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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 1246/2014

Date heard: 12 May 2014

Date provided:11September 2014

In the matter between

THE MEMBER OF THE EXECUTIVE COUNCIL                                                       Applicant

OF THE EASTERN CAPE RESPONSIBLE

FOR LOCAL GOVERNEMNT AND

TRADITIONAL AFFAIRS

and

INKWANCA LOCAL MUNICIPALITY                                                               1^st Respondent

THE MAYOR OF THE INKWANCA LOCAL

MUNICIPALITY                                                                                                2^nd Respondent

THE MUNICIPAL MANAGER OF THE INKWANCA

LOCAL MUNICIPALITY                                                                                   3^rd Respondent

REASONS FOR FINAL ORDER

BROOKS AJ:

[1] On 2^nd April 2014 the applicant issued a notice of motion in truncated form indicating the applicant’s intention to move for an order as a matter of urgency on 7^th April 2014.  Service of the notice of motion, founding affidavit and annexures thereto was effected on all three respondents on 3^rd April 2014 at the Municipal Administration Offices of the first respondent.

[2] On 7^th April 2014 an answering affidavit deposed to in respect of the first and the second respondents jointly, an answering affidavit deposed to on behalf of the third respondent and various confirmatory affidavits were served and filed.  Notwithstanding the expression of opposition therein, on 7^th April 2014 a rule nisi was issued by agreement between the parties appearing before Tshiki J and in the following terms:

“1.        That a Rule Nisi do issue calling on the Respondents to show cause, if any, at 10:00 on 12^th May 2014 why a final order should not be made in the following terms:

1.1 That a council meeting be convened and held within 10 days of the date of this order to consider and resolve upon the recommendation contained in the Forensic Report of Kabuso of 18^th December 2013 and the Applicant’s Process Plan of 16 January 2014, and in particular to consider and resolve upon:

1.1.1         The recommendation that the Third Respondent be placed on precautionary supervision.

1.1.2         The recommendation that disciplinary proceedings against the Third Respondent be instituted.

1.1.3         The recommendation that a plan be formulated and adopted to address adverse findings in the forensic report including:

1.1.3.1            The reversal of irregular appointments

1.1.3.2            The recovery of irregular payments and acting allowances.

1.1.3.3            The institution of disciplinary proceedings against municipal employees responsible for irregular appointments.

1.2 That the Third Respondent be placed on precautionary suspension with pay with immediate effect pending the determination of disciplinary proceedings.

1.3 That disciplinary proceedings be instituted against the Third Respondent in terms of the provisions of the Local Government Disciplinary Regulations for Senior Managers 2010.

1.4 That there be no order as to costs.”

[3] Thereafter, on 22^nd April 2014 a further answering affidavit with extensive annexures was served and filed on behalf of the first and the second respondents jointly, together with a further answering affidavit deposed to on behalf of the third respondent, with annexures, and various confirmatory affidavits. 

[4] On 2^nd May 2014 the applicant served and filed an interrelated set of replying affidavits and annexures. 

[5] Pursuant to the terms of the rule nisi, and amplified by the introduction of Heads of Argument and a competent notice in terms of Rule 15A of the Joint Rules of Practice for the High Courts of the Eastern Cape Province, the matter came before this court on 12^th May 2014.  After hearing argument from Mr. Quinn S.C., who appeared together with Mr. Taljaard on behalf of the applicant, and Mr. Mbenenge S.C., who appeared together with Ms. da Silva on behalf of the three respondents, the following order was issued:

“1.        That the Rule Nisi be and is hereby discharged.

2.         That the decision, purportedly taken by the council of the First Respondent, of 17^th February 2014 concerning the Forensic Report of Kabuso (“the forensic report”) be declared invalid and be and is hereby set aside.

3.         That the First Respondent institute disciplinary proceedings against the Third Respondent for misconduct identified in the forensic report.

4.         That the Second and Third Respondents must ensure that:

4.1       the notice convening the special council meeting of 23^rd May 2014; and

4.2       copies of the forensic report of Kabuso dated 18^th December 2014, together with all annexures (“the forensic report”), a copy of the Applicant’s Power Point presentation of the 16^th January 2014 and annexures ‘P & Q’ to the Applicant’s founding affidavit; be hand delivered to all the councillors of the First Respondent on or before close of business on 16^th May 2014.

5.         That the Second and Third Respondents must ensure that at the special council meeting to be held on 23^rd May 2014:

5.1       All the councillors of the First Respondent are afforded a full and fair opportunity to debate and to make proposals concerning the contents, findings and recommendations set out in the forensic report;

5.2       The Council of the First Respondent consider, debate and resolve on each of the findings and recommendations set out in the forensic report and, in particular consider, debate and resolve upon the findings and recommendations concerning:

5.2.1   the appointment of the Third Respondent and the other senior managers and acting managers of the First Respondent set out in paragraph 20.1 of the forensic report;

5.2.2   the alleged manipulation and fabrication by the Third Respondent of reports to unlawfully obtain the approval of the First Respondent’s Council and of the Applicant for the appointments alluded to at page 131 of the forensic report;

5.2.3   the irregularities which allegedly occurred in connection with the purchasing of motor vehicles referred to in paragraph 20.2 of the forensic report;

5.2.4   the irregularities which allegedly occurred in connection with the construction of the roads referred to in paragraph 20.3 and 20.4 of the forensic report and paragraph 5.11 to 5.12 of the process plan;

5.2.5   the cemetery tariffs referred to in paragraph 20.5 of the forensic report;

5.2.6   the management of sewer spillages referred to in paragraph 20.6 of the forensic report;

5.2.7   the role councillor Jonga played in the employment of the employees referred to in paragraph 20.7 of the forensic report;

5.2.8   the allegations the lack of management oversight and lack of skills, expertise, competencies, qualifications and the contraventions of legislation, regulations and policies which allegedly resulted in the various unlawful actions referred to in paragraph 20.8 of the forensic report.

5.3       At the meeting of 23^rd May 2013 the Council of the First Respondent, consider, debate and resolve on each of the Applicant’s recommendations set out in paragraph 6 of the Applicant’s Power Point presentation (“the process plan”) and, in particular consider, debate and resolve upon the recommendation that:

5.3.1   The Third Respondent be placed under precautionary suspension pending the finalisation of disciplinary proceedings against him in accordance with the applicable statutory and other prescripts;

5.3.2   The Council of the First Respondent develop, adopt and implement a detailed remedial plan to address the adverse findings contained in the forensic report concerning, in particular the reversal of alleged irregular appointments and acting appointments of senior managers, the recovery of irregular payments and wasteful expenses and the institution of disciplinary proceedings against identified transgressors.

6.         That the Second Respondent must on or before 30^th June 2014 deliver to the Registrar of this Court and to the Applicant a report with supporting documentation setting out in detail:

6.1       all the resolutions of the First Respondent’s council taken in compliance with each of the orders set out above;

6.2       the extent to which each of the above orders have been complied with; and / or implemented;

6.3       in the event of any of the above orders not having been complied with, the reasons for such non-compliances.”

[6] Upon issue of the order, the parties were advised in open court that reasons for the issue of the order would be provided if requested.  On 23^rd May 2014 the Registrar received from the respondents’ attorneys a written request for the provision of the facts which the court found had been proved and the reasons for judgment.  Compliance with this request follows accordingly.

