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[2024] ZAKZPHC 66
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Mavundla v MEC: Department of Corporative Government and Traditional Affairs Kwazulu-Natal and Others (7940/2024) [2024] ZAKZPHC 66 (16 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 7940/2024
In
the matter between:
PHILANI
GODFREY MAVUNDLA, MAYOR
UMVOTI
MUNICIPAL COUNCIL APPLICANT
and
THE
MEC: DEPARTMENT OF CORPORATIVE
FIRST RESPONDENT
GOVERNMENT
AND TRADITIONAL AFFAIRS
KWAZULU-NATAL
INDEPENDENT
ELECTORAL COMMISSION
SECOND RESPONDENT
UMVOTI
LOCAL MUNICIPALITY
THIRD RESPONDENT
THE
ACTING MUNICIPAL MANAGER
FORTH RESPONDENT
REASONS FOR ORDER
E
BEZUIDENHOUT J:
Introduction
[1]
On 19 June 2024, this matter came before me as an urgent opposed
application to anticipate
a rule nisi issued on 20 May 2024 by R
Singh AJ. I also heard another urgent opposed application, under case
number 8441/2024,
to anticipate a rule nisi issued on 28 May 2024 by
Keshav AJ, which involved the same parties, but with the addition of
a few other
parties. A third urgent application, under case number
8928/2024, was set down for the same day, again involving similar
parties
but with the addition of further parties. That matter was,
however, adjourned to 22 August 2024 for argument. The applicant in
the present matter, Mr Philani Godfrey Mavundla, featured in all
three applications. In the last mentioned application, he was however
represented by a different attorney and counsel.
[2]
In this matter bearing case number 7940/2024, which I heard first, I
granted the following
order on 19 June 2024:
‘
1.
The order granted by R Singh AJ on 20 May 2024 in case number 7940/24
is hereby rescinded.
2.
The Rule Nisi issued on 20 May 2024, returnable on 6 August 2024 is
discharged
with costs, such costs to be on attorney and client scale.
3.
Reasons for the order will be provided in due course.’
[3]
In case number 8441/2024, which I heard next, I granted a similar
order on 24 June
2024, discharging the rule nisi issued by Keshav AJ
on 28 May 2024, returnable on 6 August 2024, with a similar costs
order and
an indication that reasons will be provided in due course.
The reasons for this order will be addressed separately.
[4]
These are the reasons for order I made in the present matter on 19
June 2024.
Background
[5]
The applicant, the erstwhile mayor of the uMvoti Municipal Council,
brought an application
on an urgent basis against the MEC for
Cooperative Governance and Traditional Affairs as the first
respondent, the Independent
Electoral Commission as the second
respondent, the uMvoti Municipality as the third respondent, and the
acting municipal manager
of the uMvoti Municipality as the fourth
respondent.
[6]
The application was issued by the registrar on 20 May 2024 and was
set down to be
heard on the same day, at 12h00, in motion court. The
applicant sought the following relief:
‘
1.
That the application be heard on an urgent basis and that the Rules
and forms of normal service be and is hereby dispensed with.
2.
That a rule nisi be issued calling upon the Respondents to show cause
on the day of 2024 why an order in terms of (1) above should
not be
made.
2.1
That the first respondent be and is hereby interdicted from holding a
Special Meeting on 2 st (sic) May 2024;
3.
That the first respondent be ordered to pay the costs of this
application on an attorney and client scale.
4.
Further and /or alternative relief.
5.
That para 2.1 above operate as an interim interdict.’
[7]
R Singh AJ was the judge sitting in motion court and granted the
following order:
‘
1.
A rule nisi be and is hereby issued calling upon the Respondents to
show cause on the
6
th
day of August 2024 at 9h30 why an
order should not be granted in the following terms:
1.1
That the First Respondent be and is hereby interdicted from
holding
a Special Meeting on 21
st
May 2024 at 10h00.
1.2
That the First Respondent is directed to pay the costs of this
application
on an attorney and client scale.
2.
Paragraph 1.1 above shall operate as an interim interdict.’
[8]
The order was granted in the absence of any appearance by any of the
respondents.
