Bikitsha v Mnquma Local Municipality and Others (5064/2017) [2017] ZAECMHC 46 (21 November 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION: MTHATHA]

Case No. 5064/2017

In the matter between

THOBEKA

BIKITSHA

Applicant

And

MNQUMA LOCAL

MUNICIPALITY

1st Respondent

THE MUNICIPALITY MANAGER:

MNQUMA LOCAL

MUNICIPALITY

2nd Respondent

ZIZAMELE

PLATA

3rd Respondent

THE SPEAKER:

MNQUMA LOCAL

MUNICIPALITY

4th Respondent

LULEKA

NONYONGO

5th Respondent

MAKHAYA

KIBI

6th Respondent

THE MEMBER OF

EXECUTIVE COUNCIL

RESPONDENT FOR

COOPERATIVE

GOVERNANCE AND

TRADITIONAL

AFFAIRS: EASTERN

CAPE PROVINCE

7th Respondent

JUDGMENT

JOLWANA J

[1] This application came by way of urgency and I granted the following interim order to operate until delivering of this judgment which I reserved:

1. The 1st and 2nd respondents be and are hereby interdicted and restrained from implementing the 1st respondent’s resolutions taken in its extra ordinary council meeting of the 23 October 2017;

2. The third respondent be and is hereby forthwith interdicted and restrained from performing the functions of the second respondent;

[2] On the 23 October 2017 the 1st respondent’s council received a report tabled by the 4th respondent in terms of the Local Government: Disciplinary Regulations for Senior Managers, 20101, (the Disciplinary Regulations) as a result of which it passed resolutions in terms of which the appointment of the 5th respondent as its acting municipal manager was terminated on account of alleged misconduct and the 3rd respondent was appointed as 1st respondent’s acting municipal manager.

[3] The applicant is the 1st respondent’s executive mayor and therefore a councillor of the 1st respondent. The applicant seeks to have these resolutions reviewed, declared unlawful and set aside for want of compliance with the relevant legislative prescripts. She bases her locus standi to institute these proceedings on the fact that as a councillor of the 1st respondent she has a duty to ensure that the 1st respondent operates within the legislative framework and as an executive mayor she is responsible for ensuring that the administration of the 1st respondent operates in terms of lawful resolutions.

[4] The challenge mounted by the applicant on the lawfulness of the relevant resolutions is that in the process of taking the resolutions that it did the 1st

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1. Local Government: Disciplinary Regulations for Senior Managers, 210 paused by the then Acting Minister for Cooperative Governance and Traditional Affairs in Government Gazette No. 34213 of 21 April 2011 respondent allowed and received a report about the conduct of the 5th respondent which was rendered by the 4th respondent instead of the applicant.

[5] This is how the applicant put the issue at paragraphs 22 & 23 of her founding affidavit:

“22. The position of Acting Municipal Manager is a senior position within a municipal human resource environment. Wherever it is deemed that an incumbent to a position such as this one is not performing as satisfactorily as required or her performance is substandard, I would have had to convene a meeting with her to deal with the issue in accordance with the procedure set out in chapter 3 of the Local government: Disciplinary Regulations for Senior Managers, 2010.

23. When the 1st respondent resolved and decided to terminate Nonyongo’s appointment as its Acting Municipal Manager it did not follow the requisite procedure. In terms of the proper procedure I would have been the responsible party to deal with the matter and would have first @ convened a meeting to give feedback Nonyongo on her performance; and (b) furnished her with reasons why it was necessary to initiate the procedure regarding the evaluation of her performance.”

[6] As can be gleaned from these extracts from the applicant’s founding affidavit the issue concerns whether when the 5th respondent was removed from her position as acting municipal manager, the correct procedure was followed. Regulation 5(1) and (2) provide as follows:

“(1) Any allegation of misconduct against a senior manager must be brought to the attention of the municipal council.

(2) An allegation referred to in subregulation (1) must be tabled by the mayor or the municipal manager, as the case may be, before the municipal council not later than seven (7) days after receipt thereof failing which the mayor may request the speaker to convene a special council meeting within seven (7) days to consider the said report.”

[7] It is common cause that a report concerning the alleged misconduct of the 5th respondent was tabled by the 4th respondent.

[8] In the main the 1st, 3rd & 4th respondents submit that the applicant has no locus standi to bring this application because an employee, namely the 5th respondent cannot be represented by the employer in any legal proceedings. This seems to be based on the fact that it is the 5th respondent who was removed from the position of acting municipal manager and therefore she should be bringing these proceedings in her personal capacity.

