CORAM
:
Lever J et Olivier AJ
JUDGMENT
OLIVIER AJ
INTRODUCTION
:
1.
This Court was approached by the parties set out
above (with the exception of the 13
th
Respondent to whom I will henceforth, if and where
necessary, refer to as “
the MEC
”
)
for the determination of effectively three applications namely:
1.1
An application brought on an urgent basis under case number 1492/23
on
or about 14 August 2023 (herein after referred to as “
the
1
st
Main Application
”);
1.2
A Counter-Application brought, also on an urgent basis, under the
same
case number (1492/23) on or about 29 August 2023 (herein after
referred to as “
the Counter-Application
”); and
1.3
An application brought on an urgent basis under case number 1793/23
on
or about 20 September 2023 (herein after referred to as “
the
2
nd
Main Application
”).
I will henceforth, if and
where necessary, refer to the above three applications jointly as
“
the Applications
”.
2.
The main protagonists in the Applications are:
2.1
Ms. Henriette du Plessis who is the Second Applicant in both the 1
st
and 2
nd
Main Applications and who is also the Second
Respondent in the Counter-Application (herein after referred to as
“
Du Plessis
”);
2.2
Mr. Shepherd Mines who is the Third Applicant in both the 1
st
and 2
nd
Main Applications and the Third Respondent in the
Counter-Application (herein after referred to as “
Mines
”);
2.3
Mr. Lebogang Seetile (herein after “
Seetile
”) who
is the Second Respondent in both the 1
st
and 2
nd
Main Applications and the Fifth Respondent in the
Counter-Application;
2.4
Mr. Johannes Roman (“
Roman
”) who is the Third
Respondent in both the 1
st
and 2
nd
Main
Applications and the First Applicant in the Counter-Application;
2.5
Ms. Goitseone Sekgopi (“
Sekgopi
”) who is the
Fourth Respondent in both the 1
st
and 2
nd
Main
Applications and the Second Applicant in the
Counter-Application; and
2.6
Mr. Ophaketse Hantise (“
Hantise
”) who is the Sixth
Respondent in both the 1
st
and 2
nd
Main
Applications and the Fourth Applicant in the
Counter-Application.
It is common cause that
Seetile is the current Municipal Manager of the Gamagara Local
Municipality (herein after referred to only
as “the
Municipality”).
I will furthermore, for
purposes hereof and in an attempt to avoid confusion, refer to the
First to Third Applicants (the
First to Third Respondents in
the Counter-Application) jointly as “
the Applicants
”
and to the Third to Tenth Respondents (the First to Eighth
Applicants in the Counter-Application) as “
the Respondent
Councillors
”.
3.
It was common cause between the parties that the
legislative provisions against which this matter was to be decided,
were to be
found in:
3.1
The Constitution of the Republic of South Africa, 1996 (herein after
“
the Constitution
”);
3.2
The Local Government: Municipal Structures Act, Act 117 of 1998
(herein
after referred to as “
the Structures Act
”);
and
3.3
The Standing Rules and Orders for the Meetings of the Council and its
Committees of the Municipality (herein after referred to as “
the
SR&O
”).
BACKGROUND
:
4.
This saga played itself out over a period of
approximately five months commencing on or about 29 May 2023 and
eventually concluding
during or about October 2023.
Because of the fact that
one can easily be drawn into a morass of details and eventualities
that are not central to the issues at
hand, I will summarise the
relevant facts as succinctly as possible.
5.
The Applications revolved around three meetings of
the Council of the Municipality namely:
5.1
A meeting of Council held on 7 August 2023 (herein after referred to
as
“
the August 2023 Meeting
”) which formed the
subject of the 1
st
Main Application and which effectively
set the ball in motion in as far as the lodging of the Applications
are concerned;
5.2
A meeting of Council which took place on 29 May 2023 (“herein
after
“
the May 2023 Meeting
”) which formed the
subject of the Counter-Application; and
5.3
A meeting of Council which took place on 13 September 2023 (“herein
after “
the September 2023 Meeting
”) which formed
the subject of the 2
nd
Main Application.
6.