It appears from the court file that service upon the
first respondent was effected via email on 20 May 2024 at 11h20 and
apparently
by hand at 11h57. The email sent to the first respondent
simply states in the subject line: ‘P V Mavundla/MEC Cogta and
others’.
The email itself merely tells the receiver that
attached to the email is a notice of motion, founding affidavit,
annexures and
a confirmatory affidavit of M Masondo. There is no
reference to a certificate of urgency or to the fact that it is an
urgent application,
set down to be heard in less than an hour’s
time and would require urgent attention. The hand delivery of papers
took place
three minutes before the matter was to be heard in court.
The name of a Mr Siphiwe Jiyane appears to have been written on the
receipt
but with no indication what his designation was.
[9]
Service on the second respondent was likewise effected via email at
11h35, once again
with no reference to the fact that it is an urgent
application set down for 12h00.
[10]
Service on the third and fourth respondents was also affected via
email at 10h48 but once again
with no reference to the fact that it
is an urgent application requiring urgent attention.
[11]
The fourth respondent, Mr M Swanlow, the acting municipal manager,
responded at 13h25, indicating
that ‘we will abide by the
court’s decision’.
[12]
It is clear that there were serious issues with the manner in which
service was effected on the
various parties. Apart from having to
comply with the provisions of Uniform rule 4 relating to service, or
to seek condonation
for the failure to do so, a party wishing to
apply for a rule nisi that operates as an interdict against any
branch of national
or provincial government, must comply with section
35 of the General Law Amendment Act 62 of 1955 (the GLAA). In terms
section
35 of the GLAA, no court is permitted to issue a rule nisi
that operates as an interdict unless notice of the intention to apply
for such rule is served on the relevant government functionary at
least 72 hours before the hearing. I will return to this issue
later.
The
applicant’s case
[13]
From the facts set out by the applicant in his founding affidavit, it
appears that he was appointed
as the mayor of the uMvoti Municipality
on 21 June 2023. On 16 May 2024, the applicant received a letter
dated 14 May 2024 from
the first respondent, Mrs B N Sithole-Moloi,
addressed to Mr M P Khathide, the Deputy-Director: Local Government
Branch. In this
letter, Mr Khathide is informed that the first
respondent received a request for assistance from the majority of
councillors of
the uMvoti Local Municipality concerning a council
meeting. The councillors had apparently submitted motions for the
removal of
the speaker and the mayor, and requested both the speaker
and the acting municipal manager to convene a meeting, but both
failed
to convene such a council meeting to deal with the motions.
[14]
The letter further informed Mr Khathide that the first respondent is
obliged to designate a person
to convene and preside over the special
council meeting of the uMvoti Municipal Council to consider the
motions that had been submitted.
Mr Khathide was informed that he had
accordingly been designated in terms of section 29(1A) of the Local
Government: Municipal
Structures Act 117 of 1998 ( the Act) to
convene and preside over the meeting, which was scheduled for Friday,
17 May 2024 at 10h00
in the town hall.
[15]
The applicant alleged that the first respondent ‘did not comply
with the proper time limit’
and the meeting was postponed to 21
May 2024. It appears that Mr Khathide issued a notice of the special
council meeting on 16
May 2024, which stated that the meeting called
for 17 May 2024 had been rescheduled to be held on 21 May 2024 at
10h00.
[16]
The applicant sent a letter to Mr Khathide (and not the first
respondent) on 16 May 2024, setting
out the reasons for his
opposition to the meeting. The applicant furthermore alleged in his
founding affidavit that on 12, 17 and
22 April 2024, a series of
motions were delivered to the speaker, calling upon him to convene a
council meeting to deliberate on
a motion to remove him (the
applicant) as mayor and another motion to remove the speaker.
[17]
The applicant alleged that both motions delivered on 12 April 2024 to
the speaker were defective
as signatures were missing and they were
not done in the correct format. On 17 April 2024, new motions were
filed with the speaker,
which were allegedly again defective. On 22
April 2024, the councillors delivered motions directly to the acting
municipal manager
to call a special council meeting to deal with the
motions to remove the mayor and speaker. None of these alleged
defective motions
were attached to the application papers.
