Ngaka Modiri Molema District Municipality v Chairperson of the North West Provincial Executive Council and Others (M390/2014) [2014] ZANWHC 46 (25 September 2014)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST HIGH COURT, MAFIKENG)

CASE NO.: M390/2014

In the matter between:

NGAKA MODIRI MOLEMA DISTRICT

MUNICIPALITY.........................................................................................................................APPLICANT

and

THE CHAIRPERSON OF THE NORTH WEST

PROVINCIAL EXECUTIVE COUNCIL........................................................................1st RESPONDENT

THE PREMIER OF THE NORTH WEST PROVINCE..............................................2ND RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL:

DEPARTMENT OF LOCAL GOVERNMENT AND

HUMAN SETTLEMENTS OF THE NORTH WEST

PROVINCE........................................................................................................................3rd RESPONDENT

THE MINISTER OF COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS.....................................................................................4TH RESPONDENT

THE CHAIRPERSON OF THE NATIONAL COUNCIL

OF THE PROVINCES......................................................................................................5TH RESPONDENT

THE SPEAKER OF THE PROVINCIAL LEGISLATURE

OF THE NORTH WEST PROVINCE............................................................................6TH RESPONDENT

REASONS FOR JUDGMENT

HENDRICKS AJP

[1] On 25 September 2014, after listening to the submissions made by counsel and having perused the content of the court file, I granted an order in the following terms:-

"1. The application for an interim interdict in terms of Part A of the Notice of Motion is dismissed.

2. The Applicant is ordered to pay the costs of this application, which costs include the costs consequent upon the employment of two counsel. ”

[2] On 13 October 2014 after 3pm the file was brought to my chambers. An application for reasons for judgment had been filed with the office of the Registrar of this Court as far back as 26 September 2014. Upon enquiries been made it was established that an employee in the office of the Registrar, who received the request for reasons for judgment, simply placed it on the file and the file was shelved. Only on 13 October 2014 when persons from the office of the correspondent attorneys requested a copy of the court order, was the request for reasons discovered in the court file by another employee in the office of the Registrar, who then took it upon himself to bring the file to my chambers personally. Regrettably, this delay could have been avoided if the file was brought to my chambers shortly after the request for reasons had been filed. The fault squarely lies with the office of the Registrar and in particular the responsible employee, who must take full responsibility for the delay. However, it would have been prudent had the correspondent attorneys asked why the reasons for judgment were not forthcoming. Perhaps this practice of enquiring should be encouraged in future in an attempt to avoid unnecessary delays in the finalization of matters. The delay i s indeed regretted. Here follows the reasons for my judgment.

[3] The Applicant, the Ngaka Modiri Molema District Municipality, launched this application which consists of two parts. Part A of the application is for an interim interdict pending the finalization of an application for review which forms Part B of the Notice of Motion. In Part A the Applicant seeks an order preventing the North West Provincial Government from interfering, or impeding, or compromising the ability of the Applicant as a municipality to exercise its constitutional or statutory powers and to perform its functions, pending the outcome of the review application in Part B. Furthermore, the Applicant seeks a suspension of the decision to dissolve it, which was taken on 3 September 2014, until finalization of the review application in Part B. In Part B, the relief sought is the review and setting aside of the decision taken by the North West Provincial Government to invoke the provisions of Section J39(l)(c) of the Constitution of the Republic of South Africa Act, 108 of 1996, to dissolve the council of the Applicant.

[4] The requirements for the granting of interdictory interim relief are well established. They are:-

(a) a prima facie right, though open to some doubt;

(b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and final relief is granted;

(c) the balance of convenience should favour the granting of the interim interdict; and

(d) no alternative remedy.

These requirements should be considered holistically, and none of it must be judged in isolation.

