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Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrate: YES/NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

                                                                            Case No.: UM14/2021

In the matter between:

TEBOGO DANIEL BUTHELEZI               :                                                1^STAPPLICANT

MARIA MASHADI GULUBE                                                                     2^ND APPLICANT

SERURUBELE ANDRIES MATSHANE                                                  3^RD APPLICANT

DAEMANE HILDA KEBONE                                                                    4^TH APPLICANT

KEDISALETSE MARTHA SERIBE                                                          5^TH APPLICANT

And

DITSOBOTLA LOCAL MUNICIPALITY                                             1^ST RESPONDENT

MOSIDI ESTHER MMOTA                                                                     2^ND RESPONDENT

MOLEFE MORUTSE                                                                                3^RD RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL OF THE

NORTH WEST PROVINCE FOR THE DEPARTMENT

OF COOPERATIVE GOVERNANCE                                                 4^TH RESPONDENT

ELECTORAL COMMISSION OF SOUTH AFRICA                         5^TH RESPONDENT

MOTLHANAKA PATRICK MORERO                                                6^TH RESPONDENT

PAKO MATSHOGO                                                                             7^TH RESPONDENT

THANDI MMOLAWA                                                                            8^TH RESPONDENT

LEBOGANG MONGALE                                                                     9^TH RESPONDENT

LETSHOLO MTLHAMBE                                                                  10^TH RESPONDENT

THEMBA SONAKELE                                                                         11^TH RESPONDENT

HLOMANE CHAUKE IN HIS CAPACITY AS THE PIC

CO-ORDINATOR OF THE AFRICAN NATIONAL

CONGRESS FOR THE NORTH WEST PROVINCE                   12^TH RESPONDENT

ELIAS MAGASHULE IN HIS CAPACITY AS THE

AFRICAN SECRETARY GENERAL OF THE AFRICAN

NATIONAL CONGRESS                                                                   13^TH RESPONDENT

REASONS FOR JUDGMENT

MTEMBU AJ

INTRODUCTION

[1]     This is an application in which the applicants obtained, as a matter of urgency, an interim order against the respondents.  The interim order, embodied in the Notice of Motion, was obtained on 17 February 2021.

[2]     I made the following order, as per the Notice of Motion, with minor amendments and with the exclusion of paragraph 7 thereof:

“1.       That the application to be heard as one of urgency and that the non-compliance with the timeframe laid down by the Uniform Rules of Court be condoned in terms of the provisions of Uniform Rule 6(12).

2.         That suspending the effect of the following actions taken by the Municipal Council (“the Council”) in a special council meeting on the 15^th of January 2021 pending the final determination of review proceedings to set such actions aside:

2.1      The adoption of a notice of motion of no confidence in the First Applicant as Mayor of the First Respondent;

2.2      The Council Resolution taken in a special council meeting on the 15^th of January 2021 removing the First Applicant from the office of Mayor of the First Respondent;

2.3      The Council Resolution appointing the Fourth Respondent (Motlhanaka Patrick Moreo) as the Mayor of the First Respondent;

2.4      The adoption of a notice of motion of no confidence in the First to Fifth Applicants as members of the Executive Committee;

2.5      The Council Resolution taken in a special council meeting on the 15^th of January 2021 removing the First to Fifth Applicants from their positions as members of the Executive Committee; and

2.6      The Council Resolution appointing Sixth to Eleventh Respondents as members of the Executive Committee.

3.         That the First Applicant be reinstated as Mayor of the Municipality with immediate effect with all the institutional administrative support, tools of trade, office staff, protection and support attached to the office of the Mayor;

4.         That the Applicants be reinstated in their respective positions as members of the Executive Committee of the Municipality with immediate effect with all the institutional administrative support, tools of trade, office staff, protection and any support attached to such office;

5.         That the Applicant’s review application be instituted within 10 days from date of granting of this order;

6.         That the First Respondent to pay costs of this application;

7.         That the Application to strike out the Replying Affidavit is dismissed”

[3]     The respondents have requested written reasons for the order I made on 17 February 2021. Here, follows the written reasons as requested. However, I must mention that when the written reasons were requested, my acting stint had come to an end. This led to a delay in providing the reasons, as I received the file not within a reasonable time.

[4]     The genesis of this application revolves around the legality of the resolutions taken in a council meeting of 15 January 2021.

THE FACTS

[5]     It is common cause that on 10 December 2020, a council meeting was held. At this meeting, a motion of no confidence was tabled against the first applicant, (“the Mayor”). For purposes of convenience, I will refer the first applicant as the Mayor. At the same meeting, the sixth respondent, Mr Moreo Motlhanaka, was appointed as the new Mayor.