[18]
The applicant thereafter dealt with a number of meetings which had
been called for 30 April 2024,
2 May 2024 and 3 May 2024, which were
apparently poorly attended because a number of councillors were
unavailable to attend as
they had to attend to ‘party
business’. On 3 May 2024, the applicant sent a letter to the
first respondent, informing
her that the speaker had called three
meetings in succession, but that there was no quorum and that the
proposer and seconder of
the meetings were not present. He concluded
the letter by stating:
‘
I
am of the opinion that there would be no need for me to call any
special meetings as the Speaker has complied with his duties
in terms
of the Umvoti Municipality‘s standing Rules and Orders.’
[19]
It is, in my view, clear from what I have related so far that the
majority of councillors wanted
to move motions to remove the
applicant and the speaker from their positions. Allegations are made
by the applicant regarding the
councillors’ motions and
subsequent failure to attend meetings called by the speaker, yet they
have not been joined by the
applicant to these proceedings, whereas
they would clearly have a direct and substantial interest in the
relief sought by the applicant.
[1]
[20]
The applicant proceeded to make allegations against the first
respondent, accusing her of acting
with
mala fides
, ‘actuated
by malice’, and
ultra vires
. He further alleged that she
‘fraudulently’ stated in her letter of 14 May 2024 to Mr
Khathide that the speaker failed
to convene a meeting to discuss the
motions. The applicant also alleged that the first respondent was
informed on 3 May 2024 by
the acting municipal manager that the three
meetings were aborted due to a failure by councillors to attend. He
also alleged that
it was obvious from the first respondent’s
conduct that ‘she is intent on achieving her illegal ends,
namely to remove
the Speaker and Mayor and for this purpose the First
Respondent who is an ANC Party member is quite happy to use the IFP
to achieve
her ends’.
[21]
It furthermore appears from the papers that the first respondent
wrote to the speaker on 29 April
2024 to enquire about his failure to
deal with the removal motions. He replied to that letter on 2 May
2024, and set out the events
regarding the alleged failed meetings.
The first respondent, in a letter dated 14 May 2024, then informed
the speaker that she
had received a petition signed by the majority
of councillors of the uMvoti Municipality, requesting her to
designate a person
to convene and chair a meeting of the Municipal
Council in terms of section 29(1A) of the Act. She
inter
alia
referred
to documents and the representations submitted by the speaker and
documentation relating to the notice of agenda of the
meetings. The
agenda did not include the motions as required by the Standing Rules.
She also dealt with the acting municipal manager’s
responses
and concluded that the speaker and acting municipal manager had
refused to convene a Special Meeting as requested. She
accordingly
made the decision to designate Mr Khathide to call and chair the
special meeting. This decision of the first respondent
will, of
course, stand until reviewed and set aside,
[2]
a course of action which the applicant makes no mention of. It
appears that the first respondent has been engaging with the
applicant
and the speaker since at least 29 April 2024 regarding this
issue.
[22]
One aspect of the first respondent’s letter of 14 May 2024 is
of particular significance
in my view. She states in para 6 that
‘
the
Speaker has made an attempt to stop or prevent the majority of
Councillors from proceeding with the request by bringing a High
Court
application on 25 April 2024, however the Court removed the matter
from the roll and ordered the Speaker to pay the costs’.
[23]
The applicant has failed to disclose anything about this court
application in his founding affidavit,
which in my view amounts to a
material non-disclosure. Bearing in mind that the majority of
councillors petitioned the first respondent
to call a special meeting
and that the speaker, less than a few weeks before, had apparently
tried to stop them from proceeding
with their request for a meeting,
their absence as respondents in these proceedings and the applicant’s
obvious failure to
join them, has become even more pronounced and is,
in my view, a fatal omission by the applicant.
[24]
The applicant in his founding affidavit referred to certain portions
of the first respondent’s
letter of 14 May 2024 as ‘absurd’,
in particular the allegation that the speaker is frustrating
councillors and refusing
to call a special meeting, and referred to
the so-called attempts that have been made to hold the meetings in
the beginning of
May 2024. The applicant, however, fails to grasp the
significance of what the acting municipal manager stated in his
letter of
3 May 2024, as mentioned above, namely that there is no
need to call any special meeting as the speaker ‘has complied
with
his duties’. The impression is created that councillors
got three chances to attend a special meeting and because the
meetings for some reason did not proceed, that is the end of the
matter: the speaker has done his job and too bad if the meetings
did
not proceed.
