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2024
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[2024] ZANCHC 22
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Makenna and Others v Thembelihle Local Municipality and Others (720/2024) [2024] ZANCHC 22 (25 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No: 720/2024
Heard: 22 March 2024
Judgment delivered: 25
March 2024
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
In the matter between: -
LEONARD MAKENNA
FIRST
APPLICANT
ELZERONE VAN
NIEKERK
SECOND APPLICANT
FRANS
MANS
THIRD APPLICANT
RACHEL
JANSEN
FOURTH APPLICANT
PAUL VAN
NIEKERK
FIFTH APPLICANT
and
THEMBELIHLE LOCAL
MUNICIPALITY
FIRST RESPONDENT
THEMBELIHLE LOCAL
MUNICIPALITY:
SECOND RESPONDENT
MUNICIPAL COUNCIL
THEMBELIHLE LOCAL
MUNICIPALITY:
THIRD RESPONDENT
MUNICIPAL COUNCIL
SPEAKER
(JAMIAN NKOSANA)
THEMBELIHLE LOCAL
MUNICIPALITY:
FOURTH RESPONDENT
CHIEF FINANCIAL
OFFICER
(MR R SHUPING)
MEC: CO-OPERATIVE
GOVERNANCE,
FIFTH RESPONDENT
HUMAN SETTLEMENTS AND
TRADITIONAL AFFAIRS:
NORTHERN CAPE PROVINCE
JUDGMENT
STANTON J
INTRODUCTION
:
-
[1]
On 19 March 2024, the applicants, five of
the councillors of the Thembelihle Local Municipality
(“the
Municipality”) launched this urgent application in accordance
with the provisions of Uniform Rule 6(12), in which
they seek the
following relief, namely that: -
1.1
The third respondent, Mr J Nkosana (“the
Speaker”) of the Municipality be ordered to convene a special
council meeting,
to be held no later than 29 March 2024, to table a
disciplinary report in relation to the fourth respondent, Mr R
Shuping (“Mr
Shuping”) as per the directive of the fifth
respondent, the MEC: Co-operative Governance, Human Settlements and
Traditional
Affairs: Northern Cape Province (“the MEC”),
dated 11 March 2024 to allow the council members of the Municipality
to
make the necessary decisions in relation to the findings of the
disciplinary report;
1.2
In the alternative, and in the event
that the Speaker fails to convene a special council meeting, that the
MEC be ordered to appoint
a person to convene and chair a special
council meeting in terms of the provisions of section 29(1A) of the
Local Government: Municipal
Structures Act (“the Structures
Act”); and
1.3
The Municipality, the Municipal Council
and the Speaker be ordered to pay the costs of the application on an
attorney and client
scale, jointly and severally, the one absolving
the other.
[2]
The Speaker opposed the application and the MEC filed a notice to
abide with the decision
of the Court. Neither the Municipality nor Mr
Shuping opposed the application.
THE
APPLICANTS’ CASE: -
[3]
According to the applicants: -
3.1
On 22 June 2022, the first applicant, in his capacity as Executive
Mayor of the Municipality
(“the Mayor”) issued a letter
to the Speaker advising him of the Municipal Council’s
intentions to institute
disciplinary proceedings in respect of
alleged offences committed by Mr Shuping in his capacity as the then
Acting Municipal Manager
of the Municipality;
3.2
On 29 July 2022, the
Mayor addressed a second letter to Mr Shuping placing him on
precautionary suspension with full benefits pending
investigations
into the alleged acts of misconduct against him as per the resolution
of the Municipal Council;
3.3
The Municipality and the Municipal Council appointed an investigator
in terms of Regulation
5(3) of the Local Government: Disciplinary
Regulations for Senior Managers (“the Regulations”) and
during March 2023
a detailed disciplinary report was provided to Mr
Leserwane, the Acting Municipal Manager;
3.4
The Mayor was, however, never provided with a copy of the
disciplinary report, despite numerous
verbal requests that he be
provided with same;
3.5
The disciplinary report was also not tabled before the Municipal
Council, despite various
meetings between the Mayor, the Speaker and
Mr Shuping;
3.6
On 13 December 2023, the Municipal Council resolved to reinstate Mr
Shuping with effect
from 08 January 2024, without tabling the
disciplinary report;
3.7
On 08 January 2024, the Mayor requested the MEC in writing to
intervene in the matter;
3.8
On 11 March 2024, the MEC, in a letter addressed to the Mayor,
directed that the disciplinary
report should be tabled within 7 days
of receipt of his letter;
3.9
On 12 March 2024, the Mayor provided the Speaker with a copy of the
MEC’s directive
and informed him that a special council meeting
should be convened within 7 days; and
3.10
The Speaker failed to call a meeting within the 7 days and as a
consequence this application was issued.
APPLICABLE
LEGISLATIVE FRAMEWORK: -
[4]
The applicants rely on the following legislative prescripts support
of their application:
-
4.1
Regulation
5, which in part reads: -
“
(1)
Any allegation of misconduct against a senior manager must be brought
to the attention of the
municipal council.
