Masina v MEC for Co-Operative Governance and Traditional Affairs Province of the Eastern Cape and Another (223/2020) [2020] ZAECBHC 21 (5 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION: BHISHO]

Case No. 223/2020

In the matter between:

ZUZANI ERNEST MASINA

Applicant

And

MEC FOR CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS PROVINCE OF THE

EASTERN CAPE

1st Respondent

WALTER SISULU LOCAL MUNICIPALITY

2nd Respondent

JUDGMENT

JOLWANA J

[1] In this opposed application the applicant seeks the following relief in part B of his notice of motion following the dismissal of the interim relief which he had sought in part A thereof:

“1. That the first respondent’s decision taken on 23 March 2020 to:

1.1 remove the applicant as ward 06 councillor and councillor of the Walter Sisulu Local Municipality be hereby reviewed, declared unlawful and set aside;

2. That the applicant be hereby reinstated as councillor of the second respondent municipality, immediately upon the granting of this order.

3. That the applicant, is permitted to discharge his functions as councillor of the second respondent, Walter Sisulu Local Municipality unreservedly and in accordance with the provisions of the Municipal Structures Act and any other law.”

The facts

[2] The applicant became a councillor of the second respondent following the 2016 local government elections. He served as such without any interruption until the events which led to these proceedings began unfolding. On 2nd March 2020 the applicant received a letter from the first respondent in which allegations of misconduct against him were made. In that letter the applicant was informed that the first respondent’s local office had compiled a report the substance of which was that some councillors of the second respondent including the applicant were implicated in allegations of inter alia illegal sale of land and land invasion which were being investigated by the police.

[3] Based on that report, the first respondent formed the opinion that such conduct was in breach of certain aspects or provisions of the Code of Conduct for Councillors (the code of conduct). The applicant’s attention was drawn to clause 14(6)(b) of Schedule 1 of the code of conduct. More about clause 14 of the code of conduct later. He was thereupon given 7 days within which to make written representations to the first respondent on why he should not be suspended without pay pending criminal investigations by the police or be removed as councillor of the second respondent for the alleged breach of the code of conduct.

[4] The applicant’s written representations are contained in his letter dated 6 March 2020 addressed to the first respondent. In that letter the applicant raised the fact that he was not furnished with the report that was referred to in the first respondent’s letter dated 02 March 2020. He further lamented the fact that the said report had not first been tabled before the second respondent’s council or any internal committee of council to be dealt with first in those structures. He further pointed out that in his capacity as a councillor and after receiving reports that the police might shoot and arrest the people who were illegally occupying the land on a particular day, he went to the relevant place where the people who were illegally occupying land were allegedly in a standoff with the police. He again pointed out that before the first respondent invoked the provisions of clause 14(6) (b) of the code of conduct, the matter should have been tabled before the council of the second respondent. He concluded his representations by saying that he was therefore unable to adequately respond to the matter which the first respondent should have first allowed to be dealt with by council and its structures. As will become clear later, the power of the applicant to take action against the applicant before the matter has served before council is very central to the applicant’s case and fundamental to the prayers sought in the amended notice of motion.

[5] In his founding affidavit the applicant summarises his representations to the first respondent as follows:

“[9] On 06th March 2020, I penned a response to the letter aforementioned [the letter dated 02 March 2020] bringing to the attention of the first respondent inter-alia the following concerns:

(i) That I am not in possession of the report that he relies on and which implicates me;

(ii) That the first respondent sanctioned for an investigation and report on a matter that has never been raised on the municipal council, which constitutionally speaking is the highest decision making body of the municipality;

(iii) That there was a great disparity between the action of the MEC and section 151(4) of the constitution in that he was compromising or impeding on the municipality’s own ability to handle its own matters;

(iv) That there was as such no resolution of council on the matter, either referring the matter to his office and/or asking for his intervention;

(v) I disputed the allegations and gave him my version of events;

(vi) That item 14 of the Code of Conduct requires the council to act in terms of sub items (1) - (3) before the MEC can enter the fray and established a committee or investigating team.

A copy of the letter I refer to is annexed hereto marked “A2”.”