[25]
The applicant furthermore alleged that the first respondent ‘directed
Mr Khathide to call
a meeting, which was initially set for 17 May
2024 and later postponed to 21 May 2024’. The applicant also
alleged that in
terms of section 29(1A) of the Act, and in the
absence or refusal of the municipal manager or the acting municipal
manager to call
a meeting as requested, then the first respondent,
‘make call and share the meeting’. It is assumed that the
applicant
was attempting to say that the first respondent may call
and chair the meeting.
[26]
Section 29(1A) of the Act reads as follows:
‘
If
the speaker or acting speaker refuses to call a meeting of the
council as requested in terms of subsection (1), the municipal
manager, or in the absence or refusal by the municipal manager, a
person designated by the MEC for local government in the province,
may call and chair the meeting.’
It
is, in my view, clear from the wording of section 29(1A) that the
first respondent will designate a person who may call and chair
the
meeting. The first respondent is clearly not the person who is to
call and chair the meeting. From the correspondence attached
to the
applicant’s affidavit, it is clear that the first respondent
did in fact designate Mr Khathide to call and chair the
meeting. The
applicant, however, failed to cite Mr Khathide as a respondent,
despite the fact that he issued the notices to call
the meeting for
17 May 2024 and thereafter for 21 May 2024.
[27]
The applicant further alleged that the first respondent is not
permitted to interfere, that she
was encroaching on powers she cannot
exercise, and that she makes a false allegation that the speaker is
to blame. He also alleged
that her entire purpose is to convene a
meeting on her terms and through her own agenda, which cannot be
allowed. The applicant
also alleged that the first respondent
‘distorts section 29 for an ulterior purpose’ and that
she is bound by section
105 of the Local Government: Municipal
Systems Act 32 of 2000 (which deals with the provincial monitoring of
municipalities by
the first respondent) and cannot rely on ‘Section
109 of the Structures Act’. This is presumably another error
and
was meant to refer to section 29 of the Act. The applicant also
stated that, if anything, the matter should be referred back to
the
speaker or acting municipal manager for them to reconvene a meeting.
[28]
The applicant only deals with the question of urgency, under that
heading, in the last paragraph
of his founding affidavit. For the
sake of expedience, I will simply quote it in full:
‘
For
most of the reasons above this matter is urgent. In addition thereto
I wish to add that defective motions are supposed to be
withdrawn.
This was not done. The First Respondent is acting ultra vires and not
warranted to hold a special meeting based on those
motions to remove
the Speaker and myself. This will have life threatening consequences
on us. We will lose our jobs and livelihood
due to procedural
irregularities that were not rectified. I am therefore in a position
of facing irreparable harm should this unorthodox
meeting of the 21st
May 2024 be allowed to sit. The balance of convenience favours me as
the First Respondent for reasons as stated
above cannot hold a
special meeting on those motions. I have a
primae
facie
right to bring this application
and have the meeting stopped. I respectfully submit that there is no
other remedy accept approach
this Honorable Court for relief.’
(Exact wording used.)
[29]
There are no specific reasons mentioned by the applicant, only the
various allegations referred
to above. The applicant furthermore
mentions the requirements of an interim interdict, but only in
passing, with no substance and
to merely pay lip service to the
particular requirements.
[3]
The
applicant makes no mention of the requirements of the GLAA and
provides no reasons why condonation should be granted for the
clear
non-compliance with the Uniform Rules of Court. It is trite that
condonation is not merely for the asking and that a case
must be made
out by the applicant.
[4]
[30]
This last quoted paragraph concluded the applicant’s founding
affidavit. Nothing whatsoever
is said about the issue of costs,
despite the fact that the applicant sought costs on a punitive scale,
which order was granted
as part of the rule nisi.
The applicant’s
second application
[31]
Subsequent to the order granted on 20 May 2024 by R Singh AJ, the
applicant brought another urgent
application on 23 May 2023 under the
same case number, before the same judge, this time seeking the
following relief:
‘
1.
That the Application be heard on an urgent basis and that the Rules
and forms of normal service be and is hereby dispensed herewith.
2.That a rule
nisi
be and is hereby issued calling upon the Respondents to show cause on
the 6 th day of August 2024 why an order in terms of (1)
above should
not be made.
