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[2014] ZAWCHC 42
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Kannaland Municipality v Minister for Local Government Environmental Affairs And Development Planning in the Western Cape and Another (20763/13) [2014] ZAWCHC 42 (24 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO: 20763/13
DATE:
24 MARCH 2014
REPORTABLE
In the matter
between:
KANNALAND
MUNICIPALITY
............................................................................
Applicant
And
THE MINISTER FOR
LOCAL GOVERNMENT,
ENVIRONMENTAL
AFFAIRS & DEVELOPMENT
PLANNING IN THE
WESTERN CAPE
......................................................
1st
Respondent
COUNCILLOR
ALBERTUS JOHANNES ROSSOUW
.............................
2nd
Respondent
JUDGMENT
:
TRAVERSO, DJP :
[1] This is an
application in terms whereof the applicant applies to review the
decision of the first respondent refusing to
remove the second
respondent as a councillor of the applicant Municipality.
[2] The request to
remove the second respondent was made in terms of Item 14(2)(e) of
the Code of Conduct for Councillors (“the
Code”), which
is contained in Schedule 1 of the Local Government: Municipal Systems
Act, No. 32 of 2000 (“the Systems
Act”).
[3] The facts
giving rise to this application are, in the main, common cause. I
will summarise them hereunder.
[4] The application
was triggered by the bridging of the second respondent’s
electricity meter. Bridging is a term used to
connote the bypassing
of an electricity meter resulting in the recipient of the electricity
not being charged for it.
[5] The second
respondent experienced problems with the supply of electricity to his
office, as a result whereof he contacted the
Head of the applicant’s
electricity department, a certain Mr. de Jongh, to assist him with
the problem. Mr. de Jongh and
two Municipal officers attended the
second respondent’s office and bridged the meter as an interim
measure so that the electricity
supply to his office was not
interrupted. The second respondent is a practicing attorney, who, in
May 2011, was elected as a councillor
of the Kannaland Municipal
Council, where he still serves.
[6] The bridging of
the meter took place in late November, early December 2011. The
second respondent was assured by Mr. de Jongh
that this was a
temporary measure and designed only to ensure the continued supply of
electricity to his practice.
[7] In December
2011 the second respondent closed his office for a period of
approximately a month over the festive season and
during that period
did not use any electricity. Upon his return from holiday he noticed
that his electricity meter had not yet
been replaced. He immediately
took this up with Mr. de Jongh, who gave him the assurance that he
would prioritise the matter.
The matter was however not attended to,
and Mr. de Jongh left the employment of the applicant in March 2012,
without having attended
to the replacement of the meter.
[8] Following a
Council meeting held on 3 April 2012 the second respondent again
approached a Municipal official, namely the Temporary
Director for
Technical Services, one Pieter van der Heever. The second respondent
informed him that the electricity meter at his
office had been
bridged and that, despite undertakings by Mr. de Jongh, had not been
replaced. Mr. van der Heever sent electricians
to inspect the meter
who confirmed that the meter had been bridged. The meter was then
replaced. Mr. van der Heever reported
this to the Municipal Manager,
who in turn advised the Speaker.
[9] The Speaker
conducted a preliminary investigation into the second respondent’s
conduct and reported the matter to the
Council at a meeting held on
or about 25 April 2012. The Council resolved that a full
investigation should be conducted and that
a special committee of
three councillors be established to make recommendations to the
Council.
[10] An
investigation was undertaken on behalf of the Council by a firm of
attorneys appointed to assist the Speaker. They compiled
an
investigation report, and the second respondent was given an
opportunity to reply in writing to the allegations.
[11] The applicant
resolved that a special committee should complete the investigation
into the allegations and that the second
respondent had breached the
Code of Conduct for Councillors.