[6] In essence the applicant contends that in dismissing him before the second respondent had established a committee to investigate the matter, the first respondent did not comply with the provisions of item of the 14 code of conduct and therefore usurped the second respondent’s powers hence the specific reference to section 151(4) of the Constitution[1]. In his initial replying affidavit the applicant makes it clear that his application for the review of his dismissal is based on the principle of legality. However, in his supplementary papers the applicant seems to be relying on the Promotion of Administrative

Justice Act 3 of 2000 (PAJA).

The legality/PAJA review dichotomy

[7] In the founding affidavit the applicant averred that this application concerns a legality review. However, in the supplementary

affidavit the applicant’s case was that the application is in fact a PAJA review. During the hearing in court submissions

were made and the position of the applicant was changed to say that it was in fact a hybrid. I understand the use of the word “hybrid” to be an indication that it was neither a PAJA nor a legality review but both or a combination of the two. The dictionary meaning[2] of the word “hybrid” is “anything derived from heterogeneous sources.”

[8] I must mention that the applicant did not apply for the review under PAJA or alternatively a legality review in the papers. In seeking to reconcile the two positions it was argued that the applicant’s review was in fact a hybrid between a legality review and a PAJA review. In this regard certain paragraphs in the papers were referred to, to show how PAJA becomes applicable as well in addition to the initial legality review approach. I do not understand our law to allow a litigant such as the applicant to vacillate between two causes of action if that is the applicant’s case. What is permissible is to make factual averments and clearly indicate that in the alternative, the orders sought are sought on the other cause of action. Still factual averments that can sustain the alternative cause of action do need to be alleged. This enables the respondent to know clearly what case to meet and mount an appropriate defence accordingly.

[9] Our courts have spoken a number times and have clarified the interplay and the dichotomy between a PAJA review and a legality

review. I can do no better than refer to the recent pronouncement and restatement of the law by Madlanga J and Pretorius

AJ who, writing a unanimous decision of the Constitutional Court, said in Gijima Holdings[3]:

“[38] The conclusion that PAJA does not apply does not mean that an organ of state cannot apply for the review of its own decision, it simply means that it cannot do so under PAJA. In Fedsure this court said that [i]t seems central to the conception of our constitutional order that the Legislative and the Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law? It also said that –

‘a local government may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition – that it is a fundamental principle of the rule of law recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law – to the extent at least that it expresses this principle of legality - is generally understood to be a fundamental principle of constitutional law. This has been recognised in other jurisdictions. The Matter of Reference by the Government in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada the Supreme Court of Canada held that:

“Simply put, the constitutionalism principle requires that all government action must comply with the law, including the Constitution.

This court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial including the executive branch (Operation’ Dismantle Inc. v The Queen, [1985] I S.C.R. 441, at p.455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.”’

[39] Pharmacentical Manufactures tells us that the principle of legality is ‘an incident of the rule of law,’ a founding value of our Constitution. In Affordable Medicines Trust the principle of legality was referred to as a constitutional control of the exercise of public power. Ngcobo J put it thus:

‘The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution.

[40] What we glean from this is that the exercise of public power which is at variance with the principle of legality is inconsistent with the Constitution itself. In short, it is invalid. That is a consequence of what s 2 of the Constitution stipulates. Relating all this to the matter before us, the award of the DoD agreement was an exercise of public power. The principle of legality may thus be a vehicle for its review. The question is: did the award conform to legal prescripts? If did it that is the end of the matter. If it did not, it may be reviewed and possibly set aside under legality review.”

[10] It is clear from the above elucidation of the law by the Constitutional Court that there are situations in which PAJA and not legality review is applicable and vice vesa. This requires a clear statement of fact alleged to be the basis of the review in whatever the cause of action is sought to be relied on. It is simply not an option to vacillate between the two, a choice has to be made based on clear averments in the papers. It follows that I must reject the submission of a hybrid between a PAJA review and a legality review.

The analysis

[11] In part A of the notice of motion the applicant had sought, on urgent basis, his reinstatement as a councillor of the second respondent and other ancillary relief pending part B which is the subject of this judgment. In dismissing part A, the court also granted the applicant leave to amend his notice of motion to conform to rule 53 of the Uniform Rules of Court. Parties were also granted leave to supplement their papers, if so advised, consequent upon the delivery of the record of decision in terms of rule 53 of the Uniform Rules of Court.

