judgmentletter of the provincial secretary dated 05 march 20014 and the e-mail from the iec dated 06...
TRANSCRIPT
CASE NO. 138/2004
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
DAVID KESEILWE MOGASHOA PLAINTIFF
and
AFRICAN NATIONAL CONGRESS 1ST DEFENDANT
THE GREATER TAUNG MUNICIPALITY 2ND DEFENDANT
THE INDEPENDENT ELECTORAL COMMISSION 3RD DEFENDANT
____________________________________________________________________
___________
JUDGMENT
____________________________________________________________________
___________
MOGOENG JP.
INTRODUCTION
[1] This is an action for damages caused by the alleged unlawful termination of the
Plaintiff’s appointment as Mayor of the Greater Taung Municipality. These
damages are in the form of a loss of income allegedly suffered by the Plaintiff
from the date the Municipality stopped paying his salary as Mayor until his term
of office as Mayor would expire.
[2] The first Defendant is the African National Congress (“the ANC”), a political
party registered in terms of the electoral laws of South Africa.
[3] The second Defendant is the Greater Taung Municipality (hereafter also
referred to as “the Municipality”), a municipality established in terms of the Local
Government Municipal Structures Act No. 117 of 1998 (“the Municipal Act”).
[4] The third Defendant is the Independent Electoral Commission (“the IEC”), a
statutory body, responsible for overseeing the local government, provincial and
national government elections, created in terms of the Electoral Commission
Act No. 51 of 1996. No order is sought against it.
[5] In addition to the ANC’s and the Municipality’s alleged liability for the payment
of damages to the Plaintiff, three preliminary issues also fall for determination.
The first is the Plaintiff’s application for leave to amend his Particulars of Claim,
the second are the special pleas by the ANC and the Municipality that the claim
has prescribed and the third is that the Plaintiff has failed to give notice to the
Municipality in terms of Act No. 40 of 2002. I find it convenient to deal first with
the background and the merits of the case and then with the application for
leave to amend and lastly with the points in limine. The background to this
action follows below.
BACKGROUND
2
[6] I have made a deliberate attempt, in this factual background, to focus more on
facts that are strictly necessary for the determination of the issues in this matter.
This background is based on the evidence of the Plaintiff and several ANC
leaders1 as well as a witness for the Municipality.2 Save for one or two
exceptions, it is generally unnecessary to make credibility findings since the
issues are capable of being decided on the facts which are common cause or
not disputed.
[7] The Plaintiff has been a member of the ANC since 1990. He was endorsed by
the ANC to stand as a candidate in the local government elections which took
place on 05 December 2000. He was duly elected as a councillor for the
Municipality. After the elections, the ANC Provincial Executive Committee
(“PEC”) held a meeting on 08 December 2000 to, among other things, identify
councillors who were to be endorsed by the PEC for mayoral positions. Mr
Itumeleng Makgalemane was nominated for the mayoral position in the
Municipality but was rejected by the delegates from Taung. Consequently, no
decision was taken about the mayoral candidate for the Taung Municipality
then.
[8] The first council meeting for the Municipality was scheduled to take place on 13
December 2000. This meeting was preceded by a caucus comprising the
newly elected ANC councillors and the members of the Taung Regional
Executive Committee (“the REC”) of the ANC. It was at that caucus, that the
1 Mr Siphiwe Ngwenya, the Provincial Secretary of the ANC in 2000/2001; Dr Molefi Sefularo MP, member of the PEC in 2000/2001, and the current Provincial Deputy Chairperson of the ANC; Mr Elliot Mayisela, then Acting Provincial Secretary; Reverend Mvambo, PEC member in 2000/2001; Mr Letlhogile Moseki MP, also PEC member in 2000/2001.
2 Mr Charl du Plessis, the Acting Town Manager in 2000/2001.
3
ANC councillors and other ANC members were informed that Councillor Dipuo
Agnes Itumeleng was endorsed by the PEC for the mayoral position. It is
common cause that she withdrew from that race at the same meeting.
Consequently, the Plaintiff was nominated and endorsed by the REC and the
ANC councillors for the mayoral position. This took place in the presence of
Reverend Mvambo and Mr Letlhogile Moseki who were the members of the
PEC deployed to the Taung area to coordinate the ANC election campaign
there. These PEC deployees testified that they made their disapproval of the
nomination of the Plaintiff in terms of this procedure known to the caucus, and
even suggested that the approval of the PEC be sought before the Plaintiff
could be elected by the Municipal Council as Mayor. This is denied by the
Plaintiff. It is undisputed, though, that the Plaintiff was not endorsed by the
PEC for the mayoral position and that neither he nor any of the other REC
members were keen to know what the PEC thought of him as a mayoral
candidate.
[9] The caucus was followed by the meeting of Municipal Council on the same day.
The Plaintiff was elected as the Mayor of the Municipality. Reverend Mvambo
and Mr Moseki MP produced an undated report about the meeting preceding
the election of the Plaintiff to the mayoral position. For some reason, their
objection to the nomination of the Plaintiff as a mayoral candidate, their
suggestion that council meeting be postponed to allow the PEC the opportunity
to consider another mayoral candidate in the light of Councillor Dipuo
Itumeleng’s withdrawal, as well as the alleged intimidation of Councillor
Itumeleng which led her to withdraw, do not appear in the report. This report
was submitted to the PEC. It was on the basis of that report that the steps set
out below were taken against the Plaintiff.
4
[10] On 22 January 2001, the PEC held a meeting at which it was informed that the
Provincial Working Committee3 (“PWC”) of the ANC had resolved to withdraw
the Plaintiff as Mayor and from council with immediate effect. On the same day,
the acting Provincial Secretary, Mr Elliot Mayisela, wrote letters to the Plaintiff
and to the Acting Town Manager, Mr Charl du Plessis (“Mr du Plessis”),
notifying them of the withdrawal of the Plaintiff as an ANC councillor from the
Greater Taung Municipal Council (“Council”) with immediate effect. Council
held a meeting on 26 January 2001, which the Plaintiff did not attend. Nothing
was said at that meeting about the removal or withdrawal of the Plaintiff from
his position as a Mayor.
[11] Mr du Plessis at some stage sent the following letter dated 02 February 2001 to
the Plaintiff:
“VACATION OF OFFICE AS COUNCILLOR: NOTICE FROM THE NORTH WEST PROVINCIAL OFFICE OF THE ANC
The attached letter refers.
Please take note that I have been informed by the Provincial Office of the ANC that you have been suspended from the ANC pending the outcome of the disciplinary hearing.
Section 27c[sic] of the Local Government Municipality[sic] Structures Act, 1998 states ‘A councillor vacates office during a term of office if that councillor (c) was elected from a party list referred to in Schedule 1 or 2 and ceases to be a member of the relevant party.’