See: Setlogelo v Setlogelo 1914 AD 221 at 227

Webster v Mitchell 1948 (1) SA1186 (W)

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)

[5] In National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (6) SA 223 (CC) (hereinafter referred to as the OUTA decision) the Constitutional Court pronounced on the requirements for an interim interdict with reference to the Setlogelo decision. The following was said in paragraphs [45] to [47]:

"[45] It seems to me that it is unnecessary to fashion a new test for the grant of an interim interdict. The Setlogelo test, as adapted by case law, continues to be a handy and ready guide to the bench and practitioners alike in the grant of interdicts in busy magistrates ’ courts and high courts. However, the test must he applied cognisant of the normative scheme and democratic principles that underpin our Constitution. This means 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.

[46] Two ready examples come to mind. If the right asserted in a claim for an interim interdict is sourced from the Constitution it would be redundant to enquire whether (hat 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.

[47] The balance of convenience enquiry must now carefully probe whether and to which extent the restiaining order will probably intrude into the exclusive terrain of another branch of government. The inquiry must, alongside other relevant harm, have proper regard to what ntay be called separation of powers harm. A court must hep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication

of a claimant's case may be granted only in (he clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessaty to define 'clearest of cases However, one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights. This is not such a case. ”

[6] There are three central considerations that underpin the exercise of judicial power when it comes to the granting of interim interdicts against organs of State, and they are:

(a) whether the interim interdict is directed at the exercise of statutory or constitutional powers;

(b) the impact of the restraining order on the principle of separation of powers; and

(c) the mere fact that a prima facia right is demonstrated, is not decisive.

See: OUTA - decision supra at paragraphs [63] to [65].

[7] Of critical importance is to establish whether the prima facie right of the Applicant, if it has been established, is such that irreparable harm would arise if the interim order which is sought, is not granted. Put differently, the Applicant must demonstrate that unless an interim restraining order is granted, irreparable harm would result.

[8] It was submitted on behalf of the Applicant, that it as a municipality, is entitled to remain in office and not be dissolved or replaced by an administrator because the councillors were elected by the communities. Furthermore, the decision to dissolve the council had infuriated a number of officials who resisted the implementation of the intervention of the North West Provincial Government, The conduct of these officials, so it is alleged, caused turmoil and instability in the Applicant’s administrations and seriously prejudicing the Applicant in the execution of its function and powers, if the interim relief is granted, so it was further contended, the resistance to the enforcement of the decision will also be addressed.

[9] In opposition to these contentions, it was submitted on behalf of the First, Second and Third Respondents (“the Respondents’") that:-

A municipal council can be dissolved if the jurisdictional facts mentioned in Section )39(l)(c) of the Constitution are present, such as in this case. The evidence in support of the alleged resistance by officials is scant and insufficient in that only the municipal manager filed a confirmatory affidavit. The failure of the municipality to fulfil its executive obligations cannot be decided by reference to the conduct of officials. That would blur the distinction between the executive arm of the municipality, which is represented by the council, and the administrative arm, which is headed by the municipal manager. The executive power to run the affairs of the municipality is conferred by the legislation upon the municipal council.

I am in full agreement with these submissions made on behalf of the Respondents. I am of the view that the Applicant has failed to demonstrate a prtma facie right justifying this Court's intervention at this stage.

[10] The prima facie right that must be established is not merely the right to approach a court in order to review an administrative action. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the Applicant should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm, in my view, the right to review the impugned decision does not require any preservation pendente lite.

See: OUTA decision supra, at paragraph [50].

[11] As far as the consideration of irreparable harm is concerned, it is noteworthy that the municipality itself is the Applicant in this matter and not the individual councillors. The founding affidavit was deposed to by the speaker of the Applicant in his official capacity, No harm whatsoever, left alone irreparable harm, was demonstrated to be suffered by the council in its capacity as such.

[12] It was not enough for the Applicant to state so by the way in the Replying Affidavit that the councillors will suffer because of loss of earnings in salaries, To reiterate, the councilors did not join-in the application in their personal capacities. The Applicant had to show a reasonable apprehension of irreparable ham) if the interim relief were not granted, which it fails to do.