The Applications furthermore specifically revolved
around what were alleged to be unlawful decisions taken by the
Council of the
Municipality during the above-mentioned three meetings
which decisions were, in summary, the following:
6.1
A decision taken during the May 2023 Meeting in terms whereof Hantise
was removed from his position as Executive Mayor of the Municipality
and in terms whereof Du Plessis was appointed as Executive
Mayor in
his stead (herein after referred to as “
the May Decision
”);
6.2
Two decisions taken during the August 2023 Meeting in terms whereof,
essentially,
Du Plessis and Mines were removed as Executive Mayor of
the Municipality and as Speaker of the Council respectively and in
terms
whereof Roman and Sekgopi were appointed in their stead (herein
after “
the August Decisions
”); and
6.3
Two decisions taken during the September 2023 Meeting in terms
whereof,
essentially, Du Plessis and Mines were removed as Executive
Mayor of the Municipality and as Speaker of the Council respectively
and in terms whereof Roman and Sekgopi were appointed in their stead
(herein after “
the September Decisions
”).
The
Events of October 2023
:
7.
Shortly before argument of the Applications was to
be heard on 2 November 2023, this Court was alerted to the fact that
certain
events transpired during the course of October 2023 (herein
after referred to as “
the October
2023 Events
”
) which might prove
to be the final chapter in the ongoing saga.
8.
The October 2023 Events were set out in an
affidavit that was deposed to by the Tenth Respondent and which may
be summarized as
follows:
8.1
On 5 October 2023 the Tenth Respondent in the 1
st
and 2
nd
Main Applications (the Eigth Applicant in the Counter-Application)
submitted motions of no confidence in Du Plessis and Mines for
consideration by the Council of the Municipality;
8.2
Mines however resigned as Speaker of the above Council on or about 11
October 2023;
8.3
During a meeting of Council on 11 October 2023, Mines’
resignation
as Speaker was accepted by Council and the motion of no
confidence in Du Plessis as Executive Mayor was carried by what
appears
to be a majority vote;
8.4
During the same meeting and also by way of what appears to be
majority
vote, Hantise was elected as Executive Mayor of the
Municipality and Sekgopi as the Speaker of Council;
8.5
Hantise however subsequently resigned as Executive Mayor and Roman
was
elected in his stead during a Council meeting held on 18 October
2023.
9.
The nett result of the October 2023 Events as set
out in the above affidavit of the Tenth Respondent and as was
submitted by Mr.
Louw, who appeared for the Respondent Councillors,
is therefore that Roman currently holds office as Executive Mayor of
the Municipality
and that Sekgopi holds the position of the Speaker
of the Council of the Municipality.
10.
It was not argued on behalf of any of the other
parties to this matter that the above October 2023 Events were in any
way improper
and it appears to be generally accepted that Roman and
Sekgopi have been properly elected as Executive Mayor and Speaker
respectively.
URGENCY
OF THE COUNTER-APPLICATION
:
11.
Mr. van Niekerk SC who took primary responsibility
for submitting arguments on behalf of the Applicants in the 1
st
Main Application, submitted that the Court should
strike the Counter-Application from the roll with costs due to the
fact that the
Counter-Application was in fact not urgent.
The argument by Mr. van
Niekerk was primarily that the Respondent Councillors did not deem it
necessary to take any steps to set
aside the May 2023 decision for a
period of approximately 3 months prior to the institution of the 1
st
Main Application and that the Respondent Councillors were only
prompted to lodge the Counter-Application by the fact that the 1
st
Main Application was lodged.
Mr. van Niekerk in
essence argued that the Respondent Councillors initially seemed to
accept the May 2023 Decision.
It was only after the 1
st
Main Application was lodged in terms whereof the Court was asked to
set aside the August 2023 Decisions, so Mr. van Niekerk argued,
that
the Respondent Counsellors decided to take issue with the May 2023
Decision and to have same reviewed and possibly set aside.
12.
I have to agree with Mr. van Niekerk in this
regard as it does seem that the Counter-Application was lodged in a
“knee-jerk”
reaction to the 1
st
Main Application.
13.
This Court was not provided with any proper
explanation as to why the Respondent Councillors did not act earlier
in bringing an
application to have the May 2023 Decision reviewed and
set aside and I cannot accept the argument on behalf of the
Respondent Councillors
that it is essentially the Applicants who
wished to close the doors of the Court to the Respondent Councillors,
especially having
regard to the fact that the May 2023 Meeting
essentially violates the same principles complained about in the 1
st
Main Application.