After consultation with the IEC, I was advised that they concur with the attached letter and that you therefore cease to be a member of council.”
3 Rule 20(i) of the ANC Constitution deals with the composition of the PWC. Sub-rule (2) and (3) provide that the PWC shall perform the duties and functions of the PEC to which it shall report and that the PWC shall meet at least once a week.
5
[12] According to Mr du Plessis, attached to the above letter was a letter from the
ANC addressed to him dated 22 January 2001 in the terms set out below:
“SUBJECT: OFFICIAL WITHDRAWAL OF MR DAVID MOGASHOA AS COUNCILLOR
This communiqué serves to officially advice your Council about the decision of the Provincial Executive Committee of the ANC to remove Mr David Mogashoa from its list of ANC Councillors serving in the Greater Taung Council.”
[13] The Plaintiff denies that the latter was the letter referred to in the above letter
dated 02 February 2001. He holds the view and so does his counsel that the
letter of the Provincial Secretary dated 05 March 20014 and the e-mail from the
IEC dated 06 March 20015 are the basis for Mr du Plessis’ letter dated 02
February 2001. I will return to this issue later in the judgment.
[14] The Provincial Secretary of the ANC, Mr Ngwenya, wrote a letter dated 05
February 2001 to Mr du Plessis informing him that Mr Khonkhobe would replace
the Plaintiff as Mayor with immediate effect. On 06 February 2001 council met,
the Speaker announced that notice be taken that Councillor N. Khonkhobe was
replacing Councillor Mogashoa. Thereafter, and at the same meeting,
Councillor Khonkhobe was elected to the position of Mayor.
[15] On 09 February 2001, the Chairperson of the Provincial Disciplinary Committee
(“the PDC”) of the ANC, Mr Jerry Thibedi6 gave the Plaintiff notice of
disciplinary proceedings against him, which was scheduled for 15 Thursday
4 Reproduced at paragraph 25 of this judgment below, but see also paragraph 16. The Provincial Secretary referred to in this judgment is Mr Siphiwe Ngwenya who occupied this office at all times relevant to this case. This is done knowing that, as he said in his evidence in this Court, he is no longer the Provincial Secretary of the ANC.
5 Reproduced at paragraph 25 of this judgment below, but see also paragraph 16.
6 Mr Jerry Thibedi was also the Deputy Chairperson of the ANC in the North West Province in 2000/2001.
6
2001. It is not clear whether this was the 15 of February or some other month.
Presumably it was 15 February 2001. That enquiry is yet to be finalised. It
suffices to say that the PDC did not at any stage impose any sanction on the
Plaintiff.
[16] The Provincial Secretary wrote a letter to Mr du Plessis on 05 March 2001
informing him that the membership of the Plaintiff had been suspended pending
the outcome of a disciplinary hearing. The next day the IEC sent an e-mail to
Mr du Plessis informing him that as at 06 March 2001 the Plaintiff’s party
membership was withdrawn/suspended and that he was no longer a councillor.
Both letters make reference to s 27(c) of the Municipal Act.
[17] After receipt of these letters, the Municipal Executive Committee held meetings
on 06 March 2001 and 12 March 2001. From the minutes of the latter meeting,
under the heading, WITHDRAWAL OF MAYOR FROM COUNCIL, it appears,
and it was also confirmed by Mr du Plessis’ testimony, that a recommendation
was made by Mr du Plessis that “the nomination of the Mayor be revisited
taking into consideration section 27(c) of the Municipal Structures Act,
117 of 1998 and that a date for Mayors’ [sic] assumption of office be
confirmed.” That was done and at the special council meeting of 19 March
2001, a resolution was passed confirming Councillor Khonkhobe as the Mayor
of the Municipality. According to Mr du Plessis, all this was done as a result of
the doubt that council had about the correctness and legality of the procedure
followed by the ANC and the Municipality and to some extent the IEC in
relieving the Plaintiff of his mayoral position. This meeting of 19 March 2001
was the last occasion where the removal of the Plaintiff from council and his
7
replacement with councillor Khonkhobe, as well as the apparent uncertainty
about the legality thereof, was discussed by the Municipality.
[18] The Plaintiff took no legal steps against any of the parties in this matter until the
beginning of 2004. He only then caused the summons commencing this action
to be served, on the ANC on 04 February 2004, and on the Municipality on 05
February 2004. I turn to deal with the validity and the legality of the measures
taken by the ANC and the Municipality to remove the Plaintiff from his position,
since this case turns on the legality of the termination of his appointment as
Mayor.
MEASURES TAKEN BY THE ANC TO REMOVE THE PLAINTIFF
FROM THE MAYORAL OFFICE
[19] It is necessary to closely examine the measures taken by the ANC with a view
to initiating the process of relieving the Plaintiff of his position as councillor and
Mayor in relation to the law that governs the vacation of office by a councillor
and a Mayor.
i) Withdrawal from the party list
[20] The first written communication by the ANC to the Acting Town Manager is the
letter written by Mr Mayisela, in his capacity as the Acting Provincial Secretary,
on 22 January 2001. It says that:
8
“ . . . this communiqué serves to officially advise your council about the decision of the Provincial Executive Committee of the ANC to remove Mr David Mogashoa from its list of ANC Councillors serving in the Greater Taung Council. This withdrawal is instant and we will revert back to you with the name to fill up the vacancy soon”. (My emphasis)
[21] It is necessary to mention that the heading of the letter is “official withdrawal
of Mr David Mogashoa as Councillor”. This letter is, by and large, a fair
reflection of the PWC decision which was communicated to and apparently
endorsed by the PEC at its meeting of 22 January 2001. The first sentence of
the letter of the Provincial Secretary dated 05 March 2001 also states that ‘the
ANC since resolved to remove the aforesaid former councillor from its party list’.
Evidently this was an attempt to have the Plaintiff removed from his position as
councillor and Mayor in terms of items 19 and 20 of Schedule 1 to the Municipal
Act, which will be dealt with a bit later in this judgment.
[22] In order for the effect of a withdrawal of a member from a party list by his/her
party to be properly understood, items 11, 18, 19 and 20 must be considered
together, as I do below.
22.1 Under the heading “party lists” item 11(1) and (2) of Schedule 1 to
the Municipal Act provides that:
“11. Party lists.— (1) The number of candidates on a list submitted by a party may not exceed double the number of seats in the metro or local council to be filled from party lists.
(2) The candidates’ names must appear on the list in the order of the party’s preference, commencing with the first in order of preference and ending with the last.”
9
It follows that candidates would ordinarily be on a party list for the
purpose of contesting for seats in the specific council on behalf of their
respective parties. It is from that party list, in which their names appear in
the order of the party’s preference, that some of them become elected as
councillors, and the rest are kept on the list in the event of a vacancy.
