Speaker of the Phokwane Local Municipality v Mokale and Others (365/2020) [2020] ZANCHC 7 (13 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLY)

Case No:

365/2020

Matter Heard: 18/02/2020

Reasons available: 03/03/2020

In the appeal of:

SPEAKER OF THE PHOKWANE LOCAL MUNICIPAILTY

GCALEKA FRANCIS "FANA" MOLOLA

Applicant

and

KGOMOTSEGO MOKALE

First Respondent

THE ADMINISTRATOR OF PHOKWANE MUNICIPALITY Second Respondent

THE PHOKWANE MUNICIPAL COUNCIL

Third Respondent

REASONS FOR JUDGEMENT

MAKOTI AJ

[1] The applicant came before me with an ex parte application on 18 February 2020 asking for an order interdicting a council meeting that was scheduled to take place at 10H00 that morning. He sought to persuade the court to issue a rule nisi with the following terms, inter alia:

[1.1] to interdict and restrain the respondents from proceeding with the council meeting referred to above; and

[1.2] interdicting and restraining the first respondent from interfering with his (applicant's) functions, or carrying out or attempting to carry out the duties of Speaker of Phokwane Local Municipality ('the Municipality').

[2] The application was not supported by affidavit. Instead, the Applicant led oral evidence and submitted documentary evidence in the form of a court order and letters to support his case. Although that practice is unusual, it was nonetheless permissible especially in cases of extreme urgency where there was no adequate time to prepare papers.

[3] I readily accepted that the facts justified the application being brought on urgent basis. I however ultimately dismissed the application and made no order as to costs. The applicant has requested that I provide written reasons for my ex tempore judgement.

[4] Before I provide reasons for my judgement, it is apposite to briefly traverse some important features of the oral and documentary evidence led by the applicant. They are:

[4.1] that the applicant was bringing the application in his capacity as the elected Speaker of the Municipal Council of Phokwane Local Municipality ('the Municipality’), and that he was elected as such on 9 December 2019;

[4.2] that the first respondent had unlawfully called a council meeting because he was no longer the Speaker. This court was therefore requested to stop the illegality by restraining him from his conduct of interfering with the applicant's duties and functions;

[4.3] that since 09 December 2019 the position of Speaker was no longer open when the vacancy that was created by the expulsion of the first respondent as councillor and Speaker was filled;

[4.4] that, because of his re-instatement by the court, the first respondent had become an ordinary member of council. There was more to this submission that I shall touch on later in these reasons for judgement.

Historical background

[5] The applicant and the first respondent are both elected councillors of the Municipality. At separate times they were both elected by fellow councillors to hold the position of Speaker of the Municipality. First, it was the first respondent who was elected as such and, at a later date, the applicant was also elected to occupy the position. Documentary evidence[1] before me shows that the applicant was elected as the Speaker on 09 December 2019 after the first respondent was expelled by the African National Congress ['the ANC’] from its membership ranks and from being a party representative in council.

[6] The attorney representing the applicant, Mr Baloyi, indicated to me that this matter has some history dating back to 2 October 2019 when the first respondent, and one of his colleagues who was/is holding the position of Mayor, were expelled as members of and as public representatives of the ANC in council. The first respondent and that colleague took to the courts to challenge the decision to expel them, both as members of the ANC and as councillors.

[7] I was informed that the first respondent and the said colleague (details of whom are omitted from this matter) challenged their

expulsion in two separate court cases. The first court challenge was apparently dismissed or struck off the roll. The facts of the first court challenge were not disclosed with any measure of clarity. I have been informed nonetheless that the first urgent court application was before court on 4 December 2019 and that the first respondent and those who had acted with him in the matter were not successful.

[8] Subsequently, on 5 February 2020, the first respondent and that other person approached court again to challenge both their expulsion from the organisation and their positions in the Municipality's council. On this occasion the court granted an order in favour of the second respondent, temporarily re-instating him as member of the organisation and as councillor. The relevant paragraphs of the order read:

"1.3 the Applicants' membership of the ANC is reinstated until the finalisation of the Appeal to the African National Congress National Disciplinary Appeals Committee or such other body as the Court may direct;

1.4 the /EC is interdicted from conducting the elections and/or appointment of councillors to replace the Applicants as scheduled to take place on the 05 February 2020;

1.5 the Applicants are reinstated as councillors in their respective positions of Phokwane Local Municipality." (My emphasis)

[9] In compliance with the court order, the Independent Electoral Commission did not hold the elections on 5 February 2020. Further, the first respondent has been reinstated and is a councillor of the Municipality. The only order with which the applicant seems to have difficulty is the one that relates to the position of Speaker of council. It is in my view inappropriate for this court to find that only one of the terms of the court order is to be overlooked while the others have already been implemented. The orders remain implementable in full until they have been set aside either through rescission or appeal process. In argument, the applicant indicated that he was not cited in the matter that had led to the orders.[2] Furthermore, the applicant's contention was that even if the orders were to be implemented, it would still not be possible for the first presented to occupy the position of Speaker as that vacancy was filled on9 December 2019.