[12] The record of decision filed in terms of rule 53 contained six documents. The first document is a report dated 26 February 2020 from a senior manager, Joe Gqabi District Support Centre, a satellite office of the first respondent in that municipality. That report implicated the applicant and other councillors in inter alia, the illegal sale of land belonging to the second respondent, and in land invasion of municipal land, land belonging to private land owners and the Department of Human Settlements as well as the instigation of the unemployed youth to protest against the municipality. The applicant was also implicated in influencing the office of the surveyor general to survey municipality land for illegal occupation. It appears from the report that some of these problems had been going on since 2016. At some stage these problems were reported to the speaker of the second respondent who did not take any action to deal with them.

[13] It is common cause that the applicant did not have this report nor was it furnished to him by the first respondent when he was called upon to make representations on why he should not be either suspended without pay or be removed as councillor of the second respondent. It is therefore clear that he was not in a position to respond to each and every allegation contained in the report but not specifically mentioned in the letter dated 02 March 2020. In any event, he was not called upon to respond to the contents of the report but to the allegations levelled against him as contained in the letter. Therefore, nothing arises from the fact that he was not furnished with the report at that stage. However, the applicant’s letter to the MEC failed to deal sufficiently with the allegations of illegal sale of land, land invasion and the investigation of those complaints by the police. He also did not, at the very least, even refute that he ever was interviewed by the police’s commercial crimes unit or any police officers or whether any charges have been laid against him by the police concerning land invasion and

illegal sale of land as alleged by the first respondent. All of these are some of the issues raised in the first respondent’s

letter dated 02 March 2020 through which the applicant was invited to make representations as indicated above. Even after receiving the record of decision he has not dealt with those allegations in his supplementary papers.

[14] The second document furnished by the first respondent as part of the record of decision was a letter dated 11 March 2020 addressed to first respondent by the speaker of the second respondent. In that letter the first respondent was advised that the council of the second respondent took a resolution on 10 March 2020 after receiving a report from its rules and ethics committee, to request the first respondent to remove the applicant as its councillor for breach of the code of conduct. He was further advised that the applicant had interfered with a service provider, the land surveyor by giving an unlawful instruction to survey land and was inciting the community to protest against the municipality. The letter from the speaker also advised the first respondent that a letter had been received from the political party of the applicant advising the council of his recall as councillor following an allegation of being involved in gender based violence.

[15] The third document was a letter dated 03 March 2020 addressed by the provincial secretary of the African National Congress (the ANC) in which the applicant held membership and on whose ticket the applicant was a councillor of the second respondent. In that letter he was being recalled with immediate effect by the ANC from being its councillor and its representative in the council of the second respondent. The applicant was alleged to have assaulted a female person, one Relebohile Moferi with a spade. It is noteworthy that in his supplementary affidavit the applicant did not deny the allegations of assaulting the female person with a spade or at all. He contents himself with dismissing that allegation as a mere domestic issue.

[16] The fourth and fifth documents are letters penned by the first respondent both dated 23 March 2020. The fifth letter is addressed to the speaker of the second respondent and in the main advises him of the first respondent’s decision to remove the applicant as a councillor of the second respondent. However, nothing arises from this letter.

[17] It is the fourth document, the letter addressed to the applicant that is very significant. There are many reasons why this letter is very important but mostly it is the fact that it is the vehicle through which the applicant’s councillorship was terminated and the reasons therefor. This letter is dated 23 March 2020 and in it four reasons for his removal are cited. I restate the reasons hereunder:

“1. Your letter dated 0[6] March 2020 responding to my letter to you dated 02 March 2020, wherein I informed you of the findings of the investigating team authorised by my office and afforded you an opportunity to present your side of the story as required by the rules of natural justice.

2. Your response stated categorically clear that you are not in a position to respond to the matter I raised and as such questioned the legal standing of my investigation and letter. As such you did not cooperate with the investigation and therefore could not refute the allegations against you.

3. The report by the Rules and Ethics Committee that was tabled in a Special Council Meeting of the 10 March 2020 wherein you were found guilty for interfering with Administration by giving a Service Provider an instruction to survey the land and inciting community to protest against the municipality.