22.2 The position which arises when a councillor ceases to hold office is
regulated by item 18(1)7 read with item 20(1) and (2)8 of Schedule 1 to
the Municipal Act. The essence of item 18 is that ordinarily, the Chief
Electoral Officer is duty-bound to declare in writing the person whose
name is at the top of those remaining on the applicable party list9 to be
elected to the vacancy created when a councillor, who was elected from
the party list, ceases to hold office. The exception to this rule is when in
terms of item 20(1) a party, of which that councillor is a member would
have supplemented, increased or changed its list. Such a change could
result in a different order of preference being brought about. In other
words, the significance of the party list here is to regulate how those
members of the party who would still be on the party list, would get the
opportunity to be councillors in the event of a vacancy arising due to a
councillor vacating office for whatever reason.
7 18. Filling of vacancies.— (1)(a) If a councillor elected from a party list ceases to hold office, the chief electoral officer must, subject to item 20, declare in writing the person whose name is at the top of the applicable party list to be elected in the vacancy.(b) Whenever a councillor referred to in paragraph (a) ceases to hold office, the municipal manager concerned must within seven days after the councillor has ceased to hold office, inform the chief electoral officer accordingly.
8 20. Filling vacancies and changing the order.— (1) A party may supplement, change or increase its list at any time, provided that if a councillor elected according to a party list, ceases to hold office, the party concerned may supplement, change or increase its list by not later than 21 days after the councillor has ceased to hold office. The vacancy must be filled as soon as the party in question has supplemented, changed or increased its list, but not later than 14 days after expiry of the 21-day period.(2) If a party supplements, changes or increases its list in terms of subitem (1) it must provide the chief electoral officer with an amended list.
9 11(2) The candidates’ names must appear on the list in the order of the party’s preference, commencing with the first in order of preference and ending with the last.
10
22.3 I turn to item 19 of Schedule 1 to the Municipal Act which deals with how
vacancies arise on the party lists. That, by the way, is the only item or
section that makes reference to the party’s withdrawal of its member’s
name from a party list. That item reads thus:
“19. Causes of vacancies on lists.— A person who is a candidate on a party list ceases to be a candidate and a vacancy arises in the list when the party withdraws the person’s name by written notice to the chief electoral officer, or when that person—
a) assumes office as a councillor;b) resigns from the list by written notice to the electoral
officer;c) becomes ineligible to be a candidate;d) is disqualified or removed from the list in terms of any
legislation;e) ceases to be a member of the party for which that
person was listed as a party candidate;f) or cease to be ordinarily resident in the municipality to
which the list relates.”
This item cites a number of instances which would result in a
candidate on a party list ceasing to be a candidate which would in turn
give rise to a vacancy in the list. Two of the instances which are relevant
to this case are “when a party withdraws the person’s name by
written notice to the chief electoral officer and when that person (a)
assumes office as a councillor”. Clearly, only the name of a person
who is still a candidate in the yet-to-be-held elections or the name of a
person who did not make it to council since his/her party did not get
sufficient votes to enable him/her to also be elected to council, or the
extra number of party members who would have remained on the party
list even if their party had won all the available seats, may still be
11
withdrawn from a party list.10 The name of a councillor and/or Mayor,
such as the Plaintiff before his actual removal, was no longer open to
being withdrawn from the ANC party list because he was neither a
candidate nor did he fail to make it to council. The Plaintiff was, prior to
his election to council, an ANC candidate on the ANC party list. He, in
terms of item 19(a) ceased to be a candidate when he “(a) assume[d]
office as a councillor;”.
22.4 The question of the ANC withdrawing the Plaintiff from the list of
ANC councillors serving in the Greater Taung Council and seeking to fill
up the vacancy soon, does not arise in terms of item 19 of Schedule 1 to
the Municipal Act or in terms of any section or item of that Act or any
legal authority that I am aware of, at all. It was not, therefore, competent
of the PWC and the PEC to “withdraw” the Plaintiff as they purported to
do. The withdrawal of 22 January 2001 is, therefore, of no force and
effect and had no legal significance. This must be understood against
the backdrop of how a councillor may lose his/her position in council.
[23] Section 26 of the Municipal Act, deals with the term of office of councillors as
set out below:
“26. Term of office of councillors.— (1)A person—
(a) is elected as a member of a municipal council for a period ending when the next council is declared elected; or
(b) is appointed as a representative of a local council to a district
10 See paragraphs 22.1 and 22.2 above.
12
council for a period ending when the next local council is declared elected, except that where such a person is replaced as a result of the provisions of item 6(a) of Schedule 6B to the Constitution, the newly appointed representative is appointed for the remainder of the replaced representative’s term.
(2) A person assumes office as a councillor when declared elected or when appointed, as the case may be.”
A person assumes office as a councillor when declared elected or when
appointed. Thereafter a councillor would normally remain so elected or
appointed until the next council is declared elected. Otherwise, a councillor
would only vacate his/her office in terms of s 27, which will be considered later
in this judgment.
[24] A Mayor is in turn elected for the duration set out in s 48(4) read with s 5311 of
the Municipal Act but may in terms of these sections vacate office as provided
for in s 48(4) below:
“(4) A mayor and deputy mayor is elected for the duration of that person’s term as a member of the executive committee, but vacates office during a term if that person—
a) resigns as mayor or deputy mayor;b) is removed from office as a member of the executive
committee in terms of section 53; orc) ceases to be a member of the executive committee.”
There has been no suggestion that any of the above instances apply to this
case.12
11 53. Removal from office of executive committees.— (1) A municipal council may, by resolution remove from office one or more or all the members of its executive committee. Prior notice of an intention to move a motion for the removal of members must be given.(2) If all the members of an executive committee are removed, a new election of members and the mayor and, if the municipality has a deputy mayor, the deputy mayor, must be held in terms of sections 45 and 48, respectively.
(3) The election of a member or members of an executive committee following a removal from office in terms of this section, is subject to section 43.12 Except perhaps, in so far as s 48(4)(c) may by analogy, be said to be the same in effect as s27(c) of the Municipal Act.
13
[25] The withdrawal of the Plaintiff from the ANC’s list of councillors and his removal
from his mayoral position did not comply with and could not have been
validated by item 19. There has also not been the termination of the Plaintiff’s
appointment, or his term of office as councillor in terms of s 26 above. He also
did not vacate his mayoral office in terms of s 48(4). It is common cause, that
council did not give the Plaintiff prior notice of its intention to remove him from
its executive committee and that it never passed a resolution to remove him
from that office in terms of s 53. The suspension of the Plaintiff’s party
membership is, however, yet another ground relied on for his removal from
office.