The argument on behalf of
the Respondent Councillors that they attempted to have the May
Decision rectified by way of motions of
no-confidence in Du Plessis
and Mines but that they were thwarted in these attempts by the
recalcitrant Applicants, also does not
hold water as an explanation
as to why the Court was not approached for assistance in this regard,
was not given.
On the face of it, the
Respondent Councillors seemed to have acquiesced themselves to the
May decision and it is only when nothing
came as a result of their
chosen course of action, that they attempt to reverse their earlier
decision and now approach the Court
for assistance.
This attempt to reverse
their earlier decision is not adequately explained.
14.
On the above premise the Counter-Application could
be struck from the roll.
15.
It has
however recently been held in the Eastern Cape High Court that a
matter may be entertained, even in a case of material non-compliance
with the Uniform Rules of Court and depending on the facts of each
case, if it would be in the interest of expediency and with
due
consideration to practicalities such as the unnecessary duplication
in case preparation (with the consequent increase in legal
costs) as
well as the resultant duplication in as far as the attention and
preparation of more than one Court is concerned.
[1]
16.
I align myself with the above-mentioned decision of the Eastern Cape
High Court for the
simple reason that in the present matter and at
the time of argument of the Applications, all parties had the
opportunity to place
their respective cases before Court and their
cases were also properly and fully argued on their behalf.
17.
In the circumstances it would be unnecessary to burden another Court
with having to prepare
for, hear and determine the
Counter-Application in due course, where this Court is in fact in a
position to do so.
In the circumstances
there can be no prejudice to any of the parties concerned.
I will however return to
the issue of the Counter-Application not being urgent later.
MOOTNESS
:
18.
At the commencement of argument before us on 2 November 2023, Mr.
Louw, who appeared for
the Respondent Councilors, submitted that, by
virtue of the October 2023 Events, the 1
st
and 2
nd
Main Applications as well as the Counter-Application had effectively
become moot and that this Court need not waste any further
time
deciding the merits of these applications apart from where it may
possibly have a bearing on the issue of costs.
Mr. Louw submitted that,
in the circumstances, a proper order in as far as costs are concerned
would be to order each party to pay
their own costs.
19.
In view of the October 2023 Events and Mr. Louw’s arguments in
respect of the possible
mootness of the Applications, it is prudent
to deal with the question of mootness first before delving into the
merits of the respective
Applications and the issue of costs.
20.
Mr. Louw primarily relied on the matter of
Tlouamma
& Others v Mbete, Speaker of the National Assembly of the
Parliament of the Republic of South Africa & Another
[2]
in making his submissions on the present applications.
Mr
Louw argued that in the present applications, there is no discreet
legal issue of public importance which requires adjudication
and
further that there exists no live controversial issue between the
parties any longer, given the October 2023 Events.
[3]
Mr. Louw furthermore
argued that by virtue of the October 2023 Events, the substantive
relief sought by the respective parties by
way of the Applications
has become moot and ought not to be considered by this Court.
21.
Mr. van Niekerk argued on the other hand that the matter is not as
simple as it was made
out to be by Mr. Louw (on behalf of the
Respondent Councillors) in that this Court in effect had the
obligation to consider the
events during the May 2023 Meeting, the
August 2023 Meeting as well as the September 2023 Meeting (herein
after referred to jointly
and if necessary as “
the Impugned
Meetings
”) and to declare these events unlawful if same is
in fact found to be unlawful.
22.
During his argument, Mr. van Niekerk relied primarily on the
provisions of
Section 172
of the Constitution which
state as follows:
“
(1)
When deciding a constitutional matter within its power, a court-
(a)
must
declare
that any … conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency…
”
(My underlining and omissions)
23.
Mr van Niekerk argued that due to the prescriptive language used by
the Legislature in the
above
Section 172(1)(a)
of the
Constitution, this Court does not have a discretion other than to
investigate the merits of the events that took place during
the
Impugned Meetings and to declare same invalid if need be.
24.
Mr. van Niekerk furthermore referred us to the matter of
Buffalo
City Metropolitan Municipality v ASLA Construction (Pty) Limited
[4]
where the learned Theron J confirmed as follows:
“…
the
court may nevertheless be constitutionally compelled to declare the
State’s conduct unlawful. This is so because ‘[s]ection
172(1)(a) of the Constitution enjoins a Court to declare invalid any
law or conduct that it finds to be inconsistent with the
Constitution.’
”
[5]
Mr. van Niekerk was
supported in his above arguments by Mr. Sive who took responsibility
for submitting arguments on behalf of the
Applicants in the 2
nd
Main Application.