4. Take further note that the removal was preceded by an investigation which was conducted in terms of Item 14(4) of the Code of Conduct for Councillors.

5. The Council Resolution in line with Item 14(2) (e) of the Code of Conduct applicable to Councillors to request me to remove you from the Council.”

[18] It must be accepted, as the applicant correctly pointed out, that the record of decision filed by the first respondent in terms of rule 53 of the Uniform Rules of Court constitutes the information and documentation that was at his disposal when he took the decision to remove the applicant as councillor of the second respondent. This is not without significance and in fact it is fundamental in that it acknowledges that the decision to remove him was not based only on the investigation by the first respondent’s local office, the Joe Gqabi District Support Centre. It became clear during the hearing of this matter that the council resolution of the second respondent calling for his removal was not in issue and the applicant did not, in any event, challenge that resolution in the papers nor were those processes being impugned.

[19] While the second respondent is cited in these proceedings neither the procedure followed in the rules and ethics committee of the second respondent nor the procedure followed by the council itself in taking the resolution to have him removed was challenged. In fact no relief was sought to set aside that resolution on which the first respondent also acted and which he implemented. It must therefore be accepted that the applicant was happy with the processes and procedures that took place within the second respondent’s council where he was a councillor which led to the request to the first respondent to remove him as its councillor.

The issues

[20] The issues in this matter are firstly whether the first respondent can remove a councillor or he must defer to a municipal council to deal with the allegations of misconduct before he can take action. Secondly, the council of the second respondent followed its own internal processes and ultimately resolved to request the first respondent to remove the applicant. That being the case, does the answer to the first question even matter in this case? It would seem that if the first respondent was, as a matter of law entitled to remove the applicant as councillor without a process initiated by council it follows a fortiori that his removal was correct in any event. This is because of the applicant’s failure to adequately deal with the allegations

against him and his inability or failure to make representations to the first respondent why he should not be either suspended as councillor without pay or be removed as councillor of the second respondent.

The MEC’s powers to remove a councillor

[21] In the written submissions filed on behalf of the applicant the question of the first respondent’s powers to remove a councillor on the basis of a breach of the code of conduct is succinctly put as follows:

“This court must determine:

(a) Whether the MEC has the power to investigate a councillor mero motu without first allowing council to deal with the matter?

(b) Whether the MEC in this matter was authorised by the provisions of Item 14(4) of the Code of Conduct for Councillors to investigate the applicant and/or whether the MEC acted ultra vires and thus unlawful in investigating applicant”

[22] The starting point is section 27 of the Structures Act[4]. Section 27 reads:

“27 Vacation of office

A councillor vacates office during a term of office if that councillor –

(a) resigns in writing,

(b) is no longer qualified to be a councillor;

(c) …

(d) contravenes a provision of the Code of Conduct for Councillors set out in Schedule 1 of the Local Government: Municipal Systems Act, 2000, and is removed from office in terms of the Code

(e) is a representative of a local council in a district council and ceases to be a member of the local council which appointed that councillor to the district council or is replaced by the local council as its representative in the district council,”

[23] The processes and procedures that must be followed where, as in this case, the allegations are that the councillor concerned was in breach of the code of conduct is written in some detail in the code of conduct itself. The applicant’s case is that indeed the first respondent is authorised to remove a councillor. However, the first respondent could not and should not have done so without the council having been given an opportunity to deal with the matter. It was argued that before the first respondent acted as he did on the 02 March 2020 he should have waited for the council of the second respondent or its committee to follow its own internal processes and thereafter request him to act. As I understand the applicant’s case in this regard which was not pleaded in as clear terms as one would have preferred, if the council did not deal with the allegations of misconduct, that should have been the end of the matter.

[24] Clause 14 of the code of conduct reads:

“14. Breaches of Code –

(1) A municipal council may –

(a) investigate and make a finding on any alleged breach of this Code; or

(b) establish a special committee –

(i) to investigate and make a finding on any alleged breach of this Code; and

(ii) to make appropriate recommendations to the council.

(2) If the council or a special committee finds that a councillor has beached a provision of this code, the council may –

(a) issue a formal warning to the councillor;

(b) reprimand the councillor;

(c) request the MEC for local government in the province to suspend the councillor for a period;

(d) fine the councillor; and

(e) request the MEC to remove the councillor from office.