(ii) Suspension of party membership by the Provincial Secretary
[26] What happened was that more than one month after the PEC letter of 22
January 2001 had been written to the Plaintiff and to Mr du Plessis, the
Provincial Secretary wrote a letter dated 05 March 2001 to Mr du Plessis and to
the IEC Provincial Electoral Officer in the following terms:
“RE: WITHDRAWAL OF Mr. DACVID MOGASHOA FROM COUNCIL
The above matter refers.
Take note that the ANC has since resolved to remove the aforesaid former Councillor from its party list. Further note that he has since been summoned for an organizational disciplinary hearing to which he requested postponement in perpetuity. I subsequently, with powers vested upon me, suspend his membership pending the outcome of the disciplinary hearing.
You will note that once membership is suspended, that person
14
temporarily ceases to be a member of the organization. Section 27(c) of the Municipal Structures Act 117 of 1998 provides that a Councillor in that category will therefore have to vacate office.
On the basis of the foregoing, the office of the Provincial Secretary duly submit, with emphasis, that it has complied with the relevant provision of the governing legislation and that there is no indication to lead to any contrary conclusion.”
[27] The approach had shifted from merely withdrawing the Plaintiff from the list of
ANC councillors to combining that removal from the party list with suspending
his membership of the ANC pending the outcome of the disciplinary hearing.
The Provincial Secretary emphatically stated, even in his evidence in Court, that
the suspension constituted compliance with the provisions of s 27(c) of the
Municipal Act on the basis of which the Plaintiff should vacate office. As the
Provincial Secretary put it, his office had complied “with the relevant
provision of the governing legislation”. The IEC’s e-mail message of 06
March 2001 also says that:
“The legal standing is that as of now, Mr Mogashoa’s party membership is withdrawn/suspended and therefore indeed section 27(c) is complied with. Hence Mr Mogashoa is no longer a Councillor. Please note that Head Office also concurs on the interpretation.” (My emphasis)
It is interesting to note that these communiqués by the ANC and the IEC were
written one month after the Plaintiff had been replaced by Mr Khonkhobe as
councillor and Mayor. No reason was advanced by the ANC in particular why
the letter of 05 March 2001 was regarded as necessary, so long after the
removal of the Plaintiff from the mayoral office. The two letters were apparently
designed to retrospectively regularise the Plaintiff’s removal and replacement,
hence council’s meetings of 12 and 19 March 2001 at which the election of
15
Mayor was revisited, on the basis of s 27(c) referred to in both letters.
[28] Section 27(c)13 provides that a councillor vacates office during a term of office if
that councillor was elected on a party list referred to in Schedule 1 or 2 and
ceases to be a member of the relevant party. The question is when and how
the Plaintiff ceased to be a member of the ANC? There are two different ways
in which, according to the ANC, the Plaintiff did at some stage cease to be a
member of the ANC albeit temporarily. The first is the Provincial Secretary’s
letter of 05 March 2001 to the effect that “I subsequently, with powers vested
upon me, suspend his membership pending the outcome of the
disciplinary hearing”. The second is Rule 4.18 of the ANC Constitution.14
[29] Nothing in the ANC Constitution empowers the Provincial Secretary to suspend
a member of the party as he purported to do. On the contrary, Rule 26.8 of the
ANC Constitution specifically vests the power to temporarily suspend the
membership of a member upon the Provincial Disciplinary Committee (“PDC”),
the National Disciplinary Committee (“NDC”) or the National Working
Committee (“NWC”). In his evidence, the Provincial Secretary, Mr Ngwenya,
said that when he suspended the Plaintiff’s membership of the ANC, he was
acting on behalf of both the PEC and the PWC since he is the only full time
member of the PEC and the PWC who was always in the office to carry out the
duties of the PEC and the PWC in between their meetings. Not only has
neither the PEC nor the PWC ratified the suspension of the Plaintiff, they also
do not have the constitutional authority to suspend the membership of a
13 Section 27(c) was subsequently deleted by s 2 of Act 20 of 2002.
14 (as amended by and adopted at the 50th
National Conference, December 1997). This is the version of the ANC Constitution that applies to this action.
16
member. It is the PDC which has that authority. When this was put to Mr
Ngwenya under cross-examination by Mr Ellis, for the Plaintiff, Mr Ngwenya
said that since the PDC is a sub-structure of the PEC, it accounts to the PEC
and by analogy cannot be heard to lay claim to any power or authority which the
PEC does not itself have. Mr Ngwenya’s response is only partially correct, and
that is to the extent that the PEC has a say in constituting the PDC. Beyond
that, there is nothing in the ANC Constitution which suggests that the PEC or
the PWC may itself carry out the functions of the PDC. The appendix to the
ANC Constitution confines the powers to discipline, apart from the branch and
regional disciplinary structures which deal with minor misconducts, to the PDC,
the NDC and the NWC. Under the heading adjudication, the Provincial
Disciplinary Committee is given the power to make a finding and a ruling based
on the facts and on its own, without any deference to the PEC, to decide on a
penalty such as a suspension or expulsion from the ANC. From the PDC, as
the highest disciplinary structure in the Province, an appeal may either lie with
the NDC or the NWC.
[30] It cannot, therefore, be correct to say that in terms of the ANC Constitution
either the PEC or the PWC had somehow and at some unspecified stage
delegated the power to suspend the Plaintiff to the Provincial Secretary. Not
only did Mr Ngwenya fail to name the Provincial structure of the ANC that
expressly vested him with the power to suspend the Plaintiff, he could not
specify the date when and the place where that authority was vested in him. He
could also not produce any written proof that such enormous powers were
indeed vested in him as an individual. In my view, this is not the kind of power
that any office-bearer may assume that he or she has. It must be expressly
conferred upon a person or structure, by the Constitution of the party. Apart
17
from the PEC and the PWC’s want of constitutional authority to exercise and to
delegate the power to suspend, none of these structures at any stage purported
to exercise the power to suspend the Plaintiff, presumably because they know
that they do not have that power. It is only the Provincial Secretary who
endeavoured to do so in terms of the letter of 05 March 2001 addressed to Mr
du Plessis and to Mr Khotso Khasu of the IEC. In any event, this damage-
control exercise came too late since the Municipality had already acted upon
the letter of 22 January 2001 by electing a new Mayor on 06 February 2001.
[31] The suspension of the Plaintiff by the Provincial Secretary was a nullity. It was
on that nullity that the ANC and the IEC relied to arrive at the conclusion that
the Plaintiff had to vacate his office because in their view the suspension of his
membership of the ANC constituted compliance with the provisions of s 27(c) of
the Municipal Act. In sum, s 27(c) was not complied with. I will now deal with
the alleged automatic termination of the Plaintiff’s membership of the ANC in
terms of Rule 4.18 of the ANC Constitution.