URGENCY

[7] It is evident from the terms of the rule nisi agreed between the parties on 7^th May 2014 and relating to the exchange of further affidavits and heads of argument that all concerned have regarded this matter as urgent and warranting treatment in accordance with the provisions of Rule 6(12) of the Uniform Rules of Court.  This is further borne out by an element common to the opening addresses of both senior counsel appearing in the matter and moving prerequisite applications for condonation for non-compliance with portion of the directive contained in the rule nisi, namely that the parties were desirous of being heard.  The resultant approach towards the matter which was then common to all parties, in my view, was correct.  It was a factor which informed the approach adopted by the court in consideration of the most appropriate outcome in the matter.

LOCUS STANDI OF THE APPLICANT

[8] For the sake of convenience and in order to ensure a measure of compatibility between the reasons for judgment and the application papers, the applicant (the Member of the Executive Council of the Eastern Cape Responsible for Local Government and Traditional Affairs) is hereinafter referred to as “the MEC”; the first, second and third respondents (Inkwanca Local Municipality, The Mayor of the Inkwanca Local Municipality and the Municipal Manager of the Inkwanca Local Municipality) are referred as “the Municipality”, “the Mayor” and “the Municipal Manager” respectively; the council of the Municipality is referred to as “the council” and the Department of Local Government and Traditional Affairs is referred to as “the Department”. 

[9] The founding affidavit is deposed to by the MEC.  Addressing the all important issue of locus standi, the MEC states therein that on behalf of the Eastern Cape Provincial Government he is charged with power and duty to, inter alia:

·           Support and strengthen the capacity of municipalities is the Eastern Cape Province (“the Province”);

·           Provide for the monitoring and support for local government in the Province;

·           Establish mechanisms, processes and procedures in terms of the appropriate Constitutional imperatives;

·           To assist municipalities in the Province in their own affairs, exercising the powers and performing their functions;

·           To monitor the development of local government capacity in the Province;

·           To assess the support needed by municipalities in the Province, to strengthen their capacity to manage their own affairs, exercise their powers and perform their functions;

·           To ensure that the municipality consider the allegations which have been made of unlawful conduct and maladministration on the part of municipal councillors and employees including the municipal manager and which take the form of a written forensic report which was presented to the council at its meeting of 16^th January 2014 and act thereon in accordance with the Constitution and applicable legislation. 

[10] In his initial answering affidavit, the mayor placed the MEC’s legal standing in dispute.  The broad allegation is made that the MEC lacks the locus standi to seek and obtain the relief contemplated in the notice of motion.  In the further answering affidavit deposed to by the mayor, the attack is not repeated but is not expressly abandoned. 

[11] In argument, no attack was made on behalf of the municipality, the mayor and the municipal manager against the locus standi of the MEC.  In the circumstances, I am in agreement with the submissions made on behalf of the MEC, namely that the MEC has a most direct and substantial interest in local government within the municipality.  The interest is statutory in origin[1] and the founding affidavit is deposed to nomine officio.  To the extent that it remained in place by the time the matter was argued, any challenge to the locus standi of the MEC must fall away. 

FACTUAL MATRIX

[12] The facts in this matter came before the court as a result of the exchange of affidavits in motion proceedings.  At the stage where final relief is sought, motion proceedings concern themselves with the resolution of issues based on common cause facts.  Inasmuch as they exclude any form of cross-examination, unless the matter is referred for a hearing of oral evidence, motion proceedings are not designed to determine probabilities[2].  Final relief can be granted only if the facts averred in an applicant’s affidavits which have been admitted in the answering affidavits, together with the facts alleged therein, justify such an order.  The approach may be different if a respondent’s version consists of bald or uncreditworthy denials, raises fictitious dispute of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers[3].

[13] Inevitably, in a matter such as this, elements of dispute find expression in the answering affidavits.  However, in my view, particularly in circumstances where urgent relief is sought, what is required is the adoption of a practical approach towards the assessment of the extent to which a bona fide dispute of fact emerges from the answering affidavits.  In this regard, the dicta of Heher JA expressed on behalf of the full court in the Supreme Court of Appeal are apposite:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.  There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him.  But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is made for disputing the veracity or accuracy of the averment.  When the facts averred are such that the disputing party must necessarily possess of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied.  I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision.  A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party.  But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them.  There is thus a serious duty imposed upon a legal advisor who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit.  If that does not happen if should come as no surprise that the court takes a robust view of the matter.”[4]

[14] This approach echoes a view long held in this Court.  A court must take “a robust common sense approach” to a dispute on motion and not hesitate to decide an issue on affidavit merely because maybe difficult to do so[5]. 

[15] Bearing this in mind, it is appropriate to record at this juncture certain anomalies that emerged from the full exchange of affidavits in this matter. 

[16] Firstly, the answering affidavits which were filed in the initial set were extremely short.  They sought to oppose the issue of the rule nisi and the concomitant grant of interim relief.  To that end, certain legal defences were raised, namely an attack on the locus standi of the MEC, the assertion that the MEC was in flagrant violation of the principles of co-operative governance in bringing the application and was intent upon compromising or impeding the municipality’s ability or right to exercise its powers and performance functions, and a lack of jurisdiction on the part of this court to determine the outcome of a dispute which ought to have been ventilated in the Labour Court.  A reservation of rights “to deliver supplementary answering affidavits” should issues not be resolved inter partes before the return date, was expressed. 

[17] Secondly, the further answering affidavits which were filed as a second set after the issue of the rule nisi contain a number of allegations which render common cause many of the factual allegations made by the MEC in his founding affidavit.  Deposing to the further answering affidavit on behalf of the municipality and himself, the mayor prefaces his responses pertinent to the detailed allegations in the founding affidavit with the following words:

“I now turn to deal with the allegations made in the affidavits under reply that call for an answer from the first and second respondents.  Any allegation in the affidavits under reply that is not specifically traversed in this affidavit and which contradicts the content of this affidavit is denied.”[6]

Generally speaking, where the further content of the answering affidavit purports to raise a dispute against an allegation made in the founding affidavit, it does so in a particularly mild and unhelpful manner.  In sharp contrast to the length and detail evident in the allegations contained in the founding affidavit where the MEC deals with factual matters of importance and gravity, the mayor’s reponse is, at best, to be described as economical and, at times, unhelpful.  Refuge is frequently sought in the claim that the mayor has no personal knowledge of the facts alleged in the founding affidavit, or that he was not present at the time.  Where specific denials are expressed, they lack sufficient factual foundation to enable the court to accept that what has been alleged by the MEC is wrong.  Accordingly, in my view, Mr. Quinn is correct in his submission that the court will conclude that no serious disputes of fact are raised successfully against material allegations made by the MEC which would then militate against the court granting final relief in the application as it stands.  Certainly, nothing was made in argument by Mr. Mbenenge of any material disputes of fact which would militate against the issue of a final order.  For reasons which will become apparent, his argument was directed towards an attempt to show that the final relief contended for was inappropriate in both form and substance, rather than in principle. 

