Malawu v MEC for Co-Operative Governance and Traditional Affairs, Eastern Cape and Another (779/2020) [2021] ZAECGHC 7 (19 January 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: 779/2020

In the matter between:

SIYABULELA MALAWU

Applicant

And

MEC FOR CO-OPERATIVE GOVERNANCE &

TRADITIONAL AFFAIRS, EASTERN CAPE

First Respondent

THE MUNICIPAL COUNCIL: AMAHLATHI

MUNICIPALITY Second

Respondent

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

BESHE J:

[1] In a judgment that was delivered on the 30 November 2020, I dismissed Mr Malawu’s application wherein the reviewal and setting aside of a decision by the first respondent to remove him from office as a councillor was sought.

[2] The applicant is now seeking leave to appeal the said judgment. The application will be considered with the provisions of Section 17 (1) (a) (i) of the Superior Courts Act[1] which provides that:

“Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a) (i) the appeal would have a reasonable prospect of success.”

[3] The main application was premised on the contention that the decision taken by the first respondent was not procedurally fair and was irrational in that:

It could not have been based on the report of the investigating team that he had appointed. The impugned decision was taken on the 18 March 2020. The report was signed by a Ms Sihunu on the 20 March 2020.

The hearing (investigation) took place on the 5 March 2020.

The first respondent denied that the decision was taken prematurely, in that the investigation report was not yet at hand. It was contended that this gave rise to a dispute of fact. I was persuaded that a dispute of fact had indeed arisen and decided the matter on first respondent’s version.[2]

[4] Leave to appeal my judgment is based on the ground that another court would find that there was no real dispute of fact. I am still not persuaded that genuine dispute of fact had not arisen for the reasons given in my judgment. My decision was also assailed on the basis that I erred in finding that the first respondent was justified in removing the applicant in that he failed to attend three (3) consecutive meetings. It was not in dispute that applicant had failed to attend three (3) consecutive council meetings. Article 4 (2) of Schedule 1 of the Municipal Systems Act[3] provides that:

“4 Sanction for the nonattendance of meetings

(2) A councillor who is absent from three of more consecutive meetings of a municipal council, or from three or more consecutive meetings of a committee, which that councillor or required to attend in terms of item 3, must be removed from office as a councillor”

In turn, Article 14 (6) of the Schedule provides thus:

“14 Breaches of Code

Sub clause 1 to 5 is not of relevance in this regard.

(6) If the MEC is of the opinion that the councillor has breached a provision of this Code, and that such contravention warrants a suspension or removal from office, the MEC may-

(a) suspend the councillor for a period and on conditions determined by the MEC; or

(b) remove the councillor from office.”

I was and am still of the view that the removal of the councillor in this regard is mandatory. A reading of Article 14 suggests that it is the MEC who is clothed with the power to remove a councillor from office.[4] Sight must also not be lost of the fact that failure by the applicant to attend three (3) consecutive meetings was not the only reason for his removal from office by the first respondent.

[5] I am not persuaded that appeal enjoys a reasonable prospect of success.

[6] Accordingly, the application for leave to appeal is dismissed with costs.

_____________

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Adv: L Matoti & Adv: D Skoti

Instructed by : S R MHLAWULI & ASSOCIATES

C/o YOKWANA ATTTORNEYS

19 New Street

GRAHAMSTOWN

Ref: Mr Yokwana

Tel.: 046 – 622 9928

For the Respondent: Adv: S Rorke S C (FOR FIRST RESPONDENT)

Instructed by : THE STATE ATTORNEY

C/o WHITESIDES ATTORNEYS

53 African Street

Ref: Mr Barrow/nc/C12439

Tel.: 046 -622 7117

Date Heard : 7 December 2020

Date Reserved : 7 December 2020

Date Delivered : 19 January 2021

[1] Act 10 of 2013.

[2] Based on well know Plascon-Evans rule enunciated in Plascon-Evans v Van Riebeeck Paints 1984 (3) 623 AD at 634 H – I.

[3] Act 32 of 2000.

[4] Democratic Alliance & Others v Oudtshoorn Municipality & Others Case No. 3517/2014 WC [86]. Cannaland Municipality v Minister of Local Government & 1 Other Case No. 2076313 WC.