Umvoti Municipality v Anc Umvoti Council Caucus and Others

• Jurisdiction: South Africa
• Judge: Gyanda J
• Judgment Date: 16 September 2008
• Citation: 2009 (2) SA 388 (N)
• Docket Number: 6440/2008
• Hearing Date: 08 September 2008
• Counsel: RJ Seggie for the applicant. WS Kuboni for the respondents.
• Court: Natal Provincial Division

Gyanda J:

[1] This is the extended return date of a rule nisi granted by my brother G Van Zyl J on 30 April 2008, as a matter of urgency, at the instance of the Umvoti Municipality, in the following terms:

2.

A rule nisi do hereby issue calling upon the respondents to show cause, if any, at 09:30 on the 7th day of May 2008, why an order should not be made in the following terms:

(a)

It is declared that: H

(i)

The gathering of councillors of the applicant which continued to sit and purported to act as a municipal council after the speaker had left the meeting of the council on 24 April 2008 and until his return to the council chamber, was not the council of the said municipality and its resolutions have no force and effect. I

(ii)

The purported removal by the said councillors of Alderman PM Ngubane as mayor and the appointment of TZ Ngubane, in his stead is void and of no force and effect.

(iii)

Alderman PM Ngubane is the mayor of the municipality;

(iv)

The applicant is ordered to pay the costs of this application, provided that, in the event of any person opposing J

Gyanda J

A the granting of this order, then an order will be made that such person or persons pay the costs occasioned by such opposition, jointly and severally, the one paying the other to be absolved.

3.

Pending the return date herein the respondents are interdicted and restrained from purporting to act or to hold TZ Ngubane out as B mayor of the municipality.

[2] The matter became opposed subsequent to the grant of the rule nisi when affidavits opposing the relief sought were filed by and on behalf of the fourth, eighth, thirteenth, fourteenth, fifteenth, eighteenth, nineteenth and twenty-first respondents. When this matter was argued before C me, Adv RJ Seggie, for the applicant, argued that the rule nisi should be confirmed, inasmuch as the opposition of the respondents really had no merit and that, inasmuch as the fourth, eighth, thirteenth, fourteenth, fifteenth, eighteenth, nineteenth and twenty-first respondents have opposed the confirmation of the rule, they should be ordered to pay the D costs of the application. Adv, Mr S Kuboni, who appeared for the respondents, contended that the application should be dismissed and that the speaker of the Umvoti Council, one Rajendra Persadh Maharaj, who is the deponent to the applicant's founding affidavit, should be directed to pay the costs of the application on de bonis propriis, in as much E as:

(a)

Mr Rajendra Persadh Maharaj, the speaker, was not authorised to bring the application on behalf of the applicant;

(b)

although it was conceded in argument that the resolution removing Alderman PM Ngubane as mayor was irregular, as was the appointment F of Councillor TZ Ngubane in his stead, the remaining resolution taken at the meeting complained of (ie of 24 April 2008), in relation to the proposed budget, was a proper resolution and ought to have been put into effect.

[3] For a proper understanding of the disputes between the parties it is G perhaps necessary to summarise, briefly, the incident giving rise to the present application. The speaker of the Umvoti council, Mr Maharaj, brought this application for a declarator inasmuch as resolutions were purportedly taken at a meeting on 24 April 2008 at a stage when he was not present in the council chamber. He summarised briefly that prior to the resolution being taken the ANC component of the councillors, H through the eighth respondent, had requested an opportunity to caucus and that he decided, accordingly, to postpone the proceedings for the lunch recess, which would enable the ANC component of the Umvoti Council to caucus as they wanted to. He stated further that after the lunch adjournment he returned to the council chamber and had rung the I bell summoning all the councillors back into the council chamber when the eighth respondent grabbed a microphone and began to speak at a time when Mr Maharaj had interjected to say that he was calling for order, inasmuch as the chief financial officer was still presenting his report. His pleas for order were ignored, and at the same time the mayor indicated that he was feeling ill and left the chamber. He was immediately J followed by the speaker, Mr Maharaj, who was perturbed by the

Gyanda J

mayor's illness and went to see if he could assist in any way. All of this A is not disputed. Neither is it disputed that the resolutions taken in the council chamber thereafter were taken in the absence of the speaker, Mr Maharaj, and without any acting speaker being elected in his stead to preside over the proceedings. It is in these circumstances that the resolutions that were taken by the members of the council who were then B present in the council chamber are alleged by the applicant to be irregular and of no force and effect.

[4] The precipitating reason for the applicant approaching this court for the relief sought was the fact that the applicant received from the African National Congress, Inkosi Bhambatha region, a letter dated 28 April C 2008 in which it sought the implementation of the resolutions that were taken, and in this regard requested that a meeting of council be held for that purpose.

[5] At the outset and in limine Mr Kuboni argued that there was no urgency for the application and that for this reason alone the application D should be dismissed with costs. On the issue of urgency it is quite clear that the respondents themselves considered the issue of the resolutions taken at the meeting of 24 April 2008 as being urgent, inasmuch as the speaker in his affidavit referred to the contents of a letter from Councillor DP Zondi, the chief whip of the ANC in council, requesting the speaker E to convene a meeting 'to discuss the hot and urgent matters based on what had transpired in the full council meeting held on 24 April 2008 . . .'. The fact that the respondents considered the need to meet on these resolutions as being urgent is further underscored in the letter of 28 April 2008, which is annexure RB to the papers, wherein the respondents state: F

We hereby write this letter to you for your instant consideration, and we hereby put the facts forward as follows.

(My emphasis.) In fact, the letter from DP Zondi requesting the meeting of council went on to state, and I quote: G

The meeting is very crucial and urgent as we all know that the community of Umvoti Municipality needs delivery of basic service, therefore we must act very soon.

In these circumstances it cannot be argued that the application by the speaker to this court for rectification and/or review of the selfsame and H allegedly irregular...