---

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: 1115/08

Order Delivered: 16/05/08

Reasons Available: 22/05/08

In the matter between

GREAT KEI MUNICIPALITY Applicant

and

COUNCILLOR MANDISA MIRANDA KEMA Respondent

JUDGMENT

REVELAS J

[1] The applicant municipality approached this court in urgent proceedings. It brought an application to order the respondent, its former Mayor and Speaker, to vacate the Mayor’s office in the Municipal Buildings in Komga and to hand over the keys to that office immediately.

[2] According to the applicant, the urgency lies in the fact that the new mayor who is to take over her duties is not able to do so without having access to that office and its contents. The residents and rate payers also have an interest in the office being operative as soon as possible.

[3] The respondent’s successor had already been appointed when the application was served. He is Mr Ngenisile Tikile who was ready to resume his duties on 12 May 2008, but was unable to do so because of the respondent’s refusal to permit access to her office

[4] The respondent was removed from her post as mayor by members of the applicant’s council who unanimously adopted a resolution to that effect on 24 April 2008. The reasons for the respondent’s removal of office appears from the minutes of a meeting held on 15 April 2008 and the resolution itself. The council members were of the view that the respondent’s occupation of a certain house, in Kei Mouth the property of the applicant’s council, was without authorization. She also did not pay the necessary rates in respect of the house. Secondly, it was noted by the councillors that the trust relationship between the applicant’s council and the respondent had broken down. This breakdown was apparently so serious that the respondent could no longer hold the office of mayor.

[5] The respondent has steadfastly refused to accept her removal from office or to vacate her office. Hence, the applicant’s need for the orders sought. It was not in dispute that the respondent still purports to go about her business as if she is still the mayor. After being informed of her removal from office she attended the “Mayor’s Cup” preparatory meeting in East London for all mayors falling within the Amatola District Municipality, as if she was representing the applicant.

[6] The respondent who contends that her Constitutional right to fair administrative action was violated, opposed the application on the grounds that the resolution adopted to remove her from office was invalid because no proper procedure was followed. She submitted that because the first meeting, where the notice of motion for her removal was tabled, was not convened by her, it was unlawful. She contended that no voting took place at the meetings as contemplated in section 160(3) of the Constitution, 108 of 1996, in that the councillors who adopted the resolution were not given an opportunity to actually vote on the notice of motion which was (unanimously) adopted. She further argued that because the resolution in question was adopted in her absence, the audi alteram partem principle was flouted, and resulted in her being deprived of a fair hearing. According to her, the procedural flaws in the process rendered the resolution null and void.

[7] The respondent also challenged the allegation regarding her alleged unlawful occupation of the applicant’s property in Kei Mouth. According to her she was in lawful occupation of the house because the applicant’s council’s permission was obtained through the applicant’s Manager: Administration and Assets. This was disputed by the manager in question, Mr Dicks, in an affidavit. She also blamed her continued (and apparently reluctant) occupation of this house on the applicant’s failure to reconstruct or repair her house in Komga which was burnt down in June 2006 in an arson attack by disgruntled residents, as I understand it.

[8] The respondent did not bring any application to review and set aside the resolution to remove her from office. She also instituted no other proceedings seeking her reinstatement. Even if this urgent application brought by the applicant (the Municipality) was dismissed, the respondent still remains removed from office. She no longer is the Mayor of Komga, the Great Kei Municipality or any other Municipality. She is however still a ward councillor, according to the papers filed by the applicant.

[9] The history which preceded this application is briefly set out hereunder.

[10] On 31 July 2007, the respondent forwarded a sick note to the applicant, wherein the medical practitioner who signed it, noted that she had been diagnosed with bronchitis, arthritis, backache and stress and should be booked off until 1 September 2007.

[11] Sick leave for the month (August 2007) was approved by the applicant’s council. However, before the sick leave period expired, the respondent advised the applicant on 17 August 2008, that she will be taking “indefinite” leave. Her “indefinite” leave was approved, but unfortunately not qualified or queried. At the end of March 2008, more than seven months later, during which period she received her full salary, did the applicant take action. It gave notice of its intention to withdraw the respondent’s powers on 31 March 2008. Apparently the applicant decided to follow a different course to deal with her, because that decision or resolution was rescinded on 7 April 2008. She did not report at the applicant’s offices until 9 April 2008, eight months later, and did so only at the behest of the applicant in the circumstances set out below. According to her, the arson attack of 2006 and the applicant’s failure to reconstruct her house caused her stress, amnesia, blackouts and depression. No medical evidence was produced to the effect that she was for these reasons unfit to work for an indefinite period.

[12] On 8 April 2008, she was given 48 hours’ notice to report for duty. She reported the following day. She said that she scheduled a meeting with senior managers (not the council) for 15 April, the following week. When she was requested on 11 April by the Chief Whip to convene a council meeting on 15 April 2008, she informed him that she would call a council meeting in due course.