(iii) The automatic termination of party membership in terms of Rule 4.18
[32] A related contention advanced on behalf of the ANC was that the Plaintiff
automatically ceased to be a member of the ANC in terms of Rule 4.18 of the
ANC Constitution when he allowed himself to be nominated for, and to be
appointed to, the position of Mayor. This rule states that:
“Any member of the ANC who stands in an election for local government, provincial or national government elections or acts as the election agent or canvasser of a person standing for such election in opposition to a candidate duly endorsed by the PEC or NEC shall be
18
ineligible to be or remain a member.”
[33] The evidence given by the aforementioned senior members of the ANC in this
Province and the submission by counsel for the ANC, Mr Swart, based on Rule
4.18, vacillated between the automatic suspension and the automatic dismissal
of the Plaintiff as a result of his engagement in conduct which contravened this
sub-rule. What the effect of the contravention really is or was, depends, in my
view, on the correct interpretation of Rule 4.18 and whether the pre-requisites
have been met for its violation and for its application. Those requirements are:
33.1 there must be local government, provincial and national
government elections either coming or in progress;
33.2 the offending ANC member must either be a candidate or be an agent or
canvasser of a candidate in those elections;
33.3 the offending ANC member must be a candidate or be an agent or
canvasser of a person standing in opposition to another ANC member;
and
33.4 that other ANC member must have been duly endorsed by the
PEC or the NEC.
[34] In our case, the alleged offensive conduct of the Plaintiff took place on 13
December 2000, which was some 7 days after the local government elections
had actually taken place. As stated above, the Plaintiff had been dully
endorsed by the PEC to stand in the local government elections for the Greater
19
Taung Municipality. The alleged offence was that the Plaintiff made himself
available for a mayoral position, when he had not been similarly endorsed for
that position.
[35] Having listened to the evidence of those members of the past and present
Provincial leadership of the ANC I was after careful scrutiny not able to find
anything in Rule 4.18 which even remotely suggests that this Rule was intended
to apply to the election of candidates to the government structures at a local,
provincial and national government levels. While I accept that constitutions
cannot reasonably be expected to be written so elaborately as to provide for
every conceivable eventuality, their provisions must be couched in the terms
which give an obvious or reasonable indication to every member of the
organisation of the situations to which they are intended to apply. Their
interpretation should not have to be overstretched to a point of virtually rewriting
the relevant provision, in order for that clause or rule to apply to a particular
situation. Having to bend over backwards to have them apply to a particular
situation is a clear indication that they were not intended to apply to that
situation.
[36] Witnesses for the ANC testified about the existence of a deployment committee
which had the responsibility to deploy members to positions such as mayoral
positions. The Court was, however, not referred to a clause in the Constitution
from which that committee derives its existence and authority. There is nothing
about Rule 4.18 or any provision in the ANC Constitution to suggest that Rule
4.18 applies to the election of local government office-bearers or that it forbids
any ANC member to run for government office without the endorsement of the
PEC or the NEC.
20
[37] Assuming, though, that Rule 4.18 does apply to the election of a local
government office-bearer, the fact of the matter is that when the Plaintiff
accepted nomination and stood for the mayoral position, there was no councillor
endorsed by the PEC or NEC willing and able to be elected to the mayoral
position whom the Plaintiff was opposing. He was duly elected by fellow ANC
councillors to that position in terms of the procedure set out in Schedule 3 to the
Municipal Act. None of the internal practices, policy positions or traditions of
the ANC which might be known to regulate appointments to positions in
government and parastatal structures were disclosed to this Court, let alone
relied on by the ANC for seeking to relieve the Plaintiff of his position as
councillor and Mayor. They cannot, therefore, be factored into the decision-
making process in this matter. This Court can only base its decision on what
the parties themselves actually relied on for their actions. The Plaintiff did not
violate Rule 4.18. Even if I am wrong in finding that the Plaintiff has not
contravened the provisions of Rule 4.18, I think that the view held by the ANC
as to how this rule comes into effect in practice is incorrect.
[38] The ANC’s understanding and the understanding of their counsel of the
practical application of Rule 4.18, is that when an ANC member is alleged to
have or is accused by fellow members of having contravened Rule 4.18, that
member automatically becomes ineligible to be or to remain a member of the
ANC. That is, with respect, an incorrect interpretation of Rule 4.18.
[39] In the third last paragraph of the preamble to the ANC Constitution, the ANC
describes its fundamental goal as being to construct a non-racial, non-sexist,
democratic society in South Africa. The character, the aims and objectives of
21
the ANC as set out in Rules 2 and 3 of its Constitution are essentially to the
same effect. The ANC obviously cannot achieve that goal of constructing a
democratic society, based on fairness and justice, unless it operates in terms of
the same democratic principles. Its commitment to those principles, even in
disciplinary matters appears in the appendix to the ANC Constitution. It is
stated there that the ANC disciplinary procedure is just and fair, its charged
members are presumed innocent until proven guilty and those members have a
chance (which I think should be elevated to a right), to defend themselves. All
this is irreconcilable with the interpretation of Rule 4.18 which says that there is
not even the need for any person or structure to pronounce upon the
suspension or dismissal of a member, since an allegation of a contravention of
Rule 4.18 is enough to attract an automatic suspension or dismissal.
[40] What Rule 4.18 means is that when facts have been established by any
properly constituted disciplinary structure of the ANC, such as the PDC, NDC or
NWC, that a member was a candidate in the local government, provincial and
national government elections or has acted as an election agent, or canvasser
of a person standing for such election in opposition to a candidate who was duly
endorsed by the PEC or the NEC, that disciplinary structure is generally left with
no discretion but to expel that member from the ANC. Rule 4.18 was not and
could not have been intended to presume a member, accused of being an
independent candidate or of supporting or canvassing for an ANC member who
is a rebel candidate in opposition to a duly endorsed candidate, to be irrefutably
guilty and automatically suspended or expelled from the ANC. Such an
interpretation runs against the presumption of innocence set out in the appendix
to the ANC Constitution, on the disciplinary procedure,15 as well as against the
15 The objective of disciplinary procedure is to ensure that in all disciplinary proceedings:
22
democratic values and principles which the ANC Constitution says are dear to
the ANC and that it cherishes.16 It would be a stand-alone clause which is
hostile to the overall spirit of the ANC Constitution. The worst that could
happen to a member of the ANC who is alleged to have fallen foul of Rule 4.18,
before a disciplinary hearing is held, would be for the PDC, NDC or NWC to
suspend his or her membership temporarily. The suspension cannot be
automatic. It must still be pronounced upon by any one of the structures which
are vested with the power to do so.
