Civic Voice v MEC: Cooperative Governance and Traditional Affairs and Others (1662/2020) [2020] ZAMPMHC 25 (8 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 1662/2020

In the matter between:

CIVIC VOICE Applicant

And

MEC: COOPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS

First Respondent

HEAD OF DEPARTMENT: DEPARTMENT OF

COOPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS Second

Respondent

LEKWA LOCAL MUNIPALITY Third

Respondent

MUNICIPAL MANAGER: LEKWA

LOCAL MUNICIPALITY

Fourth Respondent

KHOSI HARRIET KHOTHA

Fifth Respondent

LINDOKUHLE DLAMINI Sixth

Respondent

AFRICAN NATIONAL CONGRESS Seventh

Respondent

DEMOCRATIC ALLIANCE

Eighth

Respondent

ECONOMIC FREEDOM FIGHTERS

Ninth Respondent

______________________________________________________________________

JUDGMENT

JUDGMENT HANDED DOWN VIA EMAIL DUE TO COVID 19. JUDGMENT DEEMED TO HAVE BEEN HANDED DOWN ON 08 JULY 2020.

BRAUCKMANN AJ

INTRODUCTION AND BRIEF BACKGROUND

[1] The applicant, Civic Voice (“Civic”), represented by Mr Nicolas Simola Selepe (“Mr Selepe”), an elected public representative and councillor in the 3rd respondent municipality (“Lekwa”), one of the financially troubled local municipalities in the Mpumalanga province.

[2] This is an urgent application, brought on an extremely urgent basis, with severely truncated time-periods determined by the applicant for the respondents to consider the application, decide whether they want to oppose it and even less time to file opposing papers. There are two matters before me in the urgent court, and Lekwa is a party in both the applications. In this matter Lekwa is at the receiving end of an application with severely truncated time periods. Lekwa filed a

notice to oppose, as did the fourth to sixth respondents, but they withdrew their opposition to the application. The application is opposed by the first (“the MEC”), second (“the HOD”), and seventh (“the ANC’) respondents.

[3] Civic seeks, the following relief in PART A of a two-pronged application:

“[1] That the Applicant is hereby granted leave to dispense with the Uniform Rules regarding forms and service of process and that this application is heard on urgent basis as contemplated in Rule 6 (12)(a), of the Uniform Rules of the High Court.

[2] That pending the final determination of Part B of this application.

[2.1.] the fifth and sixth respondents are ordered to vacate their offices of mayor and speaker of the Lekwa Local Municipality forthwith;

[2.2] Alternatively, that the fifth and sixth respondents were lawfully removed from their positions as Municipal Speaker and Mayor respectively, consequent upon the passing of the motion of no confidence by majority of the members of the council of Lekwa Local Municipality, on 10 February 2020;

[2.2] The position of Municipality Mayor and Mayor of the Lekwa Local Municipality remains vacant as a result of the motion of no confidence passed by the majority of the councillors of the Lekwa Local Municipality;

[2.3] That the fifth and sixth respondents are hereby interdicted from occupying the offices of municipal speaker and mayor respectively and from performing any functions and duties that law entrusted upon councillors that are duly and lawfully elected into the positions of Municipal Speaker and Mayor in accordance with the Municipal Structures Act;”

[3.2.3] The fourth respondent, i.e. Municipal Manager of the Lekwa Local Municipality, is hereby ordered to must convene a meeting of the council of the Lekwa Local Municipality, within three (3) days of this order for the purpose of electing an acting Mayor and Acting Speaker respectively;”

[3] Part B is an application in due course seeking to review and set aside the notice by the MEC, dated 3 June 2020, in terms whereof he convened a Special Meeting of the Lekwa council on 5 June 2020 to consider and elect a speaker and mayor for Lekwa as the positions became vacant during February 2020 after a motion of no confidence in the then speaker and mayor was accepted by the council. I pause to mention that in some strange twist of fate, the same individuals whom suffered defeat in February, at the hands of the opposition, as supported by their own party members, were elected to the same positions on 5 June 2020.

