Botha v Matjhabeng Municipality (A78/2009) [2010] ZAFSHC 18 (18 February 2010)

Botha v Matjhabeng Municipality (A78/2009) [2010] ZAFSHC 18 (18 February 2010)

The court found that the 2006 Standing Rules and Orders were not validly published in the Provincial Gazette and therefore had no legal effect at the time of the council's decision. The applicable rules were those adopted and published in 2000, which provided that a request for a secret ballot, once seconded, must be implemented without being subjected to a counter motion or vote. The respondent, through its Speaker, acted outside the scope of the applicable by-law by allowing and entertaining a counter request and subjecting the applicant's seconded request for a secret ballot to a vote. The court further held that the decision did not constitute administrative action under PAJA, as it...

Citation
[2010] ZAFSHC 18
Parties
Applicant: Petrus Francois Botha; Respondent: Matjhabeng Municipality
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 February 2010
Case Number
A78/2009
Procedural Posture
Review Application / Judgment
Outcome
Application granted; respondent's decision set aside.
Judges
L J Lekale, C Van Zyl
Legal Topics
Municipal by Laws, Standing Rules and Orders, Judicial Review, Ultra Vires, Procedural Fairness
Administrative Law Civil Procedure Municipal by Laws Standing Rules and Orders Judicial Review Ultra Vires Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Petrus Francois Botha

Applicant

Matjhabeng Municipality

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 What were the applicable Standing Rules and Orders as at the date of the relevant decision?
  2. 2 Whether the respondent's decision was in accordance with the applicable Standing Rules and Orders.

Ratio Decidendi

The court found that the 2006 Standing Rules and Orders were not validly published in the Provincial Gazette and therefore had no legal effect at the time of the council's decision. The applicable rules were those adopted and published in 2000, which provided that a request for a secret ballot, once seconded, must be implemented without being subjected to a counter motion or vote. The respondent, through its Speaker, acted outside the scope of the applicable by-law by allowing and entertaining a counter request and subjecting the applicant's seconded request for a secret ballot to a vote. The court further held that the decision did not constitute administrative action under PAJA, as it...

Court Disposition

Application granted; respondent's decision set aside.

Orders

  • The decision of 20 January 2009 by the respondent allowing and entertaining a request countering the applicant’s request for a secret ballot and subjecting the said motion or request by the applicant to a vote is set aside.
  • The respondent shall allow, accept and entertain a re-submission of the relevant motion by the applicant, if he is so advised, in accordance with the Standing Rules and Orders published on 1 December 2000.