[12] The special
committee held a disciplinary enquiry over a number of days during
2012. The second respondent was charged with
six counts of
contravening the Code, he pleaded not guilty to all of these charges
and was ultimately convicted of the following
four charges:
12.1 Charge 1:
Contravening the provisions of clause 2 of the Code of Conduct by
making use or allowing the use of an illegal electricity
[connection]
at erf 358 Ladismith for the period 18 October 2011 to 13 April 2012
and thereby compromising the credibility and
integrity of the
Municipality;
12.2 Charge 2:
Contravening the provisions of clause 2 of the Code of Conduct by
effecting and or causing and or allowing an illegal
electricity
connection and thereby compromising the credibility and integrity of
the Municipality;
12.3 Charge 4:
Contravening the provisions of clause 2 of the Code of Conduct by
effecting and or causing and or allowing to be
effected an illegal
electricity connection and thereby acting in a dishonest manner in
the execution of his functions as a Councillor;
12.4 Charge 6:
Contravening the provisions of clause 12 of the Code of Conduct by
effecting and or causing and or allowing to be
effected an illegal
electricity connection and thereby obtaining a benefit from the
assets of the Municipality.
[13] At a special
Council meeting held on 6 December 2012 the special committee
recommended that the Council request the MEC to
remove the second
respondent from office in terms of Item 14(2)(e) of the Code. In a
letter dated 11 December 2012 the Speaker
requested the MEC to remove
the second respondent from office.
[14] On 14 January
2013 the Deputy Director: Governance in the Department of Local
Government, Environmental Affairs and Development
Planning (“the
Department”), Mr. Mario Baatjes, contacted the Speaker and
requested a transcript of the disciplinary
hearing.
[15] On 8 February
2013 the recording of the hearing, which had in the interim been
received from the Applicant, was handed to
the service provider for
transcription. After the record of the disciplinary inquiry had been
transcribed, the Department prepared
a letter to the second
respondent enclosing copies of the documents received by the MEC and
requesting him to comment on them within
21 days.
[16] The second
respondent made his representation to the MEC and in an emailed reply
dated 27 March 2013. The MEC considered
the matter, discussed it in
weekly meetings he had with senior managers, including the Director:
Municipal Governance in the Department,
Mr. Seraj Johaar.
[17] The MEC then
considered the documents relevant to the matter, including the
submission prepared by Mr. Johaar, which reflected
their
deliberations since the second week of April 2013 with the benefit of
having had the relevant parts of the transcript drawn
to his
attention by Mr. Johaar and Mr. Baatjes.
[18] Based on the
evidence presented at the disciplinary hearing, the MEC formed the
opinion that the evidence did not establish
that:
18.1 on charges one,
two and four, the second respondent:
(a) had effected,
caused or allowed an illegal electricity connection;
(b) compromised the
credibility and integrity of the Municipality or acted in a dishonest
manner in the execution of his functions
as a councilor; and
18.2 on charge six,
the second respondent:
(a) had effected,
caused or allowed an illegal electricity connection; or
(b) obtained a
benefit from the assets of the Municipality.
[19] On 15 May 2013
the MEC informed the Speaker that after considering the relevant
information supplied to him, he was unable
to accede to the request
to remove the second respondent from office. He also stated that he
was of the opinion that the evidence
presented at the disciplinary
committee did not support a finding that the second respondent was
guilty of having caused or allowed
the illegal bridging of the
electricity meter.
[20] On 11 June
2013 the MEC was requested to provide reasons for his decision. In a
letter dated 10 July 2013 the MEC reiterated
his view that the
evidence did not, on a balance of probability, support a guilty
finding in respect of charges one, two, four
and six.
[21] I will now
deal with the provisions of Item 14 of the Code, which provides:
“(1) A
municipal council may-
(a) investigate and
make a finding on any alleged breach of a provision of this Code; or
(b) establish a
special committee-
(i) to investigate
and make a finding on any alleged breach of this Code; and
(ii) to make
appropriate recommendations to the council.
(2) If the council
or a special committee finds that a councillor has breached a
provision of this Code, the council may-
(a) issue a formal
warning to the councillor;
(b) reprimand the
councillor;
(c) request the MEC
for local government in the province to suspend the councillor for a
period;
(d) fine the
councilllor; and
(e) request the MEC
to remove the councillor from office.
