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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO: UM180/22

Reportable:                                YES/ NO

Circulate to Judges:                                  YES/ NO

Circulate to Magistrates:                    YES/ NO

Circulate to Regional Magistrates:              YES/ NO

 

In the matter between:

 

CLLR GG MOKGOPE                                                        Applicant

 

and    

 

CLLR GLORIA LEEPO (speaker)                                   1^st Respondent

 

RALOU LOCAL MUNICIPALITY                                     2^nd Respondent

 

JUDGMENT

 

GURA J

 

Introduction

 

[1]        The applicant seeks an order in the following:

 

1. Dispensing with the provisions of Rules relating to time and manner of service referred to therein and dealing with the matter as one of urgency in terms of rule 6(12) of the Uniform Rules.

 

     2. That it be declared that the notice calling for a special Council meeting for the 26 September 2022 at 10H00 issued by the First Respondent is unlawful, invalid and be set aside.

 

            3. That the special Council meeting scheduled for 26 September 2022 at 10H00 be interdicted from taking place.

 

            4. That the first Respondent be ordered to pay the costs of this application personally on an attorney and own client scale jointly and severally with the second Respondent the one paying the other to be absolved.

 

Factual Background

 

[2]        On Friday, 23 September 2022 at around 13H52, the first respondent placed in the Ratlou Local Municipality councillors WhatsApp group a notice calling for a special Council meeting for 26 September 2022, virtually at 10H00. The said notice was accompanied by an agenda. The applicant consulted with attorneys at the earliest convenience of Friday, 23 September 2022 and instructed them to address a letter of demand to the first respondent.

 

[3]        In terms of the applicant’s letter addressed to the first respondent on the 23 September 2022, it was brought to the first respondent’s attention all the irregularities and deficiencies brought about by the issuing of the notice calling for a special Council meeting on 26 September 2022. These irregularities and deficiencies will be addressed more in detail later. Of paramount importance, applicant demanded the first respondent to cancel the scheduled meeting on or before 18H00 on the 23 September 2022 and the first respondent has failed to adhere to that demand. In the following paragraphs I set out in detail what according to the applicant are shortfalls in the notice calling for the meeting.

 

[4]        Rule 7 of the Rules of Order of the Municipality provides:

 

                        7.         All meetings of Council open to public

 

7.1      The Municipal Council shall conduct its business in an open manner and every ordinary meeting of the Council shall be open to the public; provided that this section shall not apply when it is reasonable to do so having regard to the nature of the business being transacted in terms of section 20 (1) (a) and (b) of the Systems Act.

 

In contravention of the above Rule, the first respondent has failed to make the scheduled Council meeting of the 26 September 2022, open to the public. In fact, the first respondent has failed to even make known to the public the scheduled Council meeting.

 

[5]        Rule 10.1 provides:

 

At least five (5) days before any ordinary meeting of the council and at least forty-eight (48) hours before any special meeting of the council, a notice to attend the meeting, specifying the business proposed and signed by the speaker and shall be left or delivered to an accessible distribution point within the municipality as determined by the councillor. A notice to councillors will be individually delivered via email, text message, WhatsApp message or otherwise (as adopted by council) informing him/her of the intended distribution of a notice to ensure the notice is dully and timeously received by them. The first respondent has contravened the Local Government: Municipal Structures Act No.117 of 1998, the South African Local Government Association (“SALGA”) Standing Rules and Orders for the Meetings of the Council and its Committees (“the Rules”) as well as the Rules of Order of Ratlou Local Municipality (“Ratlou Rules”), for the following reasons:

 

[6]        Rule 5.1 provides as follows:

 

“The Speaker may at any time of own accord and shall, upon request in writing of a majority of the councillors of the Municipality, call a special meeting of the Council, provided that no such special meeting shall take place unless all Councillors were given at least 48 hours’ notice prior to the date and time set for the meeting”

 

[7]        Rule 6 provides as follows:

 

                        “Services of notices

At least 7 days before any ordinary meeting of the council and at least forty eight hours before any special meeting of the council, a notice to attend the meeting, specifying the business proposed to be transacted thereat…”

 

The definition of “Day” can be found under Rule 2, which provides as follows:

 

“Day” shall mean a day that is not a public holiday, Saturday or Sunday, and for the calculation of days the first day will be excluded and the last day included.”

 

[8]        The first respondent’s notice convening the special council meeting for Monday, 26 September 2022 at 10H00 is inconsistent with the SALGA rules and the Act in that Saturday and Sunday, the 24 and 25 September 2022 cannot be included in the calculation of the day. The first day is excluded and the last day included, therefore, it can be taken that the notice of the special council meeting was received by Councillors on Monday, 26 September 2022 and the 48 hours will only lapse on Wednesday, 28 September 2022.

 

[9]        Ratlou Rule 10 stipulates:

 

“At least five (5) days before any ordinary meeting of the council and at least forty eight (48) hours before any special meeting of the council, a notice to attend the meeting, specifying the business proposed and signed by the speaker and shall be left or delivered to an accessible distribution point within the municipality as determined by the councillor….”

 

[10]      After this Honourable Court issued its order on the 21 September 2022, the attorneys of record for the first respondent addressed correspondence to applicant’s attorneys of record in terms of which they communicated the first respondent’s intention to appeal the Court order of Gura J. According to the first respondent’s attorneys, the filing of an application for leave to appeal will have the effect of staying the operation and execution of the order granted by Gura J. To date hereof, the first respondent has not filed any application for leave to appeal as intended.