[13] In her affidavit opposing the application, she stated that she understood section 29(1) of the Municipal Structures Act 117 of 1998, to mean that she had the sole prerogative to decide when and where the Council meets unless the majority of the councillors request a meeting. This is what they then did, because she failed to convene a meeting.

[14] On 15 April 2007 eight of the applicant’s twelve councillors were present at a meeting where all eight of them signed a petition requesting a special meeting to be held on 17 April 2008, to discuss various items. Item 2 for discussion was the respondent’s indefinite leave and Item 6 was her removal from her office. The following day the respondent was sent a copy of the minutes of the meeting held, and a copy of the signed petition. The notice warned that if she failed to convene such a meeting it will proceed in her absence, and so it did.

[15] Section 29 of the Municipal Structures Act, provides:

“The Speaker of a Municipal Counsel decides when and where the councils meets subject to section 18(2) but if a majority of the councillors request the Speaker in writing to convene a council meeting, the Speaker must convene a meeting at a time set out in the request”.

[16] The councillors were clearly entitled in terms of the above section, to request the respondent to convene a meeting. The respondent may have been given short notice, but she did not raise it as an inconvenience at the time, and did not request a postponement. If the speaker or mayor fails to convene a meeting if requested, the imperative terms of section 29 permits the majority of the councillors to convene such a meeting.

[17] A meeting was held on 17 April 2008, and under Item 6, the notice of motion of the respondent’s removal from office was tabled and it was resolved that she be given notice to show cause, at a special meeting to be convened on Thursday 24 April 2008, why a resolution to remove her from office should not be adopted. She was given notice of the aforesaid, and seven days within to respond in writing so that her “responses” could be considered by the council.

[18] The respondent did not make any representations to the council and did not attend the meeting of 24 April 2008. Her absence and silence was justified according to her, because she did not convene the meeting, nor the previous meeting of 15 April 2008. The meeting proceeded and the council resolved that the respondent be removed from her office as mayor and speaker and return all council property to the Municipal Manager, (including the keys to the Kei Mouth house). The respondent did not accept the outcome of the resolution and refused to hand over the keys to her office.

[19] The relief sought in this application is not tantamount to a review of the resolution to remove the respondent from office, even though the application was opposed as if it were. The application concerns the unhindered access to an office to enable the new mayor to do the mayor’s work, and to serve the rate payers of the area.

[20] In my view, the applicant was entitled to the relief it sought. The resolution to remove the respondent from the office of speaker and mayor was in a in proper form and it was adopted unanimously by the councillors present. In terms of section 29(1) of the Municipal Structures Act, the applicant’s council members were entitled to convene the meetings and they gave due notice to the respondent in terms of section 40 of the same Act, of their intention to remove her from office.

[21] The respondent’s decision not to respond to the notices was taken at her peril. It is simply not open to her to complain that she was not given a fair hearing. She elected not to state her case. She can also not complain that she did not convene any of the meetings. She promised to revert to the council about convening such a meeting but never did, as apparently is her wont. Clearly the unanimity with which the resolution was adopted by the eight councillors present, as shown in the minutes of the meetings, obviated any need for council members to conduct a physical ballot in the conventional sense. There was no need for it, because there were no dissenters amongst the councillors. For all practical purposes the councillors did vote by their conduct.

[22] The applicant need not have demonstrated on these papers that the decision of the applicant’s council to remove the respondent from office, could withstand judicial scrutiny in review proceedings. In order to obtain the relief sought in the notice of motion, the application only needed show that it had a clear right of access to the former mayor’s office and that if she did not vacate it, the applicant, would suffer prejudice. It also had to show that there was no other remedy available to it in these circumstances. All these requirements were satisfied. Prima facie, the applicant followed proper procedures in removing the respondent as mayor and had valid reasons to do so.

[23] The imperfections (if there were any), in the procedures to remove the respondent from office, were mostly as a result of the respondents own actions or rather inaction. She is no longer the mayor. She must accept it or challenge her removal from office in proper legal proceedings. The respondent is not entitled to hold on to her position by absence, inaction and ignoring reality. She was not appointed mayor for the duration of her lifetime.

[24] The merits of whether the respondent’s occupation of the Kei Mouth house is lawful or not need not be determined in this judgment. No relief was sought with regard thereto. The breakdown of trust seems to have been the more important consideration for the resolution in question. The chronology of events, the former mayor’s decision to take indefinite leave for herself and her subsequent long absence, all had to be contributing factors in this breakdown of trust between her and the applicant’s council, not to mention the rate payers.

[25] Consequently, I am satisfied that on these papers the applicant was entitled to the relief sought in its notice of motion and I gave an order last week in the following terms: The respondent was to vacate the mayor’s offices situated in the Komga Municipality Building, Main Street, Komga and was to hand over the keys of the aforesaid offices to the applicant’s municipal manager with immediate effect. The respondent was also ordered to pay the costs of this application.

____________

E REVELAS

Judge of the High Court

---