2.1 That the meeting
convened by the First Respondent on Tuesday 21
st
May 2024
at the Umvoti Municipal offices in contravention of the court order
under case number 7940/ 2024P issued by this Honorable
Court on the
20th May 2024 be and is hereby declared null and void and is
accordingly set aside;
2.2 That the First
Respondent is hereby declared in contempt of the court order under
case no 7940/24p issued on the 20
th
May 2024.
2.3 That the First
Respondent pay the costs of this application on the attorney and own
client scale.
3. Further and/or
alternative relief.
4. That para 2.1, 2.2 and
2.3 above operate as an interim interdict.’
[32]
The second application was brought about as a result of Mr Khathide
having proceeded with the
meeting on 21 May 2024 at 10h00. The court
order of 20 May 2024 was only served by the sheriff of the high court
on Mr Khathide
at 11h51. The second application was opposed by
the first respondent and fortunately, no relief was granted apart
from adjourning
the matter to 6 August 2024 and directing the filing
of further affidavits by certain dates. I do not intend to address
this application
in any detail as it should in my view simply fall
away in light of the setting aside of the order granted on 20 May
2024.
The
application to anticipate
[33]
The first respondent filed a notice to anticipate the rule nisi
issued on 20 May 2024. Mr Khathide
attested to the first respondent’s
answering affidavit.
[34]
Uniform rule 6 makes provision for two possible scenarios where an
order was granted in the absence
of a person or party, namely, where
it was granted without notice or where it was granted in his or her
absence in an urgent application.
[35]
Uniform rule 6(8) states that ‘any person against whom an order
is granted
ex
parte
[5]
may anticipate the return day upon delivery of not less than
twenty-four hours’ notice’. Furthermore, ‘[t]he
provisions of this subrule only apply where an order has been granted
against a person
ex
parte
and where a return day has been fixed. The subrule comes to the aid
of a person who has been taken by surprise by an order granted
ex
parte’.
[6]
[36]
Uniform rule 6(12)
(c)
states that ‘[a] person against whom an order was granted in
such person’s absence in an urgent application may by
notice
set down the matter for reconsideration of the order’. Uniform
rule 6(12) deals with urgent applications.
Erasmus
states that ‘[t]he absence of the aggrieved party has been
termed the “underlying pivot” to which the exercise
of
the power under the subrule is coupled’.
[7]
Its purpose ‘is to afford an aggrieved party a mechanism
designed to redress imbalances in, and injustices and oppression
flowing from an order granted as a matter of urgency in his absence
[and] to address the . . . prejudice because of an absence
of
audi
alteram partem
when the order was made’.
[8]
[37]
A court dealing with a reconsideration application, ‘should do
so with the benefit not
only of argument on behalf of the party
absent during the granting of the original order but also with the
benefit of the facts
contained in affidavits filed by all the
parties’.
[9]
Erasmus
further states that
[10]
‘
the
court has a wide discretion and the factors which may determine
whether an order falls to be reconsidered, include the reasons
for
the absence, the nature of the order granted and the period during
which it has remained operative. Other factors to be taken
into
consideration will be whether an imbalance, oppression or injustice
has resulted, and, if so, the nature and extent thereof,
and whether
alternative remedies are available [and] the convenience of the
parties…’
[38]
Mr Khathide confirmed what was already apparent from the applicant’s
own papers, namely
that the first respondent had been given 20
minutes to respond to the application. He emphasised that a vast
number of legal documents
are processed daily by the first
respondent’s office and that the legal department had not even
seen the application papers
by the time the matter was heard. He
referred to the GLAA and pointed out that the application papers made
no case out as to why
the required notice period of 72 hours was
shortened or why condonation should be granted for the lesser notice
period. I have
already alluded to these issues above.
[39]
Mr Khathide stated that had the first respondent been given
sufficient time to respond, several
issues would have been brought to
the court’s attention. He indicated that the order obtained by
default against the first
respondent interdicted her from holding the
special council meeting on 21 May 2024. She was, however, never about
to hold a meeting,
as she had designated him in terms of section
29(1A) of the Act to call and chair the meeting in question. Mr
Khathide stated that
the first respondent, as a matter of law, could
no longer reverse her own decision of 14 May 2024 to designate him to
call and
chair the meeting. He further referred to the letter dated
16 May 2024, addressed by the applicant to him, in which he raised
various
issues in an attempt to stop the meeting, and which was
attached to the applicant’s papers. He stated that the
applicant
knew very well that he was in charge of the meeting. It
follows that the relief sought to stop the meeting should have been
directed
to him, as the first respondent was
functus officio
.