 

[11]      The first respondent having failed to file an application for leave to appeal, simply ignored the Court order issued under case number: UM176/2022, disregarded the provisions of the Structures Act, the municipality’s Standing Rules of Order and SALGA rules and proceeded to call for a special Council meeting for the 26 September 2022 at no notice at all.

 

[12]      Government has completely lifted COVID-19 restrictions, therefore, the calling for the special Council meeting on the virtual platform is inconsistent with the Standing Rules of Order of the Municipality. The country is currently experiencing rolling blackouts with the unreliable power outages of ESKOM and loadshedding. The effect of the loadshedding is that the cell phone connectivity networks is affected by the power outages, consequently, councillors cannot connect to the virtual platform in which the council meeting is expected to be held. The effect of the short notice for a special Council meeting for the 26 September 2022, is that the Councillors are unable to prepare for the Council meeting and lobby on the items proposed in terms of the agenda. Worse, in this case, the notice as well as the agenda were served on councillors on Friday afternoon, the 23 September 2022, where the meeting is scheduled for the coming Monday, the 26 September 2022 which conduct is expressly prohibited by the rule 5.1 of the SALGA Standing Rules and Orders which stipulates that:

 

“The Speaker may at any time of own accord and shall, upon request in writing of a majority of the councillors of the Municipality, call a special meeting of the Council, provided that no such special meeting shall take place unless all Councillors were given at least 48 hours’ notice prior to the date and time set for the meeting”

 

[13]      The calling of the special Council meeting on less than 48 hours’ notice by the first respondent, is a real inconvenience to the applicant and other Councillors as they could not lobby on the items provided in the agenda. The first respondent acted beyond her powers in giving Councillors a defective notice. The scheduled special Council meeting to be held on Monday, 26 September 2022 would not be properly convened and any resolutions that are passed therein would be void ab initio.

 

Submissions

 

[14]      Mr Scholtz for the first respondent referred the Court to the Rules of Order of Ratlou Local Municipality in relation to the definition of the Word “Day” in chapter 1. It reads:  “Day” means Monday to Friday, including a Saturday, Sunday and Public holiday”. He accordingly submitted that 48 hours must be calculated from the afternoon of Friday, 23 September 2022 and it expires on Sunday, 25 September 2022. Therefore, so runs the argument, the Speaker’s notice dated 23 September 2022 calling for a meetings on Monday, 26 September 2022 is legally in order and valid. His view is that the notice to make rules of this municipality is a constitutional duty and the SALGA rules only cannot trump over the rules of Ratlou Local Municipality.

 

Analysis

 

[15]      The respondents did not file any opposing affidavit as it was submitted that they were served with papers late. Rule 2 of the SALGA Rules provides:

 

“Day” shall mean a day that is not a public holiday, Saturday or Sunday, and for the calculation of days the first day will be excluded and the last day included.” This definition is in conflict with the definition of “Day” as laid down in Ratlou Local Municipality rules. It is trite law that the SALGA rules apply to all municipalities in the Republic and my view is that they (rules)are binding on all Municipalities. Clearly, effect must be given to the SALGA rules above those of the Ratlou municipality for the sake of uniformity in the whole Republic. It is my view therefore that in calculating time frames in the current matter, the SALGA rules should be applied. This would therefore mean that Saturday, Sunday and a Public holiday have to be excluded. The Speaker’s notice calling for a special council meeting was issued at 13h48 on Friday, 23 September 2022. The meeting was scheduled for Monday, 26 September 2022 at 10h00. From these facts it is clear that 48hrs had not yet expired, calculated from 13h48 the previous Friday. By the way Saturday, 24 September 2022 was a public holiday.

 

Costs

 

[16]      On 21 September 2022 the same parties in this case appeared before me in an urgent application in Case No UM 176/2022. I granted the following order against the respondents (same respondents as in this current case and same applicant) in favour of the applicant.

 

16.1 The notice calling for a special Council meeting for 21 September 2022 at 15h00 issued by the first respondent is declared unlawful, invalid and is set aside.

 

16.2     The special council meeting scheduled for 21 September 2022 at 15h00 is interdicted from taking place.

 

16.3  If the said meeting was held today, whilst this matter   was serving in Court, such meeting is declared unlawful and is set aside,

 

16.4    The second respondent is to pay the costs.

 

[17]      Just two days after the Court order in Case No UM176/2022 was issued, the Speaker of Ratlou Local Municipality repeated the same mistake she had made in case UM176/2022. This attitude of defiance of this Court by the Speaker of Ratlou is unfortunate. She decided to learn nothing from the Court order in case UM176/2022 and repeated the same error in case UM180/2022. To display the Court’s displeasure at this attitude, a punitive costs order is a fitting remedy. It was due to the aforesaid reasons that at the of the trial on the day of hearing of this case the court issued the order which follows:

 

Order

 

1.    The application is heard as one of urgency in accordance with Rule 6 (12) of the Uniform Rules of this Court and the Applicant’s failure to comply with the rules relating to forms and service is condoned;

 

2.    It is declared that the notice calling for a special Council meeting for the 26 day of September 2022 at 10H00 issued by the First Respondent is unlawful, invalid and is set aside;

 

3.     The Second Respondent is ordered to pay costs of this application on attorney and own client scale.

 

 

SAMKELO GURA

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

For the Applicant:	Mr B Zisiwe
Instructed by	Zisiwe Attorneys
	Office No.5 shasons centre
	43 Shippard street
	Mahikeng, 2745
For the Respondent:	Mr W P Scholtz
Instructed by:	Ratlou Local Municipality
	Setlagole Village
	North West Province
Date of hearing:	26 September 2022
Date of judgment:	26 September 2022
Date of Reasons	17 August 2023

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