[41] Accordingly, I am satisfied that there is also no merit in the evidence given and
the submission made on behalf of the ANC that the Plaintiff lost his position in
council and his mayoral position consequent upon his automatic suspension or
dismissal in terms of Rule 4.18 of the ANC Constitution. Neither the PDC, the
NDC nor the NWC, which are vested with the power to temporarily suspend a
member’s membership for whatever reason it deems meet, including a
suspected contravention of Rule 4.18, suspended or dismissed the Plaintiff from
the ANC. On the contrary the PDC charged and called upon the Plaintiff to
answer charges relating to, a contravention of, among other Rules, Rule 4.18 in
February 2001. That hearing has, as I said above, not yet been finalised to
date. Rule 4.18 had, therefore, never been put in operation by any of the
relevant structures of the ANC against the Plaintiff. Rule 4.18 was not
mentioned in any of the ANC correspondence or minutes of its meetings which
relate to the Plaintiff, and it is not and could not have been the basis for having
deprived the Plaintiff of his mayoral position.
- There is a formal procedure. - There is a just and fair procedure. - A member is presumed innocent until proven guilty. - A member has a chance to defend herself or himself. - A member has the right to appeal.
16 Preamble, character and objectives of the ANC as set out in the Constitution of the ANC.
23
[42] In summary, the grounds relied on by the ANC are (i) the withdrawal of the
Plaintiff from the list of ANC councillors and the vacancy thought to have been
created thereby; (ii) the alleged suspension of the Plaintiff by the Provincial
Secretary in his official capacity as such and as the voice and the hand of the
PEC and the PWC; and/or (iii) the alleged automatic termination of the Plaintiff’s
membership of the ANC in terms of Rule 4.18 of the ANC Constitution which
together with or as an alternative to the suspension by the Provincial Secretary
is said to be the basis for reliance on s 27(c) of the Municipal Act by the ANC.
[43] A proper analysis of these grounds points to the unlawful initiation of the
termination of the Plaintiff’s appointment as Mayor by the ANC. When the ANC
wrote the letters of 22 January 2001 and subsequent letters about the
termination of the Plaintiff’s appointment as Mayor there was no legal basis for
doing so. The Municipality cooperated with the ANC to remove the Plaintiff
from his office as Mayor and I will now deal with the role of the Municipality.
24
THE MEASURES TAKEN BY THE MUNICIPALITY TO REMOVE THE
PLAINTIFF FROM HIS MAYORAL POSITION
[44] We know that (i) the Municipality, as they chose to put it in their minutes, took
notice that Councillor Khonkhobe was replacing Councillor Mogashoa; (ii) it
passed resolution 20/2001 in terms of which it elected Councillor Khonkhobe as
Mayor on 06 February 2001; (iii) the Municipality revisited the nomination of the
Mayor taking into consideration s 27(c) of the Municipal Act on 12 March 2001
in terms of resolution 39/2001; and (iv) it confirmed Councillor Khonkhobe as
Mayor for the Municipality on 19 March 2001.
[45] The recognition of Mr Khonkhobe as councillor in the place of the Plaintiff and
his election as Mayor on 06 February 2001, had the effect of officially ending
the Plaintiff’s role in the council as was intended by the ANC. It was incumbent
upon the Municipality to satisfy itself, as it according to Mr du Plessis apparently
attempted to do, that a proper legal basis existed for recognising a new
councillor, allowing the election of a new Mayor to take place, and I may add
paying that new Mayor in the stead of the previously elected Mayor. The
Municipality failed to do so to the detriment of the Plaintiff.
[46] Both the ANC and the Municipality realised, at some stage, that the procedure
they had followed and the grounds they relied on for removing the Plaintiff from
his mayoral position and replacing him with Councillor Khonkhobe were flawed.
This explains why, after the Acting Provincial Secretary of the ANC had written
a letter dated 22 January 2001, which correctly conveyed the essence of the
PEC decision of 22 January 2001, and after the Municipality had acted upon it
25
on 06 February 2001, more was still done to address the same issue which had
already been addressed. The Provincial Secretary’s letter and the IEC’s e-mail
dated 05 March 2001 and 06 March 2001 respectively, had to be written to Mr
du Plessis to try and meet the requirements for the lawful termination of a
Mayor’s appointment. Mr du Plessis’ letter dated 02 February 2001 was on the
probabilities, also written after he had received these letters. All three letters
bear such striking similarities that on the preponderance of probabilities, it
cannot be a coincidence that Mr du Plessis’ letter says what these letters of the
ANC and the IEC also say. The Provincial Secretary made reference, for the
first time in his letters to Mr du Plessis, to disciplinary measures against the
Plaintiff in his letter dated 05 March 2001 and so did Mr du Plessis in his letter
dated 02 February 2001. They all refer to the suspension of the Plaintiff’s
membership of the ANC and that s 27(c) of the Act applies. To show that s
27(c) must only have become a consideration for Mr du Plessis after he had
received this letter of the ANC and the IEC’s e-mail, it was only after 05 March
2001, to be specific on 12 March 2001, that the Municipal Council referred to s
27(c) of the Municipal Act in its minutes at Mr du Plessis’ instance. If Mr du
Plessis’ letter dated 02 February 2001 had already been written as at 06
February 2001, why then was no reference made to s 27(c), in the minutes of
the council meeting of 06 February 2001? I find that, for whatever reason, Mr
du Plessis had dated his letter 02 February 2001 when it was in fact only written
after 05 March 2001. The Plaintiff could not, therefore, have been served with
any written notice on 02 February 2001 to vacate office as alleged by Mr du
Plessis.
[47] It cannot be stressed enough that whatever reason a political party might choose to rely on to remove its member from a mayoral position, that party’s decision cannot become effective unless endorsed and acted upon by the relevant Municipal Council. Council has a crucial and decisive role to play in causing councillors or
26
Mayors, as the case may be, to actually vacate office.
[48] When a political party writes a letter to a Municipality to the effect that its
member who is a councillor or Mayor has ceased to be a member, a
responsible municipality is not to rubber-stamp what the party says. It has to
satisfy itself that what the party says to that local government is correct and is
sanctioned by the law as set out in the Municipal Act. Only thereafter, may it
give effect to the changes desired by the party. Failure to so satisfy itself would
be a serious dereliction of duty. Mr du Plessis, and by extension council, knew
this and made an unsatisfactory and belated attempt to satisfy himself that the
time was ripe for the Plaintiff to be relieved of his position, after the Plaintiff had
effectively been removed from his position and replaced by Mr Khonkhobe.
[49] It is the Municipality that determined the cut-off date of its ties with the Plaintiff
and 06 February 2001 was the cut-off date. Neither the date on which the party
decided to withdraw the Plaintiff as Mayor, nor the date on which Mr du Plessis,
without any apparent prior involvement of the Municipal Council, allegedly
informed the Plaintiff to vacate office, are the dates on which the Plaintiff’s
appointment as Mayor was terminated. As I said above, the effective date is 06
February 2001. All the instances for the vacation of office by councillors in s 27
and by Mayors in s 48(4) read with s 53 have to be formalised by council by
either ‘taking notice’ of the vacation of office or resolving to remove from office
or electing a replacement, whatever terminology it may choose to use. Until
then, we only have a decision by a political party which may be carried out or
rejected by Council.
