Magaguli and Others v Setlhomogi and Others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Lawrence Lever J |
| Judgment Date | 25 February 2022 |
| Docket Number | 2620/21 and 24/22 |
| Hearing Date | 17 February 2022 |
| Court | Northern Cape Division |
| Citation | 2022 JDR 1977 (NCK) |
Lever J:
In this matter the two cases identified by the case numbers set out above were heard together at the request of the parties involved. Both matters involved the same parties. An expedited date was arranged because the matter involves office bearers of the Phokwane Municipality. It was considered to be in the interests of all parties concerned and their respective constituencies to try and bring finality to this matter. Hopefully this approach would also bring the stability required for the said local municipality to render services to its inhabitants and stakeholders. This judgment was prepared in a shortened time frame in the hope that it would achieve that end.
2022 JDR 1977 p3
Lever J
Case number 2620/21 is an application that has two parts a part A and a part B. Part A was brought on an urgent basis seeking certain interim relief pending the finalisation of Part B together with certain other relief. Part A came before my sister Judge Mamosebo on the 20 December 2021. Judge Mamosebo handed down a written judgement on the 23 December 2021 in which she struck the matter off the roll and reserved the question of costs.
Before part B of case number 2620/21 could be enrolled the respondents in that matter together with Phokwane Local Municipality, with only the council having been cited in case number 2620/21, launched an urgent application by way of a rule nisi under case number 24/22. The relief sought in case number 24/22 was against the applicants in case number 2620/21 as well as the provincial management of the ANC and 50 unidentified members of the ANC. That application came before my brother Nxumalo J on the 7 January 2022. Nxumalo J granted a rule nisi. The respondents in case number 2620/21 anticipated the return day of the rule nisi. The anticipated rule nisi in case number 24/ 22 came before me on the 13 January 2022. After reading the papers and hearing oral argument, in an ex tempore judgment on that day, I discharged certain of the orders contained in the rule nisi and extended the remaining prayers of the rule nisi to the 18 February 2022.
2022 JDR 1977 p4
Lever J
By agreement between the parties both case 2620/21 and 24/ 22 were postponed for argument to the 17 and 18 February 2022. It was postponed to be dealt with over 2 days because it was anticipated that oral evidence might be required to deal with certain factual disputes that emerged in the papers.
On the morning of the 17 February 2022, the parties agreed that the decision in matter number 2620/21 would determine the fate of matter number 24/22. I agreed to deal with the matter on that basis.
The next debate was whether or not matter 2620/21 was a review or not. Mr Ngandwe, who appeared for the respondents (hereinafter "the respondents") in matter number 2620/ 21 maintained that it was. The importance of that question is that in this Division a review must be heard by 2 judges and this would have necessitated a further postponement of both matters.
Mr Motlogelwa who appeared for the applicants (hereinafter "the applicants") in matter number 2620/21 submitted that this matter involved certain declaratory orders, pure and simple. After debating the matter with him, he moved an amendment which he submitted would remove any possible doubt in the matter.
The respondents opposed the amendment. After hearing the parties on this question, I granted the amendment and ruled that it was not
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Lever J
in fact a review but could proceed on the basis that applicants merely sought certain declaratory orders. My reasons for such ruling were given in my ex tempore ruling and need not be repeated herein.
The next debate between the parties related to the question of whether or not there was a dispute of fact that needed to be referred to oral evidence.
Mr Motlogelwa, for the applicants, submitted that whilst there were disputes of fact, these were not material to the relief the applicants' sought.
Mr Ngandwe, for the respondents argued that the disputes of fact were both relevant and material to the matter at hand.
In my ex tempore ruling on this question, I ruled in favour of the applicants'. In short, my reason for doing so was, as submitted by Mr Motlogelwa, the matter could be decided on the basis of the facts admitted by the respondents in their answering affidavit, as contemplated in the test set out in PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD [1] .
The matter then proceeded to oral arguments on the merits of matter 2620/21 on the 18 February 2022. It was agreed between
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Lever J
the parties that the only live issue for this court to determine was the relief sought by the applicants in part B of matter 2620/21 and that the decision in this matter would determine the fate of matter 24/22.
In brief, the factual background to the matter is that the first applicant was appointed as the acting municipal manager by way of a resolution of the eleventh respondent (the council of the Phokwane Local Municipality) taken on the 8 October 2021. The said appointment in terms of the resolution was to take effect from the 11 October 2021. This was confirmed in her letter of appointment signed by the then mayor. The appointment of the first applicant as the acting municipal manager was for a period of 3 months commencing on the 11 October 2021 and ending on the 14 January 2022.
It is common cause that the local government elections took place on the 1 November 2021. It is also not disputed that the eleventh respondent has 19 seats, being 10 ward seats and 9 proportional representation seats (PR seats). It is also not in dispute that the African National Congress (ANC) won all 10 ward seats. It is also not disputed that the 9 PR seats were distributed between various opposition parties. As they acted in concert as a unit, in the activities relevant to this matter, their identities are not material at present.
2022 JDR 1977 p7
Lever J
After the election and on the 22 November 2021 the inaugural council meeting of the eleventh respondent was convened. The second applicant was elected as the Speaker of the eleventh respondent. The third applicant was elected as the Mayor of the eleventh respondent.
On the 6 December 2021 the second applicant gave notice of an ordinary Council meeting which was to be held on the 13 December 2021. One of the items on the agenda for such meeting was the extension of the first applicant's acting appointment as the municipal manager beyond the 14 January 2022 when such appointment was due to end.
The meeting was chaired by the second applicant as Speaker. The meeting was quorate when it commenced. The meeting conducted its business, but when it got to the item on the agenda relating to the extension of the acting appointment as municipal manager of the first applicant the meeting was adjourned by the speaker in circumstances described as "prevailing chaos" by the first applicant in the founding affidavit. Applicants contend that the chaos disrupted the meeting before the item dealing with the extension of the first applicant's appointment could be dealt with.
The respondents, in the answering affidavit filed on their behalf, admit that the meeting had been adjourned and that there was
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Lever J
chaos in the meeting. The respondents however contend that initially 3 alternative counter-proposals were placed before the meeting...
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