[6]     The Mayor’s version is that the motion of no confidence of 10 December 2020 was tainted with an irregularity in that it was not recorded in the agenda, and no prior notice was provided as required by the provisions of Local Government Municipal Structures 117 of 1998 (“the Structures Act”), read with the Standing Orders of the Municipality.  As a result of the unlawful resolution removing him as a Mayor, he approached this Court on urgent basis with an application to suspend the effect of the unlawful resolution of 10 December 2020, pending the outcome of a review application to be instituted within 30 days from the date of the order.

[7]     It is also common cause that on 30 December 2020, Gura J granted the following order:

“1.       That the application be heard as one of urgency and that the non-compliance with the time frames laid down by the Uniform Rules of Court be condoned in terms of the provisions of Uniform Rules 6(12);

2.         That suspending the effect of the following actions taken by the Municipal Council (“the Council”) in a special council meeting on 10 December 2020 pending the final determination of review proceedings to set such actions aside:

2.1      The adoption of a notice of motion of no confidence in the Applicant as Mayor of the First Respondent;

2.2      The Council Resolution taken in a special council meeting on 10 December 2020 removing the Applicant from the office as Mayor of the First Respondent;

2.3      The Council Resolution appointing the Fourth Respondent (Motlhanka Patrick Moreo) as the Mayor of the First Respondent.

3.         That the Applicant is reinstated as Mayor of the Municipality with immediate effect;

4.         That the Applicant’s review application to be instituted within thirty (30) days from date hereof; and

5.         That the First Respondent to pay costs.”

[8]     It is further common cause that on 07 January 2021, within a period of less than eight (8) days from the date of the order granted by Gura J, a notice of a similar motion of vote of no confidence in the Mayor was given to him. This time around, the proposed motion of vote of no confidence also included the members of the Executive Committee.

[9]     On 15 January 2021, a motion of vote of no confidence was passed in the Mayor as well as in the Executive Committee. Dissatisfied with the outcome of this meeting, the applicants approached this Court on urgent basis challenging the legal status of this meeting, and resolution taken thereon. I will deal with the complaints raised by the applicants as to the alleged illegality of the meeting of 15 January 2021 later on in this judgment. For now, it is important to highlight the facts which are common cause, and require no exclusive exposition.

[10]   As already stated, this is an application for interim interdict pending the review application to be instituted in due course. It is therefore apt to revisit the legal requirements for an interim interdict.

INTERIM INTERDICT

[11]   An interim interdict is a court order preserving or restoring the status quo pending the determination of rights of the parties. It is important to emphasize that an interim interdict does not involve a final determination of these rights and does not affect their final determination. The Constitutional Court said the following in National Gambling Board v Premier, Kwa-Zulu Natal and Others 2002(2) SA 715 CC At 730 - 731[49]:

“An interim interdict is by definition 'a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.' The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court's jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo.”

[12]   The requirements for the granting of an interim interdict are well known. The decisions are multitude. The requirements are the following: a prima facie right, a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted, that the balance of convenience favours the granting of an interim relief, and that the applicant has no other satisfactory remedy. See Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and Another 1973(3) SA 685 (A) at 686D.

[13]   Just to give a recap, as already stated above, in this case the applicants seek interim relief pending the determination of a review application seeking to declare the resolutions of a special meeting of 15 January 2021 removing them from their positions as invalid, unlawful and of no effect. The interim relief that they seek is that they should be reinstated into their positions, pending the final relief. The question is whether the applicants have, despite their removal from their positions, shown that they have a right to be allowed to resume their duties. The approach to be adopted in considering whether an applicant has established a prima facie right has been stated to be the following.

[14]   In Simon NO. v Air Operations of Europe AB & Others [1998] ZASCA 79; 1999 (1) SA 217 (SCA) at 228, it was held that:

“The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant, together with such facts set out by the respondent that are not or cannot be disputed and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed”.

[15]   The applicants, the Mayor and members of the Executive Committee, contended that their rights were invaded by the adoption of an irregular process in a special council meeting of 15 January 2021 which led to an unlawful resolution taken by the Council. Their participation in a council meeting was terminated depriving them of their right to take part in the debate regarding the motion of no confidence and the ensuing voting process. In a nutshell, according to the applicants, a process leading to the council meeting, which passed of a vote of no confidence, and the meeting itself are tainted with illegalities.

[16]   The applicants contended that their rights were infringed based on the following events:

NON-COMPLIANCE WITH THE RULES

[17]   It is trite that when courts in interim applications made findings which purport to determine the issues in the main application, such pronouncements should be regarded as obiter.