25.
Mr. van Niekerk and Mr. Sive requested and were afforded leave to
hand up a draft order
which they requested this Court to make an
order of Court and in terms whereof the Applicants essentially sought
an order:
25.1
Declaring unlawful the decision(s) by Seetile and the Council of the
Municipality to call,
alternatively to continue with the August 2023
Meeting and to further preside and dispose of business during the
said August 2023
Meeting and to allow and put to a vote motions for:
25.1.1
The removal of Du Plessis and Mines as Executive Mayor and Speaker
respectively; and
25.1.2
The appointment of Roman and Sekgopi as Executive Mayor and Speaker
respectively;
25.2
Setting aside the August Decisions;
25.3
Reviewing and setting aside all and any decisions or acts taken
pursuant to the August
2023 Meeting and the August Decisions
including:
25.3.1
The decisions by the Council of the Municipality taken at a special
Council Meeting on 10 August 2023 to:
25.3.1.1
Approve the resignation of one Councillor Dithupa as a member
of the
Executive Committee;
25.3.1.2
Approve the appointment of Roman as member of the Executive
Committee; and
25.3.1.3
Ratify the election of Roman as the Executive Mayor;
25.3.2
The decisions by the Council of the Municipality taken at a special
Council Meeting on 17 August 2023 to:
25.3.2.1
Condone the decision taken by Seetile to instruct legal
representatives
to deliver a notice of intention to oppose the 1
st
Main Application;
25.3.2.2
Oppose the 1
st
Main Application;
25.3.2.3
Authorise Seetile to appoint legal representatives on behalf
of the
Council of the Municipality; and
25.3.2.4
Cover the travelling costs of Seetile and Councillors implicated
in
the 1
st
Main Application;
25.3.3
The decisions by the Council of the Municipality taken at a special
Council Meeting on 30 August 2023 to approve:
25.3.3.1
The Annual Financial Statement;
25.3.3.2
The Draft Annual Report;
25.3.3.3
The Municipal Public Accounts Committee Report;
25.3.3.4
The IDP Process Plan;
25.3.3.5
The Annual Performance Plan; and
25.3.3.6
The upper limits for members of the Council;
25.4
Declaring unlawful the September 2023 Decisions;
25.5
Setting aside the September 2023 Decisions;
25.6
Dismissing the Counter-Application; and
25.7
Instructing the Second to Tenth Respondents in the 1
st
Main Application to pay the costs of the Applications in their
personal capacity on a scale as between Attorney and Client and
jointly and severally by the Municipality.
27.
In this instance I might “
be
guilty of walking where constitutional angels fear to tread
”
[6]
when I hold the view that I cannot believe that the Legislature, when
penning
Section
172(1)(a)
of
the Constitution, intended that a Court should spend time and
resources in merely “
going
through the motions
”
by
declaring conduct invalid in circumstances where it serves no or very
little purpose to do so.
28.
It has been held recently that the general principle in as far as
mootness is concerned,
is that a matter is deemed to be moot when the
Court’s judgment will have no practical effect on the parties
in, for example,
instances where a live or existing controversy no
longer exists between the parties and further that a Court should
refrain from
making rulings on such matters.
[7]
The
same goes for a matter where the decision of the Court will be of
academic interest only.
[8]
29.
It appears that one of the primary reasons as to why a Court should
refrain from making
rulings in instances that have become moot is
that the Court should follow its purpose namely to adjudicate
existing legal disputes
and that scarce resources should not be
wasted away on abstract questions of law.
[9]
The
Constitutional Court has stressed the above in the matter of
President
of the Republic of South Africa v Democratic Alliance &
Others
[10]
where the Court held in paragraph [35] of the judgment as follows:
“…
courts
should be loath to fulfil an advisory role … in circumstances
where no actual purpose would be served by that decision,
now.
Entertaining this application requires that we expend judicial
resources that are already in short supply especially at this
level.
Frugality is therefore called for here
.”(My
omissions)
30.
It is indeed true and Mr. van Niekerk was correct in arguing as much,
that Courts have previously
dealt with the merits of matters that
have become moot, but those cases primarily involved issues of public
importance that would
have had an effect on matters in the future and
on which the adjudication of the Court was required.