[10] I was informed that what gave rise to this application is the alleged unlawful conduct displayed by the first respondent. Equipped with the court order of 05 February 2020, the first respondent on 13 February 2020 called for a special meeting of council to sit on 18 February 2020. He did so in his capacity as Speaker of council, which is what aggrieved the applicant.

[11] The actions of the first respondent led to the applicant taking a number of steps or attempts to get him to desist from his conduct of calling the meeting(s) of council and calling from holding himself as Speaker. All the attempts drew blanks. The first respondent's

reaction to the demands is not surprising because, since his expulsion on 2 October 2019, he took to the courts to challenge the

decision. Battle lines between the first respondent and those opposed to him were pertinently drawn.

[12] I was informed that the applicant became aware of the scheduled meeting on 13 February 2020. Evidently, the applicant did not waste time in seeking to restore what was to him appropriate order within the Municipality, and, when those channels or steps failed to yield a positive reaction from the first respondent, by approaching the court for interdictory relief. The non-reaction from the first respondent meant that the scheduled meeting was to proceed. It was not exactly clear as to what was to be discussed at the meeting which aggrieved the Applicant. Amongst other steps, the applicant punctually took the following actions:

[12.1] on 13 February 2020, a few hours after becoming aware of the notice calling for a meeting of council, addressed a letter to the Administrator proposing that the intended meeting be suspended;

[12.2] informed the provincial secretary of the ANC about the situation in order to instil his help to stop what was happening. The provincial secretary sent communications to the first respondent on 15 and 16 February 2020 calling upon him to desist from calling the council meeting; and

[12.3] on Monday 17 February 2020 the applicant, this time acting through his attorneys, addressed a letter demanding that the first respondent give an undertaking that he will not continue with the meeting as scheduled.

[13] Because all the efforts that were taken by or on behalf of the applicant yielded no satisfactory outcome, the urgency of this matter could not be disputed. I accordingly treated the application as such and promptly delivered my ex tempore judgement on the substantive issues that arose from the application. Urgency alone does not make a case. The applicant still had to satisfy me that he is entitled to the balance of the orders that he sought.

[14] Having dealt with the urgency, one issue remained for consideration by this court to wit the question whether he was able to satisfy the well-known requirements for interim interdicts. It is trite that the applicant had to make a proper case to the satisfaction of this court for the interdictory relief being sought. The court would not be able to come to his assistance if he failed to satisfy such requirements.[3] I deal with the requirements below.

Requirements for interim interdicts

[15] The requirements for interim interdicts are now well known, with a legion of authorities. An interim interdict, it has to be emphasized, is an extraordinary remedy within the discretion of the court. The applicant seeking interim interdict is required to show the existence of a prima facie right, which right the court may consider protecting. Based on the authorities that I canvass below, I had difficulty accepting that the applicant had managed to establish the existence of a prima fade right worthy of protection from this court.

[17] Even if I may be wrong in this regard, the existence of a prima fade right had to be considered in the context of the orders that were granted by the Gauteng Local Division ('GLD') reinstating the first respondent as a councillor in his designated position. In my engagement with Mr Baloyi as to what was to be made of the court orders which not only reinstated the first respondent as a councillor but also in his designated position, he submitted that I should interpret the orders as only reinstating the applicant as a councillor.

[18] Mr Baloyi bolstered his submission by stating that that was the only correct interpretation of the order because the position of Speaker was already filled as of 9 December 2019 and, accordingly, that there was no longer any vacancy that could be occupied by the first respondent upon being reinstated. That, in my view, was not the correct way of interpreting the orders from GLD. I held it to be the correct way of interpreting the orders, that the order not only reinstated the first respondent as a councillor but also into the position of Speaker, meaning the position that the first respondent held prior to his expulsion was restored. In giving the order its intended meaning,[4] in my view the status quo ante was restored. It could not be disputed that the court orders had to be respected and given effect to unless or until they are set aside.[5]

[19] I held that to be the correct position also because, as I was informed, the dispute between the first respondent and the organisation was still pending before an appeals committee. Without trying to pre-empt the outcome, one could ask a rhetorical question as to how will the situation be managed should the first respondent's appeal succeed. It may still result in the election of the applicant as Speaker being affected or even being reversed.[6] I however make no pronouncement about who is rightfully holding of the position of Speaker between the applicant and the first

respondent.

[20] As a matter of emphasis, the court orders granted by the GLD had the effect that the positions as they existed prior to the expulsions

were re-established. This is because paragraph 1.5 of the court order specifically uses the expression 'respective[7] positions'. This leads to a conclusion that the court intended the order to have the effect of reinstating the first respondent both as councillor and as the Speaker of council. This court could not ignore the court order not its intended effect.

[21] The court in Ferreira v Levin NO; Vryenhoek v Powell NO,[8] which authority has found approval from the constitutional court, the court held that:

"It has, up to now, been accepted that in order to establish a prima facie right entitling an applicant to an interim interdict, an applicant has to make out a case that he is entitled to final relief If on the facts alleged by the applicant and the undisputed facts alleged by the respondent a court would not be able to grant final relief, the applicant has not established a prima facie right and is not entitled to interim protection."