[18] Thirdly, and somewhat unusually, the development of the application on paper was overtaken by events on the ground.  Having initially demonstrated resistance to the prospect that a council meeting be convened to consider and resolve upon recommendations contained in the forensic report of Kabuso, hence the success on the part of the MEC in obtaining the rule nisi in the terms in which it found expression, with the service and filing of the further answering affidavits the change of heart hinted at in the initial answering affidavit, where the mayor stated “the first respondent, in giving effect to the spirit of co-operative governance, is not against the notion of convening the meeting contended for on a date to be decided upon by the speaker upon setting in motion the relevant machinery for the holding of such meeting”[7], is fulfilled in the allegation made in the further answering affidavit where the mayor states that a notice had now been issued for such meeting to be held on 23^rd May 2014 “for the purposes of addressing the issues referred to in paragraph 1.1.1 to 1.1.3.3 of the order of this honourable court dated 07 April, 2014”.[8]   

[19] Fourthly, during argument Mr. Quinn made reference to an application in the hands of the municipality which commenced in this court with the issue of a notice of motion on 3^rd February 2014 and which hoped to obtain an order on 27 February 2014 interdicting 33 named respondents from in any way interfering with or obstructing the normal operation of the municipality’s offices, or from inciting any other person to that end.  The application was opposed and argued before Plasket J on 27 March 2014[9].  The founding affidavit was deposed to by the municipal manager and complains of a plethora of protest and illegal activities within the boundaries of both Molteno and Sterkstroom, the two towns over which the municipality has jurisdiction.  The protest and illegal activity therein described is alleged to have been specifically directed against the members of staff of the municipality, councillors, the municipal manager and the mayor.  Attacks involving stoning of cars and setting up road blocks with burning tyres and scrap metal are described.  So, too, are acts of group threat and arson.  The result described in the founding affidavit is of the affected towns being “held to ransom” with ongoing deterioration in service delivery.  The “paralysis of all municipal services” was predicted by the deponent.  In his judgment delivered on 3^rd April 2014 Plasket J refused an application brought on behalf of the municipality for the referral of the matter to oral evidence.  This seems to have been an application prompted by certain technical difficulties in the written presentation of the evidence referred to in the founding affidavit.  Be that as it may, Mr. Quinn urged the court to accept the transcript of the application and the judgment in support of his argument that little store could be set by the claims now made by the mayor and the municipal manager that events within the towns over which the municipality had jurisdiction were not as bad as the MEC described in his founding affidavit.  Mr. Mbenenge had no objection to the court receiving the transcript and having regard thereto. 

[20] Against this background, in my view, the following facts appear to be common cause between the parties, or not seriously and effectively disputed by the mayor, the municipality or the municipal manager:    

·           The municipality is an organ of state established in terms of s 12 of the Local Government: Municipal Structures Act 117 of 1998, within the local sphere of government which exercises legislative and executive authority at Molteno and Sterkstroom and within an area determined by the Local Government: Municipal Demarcation Act 27 of 1998.

·           The executive and legislative authority of the municipality is exercised by its council, which is comprised of 7 councillors.

·           The first respondent has administrative offices within the area of jurisdiction of this court at both Molteno and Sterkstroom.

·           Problems concerning the administration of the affairs of the municipality have a long history.

·           On 29^th July 2013 the Molteno branch of the South African National Civic Organisations (“SANCO”) addressed a petition to the MEC in which it listed various complaints against the municipality.  SANCO caused copies of the petition to be forwarded to the mayor of the Chris Hani District Municipality (“the district municipality”), in whose jurisdiction the municipality falls, and to the mayor together with a request that the concerns of the community be addressed.

·           On behalf of the ratepayers, businesses and workers of the town of Molteno, the petition complains that service delivery is compromised at all levels and that the standard of the town is deteriorating at an unacceptable rate.  A failure on the part of the municipality to respond to earlier approaches in this regard is documented.  In addition, the petition speaks of complaints being met “with rudeness, arrogance and extreme bully tactics both from the mayor and the municipal manager, who himself is not qualified and did not meet the requirements for the position he occupies”. 

·           Amongst the complaints relating to service delivery failures and maladministration are issues concerning inadequate electricity and water supply, an uncompleted sports complex, delays with the housing development project, sewerage spillages, concerns about the construction of roads, resignation of skilled staff, nepotism relating to staff appointments, increased costs for municipal services, unlawful motor vehicle purchases and other complaints.

·           The petition made various demands including a demand that the mayor and municipal manager be immediately “removed” and concluded with the threat that unless the demands were met within 7 days, the community of Molteno will embark on protest action.

·           On 5^th August 2013 the district municipality requested the department to appoint a task team to investigate the complaints set out in the petition.

·           The MEC thereafter instructed the superintendent general of the department to appoint, in collaboration with the district municipality, a task team comprising senior officials of the department and the district municipality to investigate the allegations in the petition. 

·           The task team conducted its investigations on 14^th and 15^th August 2013 and thereafter furnished its findings to the department.  The task team recommended that a support plan for the municipality be developed by the department in collaboration with the district municipality to ensure that the operational capacity of the municipality be enhanced.  It further recommended that a joint meeting be arranged to be attended by representatives of the department, the district municipality and the municipality.  The superintendent general of the department furnished the MEC with a copy of the report.  The MEC instructed him to discuss it with SANCO.

·           The meeting between the superintendant general of the department and SANCO was scheduled to take place on 26^th August 2013 at Molteno.  The meeting was preceded by protest action at Molteno during which the community expressed dissatisfaction with the task team report and demanded that an independent forensic investigation be commissioned.  The protest action became violent and was extended into the ensuing week with acts of intimidation, a house being set alight, streets being barricaded, assaults being perpetrated and the disruption of businesses. 

·           At the meeting on 26^th August 2013 SANCO conveyed the community’s demand that an independent forensic investigation be commissioned to investigate maladministration, corruption and service delivery failures as well as the appointment of the municipal manager and other managers. 

·           The MEC, in agreement with the sentiments expressed by SANCO and based upon the allegations set forth in the petition and the events which transpired thereafter, formed the belief that the municipality may not be able or willing to fulfil its statutory obligations and/or that maladministration, fraud, corruption and other serious malpractices may have occurred.

·           Accordingly, the MEC instructed that an independent firm of forensic investigators be appointed to investigate the allegations contained in the petition presented by SANCO.  Kabuso were appointed to conduct the investigation.

·           The MEC went to Molteno to address members of the Molteno community at a public meeting on 18^th September 2013.  He was accompanied by senior officials of the department, representatives of the district municipality, Department of Water Affairs and Department of Energy.  The mayor, some councillors and an official representing the municipal manager and delegates of SANCO also attended the meeting.  A large group of community members awaited their arrival and prevented them from entering the hall.  The mood was volatile and the South African Police Services had to intervene.  

·           Thereafter, the MEC, together with his delegation, met with the local SANCO executive and informed them of his decision to commission a forensic investigation. 

·           The forensic investigation commenced on 1 October 2013.

·           On 14 October 2013 the MEC received a report from which it appeared that certain service delivery issues raised in the petition were being attended to by the district municipality and the municipality but that allegations concerning the resignation of skilled staff, nepotism relating to staff appointments, increased costs for municipal services, the relocation of the offices of SASSA and unlawful motor vehicle purchases were to be addressed by the forensic investigation.  The appointment of the municipal manager would also be addressed in the report.

·           The report of Kabuso dated 18^th December 2013 was submitted to the MEC on the same date.  The report comprises 236 pages to which 202 annexures are attached.  The municipality is in possession of the report and the annexures.

·           The report offers a number of conclusions which have a direct impact upon the municipal manager and in which are expressed reservation about a number of areas in which unlawful conduct has been identified.

·           It is the specific recommendation of Kabuso that the council consider the findings and take appropriate remedial measures.

·           The MEC was dismayed by the findings of Kabuso and instructed the superintendent general of the department to arrange a meeting with the council and SANCO.  A meeting was arranged for 16^th January 2014.