(3) (a) Any
councillor who has been warned, reprimanded or fined in terms of
paragraph (a), (b) or (d) of sub-item (2) may within
14 days of
having been notified of the decision of the council appeal to the MEC
for local government in writing setting out the
reasons on which the
appeal is based.
(b) A copy of the
appeal must be provided to the council.
(c) The council may
within 14 days of receipt of the appeal referred to in paragraph (b)
make any representation pertaining to the
appeal to the MEC for local
government in writing.
(d) The MEC for
local government may, after having considered the appeal, confirm,
set aside or vary the decision of the council
and inform the
councillor and the council of the outcome of the appeal.
(4) The MEC for
local government may appoint a person or a committee to investigate
any alleged breach of a provision of this Code
and to make a
recommendation as to the appropriate sanction in terms of sub-item
(2) if a municipal council does not conduct an
investigation
contemplated in sub-item (1) and the MEC for local government
considers it necessary.
(5) The Commissions
Act, 1947 (Act 8 of 1947), or, where appropriate, applicable
provisional legislation, may be applied to an investigation
in terms
of sub-item (4).
(6) If the MEC is of
the opinion that the councillor has breached a provision of this
Code, and that such contravention warrants
a suspension or removal
from office, the MEC may-
(a) suspend the
councillor for a period and on conditions determined by the MEC; or
(b) remove the
councillor from office.
(7) Any
investigation in terms of this item must be in accordance with the
rules of natural justice.”
[22] The legal
“architecture” of Item 14 has been analysed by this Court
in Van Wyk v. Uys N.O.,
2002 (5) SA 92
(C). The provision confers a
discretion on a municipal council to investigate and make a finding
on an alleged breach of the Code
or to establish a special committee
for this purpose. If the Council or committee finds that the Code
has been breached, the Council
itself may issue a formal warning,
reprimand or fine the councillor, or alternatively, it may request
the MEC for local government
to suspend the councillor or remove the
councillor from office. (Van Wyk, (supra) at 98 A – C).
[23] The rationale
is that when the municipality seeks to impose the more stringent
sanctions of suspension or removal from office
in terms of Items
14(2) (c) or (e), it is required to refer the matter to a higher
authority, namely the MEC. (Van Wyk, (supra)
at 99 G).
[24] The MEC is
entitled either to form an opinion on the papers in terms of Item
14(6), which would represent a judicially considered
view, or he or
she can make use of a committee or person in terms of Item 14(4) to
investigate the matter and make appropriate
recommendations. (Van
Wyk, (supra) at 99 F – H).
[25] It is apparent
from the above analysis that where an MEC makes a decision in terms
of Item 14(6), the decision is the culmination
of a multi-stage
process. In the present matter, the Item 14 process consisted of
three stages:
25.1 The
investigations by the special committee and its recommendations to
the Council in terms of Item 14(1);
25.2 The Council’s
request to the MEC in terms of Item 14(2)(e); and
25.3 The MEC’s
decision in terms of Item 14(6).
[26] In Van Wyk,
(supra) the respondent contended that Items 14(4) and (6) entitled
the MEC to act mero motu, notwithstanding any
decision which the
Council may have taken with regard to an alleged breach. (Van Wyk,
(supra) at 98 F). This Court rejected the
submission, holding that
nothing in Items 13 or 14 permitted the MEC to suspend a councillor
mero motu (i.e. in the absence of
a Council request in terms of Item
14(2)(c) or (e)), particularly in circumstances where the Council was
in the process of taking
action in respect of the allegations. (Van
Wyk, (supra) at 100 C).
[27] Mr. Arendse,
who appeared for the applicant, sought to distinguish Van Wyk (supra)
from the present matter on the basis that
Item 14(4) was amended
subsequent to the Van Wyk judgment. Accordingly he argued that
despite it being a decision of 2 Judges,
I am not bound by it.
