MEC for Cooperative Governance and Traditional Affairs, Free State Province v Metsimahalo Local Municipality and Others (1159/2020) [2020] ZAFSHC 155 (1 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 1159/2020

In the matter between:

THE MEC FOR COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS, FREE STATE

PROVINCE Applicant

and

METSIMAHALO LOCAL MUNICIPALITY

1ST Respondent

COUNCILLOR T. A MOTAUNG

2nd Respondent

COUNCILLOR M. NKHELOANE

3rd Respondent

COUNCILLOR P.M MAHLAELA

4th Respondent

COUNCILLOR L. FISHER

5th Respondent

COUNCILLOR M.N MTSHALI

6th Respondent

COUNCILLOR F.D MOSOKWENI

7th Respondent

COUNCILLOR N.P MOKOENA

8th Respondent

COUNCILLOR F. J v DER MERWE

9th Respondent

COUNCILLOR J.J BARNARD

10th Respondent

COUNCILLOR S.M MATWA

11th Respondent

COUNCILLOR G. BURGER

12th Respondent

COUNCILLOR J.J GROBBELAAR

13th Respondent

COUNCILLOR L.J VAN HEERDEN

14th Respondent

COUNCILLOR Z.J ZWANE

15th Respondent

COUNCILLOR P.MOHAPI

16th Respondent

COUNCILLOR M.T MBANA

17th Respondent

COUNCILLOR T.MOFOKENG

18th Respondent

COUNCILLOR L. TSOTESTI

19th Respondent

COUNCILLOR L.L NHLAPO

20th Respondent

COUNCILLOR S. MOTJEANE

21st Respondent

COUNCILLOR LEOTLELA

22nd Respondent

COUNCILLOR T.J TAATS

23rd Respondent

COUNCILLOR M.E MASEKO

24th Respondent

COUNCILLOR T.M MOTLOUNG

25th Respondent

COUNCILLOR S.L TSHOMNGWE

26th Respondent

COUNCILLOR M.S POHO

27th Respondent

COUNCILLOR K.B MOFOKENG

28th Respondent

COUNCILLOR M.J MALINDI

29th Respondent

COUNCILLOR R. MEYER

30th Respondent

S.J MOKOENA

31st Respondent

M.J NDABA

32nd Respondent

M.J MKHEFA

33rd Respondent

M.B OANYANE

34th Respondent

C.C SCHEEPERS

35th Respondent

HEARD ON: 30 JULY 2020

JUDGMENT BY: CHESIWE, J

DELIVERED ON: 01 SEPTEMBER 2020

[1] This is an urgent application in which the applicant seeks a declaratory order for a meeting that was held on 20 February 2020 at 15:10. The matter was before the court on 12 March 2020. An interim court order was granted in terms of a draft order agreement between the parties, with a return date of 30 April 2020. Due to the Regulations of the Corona Virus - Covid-19 (Disaster Management Act 57 of 2002) the Rule Nisi was extended to 18 June 2020.

[2] On 18 June 2020 an application was brought by some of the respondents to strike out the affidavit served and filed by the First Respondent, before hearing the main application. The said application was dismissed. The return date for hearing the main application was set for 30 July 2020. The applicant seeks a final relief of the interim order granted on 12 March 2020.

[3] The Fisher Group had raised a point in limine concerning the authority of the MEC to launch the application. Adv. Khokho submitted that the issue of the authority of the MEC will not be pursued and has thus been abandoned. It will therefore not be dealt with in this judgment.

Parties

[4] The applicant being the member of the Executive Council for Cooperative Governance and Traditional Affairs, Free State Province

brought the main application against the Metsimaholo Municipality (cited as the First Respondent). The First Respondent supported the application by way of filing an affidavit. The 2nd to 30th Respondents are the councillors of Metsimaholo. The 31st to 35th Respondents are the employees of Metsimaholo.

[5] For ease of reference the following respondents, the 1st, 7th, 26th, 28th, and 29th Respondents, represented by Mr. Ponoane are referred to as the 1st respondent group. The 2nd, 3rd, 4th, 5th, 6th, 8th, 19th, 20th, 21st, 22nd, 23rd, 24th, 31st, 32nd, 34th, and 35th respondents are referred to as the Fisher Group and are represented by Adv. Khokho. A further group namely 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, and 30th respondents are referred to as the Abiding Group.

