Sookhraj and Another v Municipal Manager of the Umdoni Local Municipality and Others (D2225/2023) [2024] ZAKZDHC 2 (15 January 2024)

Sookhraj and Another v Municipal Manager of the Umdoni Local Municipality and Others (D2225/2023) [2024] ZAKZDHC 2 (15 January 2024)

The court found that s 43(2)(e) of the Municipal Structures Act unambiguously empowers the political party to which a seat on the Executive Committee was allocated to appoint a councillor to fill any vacancy for the remainder of the council's term. The DA was allocated the seat and lawfully appointed Councillor Sookhraj. The Municipal Manager's refusal to implement this appointment was a blatant and egregious breach of her statutory and constitutional duties. The respondents' argument for proportional reallocation of seats after a by-election was rejected as inconsistent with the clear wording and purpose of the Act. The court held that unless and until the constitutionality of s 43(2)(e)...

Citation
[2024] ZAKZDHC 2
Parties
Applicant: Shamila Sookhraj; Applicant: Democratic Alliance; Respondent: Municipal Manager of the Umdoni Local Municipality; Respondent: Thabisile Ndlela; Respondent: Speaker of the Council of the Umdoni Local Municipality; Respondent: Council of the Umdoni Local Municipality; Respondent: Umdoni Local Municipality; Respondent: Ravinand Maharaj; Respondent: Executive Committee of the Council of the Umdoni Local Municipality; Respondent: Mayor of the Council of the Umdoni Local Municipality; Respondent: Kwazulu-Natal MEC for Co-operative Government and Traditional Affairs
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
15 January 2024
Case Number
D2225/2023
Procedural Posture
Urgent Application / Final Judgment on Urgent Application for Declaratory and Review Relief
Outcome
Application granted. The Municipal Manager's decision not to implement the DA's appointment of Councillor Sookhraj is declared invalid, reviewed and set aside. The DA's appointment of Councillor Sookhraj is declared valid. Costs awarded against specified respondents on an attorney and client scale.
Judges
Z P Nkosi
Legal Topics
Municipal Structures Act, Appointment of Councillors, Review of Administrative Action, Declaratory Relief
Administrative Law Civil Procedure Municipal Structures Act Appointment of Councillors Review of Administrative Action Declaratory Relief

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Parties

Shamila Sookhraj

Applicant

Democratic Alliance

Applicant

Municipal Manager of the Umdoni Local Municipality

Respondent

Thabisile Ndlela

Respondent

Speaker of the Council of the Umdoni Local Municipality

Respondent

Council of the Umdoni Local Municipality

Respondent

Umdoni Local Municipality

Respondent

Ravinand Maharaj

Respondent

Executive Committee of the Council of the Umdoni Local Municipality

Respondent

Mayor of the Council of the Umdoni Local Municipality

Respondent

Kwazulu-Natal MEC for Co-operative Government and Traditional Affairs

Respondent

Procedural Posture

Urgent Application / Final Judgment on Urgent Application for Declaratory and Review Relief

Legal Issues

  1. 1 Whether the Municipal Manager's refusal to implement the DA's appointment of Councillor Sookhraj to the Executive Committee was lawful.
  2. 2 Who has the right to appoint a councillor to fill a vacancy on the Executive Committee under s 43(2) of the Municipal Structures Act.
  3. 3 Whether the appointment of Councillor Maharaj was valid.

Ratio Decidendi

The court found that s 43(2)(e) of the Municipal Structures Act unambiguously empowers the political party to which a seat on the Executive Committee was allocated to appoint a councillor to fill any vacancy for the remainder of the council's term. The DA was allocated the seat and lawfully appointed Councillor Sookhraj. The Municipal Manager's refusal to implement this appointment was a blatant and egregious breach of her statutory and constitutional duties. The respondents' argument for proportional reallocation of seats after a by-election was rejected as inconsistent with the clear wording and purpose of the Act. The court held that unless and until the constitutionality of s 43(2)(e)...

Court Disposition

Application granted. The Municipal Manager's decision not to implement the DA's appointment of Councillor Sookhraj is declared invalid, reviewed and set aside. The DA's appointment of Councillor Sookhraj is declared valid. Costs awarded against specified respondents on an attorney and client scale.

Orders

  • The decision taken by the first respondent not to implement the appointment by the second applicant of the first applicant to fill the vacancy on the seventh respondent arising from the resignation of erstwhile Councillor Edwin Baptie is declared to be invalid.
  • The Municipal Manager's unlawful decision is reviewed and set aside.