IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
INDEPENDENT SOUTH AFRICAN NATIONAL CIVIC
ORGANISATION (ISANCO)
BAKOENA STEPHEN RAMOSIE
TSHOKOLO STOFFEL SIBEKO
and
LENWABO NQONQO
MAT JHABENG LOCAL MUNICIPALITY
MOLAHLEHI JACOB RANTSO
MANGALI ELISA MAHLAKU
ELECTORAL COMMISION OF SOUTH AFRICA
JUDGMENT BY: MHLAMBI, J
HEARD ON: 19 SEPTEMBER 2024 Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: 2880/2024
1st Applicant
2nd Applicant
3rd Applicant
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
5th Respondent
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DELIVERED ON: 30 JANUARY 2025
[1] The applicant seeks an order in the following terms:
1. That the first respondent's actions in refusing to execute the Local
Government , Municipal Structures Act, 117 of 1998 concerning ISANCO
vacancies at Matjhabeng Local Municipality be declared unlawful and set
aside.
2. That the first respondent be directed and ordered to execute the Local
Government , Municipal Structures Act, 117 of 1998 by declaring vacancies
of two PR Councillors of ISANCO as per ISANCO letter dated 12 March
2024 under section 27(6) of the Local Government , Municipal Structures
Act 117 of 1998.
3. Ordering the first respondent to facilitate reinstatement of the second
applicant and the third applicant as ISANCO PR Councillors within the
Matjhabeng Local Municipality Councillor of the second respondent with
immediate effect.
4. Ordering the first respondent to facilitate back pay remunerations of the
second applicant and third applicant as of the last date of payment of their
salaries in May 2022 to the date of their reinstatement as first applicant's
PR Councillors in the council of the second respondent within seven (7)
working days from granting this order.
5. The first and second respondent's /or any other parties opposing this
application shall pay costs of the application , jointly and severally, with the
first and second respondent; and
6. Granting of further and/or alternative relief, as it may be necessary.
[2] The first applicant is an independent civic organization registered in terms of the
Electoral Laws of the Republic of South Africa, with its principal place of business
being Old Traffic Building, Corner Jan Hofmeyer Road, and Arrarat, Doorn,
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Welkom. The second applicant is the first applicant's presid~nt, who served as
its secretary general until his election as the president on 09 June 2023. He was
a PR Councillor at Matjhabeng Local Municipality from 01 November 2021 until
May 2022. The third applicant is the first applicant's Free State Provincial
Chairperson, who was a PR Councillor at the Matjhabeng Local Municipality with
effect from 01 November 2021 to May 2022.
[3] The first respondent is the second respondent's Municipal Manager at its
principal place of business at 319 Stateway, Welkom Free State. The third and
fourth respondents were PR Councilors, with the second respondent. The fifth
respondent is the MEC of the Free State Department of Cogta, and the sixth
respondent is the Electoral Commissioner of South Africa as defined in section
3(1) of the Electoral Commission Act 56 of 1996.
[4]. On 26 January 2024, the third and fourth respondents received from the office of
the first applicant's president , notices confirming their expulsion as members of
the first applicant in which they were instructed to submit their letters of
resignation to the Council Speaker, Municipal Manager, and the party Secretary
General's office, resigning as the first applicant's PR Councillors and vacating
their seats in the Matjhabeng Municipality within seven (7) working days from the
date of receipt of the notices. A letter dated 12 March 2024 was dispatched from
the same office to the first respondent, informing him of the decision to remove
and withdraw the third and fourth responde nts as the first applicant's PR
Councillors with the second respondent. The second and third applicants were
to be reinstated to occupy the two vacated seats. (more of this later).
[5] A letter dated 22 March 2024 was sent to the applicants demanding immediate
changes of the council's party public representative and that the first respondent
should communicate the same to the fifth respondent. When the applicants failed
to respond, the respondents threatened legal action as per their letter of 10 April
2024.
[6] On 07 April 2022, the Council Speaker had to convene a special council meeting
to debate the motion. However, the speaker called off the meeting due to certain
developments that concerned the first applicant's removal ·of the second and third
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applicants and the first applicant's internal disputes serving before the courts. On
21 June 2022, the applicants communicated their dissatisfaction to the
respondents regarding the removal of the first applicant's representatives from
the second respondent, and the matter was challenged in the Free State High
Court.
[7] The first and second applicants opposed the motion. As their answering affidavit
w~s filed late, the respondents applied for the condonation of its late filing. In the
interests of justice, the applicants did not oppose the application . I am satisfied
/
that the delay period was short and that good cause was shown for the fact that
the relevant papers were not filed on time. The application for condonation is
granted.
[8] The respondents opposed the application on the basis that:
1. The first and second applicants lacked legal standing to represent the third
applicant. The notice of motion stated that "the above-named applicant"
intended to apply to the court for the relief set out in the notice of motion
and did not indicate whether such relief was applied for by the first applicant
(ISANCO), the second applicant, or the third applicant. In terms of prayers
3 and 4 of the revised notice of motion, relief was sought regarding the
reinstatement of the second applicant, Mr Ramotsie , as well as the third
applicant, Mr Sibeko, as ISANCO PR Councillors within the Municipal
Council and that the first respondent be ordered to facilitate their back pay
remunerations from the last date of the payment of their salaries in May
2022 to the date of their reinstatement.