Background

[6] The applicant on 21 October 2019 attended a municipal council meeting held at the Civic Centre. The 2nd to 30th respondents were present at the meeting. At the meeting it was resolved that the applicant should assist the Metsimaholo by providing an Acting Municipal Manager; An Administrator; Acting Director for Corporate Services and a Financial Advisor. The applicant according to the resolution of the meeting received a letter from the Executive Mayor requesting the assistance of individuals who can perform the duties of the above-mentioned positions. Mr. Tebogo Manele was requested and seconded to the position of Acting Municipality. According to the applicant, Mr. Manele was impeded and or interfered in the performance of his duties by the 31st Respondent. Due to the conduct of the 31st Respondent, the applicant approached the court on an urgent basis under case number 220/2020. The court granted an order in favour of the applicant.

[7] Despite the court order the situation did not improve. The Provincial Council (EXCO) intervened in terms of Section 139 (1)(b) of the Constitution of Republic of South Africa. After this, some of the executive responsibilities of the municipality counsels were taken over by EXCO. Pursuant to the EXCO meeting, a council meeting was held on 20 February 2020. The applicant at the council meeting informed the council about the resolution of EXCO. The meeting had one item on the agenda and that was the intervention in the affairs of the Metsimaholo Local Municipality. The applicant announced the EXCO resolution, which it was resolved that a team from the National Department of Cooperative Governance and Traditional Affairs (COGTA), National Treasury, Provincial COGTA and Provincial Treasury would be brought as part of the EXCO representatives. The team consisted of Mr. Tebogo Manele – Administrator; Mr. Motsumi Mathe – Acting Municipal Manager; Ms. Palesa Qulunga – Financial Advisor; Mr. Bennet Molotsi – Acting Director Corporate Services. This did not go well with the Councillors. The meeting was disrupted, which resulted in the closure of the meeting.

[8] After the meeting of 20 February 2020. A second meeting was held on the same day at 15:10. According to the applicant, this meeting was contrary to Section 29 of the Local Government: Municipality Structures Act No 117 of 1998 (Structure's Act) and

contrary to the Municipality Standard Rules and Orders as Promulgated in the Provincial Gazette on 22 July 2016. It is at this meeting that 31st to 35th Respondents were appointed.

[9] The issue for determination by this court is whether the meeting that was held on 20 February 2020 at 15:10 was unlawful and invalid; and/or whether the decisions or resolutions taken at this meeting were unlawful and invalid. Before this court there is no application to deal with the alleged or irregular appointment of the Administrator, nor is there a review application. The First

Respondent in its Answering Affidavit agreed with the applicant that the decision to place Metsimaholo Municipality under administration

still stands and has not been challenged by any of the Fisher Group. I would therefore not deal with the issue of the appointment of the Administrator.

[10] Adv. Mene on behalf of the applicant submitted in oral argument that the meeting held on 20 February 2020 was called to inform the councillors about the decision and resolution of the EXCO. He said after the MEC had told the Councillors about the business of the meeting, the Councillors became disruptive and left the meeting. He said the second meeting held by the Councillors had no notice of the meeting, nor an agenda. He submitted that the averments by the Fisher Group that the meeting was a continuation of the first meeting cannot hold ground as the first meeting was officially closed. He submitted that before the court is the issue of the unlawful meeting and not the irregular appointment of the Administrator, Municipality Manager, and the other Directors. He submitted that the Fisher Group should have approached the court with a legality review application. He emphasized that the conduct of the Fisher Group is disruptive, as a result, the community suffers due to lack of services.

[11] Mr. Poanane on behalf of the 1st Respondent Group submitted that Metsimaholo Municipality was not supposed to be before the court. It is for that reason that a Supporting Affidavit was filed to support the application. He submitted that the Fisher Group confused matters in respect of the second meeting that was held, as they agreed to the interim order granted on the 12 March 2020. He submitted that he echoes the sentiments of Adv. Mene concerning the issue of the resolution of the EXCO that has not been taken on review. He mentioned that Mestimaholo Municipality is currently running efficiently and the community is, therefore, receiving the delivery of the necessary services. He submitted that the Rule nisi be confirmed in the interests of the Metsimaholo Municipality community.