(2)
An allegation referred to in sub-regulation (1) must be tabled by the
mayor or the municipal
manager, as the case may be, before the
municipal council not later than seven [7] days after receipt
thereof, failing which the
mayor may request the Speaker to convene a
special council meeting within seven [7] days to consider the said
report.
(3)
If the municipal council is satisfied that –
(a)
there is a reasonable cause to believe that an act of misconduct has
been committed by the
senior manager, the municipal council must
within seven [7] days appoint an independent investigator to
investigate the allegation[s]
of misconduct; and
(b)
there is no evidence to support the allegation[s] of misconduct
against the senior manager, the
municipal council must within seven
[7] days dismiss the allegation[s] of misconduct.
(4)
The investigator appointed in terms of sub-regulation (3)(a) must,
within a period of thirty
[30] days of his or her appointment, submit
a report with recommendations to the mayor or municipal manager, as
the case may be.
(5)
The report contemplated in sub-regulation (4) must be tabled before
the municipal council in
the manner and within the timeframe as set
out in sub-regulation (2).”
;
4.2
Section 29 of the Structures Act that
stipulates: -
“
(1)
The speaker of a municipal council decides when and where that
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 at a time set out in the
request;
(1A)
If the speaker or acting speaker refuses to call a meeting of council
as requested in terms of subsection
(1), the municipal manager, or in
the absence of refusal by the municipal manager., a person designated
by the MEC for local government
in the province, may call and chair
the meeting.”
THE
THIRD RESPONDENT’S CASE: -
[5]
The Speaker, in his answering affidavit, reserved his rights to frame
a proper response
in a supplementary affidavit, but opposed the
application on the following grounds: -
5.1
The application is not urgent, alternatively that urgency was
self-created;
5.2
The non- joinder of councillors MB Mpamba, TE Diena, VS Dolopi, T
Yola and MS Visser;
5.3
The applicants failed to establish the requisites of a final
interdict; and
5.4
Non-compliance with the Structures Act.
URGENCY:
-
[6]
The applicants submit that the application should be heard on an
urgent basis for
the following reasons: -
6.1
The Mayor sought
intervention from the MEC after exhausting all available internal
remedies;
6.2
The MEC only intervened on 11 March 2024 and gave clear instructions
and directives pertaining
to the convening of the meeting within 7
days of receipt of his letter;
6.3
The delay to table the disciplinary report causes great prejudice to
the Municipality and
the Municipal Council as the Municipality is not
afforded an opportunity to make a decision in respect of Mr Shuping
who has total
access to the Municipality’s finances and bank
accounts;
6.4
The. Municipality is prejudiced in view of the fact that the Speaker
continues to make decisions
on its behalf that are binding to the
Municipality, and which exposes the Municipality to immediate risks;
6.5
The failure by the Speaker to call an urgent special council meeting
to table the report
is a total disregard to the powers and functions
bestowed upon the councillors by the necessary legislative framework;
6.6
The Speaker continues to violate the existing legal framework and
directives from the MEC
to the detriment of the Municipality;
6.7
The unlawful conduct of the Speaker constitutes an interference with
the administration
of the Municipality;
6.8
The Speaker is determined to misuse his powers to prevent duly
appointed members of the
Municipal Council to carry out their duties
as required by law;
6.8
A decision on the fate of Mr Shipping needs to be taken immediately
after the disciplinary
report is tabled;
6.9
The Speaker creates instability in the Municipality that makes it
impossible for the applicants
to perform their functions properly;
6.10
The unlawful conduct of the Speaker needs to be curbed on an
extremely urgent basis;
6.11
Mr Shuping continues to handle the affairs of the Municipality
without any structure holding him accountable;
6.12
There is an immediate risk that the Municipal Council may be resolved
in terms of the provisions of section
139(1)(c) of the Constitution
of the Republic South Africa 108 of 1996;
6.13
The interest of justice requires the application to be heard on an
urgent basis; and
6.14
Regulation 5(5) emphasises the fact that the report must be tabled as
a matter of urgently.
[7]
In addition, Mr J Mongala, on behalf of the applicants, argued that
the MEC’s
directive was the impetus that required the
applicants to file this application on an urgent basis.
[8]
The requirements for urgency in
applications have been dealt with numerous times by the courts. Rule
6(12)(b) of the Uniform Rules
of Court provides: -
“
In every
affidavit or petition filed in support of any application under para
(a) of this subrule, the applicant shall set forth
explicitly the
circumstance which he avers render the matter urgent and the reasons
why he claims that he could not be afforded
substantial redress at a
hearing in due course”.
[9]
There are thus two requirements that must be set forth in the
founding affidavit in
order to satisfy the requirements of the
rule.
[1]
Whether an applicant
has succeeded in satisfying the requirements for urgency must be
determined by the contents of the founding
affidavit.