27
[50] The case of Marais v Democratic Alliance17 bears some similarities to this
matter. Just as in this case, ‘[n]owhere in the constitution [of the
Democratic Alliance] was provision made for any power to remove a duly
elected official, such as a mayor, from office’.18 I also found the following
remarks from the same case apposite:
“[53] Clause 9.3 of the constitution, to which Mr Gauntlett referred us in this regard, deals with the powers of the NMC [National Management Committee]. In terms thereof it is required to ‘perform all those functions normally associated with the effective and efficient management of a political party in South Africa, and shall, subject to this constitution and the law of the country, have all those powers necessary to perform those functions’. The power to compel a mayor or any other functionary of a city council to resign is not particularised as such a function in clause 9.3.1—9.3.5, and can clearly not be regarded as being ‘normally associated with the effective and efficient management’ of the respondent.
[54] Even if the constitution did provide for such a power, it is, in terms of clause 9.3 thereof, subject to the law of this country. Section 58 of the Local Government: Municipal Structures Act 117 of 1998, expressly provides that only the relevant municipal council has the power, by resolution properly taken, to remove an executive mayor from office. It may well be that the applicant’s membership of the City Council of Cape Town, and his subsequent election as Mayor, might be attributed to political decisions taken by the respondent prior to the local government elections. Once elected, however, he was no longer a ward candidate of the respondent, but a duly elected municipal official whose powers and functions, and indeed his retention of office, were subject to the provisions of the said Act.
[55] It follows that, because the NMC was not empowered to take a decision to remove the applicant from his office as Mayor of Cape Town, its first decision was ultra vires the respondent’s constitution and hence invalid. Inasmuch as the second decision, namely to terminate
17 [2002] 2 ALL SA 424 (C).
18 Page 436, the last sentence of para [44].
28
the applicant’s membership of the respondent, arises from the applicant’s failure to comply with the first decision, it was equally invalid.” (My emphasis)
[51] The Municipal council, was in this case the body with the power and authority to
carry out or reject the ANC’s decision. It had elected the Plaintiff to the
executive committee and to the mayoral position and had the power to remove
him from office in terms of s 48 read with s 53 of the Municipal Act. It is the
body that paid the Plaintiff and which therefore had the authority to decide
whether to keep on paying the Plaintiff as its Mayor or not. For this reason, the
Plaintiff lost his mayoral office from 06 February 2001 when council, in its own
way, sought to recognise the person put forward by the ANC as a replacement
for the Plaintiff and elected that person to the position of Mayor on the same
date.
[52] I turn now to deal with the application for the amendment of the Particulars of
Claim dated 20 April 2006, the special plea of prescription and the special plea
relating to the Plaintiff’s alleged failure to notify the Municipality of the action in
terms of Act 40 of 2002.
29
PRELIMINARY ISSUES
[53] A proper determination of these preliminary issues depends on the evidence
that was led in this matter in respect of the merits. It was, therefore,
inescapable that all the evidence be led first and the merits be dealt with before
the application for leave to amend and the points in limine are dealt with.
i) The application for leave to amend the Particulars of Claim
[54] At the end of the trial, an application was made for leave to amend the Plaintiff’s
Particulars of Claim. The amendment is intended to bring the Particulars of
Claim in line with the Plaintiff’s evidence and to a certain extent, with the
minutes of council’s meeting of 06 February 2001.
[55] Paragraph 7 of the Plaintiff’s Particulars of Claim reads that:
“The Plaintiff was informed on 4 February 2001, by the second Defendant, that his membership of the first Defendant has been suspended pending the outcome of a disciplinary action.”
Leave is sought to amend this paragraph to read that:
“The Plaintiff was informed on 6 February 2001 by the second Defendant that it was resolved by the second Defendant to substitute him with Mr Nicholas Khonkhobe as Mayor.”
The rest of the amendments applied for relate to reducing the alleged
remuneration of the Plaintiff as Mayor, stated at paragraph 8 of the Particulars
of Claim, from R15 000.00 to R9 496.83 per month and changing the amount in
30
prayer 3 from R510 000.00 to R588 803.46.
[56] The ANC did not object to the amendment whereas the Municipality objected
only to the amendment of paragraph 7. The basis for the objection was that the
proposed amendment would not be in line with the evidence of the Plaintiff
since the Plaintiff never testified that the Municipality informed him on 06
February 2001 that it was resolved to remove him from the position of Mayor.
He said that he learnt on 06 February 2001 that he had been removed. Clearly,
there is no objection to changing the date from 04 February 2001 to 06
February. The objection really relates only to whether the amended version
should read ‘it was resolved to remove him’ or ‘he had been removed’
without any reference to ‘resolve’.
[57] I am satisfied that there is no merit in the objection. The Plaintiff testified that
on 06 February 2001, Mr du Plessis informed him that council removed him
from his position as Mayor at its meeting of 06 February 2001 because of letters
from the ANC. The fact that no reference was made to a resolution by council
that he be removed from his mayoral position is really immaterial. The essence
of the proposed amendment and of the Plaintiff’s evidence, as understood by
the Municipality, is basically the same.
[58] The Municipality has failed to disclose what prejudice it stands to suffer in the
event of the Plaintiff being granted leave to amend his papers to bring them in
line with the evidence he gave. Although the application to amend was brought
at the end of the trial, I am satisfied that the Plaintiff has given a reasonable
explanation for the lateness of the amendment applied for, and the Plaintiff is
31
granted leave to amend his Particulars of Claim in terms of the altered version
of the notice of amendment dated 20 April 2006, the essence of which is that
the Plaintiff learnt on 06 February 2001 that he had been removed from his
mayoral position. That is in line with the Plaintiff’s evidence. This then leaves
me with the points in limine to deal with.
ii) Prescription
[59] Both the ANC and the Municipality have raised the special plea of prescription
on slightly different grounds. The ANC pleads that the claim has prescribed
because the Plaintiff’s cause of action against the ANC arose on 22 January
2001 when the Plaintiff was allegedly notified of the PEC’s decision to remove
him from his position as a councillor. The Municipality relies on the fact that it
notified the Plaintiff to vacate his mayoral office on 02 February 2001 and that,
according to the Municipality, is the date from which prescription began to run.
The Plaintiff’s failure to attend any council or executive committee meeting
subsequent to such notification is said to reinforce the point being made, which
is that he knew and accepted some time before 06 February 2001 that he was
no longer a councillor and a Mayor, and that prescription began to run when he
gained knowledge of his fate through the above letters from the first two
Defendants.
