IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 2025-093494
Reportable YES/N0
In the matter between:
MAMELLO LETEBA 1st Applicant
SIMPHIWE MDODA 2nd Applicant
BANDILE NGOQI 3rd Applicant
MTHOBELI SIPHAMLA 4th Applicant
and
THE ELUNDINI LOCAL MUNICIPALITY 1st Respondent
THE MUNICIPAL COUNCIL OF ELUNDINI
LOCAL MUNICIPALITY 2nd Respondent
THE SPEAKER OF ELUNDINI
LOCAL MUNICIPALITY 3rd Respondent
THE MUNICIPAL MANAGER OF ELUNDINI
LOCAL MUNICIPALITY 4th Respondent
NONKONGOZELO RUTH LENGS 5th Respondent
KGOTSOFADISE ABEDNEGO MGIJIMA 6th Respondent
NOLWAZI MDITSHANE 7th Respondent
CHRISTOPHER BOOKA 8th Respondent
JUDGMENT
CENGANI-MBAKAZA AJ
Introduction
[1] Before this court is an application for an order in terms of s 160(8) of the
Constitution of the Republic of South Africa (the Constitution) 1, concerning the
Special meeting held on 16 April 2026 (the Special Council Meeting).
[2] The applicants seek an order declaring that the Special Council Meeting,
is in breach of s 47(1)(b) read with s 53 of the Local Government Municipal
Structures Act 117 of 1998 (Municipal Structures Act), in that adequate notice
was not issued in accordance with the provisions of Rule 8.3 read with Rule 24
of the Council and Committees of the Elundini Local Municipality (the
Standing Rules and Orders), and is therefore null and void.
1 Act, 1996. Section 160(8) of the Constitution provides:
‘Members of the Municipal Council are entitled to participate in its proceedings and those of its committees in a
manner that-
(a)…
(b) is consistent with the democracy; and
(c ) may be regulated by national legislation’.
[3] The applicants further seek an order declaring that the fourth respondent,
in calling and convening the Special Council meeting, did not act in good faith,
honestly and transparently and not in the best interest of the municipality.
[4] In addition, the applicants seek an order setting aside the appointment of
Nonkongozelo Ruth Lengs (the fifth respondent) as the new mayor of Elundini
Local Municipality and declaring such appointment on 16 April 2026 to be null
and void, on the grounds that she is not a competent candidate in terms of s
48(5) of the Municipal Structures Act.
[5] The applicants further seek an order setting aside the appointments of
Kgotsofaditse Abednego Mgijima (the sixth respondent) and Christopher Booka
(the eighth respondent) as new members of the Executive Committee, and
declaring their appointments to be null and void.
[6] Furthermore, the applicants seek an order for retrospective reinstatement
in that the applicants’ attendant benefits and emoluments remain extant and
unaffected by the impugned removal of the Special Council Meeting. Moreover,
the applicants seek an order declaring that the Special Council Meeting is
unlawful and that the resolutions taken thereat are invalid and therefore set
aside.
[7] The applicants seek an order interdicting and restraining the first to fifth
respondents from removing the applicants without following due process in
future. Alternatively, the applicants seek an order granting prayers 1 to 9 as
interim relief, pending a review application to be launched by the applicants
within 30 days of the granting of this order.
[8] The applicants further seek an order directing any respondent who
opposes this application to pay costs thereof, jointly and severally, the one
paying the other to be absolved.
The preliminary issues
[9] As a precursor to the main application, the applicants raised preliminary
points of urgency and the third respondent’s (the Speaker) authority to act in the
proceedings. At a later stage during the argument, it transpired that there is no
urgent matter before this court. Despite this, the applicants' counsel persisted in
his argument that the issue of the authority to act is dispositive of the main
issues before this court and should be dealt with.
[10] Counsel argued that in accordance with s 29 of the Municipal Structures
Act, the Speaker of the Municipal Council decides when and where the Council
meeting meets, and such Council meetings must be convened with the approval
of the majority of councillors.
[11] It was further argued that, in accordance with the Municipal Structures
Act, nowhere in the papers is it shown that the Speaker was delegated by the
Municipal Council to oppose this application on behalf of the respondents,
including herself.
[12] In contrast, counsel for the respondents argued that in the absence of a
Rule 7 notice, the applicants have no authority to challenge the Speaker’s
authority to act in these proceedings. I think without delving much into what
was argued on this point, it is apposite to deal with the factual and legal position
regarding this aspect:
[13] It is common cause that no notice in terms of Rule 7(1) of the Uniform
Rules was delivered by the applicants challenging the authority of the Speaker
to act. The legal position in relation to this aspect has not changed. Rule 7(1) of
the Uniform Rules of Court, as amended, provides that the power of the
attorney to act and the authority of anyone acting on behalf of a party may be
challenged on notice. The procedure is peremptory. A party who wishes to
dispute such authority must deliver a notice within ten days of becoming aware
that the person is so acting, calling upon such person to produce proof of
authority.