(3) (a) Any councillor who has been warned, reprimanded or fined in terms of paragraph (a), (b) or (d) of sub-item (2) may within 14 days of having been notified of the decision of council appeal to the MEC for local government in writing setting out the reasons on which the appeal is based.

(b) A copy of the appeal must be provided to the council.

(c) The council may within 14 days of receipt of the appeal referred to in paragraph (b) make any representation pertaining to the appeal to the MEC for local government in writing.

(d) The MEC for local government may, after having considered the appeal, confirm, set aside, or vary the decision of the council and inform the councillor and the council of the outcome of the appeal.

(4) The MEC for local government may appoint a person or a committee to investigate any alleged breach of a provision of this Code and to make a recommendation as to the appropriate sanction in terms of sub-item 2 if a municipal council does not conduct an investigation contemplated in sub-item (1) and the MEC for local government considers it necessary.

(5) …

(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 a 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

(7) Any investigation in terms of this item must be in accordance with the rules of natural justice.”

[25] It was submitted that the MEC cannot act under this code on any alleged breach, real or perceived nor can he investigate any allegation of breach unless and until a council has investigated the matter as provided for in sub-item (1). Alternatively, the MEC may only act if a municipal council does not conduct an investigation. The interpretation preferred by the applicant is that the provisions of sub-items (4) and (6) of the code of conduct are subservient to those of sub-item (1), the only exception being that the MEC may act on the basis that and only if the municipal council fails to act. However, it is not clear from the code of conduct how the MEC must come to the conclusion that the council “does not conduct the investigation”.

[26] The interpretation contended for by the applicant appears both in the founding affidavit and in the replying affidavit filed after the supplementary affidavit. In the founding affidavit the applicant says in part:

“31. Having regard to the above I now set out the applicant’s grounds for review as will be succinctly stated in his application in support of Part B of this application as follows:

3.1.1 It was irregular of the first respondent to establish a committee and or investigating team, without first giving council a chance to deal with the allegations and/or alternatively having received a resolution from council either declining to investigate the matter or referring the matter to his office.”

[27] In the replying affidavit referred to above the applicant says:

“14. I deny the correctness of the averments contained in this paragraph and I amplify to state that item 14(4) of the Code of Conduct of councillors does not grant the first respondent unlimited powers to investigate into the alleged misconduct of a municipal councillor.

Item 14(4) only allows the first respondent to investigate if the municipal council does not conduct an investigation contemplated in sub-item (1) of item 14. The municipality in this matter did not conduct an investigation through its Rules and Ethics Committee.”

[28] There are a number of difficulties with the applicant’s submissions. The first one is that when the replying affidavit was filed the applicant was already aware that the matter had in fact been investigated by the rules and ethics committee of the second respondent which was presented to and deliberated upon by council. That would have been the process preceding the taking of the resolution. All of that process is not before this court nor is it being impugned by the applicant at all. I therefore do not understand this contention in the context of the replying affidavit which was filed after the process within council structures had evolved about which the applicant would have known and does not plead ignorance thereof.

[29] Second, the submission that before the first respondent acted he should have given the second respondent a chance to investigate the matter or await a resolution from the second respondent declining to investigate the matter or referring it to him for investigation

amounts to reading into the code of conduct something that is not there. This is clearly impermissible at least in the manner

suggested by the applicant.

[30] The other difficulty with that interpretation is that, it would result in the MEC acting against certain councillors and not acting against others, not because he is not aware of the transgressions but because he was asked to act by some municipalities in some cases and not by other municipalities in other cases. This, juxtaposed with the fact that for exactly the same serious transgressions he would be powerless to act because one council has elected not to take action possibly for political reasons. That would mean that it would depend on political considerations whether or not the MEC is able to enforce compliance with the code of conduct, not on legal reasons. Under normal circumstances law enforcement by those responsible should not depend on political considerations in a society governed by and founded on the rule of law. In this case the reports of the Joe Gqabi District Support Centre and the second respondent’s rules and ethics committee indicate that these problems of serious misconduct or unlawful behaviour by some councillors were reported to the previous speaker but nothing was done about them.

