Masakhane Media (Pty) Ltd v City of Mbombela Local Municipality and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Gumede AJ
• Judgment Date: 27 March 2023
• Citation: 2023 JDR 0909 (MN)
• Docket Number: 1101/2022
• Hearing Date: 27 October 2022
• Court: Mpumalanga Division, Mbombela

Gumede AJ:

1.

This is an application to compel the City of Mbombela Municipality, the Executive Mayor as well as the Municipal Manager, herein after referred to as ("Municipal Respondents"), to table a report of allegations of financial misconduct, in a form of letters which were written by the Applicant's attorneys, before the Municipal Council, in terms of regulation 3(2) of the Municipal Regulations on Financial Misconduct Procedures and Criminal Proceedings of 2014 ("Financial Misconduct Regulations").

2.

In the alternative, Applicant seeks an order in terms of regulation 5(1) of the Financial Misconduct Regulations, directing the Municipal Respondents, if they are satisfied that there is a reasonable cause to believe that an act of financial misconduct has occurred, to refer the reports to the Disciplinary Board of the Municipality for the Board to conduct a preliminary investigation into the allegations of financial misconduct, envisaged in section 17(1)(4)(a) of the Local Government Municipal Finance Management Act ("MFMA").

3.

Applicant further seeks that the Municipal Respondents be directed to report back to it, the outcome of such tabling or investigation, as the case may be, within five

2023 JDR 0909 p3

Gumede AJ

days of the meeting of the Municipal Council or recommendation of the Disciplinary Board.

4.

In the event that Municipal Respondents fail to comply with the above, Applicant seeks leave to supplement its papers and seek relief against the fourth to seventh respondents in terms of regulation 19 of the Financial Misconduct Regulations.

5.

The Municipal Respondents oppose the application on the basis that the application is a mandamus and the Applicant has failed to comply with the requirements for the granting of a mandamus, in that the Applicant failed to show the absence of similar protection by another ordinary remedy. This defence was raised as a preliminary point of law. The Municipal Respondents did not address the merits of the application.

6.

In its replying affidavit, the Applicant contends that the notice to oppose was delivered only in respect of the first and third respondents. In this regard, the Municipal Respondents submitted during the hearing of this matter that it was an oversight to omit the second respondent when the notice to oppose was prepared. Regard being had to the content of the answering affidavit, which specifically include the second respondent, I am satisfied that all three Municipal Respondents have delivered their opposition to this application.

7.

Only the Municipal Respondents opposed the application.

2023 JDR 0909 p4

Gumede AJ

BACKGROUND:

8.

The Applicant and the Municipality concluded a contract in terms of which, the Applicant, on behalf of the Municipality, supplied street pole advertising to clients who purchased advertising space.

9.

In June 2020, the Municipality awarded a similar contract to a Joint Venture and in January 2021, the Municipality brought an application to court, seeking a declarator that the Applicant's contract had terminated by effluxion of time. This application is said to be pending.

10.

In November 2021, Applicant through its attorneys, reported allegations of financial misconduct to the Municipal Respondents, which was based on the following grounds:

a.

The contract which was awarded to the Joint Venture far exceeds the Bid that was advertised by the Municipality. The Joint Venture was awarded additional advertising sites without giving other bidders an opportunity to tender for such sites.

b.

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