[14] It is common cause that no such notice was delivered by the applicants in
this matter. The applicants, having been served with an answering affidavit
deposed to by the Speaker, elected not to avail themselves of the remedy
afforded by the Rule.
[15] The consequence of such failure is well settled. In Eskom v Soweto City
Council2 and Unlawful Occupiers, School Site v City of Johannesburg, 3 the
2 1992 (2) SA 703 (W) at 705C-J.
Supreme Court of Appeal confirmed that absent a Rule 7(1) notice, the question
of authority may not be raised. Therefore, on this ground alone the preliminary
point must fail.
[16] In any event, as noted by the respondents’ counsel, the Speaker is cited as
a third respondent in these proceedings in her official capacity, and the relief
sought directly impugns her conduct as Speaker convening and presiding over
the Special Council Meeting. The requirement of authorisation arises where a
person purports to act on behalf of another. It does not arise where a party acts
in defence of her own conduct.
[17] A respondent who is sued in her own name does not require a resolution
or delegation to oppose the application. To hold otherwise would lead to the
untenable proposition that a functionary whose conduct is impugned must seek
permission from the very body she presides over in order to be heard. In this
instance, there is neither a factual nor a legal basis for such a proposition.
The merits
[18] The material facts are largely common cause. In her capacity as Speaker,
the third respondent convened a special council meeting aiming to deal with the
removal of the members of the Executive Committee of the first respondent as
well as the removal of the Mayor of the first respondent.
3 2005 (4) SA 199 (SCA) at para 14.
[19] To that end, a purported notice (notice) was issued to all councillors
affected, including the applicants. The administrative process was facilitated by
Mr Vukile Matyeni (Mr Matyeni), the administrative officer responsible for
council support services for the first respondent.
[20] On 13 April 3026, the notice convening the special council meeting,
together with the agenda thereof, was placed in the official WhatsApp group of
the first respondent’s councillors. The WhatsApp message was accompanied by
a Portable Document Format (PDF) version of the agenda stating in clear terms
that a special council meeting had been called for 16 April 2026 for purposes of
removal of members of the Executive Committee of the first respondent
municipal council, including the mayor.
[21] It is common cause that the agenda explicitly stated the purpose of the
meeting. The agenda in question is marked “VH -1”. On its face, it is titled as
follows:
“AGENDA OF A SPECIAL MEETING OF THE COUNCIL, DATED 16 APRIL
2026, TO BE HELD AT NQANQARHU TOWN HALL AT 11:00 . The agenda is
itemised as follows:
1. Opening and welcome;
2. Application for leave of absence;
3. Adoption of the agenda;
4. Declaration of interest and pledge of ethics;
5. Introduction and welcoming of Councillor;
6. Removal of the Executive Committee membership including mayor; and
7. Closure”
[22] Of relevance is item 6. It is common cause that the business that
ultimately formed the subject of the dispute between the parties was contained
in item 6 of annexure VH -1. Annexure VH-2 to the papers is a true copy of the
screenshot of the WhatsApp message referred to above. The screenshot depicts
the message by which the notice and agenda were distributed to the members of
the first respondent’s council. Annexure VH -2 further contains the read receipt
confirming receipt of the said message by members of the council. The
authenticity of annexure VH -2 as a record of the distribution was not placed in
dispute.
[23] On 14 April 2026, a further notice of the special meeting was delivered
by electronic mail. The distribution was effected by TT Mati, another
administrative officer in the employ of the first respondent. The notice was in
addition to the WhatsApp notice that was placed on the WhatsApp group on 13
April 2026 by Mr Matyi.
[24] The applicants averred that, although the meeting was held, it was not
properly convened and, consequently, any outcome flowing therefrom is invalid
and of no force or effect. Furthermore, they stated that, despite their
protestations, the majority voted in favour of the wrongful and unlawful
adoption of the agenda, and as a consequence, they were removed and
consequently dethroned.
The issues
[25] The crisp issue is whether the respondents acted contrary to s 160(8) of
the Constitution read with s 47(1)(b) and further read with s 53 of the Municipal
Structures Act, and whether any notice to remove the applicants, including the
Mayor, was issued in compliance with Rule 8.3 and Rule 24 of the Standing
Rules and Order.
The parties’ legal submissions
[26] The applicants’ counsel raised several interrelated issues, the most salient
of which are outlined below: Firstly, relying on s 29 (1) of the Municipal
Structures Act, he argued that a special meeting can only take place upon the
written request of a majority of councillors. As the meeting of the 16 th April
2026 was called mero motu, it was improperly convened.