[18]   Mojapelo J, (as he was then), stated in   Zulu v Minister of Defence and Others [2005] ZAGPHC 16; 2005 (6) SA 446 (TPD) at para 42 that, “It is not an issue of the hierarchy of the courts and which of the two courts (interim or final relief court) has the power to bind the other. It is a matter of the two courts fulfilling different functions in the exercise of their judicial powers. The court of final relief is seized with the full matter and is called upon to decide the issue finally. On the other hand, the court that considers interim relief only has to decide issues preliminarily, and on the basis of the existence or non-existence of a prima facie right”.

[19]   Therefore, I make no final findings of fact or of law, as this is the domain of the review court. My findings are thus provisional and made on the evidence presently before me.

[20]   Firstly, I will deal with the Mayor’s contention which is undisputed by the respondents.

[21]   It is common cause that there are Standing Rules which govern the raising of motions.  The following ones are important for the purposes of the present application. Rule 14.8 states that:

“No member shall propose a motion similar to a motion which was dealt with in terms of the provisions of subsection (7) before a period of three months after it has been dealt with has lapsed,

a.         which is intended to rescind or amend a resolution passed by the Council within the preceding three months,”

[22]   Rule 15 which deals with irregular motions or proposals states that:

“The Speaker shall disallow a motion or proposal:

a    …

b.    in respect of which:- (ii) a decision by a judicial or administrative is pending:

c.     c. which, if passed, would be contrary to the provisions of these by-laws or of any other law; Provided that if such motion or proposal in the opinion of the Speaker, justifies further investigation, it shall be dealt with in terms of his authority by the Office of the Speaker.”

[23]  Rule 6.1, which deals with limitation of the agenda in relation to the issues to be discussed at the council meeting, states that:

“Subject to the provisions of subsection (2) and with the exception of an urgent report of the Executive Committee, no business not specified in the notice of meeting shall be transacted at that meeting.”  

[24]  The Mayor’s contention that a similar motion of no confidence was tabled against him in the council meeting of 10 December 2020, and a resolution was passed at the aforesaid meeting removing him as Mayor, is undisputed. The Mayor contended that the effect of this was only suspended by the order granted by Gura J on 30 December 2020. The resolution still stands and is the subject of the pending review application. I was informed from the bar that the review application has been lodged as per order of Gura J. In terms of Rule 14.8 of the Standing Orders, no member shall propose a motion similar to a motion which has been dealt with, before a period of three months lapses. It is common cause that on 07 January 2021, within a period of less than eight (8) days from the date of the order granted by Gura J, a notice of a similar motion of vote of no confidence in the Mayor was given to him. This motion was also proposed before a period of three months lapses, since the first motion of no confidence was tabled at the council meeting on 10 December 2020. In actual fact, this motion was brought within a period of less than a month.

[25]  I enquired from Mr Dewrance SC, who appeared on behalf of the respondents, as to whether this non-compliance was in dispute or not. Mr Dewrance SC submitted that this non-compliance was only in respect of the Mayor, not in respect of other applicants. I therefore accept the Mayor’s contention as undisputed, at least, as it relates to him, on the issue of contravention of Rule 14.8. 

[26]  Mr Wessels, appearing on behalf of the applicants, submitted that another irregularity was in respect of non-compliance with Rule 15. In terms of this Rule, as already stated above, the Speaker shall disallow a motion or proposal which is in his opinion, in respect of a decision by a judicial or administrative tribunal which is pending. The Court order of 30 December 2020 granted the Mayor an opportunity to file a review application which review is aimed at reviewing the resolution passed by the council on 10 December 2020, removing him as a Mayor of the Municipality. It is undisputed that the Speaker, in the exercise of her discretion in terms of Rule 15, ruled that the motion of no confidence in the Mayor as well as in the Executive Committee be withdrawn from the agenda of the council meeting of 15 January 2021. This is evidenced by the letter dated 14 January 2021 from the Speaker which states that:

“3. The submitted 2 motions are in line with the Rule 14.1(a),(b) and (c) as well as Rule 14.4 of the standing orders of the Municipal Council of Ditsobotla.

4. On the 13^th of January 2021, the Mayor of the Ditsobotla Local Municipality Cllr D.T Buthelezi made submissions to the Speaker in terms Rule 18.8 of the Standing orders of Council and also referred to the High Court Judgment and have availed a copy of the submissions for ease of reference.

5.  A ruling is hereby made that 2 motions against the Mayor and the entire Executive Committee be referred back and be withdrawn from the Council agenda and the Agenda of the Council of the 15^th of January 2021 be amended as such.”

[27]  Notwithstanding the ruling of the Speaker, the meeting of 15 January 2021, proceeded to pass a motion of no confidence in the Mayor as well as in the Executive Committee.

[28]  I am satisfied that a prima facie case has been established that there was contravention of Rule 14 and 15 of the Standing Orders.