[12] Adv. Khokho on behalf of the Fisher Group submitted in oral arguments that if the court grants the final interdict, it will be condoning illegality committed by the MEC. Adv. Khokho submitted that the meeting was conducted in terms of section 139 (1)(b) of the Constitution. He stated that the Speaker of Metsimaholo Municipality did not have the powers to close or adjourn the meeting. He submitted that the powers to close a meeting lie with the Council. He mentioned that the second meeting was indeed a continuation of the first meeting as it was never closed. He indicated that it was in this properly constituted meeting that the acting directors were appointed. He further submitted that the MEC did not follow the proper procedure to place Metsimaholo Municipality under administration.

[3] Section139 (1) of the Constitution, Act 108 1996 provides that: “when a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including –

(a) issuing a directive to the Municipal Council describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;

(b) assuming responsibility for the relevant obligations in that municipality to the extent necessary to -

(i) maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole.”

[14] Section 29 of the Municipality Structures Act 117 of 1998 provides that: “(1) the speaker of municipal council decides when and where the council meets subject to section 18 (2), but if the majority of the councillors request the speaker in writing to convene a council meeting, the speaker must convene a meeting at a time set out in the request.”

[15] Section 30 (1) provides that majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter.

[16] Rule 3 (2) of the Local Municipality Standing Rules and Order,[1] provides that: “the Speaker must determine a schedule of the dates, times and venues of ordinary council meetings, other than the meeting referred in sub-rule (1), for a period of at least twelve months in advance, provided that

(a) the council must hold at least one ordinary meeting every three months; and

(b) not more than one ordinary council meeting may take place during any month.”

[17] The Speaker, KT Mabasa, in annexure "STN4" in a letter dated 17 February 2020 addressed to all the Members of the Council, the letter reads follows: “Notice is hereby given that the fifth Special Council meeting (No. 5 of 20219/20 of the Metsimaholo Local Municipality will be held on Thursday, 20 February 2020 at 14:00 in the Council Chamber 2nd Floor, Finance Building, No. 10 Fichardt Street, Civic Centre, Sasolburg, for consideration of the items as set out in the attached

agenda.”

[18] Annexure “STN1” on page 36 attached to the Founding Affidavit, the minutes made note that it was a special meeting, the time the meeting was held, including the venue and date. The agenda dealt with the proposal for the support for Metsimaholo Local Municipality in the form of positions for an Acting Municipal Manager, Acting Director: Corporate Services and Director: Technical and Infrastructure Services. This proposal was rejected by Councillor Motjeane. It was put to a vote by show of hands and the majority vote was 19 in favour of the proposal. The meeting resolved that the support to Metsimaholo Local Municipality will be implemented. Under item 9: Closure, the following is noted: “In his closing remarks, The MEC for CoGTA, Mr. Nxangisa encouraged Councillors and officials to pay for services rendered to them.

The Speaker, Councillor KT Mabasa thanked all Councillors present and declared the meeting officially closed.” The applicant in the Founding Affidavit explained that the meeting closed due to the disruption and noise made by the Fisher Group.

[19] The Fisher Group on the other hand argued that the second meeting was a continuation of the first meeting, as the Councillors that remained behind formed a quorum when the seven Councillors, the Speaker and the MEC left the meeting. Firstly the meeting of 20 February held at 15:10, did not have a notice as required in the Municipality Rules. The Fisher Group draft extract from the minutes specifically states that: "DRAFT MINUTES OF THE FOURTH SPECIAL COUNCIL SECOND MEETING…." Rule 3(2) (b) provides that not more than one ordinary council meeting may take place during any month. Secondly, if the meeting was a continuation, the agenda should continue with the item that was on the agenda of the first meeting, however, this meeting had new items added on to the agenda. It is clear from the minutes of the second meeting that items were different from the agenda of the first meeting. Rule 10 provides that: “At least three (3) days before an ordinary meeting of the council and at least forty eight hours before the special meeting of the council, a notice to attend the meeting, specifying the business proposed to be transacted (my emphasis) thereat and signed by the Speaker shall be left or delivered to an accessible distribution point within the municipality as determined by the council from time to time/ sent by electronic mail to an address provided by the councillors as his/her official address/mail address.”