·           In the meantime, further protest action against delays in acting to address problems of maladministration and corruption took place on 8^th and 9^th January 2014 at Sterkstroom.  During these protest actions roads were blocked and structural damage was caused to railway lines with intended inconvenience to the general public.

·            On the MEC’s arrival at Sterkstroom on 16^th January 2014, together with a delegation of senior officials of the department, a large group made up of members of the community were picketing outside the municipal grounds.  Demands were made that the mayor and the municipal manager should not be removed.  Views were expressed that the forensic report contained lies and accordingly should not be presented.  Nevertheless, the MEC attended the council meeting and tabled a copy of the forensic report.  He proceeded to discuss the report and findings and recommendations contained therein with the aid of a Power Point presentation.  Throughout his presentation a sizable crowd were singing and chanting in favour of the mayor and the municipal manager outside the municipal council chambers.

·           A hard copy of the Power Point presentation was given to the mayor.  During the presentation the MEC explained the reasons for his decision to commission the forensic report, reminded the council of the basic values and principles governing public administration and dealt with the complaints raised in the petition and the findings and recommendations of the forensic investigators, Kabuso.

·           The MEC concluded his presentation by proposing a recovery plan to address the issues raised in the forensic report.  These recommendations included the following:

o        The council should discuss and consider the forensic report.

o        The council should consider whether the municipal manager should be suspended pending a disciplinary investigation into the allegations against him.

o        Should the municipal manager be suspended, the MEC should be approached to second a suitably qualified and experienced member of the department to assist in the administration of the municipality.

o        The municipality should develop a detailed plan to address the adverse findings contained in the forensic report and furnish the MEC with a report thereon.

·           The MEC met a delegation of SANCO later on the same day, 16^th January 2014, at which meeting the MEC furnished them with copies of the forensic report and Power Point presentation and explained the recommendations which had been made to council.  The forensic report was discussed by the council at a special council meeting on 23^rd January 2014.

·           Not having received any response from the municipality, and having been unaware of the council meeting of 23^rd January 2014, the MEC addressed a letter to the mayor on 28^th January 2014 in which he recorded the events which transpired at the meeting of 16^th January 2014 and requested the mayor to report on his “implementation activities together with a copy of the council’s resolutions and a notice to the municipal manager”.

·           On 31^st January 2014 the MEC received a letter from the mayor in which the latter advised that the council:

o        Considered the forensic report at a special council meeting on 23^rd January 2014;

o        Noted that the report contained various disclaimers, inter alia, that the report was intended as a discussion and background document, could not be used by the municipality without the consent of the forensic auditors and does not constitute proof of the findings contained therein;

o        Had resolved:

v     To seek legal advice concerning the attitude it should adopt in respect of the report;

v     To treat the report as confidential pending such legal advice;

v     To request the MEC to extend the scope of the investigation to cover the term of the previous council.

·           A council meeting was held on 31^st January 2014.

·           The MEC responded by letter dated 7^th February 2014 explaining that the council should perform its statutory duty, consider the allegations and take appropriate steps.  It was the view of the MEC that instead of taking an overly technical approach to the disclaimers contained in the forensic report, the council should consider the contents of the report and act on the allegations as required by law.

·           The MEC subsequently received an undated letter from SANCO noting its concern that the council had not implemented any of the recommendations made by the MEC and alerting the MEC to a concerted effort by certain members and municipal officials to disrupt municipal services in Molteno.

·           Against this background the MEC directed officials of the department to instruct legal representatives to prepare an urgent application for an order directing the council of the municipality to convene and hold a meeting to consider and resolve upon the recommendations contained in the forensic report of Kabuso dated 18^th December 2013 and the process plan which the MEC presented on 16^th January 2014 and in particular to consider and resolve upon the recommendation that the municipal manager be placed on precautionary suspension pending disciplinary proceedings.

·           Counsel prepared the draft of an application for hearing in this court on 20^th February 2014.  At the time of the attestation of the supporting affidavits it was discovered that the council was to convene on 17^th February 2014 to consider and resolve upon the findings contained in the forensic report.  As a consequence of this discovery, the MEC decided not to proceed with the urgent application in the hope that the council would respond appropriately to the forensic report. 

·           A special council meeting was held on 17^th February 2014.   

·           The council’s failure to suspend the municipal manager has given rise to widespread discord in the community.  Whilst a minority of the members of the community, predominantly residents of Sterkstroom, support the mayor and the municipal manager, the vast majority of the residents of both Sterkstroom and Molteno are strongly opposed to the council and are very unhappy about the overall lack of service delivery.  It is common knowledge that the community of Molteno have embarked on protest action to demand the implementation of the MEC’s recommendations and, on occasions, these demonstrations have become violent, resulting in injury, damage to property and the disruption of municipal services. 

·           Examples of protest action turning violent are afforded by:

o        The stoning of a bakery delivery vehicle, whose driver was attacked and robbed of his takings (subsequently recovered and returned);

o        The stoning and attack upon a meat delivery vehicle whose driver managed to drive the vehicle to the police station for protection;

o        The removal of a portion of the railway track on the railway line between Molteno and East London;

o        On 25^th March 2014 a goods train was derailed between 200 – 300 metres from the Molteno railway station, an incident which received press coverage in the Daily Dispatch newspaper;

o        On 19^th and 20^th March 2014, children did not attend schools in the township;

o        Gladys Mkhubukeli-Lufele, a duly elected councillor of the municipality and the Whip of the council, a resident in Molteno, is fearful for her safety and that of her children, believing that her home is under surveillance by unknown men who have been posted by supporters of the municipal manager.  This has been reported to the police.

·        There is a substantial lack of continuity in the supply of electricity to the biltong factory in Molteno, to a school situated there and to the Molteno Hospital.

·        There are only three employers at Molteno, of which the municipal is probably the largest.  The community is sustained by the earnings of a limited number of persons in gainful employment, the reliability of which stands to be severely prejudiced by ongoing civil unrest attributable to the failure on the part of the municipal manager to address the issue of a dependable power supply. 

·        The mood in the community is very tense and unless relief is granted, further violence is likely to ensue. 

[21] One of the supporting affidavits filed in conjunction with the founding affidavit is deposed to by one Moorcroft, an adult male businessman of Port Elizabeth who is the sole shareholder and director of a company which employs approximately 80 members of the Molteno community in its biltong factory.  This makes the company the second largest employer in Molteno.  The affidavit deals with the history of the business and the uniqueness of the circumstances in which it remains supported by its main client, Woolworths, whose sense of social responsibility matches that of the deponent and outweighs principles relating to best business practice which dictate that the factory ought to the be located elsewhere with access, with a reliable supply of electricity, water and lower transport costs.  Notwithstanding the quite unacceptable local business conditions in which the biltong factory is called upon to attempt to operate, Moorcroft is intent upon retaining the biltong factory in Molteno in order to protect the contribution which it makes to the subsistence and survival of the local community.  This has meant the installation of diesel electric generators to cope with the unscheduled power cuts which flow from the lack of maintenance to the electricity reticulation system of the municipality and its inadequacy in the supply of the power requirements of the biltong factory.  The total installation cost amounts to approximately R800 000,00.  Threats to the reliability of the continued employment of the employees of the biltong factory which flow directly from the economic squeeze which the biltong factory experiences have prompted protest action on the part of those employees.  This found expression on 24^th July 2013 in conjunction with other members of the community who were dissatisfied with service delivery.  Subsequent agreement with the municipality about the supply of electricity to the biltong factory failed, leading to an urgent application being brought in early 2014.  The promise of substantial disputes of fact led to the abandonment of this application.  Further agreement with the municipality was reached, but the reality is that Moorcroft continues to experience frustration in his attempt to engage meaningfully with the municipality and its officials in his attempt to obtain permission to source electricity from Eskom direct.  This may well lead to the relocation of the biltong factory to Port Elizabeth and Cradock, with concomitant negative effect upon the local economy of Molteno.  The affidavit is detailed and lengthy.  None of the allegations contained therein received any attention in either set of answering affidavits filed on behalf of the municipality, the mayor or the municipal manager.  Obviously, the allegations contained therein must be accepted as being beyond dispute. 