THE NOTICE

[29]   The applicants also relied on non-compliance with Rule 6.1. Rule 6.1 does not allow a motion which is not specified in the notice of meeting to be transacted at the meeting. The applicants contended that the Speaker was informed upon receipt of the notice of a meeting that the motion should not be allowed as it would be in contravention of the Standing Orders. Indeed, as already stated above, the Speaker withdrew the notice of the meeting. In applicants’ mind, the motion of no confidence was no longer part of the agenda as per the ruling of the Speaker. They attended the meeting of 15 January 2021 with an understanding that there will be no motions of no confidence. At this meeting, the Speaker was absent. As a result, an Acting Speaker was elected. The applicants’ contention is that the Acting Speaker replaced the Speaker’s ruling with a new ruling by introducing the new notice of motion of no confidence. The applicants’ contention, which is correct, is that in terms of Rule 14.1 (c), no motion shall be specified in the agenda, unless it is received at least five days prior to such a meeting or unless leave from the Speaker is sought for a shorter period.

[30]   On the other hand, the respondents’ contention as evident from the answering affidavit is that[1], “It will be shown in this affidavit that, despite the issues raised by the applicants, the application launched by the applicants is moot, alternatively, devoid of any merit particularly in respect of the first applicant”.  In my view, the applicants’ version remains undisputed in relation to non-compliance with the aforesaid rules. The respondents’ defence appears to be based on the replacement of the Mayor, as a member of the council as a result of the appointment of another councillor in his position. On this basis, the respondents contended, the Mayor cannot be reinstated, as he ceased to be a councillor of the Municipality. In respect of other applicants, the respondents’ version lacked signal, with no sense of direction.

[31]   Mr Dewrance SC further submitted that prior notice was given to the applicants on 07 January 2021, and this was more than the required 5 days’ notice period. The submission continued, that it was not a new notice. The Acting Speaker overruled the Speakers’ decision and proceeded with the agenda as per the notice of 07 January 2021. He submitted that, inasmuch as the ruling of the Speaker is said to be valid until set aside by a court of law, similarly, the ruling of the Acting Speaker to proceed with the agenda, un-amended, is also valid until is set aside. I find this submission enigmatic and incomprehensible. Whether the second ruling stands or not, that does not cure the injustice done to the applicants.  The fact of the matter is that the applicants attended a council meeting with a clear understanding that no motion of confidence will be entertained. The change of mind by the Acting Speaker does not change the situation. I agree with the applicants that it was a new motion, which required prior notice.

[32]   In my view, the council meeting was blemished with irregularities in relation to the removal of the Mayor and the members of Executive Committe. This is so because section 58 of the Structures Act provides that:

“A municipal council, by resolution may remove its executive mayor or deputy executive mayor from office. Prior notice of an intention to remove a motion for the removal of the executive mayor or deputy executive mayor must be given.”

[33]   A similar worded provision relating to the members of the Executive Committee is found in section 53 of the Structures Act. I agree with the applicants’ contention that they were never served with prior notices, as required by these provisions of the Structures Act. When a new motion was introduced by the Acting Speaker, it automatically violated their rights of being served with a prior notice, as required by the Structures Act.

[34]   In the matter of Democratic Alliance v Matika and Others 2019 (1) SA 214 (NCK), Mr Matika brought an urgent application seeking to interdict the Municipality from continuing to implement the decision taken on the 25^th July 2018 removing him (Mr Matika) from his position as the Executive Mayor. The Acting Speaker had refused to convene a meeting on the basis that there were discrepancies that he had noted and advised that he was not going to convene any meeting for that day, 25 July 2018. At Chief Whips’ meeting, it was then agreed that the council meeting as called for in the letter of 23 July 2018 should fall away because of inter alia, duplication of signatures and proxy signatures, contained in the request for a meeting. It however happened that the majority councillors proceeded with a meeting running the afternoon, on 25 July 2018. The meeting moved a motion of no confidence in the Executive Mayor, Mr Matika. Mr Matika refused to accept the outcome of the meeting contending inter alia, that the meeting was not lawfully constituted or convened and that the outcome thereof was invalid and/or unlawful, as he was not given a prior notice with regards to the meeting as convened by the majority councillors.

[35]   In the Matika case, at para 36, it was held that, “The fact that the motion had also previously been planned, but had never been moved at earlier meetings, does not mean that Mr Matika would have been aware that a motion of no confidence was going to be moved at a meeting to be held at 12:30 on 25 July 2018. Furthermore, it would be reasonable for Mr Matika, by virtue of being an office bearer elected by the Municipal Council that he be formally served with a notice of the council meeting when his position as such is going to be a subject for discussion.

[37]     Even if it could be speculated that Mr Matika was aware of the existence or the possibility of a motion of no confidence against him, there is absolutely no evidence that he would have been aware of the exact contents of the proposed motion.”