[31] Most importantly, the MEC is only empowered to either suspend for a period or remove a councillor. In both instances, he must be of the opinion that the contravention warrants a suspension or removal from office. That opinion may, in my view, arise from an investigation report he would have commissioned in terms of sub-item (4) or it would be based on the report by council finding that a councillor contravened the code of conduct in a manner warranting a suspension or removal. This is clearly intended for serious transgressions which cannot and should not be made to depend on the political dynamics within that council while transgressions are continuing.

[32] I pause now to emphasize that our legal framework allows people from different political parties and even independent candidates to contest for and become councillors. All the councils within a province fall under one MEC. This clearly means that the enforcement of the code of conduct cannot depend on political allegiance or political considerations and power dynamics within municipalities. Consistency in the enforcement of the law is not optional otherwise respect for the rule of law would become meaningless. I cannot see how the drafters of the code of conduct would have intended this outcome.

[33] In this case, the transgressions complained of included unlawful disposal of council land to the detriment of the communities there. They included the instigation of those communities to rise against the municipality and to invade land. They also included interference with the administration by the giving of unlawful instructions to a land surveyor to unlawfully survey land amongst others. Clearly in such serious cases the MEC should not watch helplessly when in fact he has got credible information that a councillor is acting in flagrant violation of the code of conduct. In this case the problems started as far back as 2016 and council did not act despite the violations being submitted to the office of the speaker who was then in office.

[34] It seems to me that sub-item (4) of item 14 empowers the MEC to act where the report of a person or committee appointed by him points to serious transgressions of the code of conduct. In that way, the MEC is able to ensure that across all municipalities under his jurisdiction he is able to ensure consistency in the observance of the code of conduct and in its enforcement regardless of the political dynamics which may prevail in a municipality. All the processes be they within, by or through council or at the instance of the MEC must, in terms of sub item (7) be in accordance with the rules of natural justice. In other words, the MEC is required to afford the councillor concerned a proper hearing before any prejudicial action is taken and after considering all relevant facts.

[35] The interpretation which the applicant contends for finds support in Kannaland Municipality[5]. In that case Traverso DJP said:

“[29] Mr Arendse submitted that by virtue of [the] amendment the MEC now has self-standing disciplinary powers over local councillors which can be exercised mero motu. He further argued that the subsequent judgment of this Court in Andile Lili v Independent Electoral Commission, (Case No. 3671/2013), is therefore clearly wrong. In particular, he attacked the finding of the Court that on a proper reading of Item 14 the Minister has no self-standing disciplinary powers over local councillors which can be exercised mero motu, and suggested that the Court disregarded the amendment.

[30] This argument is flawed. Sub-item 4 must be interpreted contextually. Item 14, read with Item 13, clearly supports the notion of co-operative government. The effect of these provisions is that the powers granted to the MEC constitute a safeguard and form part of a system of checks and balances applied to disciplinary proceedings against councillors. Before an MEC can appoint a person or committee there must be an alleged breach of the code.

[31] The amendment in any view, is aimed at providing for the dilemma alluded to in Van Wyk (supra), namely that an MEC would be powerless to act in circumstances where a Council, for whatever reason, refuses to institute proceedings in respect of an alleged breach of the Code of Conduct. This sub-item merely provides for a lacuna which previously existed. The MEC must still act within the general scope of these two items. When he makes a decision in terms of Item 14(6), it will be a culmination of a multi-stage process.

[32] The Item 14(6) procedure applicable in more serious cases is broadly equivalent to an administrative appeal process in that the person charged has the benefit of the matter being re-considered by a higher authority before far-reaching sanctions can be implemented. This provides an obvious safeguard against disciplinary proceedings being used to pursue what in certain instances may be viewed as political agendas. The Item 14(6) process shares many of the beneficial qualities of an internal appeal, by providing an immediate and cost effective forum for disciplinary proceedings to be reconsidered without having to resort to litigation and enhancing the constitutional values of accountability, responsiveness and openness.”

[36] It is not without being angsty that I respectfully disagree with the learned Deputy Judge President’s interpretation. I find it odd that the constitutional values of accountability, responsiveness and openness can be paid no heed depending on whether or not a particular municipal council, for political reasons, decides not to act against a breach of the code of conduct to the detriment of the local communities in that municipality over whom the MEC exercises responsibility. In a politically charged environment the distinction between right and wrong and the observance of the code of conduct may sometimes depend on political dynamics where majoritarian principles govern the day and not necessarily the rule of law. It goes without saying that the MEC is required to act consistently in enforcing the code of conduct in all the municipalities under his jurisdiction regardless of political considerations which are, as they must be, an irrelevant consideration.