[22] Returning to the facts of this case, the question is whether this court could declare the conduct of the first applicant in calling the meeting, after having been reinstated as Speaker by court of equal standing, as unlawful. Conversely, the question is whether this court could ignore the orders granted by another court and indirectly declare that the applicant and not the first respondent is the Speaker. That would be legally untenable in that the constitution specifically pronounces that 'an order or decision issued by a court binds all persons to whom and organs of state to which it applies.'[9] The organ of state in the present matter is the Municipality and the order is binding to it as well. In my view, the Municipality must receive the first respondent as councillor and as Speaker. As a result, I did not see how I could hold the first respondent's conduct to be unlawful and, therefore, that the applicant was not entitled to a final interdict. In light of the authority in Ferreira, supra the applicant has to fail on this ground.

[23] When addressing the question of harm reasonably apprehended, the applicant responded by stating that he will suffer harm because there was instability in the Municipality. He also indicated that he will suffer harm as he will lose the emoluments associated with the holding of office as Speaker. It was required of the applicant to adduce facts, with sufficient particularity, to show that there will be irreparable harm should the conduct complained of not be stopped. I found nothing in the applicant's evidence to show:

[23.1] the extent of harm allegedly to be suffered; and

[23.2] why it is alleged that the harm is irreparable.

[24] Regarding the question of instability that was raised by the applicant, I found such ground to be flawed in that it ignored what the Constitutional Court said in Ngaka Modiri Molema District Municipality v Chairperson, North West Provincial Executive Committee and Others where it held amongst others that:

“... It needs to be stressed that the potential prejudice and urgency lie not in the harm suffered by the Municipality or councillors, but in the continued disruption of basic essential services to the people and the communities the Municipality is supposed to serve. The people who may suffer real harm are not party to these proceedings.”

[25] Furthermore, the authority that was espoused in Geyser v Nedbank Ltd: In re Nedbank Ltd v Geyser[10] took the view that a legal issue should only be decided on interlocutory stage of the proceedings if it would result in the final disposal of either the matter as a whole or a particular aspect thereof. That was not so in this matter.

[26] In addition to the authorities cited above, I also took into account what the Constitutional Court said in the case of National Treasury and Others v Opposition for Urban Tolling Alliance[11] where the court held that:

“[50] Under the Setlogelo test, the prima facie right a claimant must establish is not merely the right to approach a court in order to review an administrative decision. 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 applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The right to review the impugned decisions did not require any preservation pendente lite.” (Footnotes omitted)

[27] My conclusion was that the applicant failed to satisfy this court that he stands to suffer irreparable harm if the interim interdict was not granted. The only possible harm that he stood to suffer and in respect of which he was able to address this court on is a financial one, and was based on the extra income that the position of Speaker has provided him. Still, there was no explanation why an application for rescission of the court order from the GLD was not a suitable alternative remedy that could afford him sufficient redress.

[28] Another issue that was not canvassed at all in this court relates to the question of balance of convenience. The Constitutional Court cautioned in the case of National Treasury and Others v Opposition for Urban Tolling Alliance[12] that :

"[47] The balance of convenience enquiry must now carefully probe whether and to which extent the restraining order will probably intrude into the exclusive terrain of another branch of Government. The enquiry must, alongside other relevant harm, have proper regard to what may be called separation of powers harm. A court must keep 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 the clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessary 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..." (Emphasis added)

[29] This is not one of the clearest cases that the Constitutional Court had in mind in the OUTA case. Thus, this court had to resist the temptation to grant the temporary interdict that was asked for by the applicant. The balance of convenience did not favour the granting of the interim orders sought by the applicant.

[30] It is trite that an applicant seeking an interim interdict has to satisfy the requirements. The court could not come to his rescue

because he has not satisfactorily dealt with the requirements and, under those circumstances, the application for interim relief was not available for the applicant. He has an alternative remedy and I have heard no reason why rescinding the court order from GLD was considered an option.

[31] Overall, I found that the applicant had failed to locate himself within the requirements for interim interdicts. In those premises, the application for interim interdict was dismissed by this court.

MAKOTI, MZ

ACTING JUDGE

NORTHERN CAPE HIGH COURT

KIMBERLEY

Representation:

For Applicant: Mr Baloyi

For Respondent: N/A

[1] Minutes of Council - 09 December 2019.

[2] I had no way of telling if applicant was cited or not since the copy of the order did not reflect the details of all the parties.

[3] Setlogelo v Setlogelo 1914 AD 221 at 227. Kaputauza v Executive Committee of the Administration of the Hereros 1984 (4) SA 295 (SWA).

[4] Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.

[5] Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 at p 668E - 669B.

[6] Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v Corruption Watch and Others 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) par [35].

[7] Concise Oxford English Dictionary meaning.

[8] 1995 (2) SA 813 (W) at 8171-818B, 8241-J

[9] Section 165(5) of the Constitution.

[10] 2006 (5) SA 355 (W) at 360.

[11] National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) at para [47].

[12] Ibid.