[9] In my view the 1st respondent misconstrues the basis on which the applicant has instituted these proceedings. In her founding affidavit the applicant says that as an accountable executive mayor and councillor of the 1st respondent she is entitled to bring proceedings challenging the legality of the actions of the 1st respondent’s council in order to ensure that it acts within the confines of the law.

[10] In Khumalo v MEC for Education: KwaZulu Natal2 Skweyiya J stated that:

“The rule of law is a founding value of our constitutional democracy. It is the duty of the courts to insist that the state, in all its dealings, operates within the confines of the law and, in so doing, remains accountable to those on whose behalf it exercises power. The supremacy of the Constitution and the guarantees in the Bill of Rights add depth and content to the rule of law. When upholding the rule of law, we are thus required not only to have regard to the strict terms of regulatory provisions but also the values underlying the Bill of Rights.”

[11] It would be contrary to the founding value of the rule of law of our constitutional democracy to non-suit the applicant on the basis that she is not the employee in respect of whom the procedure prescribed in the Regulations was allegedly not followed. The submission by the 1st respondent that the applicant does not have locus standi is incorrect in as much as it appears to be based on the applicant bringing these proceedings for and on behalf of the 5th respondent. This is clearly not so as applicant clearly indicates in the founding affidavit that her

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2. Khumalo & Another v MEC for Education: KwaZulu Natal 2014 (5) SA 57 9 (CC) at para 29

reasons for initiating these proceedings is to ensure that the 1st respondent’s council operates lawfully in that it does not pass resolutions the effect of which is to lend legitimacy to unlawful conduct. In a nutshell the basis of the applicant’s case is that the steps that were taken in having the 5th respondent removed from office are steps that only she could take as the whole process is governed by the applicable legislation, namely the Disciplinary Regulations. In this case by respondents’ own admission these steps prescribed by the Disciplinary Regulations were taken by the 4th respondent and not the applicant. For instance the report on the basis of which the 5th respondent was removed as acting municipal manager was rendered by the 4th respondent and the applicant contends that that makes the report and the manner in which it was tabled unlawful.

[12] The crisp question in my view is whether the report tabled by the 4th respondent to the council of the 1st respondent was correctly rendered. What is clear is that the Disciplinary Regulations give the responsibility to table the report to the applicant in her capacity as mayor. The question then is whether it is permissible that it be tabled by another official. To answer these questions perhaps the offices of the applicant and 4th respondent need to be examined.

[13] These offices are both creatures of the Local Government: Municipal Structure Act3 (the Structure Act). Section 56 of the Structures Act gives certain responsibilities to the executive mayors as follows:

“56 (1) An executive Manager is entitled to receive reports from committees of the municipal council and to forward these reports

together with a recommendation to the council when the matter cannot be disposed of by the executive mayor in terms of the executive

mayor’s delegated powers.

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3. Local Government: Municipal Structures Act 117 of 1998

(2) The executive mayor must –

(a) identify the needs of the municipality;

(b) review and evaluate those needs in order of priority;

(c) recommend to the municipal council strategies, programmes and services to address priority needs through the intergrated development plan, and the estimates of revenue and expenditure, taking into account any applicable national and provincial development plans; and

(d) recommend or determine the best way, including partnership and other approaches, to deliver those strategies, programmes and services to the maximum benefit of the community.

(3) The executive mayor in performing the duties of office must –

(a) identify and develop criteria in terms of which progress in the implementation of the strategies, programmes and services referred to in subsection (2) (c) can be evaluated, including key performance indicators which are specific to the municipality and common to local government in general;

(b) evaluate progress against the key performance indicators;

(c) review the performance of the municipality in order to improve –

(i) the economy, efficiency and effectiveness of the municipality;

(ii) the efficiency of credit control and revenue and debt collection services; and

(iii) the implementation of the municipality’s by-laws;

(d) monitor the management of the municipality’s administration in accordance with the directions of the municipal council;

(e) oversee the provision of services to communities in the municipality in a sustainable manner;

(f) perform such duties and exercise such powers as the council may delegate to the executive mayor in terms of section 59 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

(g) annually report on the involvement of communities and community organisations in the affairs of the municipality; and

(h) ensure that regard is given to public views and report on the effect of consultation on the decisions of the council.

(4) An executive mayor must perform a ceremonial role as the municipal council may determine.

(5) An executive mayor must report to the municipal council on all decisions taken by the executive mayor.

