Ngqwebo v Mhana and Others (3277/09) [2010] ZAECGHC 84 (5 August 2010)

Ngqwebo v Mhana and Others (3277/09) [2010] ZAECGHC 84 (5 August 2010)

The court found that the applicant was wrongfully removed as a councillor, as the withdrawal of his name by the party did not constitute a lawful ground for removal under the Municipal Structures Act. Once appointed, a councillor ceases to be a candidate on the party list and cannot be recalled by the party except in the circumstances set out in sections 26 and 27 of the Act. The actions of the first, second, and third respondents in declaring a vacancy and appointing the fourth respondent were unlawful for want of compliance with the Act. The Municipal Manager and Chief Electoral Officer must only act when a councillor has lawfully ceased to hold office. The applicant was entitled to...

Citation
[2010] ZAECGHC 84
Parties
Applicant: Fikile Ngqwebo; Respondent: Makhaya Mhana; Respondent: Mlamli Bongco; Respondent: Bongani B Finca; Respondent: Xolani Madlungu; Respondent: L Mphlenza
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 August 2010
Case Number
3277/09
Procedural Posture
Review Application / Judgment
Outcome
Application granted; the applicant is reinstated as councillor and the declaration of vacancy and appointment of the fourth respondent are set aside.
Judges
M Makaula
Legal Topics
Municipal Structures Act, Proportional Representation, Vacancy in Council, Unlawful Removal, Joinder, Review of Administrative Action
Administrative Law Civil Procedure Municipal Structures Act Proportional Representation Vacancy in Council Unlawful Removal Joinder Review of Administrative Action

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Parties

Fikile Ngqwebo

Applicant

Makhaya Mhana

Respondent

Mlamli Bongco

Respondent

Bongani B Finca

Respondent

Xolani Madlungu

Respondent

L Mphlenza

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant was lawfully removed as a councillor from the Nxuba Municipal Council.
  2. 2 Whether the declaration of a vacancy and appointment of the fourth respondent was valid under the Municipal Structures Act.
  3. 3 Whether the applicant is entitled to reinstatement and associated benefits.

Ratio Decidendi

The court found that the applicant was wrongfully removed as a councillor, as the withdrawal of his name by the party did not constitute a lawful ground for removal under the Municipal Structures Act. Once appointed, a councillor ceases to be a candidate on the party list and cannot be recalled by the party except in the circumstances set out in sections 26 and 27 of the Act. The actions of the first, second, and third respondents in declaring a vacancy and appointing the fourth respondent were unlawful for want of compliance with the Act. The Municipal Manager and Chief Electoral Officer must only act when a councillor has lawfully ceased to hold office. The applicant was entitled to...

Court Disposition

Application granted; the applicant is reinstated as councillor and the declaration of vacancy and appointment of the fourth respondent are set aside.

Orders

  • The declaration of a vacancy and replacement of the applicant as councillor are reviewed and set aside.
  • The applicant is immediately reinstated as councillor of the Nxuba Municipal Council as the duly elected representative of BERA.