[11]
From
the current authorities on the subject however, it is clear that
mootness will be a possible bar against relief sought where
the
constitutional issue is not only moot as between the parties, but is
also moot relative to society at large and no considerations
of
compelling public interest require the Court to reach a decision.
[12]
31.
It is also true that
Section
16(2)(a)(i)
of
the Superior Courts Act
[13]
apparently affords a Court of Appeal a discretion to hear an appeal
notwithstanding the mootness of the matter
[14]
,
but in the matter of
Minister
of Justice and Correctional Services & Others v Estate Late
Stransham-Ford (Doctors for Life International NPC &
Others as
amici curiae)
[15]
it was held:
“
The
high court is not vested with similar powers. Its function is to
determine cases that present live issues for determination.
”
32.
It warrants little or no discussion that the above
Section
16(2)(a)(i)
of the Superior Courts Act finds no application
in the present matter as this Court did not sit as a Court of appeal.
33.
In the present matter I hold the view that by virtue of the October
2023 Events, the disputes
between the various parties have been
settled by what purports to be a fair and democratic election process
in October 2023 which
resulted in Roman and Sekgopi being elected to
the critical positions of Executive Mayor of the Municipality and
Speaker of the
Council of the Municipality respectively.
34.
The defining feature behind the idea of democracy is the notion that
all interested parties
have a say in who eventually “
gets
the keys to the corner office
” and that this question, in
the end, is decided by way of a majority vote.
This is exactly what in
my view happened in the present matter and it seems that all parties,
especially the Applicants, have made
their peace with the fact that
Roman and Sekgopi were properly elected in their current positions.
I am fortified in my view
by the fact that Du Plessis, in all affidavits deposed to by her in
the Applications prior to the October
2023 Events, referred to
herself as a Councillor of the Municipality and “
the
lawfully elected Executive Mayor of the Municipality
”
whereas in the final affidavit that she deposes to for purposes of
the Applications and which was deposed to subsequent
to the October
2023 Events, Du Plessis refers to herself simply as “
a
Councillor within the Gamagara Local Municipality
”.
35.
I consequently hold the view that there are no live and/or existing
controversy between
the parties that needs further scrutiny by this
Court and I consequently find that the Applications have become moot
and need not
be considered any further.
36.
I furthermore hold the view that it is in the public interest that
stability be established
and confirmed in the Municipality in as far
as its leadership is concerned in order for the Municipality to move
forward and manage
its affairs in a proper manner.
I hold this view
especially in view thereof that municipalities in South Africa,
currently and in general, are notorious for below-standard
management
and service delivery and one can only hope that the Municipality will
be the exception to the general rule.
COSTS
:
37.
Mr Louw argued that a proper costs order in the present matter, in
view of the October 2023
Events, would be to order each party to pay
its own costs, alternatively to make no order as to costs.
38.
Mr van Niekerk and Mr Sive persisted therein that the Court should
grant an order as set
out in paragraph 25.7 herein above.
39.
In order to properly decide the issue of costs, it is unfortunately
necessary to look into
the merits of the Applications, albeit very
cursory.
40.
The SR&O is clear as to the procedures to be followed in calling
and/or setting up of
meetings of the Council of the Municipality as
well as the procedures to be followed during such meetings.
The relevant provisions
of the SR&O for purposes hereof, are as follows:
40.1
Rule 5.1 which states:
“
The
Speaker may at any time of own accord and shall, upon request in
writing of a majority of the councillors of the municipality,
call a
special of the council, provided that no such special meeting shall
take place unless all councillors were given at least
48 hours’
notice prior to the date and time set for the meeting.
”
40.2
Rule 6 which states:
“
At
least 7 days before any ordinary meeting of the council and at least
forty eight hours before any special meeting of the council,
a notice
to attend the meeting … shall be left or delivered to an
accessible distribution point within the municipality
as determined
by the council from time to time / sent by electronic mail to an
address provided by the councillor as his/her official
address / mail
address.
”
(My
ommissions)
40.3
Rule 8.1 which states:
“
No
business shall be transacted at a meeting of the council or any
committee other than that specified in the agenda relating thereto,
except any matters which the relevant chairperson considers urgent
and the said chairperson has ruled the matter to be urgent.
”
40.4
Rule 9 which deals with conduct during meetings and which
specifically sets out the powers
of the Speaker or the chairperson of
the meeting which powers
inter alia
includes:
40.4.1
The maintaining of order during meetings; and
40.4.2
The ensuring of compliance with the Code of Conduct for Councillors
and the SR&O.
