Ncitha v Buffalo City Metropolitan Municipality

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: FBA Dawood J
• Judgment Date: 25 August 2022
• Docket Number: EL107/2022
• Hearing Date: 28 July 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 2493 (ECGEL)

Dawood J:

[1]

The applicant herein brought an application against the respondent wherein she sought the following relief: -

"1.

That the decision by the respondent dated 28 September 2021 that the applicant does not qualify to receive legal services support be and is hereby reviewed and set aside.

2.

That the decision referred to at 1 above be and hereby substituted with a decision that the applicant qualifies to receive legal services.

3.

That the respondent provides the applicant with legal services for the conduct of her impending criminal case.

4.

That the respondent pays the costs of this application on attorney and client scale."

2022 JDR 2493 p2

Dawood J

[2]

The applicant stated inter alia that: -

a)

She was elected as Executive Mayor of Buffalo City Metropolitan Municipality, the respondent, on 31 May 2011 and acted in that position until 2016.

b)

During 2015, she was arrested and charged with fraud and corruption. She is currently out on bail in respect of that case.

c)

During July 2021, she received a telephone call from Mr. Zenzile, the head of Legal Services of the respondent, who requested that she reapply for legal representation support. She duly completed the written request in terms of section 109A of the Municipal Systems Act again on 23 July 2021 and submitted the same to the respondent. This request did not attract any response from the respondent.

d)

It was only after her attorney of record sent the second letter dated 28 September 2021 that the respondent responded to her request on the same date. This is 'the decision' which she seeks to have reviewed, set aside and substituted.

e)

She was advised through her attorney of record that, according to the response by the respondent, she does not qualify for legal services support as outlined in section 109A of the Municipal Systems Act No. 32 of 2000. No further explanation was provided in the response.

f)

There were anomalies in the response by the respondent in annexure "D":

(i)

The written request which she had completed and submitted to the respondent was not completed by the Chief Whip and Speaker of Council, like with the first request she had submitted.

(ii)

There was no indication on the request that it was approved or not approved, like with the first request.

(iii)

The response was from Mr. Zenzile, the Head of Legal Services.

g)

Further to the above letter, her attorneys received by email on 6 October 2021 a memorandum from Mr Zenzile. The memorandum was directed to the Head of Directorate Executive Support Services: Ms Sidukwana. The memorandum makes reference to the decision of Zuma v DA and EFF in case number 1028/19 [2021] ZASCA dated 13 April 2021. In the memorandum, Zenzile made reference to her request for legal representation support. Zenzile also concluded in the memorandum that she is to convey to her legal representatives that the respondent will no longer incur any further costs with regards to her case.

2022 JDR 2493 p3

Dawood J

h)

She instructed her attorneys and he then drafted and sent an appeal in terms of PAJA. In the appeal, her attorney advised the respondent that its interpretation of Zuma decision is incorrect, and they do not agree with it. In the appeal, they further advised the respondent that in terms of the policy, the Legal Officer, Mr Zenzile, was not the correct person to have considered her request for legal representation support. Her attorney also advised Zenzile that the correct person to have considered her request in terms of the policy is the City Manager.

i)

According to clause 11.2 of the policy, the person vested with authority to consider an application for legal representation support shall be the Speaker in respect of the Executive Mayor and all other councillors, the Executive Mayor for the accounting officer and directors directly accountable to the accounting officer after consulting the whips of the various parties and the accounting officer in respect of all employees. It is further provided that the responsible person on behalf of the respondent shall exercise the discretion of the respondent to refuse an application or approve an application with or without conditions.

j)

Section 1 of PAJA defines administrative action as any decision taken, or any failure to take a decision by an organ of state when exercising a power in terms of the Constitution or a provincial constitution or exercising a public power or performing a public function in terms of any legislation, which adversely affects the rights of any person, and which has a direct, external legal effect.

k)

An empowering provision is defined in the PAJA as a law, rule of law. A rule of common law, customary law or an agreement, instrument or other document in terms of which an administrative action was purportedly taken.

l)

Section 6(2)(a) of the PAJA provides that a court or tribunal has the power to review an administrative action if the administrator who took it was not authorised to do so by the empowering provision; or acted under a delegation of power which was not authorised by the empowering provision; or was biased or reasonably suspected of bias.

m)

She submitted that she had previously requested legal representation support in terms of section 109A of the Municipal Systems Act and the policy from the respondent and such support had been approved by the then City Manager.

n)

She was a councillor (Executive Mayor) when the cause of action arose, or alleged offence took place during her tenure as Executive Mayor.

2022 JDR 2493 p4

Dawood J

o)

The legal proceedings for which she is seeking legal representation support falls within the definition of legal proceedings in the policy of the respondent.

p)

She qualified and met the criteria for approval of her request for legal representation by the respondent.

q)

She alleged that the decision not to approve her application (request) for legal representation support falls within the meaning of administrative action as contemplated in section 1 of PAJA.

r)

The respondent is an organ of state, namely local government, which was exercising a power in terms of the Constitution and was performing a public function in terms of legislation, namely the policy in terms of section 109A of the Municipal Systems Act.

s)

The decision adversely affects her rights, which has a direct external legal effect.

t)

The decision that she does not qualify for legal services support was reached without proper application thereto.

u)

The decision-maker, Zenzile merely stated that she does not qualify for legal services support as outlined in section 109A of the Municipal Systems Act No. 32 of 2000. No specific reference is made to the applicable provision of section 109A of the Municipal Systems Act.

v)

The decision-maker was irrational in reaching his decision that she does not qualify for legal services. Zenzile merely stated in the decision that the respondent has assessed her application (request) and informed her that she does not qualify to receive legal services support.

w)

Her application for legal representation support should have been considered by the Speaker of Council and not the Head of Legal Services, Zenzile. The decision-maker should have been the Speaker of the Council and not Mr Zenzile.

x)

The Speaker should have exercised his/her discretion in respect of her application for legal representation support and not the Head of Legal Services, Zenzile.

y)

She accordingly alleged that the person who took the decision of the respondent must be reviewed and set aside for inter alia the following reasons:

(i)

The administrator who took the decision was not authorised to do so by the empowering provision;

2022 JDR 2493 p5

Dawood J

(ii)

A cursory reading of the decision of the respondent shows that the administrator who took the decision did not exercise his discretion when he took the decision to refuse the request for legal representation support;

(iii)

If the administrator is to contend that he did exercise his discretion when he made the decision, he exercised it irrationally in the circumstances;

(iv)

The administrator who took the decision acted under a delegation of power which was not authorised by the empowering provision; and

(v)

The same administrator was biased or reasonably suspected of bias.

[3]

The respondent inter alia pleaded as follows to the applicant's case: -

(i)

...