THE LAW ON URGENCY

[4] The law on urgency is clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court, with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers Publikasies (Edms) Bpk[1]as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another[2].

[5] The Practice Directives requires an applicant, in an urgent application, to set out explicitly the circumstances which render the matter urgent. It is further emphasised that while an application may be urgent, it may not be sufficiently urgent to be heard at the time selected by the applicants. Further to the aforesaid, the Practice Directives provide that should the practices regarding the proceedings in urgent application not be adhered to, and the application not be enrolled on a date or at a time that is justified, the application will not be enrolled and an appropriate cost order will be made.

[6] In the judgment of East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others[3] it was held:-

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress.

It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[7] In the well-known and widely approved judgment, In re: Several Matters On Urgent Roll 18 September 2012,[4] the Court held that:-

“Further, if a matter becomes opposed in the urgent motion court and the papers become voluminous there must be exceptional reasons why the matter is not to be removed to the ordinary motion roll. ‘The urgent court is not geared to dealing with a matter which is not only voluminous but clearly includes some complexity and even some novel points of law.’ See Digital Printers vs Riso Africa (Pty) Limited case number 17318/02, an unreported judgment of Cachalia J delivered in this division.”

[8] The Court further held that:

“Urgency is a matter of degree. … Some applicants who abuse the court process should be penalised and the matters should simply be struck off the roll with costs for lack of urgency. Those matters that justify a postponement to allow the respondent to file affidavits should in my view summarily be removed from the roll so that the parties can set them down on the ordinary opposed roll when they are ripe for hearing, with costs reserved.”[5]

[9] The abovementioned principle was once again considered, and confirmed, in the case of Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others[6]. The Court confirmed:

It seems to me that when urgency is an issue the primary investigation should be to determine whether the applicant will be afforded substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent.

Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other prejudice to the respondent’s and the administration of justice, the strength of the case made by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents,

self-created urgency.”[Own emphasis]

PROCEDURAL REQUIREMENTS

[10] Before I consider the urgency or merits of the application, and in terms of the Practice Directives of this division which reads:

“10.4 The enrolment shall be guided by when urgency arose and the nature of urgency and at the hearing of the matter the court shall first consider whether the enrolment is accordance with the preceding sub-paragraphs before it deals with urgency and or merits of the application.” [Own emphasis]

It must first be established whether Civic have complied with the procedural requirements of the directives. That includes whether all the papers, properly indexed and paginated were ready and filed on the Thursday (2 July 2020) preceding 7 July 2020. So too whether there were sufficient time allowed for the respondents to consult, file affidavits and attend court. If any of these requirements were not complied with, the matter ends there, and there will be no further enquiry into the urgency of the matter, or the merits, unless the Court is prepared to condone any non-compliance. Now for condonation, there must be such request by the defaulting party, duly explained for the Court to consider.

[11] In this matter there was no compliance with directives 10.2 to 10.4; 10.5 and 10.9. The papers were filed in drips and drabs, just as the parties wished to. Civics’ replying affidavit was only mailed to me at 09h26 on the day of the hearing of the application. In Consequence I did not have the opportunity to read it before the application was argued.

[12] The founding affidavit is also fatally flawed as in the certificate by the Commissioner of Oaths, the deponent appears to be a female person, which immediately creates the impression that the deponent never appeared before the Commissioner of Oaths when he appended his signature to the affidavit. That means that substantial compliance did not take place, and there is no founding affidavit before Court to consider. On this score alone Civic will experience an uphill struggle to convince the Court that it has any case before the Court for anybody to answer. The non-compliance with regards the commissioning of the founding affidavit may be cured, but that will not be achieved before the application was heard. I directed Civics’ counsel to inform his instructing attorney to file a properly commissioned affidavit before close of business on 07 July 2020.