40.5
Rule 14 which deals with walk-outs and which states:
“
If
a councillor or group of councillors leave any meeting in protest,
and the remainder of the councillors constitute a quorum the
business
of the meeting shall be proceeded with.
”
40.6
Rule 16 which deals with adjourned meetings and which states:
“
The
council or a committee may adjourn a meeting to any date or hour …
”
(My
omissions)
40.7
Rule 18.1 which states:
“
At
every meeting of the council the Speaker, or if he/she is not
present, an Acting Speaker shall be the chairperson…
”
(My
omissions)
40.8
Rule 28.1 which states:
“
No
matter shall be brought before the council or a committee by any
member of the council except upon a notice of motion, which
shall be
in writing and signed by the member giving the notice as well as the
member seconding it…
”
(My
omissions)
40.9
Rule 28.2 which states:
“
Any
notice of motion shall be submitted to the Speaker or the chairperson
before 12:00, ten days prior to the meeting of the council
or
committee.
”
40.10
Rule 28.3 which states:
“
A
motion shall lapse if the member who submitted the motion is not
present at the meeting where the motion is to be debated.
”
40.11
Rule 28.5 which states:
“
When
a member introduces a motion which is intended to rescind or amend a
resolution passed by the council in the preceding three
months or
which has the purport as a motion that was not supported within the
three preceding months shall not be entertained.
”
40.12
Rule 35 which deals with the disruption of meetings of Council by
persons other than Councillors and
which inter alia provides that
such person shall be removed from the Council chambers or meeting
venue at the direction of the
Speaker or chairperson and if such
person refuses such direction, the Sergeant-at-Arms may be called
upon to remove the disruptor.
41.
It should be stated at this point that the lawfulness or not of the
August 2023 Meeting
and the August Decisions warrant no further
mention and/or discussion because of the fact that the Respondent
Councillors conceded
that the meeting during which the August
Decisions were taken was not properly constituted and that the August
Decisions were therefore
unlawful.
42.
I have also already made a ruling as to the urgency of the
Counter-Application and this
issue also warrants no further mention.
43.
In respect of the May 2023 Meeting and the resultant May Decision, it
appears from the Respondent
Councillors’ papers that their
primary ground of concern was the fact that short notice of the
motion of no-confidence in
the 6
th
Respondent in the 1
st
Main Application was given.
It appears from the
papers that the particular motion of no-confidence was given only on
27 May 2023 and the argument of the Respondent
Councillors was that
this was in contradiction of the provisions of Rules 28.1 and 28.2 of
the SR&O, seeing that the May 2023
Meeting took place on 29 May
2023.
44.
The Respondent Councillors furthermore also took umbrage with the
fact that notice of the
May 2023 Meeting was given on 26 May 2023
which violated the provisions of Rule 6 of the SR&O in terms
whereof notice of at
least 7 (seven) days is required.
45.
The Applicants did not deny the fact that the motion of no-confidence
in the 6
th
Respondent was only given on 27 May 2023, but
then argued that it was submitted as an urgent motion.
This argument was also
advanced as reason why short notice of the May 2023 Meeting was
given.
46.
The relevant record of the proceedings during the May 2023 Meeting
however did not support
the above contentions as it did not show that
the chairperson of the particular meeting did in fact rule either the
May 2023 Meeting
or the motion of no-confidence in the 6
th
Respondent
as urgent.
[16]
47.
It consequently appears
prima facie
from the papers that the
Respondent Councillors may have had grounds on which to challenge the
validity of the May 2023 Meeting
and the May Decision.
48.
Mr. Louw argued that if the Court finds that the May 2023 Meeting and
the May Decision were
unlawful and that the May Decision, as a
consequence, should be set aside, the Court should also consider that
it was in fact the
May 2023 Meeting and the May Decision that set the
ball in motion in as far as the Applications were concerned.
I must be honest when I
say that I failed to fully comprehend the reasoning behind Mr. Louw’s
argument in the above regard,
since the flipside of the coin is that
the Respondent Councillors only took issue with the May 2023 Meeting
and the May Decision
after the lodging of the 1
st
Main
Application.
I repeat that I hold the
view that the setting aside of the May Decision appears not to be as
urgent to the Respondent Councillors
as it was made out to be.
49.