[36]   In the present case, the Speaker withdrew the motions. Similarly, as it was the case in Matika, the mere fact that the motion had previously been planned on 07 January 2021, but had never been moved as it was withdrawn by the Speaker, does not mean that the applicants would have been aware that a motion of no confidence was going to be moved at the meeting of 15 January 2021.

[37]   In Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SA 476 (T) it was held (at 486 D-G)) that:

“a person who is entitled to the benefit of the audi alteram partem rule … must be given a reasonable time in which to assemble the relevant information and to prepare and put forward his representations; secondly he must be put in possession of such information as will render his right to make representations a real, and not an illusory one”.

[38]   I am of the view that the provisions of section 53 and 58 were not complied with, and therefore, the meeting of 15 January 2021 has been marred with illegalities. In Makume and Another v Northern Free State District Municipality and Others [2003] ZAFSHC 36; [2003] ZAFSHC 15 (21 August 2003) at paras 17 -18; [see also Democratic Alliance v Matika and Others (1858/18; 1860/18) [2018] ZANCHC 55; 2019 (1) SA 214 (NCK) (29 August 2018) at para 45] : the following is stated;

“… in the absence of a proper notice of the intended motion  there could have been no valid council resolution to carry the … motion.  No council resolution can be taken in a vacuum.  A municipal council is an assembly of divergent political parties.  These various political parties had their say when the executive mayor was enthroned by popular vote.  Those various political parties ought to have their say when the executive mayor is dethroned.  Logically these various political parties in the local assembly cannot democratically have their say in a meaningful way unless they are timeously notified prior to the relative council meeting by way of a written notice of the intended motion … Any councillor or any political party intending to impeach the executive mayor was legally obliged to timeously inform, not only the mayor, but also each and every member of the municipal council of his or her intention to do so. …

Certainly it is not enough to say the executive mayor knew beforehand that he was going to be removed.  The fact of the matter is that all the councillors irrespective of their political affiliations were also entitled to know. …  Respect for law is as important as clean public administration itself.  None of the two should be sacrificed on the altar of the other”. [My Emphasis]

[39]   The Full Court in Matika further held that:

“[58]    As already pointed out, however, the objects of the Legislature have in the present matter indeed been compromised by the failure to give notice to all the members of the council and to Mr Matika; a failure which has also offended the audi alteram partem principle of natural justice.

[59]     Furthermore, the Legislature could never have intended proceedings which had not been part of a properly convened meeting, and which took place in a gathering of a group of members who knew full well that the provisions of the Rules had not been complied with, to nevertheless constitute valid proceedings of the Council…..

[62]     The result is that the proceedings at the “meeting” of 25 July 2018 were unlawful and invalid and that the decisions taken there fall to be set aside, which would include the resolutions to remove Mr Matika from his position as Executive Mayor and to appoint Mr Thabane as the Acting Mayor”.

[40]   Another challenge which complexes the irregularities with regards to the council meeting is the termination of the applicants’ participation in a council meeting, depriving them of their right to take part in the debate, regarding the motion of no confidence and the ensuing voting process. Although this version is disputed by the respondents, if it is established, would point to no other direction but to the illegality direction. In Democratic Alliance and Another v Masondo NO and Another   [2002] ZACC 28;  2003 (2) BCLR 128 (CC) para [78], it was held that “inclusive deliberation prior to decision making” is required to give effect to section 160(8) of the Constitution. It is clear that even if a single councillor was deprived of the right to debate and to participate, the objects of the Constitution and of the MSA would have been frustrated.

[41]   The Court in Matika followed the Masondo decision and further held that:

“[49] . . . a group of councillors could hold a “meeting”, without having given any notice thereof to the remaining councillors, as long as they constitute a majority of councillors.  They could then even, if this argument is drawn to its logical conclusion, at such a “meeting” take a decision that directly affects a co-councillor and member, like removing him/her from a position like that of Speaker or Mayor, without prior notice to the specific member.  Surely the Legislature could never have intended such a situation.  The word “meeting” in section 30(3) of the MSA must surely have been intended to refer to a properly convened meeting, which in turn would necessarily imply that all councillors had received proper notice”. [My Emphasis]

[42]    As Andrews AJ stated in Van der Linde and Others v Prince and Others[2] , endorsed by Tlaletsi JP et Olivier ADJP in Matika at para 51, that:

“ … whilst it is undisputed that the majority of the council members took decisions on 26 February 2018 and that the meeting was quorate in accordance with section 29(1) of the Structures Act 117 of 1998, the decision cannot be valid and binding simply because the majority of the council members were present when the decision to vote the respective council members out of office and into office as contemplated in section 30(3) of the Structures Act 117 of 1998. As earlier stated, this does not [circumvent] irregularities and non-compliance”. [My Emphasis]