[28] It is common
cause that Item 14(4) was amended. At the time of the Van Wyk
judgment Item 14(4) read:
“The MEC for
local government may appoint a person or a committee to investigate
any alleged breach of a provision of this
Code and to make a
recommendation on whether the councillor should be suspended or
removed from office.”
The Item has now
been amended to read:
“The MEC for
local government may appoint a person or a committee to investigate
any alleged breach of a provision of this
Code and to make a
recommendation as to the appropriate sanction in terms of sub-item
(2) if a municipal council does not conduct
an investigation
contemplated in sub-item (1) and the MEC for local government
considers it necessary.” (my emphasis)
[29] Mr. Arendse
submitted that by virtue of this amendment the MEC now has
self-standing disciplinary powers over local councillors
which can
be exercised mero motu. He further argued that the subsequent
judgment of this Court in Andile Lili v. Independent
Electoral
Commission, (Case No. 3671/2013), is therefore clearly wrong. In
particular, he attacked the finding of the Court that
on a proper
reading of Item 14 the Minister has no self-standing disciplinary
powers over local councillors which can be exercised
mero motu, and
suggested that the Court disregarded the amendment.
[30] This argument
is flawed. Sub-item 4 must be interpreted contextually. Item 14, read
with Item 13, clearly supports the notion
of co-operative government.
The effect of these provisions is that the powers granted to the MEC
constitute a safeguard and form
part of a system of checks and
balances applied to disciplinary proceedings against councillors.
Before an MEC can appoint a person
or a committee there must be an
alleged breach of a provision of the Code. The MEC cannot mero motu
decide that there has been
a breach of the Code.
[31] The amendment,
in my view, is aimed at providing for the dilemma alluded to in Van
Wyk (supra), namely that an MEC would be
powerless to act in
circumstances where a Council, for whatever reason, refuses to
institute proceedings in respect of an alleged
breach of the Code of
Conduct. This sub-item merely provides for a lacuna which previously
existed. The MEC must still act within
the general scope of these
two items. When he makes a decision in terms of Item 14(6), it will
still be a culmination of a multi-stage
process.
[32] The Item 14(6)
procedure applicable in more serious cases is broadly equivalent to
an administrative appeal process, in that
the person charged has the
benefit of the matter being re-considered by a higher authority
before far-reaching sanctions can be
implemented. This provides an
obvious safeguard against disciplinary proceedings being used to
pursue what in certain instances
may be viewed as political agendas.
The Item 14(6) process shares many of the beneficial qualities of an
internal appeal, by providing
an immediate and cost-effective forum
for disciplinary proceedings to be reconsidered without having to
resort to litigation and
enhancing the constitutional values of
accountability, responsiveness and openness. (See the judgment of
this Court (per Le Grange,
J) in Andile Lili v. Independent Electoral
Commission & Others, (supra) at paras. 39 and 40.)
[33] The applicant
contends that the legislature did not intend the MEC to reconsider
the merits of the charges – all that
he is required to do is
implement the Council decision once he has been satisfied that the
necessary jurisdictional requirements
have been met. It is suggested
that it was not open to him to reconsider the evidence led in the
disciplinary inquiry or second-guess
the findings of the special
committee.
[34] This
submission cannot be reconciled with Item 14(4) which makes it quite
clear that an MEC may, if appropriate, appoint a
person or committee
to investigate any “alleged breach” of the Code and to
make recommendations on whether suspension
or removal from office
constitute appropriate sanctions.
[35] Item 14(6)
requires the MEC to form an opinion on:
35.1 whether the
Code has been breached; and, if so,
35.2 whether the
breach warrants suspension or removal from office.
[36] The
Constitutional Court pointed out in President of the Republic of
South Africa & Others v. South African Rugby Football
Union &
Others,
2000 (1) SA 1
(CC)
(1999 (10) BCLR 1059)
para. [168], fn 132,
that the judgment of Corbett, J in South African Defence & Aid
Fund & Another v. Minister of Justice,
1967 (1) SA 31
(C), is
still the leading case on jurisdictional facts in our law.