[20] In terms of these Rules, the Fisher Group did not comply with any of the Rules. Instead, they averred that the second meeting was a continuation of the first meeting. The question is why was there was an opening of the meeting if it was a continuation as alleged. The Speaker left after the closure of the first meeting as it was held in Makume and Another v Northern Free State District,[2] that the statutory power to convene a meeting of a municipality council is ordinarily the statutory prerogative of a council speaker.

[21] The Fisher Group’s further contention is that the majority of the Counsellors remained behind thus forming a quorum. In Van Der Linde and Others v Prince, [3] the court held that: “Whilst it is undisputed that the majority of the council members took decisions on 26 February 2018 and the meeting was quorate in accordance with section 29 (1) of the Structures Act 117 of 1998, the decision cannot be valid and binding simply because the majority of the council members were present at the decision to vote the respective council members out of the office and into office as contemplated in section 30 (3) of the Structures Act 117 of 1998. As earlier stated, this does not [circumvent]

irregularities and non-compliance.”

[22] It cannot be that when intervention of Metsimaholo Local Municipality is supported by the National Minister of COGTA, the Fisher Group still goes against the decision. The challenges faced by Metsimaholo Local Municipality are so serious that the Minister in her correspondence mentioned that: “Based on the solid and sound reasons provided for in the memorandum of the PEC on the intervention, I am satisfied that there are serious challenges faced by Metsimaholo Local Municipality.”

[23] Mr. Tebogo Manele (the Administrator) in his Supporting Affidavit indicated that the Fisher Group has caused so much instability in the running of Metsimaholo Local Municipality that it has affected the service delivery for the community. He goes further and mentioned that the Fisher Group’s lawlessness conduct is inconsiderate to the community, in that they chased away the security service providers who were appointed to conduct a security assessment of theft of the electric transformers. Mr. Manele in paragraph 4.6, page 154 of the Supporting Affidavit indicated further that: In this regard, I submit that when regard is had to the different expressed contexts of these letters, the Honourable Court will in my view, see for itself that Councillors of the First Respondent, are not speaking and working together as one. Furthermore, I submit that the Honourable Court will as well observe, on the reasons that will follow herein, that the issue of the Councillors differing to an extent of destabilising the Municipality has been an ongoing matter for some time and to date and whereby, the Applicant tried then to introduce section 154 of the Constitution with the hope that it would work for the First Respondent but however, it failed and hence now the Applicant has finally decided to invoke the provisions of section 139 (1) (b) of the Constitution of the Republic of South Africa.”

[24] This kind of behaviour cannot be allowed and it is unacceptable. The Fisher Group cannot behave as a law unto themselves. The Metsimaholo Local Municipality is under crisis and their conduct is fuelling the crisis. The results are that the community suffers due to a lack of service delivery. This to the extent that the court orders that were previously granted and are still operative, but were not adhered to by the Fisher Group. Metsimaholo Local Municipality was before the court on the 30 January 2020 to interdict 31st respondent (Jonas Sello Mokoena) and again on 31st January 2020. On 27 February the Rule Nisi was confirmed. It cannot be that the Applicant and or Metsimaholo Local Municipality has to constantly approach the court to interdict a group of Councillors who work against the smooth running of the Municipality.

[25] Sadly it is not a secret that while there is so much conflict between the councillors of a municipality, the community suffers the consequences of their conduct.

[26] The Municipal Structures Act and the Municipal Standard Rules and Orders are clear when it comes to convening a meeting and the procedures to follow to convene the meeting. I cannot ignore the fact that the meeting became noisy and disruptive and prompted the Speaker to close the meeting. Bearing in mind that this was not an ordinary meeting, but a special meeting in terms of Rule (4). To crown it all the First Respondent, that is Metsimaholo Local Municipality, supported the application to interdict the Fisher Group. It, therefore, confirms that this second meeting was not a continuation, but a new meeting that was not properly convened. Metsimaholo Local Municpality by supporting the application confirms that it wished to have progressed in the running and administration of the municipality.