The primary concerns of the Applicants with the events during the
September 2023 Meeting,
were that the September 2023 Meeting
initially commenced lawfully but that, after the said September 2023
Meeting was lawfully
adjourned by Mines (the Speaker at the time),
the Respondent Councillors proceeded with the meeting unlawfully.
50.
The Applicants furthermore contended that the actions of Seetile and
the Respondent Councillors
to proceed with the meeting after the
adjournment thereof were unlawful and that the September 2023
Decisions, which were taken
during this continuation of the September
2023 Meeting, were therefore also unlawful and that same therefore
stood to be set aside.
The reason for the
adjournment of the September 2023 Meeting, so it was submitted on
behalf of the Applicants, was the fact that
the meeting was disrupted
by members of the community.
51.
The Respondent Councillors simply argued that the adjournment of the
September 2023 Meeting
was unlawful and of no force and effect as
Mines (as Chairperson) adjourned the meeting under circumstances
where it was not necessary
to do so.
The above argument was
based on the submissions that the disruption of the meeting by the
community members was not as serious as
it was made out to be and
that the disruption, at the time of the adjournment of the meeting,
was effectively a thing of the past.
52.
The Respondent Councillors furthermore argued that Mines did not,
before adjourning the
September 2023 Meeting, follow due process in
terms of Rule 35 of the SR&O and that they (the Respondent
Councillors) were
therefore in fact entitled to proceed with the
September 2023 Meeting.
The reason for Mines’
actions, so it was submitted by the Respondent Councillors, was to
avoid having to deal with the motions
of no-confidence in himself and
Du Plessis that were tabled for discussion during the meeting.
This was obviously denied
by the Applicants.
53.
If regards are to be had to the contents of Rule 35 of the SR&O
as well as the record
of the proceedings during the September 2023
Meeting, it appears
prima facie
as if the Respondent
Councillors may have grounds for the objection to the relief sought
by way of the 2
nd
Main Application.
It should be mentioned,
for the sake of completeness that argument was also raised to the
effect that Mines did not have the authority
to adjourn the September
2023 Meeting in any event, as this power rests with the Council in
terms of the provisions of Rule 16
of the SR&O.
Although it is difficult
to fathom how Mines, as chairperson of the meeting, has the authority
to regulate and manage the whole
of the meeting in terms of Rule 9 of
the SR&O, but does not have the authority to adjourn the meeting,
it appears
prima facie
that the above argument may also have
merits.
54.
On the other hand; no reasonable explanation was offered by the
Respondent Councillors as
to why they proceeded with the September
2023 Meeting without affording the Applicants and the remainder of
the Councillors at
least an opportunity to return to the meeting.
It appears
prima facie
that the conduct of Du Plessis, Mines and other members of the
Council who left the September 2023 Meeting after the adjournment
thereof, did not boil down to a walk-out as defined in terms of Rule
14 of the SR&O as it was not done in protest and there
is
therefore no reason why, at the very least, an attempt could not have
been made to persuade them to return to the meeting.
The above creates the
impression that the Respondent Councillors might have been more keen
than was necessary to get the motions
of no-confidence in Mines and
Du Plessis approved and that they might have been worried that the
said motions might not be carried
if the September 2023 Meeting was
attended (up and until its conclusion) by all of the Councillors
entitled to attend.
55.
The question may very well also be raised as to why, if the
Respondent Councillors were
supremely confident in the lawfulness of
their actions during the September 2023 Meeting, was it necessary to
table motions of
no-confidence in Mines and Du Plessis again during
the October 2023 Events.
56.
I hold the view that, if all of the above is taken into
consideration, it is evident that
all parties concerned used,
misused, bent, negated and interpreted the SR&O as it suited
them, when it suited them.
In these circumstances,
none of the parties involved can claim to have been acting in the
best interests of the residents of the
area covered by the relevant
municipality.
None of them can claim to
have been championing democracy.
57.
I am furthermore of the view that this conduct of the parties
concerned should be frowned
upon because it could definitely not have
contributed to the creation of any sense of certainty and/or
confidence amongst the general
community which consists (largely) of
people who, by way of their votes, have put the parties in power.
I do however also hold
the view that to attempt to point out the main culprit in the present
matter would serve no purpose.
I am not going to allow a
costs order to fuel the fire.
It is also undesirable to
create a situation where any of the parties to this saga can use an
order in relation to costs as an opportunity
for political
grandstanding.
58.