[37] In the South
African Defence & Aid Fund case (supra) it was a necessary
condition for the exercise of a statutory power
that the State
President should be satisfied that one or more of the five conditions
in section 2(2) of the Suppression of Communism
Act, no. 44 of 1950
were present. Corbett, J noted at p. 34 F-G that the “content
of this kind of condition is often referred
to as a ‘jurisdictional
fact’” in that “it is a fact the existence of which
is contemplated by the Legislature
as a necessary pre-requisite to
the exercise of the statutory power. The power itself is a
discretionary one.”
[38] Corbett, J
then stated, at p. 34 H – p. 35 E, that:
“Upon a proper
construction of the legislation concerned, a jurisdictional fact may
fall into one or other of two broad categories.
It may consist of a
fact, or state of affairs, which, objectively speaking, must have
existed before the statutory power could
validly be exercised. In
such a case, the objective existence of the jurisdictional fact as a
prelude to the exercise of that
power in a particular case is
justiciable in a Court of law. If the Court finds that objectively
the fact did not exist, it may
then declare invalid the purposed
exercise of the power … On the other hand, it may fall into
the category comprised by
instances where the statute itself has
entrusted to the repository of the power the sole and exclusive
function of determining
whether in its opinion the pre-requisite
fact, or state of affairs, existed prior to the exercise of the
power. In that event,
the jurisdictional fact is, in truth, not
whether the prescribed fact, or state of affairs, existed in an
objective sense but whether,
subjectively speaking, the repository of
the power had decided that it did. In cases falling into this
category the objective
existence of the fact, or state of affairs, is
not justiciable in a Court of law. The Court can interfere and
declare the exercise
of the power invalid on the ground of a
non-observance of the jurisdictional fact only where it is shown that
the repository of
the power, in deciding that the pre-requisite fact
or state of affairs existed, acted mala fide or from ulterior motive
or failed
to apply his mind to the matter.” (emphasis supplied)
[39] The MEC’s
powers under Item 14(6) of the Code are similar to the State
President’s powers considered by Corbett,
J. The Systems Act
granted the MEC the “sole and exclusive” function of
determining whether or not the second respondent
breached the Code,
and, if so, whether his removal from office was warranted. Once he
had determined these jurisdictional facts,
he was entitled to
exercise his powers accordingly. The grounds upon which this Court
can intervene in the exercise of a discretion
of this nature are
narrowly circumscribed: Corbett, J limited such grounds to mala
fides, ulterior motive and a failure to apply
one’s mind. In
light of the constitutional right to just administrative action,
these requirements would now also include
rationality and
reasonableness. See for example, MEC for Environmental Affairs &
Development Planning v. Clairison’s
CC,
2013 (6) SA 235
(SCA)
para. 22.
[40] The applicant
does not allege mala fides, ulterior motive or a failure by the MEC
to apply his mind. Rather it is alleged
that his decision was
irrational and unreasonable.
The distinction
between review and appeal
[41] In an ordinary
appeal, the only issue for determination is whether the decision
appealed against was right or wrong. However,
when a Court is
requested to review an administrative decision, the fundamental
constitutional principle of the separation of powers
is implicated, a
consideration which does not arise in an appeal against a decision of
an inferior court.
[42] The separation
of powers requires that where the Constitution or legislation has
entrusted specific powers and functions to
a branch of government,
courts may not usurp those powers or functions by reconsidering the
issues and making decisions according
to their own preferences. This
would frustrate the balance of power inherent in the principle of the
separation of powers. The
primary responsibility of a court
entrusted with review jurisdiction is not to make decisions falling
within the domain of other
branches of government, but to ensure that
the relevant branches of government exercise their authority within
the limits of the
Constitution. (See Doctors for Life International
v. Speaker of the National Assembly & Others,
[2006] ZACC 11
;
2006 (6) SA 416
(CC), para. [37]; International Trade Administration Commission v.