[2]
[10]
In
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
,
[3]
Coetzee J held with reference to Rule 6(12)(b) that: -
‘
Mere lip
service to the requirements of Rule 6(12)(b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter be
set down.’
[11]
In
Vermaak
v Taung Local Municipality
,
[4]
the
Court confirmed that:-
"The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a Court to be
placed in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely
to happen. By way
of an example if the Court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date."
[12]
In
Nelia’s
Liquor Store CC v Vresthena (Pty) Ltd & another
,
[5]
the
following is stated: -
“
[32]
The question of whether sufficient grounds exist for a matter
qualifying to be considered as urgent and that
condonation, as
envisaged in terms of rule 6(12)(a), should be extended to an
applicant must be considered with due and judicial
regard to the
following:
32.1
the relief requested by an applicant;
32.2
the facts of the matter, with specific reference to the
chronology of
events
leading up to and culminating in the launching of the application on
an urgent basis;
32.3
any other extraordinary factor(s) which may be present in the
particular circumstances of the case which may render
it necessary
and in the interest of justice to extend the relief contemplated in
Rule 6(12) to an applicant, notwithstanding the
fact that
considerations emanating from the above referred to two subparagraphs
may militate against the granting of the relief
set out in rule
6(12).
[33]
An applicant must not only set forth sufficient grounds as referred
to in the preceding paragraph
but must also explain any dilatory
behavior on its part. The onus to do so, rests squarely on an
applicant.”
[13]
In
the matter of
East
Rock
Trading
7
(Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd &
others
,
[6]
with regard to the reasons why an applicant claims that he cannot be
afforded substantial redress at a hearing in due course, the
Court
remarked as follows:-
“
It
is important to note that the Rules require absence of substantial
redress. This is not equivalent to the irreparable harm that
is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application in due
course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application in due
course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.”
[14]
The respondents were only afforded 24 hours to file their notice of
intention to oppose; and 26 hours
before the answering affidavits had
to be filed.
[15]
Having regard to the explanations advanced by the applicants, I am,
for the following reasons, not
persuaded that they sufficiently
justified the necessity to circumvent the ordinary time periods as
set out in the Uniform Rules
of
Court on an extremely urgent
basis: -
15.1
The disciplinary report became available during March 2023.
The applicants, however, do not explain with any specificity when the
alleged meetings between the Mayor, the Speaker and Mr Shuping took
place or why the Mayor waited almost 10 months until 08 January
2024
to request the MEC to intervene;
15.2
The Mayor fails to provide an explanation on whether he took any
steps between 18 January 2024 until
the MEC eventually provided the
directive on 11 March 2024; and
15.3
The Mayor does not elucidate why he did not take any steps subsequent
to the council meeting of 13
December 2024.
[16]
A sufficient explanation is therefore not proffered for the dilatory
behaviour on the part of the applicants.
In my view, the applicants
also failed to explicitly set out the circumstance which they aver
rendered the matter so urgent as
to only allow the respondents to
file their answering affidavits within one day.
[17]
Save for a bald statement that the applicants will not be able to
obtain substantial redress in due
course, this allegation remains
unsubstantiated. The
applicants
according failed to make out a case in this regard.
[18]
An analysis of the circumstances averred by the applicants that the
matter is urgent, simply does not
stand scrutiny. This failure is a
fatal defect. For this reason alone, the application must fail with
costs.
COSTS: -
[19]
The convention is that costs are awarded against the unsuccessful
party. Courts may, however,
depart from this general rule and decide
each case on its own merits.
[20]
The Mayor and the Speaker requested that a cost order should be
granted on an attorney and client
scale.
[21]
In view of the fact that the applicants rely on the MEC’s
directive to convene the meeting
within 7 days, I am not persuaded
that there was vexatious or
mala fide
conduct on behalf of the
applicants that warrants a punitive cost order.
WHEREFORE I MAKE THE
FOLLOWING ORDER: -
The
application is struck from the roll, with costs.
STANTON,
A
On
behalf of the applicant:s
Adv.
J Mongala
On
instruction of Moribe Attorneys
On
behalf of third respondent:
Adv.
A Eillert
On
instruction of Duncan & Rothman Attorneys
[1]
Salt and Another v Smith 1991(2) SA 186 (NM) at 187 A.
[2]
IL&B Marcow Caterers v Greatermans SA 1981(4) SA 108(C) at 111A.
[3]
977(4) SA 135(W) at 137F.
[4]
(JR315/13)
[2013] ZALCHB 43 (12 MARCH 2013) AT [12]; SEE ALSO EAST ROCK TRADING
(PTY) LTD & OTHERS V EAGLE VALLEY GRANITE
[2012] JOL 28244
(GJS)
AT [7] – [9].
[5]
(UM
39/2019)
2019
ZANWHC 21
(2
May 2019).
[6]
[2012] JOL 28244
(GSJ) AT [7].