I am therefore of the view that no order as to costs in this instance
would be the most
appropriate order to make.
ORDER
:
59.
In view of all of the above, I make the following order:
59.1
The application under case number 1492/2023 is dismissed;
59.2
The counter-application under case number 1492/2023 is dismissed;
59.3
The application under case number 1793/2023 is dismissed; and
59.4
No order as to costs is made in respect of any
of the said applications.
DATED AT KIMBERLEY ON
THIS THE ___ DAY OF _______________ 2024.
OLIVIER AJ
I agree.
LEVER J
For
1
st
to
3
rd
Applicants:
Adv.
J.G. van Niekerk SC
Adv.
D. Sive
o.i.o
Minde Schapiro & Smith Inc.
BELLVILLE
c/o
Engelsman Magabane Inc.
KIMBERLEY
For
1
st
,
2
nd
&
12
th
Adv.
L.A. Roux
Respondents
o.i.o
Peyper Attorneys
BLOEMFONTEIN
c/o
Van De Wall Inc.
KIMBERLEY
For
3
rd
to
10
th
Respondents:
Adv.
M.C. Louw
o.i.o
Peyper Attorneys
BLOEMFONTEIN
c/o
Van De Wall Inc.
KIMBERLEY
[1]
See
Magricor
(Pty) Ltd v Border Seed Distributors CC:
In
re
:
Border
Seed
Distributors CC v Magricor (Pty) Ltd
[2020]
ZAECGHC 103 (SAFLII Reference) at paragraph [38]. Also see the
matter of
Windsor Hotel (Pty) Ltd v New
Windsor Properties (Pty) Ltd & Others
[2013]
ZAECMCH 14 (SAFLII Reference) at paragraph [10].
[2]
[2016]
1 All SA 235 (WCC).
[3]
It
should be mentioned, for the sake of completeness, that the decision
of the Court in
Tlouamma
was criticized by the Constitutional Court in the matter of
United Democratic Movement v Speaker of the National Assembly &
Others (Council for the Advancement of the South African
Constitution
& Others as
amici curiae
)
2017
(8) BCLR 1061
(CC), but it should also be stated that the said
criticism by the Constitutional Court was levelled at the decision
made in
Tlouamma
in respect of the constitutionality of a
secret ballot procedure and that the Constitutional Court in the
United Democratic Movement
matter did not express itself with
regards to the issue of mootness and the decisions in
Tlouamma
in
this respect. Reference is specifically made to paragraphs [89] to
[91] of the
United Democratic Movement
matter.
[4]
[2019]
JOL 41747 (CC).
[5]
See
Buffalo
City
,
supra
at
paragraph [63]. See also
State
Information
Technology
Agency SOC Limited v Gijima Holdings (Pty) Ltd
[2017]
ZACC 40
(SAFLII Reference) at paragraph [52].
[6]
I
am shamelessly quoting Comrie J in the matter of
S
v Mohammed
1999
(2) SACR 507
(CPD) at
page 514.
[7]
Solidariteit
Helpende Hand NPC & Others v Minister of Cooperative
Governance
& Traditional Affairs
[2023] ZASCA
35
(SAFLII Reference) at paragraph [12]. Also see the matter of
National Coalition for Gay &
Lesbian Equality v Minister of Home Affairs & Others
[1999]
ZACC 17
(SAFLII Reference) at footnote 18 as well as the authorities
cited there.
[8]
Minister
of Tourism & Others v Afriforum NPC & Another
[2023]
ZACC 7
(SAFLII Reference) at
paragraph [23].
[9]
See
Police
and Prison Civil Rights Union v South African Correctional
Services
Workers’ Union
[2018] ZACC 24
(SAFLII Reference) at paragraph [43]. Also see
Geldenhuys
& Neethling v Beuthin
1918 AD 426
at page 441.
[10]
[2019]
ZACC 35
(SAFLII Reference).
[11]
See
inter
alia
Centre
for Child Law v The Governing Body of the
Hoërskool
Fochville & Another
[2015] 4 All
SA 571
(SCA) at paragraph [14].
[12]
See
Tlouamma
,
supra
at
paragraph [101].
[13]
Act
10 of 2013.
[14]
See
Solidariteit
Helpende Hand
,
supra
at
paragraph [18].
[15]
[2017]
1 All SA 354
(SCA) at paragraph [25].
[16]
I
refer to Rule 8.1 of the SR&O.