(6) The deputy executive mayor of a municipality exercises the powers and performs the duties of the executive mayor if the executive mayor is absent or not available or if the office of the executive mayor is vacant.

(7) If the executive mayor is absent or not available and the municipality does not have a deputy executive mayor, or the deputy executive mayor is also not available, the council must designate a councillor to act as executive mayor.”

[14] It is clear from these provisions that in exercising all the powers and performing the duties of office an executive mayor reports to council.

[15] This brings me to the position of the speaker of a municipal council. Section 36 of the Structures Act creates the position of a speaker of a municipal council and provides that by virtue of his office as such, a speaker is the chairperson of a municipal council. Section 37 provides for the functions of the speaker as follows:

“37. Functions of speakers –

The speaker of a municipal council –

(a) presides at meetings of the council;

(b) performs the duties and exercises the powers delegated to the speaker in terms of section 59 of the Local Government; Municipal Systems Act 2000 (Act 32 of 2000);

(c) must ensure that the council meets at least quarterly;

(d) must maintain order during meetings;

(e) must ensure compliance in the council and council committees with the Code of Conduct set out in Schedule 1 to the Local Government: Municipal Systems Act 2000, (Act 32 of 2000; and

(f) must ensure that council meetings are conducted in accordance with the rules and orders of the council.”

[16] Both the executive mayor and the speaker have powers and duties given to them by the Structures Act. However, both sections 37 and 56 of the Municipal Structures Act provide that in addition to the powers given to them in terms of these sections they may perform duties and exercise powers delegated to them in terms of section 59 of the Local Government: Municipal Systems Act4, (the Municipal Systems Act).

[17] Section 59 of the Municipal Systems Act provides as follows:

“59 Delegations:-

(1) A municipal council must develop a system of delegation that will maximise administrative and operational efficiency and provide for adequate checks and balances, and in accordance with that system, may –

(a) delegate appropriate powers, excluding a power mentioned in section 160 (2) of the Constitution and the power to set tariffs, to decide to enter into a service delivery agreement in terms of section 76(b) and to approve or amend the municipality’s integrated development plan, to any of the municipality’s other political structure, political office bearer, councillor, or staff members;

(b) instruct any such political structure, political office bearer, councillor, or staff member to perform any of the municipality’s duties; and

(c) withdraw any delegation or instruction.

(2) A delegation or instruction in terms of subsection (1) –

(a) must not conflict with the Constitution, this Act or the Municipal Structures Act;

(b) must be in writing;

(c) is subject to any limitations, conditions and directions the municipal council may impose;

(d) may include the power to sub-delegate a delegated power;

(e) does not divest the council of the responsibility concerning the exercise of the power or the performance of the duty; and

(f) must be reviewed when a new council is elected or, if it is a district council, elected and appointed .

(3) The municipal council –

(a) in accordance with procedures in its rules and orders, may, or at the request in writing of at least one quarter of the councillors must review any decision taken by such a political structure political office bearer, councillor or staff member in consequence of a delegation or instruction, and either confirm, vary or revoke the decision subject to any rights that may have accrued to a person; and

(b) may require its executive committee or executive mayor to review any decision taken by such a political structure, political office

bearer, councillor or staff member in consequence of a delegation or instruction.

4. Local Government: Municipal Systems Act No. 32 of 2000

(4) Any delegation or sub-delegation to a power conferred on a municipal manager must be approved by the municipal council in accordance with the system of delegation referred to in subsection (1).

[18] The 1st, 3rd and 4th respondents filed an answering affidavit deposed to by the 3rd respondent in which the following averments are made:

“8.12 Prospective interviews should have been shortlisted. The applicant collapsed that process in that she blatantly refused or failed to convene the said selection committee. As a result of her gross insubordination and undermining of council resolutions, a resolution was taken by the council of the 1st respondent on 17th October 2017, acting in terms of section 59 (1) (c) of the Municipal Systems Act, 32 of 2000, to withdraw its delegations from her.

8.13 All delegations except delegations inherent in her position as executive mayor, in terms of national legislation have been withdrawn. Those delegations were given to the Speaker of the 1st respondent.”

[19] From these paragraphs it appears that the basis for the 4th respondent to render the impugned report to the council of the 1st respondent is that the applicant’s power to do so ended when the council of the 1st respondent resolved to withdraw its delegation of such power to do so and to give those powers to the 4th respondent. The question is whether, when those powers to deal with the allegations of misconduct against senior managers were delegated to the applicant, if they were, were powers that could be delegated to her in the first place with the result that those delegated powers could be withdrawn.

