Civic Voice v MEC: Cooperative Governance and Traditional Affairs

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 08 July 2020
• Docket Number: 1662/2020
• Hearing Date: 07 July 2020
• Citation: 2020 JDR 1335 (MN)

Brauckmann AJ:

INTRODUCTION AND BRIEF BACKGROUND:

[1]

The applicant, Civic Voice ("Civic"), represented by Mr Nicolas Simola Selepe ("Mr Selepe"), an elected public representative and councillor in the 3rd respondent municipality ("Lekwa"), one of the financially troubled local municipalities in the Mpumalanga province.

[2]

This is an urgent application, brought on an extremely urgent basis, with severely truncated time-periods determined by the applicant for the respondents to consider the application, decide whether they want to oppose it and even less time to file opposing papers. There are two matters before me in the urgent court, and Lekwa is a party in both the applications. In this matter Lekwa is at the receiving end of an application with severely truncated time periods. Lekwa filed a notice to oppose, as did the fourth to sixth respondents, but they withdrew their opposition to the application. The application is opposed by the first ("the MEC"), second ("the HOD"), and seventh ("the ANC') respondents.

[3]

Civic seeks, the following relief in PART A of a two-pronged application:

"[1]

That the Applicant is hereby granted leave to dispense with the Uniform Rules regarding forms and service of process and that this

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application is heard on urgent basis as contemplated in Rule 6 (12)(a), of the Uniform Rules of the High Court.

[2]

That pending the final determination of Part B of this application.

[2.1]

the fifth and sixth respondents are ordered to vacate their offices of mayor and speaker of the Lekwa Local Municipality forthwith;

[2.2]

Alternatively, that the fifth and sixth respondents were lawfully removed from their positions as Municipal Speaker and Mayor respectively, consequent upon the passing of the motion of no confidence by majority of the members of the council of Lekwa Local Municipality, on 10 February 2020;

[2.3]

The position of Municipality Mayor and Mayor of the Lekwa Local Municipality remains vacant as a result of the motion of no confidence passed by the majority of the councillors of the Lekwa Local Municipality;

[2.4]

hat the fifth and sixth respondents are hereby interdicted from occupying the offices of municipal speaker and mayor respectively and from performing any functions and duties that law entrusted upon councillors that are duly and lawfully elected into the positions of Municipal Speaker and Mayor in accordance with the Municipal Structures Act;"

[3.2.3]

The fourth respondent, i.e. Municipal Manager of the Lekwa Local Municipality, is hereby ordered to must convene a meeting of the council of the Lekwa Local Municipality, within three (3) days of

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this order for the purpose of electing an acting Mayor and Acting Speaker respectively;"

[3]

Part B is an application in due course seeking to review and set aside the notice by the MEC, dated 3 June 2020, in terms whereof he convened a Special Meeting of the Lekwa council on 5 June 2020 to consider and elect a speaker and mayor for Lekwa as the positions became vacant during February 2020 after a motion of no confidence in the then speaker and mayor was accepted by the council. I pause to mention that in some strange twist of fate, the same individuals whom suffered defeat in February, at the hands of the opposition, as supported by their own party members, were elected to the same positions on 5 June 2020.

THE LAW ON URGENCY:

[4]

The law on urgency is clear. Urgent applications must be brought in accordance with the provisions of rule 6(12) of the Uniform Rules of Court, with due regard to the guidelines set out in cases such as Die Republikeinse Publikasies (Edms) Bpk vs Afrikaanse Pers Publikasies

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(Edms) Bpk [1] as well as a well-known case of Luna Meubelvervaardigers (Edms) Bpk v Makin and Another [2] .

[5]

The Practice Directives requires an applicant, in an urgent application, to set out explicitly the circumstances which render the matter urgent. It is further emphasised that while an application may be urgent, it may not be sufficiently urgent to be heard at the time selected by the applicants. Further to the aforesaid, the Practice Directives provide that should the practices regarding the proceedings in urgent application not be adhered to, and the application not be enrolled on a date or at a time that is justified, the application will not be enrolled and an appropriate cost order will be made.

[6]

In the judgment of East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others [3] it was held:-

"The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant

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must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress.

It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard."

[7]

In the well-known and widely approved judgment, In re: Several Matters On Urgent Roll 18 September 2012, [4] the Court...