SCAW South Africa (Pty) Ltd,
2012 (4) SA 618
(CC), para. [95];
National Treasury & Others v. Opposition to Urban Tolling
Alliance & Others,
2012 (6) SA 223
(CC), para. [63].)
[43] The principle
of the separation of powers furthermore requires courts to treat the
decisions of administrative officials with
respect and, inter alia,
to be sensitive to the practical and financial constraints under
which they operate.
[44] When an
administrative decision-maker is entrusted with a discretion, both
the weight to be attached to the relevant factors
and how far a
particular factor affects the eventual determination of the issue,
are matters for the decision-maker to decide and
if he or she acts in
good faith, reasonably and rationally, a court cannot interfere with
the decision in the exercise of its review
jurisdiction. (See MEC
for Environmental Affairs & Development Planning v. Clairison’s
CC, (408/2012)
[2013] ZASCA 82
(31 May 2013), para. [22].)
[45] The
applicant’s attack on the MEC’s decision, as set out in
its founding affidavit, is based on the grounds that:
45.1 the MEC was
not authorised to make the decision;
45.2 relevant
considerations were not taken into account, the decision was
irrational and unreasonable; and
45.3 the reasons
given by the MEC were inadequate.
[46] Item 14(6) of
the Code provides that the MEC, if he “is of the opinion that
the councillor has breached a provision”
of the Code, may, if
the sanction is warranted:
“(a) Suspend
the councillor for a period and on conditions determined by the MEC;
and
(b) Remove the
councillor from office.”
No breach of the
Code
[47] In my view,
the MEC’s findings were entirely consistent with the evidence
before him. He found that:
47.1 The bridging of
the second respondent’s electricity meter took place on the
instructions of Mr. de Jongh, the head of
the electricity department
at the municipality. The second respondent was under the impression
that it was a temporary measure,
which had been put in place to
ensure the continuation of the power supply to his attorneys
practice. He had previously called
an electrician who had advised
him that only municipal officers could open the meter.
47.2 The substance
of second respondent’s evidence was confirmed by Mr. de Jongh,
who stated that the meter was bridged on
his instructions as there
were no meters immediately available which had been properly
programmed. The second respondent’s
evidence was also
confirmed, in material respects, by Mr. Ian Braak and Mr. Petrus
Adams, the two officials in the electricity
department who had
attended to the bridging of the meter.
47.3 There is no
evidence that the second respondent at any stage attempted to conceal
the bridging of his meter. To the contrary,
he stated that after the
bridging of the meter, he informed the two officials from the
electricity department that they should
fix the meter as quickly as
possible, as he wanted to pay for his electricity.
47.4 In December
2011 the second respondent closed his office for at least a month and
he used no electricity in this period. On
his return from holiday he
could not understand why the municipality had not replaced the meter
and he again took the issue up
with Mr. de Jongh. Mr. de Jongh gave
him the assurance that he would prioritise the matter, but nothing
happened before he (Mr.
de Jongh) left the municipality in
approximately March 2012.
47.5 On 3 April 2012
the matter had still not been addressed by the municipality and the
second respondent raised the issue again
with Mr. van der Heever.
The meter was replaced the same day.
47.6 Mr. de Jongh
confirmed that the second respondent was told immediately after the
bridging of the meter that it would be replaced,
a new one would be
installed, and that he sent someone to attend to the matter a day or
two later, but the job was not done and
he confirmed that he was
requested by the second respondent to fix the bridged meter in or
about January 2012.
47.7 The second
respondent stated that when the new meter was installed in April
2012, he automatically accepted that he would be
sent an account,
based on his average consumption, for the period when his meter was
bridged. The second respondent in fact received
an account for the
period based on his average consumption and he paid it in full.
47.8 The second
respondent stated that the bridging of the electricity meter was
authorized by the head of the electricity department,
Mr. de Jongh
and carried out by Council employees. Municipal officials came to
his office to address the problem, opened the box,
said that the
meter was burnt out, that they did not have meters available, bridged
the meter and said that it was being done in
accordance with the
policy of the municipality. The second respondent accepted this
explanation and hence did not regard it as
an illegal connection.