[22] The founding papers contained a confirmatory affidavit deposed to by one Jacobs who is the deputy chairperson of the Molteno branch of SANCO.  In this affidavit, the deponent makes a number of allegations relating to the nature of protest action which has been experienced in Molteno in response to the failure of the municipality to implement the recommendations of the MEC of 16^th January 2014 and to make known the community’s dissatisfaction about the discontinuation of the electricity supply to the biltong factory which employs many Molteno residents, the threats of further electricity cuts to the Molteno Hospital and the like.  The allegations indicate that there is a divide within the Inkwanca community which has resulted in the violent demonstrations which have caused personally injury, damage to property and the disruption of services as referred to in the founding affidavit deposed to by the MEC.  The affidavit indicates that the mood in the Molteno community is extremely tense, that residents are no longer prepared to tolerate the extremely poor levels of service delivery.  The deponent states that these unfortunate events have compelled SANCO to address a further petition to the MEC.  He expresses the fear that unless the complaints and concerns of the Molteno community are addressed as a matter of urgency, public unrest and violence will escalate.  In response to this affidavit, the second and more extensive answering affidavit deposed to by the mayor is confined to the bald allegation that “I dispute the content of this affidavit”.  The reason given is that the deponent “has been content to make wide and sweeping unsubstantiated conclusions of fact and references to unidentified persons[10].”  The attention given to this dispute of the veracity or accuracy of the averments made in the confirmatory affidavit of Jacobs is poor.  The conclusion is inevitable that against the background of those factual circumstances which are common cause between the parties and which inform the content of the affidavit of Jacobs, much more is to be expected of the mayor were he able to raise bona fide disputes of fact in his answering affidavit.  Consequently, the bare denial does not meet the requirement.  I am of the view that no real, genuine and bona fide disputes of fact exist in respect of the general state of affairs deposed to in the affidavit of Jacobs.  

[23] That portion of the second and more substantial answering affidavit deposed to by the mayor which addressed the content of the confirmatory affidavits deposed to on behalf of the MEC by Qashani and Ndibi, both residents of Molteno who depose to the circumstances of volatility which exist at Molteno due to civil unrest in response to dissatisfaction on the part of members of the community with the municipality, attracts similar criticism. 

[24] Earlier reference has also been made to the confirmatory affidavit deposed to by Mkhubukeli-Lufele.  This confirmatory affidavit is extensive in its treatment of events which the deponent states occurred at the special council meetings of 16^th January 2014, 23^rd January 2014, 31^st January 2014 and 17^th February 2014, respectively.  The deponent makes her allegations as a duly elected councillor of the municipality and the Whip of its council.  As far as the content thereof relates to the deliberations of the council at its meeting of 16^th January 2014, the mayor is largely in agreement with the relevant allegations in his second answering affidavit.  This is the meeting attended by the MEC at which he tabled a copy of the forensic report, which he proceeded to discuss with the aid of a Power Point presentation and at which he proposed a recovery plan to address the issues raised in the report.  The recommendations made by him at this meeting are common cause.  As far as the allegations relating to the council meeting on 23^rd January 2014 are concerned, a different picture emerges.  The same can be said for the allegations relating to the special council meeting held on 31^st January 2014.  In respect of both these council meetings, the mayor disputes the allegations made by Mkhubukeli-Lufele in her confirmatory affidavit.  In essence, the disputes relate to the issue of the nature and extent of the follow up of the mayor and the council to the recommendations made by the MEC at the special council meeting of 16^th January 2014, addressing the content of the Kabuso report and embracing the proposed recovery plan.  In my view, it was not necessary to attempt to resolve these disputes of facts in the light of the intention expressed by the mayor to convene a special council meeting on Friday 23^rd May 2014 for the purposes of addressing the issues referred to in paragraph 1.1.1 to 1.1.3.3 of the order of this court issued on 7^th April 2014.  A copy of the notice issued convening the special council meeting was attached to the mayor’s second and substantial answering affidavit.[11]    

[25] There are competing allegations about the special council meeting held on 17^th February 2014. 

[26] In the founding affidavit, the MEC alleges that the mayor and the municipality had instructed attorneys to prepare a response to the forensic report, being annexure “M” to the founding affidavit, and that a copy of this document was received by the MEC under cover of the letter written by the mayor on 18^th February 2014, which is then annexed as annexure “L”.  In his second answering affidavit the mayor alleges that he is the author of annexure “M”.  For reasons which emerge later in these reasons for judgment, I am of the view that this allegation cannot simply be accepted at face value. 

[27] Further disputes arise in respect of the conduct of the special council meeting held on 17^th February 2014.  The MEC relies upon the report contained in the confirmatory affidavit of Mkhubukeli-Lufele.  The mayor’s response is his own.  Both versions agree that the Power Point presentation from the MEC and the response in the form of annexure “M” were tabled before council.  According to Mkhubukeli-Lufele, the Kabuso forensic report was not made available to councillors, notwithstanding their requests for it.  In response to the MEC’s allegation on the point, the mayor’s second answering affidavit commences with the sentence “the content hereof is denied”.  Other than that, the allegations relating to the forensic report receive no response.  Neither is there any improvement in the mayor’s response to the pertinent allegations made on the point by Mkhubukeli-Lufele in her confirmatory affidavit.

[28] The same observations are to be made in respect of allegations made to the effect that councillors were told by the mayor not to make use of their laptop computers or to take notes.  In my view, in the light of the centrality of the Kabuso forensic report to the issues with which this application is concerned, and the centrality of the special council meeting of 17^th February 2014, much more is required from the mayor if he wished to raise a real, genuine or bona fide dispute on the points in his answering affidavit. 

[29] In addressing the voting procedure at the special council meeting of 17^th February 2014, Mkhubukeli-Lufele, and accordingly the MEC, state that while it was proposed that annexure “M” be sent to the MEC as constituting the response of the municipality, and while the proposal was seconded, voting did not take place.  Consequently, the resolution was not adopted.  The response from the mayor in his second answering affidavit is an interesting one.  He states:

“I also dispute that the decisions taken at the meeting of 17^th February 2014 were not by a majority of votes.  They were.  I annexe hereto, marked MNQ5, the minutes of the meeting of 17^th February 2014.  I humbly request this Court to read the content of annexure “MNQ5” as specifically incorporated in this affidavit.”[12]

[30] When the mayor’s second answering affidavit was served and filed, annexure “MNQ5” consisted of a single page document which recorded only the names of those present or to whom leave of absence had been given.[13]  Consequently, when the replying affidavit was prepared, the complete absence of any reference in annexure “MNQ5” to a resolution having been taken on 17^th February 2014 was highlighted.[14]   So, too, was the absence of any reference to the Kabuso forensic report.  The replying papers were fortified in this regard by the supporting affidavit of Christina Magdalena Botha, a duly elected councillor of the municipality, to which I shall return in due course. 