[40]
Mr Khathide alluded to the previous application brought to stop the
councillors from calling
for a special council meeting aimed at
removing the applicant and the speaker. It appears that the matter
was brought under case
number 6682/2024. He stated that the
application was unsuccessful. Despite a diligent search in the
registrar’s office and
enquiries with the previous judge who
dealt with the matter, this file cannot be located. As mentioned
above, the applicant has
failed to disclose these proceedings in his
founding affidavit. Mr Khathide stated that it was patently clear
that the speaker
and the acting municipal manager had no intention or
desire to call the meeting or to ensure that it was held.
Importantly, in
my view, he questions why the applicant would feel
aggrieved by the assistance of the first respondent to ensure that
the meeting
is held.
[41]
Mr Khathide also stated that the first respondent’s reasons for
designating him to call
the meeting were set out in her letter of 14
May 2024 (annexure PGM 15 to the founding affidavit) and whether the
applicant agrees
with those reasons or whether those reasons were
reasonable, are for a court reviewing the decision to decide, and
should not be
decided in an urgent application. It was further stated
that the only relief the applicant may perhaps procedurally have been
entitled
to by way of an urgent interdict, was against himself, as he
was delegated to hold the meeting. The order granted by default was,
in law, ineffective and unenforceable against the first respondent.
Mr Khathide confirmed that the court order of 20 May 2024 was
served
on him after the meeting had concluded, and, which as mentioned
above, led to the further application on 23 May 2024, where
the
applicant sought
inter alia
that the meeting be declared null
and void. The court did not grant any interim relief.
[42]
Mr Khathide pointed out that the applicant, however, brought another
application on 28 May 2024,
with the speaker as the second applicant,
under a new case number, before a different judge. The applicant
sought to interdict
the first respondent from removing the applicant
and the speaker from office pursuant to the decisions taken at the
meeting on
21 May 2024. It was alleged that the relief was similar to
that sought but not argued on 24 May 2024. The first respondent was
given two hours’ notice, but despite opposing the relief and
asking time to file an answering affidavit, the relief sought
was
granted on an interim basis. This is the other matter referred to
above, where I likewise made an order discharging the rule
nisi
issued by Keshav AJ on 28 May 2024.
[43]
In closing, Mr Khathide stated that the applicant is abusing the
process of the court and is
thwarting the process in which the
majority of councillors have voted to remove him and the speaker from
their positions.
The
applicant’s reply
[44]
The applicant raised a point
in
limine
in respect of Mr Khathide’s authority to depose to the
answering affidavit on behalf of the first respondent, despite
pointing
out that Mr Khathide is the person who ‘is instructed
by the first respondent at all material times’. Much was made
of the first respondent not deposing to a confirmatory affidavit. The
applicant also stated that it is not ‘court protocol’
for
Mr Khathide to depose to the affidavit as he is not one of the
respondents. This is, in my view, clearly incorrect, as the
person
who can make an affidavit in support of an application need not be
the applicant himself but can be any person who can provide
the
necessary material to support the application.
[11]
I cannot see why this would not be the same position for a
respondent.
[12]
The applicant
has attached all the relevant correspondence to his founding
affidavit, which clearly sets out the position of Mr
Khathide and in
essence speaks for itself. Had the applicant chosen to review the
first respondent’s decision to designate
Mr Khathide, I would
have expected her to attest to an affidavit, but this is not what the
applicant did. In my view, there is
no merit in this point raised.
[45]
The applicant stated further that there was no need to anticipate the
return date simply because
the order was granted in the first
respondent’s absence, as the papers had been served before the
application was heard.
I have referred to the relevant authorities
above. Uniform rule 6(12)
(c)
makes provision for this exact situation. The applicant’s
apparent ignorance of this provision surprises me, especially as
a
similar situation arose in
Mavundla
v Umvoti Local Municipality and others,
[13]
where Chetty J dealt with an application for reconsideration, and
ended up discharging a rule nisi granted on an urgent basis in
favour
of the same applicant as in the present matter, in the absence of the
respondents in that matter.