47.9 The second
respondent also stated that he had no idea what the Council’s
policy was concerning the repair of defective
meters as he did not
know how the electricity department functioned and as a councillor he
was not permitted to interfere with
its work.
47.10 The second
respondent testified that he was advised that the reason for bridging
was to ensure a continuous supply of electricity
for the business and
that as soon as there was a meter available, his meter would be
replaced. He was satisfied with this explanation
as it was the only
logical response. It was reasonable and understandable and had been
given by the head of the electricity department
in the presence of
other officials in the department. He had no reason to believe that
it was an unlawful operation. As the bridging
had been performed by
an authorized official, there was no question of tampering with his
meter.
47.11 The second
respondent was again corroborated on this issue by Mr. de Jongh, who
testified that although there was no bylaw
which stated that the
meter must be bridged, there was also no bylaw which stated that an
official could not bridge the meter.
The bridging of meters is a
practice which was in place in order to further service delivery.
Mr. de Jongh pointed out that there
is no regulation which says which
piece of equipment he must use to fasten a wire and that the bridging
of the meter was part of
his work, it was what was expected of him.
[48] Mr. Arendse
placed considerable reliance on the statement in the applicant’s
replying affidavit that it does not condone
the practice of bridging
electricity meters by municipal officials. However, it cannot seek
to impugn the MEC’s decision,
taken on the basis of the
evidence before him in May 2013, on the basis of positions or
policies subsequently adopted by the applicant.
[49] The evidence
before the MEC was that:
49.1 The bridging of
the second respondent’s meter was authorised by Mr. de Jongh,
the Head of the applicant’s electricity
department at the time;
49.2 Mr. de Jongh
stated that although there was no bylaw which stated that the meter
must be bridged, there was also no bylaw which
stated that an
official could not bridge the meter;
49.3 The bridging of
meters by municipal officials was a practice which was in place in
order to further service delivery. It was
standard practice; and
49.4 Mr. de Jongh
also testified that the applicant’s finance department
co-operated in the practice of billing for electricity
provided to
consumers via council sanctioned bridged meters by calculating the
amount payable under these circumstances on the
basis of the average
monthly consumption of electricity.
[50] The second
respondent had testified that he had been advised that the reason for
the bridging was to ensure a continuous supply
of electricity to his
practice and that as soon as a new meter was available, his meter
would be replaced. He was satisfied with
this explanation, which was
the only logical response to the situation. The explanation was
furnished to him by the head of the
applicant’s electricity
department in the presence of other officials in the department. He
had no reason to believe that
the bridging of the meter was unlawful.
[51] Although the
applicant states in its replying affidavit that it does not condone
the bridging of meters by members of the
electricity department in
such circumstances, the record before the MEC disclosed no clear
bylaw or policy prohibiting what appeared
to be a widely used and
accepted practice.
[52] In the
circumstances:
52.1 the MEC cannot
be faulted for accepting the second respondent’s explanation
for his conduct as reasonable and plausible;
and
52.2 there is no
merit in the applicant’s claims that the MEC’s decision
was irrational or unreasonable.
The reasons given
were adequate
[53] The applicant
contended that the MEC failed to furnish adequate reasons for his
decision, and that when he was requested to
provide fuller reasons
the MEC merely repeated the terse explanation previously provided for
his decision, namely that in his view
the evidence did not justify a
guilty finding.
[54] The MEC’s
decision was based largely on the transcripts of the evidence
presented at the disciplinary inquiry. The
applicant was represented
by an attorney at all times in this matter and had a copy of the
transcripts. In the circumstances,
it was sufficient for the MEC to
indicate that the evidence presented at the disciplinary hearing, on
a balance of probability,
did not support guilty findings on the four
charges under consideration.
[55] In the
circumstances I am of the view that this application has no merit and
it is accordingly dismissed with costs, such
costs to include the
costs of two Counsel.
TRAVERSO, DJP