[31] When the matter was argued, Mr. Mbenenge handed in a copy of what is claimed to be the complete minute relating to the special council meeting of 17^th February 2014 and which was intended as annexure “MNQ5”.[15] 

[32] A reading of the complete annexure “MNQ5” reveals that contrary to the allegation made by the mayor, only one decision is referred to therein.  The minutes record but one resolution in the following terms:

“After findings and recommendations from MEC and Mayor’s proposals were presented and debated, the Council resolved as follows:

3.9       Mayor’s responses should constitute the Council’s response to the MEC.

3.10    Municipality to forward responses to the MEC as most of them seek clarity from his office before any action is taken.

3.11    Cllr Cwebi moved for the motion and was supported by Cllr Jonga.  The motion was therefore voted upon by show of hands and was adopted.”

In my view, a certain amount of ambiguity emerges in the wording of that portion of annexure “MNQ5” which purports to deal with the voting process.  The minutes do not claim that the resolution was passed unanimously.  However, they also contain no record of a split vote.  Notwithstanding the centrality of the events at the special council meeting of 17^th February 2014 in this application, the mayor’s second answering affidavit, which seeks to place reliance upon the minutes, is of no assistance.  Once again, I am of the view that the mayor’s response falls short of what would be expected were a real, genuine and bona fide dispute to be raised by a person present at the meeting who wishes to challenge the allegations made by Mkhubukeli-Lufele and, accordingly, the MEC.  This is particularly so where the document attached as evidence itself does little to illuminate the point.

[33] The replying affidavit raises an important point about the content of annexure “M” which, in my view, becomes a factor which is to be taken into account when considering the nature and extent of the dispute claimed by the mayor in respect of the allegations as to what happened at the special council meeting of 17^th February 2014.  In the second answering affidavit, the mayor claims that he is the author of annexure “M” and that it was dealt with at the meeting on 17^th February 2014 by comparing it  point by point with the MEC’s Power Point presentation.  It seems to be common cause that a copy of the Kabuso forensic report was not tabled at that meeting.  A comparison between the content of annexure “M” and the content of the Kabuso forensic report[16] shows compatibility.  The same is not to be said when annexure “M” is read in conjunction with the Power Point presentation.[17]  This reality suggests strongly that the mayor cannot be correct in his assertion under oath as to the point by point comparison between annexure “M” and the MEC’s Power Point presentation which he claims occurred at the meeting.  It also suggests strongly that he alone is not the author of annexure “M” but that it is the product of the consultation with lawyers approved by council on an earlier occasion with specific reference to the Kabuso forensic report. 

[34] To this picture must be added the allegations contained in the supporting affidavit of Botha filed in reply.  Whilst it is so that normally an applicant cannot make out a case in reply[18] in my view the general content of the affidavit of Botha fleshes out allegations which are already to be found in the founding affidavit and the relevant confirmatory affidavits, and many of the facts expressed therein became common cause.  As far as the allegations relating to the special council meeting of 17^th February 2014 are concerned, these echo facts set out in the confirmatory affidavit of Mkhubukeli-Lufele filed as part of the founding papers, to which the deponement makes specific reference.[19]  The allegations in her affidavit are detailed and extensive, demonstrating that she requested that the forensic report first be made available together with all the correspondence, which request was refused.  She thereafter insisted on a division as a mechanism whereby her dissent would be recorded in respect of the proposed resolution.  This, too, was refused by the mayor.  She emphasises that, on the mayor’s own version, annexure “M” was said to become a resolution of the council, but that such resolution then was taken without the councillors having had sight of the forensic report.  She describes the process as a “charade and pretence at making council resolutions”.[20]  No application was made to strike out the supporting affidavit of Botha, or any portion thereof.  No application was made to file a response thereto.  In the circumstances, the allegations contained therein stand and, in my view, must be accepted. 

[35] The question which ultimately arises is whether, on a conspectus of all the evidence placed before the court by way of affidavit, a real, genuine and bona fide dispute of fact emerges from the answering affidavits which militates against the grant of final relief.  In my view, this enquiry is to be answered in the negative for the following reasons:

·           The poverty of the responses from the mayor and the municipal manager, and those who depose to confirmatory affidavits in support of the answering affidavits, to allegations made by or on behalf of the MEC which relate to facts of which the mayor and/or the municipal manager and/or the councillors who filed confirmatory answering affidavits must have knowledge and accordingly, in claiming a dispute, should have met with responses which were full, detailed and unambiguous;

·           The poverty of the responses contained in the answering affidavits is not to be evaluated in isolation; part of the enquiry is informed by the background provided by the significant body of facts which are common cause between the parties or which stand unchallenged and which accord overwhelmingly with the essential facts placed before the court on behalf of the MEC relating to a severe state of unrest within the geographical area over which the municipality has jurisdiction;

·           The poverty of the responses in the answering affidavits is also to be evaluated against the background which includes the allegations made by the municipal manager on behalf of the mayor and the municipality in the founding affidavit filed in support of the notice of motion which commenced proceedings before Plasket J in this court on 3^rd February 2014.[21]  Those allegations speak of the tensions and outward manifestations of serious discontent amongst the citizens of Molteno and Sterkstroom in a way which echoes the claims made on behalf of the MEC in this matter, and to a degree which the mayor, the municipality and the municipal manager now to seek minimize in an unsatisfactory and dismissive manner in the answering affidavits; 

·           The objective comparison of the content of annexures “E”, “F” and “M”, respectively, yield the observation that, without further and explanatory detail, the allegations made by the mayor about the point by point debate which he claims occurred under his direction at the special council meeting of 17^th February 2014 cannot be correct.  This, in itself, creates a worrying doubt about the veracity of the allegations he makes about the meeting in general.

[36] The combined effect of the various factors addressed in the preceding paragraphs is, in my view, the overwhelming conclusion that consideration can be given to final relief which is based upon, and addresses, the factual allegations made by and on behalf of the MEC. 

THE MEETING CONVENED FOR 23 MAY 2014

[37] The mayor attached to his second answering affidavit a copy of the notice issued convening a special council meeting on 23^rd May 2014.[22]  The affidavit[23] and the notice confirm that the business of that meeting was to be confined to a consideration of the issues raised in the Kabuso forensic report, addressing the issues referred to in paragraphs 1.1.1 to 1.1.3.3 of the rule nisi issued on 7^th April 2014.  This suggests an apparent and dramatic change in attitude expressed on behalf of the mayor, the municipality and the municipal manager.  I agree with the submission made by Mr. Quinn that the change in all probability is a direct response to the application in the hands of the MEC and the resultant issue of the rule nisi.  In my view, it renders disingenuous any perpetration of opposition to a confirmation of the relevant portion of the rule nisi, unless it could be argued successfully that, in the light of the tender, the MEC is not entitled to final relief. 

[38] I am of the view that Mr. Quinn is correct in his submission that given that the mayor, and those councillors who supported him, rejected the Kabuso forensic report notwithstanding that the MEC explained to them both at the Power Point presentation on 16^th January 2014 and by letter of 7^th February 2014, that both the Constitution and relevant legislation obliged the council to act on the forensic report, and given that the mayor had not responded to subsequent correspondence from the MEC to indicate an intention to address the issues raised in the Kabuso forensic report (whether by correspondence or by relevant allegations in this application), there is every reason to believe that the mayor will continue to act in contravention of the relevant legislation.  Notwithstanding the content of the answering affidavits, in my view the conduct of the mayor and those councillors who support him has been made clear in the founding papers. 