See: Eagles Landing Body Corporate v Molewa NO & Others 2003 (1) SA 412 (T)

[13] A court must be satisfied that the balance of convenience favours the granting of a temporary interdict. It must first weigh the harm to be endured by an applicant, if interim relief is not granted, as against the harm a respondent will bear, if the interdict is granted. Thus, a court must assess all relevant factors carefully in order to decide where the balance of convenience rests.

See: OUTA decision, supra, paragraph [55].

[14] Much emphasis was laid during argument as to whether or not Section 139(I)(a) should have been applied instead of Section 139(l)(c). So too, whether or not the prescript of Section I39(3)(b) relating to the time provided was complied with or not and whether or not Sections 105 and 106 of the Local Government: Municipal Systems Act 32 of 2000 (“MSA”) should have been complied with before the intervention. In my view, this should best be left to the review court to decide. I deliberately refrain from pronouncing on these and other aspects that may have a bearing on the outcome of the review application because it is not necessary in determining whether or not to grant the interim relief. The court of review will be best suited to deal with the merits of the application on review. Suffice to state that even in so far as the balance of convenience is concerned, it does not favour the granting of the interim

interdictory relief.

[15] It was contended on behalf of the Applicant that it will not be afforded substantial redress at a hearing in due course and that the Applicant and in fact the local community residents in the municipality area of the Applicant, will suffer irreparable harm and prejudice should the implementation of the ultra vires decision proceed in the interim.

[16] I have carefully perused the contents of the founding and replying affidavits and'could not find any plausible reason why the Applicant could not perhaps obtain substantial redress at a hearing in due course, should that be the case. Furthermore, no case has been made out that the Applicant as a municipality will suffer irreparable harm. The Applicant as a municipality can replace the administrator in the event that the court of review uphold the review application. To reiterate, sight should not be lost of the fact that the municipality is the Applicant in this matter and not the individual councillors. Hence, it is a question of one form of executive authority replaced by another. This does not concern the individual councillors themselves.

[17] Once again, to reiterate, to mention in the replying affidavit in passing that the individual councillors elected at “grass roots” level will lose their income should the municipal council of the Applicant be dissolved is not enough. The councillors themselves are not party to this application. It is trite that the Applicant must stand or fall by the averments made in the Founding Affidavit and a case cannot be made out in the Replying Affidavit.

See: Betlane v Shelly Court CC 2011 (1) SA 388 (CC) at paragraph [29]

[18] The Auditor-General have filed qualified audit reports. Much emphasis was laid on these reports by the Respondents. Again, without ignoring any of the submissions made, I am of the view that the court of review will be best suited to deal with these reports as it relates to the merits of the application and it is therefore not necessary for me at this stage to pronounce on it. Suffice to state that the contents thereof had been taken cognisance of in determining whether or not to grant the relief as set out in Part A of the Notice of Motion.

[19] I have been referred to various case-law by the respective counsel. Amongst others were reference made of the unreported case of Mogalakwena Local Municipality v Provincial Executive Council, Limpopo & Others Case No. 35248/14 in Gauteng Division, Pretoria of the High Court of South Africa and the case of Manquma Local Municipality & Another v Premier of the Eastern Cape & Others [2012] JOL 28311 (ECB). I have studied these cases and although I find it to be handy guidelines, they are distinguishable from the present case at hand.

Each case must be decided on its own merits. The facts of the aforementioned cases are not on all fours with the facts of the present matter.

Costs

[20] In so far as costs are concerned, there is no plausible reason why costs should not follow the result. No argument was advanced that this matter does not warrant the employment of two counsel. Due to the complexity of the matter, two counsel’s involvement is justified.

Conclusion

[21] It is for the aforementioned reasons that I, in the exercise of my discretion, granted an order in the terms as set out in paragraph 1, supra.

R D HENDRICKS

ACTING JUDGE PRESIDENT