[9] According to the applicants, the remuneration of the second and third applicants
related to their rights, which could not be enforced by the first applicant, ISANCO,
on their behalf. The first applicant's constitution did not empower ISANCO or any
of its structures to institute such legal proceedings on behalf of any of its
members . It is also not the first and second applicants' cases that they were duly
authorized to depose to the founding affidavits in support of the relief on behalf
of the third applicant or that they were authorized to institute these proceedings
on his behalf. The third applicant did not depose to a confirmatory affidavit or any
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other affidavit to support the relief sought on his behalf. The first and second
applicants were own-interest litigants and did not act in any representative
capacity on behalf of the third applicant.
[1 O] They contended that the relief regarding prayers 3 and 4 of the revised notice of
motion was inconsistent with the other relief. The court was requested in prayers
1 and 2 of the revised notice of motion, to direct the Municipal Manager to declare
vacancies of the two ISANCO councillors' seats in the Municipal Council
according to section 27(1)(c) of the Municipal Structures Act. This section
provides that the Municipal Manager must notify the Chief Electoral Officer within
14 days after the councillor has ceased to hold office. In writing, the Chief
Electoral Officer must declare the persons whose names are at the top of the first
applicant's party list to be appointed to fill the vacancies.
(11] The first applicant can, therefore, not dictate who should be appointed other than
in terms of the provisions of Schedule 1. The relief prayed for in prayers 3 and 4
of the revised notice of motion was inconsistent with the provisions of the
Municipal Structures Act, and the applicants failed to make out a case for
granting such relief.
(12] The filling of vacancies in the Municipal Council is regulated by Item 18 of the
Local Government: Municipal Structures Act No. 117 of 1998 (the Act), which
provides as follows:
"(1) (a) If a councillor elected from a party list ceases to hold office, the chief
electoral officer must, subject to item 20, declare in writing the person
whose name is at the top of the applicable party list to be elected in the
vacancy.
(b) Whenever a councillor referred to in paragraph (a) ceases to hold
office, the municipal manager concerned must within 14 days after the
councillor has ceased to hold office, inform the chief electoral officer .
accordingly .
(c) If the municipal manager of the municipality concerned does not
inform the chief electoral officer of the vacancy referred to in
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paragraph (a), the MEG for local government in the province, must
inform the chief electoral officer of the vacancy within 14 days where
the municipal manager does not.
(2) Where a party list has become exhausted, item 17, adjusted as may
contextually be necessary, applies to the supplementation of the list, and if
the party fails to supplement its list, or if the party has ceased to exist, the
vacancy must remain unfilled."
[13) Section 27(1)(c) of the Act provides that a_ councillor vacates office during a term
of office if that councillor was elected from a party list referred to in Schedule 1
or 2 and ceases to be a member of the relevant party.
[14) It is, therefore, crystal clear that the first two prayers in the notice of motion
cannot be granted as they do not comply with the provisions of the Act. In terms
of the Act, the first respondent can only inform the chief electoral officer, who, in
turn, must, subject to Item 20 of Schedule 1, declare in writing the person at the
top of the applicable party's list to be elected in the vacancy.
[15) In its founding affidavit, the applicants briefly stated that the second respondent
wrongfully declared the ISANCO PR councillors vacancy on 11 May 2022 to
protect the removal of the Executive Mayor at the expense of the removal of
ISANCO councillors as those councillors were initiators who filed a motion of no
confidence against the second respondent's Executive Mayor. In response, the
respondents stated in the answering affidavit that on 22 March 2022 the first
applicant informed the second respondent's municipal manager, Ms Zingisa
Tindleni, that the membership of both the second and the third applicants was
terminated and that the third arid fourth respondents should replace them as
council members.
[16} On 09 May 2022, the municipal manager informed the IEC of the two vacancies
and requested the IEC to facilitate the process for filling the vacant posts. On 17
May 2022 the IEC confirmed that the vacancies should be filled by the third and
fourth respondents. The third and fourth respondents were elected as councils
and filled the ISANCO vacancies.
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[17] It would appear that there is a tussle for the leadership of the first applicant which
led to litigation in the High Courts and has as yet not been resolved. The
respondents referred in their answering affidavit to the latest court case relating
to the dispute that arose surrounding the status of the second applicant to
represent the first applicant. The application served before Naidoo, J on 20 June
2023 in the Free State High Court when she dismissed the application and
ordered, amongst, that the second applicant should be directed to personally pay
the costs of the applicant, who happens to be the first applicant in this application.
[18] They further pointed out that the second and third applicants do not seek relief
declaring their removal as councillors to have been unlawful and void, in the
absence of which they are not entitled to be reinstated·. Such relief would be
founded on the principle of legality or the review of an administrative decision.
The applicants unreasonable delayed the institution of such an application for
more than two (2) years after their removal as councillors . In the absence of an
order for reinstatement, the issue of the facilitation of back pay remunerations
falls by the way side. It is evident that the relief sought in prayers 3 and 4 lack
merit and should be rejected.
[19] It is trite that the successful party is entitled to the costs.
(20] I therefore make the following order.
Order:
1. Condonation is granted for the late filling of the first and second respondents'
answeri~g affidavit.
2. The application is dismissed with costs to be paid by the applicants , jointly and
severally, the one paying the other to be absolved which shall include counsel
fees on scale 8.
On behalf of the Applicant: Mr_AJ Kleihgeld
Instructed by: Kleingeld Attorneys Inc
42 Totius Street
Langenhoven Park
Bloemfontein
On behalf of the Defendant: Adv. CD Pienaar
Instructed by: Honey Attorneys
Northridge Mall
Kenneth Kaunda Road
Bloemfontein 8