[37] I do not think that interpreting Item 14 of the code of conduct in this manner is mutually exclusive with the safeguards of checks and balances where the MEC has decided to act having observed the rules of natural justice. In fact even for minor transgressions, there is an appeal process provided for in sub-items 14(3). However, none of that matters where things like land invasions, instigation of poor and desperate communities by councillors to damage council property or even intimidation of service providers is happening and the MEC is aware but unable to act because the council is not doing anything about such violations. The learned Deputy Judge President is correct to say that there must be an allegation to investigate before an MEC can act. But that allegation can come straight to the office of the MEC through for instance whistle-blowers or even some councillors who see the violations and are concerned but council is not doing anything about them. To say that the MEC cannot act as provided for in sub-item 14(4) by appointing a committee or a person to investigate an alleged breach of the code of conduct in circumstances for instance where the environment in council is such that council meetings simply do not quorate or there are walkouts or some other form of instability, all of which are known to happen sometimes, is problematic.

[38] What should in those circumstances happen to the principles of accountability, transparency, responsiveness and openness which permeate our constitutional value system and the fabric of our society. Local government is at the forefront of service delivery and is in fact the face of it. Maintenance and observance of the rule of law is its propeller. If the writers of the code of conduct wanted to constrain the MEC to wait for the council in all circumstances even if he has credible information that at the very least warrants an investigation, they would have said so. Investigation is about establishing facts or confirming the veracity of the allegations so that appropriate action is taken. An investigation properly done cannot possibly be to the detriment of anybody.

[39] In any event, and I emphasize that even if I am wrong in my interpretation of the code, that makes no difference to the outcome of this case. This is so because when the first respondent received the report from his satellite office he invited the applicant to make representations on his possible suspension or removal from office. He did not immediately act upon receiving the applicant’s representations. When he made the decision to remove the applicant as councillor on 23 March 2020, council processes provided for in Item 14 (1) and (2) of the code of conduct had taken place and he had been requested to remove the applicant as councillor by means of an uncontested council resolution.

[40] It is not without significance that while the applicant cited the second respondent, he did not seek an order for the review and setting of the decision or resolution of council to request his removal from office as councillor of the second respondent. He clearly must have been satisfied with the council processes otherwise it was within his right to challenge a council process and decision that was unsatisfactory. This he did not do. If the interpretation of the code of conduct in Kannanaland Municipality is correct with which I respectfully disagree, it was in any event, followed in that council processes took place culminating in the MEC being requested to remove the applicant as councillor of the second respondent. As I said before, the applicant is not challenging those processes. It was not the applicant’s case that the information contained in the record of decision was not sufficient to justify the decision of the first respondent to remove the applicant as councillor of the second respondent.

Conclusion

[41] In the circumstances the application must therefore fail. There is no reason why the costs should not follow the results.

[42] In the result the following order shall issue:

1. The application is dismissed with costs.

__________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant: B.B. NYANDA

Instructed by: B.B. NYANDA ATTORNEY

MTHATHA

Counsel for the 1st Respondent: S. PHOSHERA

Instructed by: State Attorney

EAST LONDON

Counsel for the 2nd Respondent: B. MASWAZI

Instructed by: MBABANE MASWAZI MKOSANA INC

Heard on : 03 September 2020

Delivered on : 05 November 2020

[1] Section 151(4) of the Constitution of the Republic of South Africa, 1996 reads: “The national or provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.”

[2] The Shorter Oxford English Dictionary on Historical Principles volume 1.

[3] State Information Technology Agency SOC Limited v Gijima Holdings (pty) Limited 2018 (2) SA 23 (CC) paras 38 - 40.

[4] Local Government: Municipal Structures Act 117 of 1998

[5] Kannaland Municipality v Minister for Local Government Environmental Affairs and Development Planning in the Western Cape and Another (20763/13) [2014] ZAWCHC 42 (24 March 2014)