[13] The relief Civic seeks amounts to an order setting aside the election of the speaker and mayor. Civics’ case is that the MEC could not convene a meeting of Lekwa’s council, nor could he designate anybody to preside over the “so convened” meeting as it purported to do. The MEC’s reliance on Section 36 (3) of the Local Government: Municipal Structures Act (“the Structures Act”) is misplaced and tainted with unlawfulness says Civic. Although such relief, amounting to a review of their appointments/elections is competent on an urgent basis, the Court and those wishing to oppose the relief are entitled to the records held by the MEC, HOD and Lekwa in connection with, amongst other, the request by the 4th respondent for assistance by the MEC, the meeting of the MEC considering and approving the request and a host of other information that will inform the process followed by the MEC and Lekwa. The relief prayed for in Part A of the application is not of interim nature. If I grant the relief sought, it would amount to final relief rendering the review application moot.

[14] Not only were the respondents not afforded sufficient time to answer to the allegations in the founding affidavit, but it also appeared that the ANC’s counsel, Advocate Hugh Mbatha was only instructed on the day of the hearing at 07h30. The ANC’s opposing affidavit was only filed on 06 July 2020. So too were the MEC and HOD’s opposing affidavits filed outside the time limits determined by Civic. To put it differently, there was substantial non-compliance with Practice Directives 10.2; 10.4; 10.5 and 10.9.

[15] There are very good reasons for the existence of the Practice Directives, and even better reasons for requiring compliance therewith. If the parties to this application followed the directives, the matter would have been ripe to be heard on 7 July 2020. Civic was overly optimistic in setting severely truncated time-lines for the respondents to comply with in an important matter. The matter involves technical questions and constitutional law. The Court file was supposed to have been ready to be handed to the Judge on 02 July 2020 already. That means that all the parties’ affidavits were to be in the Court file, properly indexed and paginated by no later than 02 July 2020. This was not complied with at all. As I am writing this ruling Civic’s replying affidavit had not been filed and handed to me.

[16] A court should be mindful of the boundaries of the separation of powers. In dealing with interim relief pending a review, Moseneke DCJ had the following to say in this regard in National Treasury and Others v Opposition to Urban Tolling Alliance and Others:

“Before granting interdictory relief pending a review a court must, in the absence of mala fides, fraud or corruption, examine carefully whether its order will trespass upon the terrain of another arm of government in a manner inconsistent with the doctrine of separation of powers.”

The same judgment determined, with reference to Setlogelo v Setlogelo that:

“When a court considers whether to grant an interim interdict it must do so in a way that promotes the objects, spirit and purport of the Constitution. . . . If the right asserted in a claim for an interim interdict is sourced from the Constitution it would be redundant to enquire whether that right exists. Similarly, when a court weighs up where the balance of convenience rests, it may not fail to consider the probable impact of the restraining order on the constitutional and statutory powers and duties of the state functionary or organ of state against which the interim order is sought. The balance of convenience enquiry must now carefully probe whether and to which extent the restraining order will probably intrude into the exclusive terrain of another branch of government.” [Own emphasis]

[17] Although, on what have been argued before me, and on what I could establish from the respondents’ very brief opposing affidavits, Civic might have very good prospects of success, I am of the view that due to the insurmountable procedural flaws in Civics case, I cannot look past the very prejudicial effect its non-compliance with the Practice Directives might have on the respondents. The MEC and HOD’s counsel lamented the fact that their clients were not afforded sufficient time to properly answer to Civics’ founding affidavit and it is apparent from the affidavits filed on its behalf that there is truth in the averments.