[39] Moreover, the undertaking to convene a special council meeting with an appropriate agenda is no bar to the grant of a relevant mandamus.[24] 

[40] In my view, the absence of any demonstrable prejudice accruing to the mayor, the municipality and the municipal manager from a final order which embraces the undertaking given to hold a special council meeting is a further factor which is supportive of a decision to grant final relief. 

THE COUNCIL MEETING OF 17^TH FEBRUARY 2014

[41] On the basis of the outcome of the lengthy evaluation of the factual matrix placed before the court, in my view the version of events which occurred at the council meeting of 17^th February 2014 that is expressed on behalf of the MEC is to be accepted for the purposes of this application.  That version demonstrates a meeting which was conducted in an inappropriate manner and which produced a purported resolution which is unlawful in the result.  Moreover, it is in terms contradictory of the activity proposed by the mayor in convening the special council meeting on 23^rd May 2014.  Clearly, in my view, the proposed special council meeting is vital to begin to address the very real concerns which confront the mayor, the municipality and the municipal manager. 

[42] However, a municipal council acts through its resolutions.  Once a resolution is adopted, the municipal officials are bound to execute its terms until such time as it is either rescinded or set aside on review.[25]  The proposed special council meeting of 23^rd May 2014 cannot be derailed because of the contradictory and unlawful decision purportedly taken by the council on 17^th February 2014. 

[43] The answering affidavits contain no indication of cognisance on the part of the mayor or the council of the need to rescind that decision in order to enable the proposed meeting to take place.  What is required in the urgent circumstances placed before the court, in my view, is an order that addressed both the unlawful nature of the decision purportedly taken on 17^th February 2014 and the barrier that it poses to any further council meeting which aims to deal with the Kabuso forensic report in an appropriate manner.

THE DRAFT ORDER

[44] This is an appropriate point at which to record that the final order which issued in this matter was prompted by the introduction of a draft order on behalf of the MEC.  Several issues flow from that which require attention. 

[45] Firstly, Mr. Mbenenge protested that the draft order expressed relief which was never contemplated in the notice of motion or expressed in the rule nisi. He submitted that it reflected relief which differed so much from the relief claimed in the initial notice of motion that it constituted a case which the respondents had never been called upon to meet.  For this reason alone, he argued, the relief could not be granted.

[46] Secondly, Mr. Mbenenge argued that it is no longer competent to permit the introduction of relief which is substantially different from the initial relief claimed under the prayer for “further and/or alternative relief.”  Such a prayer has been considered as redundant. [26]

[47] In my view, there is no merit in these two bases from which an attack was made upon the issue of an order in terms of the draft order prepared by Mr Quinn.

[48] The extremely unfortunate history of the growing dispute between the parties was fully ventilated in the somewhat protracted exchange of affidavits.  It is evident from the analysis of the factual matrix placed before this court which finds expression earlier in these reasons that the general character of that dispute remains unchanged.  The passage of time simply permits for an increase in the number of factual examples of the manner in which that dispute manifests itself.  Accordingly, the general character of the dispute between the parties, and the true nature of the case which the respondents have been called upon to meet, remains substantially constant.

[49] Against the background of this general constance of the dispute, some change in the specific areas which the MEC has been called upon to address has occurred.  This is evident in the change in circumstances which occurred between the issue of the rule nisi on 7 April 2014 and the argument of the matter as a fully developed opposed application on 12 May 2014.  This change in circumstances resulted from the issue of the notice convening a special council meeting on 23 May 2014 and which proposed business which would be in direct conflict with the resolution taken by council on 17 February 2014.  This notice was issued after the issue of the rule nisi on 7 April 2014 and undoubtedly in response thereto.  It resulted in the need to address the evolving factual matrix afresh.

[50] Whilst unsatisfactory features of the council resolution taken on 17 February 2014 were always evident and received attention in the founding affidavit, no positive activity on the part of the municipality, the mayor or the municipal manager in conflict with the terms of that resolution was evident prior to the issue of the rule nisi.  It remained open to the council to respond to the rule nisi by convening a special meeting to address the issues raised in the rule nisi.  What would have been reasonably expected, in my view, was a recission by council of its resolution taken on 17 February 2014.  When this did not occur, but what was proposed was a special meeting to consider business which patently would result in resolutions in direct conflict with the resolution taken on 17 February 2014, the MEC became obliged to target specifically the illegality of the resolution of 17 February 2014 and to request relief which dealt with the council’s intention to hold a special council meeting on 23 May 2014.  These objectives were addressed in the draft order.  The changes in circumstances which prompted the change in the formulation of the mandamus were changes for which the respondents were solely responsible, prompted by the issued of the rule nisi.  Given that the essential character of the dispute between the parties remained unchanged, in my view, there was no prejudice to the respondents which arose from the fine tuning in the relief sought by the MEC upon presentation of the draft order.

[51] The lack of change in the substance of the dispute, and the lack of prejudice in the result, was further demonstrated by the fact that the essential argument required by the factual matrix placed before the court remained largely unaltered.  To the extent that there was an alteration in the argument advanced, this was largely prompted by the abandonment by the MEC of the pursuit of final relief against the municipal manager, originally contemplated in paragraph 1.2 of the rule nisi.  The jurisdictional argument to the effect that the lis between the MEC and the municipal manager should have been ventilated in the Labour Court was not pursued by Mr. Mbenenge.  It cannot be said that this change in the relief sought was prejudicial to the respondents in the circumstances.

[52] In my view, the protest that the draft order could not even be introduced under “further and/or alternative relief” is overly technical in the circumstances of this matter.  What was required if the court was to take a robust view of the factual matrix placed before it in urgent motion proceedings and, in light of the view adopted in respect of the facts which the court could accept as the basis upon which final relief was to be granted which is addressed earlier in these reasons, to address the requirement of the for relief as effectively as possible.  In such circumstances, there is no room for an overly technical approach.

CO – OPERATIVE GOVERNANCE

[53] Mr. Mbenenge stressed the right of the municipality to govern its own affairs subject to national and provincial legislation, as provided for in the Constitution. [27] The role of national government and provincial governments is to support and strengthen the capacity of municipalities to that end.[28]  He submitted that the MEC’s quest at ensuring that the municipality gives heed to the recommendations issued pursuant to the Kabuso report has resulted in an intergovernmental dispute.  In these circumstances, he submitted, instead of instituting the present proceedings, it was encumbent upon the MEC to invoke the provisions of the Intergovernmental Relations Framework Act, [29] declaring a formal intergovernmental dispute in terms of s41 thereof and thereafter following the provisions of s42.  These steps would be indicative of compliance with the constitutional obligation of co-operative governance in an attempt to seek alternatives to litigation.  The argument concluded with the injunction that rather than give consideration to the grant of final relief, the court should refer the matter back to the organs of state concerned.

[54] In my view, in the circumstances of this matter, there was no substance in these submissions.

[55] On the undisputed facts, the involvement of the MEC in the difficulties with which the municipality was faced can only be described as an example of responsible co-operative governance at work.  Notwithstanding the mayor’s expression of complaint in the second answering affidavit that in commissioning the forensic investigation in terms of s106 of the Local Government: Municipal Systems Act[30] the MEC acted in “flagrant violation of the principles of co-operative governance and violates the doctrine of separation of powers [31], in my view, the various steps taken by the MEC to address the demands of the community addressed through SANCO and to provide the municipality with guidance and assistance in the discharge of its obligations as the municipality directly responsible to that community, can only be regarded as appropriate.