[27] Indeed, as correctly submitted by the applicant that the Fisher Group seems to confuse matters, as they raised the issue with the court judgment under case 220/2020 that the court has no powers to interfere in internal affairs of the Municipality, in the same breath the Fisher Group expect the court to agree with them that their second meeting was lawful. The court process should not be abused when it suits one party. Managers have been appointed to assist in the running and administration of the municipality. I have no doubt that the applicant followed due process to restore the functions of the municipality. And further have no doubt that the sole purpose of this second meeting was simply to undermine the MEC. Thus the second meeting held by the respondents, including the Fisher Group was indeed unlawful and invalid, so are the resolutions taken at that meeting.

[28] In my view, the second meeting held on 20 February 2020 at 15:10 was unlawful and invalid, thus the applicant is entitled to the relief prayed for in the Notice of Motion.

Costs

[29] The basic rule is that costs are at the discretion of the court. This discretion is wide, though not unfettered, and must be exercised judicially upon consideration of all the relevant facts. Bearing in mind that such an order as to costs should be fair and just between the parties.[4]

[30] Adv. Mene submitted that the respondents in opposing the application were vexatious and frivolous as they hey mislead the court by alleging that the meeting was a continuation. He submitted that costs against some of the respondents should be on a scale between attorney and client and that such costs to include costs of two counsels.

[31] In some cases the court will grant such an order to show its disapproval to the conduct of the losing party. Such an award will not be granted lightly by the court as it punishes a person who has exercised his right to obtain a judicial decision. However, the conduct of the respondents has shown that they do not care about the needs of the community. They do not care whether the community will suffer due to lack of service delivery. Their conduct has been set out in the Founding Affidavit of the Applicant as well as the Supporting Affidavit of the Administrator. Therefore, there is no reason why the respondents should not be awarded a cost order between attorney and client scale.

[32] Indeed, the Fisher Group has been vexatious. They have no respect for authority, nor respect for court orders. Their conduct is indeed unacceptable. As Mr. Manele indicated that they have caused Metsimaholo Local Municipality so much instability with their disruptive conduct. A cost order between an attorney and client scale will be justified.

[33] I accordingly make the following order.

1. That the Special Council meeting held at Metsimaholo Local Municipality on 20 February 2020 at 15:10 is declared unlawful and invalid;

2. That all the resolutions reached during the aforesaid meeting are declared to be unlawful and invalid;

3. That the Thirty First Respondent is interdicted and prohibited from Acting as Municipal Manager.

4. That the Thirty Second Respondent is interdicted and prohibited from acting as a Director Technical Services;

5. That the Thirty Third Respondent is interdicted and prohibited from acting as Director: Corporate Services;

6. That the Thirty First to Thirty-Fifth Respondents should vacate the offices they are occupying as a result of their appointments which was occasioned by the resolutions that were taken at the meeting of 20 February 2020;

7. That the Sheriff of the High Court and/or the South African Police Services are authorised and directed to remove from the offices the officials as stated in paragraph 6 above;

8. That the following Respondents are not liable for any costs: The First, Seventh, Twenty-Sixth, and Twenty Eight Respondents.

9. That the Second to Sixth, Eighth, Nineteenth to twenty Fifth, Thirty First to Thirty Second, thirty Fourth and Thirty-Fifth Respondents are ordered to pay the costs of this application on an attorney and client scale, including the costs of the two Counsels, as well as costs that stood over on the 18 June 2020.

_____________

S, CHESIWE, J

On behalf of the Applicant: Adv. Mene SC and Adv. S Mphiloane

Instructed by: State Attorney’s Office

BLOEMFONTEIN

On behalf of 1st, 7th, 26th,

28th, 29th Respondents: Mr. MJ Ponoane

Instructed by: Ponoane Attorneys

On Behalf of the 2nd, 3rd,

4th, 5th, 6th, 8th, 19th, 20th,

22nd, 23rd, 24th, 25th, 31st,

34th, 35th, Respondents: Adv. N Khokho

Instructed By: Fixane Attorneys

Bloemfontein

[1] As Promulgated by Local Government Notice No. 41 of 29 June 2001.

[2] [2003] ZAFSHC 36; [2003]ZAFSHC 15 (21 August 2003, para 23.

[3] Case no: 3535/18 Western Cape Division 919 June 2018 (unreported)

[4] Fripp v Gibbon & Co 1913 AD 354 at 363.