[46]
The applicant alleged that the matter was only heard at 14h00 as the
applicant was requested
by the judge to re-serve the papers, as the
first respondent’s employee had not written the time when he
had received the
papers, which was subsequently done. The applicant
alleges that ‘even then the first respondent was not keen to
appear before
the Honourable Court’. This was apparently
because she ‘had the mindset that nothing must stop the
meeting, it must
proceed on the defective motions and be finalised
and the decisions must be executed’. As mentioned above, the
alleged defective
motions were not attached to the founding papers
and were likewise not attached to the replying affidavit. The
correspondence attached
to the applicant’s affidavit makes it
clear, as shown above, that the first respondent designated Mr
Khathide to call the
meeting after she received a petition from the
majority of councillors. The fact that the first respondent’s
employee had
only apparently added the time he received the papers on
the page included to show proof of receipt, still does not mean that
the
papers came to the attention of the first respondent or the legal
department, for that matter.
[47]
The applicant’s response to the allegation of non-compliance
with the GLAA is as follows:
‘
Enough
Counsel have come up with the 100 year old General Law Amendment Act
but none have succeeded. This Honourable Court cannot
be fooled.
Urgent applications can be brought and the normal rules and forms of
service dispensed with as long as there is no great
prejudice to the
other party- Mphelo v Minister of Defence and Another (4190/ 2014 )
ZAFSHC 186 (16 October 2014). The First Respondent
is grasping at
straws. She does not address the issue as to why she acted
unlawfully
.’
The
disrespectful tone aside, the applicant in
Mphelo
[14]
actually included a specific paragraph in the notice of motion,
seeking condonation for the non-compliance with the provisions
of
section 35 of the GLAA and addressed the reasons for the non-
compliance in the founding papers. The court granted condonation
because there was no prejudice to the respondents. In the present
matter, the applicant has not even mentioned the provisions of
the
GLAA, let alone made out a case or asked for condonation for the
clear non-compliance.
[48]
The remainder of the applicant’s reply contains a number of
argumentative, insulting, and
disrespectful allegations and remarks
which have no place in court papers. Despite it being common cause
that there was no appearance
on behalf of the first respondent, the
applicant maintains that no order was granted by default and that the
application papers
made out a clear case which satisfied the court
who granted the order. The applicant asked that the rule nisi be
confirmed and
that the first respondent be ordered to pay the costs
of the application as well as the anticipation on an attorney and own
client
scale.
[49]
Before me at the hearing of the matter, counsel for the first
respondent, Mr A De Wet SC, referred
to a number of issues, many of
which I have already touched on above. He referred to the obvious
failure of the applicant to address
or comply with the provisions of
the GLAA. He submitted that none of the councillors who requested the
meeting and whose rights
were being affected, had been cited as
respondents. It was also submitted that the first respondent may, and
had in this instance,
designated Mr Khathide to call and chair the
meeting and that this was a classic case of the first respondent
being
functus officio
as far as the meeting was concerned. It
was further submitted that the applicant should be ordered to pay the
costs of the application
on a punitive scale for the following
reasons: his failure to comply with the GLAA, that he in essence
obtained relief against
persons not cited, that the first respondent
was given insufficient time to respond, and that he was silent on the
previous application
brought against the councillors in which no
relief was granted.
[50]
Ms Pillay, appearing on behalf of the applicant, submitted that the
applicant had a right to
approach the court as the first respondent
cannot hold a meeting on defective motions. She conceded that no
mention was made in
the founding papers of the previous application
brought against some of the councillors. When asked why the
councillors had not
been joined, it was simply submitted that the
first respondent called the meeting and that the councillors had
already been to
court in the previous application and were made aware
of their defective motions. No proper answer was forthcoming, perhaps
because
there is no explanation for what is, in my view, a clear case
of non-joinder of the councillors. Despite a concession that the
defective motions were not attached to the papers, I was urged to
consider the effect of allowing the meeting of 21 May 2024 to
stand,
which was held based on these defective motions. It was submitted
that I should not discharge the rule as the applicant
had the right
to approach the court. If there was, however, a problem with urgency,
I should discharge the rule with no order as
to costs.