[56] The principle of co-operative governance at work is also demonstrated by the content of the resultant forensic report, which records the full co-operation of the municipality and its officials. [32]

[57] In my view, the principle of co-operative governance is also demonstrated by the manner in which the involvement of the MEC found expression in the Power Point presentation and recommendations made.  These steps were taken pursuant to the injunction set out in s 139(1)(a) of the Constitution. [33] The involvement of the MEC demonstrated the most conservative of the alternatives available to an MEC acting responsibly in the face or the inability or failure on the part of the municipality to fulfil its executive obligations in terms of the Constitution, namely the issue of a directive within the context of face-to-face engagement creatively put in place by the MEC.  This fell far short of the more invasive forms of intervention envisaged by s 139(1), namely the actual assumption of authority for the relevant obligation [34] or the dissolution of the municipal council and the appointment of an administrator until a newly appointed municipal council has been declared [35].

[58] Accordingly, in my view, the MEC has demonstrated a keen awareness of the doctrine of separation of powers and the constitutional integrity of the municipality.  In these circumstances, the criticism of the mayor is unfounded.

[59] The failure of Mr. Mbenenge’s submissions results from one further factor.  The legislature has specifically provided that the provisions of the Intergovernmental Relations Framework Act [36] shall not be of application in circumstances where a dispute concerns an intervention in terms of s 139 of the Constitution. [37]   In my view, the logic behind the exclusion of these co-operative governance requirements in circumstances such as these is readily apparent.  No profit would be gained in circumstances where a municipality failed in the fulfilment of an executive obligation by a requirement to invoke the provisions of s 41 of the Intergovernmental Relations Framework Act [38].  The very prospect of the sort of intervention envisaged by the provisions of s 139(1)(b) and s 139(1)(c) of the Constitution indicates a specific intention on the part of the legislature to allow for more direct and swift intervention in certain circumstances.  In my view, the circumstances of the present matter are just such circumstances.

PREREQUISITES FOR A MANDAMUS

[60] As an alternative argument against the issue of final relief in this matter, Mr Mbenenge submitted that the MEC had failed to demonstrate the existence of the prerequisites for the grant of a mandamus.

[61] In particular, Mr. Mbenenge attacked the ability of the MEC to demonstrate a clear right.  In my view, this objection is inextricably bound up with considerations relating to the locus standi of the MEC, the right of the MEC to invoke the provisions of s 106 of the Local Government:  Municipal Systems Act [39], the right of the MEC to invoke the provisions of s 139(1)(a) of the Constitution and the right of the MEC to approach this court rather than the Labour Court.  Whether by way of reasoning set out in these reasons, or by way of abandonment of the objection in the hands of Mr Mbenenge, all these enquiries have been answered in favour of the MEC.  In my view, in such circumstances, a clear right was demonstrated.

[62] In my view, the inescapable conclusion to be drawn from the history of the conduct of the municipality, the mayor and the municipal manager in this matter is that the MEC had readily demonstrated a reasonable fear of irreparable harm resulting from the ongoing failure on the part of the council of the municipality to address the issues raised in the Kabuso report in a lawful and constructive manner.  It follows that I am of the view that this element of entitlement to a mandamus was demonstrated.

[63] Faced with the notice issued to convene a special council meeting on 23 May 2014, with an agenda for business which envisaged activity in direct conflict with a resolution taken by council on 17 February 2014 and which made no mention of the recission of that resolution, and particularly against the backdrop of a climate of social unrest, economic instability and the potential for an outbreak of violence, it seemed to me that the MEC, having invoked the provisions of s 139(1)(a) of the Constitution, not only had no satisfactory alternative remedy other than to approach the court for relief but, in fact, became obliged to do so.

[64] Accordingly, in my view, the MEC established the requirements for a mandamus.

REVIEW OF MUNICIPAL RESOLUTION TAKEN ON 17 FEBRUARY 2014

[65] By virtue of the development of the factual matrix after the issue of the rule nisi, in the form of the notice issued convening a special council meeting on 23 May 2014, it became necessary for the reasons expressed earlier herein for the MEC to address more pertinently the resolution taken by the municipal council on 17 February 2014.

[66] In my view, the nature of the resolution taken on 17 February 2014 qualifies it as administrative action on the part of the municipality.  It does not amount to the exercise of the municipal council of either its legislative functions or of its executive powers.  It is a decision taken by an organ of state when exercising a power in terms of the Constitution which clearly adversely affected the rights of members of the community in Molteno and Sterkstroom and the rights of the MEC to insist upon effective and lawful local governance.

[67] In the circumstances, I am of the view that the resolution taken on 17 February 2014 falls within the ambit of s 4 of PAJA [40].  Accordingly, the court has the power to judicially review that administrative action on one or more of the grounds enumerated in s 6(2) of PAJA.

[68] In my opinion, the context in which the resolution was taken by the municipal council on 17 February 2014, which is set out in the facts which were accepted for the purpose of the consideration of final relief in this matter, amply demonstrates one or more of the criteria set out in s 6(2) of PAJA.

[69] In addition, in my view, the MEC was correct in pleading the complaint about the resolution taken on 17 February 2014 as a claim for a legality review.  The basis for the complaint is laid in the founding affidavit in allegations aimed at establishing the clear right claimed by the MEC in respect of the mandamus [41].  The poverty of the response in the answering affidavit to these allegations has been dealt with earlier in these reasons.  In my view, the complaint was justified.

[70] It follows that I am of the view that the exercise of public power demonstrated  in the resolution taken on 17 February 2014 fell foul of the requirement of the rule of law [42].

[71] That being the case, I am of the view that the resolution taken on 17 February 2014 was demonstrably unlawful.

[72] Accordingly, in my view, it was encumbent upon this court to strike down the resolution taken on 17 February 2014 [43].

APPROPRIATE RELIEF

[73] Once a court has struck down an unlawful act perpetrated by an organ of state, it will turn to a consideration of what may be an appropriate remedy [44].

[74] What is to be ascertained is an order which is just and equitable in the circumstances [45].

[75] The context within which the court was enjoined to craft an appropriate remedy was one characterised by a community for whom the provision of adequate and efficient municipal services had failed, giving rise to expressions of anger so serious that trains had been derailed.  In the chaotic state which prevails in the district over which the municipality enjoys jurisdiction, it is the members of the community whose interests, in my view, require protection.

[76] The provisions of the draft order handed up by Mr. Quinn for consideration required the municipality, the mayor and the municipal manager to do no more that was expected of them in the lawful execution of their constitutional and statutory duties within the context of efficient and reasonable municipal governance.  The all important issue of the illegality of the resolution taken on 17 February 2014 and the obstacle which its continued existence would pose to a legitimate outcome of the special council meeting proposed for 23 May 2014 was adequately addressed therein.  So, too, was the obvious need to ensure, against the background of an inefficient and arbitrary treatment of procedures applicable to the taking of decisions at municipal council level, that appropriate processes be put in place to ensure full and informed participation by all members of the municipal council in the business proposed for the meeting scheduled for 23 May 2014.

[77] In all the circumstances, and in the exercise of my judicial discretion, I considered the grant of the final relief set out in the draft order to be appropriate.

[78] Nor order as to costs was sought by any of the parties involved, and accordingly no order as to costs was made.      

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R W N BROOKS

JUDGE OF THE HIGH COURT (ACTING)

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