[43]   Because these are proceedings for interim relief, I shall say no more than that there appears to be substance in these accusations stated above and that the applicants have prospects of establishing their case in their review in due course. It is not my duty to decide finally for the purposes of this application for interim relief. It is sufficient if I hold the prima facie view, I as I do, that I am satisfied that the applicants have established a prima facie right which deserves protection by this Court in the form of interim relief. The views, I expressed in this regard do not bind nor purport to bind the hands of the review court in considering fully the question of law raised in this application. In Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and others [2017] 4 All SA 605 (SCA), it was held that,  ‘An interim interdict pending the determination of an action is not final in effect, which is why matters decided for purposes of granting an interim interdict do not become res judicata’.

[44]   There is no doubt that the applicants are suffering harm as a result of the unlawful conduct of the respondents. The harm is manifest. The protection afforded by an interdict is the cessation of the unlawful activity. This Court cannot condone a perpetuation of unlawful activities. The refusal of an interim interdict would amount to condonation of unlawful acts. Therefore, I am satisfied that there is no alternative remedy available for the applicants other than to seek an interim interdict.  The applicants will continue to suffer harm if the unlawful conduct is not halted. The perceived violation of applicants’ rights is a constant and enduring phenomenon until the matter is resolved.

BALANCE OF COVENIENCE

[45]   Since it is interim relief that is sought, I have to determine whether the balance of convenience favours the granting of such interim relief. The applicants alleged that factionalism plays a major role in the political fabric of the Municipality. The Mayor alleged that he has been the subject of attacks by opposing factions aimed at discrediting him as well as attempts by the same faction to cause him to vacate the office as a Mayor. He alleged that the sin he committed was when he objected to the appointment of the Acting Municipal Manager. The opposing faction then began to put its efforts to oust him as a Mayor. The Mayor puts the blame on the Acting Municipal Manager in that he is failing to submit annual financial statements for auditing, which resulted in non-compliance with the provisions of the Municipal Finance Management Act. The Mayor alleged that 11 employees of the Municipality, who had been dismissed due to poor work performance, would be re-appointed. These employees seem to be belonging to the opposing faction.

[46]   On the other hand, the respondents contended that during July 2019, the Auditor-General of South Africa found that the Municipality was characterised by internal control deficiencies and found failure by the leadership to provide adequate oversight in the monitoring of the control environment, financial performance, and financial irregularities. Having regard the grave irregularities that existed within the Municipality, the North West ANC resolved to temporarily suspend the Mayor’s membership, pending the outcome of the disciplinary action.  The mayor was engaged to resign as Mayor on 12 October 2020.

[47]   I agree that indeed this Municipality is characterised by a high level of factionalism. It appears that there are two factions within the ruling party itself. The one faction being on the side of the Mayor, and the other being the opposing one as alleged by the Mayor. That is why there is this tit-for-tat accusations by both factions. It is important though that this Court cannot assist one faction over the other, through unlawful means. Unfortunately, any faction that resorts to unlawful means cannot get refuge from this Court.

[48]   It is common cause that this Court granted an order on 30 December 2020 in favour of the Mayor, suspending the resolution of the meeting of 10 December 2020 which removed the Mayor from his position, pending the review application. Within a period of less than 8 days from granting of the order, a similar motion was proposed. This is not just in contravention of the Rules that the Municipality has created and adopted itself, but also inimical to the interests of justice. In my view, this is the defiance of the Court’s order at a highest degree. The status quo has already been restored by the Court order granted on 30 December 2021. As a result thereof, I am satisfied that the status quo should not be frustrated.

[49]   The respondents could not endure an order by this Court even for a period of 7 days. This leaves much to be desired. It will be a miscarriage of justice if this Court were to intervene and decide in favour of the respondents in this application for dismissing an interim relief application. What triggers perplexity is that the events of the alleged financial irregularities on the part of the Mayor and his membership suspension thereof by the ANC, were in existence at the time when the order of this Court was granted. The applicants contended these submissions were made before Gura J. When Gura J granted an order, he had considered these submissions, and therefore these submissions are res judicata. I certainly agree. I therefore decline to entertain the respondents failed submissions, which is smuggled in through a backdoor.

[50]   I am therefore satisfied that the scale of balance of convenience tilts in favour of the applicants.

[51]   One last submission by the respondents which deserves consideration, is that one seeks to suggest that the reinstatement of the Mayor is moot due to the fact he has been removed as a councillor. This is the last stroke of a dying horse. As I have already stated, that I am inclined to believe that one is dealing with two dominant factions. The second motion of no confidence in the Mayor coupled with a subsequent removal of the Mayor from the Municipality, is nothing else but a disregard of the court order of this Court. There is no justification whatsoever as to what the reason to remove the Mayor as a councillor in the presence of a court order was. In my view, this was strategically intended to frustrate the court order of this Court.