[51]
Mr De Wet in reply submitted that the first respondent only needs to
be asked to hold a meeting
and does not have to be provided with
motions. It was submitted that the first respondent explained in the
correspondence attached
to the applicant’s affidavit what
prompted her to decide to designate someone to call a meeting, which
she did after receiving
a request from the councillors for a meeting.
Findings
and conclusion
[52]
Having considered the papers and the submissions made, I was of the
view that the order of 20
May 2024 had to be set aside. I was called
upon to reconsider the order of 20 May 2024. I would not have
condoned the applicant’s
non-compliance with the GLAA nor the
extreme short service on the first respondent. I am further of the
view that the applicant
has failed to join the councillors, who
clearly had a direct and substantial interest in the relief being
sought. The applicant
has further failed to join Mr Khathide who, on
the applicant’s own case, was the person who called the
meetings, after being
designated to do so in terms of section 29(1A)
of the Act. I am furthermore of the view that the applicant’s
failure to disclose
the previous urgent application is material and,
on its own, would justify a punitive cost order. The applicant also
failed in
my view to establish any of the requirements for an interim
interdict. For instance, what was stated in respect of the balance of
convenience makes no sense, nor does the statement in respect of
alleged irreparable harm. Even if what the applicant stated in
the
last paragraph, quoted above, somehow establishes the requirements, I
would not have exercised my discretion in the applicant’s
favour, especially bearing in mind all the shortcomings mentioned. I
have furthermore taken all the points raised on behalf of
the first
respondent on the issue of costs, as mentioned above, into account in
exercising my discretion to award punitive costs.
[52]
It is for these reasons that I made the order.
____________________
E BEZUIDENHOUT J
Date
of hearing: 19 June 2024
Date
of reasons: 16 August 2024
The
reasons were handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLII.
The date and time for hand down is deemed to be 12h00 on 16 August
2024.
Appearances:
For
the applicant: Ms S Pillay
Instructed
by: Surendra Singh & Associates
225
Langalibalele Street
Pietermaritzburg
Tel
033- 3450616
Fax
0864615835
Email
:
sue@singhandsingh.co.za
For
the first and second respondents: Mr A de Wet SC
Instructed
by: Xaba Attorneys
223
Boom Street
Pietermaritzburg
Tel
033-345 7927
Email:
mail@xabainc.com
Ref
D Xaba /S Nene/ pnn/01
[1]
D
E van Loggerenberg
Erasmus:
Superior Court Practice
(RS 23, 2024) at D1 Rule 10-3 to 10-4. (‘
Erasmus
’).
[2]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004
(6) SA 222
(SCA);
MEC
for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC)
.
[3]
See
Setlogelo
v Setlogelo
1914
AD 221
at 227 and
Breedenkamp
and others v Standard Bank of South Africa Ltd and another
2009
(5) SA 304
(GSJ) paras 42-44 where the requirements for an interim
interdict are set out.
[4]
Grootboom
v National Prosecuting Authority and another
[2013]
ZACC 37
;
2014 (2) SA 68
(CC) para 23.
[5]
Without
notice to anyone.
[6]
Erasmus
at
D1 Rule 6-47.
[7]
Erasmus
at D1
Rule 6-60.
[8]
Ibid
at D1 Rule 6-62.
[9]
Ibid.
[10]
Ibid
at D1 Rule 6-63.
[11]
Erasmus
at
D1 Rule 6-9, where the author deals with who can execute an
affidavit.
[12]
See
Drift
Supersand (Pty) Limited v Mogale City Local Municipality and another
[2017] ZASCA 118
;
[2017] 4 All SA 624
(SCA) para 31 where the SCA
held that: ‘
This
might be an acceptable way of placing non-contentious or formal
evidence before court, but where, as here, the evidence of
a
particular witness is crucial, a court is entitled to expect the
actual witness who can depose to the events in question to
do so
under oath’.
[13]
Mavundla
v Umvoti Local Municipality and others
[2017]
ZAKZPHC 35. See in particular what was held at paras 49 and 50.
[14]
Mphelo
v Minister of Defence and another
[2014] ZAFSHC 186.