Maruping and Others v Forum 4 Service Delivery (NFEC) and Others (UM46/2048) [2018] ZANWHC 28 (12 April 2018)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: UM 46/2018

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

CIRCULATE TO MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:

MARUPING

GONTSE SAMUEL 1st Applicant

MARUPING LUCAS 2nd Applicant

MONTWEDI

MOTHUSI KENNETH 3rd Applicant

LEDWABA BOSA 4th Applicant

BOTMAN THAMBO 5th Applicant

MOLOKO LETLHOGONOLO 6th Applicant

MOSELANE

MODISAOTSILE JACOB 7th Applicant

MODISE

PAKISO GODFREY 8th Applicant

DIGOPO THABO 9th Applicant

FOLENI

GASETLOLWE CORNELIUS 10th Applicant

MBANA

KGOMOTSO IRENE 11th Applicant

and

FORUM 4 SERVICE DELIVERY (NFEC) 1st Respondent

FORUM 4 SERVICE DELIVERY (NFEC) 2nd Respondent

KEKANA MBAHARE 3rd Respondent

BOEMO-GAOBEPE LORATO 4th Respondent

MOTLAGODISA KATLEGO 5th Respondent

INDEPENDENT ELECTORAL COMMISSION 6th Respondent

MAQUASSI

HILLS LOCAL MUNICIPALITY 7th Respondent

CITY OF MATLOSANA 8th Respondent

MAHIKENG

LOCAL MUNICIPALITY 9th Respondent

GREATER

TAUNG LOCAL MUNICIPALITY 10th Respondent

MAMUSA

LOCAL MUNICIPALITY 11th Respondent

RUSTENBUG

LOCAL MUNICIPALITY 12th Respondent

LEKWA

TEEMABE LOCAL MUNICIPALITY 13th Respondent

DATE OF HEARING: 04 APRIL 2018

DATE OF REASONS FOR JUDGMENT: 12 APRIL 2018

COUNSEL FOR THE APPLICANTS: ADV. MUZA

COUNSEL FOR THE 1, 2 &14TH RESPONDENTS: ADV. FERRIS

COUNSEL FOR THE 3, 4 & 5TH RESPONDNETS: ADV. MOLEA

JUDGMENT

HENDRICKS J

Introduction

[1] On the 04th April 2018, after listening to the submissions and upon perusal of the Notice of Motion, affidavits and other documents filed, I granted an order in the following terms:

“ IT

IS ORDERED

1. THAT: The application is struck from the roll due to lack of urgency .

2.THAT: The applicants are ordered to pay the wasted costs.

3.: If reasons are required same must be applied for within ten (10) days from the date of this order.”

On the 05th April 2018 a request for reasons for judgment was filed with the Registrar of this Court. Here follows the reasons for the order/judgment granted.

[2] The applicants issued a Notice of Motion dated 15th March 2018 which was served via e-mail. It informed the respondents that the application will be heard on 22nd March 2018 at 09H00. The respondents were to inform the applicants of their intention to oppose the application by no later then 12H00 on Friday, 16th March 2018 and to file their answering affidavits by 12H00 on Monday, 19th March 2018, after giving notice of intention to oppose. The applicants should file their replying affidavits by 10H00 on Tuesday,

20th March 2018. All this should happen via e-mail. The matter was in court on 22nd March 2018, before Gutta J, who struck the matter from the roll for the following reasons:

“1.1 Non – service of the Notice of Motion and Founding Affidavit.

1.2 Non – joinder of the political party forum for service delivery.

1.3 The 2nd to 11th Applicants Confirmatory Affidavits were signed before the Founding Affidavits was attested to.

1.4 The Applicants are to pay the costs.”

The matter was not struck from the roll due to lack of urgency by Gutta J but for the aforementioned reasons.

[3] The applicant thereafter issued and filed a new Notice of Motion and founding affidavit on 23rd March 2018 under the same case number. This is a day after the matter was struck from the roll by Gutta J. The application was served on the respondents attorneys of record on 26th March 2018 at 11H30. It is quite evident that everything was hastily done in order to get this matter back on the roll the very next day.