[27] Secondly, that the notices annexed VH -1 and VH-2 were invalid because
Mr Matyi and TT Mati, who communicated the notices, were ‘merely
instructed’ and were not holders of a delegated authority in terms of s 59 of the
Municipal Systems Act to perform the function. In the absence of delegation,
the notices are a nullity.
[28] Thirdly, he argued that the meeting was not properly called in accordance
with the Standing Rules and Orders and the Constitution. Furthermore, the
requirements of the 48 hours’ notice were not complied with, thereby depriving
councillors of adequate time to prepare.
[29] Fourthly, in their papers, the applicants averred that they were not given
an opportunity to participate, in that an objection to the agenda was disregarded.
They pointed to the 16 versus 15 votes, arguing that such close division shows
that the agenda was contentious and should not have been proceeded with.
[30] Fifthly, that except for the notice and agenda, the applicants received no
separate notice of motion informing them that they would be removed from
office. Essentially, counsel submitted that the removal is a drastic measure
requiring specific prior warning, not merely a listing in the agenda.
[31] Sixthly, that Rule 24.1 of the Standing Orders was not complied with.
Counsel argued that Rule 24.1 requires a notice of motion signed by a mover
and a seconder to be issued before a motion can be moved. No such motion was
issued for the removal of the Executive Committee.
[32] Seventhly, that Rule 12.1 was not complied with in that the notice board
was not used to place the date of the meeting. Counsel submitted that the public
notice as required by the Rules was not given.
[33] Eighthly, that an agenda is not a notice. Counsel argued that VH -1 is an
agenda and cannot serve as a notice. A notice must give notice that a meeting
will be held, while an agenda only lists items. Therefore, no valid notice was
given.
[34] Ninthly, a notice must be clear. Counsel submitted that a valid notice
must state who the motion is to be moved against and who the mover of the
motion is. VH-1 merely states, ‘Removal of Executive Committee Membership
including Mayor’ without naming the individual members affected or naming
the mover and is therefore vague and invalid.
[35] The respondents’ counsel, on the other hand, contended, with reference to
Rule 12.1 of the Standing Rules and Orders, that notice of a special meeting
may be delivered in various ways, including delivery to a physical address and
delivery to a postal address.
[36] Counsel argued that in terms of the Electronic Communications and
Transactions Act 25 of 2002, the objective is to enable and facilitate electronic
communications and transactions in the public interest. To this extent, so it was
submitted, the Standing Rules and Orders recognise communication by
electronic means and, therefore, there is no basis for the suggestion that the
WhatsApp message did not suffice.
[37] Furthermore, by allowing themselves to be added to the councillor’s
WhatsApp group, the applicants acquiesced to the use of WhatsApp as a means
of communication with them. Additionally, counsel referred to Natal Joint
Municipal Pension Fund v Endumeni Municipality 4 and argued that a court,
when interpreting a document, must from the outset consider its factual matrix,
its purpose, the circumstances leading up to its conclusion, and the knowledge
at the time of those who negotiated and produced it.
[38] Therefore, in this instance, so he argued, the original power of the
Speaker to convene meetings is sourced from s 29(1) of the Municipal
Structures Act, which provides that the Speaker’s power to convene a meeting
vests in two distinct instances.
The legal framework and the court’s analysis
[39] In accordance with s 47(1)(b) of the Municipal Structures Act, a member
of an executive committee vacates office during a term if that member is
removed from office as a member of the executive committee in terms of s 53.
Section 53 of the Municipal Structures Act provides:
‘Removal from office of the executive committees
4 2012(4) SA 593 (SCA) at para 18.
53(1) A municipal council may by resolution remove from office one or more or all
members of its executive committee. Prior notice of an intention to move a motion for
the removal of members must be given…’
[40] The Standing Rules and Orders for meetings of the Council and
Committees of Elundini Local Municipality distinguish between two categories
of meetings. Rule 7(1) of the Standing Rules and Orders provides that ordinary
meetings shall be held once per quarter. In terms of Rule 7(2), the Speaker
determines the date, time, and venue of Council meetings, in accordance with
the Council calendar as approved by the Municipal Council.
[41] Then there is Rule 8 of the Standing Rules and Orders which governs
Special Council Meetings. This rule is the subject of these proceedings. It
provides:
‘The Council may hold special meetings as and when required. The Speaker
determines the date, time and venue of the special meetings of the Council, and must,
upon written request of a majority of the councillors of the Municipality, call a
special meeting at the time set out in such request, provided that no such special
meeting shall take place unless all councillors are given at least 48 hours notice
thereof.’
[42] This Rule mirrors s 29 (1) of the Municipal Structures Act which
provides:
‘The speaker of a municipal council decides where and when the council meets, but if
a majority of the councillors requests the speaker in writing to convene a council
meeting, the speaker must convene a meeting.’
[43] The applicants’ reading inverts the provision. The first clause vests an
original discretion in the Speaker to decide where and when Council meets. The
second clause is conditional and peremptory. If a majority requests, the Speaker
must convene. The majority request is not a jurisdictional prerequisite. It is a
democratic safeguard to compel a recalcitrant Speaker.
[44] If the applicants’ interpretation were accepted, the Speaker could never
call an urgent special meeting on her own initiative, and the first clause would
be rendered nugatory. That cannot have been the intention of the legislature. In
this instance, the meeting was convened under the first trigger - by the Speaker’s
own initiative. No written request by the majority was required.
[45] In relation to Mr Matyi and TT Mati’s instructions to issue notices, these
two administrative officers were merely instructed to issue notices; they were
not delegated under s 59 of the Municipal Systems Act. The transmission of a
notice of a meeting already called by a Speaker was an implementation of an
act, not a decision. Therefore, the argument positing that VH -1 and VH -2 are
invalid for want of delegation has no merit.
[46] Regarding the 48 hours’ notice, it is gleaned from the papers filed that
VH-2 proves that VH -1 was dispatched on 13 April 2026 at 11:00. That is 72
hours, which is in excess of 48 hours’ notice required by Rule 8 of the Standing
Rules and Orders. There is nothing to suggest that the Constitutional quorum
and majority requirements were not met.
[47] In relation to the objection to the agenda, one must acknowledge that the
right to participate encompasses a right to be notified, to attend, to be heard and
put to vote. In my view, this should not be conflated with a right to succeed. In
the present instance, the objection was raised, heard and put to vote. The agenda
was ratified by majority resolution. The Speaker was obliged to proceed with
the ratified agenda. The applicants participated, and they lost the vote.
[48] In addition, counsel’s argument that there ought to be a separate notice of
motion has no legal or factual basis. Section 29A of the Municipal Structures
Act and Rule 8 of the Standing Orders require a notice by way of ‘notice’ and
the agenda stating the business with sufficient clarity. No separate charge sheet
is required. In my view, item 6 titled ‘Removal of Executive Committee
Membership, including the Mayor’ met this significant requirement in that it
gave adequate warning of the nature of business.
[49] Counsel referred to Rule 12.1 of the Standing Rules and Orders, arguing
that the notice ought to have been placed on the notice boards. Rule 12.1 of the
Standing Rules and Orders provides,
‘ Whenever a meeting of the Municipal Council is called, the Municipal Manager
must give notice of the meeting stipulating the time, date and venue of the meeting by
placing a notice to this effect on a notice board situated at the main newspaper
circulating in the Municipality and by placing it on social media platforms and
municipal website.’
[50] This Rule is, in my view, not applicable in the circumstances of this case.
This Rule is only applicable to the public. As already noted above, notice to
councillors is governed by Rule 8. In any event, the purpose was achieved; the
applicants are councillors, they received the notice and participated in its
proceedings. Therefore, they suffered no prejudice in this regard.
[51] Notwithstanding the submissions that the Rules do not prescribe how a
notice should be formulated, the proposition that an agenda cannot constitute a
notice is misconceived. A notice is judged by whether it conveys essential
information and not by its label. In my view, a document that states where and
when Council meets is a notice. Similarly, a document that states what will be
discussed is an agenda. VH-1 is titled ‘Notice of a Special Meeting of Council’;
it states the date, time and venue, conveying the list of business.
[52] Therefore, as long as there is clarity in relation to the nature of business,
that suffices. Section 53 of the Municipal Structures Act contemplates removal
of ‘one’ or ‘more’ or ‘all members’. VH -1 conveys collective removal
including a Mayor. The applicants, as EXCO members, knew that they fall in
this class. The mover in a Rule 8 meeting is Council itself, convened by the
Speaker. No councillor could have been misled. Consequently, the application
must fail.
Order
[53] The following order shall issue:
1. The application is dismissed.
2. The applicants shall pay the costs of this application on Scale B, as
contemplated under Rule 67A read with Rule 69 of the Uniform
Rules of Court, jointly and severally, the one paying the other to be
absolved. The costs shall include the costs of two counsel so
employed
______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicants : Adv B Metu
Instructed by : Nompandana & Associates
C/O Zilwa Attorneys
Makhanda
Counsel for the Respondents : Adv AM Bodlani SC with Adv. Z
Mashiya- Nxazonke
Instructed by : V Funani Attorneys
C/O Ntsuntswana & Sons
Makhanda
Heard on : 14 May 2026
Judgment Delivered on : 27 August 2026