[20] The reading of Regulation 5(2) makes it clear that it is the mayor that must table an allegation of misconduct on the part of a municipal manager before a municipal council. This means that the powers are not and could not have been validly delegated to the applicant by the council of the 1st respondent. It follows that because those responsibilities could not be delegated to her, withdrawal of the delegation cannot arise. Those powers are original powers conferred on the applicant in her capacity as mayor in terms of Regulation 5(2). Therefore those powers and responsibilities could only be performed and exercised by the applicant. Any purported delegation was itself invalid for want of compliance with section 59(2) (a) of the Municipal Systems Act which provides that delegation must not conflict with the Constitution5, the Municipal Systems Act or the Municipal Structures Act. In passing the Regulations the Minister of Cooperative Governance and Traditional Affairs was exercising powers that are bestowed on him in terms of section 120 of the Municipal Systems Act. It is clear that the powers of the executive mayor to deal with matters provided for in the Regulations were not and could not have been delegated to her but are original powers conferred on her by the Minister. This leaves no room for the council of the 1st respondent to have delegated those powers to the applicant such that the delegation could be withdrawn.

[21] In Muldersdrift Sustainable Development Forum v Mogale City6, Willis JA writing a decision of the full court stated that:

“The requirement in s54A(1)(a) of the Local Government: Municipal Systems Act 32 of 2000, that it is the municipal council which must appoint the municipal manager, read together with s59(2), that a delegation must not conflict with the provisions of the Local Government: Municipal Systems Act itself, indicate that the delegation by a municipal council of its obligation to appoint a municipal manager is not permissible. The re-appointment of the Municipal Manager was indeed procedurally defective.”

[22] A reading of sections 56(7) and 49(3) of the Municipal Structures Act makes it clear that there cannot be a situation in which there is no mayor. The provisions section 49(3) are worth quoting if only to emphasize the importance of the office

5. Constitution of the Republic of South Africa, 1996

6. Muldersdrift Sustainable Development Forum v Mogale City (20424/14) [2015] ZASCA 118 at para 13

of the mayor in the organogram of the 1st respondent.

“49 (3) If the mayor is absent or not available and the municipality does not have a deputy mayor, or the deputy mayor is also absent or not available –

(a) the member of the executive committee designated thereto in writing by the mayor acts as mayor; or

(b) a councillor elected by the members of the executive committee from amongst themselves acts as mayor if the mayor has not designated a member thereto or if the designated member is absent or not available.”

[23] With this knowledge the Minister specifically gives the power to deal with the matters provided for in the Regulations to the mayor. It is important to emphasize that with the provisions of section 49 (3) it is inconceivable for a situation to arise in which there is no one to perform the duties of the mayor. As a result the Regulations themselves make no provision for the delegation of those functions to anybody else.

[24] It would in my view, be absurd if it was lawful that while the mayor is in office there was a possibility of his or her power to be delegated and her functions to be exercised by somebody else or another official or member of the council outside the scenarios created by section 49(3) of the Municipal Structures Act.

[25] Another point that is important to note is that the speaker is the chairperson of the council to which the mayor must table the report envisaged in Regulation 5(2) and the mayor reports to and is accountable to council for all the duties of his or her office. Furthermore it is the speaker who must convene a special council meeting within seven (7) days to consider the mayor’s report. If the powers were delegatable and worse still, to the 4th respondent he would in effect table a report to a council which he chairs. This is obviously an absurdity so glaring that this delegation could not have been intended by the legislature. The other unintended consequence of this absurdity would be to undermine the very founding provisions of the Constitution in that the speaker exercising the power of the mayor would in effect report to himself which goes against the principles of transparency, openness, accountability and responsiveness to which the 1st respondent is bound.

[26] The applicant must therefore succeed in her application. In the result the following order will issue:

1. The rule nisi issued by this court on the 07 November 2017 is confirmed.

2. 1st, 3rd and 4th respondents are ordered to pay the costs of this application jointly and severally, the one paying the others to be absolved.

MS

JOLWANA

JUDGE

OF THE HIGH COURT

Appearances:

Counsel for the Applicants: A. BODLANI

Instructed by: TL LUZIPHO ATTORNEYS

MTHATHA

Counsel for the Respondent: S. SWAARTBOOI

Instructed by: MAKHANYA INC.

C/O VV MSINDO & ASSOCIATES

Matter heard on: 07 November 2017

Judgment handed down on: 21 November 2017