[52]   I have already found that the applicants have established a prima facie case, with prospects of success in the contemplated application for final review relief. I must now proceed to the next issue.

URGENCY

[53]   After all, I still have to determine whether the application deserves to jump the queue, and be heard on an urgent basis. I have partly dealt with it above. I therefore elaborate herein under.

[54]   Rule 6(12) confers a general judicial discretion on a court to hear a matter urgently. When urgency is in dispute, the main enquiry should be to examine whether the applicant would be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent. Once such prejudice is established, other factors come into consideration. See: Mogalakwena Local Municipality v Provincial Executive Council, Limpopo & Others 2016 (4) SA 99 (GP) at para 64.

[55]   As already stated above, the refusal of an interdict would amount to condonation of unlawful acts. Any unlawful conduct has to be halted with immediate effect. I am convinced that the harm suffered warrants immediate intervention by this Court. The potential prejudice and urgency lie not in the harm suffered by the Municipality or the municipal councillors, but also in the perpetual interruption of basic essential services to the residents the Municipality is supposed to serve. See:   Ngaka Modiri Molema District Municipality v Chairperson, North West Province Executive Committee and Others Ngaka Modiri Molema District Municipality v Chairperson, North West Provincial Executive Committee and Others (CCT 186/14) [2014] ZACC 31, at para 9.[3]

[56]   As already stated, the applicants averred that the matter concerns unlawful decisions taken by the councillors of the Municipality, on 15 January 2021. The applicants’ contention is that the manner in which it was done undermines the provisions of ss 53 and 58 of the Structures Act read with Rules of the Standing Orders.  The applicants’ contention is that the council meeting was not lawfully convened and that all its decisions taken on 15 January 2021 are tainted with illegality. The applicants further averred that the Municipality is going to suffer harm due to the appointment of inexperienced persons that are taking place. The Acting Municipal Manager has removed the signing powers of the Chief Financial Officer of the Municipality’s bank account, the version of which is undisputed.[4] The previously dismissed employees due to corruption and poor work performance are being reinstated.

[57]   Gura J, a decision of this division, in Groep and Others v Naledi Local Municipality and Others under case number UM253/2020 at para 46, found that a matter of this nature to be urgent on the basis of illegality questions that the matter triggered. Gura J stated the following:

“The Respondents submitted that this matter is not urgent and that the Applicants did nothing to show urgency. One should overlook the facts that throughout their papers, the Applicants aver that the Council meeting was not lawfully constituted and that all its decisions on 19 November 2020 had been tainted with illegality. Amongst others, the Mayor and the Speaker were removed in this meeting. It remains to be seen whether due process was followed to remove them. It is my view that the matter is urgent, otherwise a decision to the contrary may have the effect that a court of law allows the perceived illegality to continue.” [My Emphasis]

[58]   I see no reason why I should depart from the decision of this division. I may only do so, if I am of the view that the decision was wrongly decided. In my view, the decision was correctly decided.

[59]   In Mogalakwena Local Municipality v Provincial Executive Council, Limpopo & Others 2016 (4) SA 99 (GP), the court held that:

“[65]    The case for the applicant is that the respondents are seeking unlawfully to take away its lawfully derived power to govern the Municipality at a local government level. That case, if ultimately substantiated, is directed at redressing nothing less than a serious violation of the rule of law. The prejudice to the applicant is manifest. Every action taken by someone who is in law a usurper of power is unlawful and, especially where third parties are involved, might give rise to complex questions of fact and law. Where the funds of a Municipality are disbursed by such a usurper, recovery might be attended by serious problems and even be impossible. I find that the applicant has shown that it will suffer prejudice which cannot be redressed at a hearing in due course.” [My Emphasis]

[60]   In Majake v Commission for Gender Equality and Others (09/14527) [2009] ZAGPJHC 27; 2010 (1) SA 87 (GSJ; (2009) 30 ILJ 2349 (GSJ)) (12 June 2009), MOKGOATLHENG J quoted Sachs J with approval  in Masetlha v President of the Republic of South Africa and Another  [2007] ZACC 20;  2008 (1) SA 566 (CC) stated that:

“The Constitution”…….presupposes that public power will be exercised in a manner that is not arbitrary and not unduly disrespectful of the dignity of those adversely affected by its exercise………

“……….Fairness to an incumbent about to be relieved of a high profile position in public life presupposes the display of appropriate concern for the reputational consequences. People live not by bread alone; indeed, in the case of career functionaries, reputation and bread are often inseparable.”