[4] The applicants in their founding affidavit set out the following under the heading “Urgency”:

“ URGENCY

61. The unlawful and malicious conduct of the second, fourth and fifth respondents shall and or has immediately rendered the applicants and I unemployed. By the time this application is heard all applicants might have been replaced because the PFEC's attorneys of record, on the 09th March 2018, refused to grant us an undertaking not to proceed with replacements up until the application is heard. The said attorney further emphasized that the applicants shall not be paid for the month of March 2018. I have attached hereto copies of letters and marked them as annexure "GSM 43a' and "GSM 43b”, respectively.

62. On the 14th March 2018, upon receipt of the declaration of vacancy letter addressed to the IEC and seventh respondent, I contacted other applicants so that we can resolve on steps to take henceforth. We then approached our attorneys of record to bring this urgent application.

63. We cannot wait another day because should we wait any further we shall be highly prejudiced. By that I mean the following, we need to act and stop the NFEC's and PFEC's unlawful conduct before another month commence so that we do not lose out on the payroll of April 2018. Further to mitigate the disruption in the business of the municipal councils which will compromise service delivery since this application involves 11 councillors in 7 local municipalities.

64. Further the PEFC's attorneys letter places emphasis on instructing the municipalities to ensure that we do not receive our salaries for this month and henceforth. This is a clear indication that the PEFC's intention that we are financially crippled so that we are unable to legally challenge their unlawful conduct,

65. At this point we do not know when the council meetings are going to take place to swear in our replacements, hence this application is to stymie the continuance of the unlawfulness and the potential prejudice to the applicants and municipalities.

66. Another very important consideration is that the burning and destruction of public property by angry residents at local municipality government level has become an unpleasant reality in South Africa, the reality which must be averted at all costs.

67. I am afraid if we do not act swiftly chaos may erupt at our local government municipalities because the applicants, as the representatives of the people, have been simply removed unfairly and without consulting the voters and or members.

68. On these grounds I submit that there is more than enough reasons to hear this matter as a matter of urgency, alternatively on semi-urgent roll.”

[5] The party’s disciplinary process against the applicants commenced during August 2017. Letters of expulsion of the applicants

were sent to them as early as 14th February 2018. Some of the applicants could have approached this Court earlier instead of waiting until the finalization of all the disciplinary hearings and then approach this Court on an extremely urgent basis. The urgency, if any, is self-created as correctly

submitted by counsel for the respondents.

[6] Rule 6 (12) (b) of the Uniform Rules of Court provides:

“(b) In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course.”

[7] It is quite apparent from the facts stated in the founding affidavit that the applicants reasons for urgency is totally insufficient. It does not address in any detail why this matter should be regarded as extremely urgent so as to frog-marched the respondents to court. Furthermore, it does not state that substantial redress cannot be obtained in due course. The reasons for urgency is because the applicant’s names would be replaced with the names of other members or representatives by the Independent Electoral Commission (IEC). Furthermore, their names would be removed from the pay roll for the month of April 2018. Some of them suffer ailments and need medical care. They would suffer if they are not to receive their salaries.

[8] I am unconvinced that the applicants will not be able to find redress in due course. They can claim for loss of income and other benefits. Although economic and financial situations may render a matter urgent. I am unpersuaded that it finds application in this matter to the extend that it require this matter to be treated with such urgency. So too, can the situation be revised if their names were to be replaced with that of other members by the IEC, in the event that they are successful with their application.

[9] There are degrees of urgency. Rule 6 (12) should not be abuse by an applicant who want to jump the que and have his matter heard before other matters.

See: • Luna Meubel Vervaardigers (Edms) Bpk v Markin and Another 1977 (4) SA 135 (W). Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W).

[10] This Court has an unfettered discretion to dispense with the Rules of Court and to hear the matter on an urgent basis as provided for in Rule 6 (12). In the exercise of this discretion, this Court ordered that the matter be struck from the roll due to lack of urgency. This matter can be entertained in the ordinary course on the normal motion court roll.

[11] It is for the aforementioned reasons, inter alia, that I granted the order as set out in paragraph 1, supra.

R

D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG