Khoza v The Premier of KwaZulu-Natal

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 10 July 2008
• Docket Number: 8641/08
• Court: Natal Provincial Division
• Hearing Date: 15 July 2008
• Citation: 2008 JDR 0948 (N)

Ntshangase J:

(1)

In this matter the applicant has sought an order in the following terms:-

"1.

This matter is to be heard as a matter of urgency and the forms and notice periods provided for in the Rules are dispensed with.

2.

Pending finalization of the application for the Second Order Prayed :

2.1

The fifth and sixth respondents are interdicted from taking any further steps to hold a by-election in Ward 4 of the Emadlangeni Municipality.

2.2

The decision by the Executive Council of KwaZulu-Natal on 14 May 2008 to remove the applicant from office as a councilor of the Emadlangeni Municipality is suspended.

2.3

The decision of the Executive Council of KwaZulu-Natal on 22 August 2007 to suspend the applicant as a councilor of the Emadlageni Municipality is suspended.

3.

The application for the Second Order Prayed is adjourned sine die.

4.

The first and second respondents and any other respondents who oppose this application are ordered to pay the costs jointly and severally.

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5.

Further or alternative relief."

(2)

At the commencement of proceedings Mr Rall who appeared for the applicant indicated it to be common cause between the parties that the issue of suspension had fallen away as it had been overtaken this year by the applicant's removal from office as a councilor, and that therefore the relief in prayer 2.3 of the notice of motion was no longer sought.

(3)

At this stage I mention that only the second respondent has filed an answering affidavit in opposition to the application.

(4)

Proceedings are afoot which pertain to what is referred to in paragraph 3 of the notice of motion as the Second Order Prayed, to review and set aside –

"1.1

the decision by the Executive Council of KwaZulu-Natal on 22 August 2007 to suspend the applicant as a councilor of the Emadlangeni Municipality;

1.2

the appointment by the Executive Council of a committee under chairmanship of the third and fourth respondents to investigate allegations against the applicant;

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1.3

the findings of the committee chaired by the third and fourth respondents in terms of which the applicant was found guilty on two counts, and the committee's recommendation that the applicant be removed from office as a councillor of the Emadlangeni Municipality;

1.4

the decision of the Executive Council of KwaZulu-Natal on 14 May 2008 to adopt and implement those findings and to remove the applicant from office as a councilor of the Emadlangeni Municipality;

2.

The first and second respondents, together with any other respondents who oppose this application are ordered to pay the costs jointly and severally;

3.

further or alternative relief."

URGENCY AND PEREMPTION

(5)

The second respondent raised the issue of urgency and pointed to an unjustifiable delay by the applicant in instituting these proceedings. Mr Singh who appeared for the respondents referred to a number of authorities, including Hultzer v Standard Bank of South Africa (Pty) Ltd [1] and others which I find to be apposite where a delay has in fact occurred. In that regard there can be no reasonable argument, in my view, that the applicant would have been hard pressed to justify the

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delay in instituting the present proceedings to set aside his suspension on 22 August 2007. The issue in regard to his suspension has been abandoned by the applicant. He argued that the applicant had lost entitlement to bring the application on the principle of peremption following his participation in proceedings of the special committee established to investigate allegations of breaches of the code of conduct against him. The issue of peremption was raised when the applicant challenged the intervention by the Executive Council of KwaZulu-Natal ("EXCO") in terms of section 139(1)(b) of the Constitution to appoint a special committee to make findings on allegations against him and any other councilor arising from a special investigation report into allegations of mismanagement maladministration, fraud and corruption at Utrecht Municipality, dated 14 May 2007. In terms of that intervention he was suspended as well. A letter from the second respondent dated 15 May 2008 was addressed to the applicant to inform him of the decision of the EXCO on the outcome of the disciplinary hearing by the special committee chaired by third and fourth respondents. The letter told him that he was found guilty on the "charges" he faced and that the special committee had resolved that he be removed from office. This was placed before the EXCO on 14 May 2008 "and they resolved to adopt and implement the findings of the Independent Special Committee." According to applicant he received the letter some two weeks after it had been written, although he had heard about its contents over the radio on 16 May 2008 and made enquiries and eventually obtained a copy of the letter. After receipt of the letter he consulted his attorney who briefed counsel on 25 May 2008. In his affidavit applicant states

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that on the advice of counsel a letter was sent by applicant's attorneys to the second respondent to "request certain details of the findings made against (him) and the sanction imposed on (him)." When no response had been received by 17 June 2008 Attorney Shabalala telephoned an official in the second respondent's department and spoke to a Mr Lionel Pienaar who expressed surprise as, to his knowledge, no letter had been received. A copy was provided to Mr Pienaar on 17 June 2008. A response on behalf of the second respondent was received on 19 June 2008 and "(he) subsequently established that the second respondent had determined, in terms of section 25(3) of the Structures Act that a by-election in Ward 4 would be held on 16 July 2008." The present application was launched on 20 June 2008.

(6)

I find that the applicant reasonably required the information solicited in his attorney's letter dated 30 May 2008 particularly the information on sanction as he had not seen the recommendation on sanction. He received the outstanding part of the recommendation on sanction when the answering affidavit was perused for him to file his reply. I find also that the application was launched without undue delay in relation to the relief as presently sought in prayers 2.1 and 2.2 of the notice of motion. Evidently the matter was urgent given the imminence of the by-election set for 16 July 2008.

(7)

Mr Singh argued that the issue regarding section 139(1)(b) of the Constitution should have been raised in an...