(45)     In my view the perceived threat to, or the possible violation of the applicant’s constitutional right to dignity and to lawful, reasonable and procedurally fair administrative action, and her consequent summary dismissal without being afforded a hearing founds and justifies urgency in this application. The perceived violation of applicant’s constitutional right to dignity is a constant and enduring phenomenon until the matter is resolved. The applicant’s constitutional right to human dignity, the right to lawful, reasonable and procedurally fair administrative action renders the application urgent…

(56)     It is a requirement of the rule of law that in order to pass constitutional muster the exercise of public power must not be arbitrary or inconsistent with the rule of law. The rule of law is a source of constraint on the exercise of public power.

(57)     The exercise of public power must comply with “The Constitution” and the doctrine of legality.”

[61]   Therefore, it follows from the above authorities that, I am satisfied that this application deserved to jump the queue and be heard on an urgent basis. The facts of this matter are similar to those referred to in the above authorities.

NON-JOINDER

[62]   The respondents raised a point of non-joinder. The test for non-joinder is trite and well known in our common law. It is whether a party has a direct and substantial interests in the subject matter. In Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O), a judgment which has been quoted frequently over the decades, Horwitz AJP, with whom Van Blerk J concurred, analysed the concept of “direct and substantial interest” and concluded that it refers to an interest in the right which is the subject matter of the litigation and not merely a financial interest.  See also: Aquatur (Pty) Ltd v Sacks and Others 1989 (1) SA 56 (A) at 61J – 62G; Burger v Rand Water Board and Another 2007 (1) SA 30 (SCA) paras [7] – [9].[5]

[63]   The respondents contended that the acting Municipal Manager ought to have been joined due to the fact that serious allegations have been made against him. It is however common cause that there is no order sought against him. The allegations made are not made in respect of his personal capacity but in respect of his representative capacity as Acting Municipal Manager. The target is his employer which is the Municipality and not him per se. The Acting Municipal Manager is an employee and the accounting officer of the Municipality. In my view, the citation of the Municipality is sufficient. There is no need to cite its employees, who any event will plead vicarious liability. Most importantly, in the present case, the Acting Municipal Manager has deposed to a confirmatory affidavit to the answering affidavit. Meaning that he consents to the contents of the answering affidavit, rebutting the allegations made in the founding affidavit. This also means that he is aware of the proceedings, but decided by conduct, to abide by the outcome of this Court. Had he genuinely wanted to contribute to these proceedings since has been aware of them, he could have applied for intervention as a party to the proceedings.

[64]   The respondents also contended that on 29 January 2021, the Council appointed two Democratic Alliance Councillors as members of executive committee. The applicants averred that these legal proceedings were instituted before their appointment, hence they could not be joined. It is common cause that this application was served and filed on 28 January 2021. This, therefore, confirms that indeed, these two members were not yet appointed at the time of issuing this application. In any event, these are interim proceedings, which seek to restore the status quo. Accordingly, the in limine point on non-joinder must fail.

COSTS

[65]   What remains is the question of costs. The general rule is that costs must follow the result. Although, in some applications of this nature, costs are ordered to be costs in the main application, I am inclined to grant a cost order. I am particularly not impressed with the manner in which the respondents handled the motions of no confidence. There is no reason that warranted a dispute of this nature to be heard by this Court within a period of a month, considering the order that was granted on 30 December 2020 by this Court.  The dispute ensued in the presence of sound and clear advice by the Speaker. The Speaker advised the respondents not to proceed with the motions of no confidence. This is evident from the letter dated 14 January 2021. The Speaker also advised as follows:

“…The decisions that I take when exercising my duties as the speaker are not in my best interest but in the best interests of the Municipality.

8.         The Mayor is hereby cautioned to refrain from using the Courts to apply for personal costs against the Speaker.

9.         The 2 motions are hereby referred back and the agenda be amended and will be dealt with within a period of 14 days.”

[66]   As evident from the contents of this letter, the Speaker correctly knew that proceeding with the motions may possibly invite a cost order, hence he withdrew them.

CONCLUSION

[67]   Therefore, it was for these reasons that I granted the aforementioned order.

A.M. MTEMBU

ACTING JUDGE OF THE HIGH COURT 

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING                                               :           17 FEBRUARY 2021

DATE OF REQUEST FOR REASONS                :             23 FEBRUARY 2021

DATE OF JUDGMENT                                           :           09 MARCH 2021

COUNSEL FOR THE APPLICANTS                   :            MR M WESSELS

   COUNSEL FOR THE RESPONDENTS              :         MA DEWRANCE SC

                                                                                                   WITH HIM

                                                                                                   B ROWJEE

                                                                                                   N FERRIS

[1] See paragraph 10 of the respondents answer affidavit.

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