Kannaland Municipality v Minister for Local Government, Environmental Affairs & Development Planning in the Western Cape

• Jurisdiction: South Africa
• Judge: Traverso DJP
• Judgment Date: 01 April 2014
• Docket Number: 20763/13
• Court: Western Cape High Court, Cape Town
• Hearing Date: 01 March 2014
• Citation: 2014 JDR 0598 (WCC)

Traverso, DJP:

[1] This is an application in terms whereof the applicant applies to review the decision of the first respondent refusing to remove the second respondent as a councillor of the applicant Municipality.

[2] The request to remove the second respondent was made in terms of Item 14(2)(e) of the Code of Conduct for Councillors ("the Code"), which is contained in Schedule 1 of the Local Government: Municipal Systems Act, No. 32 of 2000 ("the Systems Act").

[3] The facts giving rise to this application are, in the main, common cause. I will summarise them hereunder.

[4] The application was triggered by the bridging of the second respondent's electricity meter. Bridging is a term used to connote the bypassing of an electricity meter resulting in the recipient of the electricity not being charged for it.

[5] The second respondent experienced problems with the supply of electricity to his office, as a result whereof he contacted the Head of the applicant's electricity department, a certain Mr. de Jongh, to assist him with the problem. Mr. de Jongh and two Municipal officers attended the

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second respondent's office and bridged the meter as an interim measure so that the electricity supply to his office was not interrupted. The second respondent is a practicing attorney, who, in May 2011, was elected as a councillor of the Kannaland Municipal Council, where he still serves.

[6] The bridging of the meter took place in late November, early December 2011. The second respondent was assured by Mr. de Jongh that this was a temporary measure and designed only to ensure the continued supply of electricity to his practice.

[7] In December 2011 the second respondent closed his office for a period of approximately a month over the festive season and during that period did not use any electricity. Upon his return from holiday he noticed that his electricity meter had not yet been replaced. He immediately took this up with Mr. de Jongh, who gave him the assurance that he would prioritise the matter. The matter was however not attended to, and Mr. de Jongh left the employment of the applicant in March 2012, without having attended to the replacement of the meter.

[8] Following a Council meeting held on 3 April 2012 the second respondent again approached a Municipal official, namely the

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Temporary Director for Technical Services, one Pieter van der Heever. The second respondent informed him that the electricity meter at his office had been bridged and that, despite undertakings by Mr. de Jongh, had not been replaced. Mr. van der Heever sent electricians to inspect the meter who confirmed that the meter had been bridged. The meter was then replaced. Mr. van der Heever reported this to the Municipal Manager, who in turn advised the Speaker.

[9] The Speaker conducted a preliminary investigation into the second respondent's conduct and reported the matter to the Council at a meeting held on or about 25 April 2012. The Council resolved that a full investigation should be conducted and that a special committee of three councillors be established to make recommendations to the Council.

[10] An investigation was undertaken on behalf of the Council by a firm of attorneys appointed to assist the Speaker. They compiled an investigation report, and the second respondent was given an opportunity to reply in writing to the allegations.

[11]The applicant resolved that a special committee should complete the investigation into the allegations and that the second respondent had breached the Code of Conduct for Councillors.

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[12]The special committee held a disciplinary enquiry over a number of days during 2012. The second respondent was charged with six counts of contravening the Code, he pleaded not guilty to all of these charges and was ultimately convicted of the following four charges:

12.1

Charge 1: Contravening the provisions of clause 2 of the Code of Conduct by making use or allowing the use of an illegal electricity [connection] at erf 358 Ladismith for the period 18 October 2011 to 13 April 2012 and thereby compromising the credibility and integrity of the Municipality;

12.2

Charge 2: Contravening the provisions of clause 2 of the Code of Conduct by effecting and or causing and or allowing an illegal electricity connection and thereby compromising the credibility and integrity of the Municipality;

12.3

Charge 4: Contravening the provisions of clause 2 of the Code of Conduct by effecting and or causing and or allowing to be effected an illegal electricity connection and thereby acting in a dishonest manner in the execution of his functions as a Councillor;

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12.4

Charge 6: Contravening the provisions of clause 12 of the Code of Conduct by effecting and or causing and or allowing to be effected an illegal electricity connection and thereby obtaining a benefit from the assets of the Municipality.

[13] At a special Council meeting held on 6 December 2012 the special committee recommended that the Council request the MEC to remove the second respondent from office in terms of Item 14(2)(e) of the Code. In a letter dated 11 December 2012 the Speaker requested the MEC to remove the second respondent from office.

[14] On 14 January 2013 the Deputy Director: Governance in the Department of Local Government, Environmental Affairs and Development Planning ("the Department"), Mr. Mario Baatjes, contacted the Speaker and requested a transcript of the disciplinary hearing.

[15] On 8 February 2013 the recording of the hearing, which had in the interim been received from the Applicant, was handed to the service provider for transcription. After the record of the disciplinary inquiry had been transcribed, the Department prepared a letter to the second

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respondent enclosing copies of the documents received by the MEC and requesting him to comment on them within 21 days.

[16] The second respondent made his representation to the MEC and in an emailed reply dated 27 March 2013. The MEC considered the matter, discussed it in weekly meetings he had with senior managers, including the Director: Municipal Governance in the Department, Mr. Seraj Johaar.

[17] The MEC then considered the documents relevant to the matter, including the submission prepared by Mr. Johaar, which reflected their deliberations since the second week of April 2013 with the benefit of having had the relevant parts of the transcript drawn to his attention by Mr. Johaar and Mr. Baatjes.

[18] Based on the evidence presented at the disciplinary hearing, the MEC formed the opinion that the evidence did not establish that:

18.1

on charges one, two and four, the second respondent:

(a)

had effected, caused or allowed an illegal electricity connection;

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(b)

compromised the credibility and integrity of the Municipality or acted in a dishonest manner in the execution of his functions as a councilor; and

18.2

on charge six, the second respondent:

(a)

had effected, caused or allowed an illegal electricity connection; or

(b)

obtained a benefit from the assets of the Municipality.

[19] On 15 May 2013 the MEC informed the Speaker that after considering the relevant information supplied to him, he was unable to accede to the request to remove the second respondent from office. He also stated that he was of the opinion that the evidence presented at the disciplinary committee did not support a finding that the second respondent was guilty of having caused or allowed the illegal bridging of the electricity meter.

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[20] On 11 June 2013 the MEC was requested to provide reasons for his decision. In a letter dated 10 July 2013 the MEC reiterated his view that the evidence did not, on a balance of probability, support a guilty finding in respect of charges one, two, four and six.

[21] I will now deal with the provisions of Item 14 of the Code, which provides:

"(1)

A municipal council may-

(a)

investigate and make a finding on any alleged breach of a provision of this Code; or

(b)

establish a special committee-

(i)

to investigate and make a finding on any alleged breach of this Code; and

(ii)

to make appropriate recommendations to the council.

(2)

If the council or a special committee finds that a councillor has breached a provision of this Code, the council may-

(a)

issue a formal warning to the councillor;

(b)

reprimand the councillor;

(c)

request the MEC for local government in the province to suspend the councillor for a period;

(d)

fine the councilllor; and

(e)

request the MEC to remove the councillor from office.

(3) (a)

Any councillor who has been warned, reprimanded or fined in terms of paragraph (a), (b) or (d) of sub-item (2) may within 14 days of having been notified of the decision of the council appeal to the MEC for local government in writing setting out the reasons on which the appeal is based.

(b)

A copy of the...