[60] In my view, this special plea can best be addressed with reference to legal
authority which deals with when a complete cause of action arises or when a
claimable debt becomes due. Section 12(1) of the Prescription Act, 68 of 1969
provides that ‘. . . prescription shall commence to run as soon as the debt
32
is due. . .’.
In Uitenhage Municipality v Molloy19, Mahomed CJ held that:
“. . . a debt is due when the creditor acquires the right to institute action or when the creditor has a complete cause of action in respect of such debt.”
In Stockdale & Another v Stockdale20, the Full Bench of the Cape High Court, per
Traverso J, as she then was,21 held that:
“. . . a distinction needs to be drawn between when a debt arises and when it becomes due.”
The learned Judge quoted with approval the following dictum of the Appellate
Division in Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsch (Pty) Ltd:22
“There has to be a debt immediately claimable by the creditor or stated in another way, that there has to be a debt of which the debtor is under an obligation to perform immediately . . .”
[61] Both the ANC and the Municipality hold the view that the Plaintiff’s receipt of
their letters of 22 January 2001 and 02 February 2001 respectively, had the
effect of automatically relieving the Plaintiff of his councillorship and the mayoral
position. Consequently, so they say, no additional steps had to be taken by, for
example, council to effectuate the actual removal of the Plaintiff from his
position, thus rendering the present ‘debt’ immediately claimable. It is for these
19 1998 (2) SA 735 (SCA) at 741A.
20 [2003] 3 ALL SA 358 (C) at para 13.
21 Madam Justice Traverso is the Deputy Judge President of the Cape Provincial Division of the High Court of South Africa.
22 1991 (1) SA 525 (A) at 532H.
33
reasons that they regard the dates that their respective letters bear as being
decisive of when prescription began to run.
[62] It would have been of no financial consequence to the Plaintiff had the
Municipality ignored the letters written by the ANC about him, and continued to
recognise and pay him as the Mayor of the Municipality. What gave practical
effect to his grievance and cause of action, was not only the recognition and
endorsement of Mr Khonkhobe by the Municipal Council as a councillor in the
Plaintiff’s place but also when council elected Mr Khonkhobe as the new Mayor
of the Municipality. That signalled the effective termination of his position as
councillor and Mayor as well as the end of his paycheck from the Municipality.
The Municipality had to act upon the letter of the ANC by reconciling itself with
the removal of the Plaintiff and actually replacing him with someone else, for an
actionable wrong to take place.
[63] On the above authorities, the official termination of the Plaintiff’s appointment as
Mayor took place on 06 February 2001. From that date on the debt for which
he has sued the ANC and the Municipality became due and claimable. It is
from this date that the running of prescription began and must be computed. I
am satisfied, therefore, that the action against the Plaintiff has not prescribed
and the special pleas of prescription must fail. This then leaves me with the
point in limine relating to the Plaintiff’s alleged non-compliance with s 3 of Act
No. 40 of 2002.
iii) Noncompliance with s 3 of Act No. 40 of 2002
34
[64] The second special plea by the Municipality is premised on s 3(1) and (2) of the
Institution of Legal Proceedings Against Certain Organs of State Act No. 40 of
2002, which provides that:
“3. Notice of intended legal proceedings to be given to organ of state.—
1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless—
a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or
b) the organ of state in question has consented in writing to the institution of that legal proceedings—
(i) without such notice; or(ii) upon receipt of a notice which does not comply
with all the requirements set out in subsection (2).
2) A notice must—
(a) Within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4(1); and
(b) briefly set out—
(i) the facts giving rise to the debt; and(ii) such particulars of such debt as are
within the knowledge of the creditor.”
The point taken by the Municipality is that it is an Organ of State to which this
Act applies, and that is correct. The Plaintiff has failed to serve notice on the
Municipality within 6 months from the date on which the debt became due. For
that reason, the Court has been asked to uphold the special plea of such non-
compliance and dismiss the action.
35
[65] The commencement date of this Act is 28 November 2002. That is some 21
months from 06 February 2001 when the debt became due and claimable. This
means that it would not have been practically possible for the Plaintiff to give
the Municipality notice of this action in terms of s 3(2)(a) between February
2001 and July 2001, which is the six months period from the date when the debt
became due and claimable. This is so since the Act was not yet in existence
during the first six months from the date when the debt became due. This Act
applies to actions which arose after it came into operation. Accordingly, this
special plea is without merit and also falls to be dismissed. All defences and
special pleas having been dismissed, I will now deal with the quantum of
damages.
QUANTUM
[66] The Plaintiff was not paid since January 2001. The period from January 2001
to the date when the next council was declared elected which was on 01 March
2006, is 62 months. To determine the amount due, this number of months
would have to be multiplied by the Plaintiff’s monthly salary as Mayor, which
evidence was shown to be a conservative figure of R9 496.83. I am satisfied
that this is not a case where mitigation of damages arises. Not only was it not
pleaded but it was also not properly substantiated when it was for the first time
raised during the address.
ORDER
36
[67] In the result, the following order is made:
a) The Plaintiff is granted leave to amend his Particulars of Claim in terms of his notice of amendment dated 20 April 2006. Paragraph 7 will, however, be amended to read that ‘the Plaintiff learnt on 06 February 2001 from the second Defendant that he had been removed from his mayoral position’;
b) The first and second Defendants’ special pleas of prescription are dismissed;
c) The second Defendant’s special plea of non-compliance with s 3 of Act 40 of 2002 is dismissed;
d) The termination of the Plaintiff’s appointment as Councillor and Mayor was unlawful and the first and second Defendants are liable to the Plaintiff for damages;
e) The first and second Defendants are ordered to make the following payments to the Plaintiff jointly and severally, the one paying the other to be absolved:
i) the sum of R588 803.46;
ii) interest on the sum of R588 803.46 at the rate of 15.5% per annum a tempore morae to the date of payment;
iii) costs of suit.
__________________M.T.R. MOGOENGJUDGE PRESIDENT OF THE HIGH COURT
37
APPEARANCES
DATE OF HEARING : 18 to 20 APRIL 2006DATE OF JUDGMENT : 26 MAY 2006
COUNSEL FOR PLAINTIFF : ADV P. ELLIS SC
COUNSEL FOR 1ST DEFENDANT : ADV A.J. SWART
COUNSEL FOR 2ND DEFENDANT : ADV I.T. LEBEKO
COUNSEL FOR 3RD DEFENDANT : ADV L.G. LEVER
ATTORNEYS FOR PLAINTIFF : SMIT STANTON INC.
ATTORNEYS FOR 1ST DEFENDANT : NKOMO & PARTNERS.
ATTORNEYS FOR 2ND
& 3RD
DEFENDANT : KHOMO MOKHETLE & TLOU ATTORNEYS
38