[18] Civic became aware of the fact that the MEC and Lekwa intended convening the impugned meeting of the council to “reverse” the 10 February 2020 resolution in terms whereof the mayor and speaker was relieved of their posts on 03 June 2020. Thereafter the unlawful elections took place, but Civic remained supine. A letter of demand was dispatched by Civics’ attorneys to the MEC on 12 June 2020, six days after the elections were held, in terms whereof the exact same mayor and speaker was re- elected, affording them until 16 June 2020 to remove the speaker and mayor due to the fact that, according to Civic, the meeting and resultant election was unlawful. Civic remained supine and issues the current application on 26 June 2020, only to serve it on 30 June 2020, three days later, affording the parties within 1 day to file opposing affidavits. That is not only unfair, and makes a mockery of the Practice Directives.

[19] The averments that the community unleashed mayhem in the Lekwa municipality by marching, burning tyres and barricading roads are made by Civic without connecting it to the election of the speaker and mayor. The Court was informed by Advocate Tshavhungwa on behalf of Civic that the mayhem has stopped because the community was assured that the dispute about the appointment of the erstwhile speaker and mayor will be taken to Court. This has now happened, and the community must remain patient and allow the court procedures to take its course. I am not convinced that this ground is sufficient to cause this Court to find the matter to be urgent. This Court cannot be seen to treat all matters, where a community is unhappy with the service delivery by the people that they have elected to office to serve them, as urgent. That will set a very poor precedent and open the floodgates for unmerited urgent litigation by communities with the slightest complaint against their democratically elected leaders instead of following the internal remedies provided for. The Court cannot be held at ransom by communities’ unlawful conduct. The South African Police Services must control the unruly protestors. The Courts should not become the first port of call in such instances.

[20] The application is not urgent for the reasons provided above, and should be case managed as soon as possible. Civics’ attorney should approach the Registrar to enrol the matter on the case management roll for opposed motions as soon as possible.

COSTS

[21] The MEC, HOD and ANC seeks punitive costs against Civic. I am not convinced that such an order is deserved. Having found that the matter is not properly enrolled and also not urgent, does not hold that the matter is not one that deserves to be heard, albeit not on an urgent basis. I am of the view that Civic rushed to Court without properly assessing the urgency of the matter and thereby deprived the respondents of an opportunity to deal with its allegations properly. Advocate Tshavhungwa was at pains to draw my attention to the fact that it was no easy task to draft the application, and that it took various days to finalise the founding affidavit. It is significant that Civic, being aware of the fact that the application is complex, and took time to draft and settle, failed to afford its opponents similar courtesy. I am of the view that the costs of 07 June 2020 truly amounts to wasted costs. The proceedings that took place on 07 July 2020 will not be repeated in future. The Court will, if the matter is enrolled, hear the review application, and not the attempt at interdictory relief. The costs must be borne by the applicant.

[17] I therefore make the following order:

[17.1] the application is struck off;

[17.2] Applicant to pay the wasted costs.

HF BRAUCKMANN.

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

REPRESENTATIVE FOR THE APPLICANT: ADV T C TSHAVHUNGWA

INSTRUCTED BY: MAPHOSO MOKOENA INC.

mpho@maphosomokoena.co.za

REPRESENTATIVE FOR THE 1st AND 2nd RESPONDENT: ADV MW DLAMINI SC with ADV TSAKANI TSHIFHANGO mwdlamini.law@iburst.co.za

INSTRUCTED BY: TATE ATTORNEY (MPUMALANGA) LMculu@justice.gov.za

REPRESENTATIVE FOR THE SEVENTH RESPONDENT: ADV H MBATHA

INSTRUCTED BY: TMN KGOMO INC nsibande@gmail.com

DATE OF HEARING: 07 JULY 2020.

DATE OF JUDGMENT: 08 JULY 2020.

[1] 1972(1) SA 773 (A) at para 782A to G.

[2] 1977(4) SA 135 (W), see further also Sikwe vs SA Mutual Fire and General Insurance 1977 (3) SA 438 (W) at 440G - 441A

[3] (2012) JOL 28244 (GSJ) at para 6 and 7.

[4] (2012) 4 All SA 570 (GSJ) at paragraph 15.

[5] At paragraph 18.

[6] (2014) JOL 32103 (GP) at para63 – 64.