IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION OF THE HIGH COURT, PORT ELIZABETH)
CASE NO: …………………….
In the matter between:
UNITED DEMOCRATIC MOVEMENT 1st Applicant
MONGAMELI ELLCOTTE BOBANI 2nd Applicant
THE NELSON MANDELA BAY
METROPOLITAN MUNICIPALITY 1st Respondent
THE SPEAKER OF THE MUNICIPAL COUNCIL
OF NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY 2nd Respondent
THE CITY MANAGER OF NELSON MANDELA
BAY METROPOLITAN MUNICIPALITY 3rd Respondent
EXECUTIVE MAYOR OF NELSON MANDELA
BAY METROPOLITAN MUNICIPALITY 4th Respondent
AFRICAN CHRISTIAN DEMOCRATIC PARTY 5th Respondent
AFRICAN INDEPENDENT CONGRESS 6th Respondent
AFRICAN NATIONAL CONGRESS 7th Respondent
CONGRESS OF THE PEOPLE 8th Respondent
DEMOCRATIC ALLIANCE 9th Respondent
ECONOMIC FREEDOM FIGHTERS 10th Respondent
UNITED FRONT 11th Respondent
PATRIOTIC ALLIANCE 12th Respondent
MARLON DANIELS 13th Respondent
NQABA BHANGA 14th Respondent
ADAMS, R 15th Respondent
ADAMS, TP 16th Respondent
ANTONI, N P 17th Respondent
ARENDS, JA 18th Respondent
BEST, J S 19th Respondent
BEYNON, S 20th Respondent
BIDDULPH, DN 21st Respondent
BOOI, NM 22nd Respondent
BOQWANA, KK 23rd Respondent
BOTI, ML 24th Respondent
BREAKFAST, MS 25th Respondent
BUTI, D 26th Respondent
BUYEYE. TCS 27th Respondent
CAPTAIN, RN 28th Respondent
DAAMINDS, RD 29th Respondent
DANO, LM 30th Respondent
DAVIDS, SD 31st Respondent
DE ANDRADE, MJ 32nd Respondent
DLULA, Z 33rd Respondent
DYELE, V 34th Respondent
FALDTMAN, G 35th Respondent
FALTAIN, T 36th Respondent
FENI, M 37th Respondent
FILLIS, S 38th Respondent
GALLANT, LA 39th Respondent
GARAI, C 40th Respondent
GIBBON, A 41st Respondent
GIDANE, A 42nd Respondent
GOUWS, R 43rd Respondent
GREYLING, FvN 44th Respondent
GROBBELAAR, J 45th Respondent
GROOTBOOM, LP 46th Respondent
HARKER, EJ 47th Respondent
HAYSELDEN, DA 48th Respondent
HERMAANS, P 49th Respondent
HIGGINS,NR 50th Respondent
ISAACS, AD 51st Respondent
JACOBS, T 52nd Respondent
JODWANA, MS 53rd Respondent
JORDAN, AG 54th Respondent
KAYSER, C 55th Respondent
KEPE, OH 56th Respondent
KRUGER, L 57th Respondent
LOUW, TP 58th Respondent
LOVEMORE, AT 59th Respondent
LUNGISA, AW 60th Respondent
MAFAYA, BN 61st Respondent
MAKUNGA, ML 62nd Respondent
MANYATI, VM 63rd Respondent
MAQOLO, A M 64th Respondent
MAQULA, GD 65th Respondent
MBELEKANE, ME 66th Respondent
MBUQU, BP 67th Respondent
MEYER, R 68th Respondent
MFAMA, PA 69th Respondent
MFANA, L 70th Respondent
MFUNDA, ACG 71st Respondent
MGCOKOCA, M 72nd Respondent
MHLOBISO, NJ 73rd Respondent
MHLONGO, TS 74th Respondent
MIGGELS, GG 75th Respondent
MLUNGWANA, LV 76th Respondent
MNYIMBA, LD 77th Respondent
MOGATOSI, M K 78th Respondent
MONKS, DJS 79th Respondent
MRARA, L 80th Respondent
MTATI, NC 81st Respondent
MTHI, NA 82nd Respondent
MTSILA, M J 83rd Respondent
MüLLER, H 84th Respondent
NDONI, PS 85th Respondent
NGUMBELA, KO 86th Respondent
NKOSI, MM 87th Respondent
NODADA, BB 88th Respondent
NOMBEXEZA, LX 89th Respondent
NOMBIBA, BB 90th Respondent
NOMBOLA, L 91st Respondent
NOQOLI, TS 92nd Respondent
NTSHIZA, SM 93rd Respondent
NZANZEKA, SD 94th Respondent
ODENDAAL, R 95th Respondent
PALI, YM 96th Respondent
PINK, NQ 97th Respondent
PLAATJIES, SSJ 98th Respondent
QUKUBANA, LP 99th Respondent
RAFANI, S 100th Respondent
RANYELE, IF 101st Respondent
RAUTENBACH, G 102nd Respondent
RIORDAN, RB 103rd Respondent
RWEXWANA, S 104th Respondent
SABANI, X 105th Respondent
SAULS, SL 106th Respondent
SENEKAL, W 107th Respondent
SIJADU, S 108th Respondent
SIKWEYIYA, NE 109th Respondent
SONTI, NP 110th Respondent
SOYES, S 111th Respondent
STEYN, MG 112th Respondent
SUKA, L 113th Respondent
TERBLANCHE, PW 114th Respondent
TSHAKA, M 115th Respondent
TSHANGA, P F 116th Respondent
TSHANGELA, TF 117th Respondent
TYALI, XC 118th Respondent
TYOWANA, A 119th Respondent
TYUKANA, SS 120th Respondent
VAN DE LINDE, FA 121st Respondent
VAN DER WESTHUYZEN, A 122nd Respondent
VAN STAADEN, HC 123rd Respondent
VANI, PB 124th Respondent
VENA, ZM 125th Respondent
WHITFIELD, AG 126th Respondent
YAKO, YN 127th Respondent
ZINTO, MM 128th Respondent
ZUMA, NN 129th Respondent
NKOMANA, NN 130th Respondent
MEMBER OF THE EXECUTIVE COMMITTEE FOR
COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, EASTERN CAPE 131st Respondent
I, the undersigned,
do hereby make oath and say the following:
1. I am an adult male, and the duly elected Deputy Executive Mayor of the First Respondent.
2. I am a proportional representative councillor of the First Applicant on the municipal council of the First Respondent. I am duly authorised by the First Applicant to launch this application on its behalf and for that purpose to depose to this affidavit. In confirmation of the aforegoing, I refer to the confirmatory affidavit of General Bantu Holomisa, President of the National Executive Committee of the First Applicant, which Committee is entitled to authorize the institution of these proceedings on its behalf.
3. I also depose to this affidavit in my personal capacity as the second respondent.
4. The facts set out herein are true and correct and unless otherwise clearly stated or implied, within my personal knowledge. Insofar as I make legal submissions, I do so on the strength of the advice of my legal representatives.
5. The first applicant is the UNITED DEMOCRATIC MOVEMENT (‘UDM’), a duly registered political party in terms of the electoral laws of the Republic of South Africa.
6. In my capacity as the second applicant, I am a proportional representative councillor on the municipal council of the first respondent elected in terms of the provisions of section 22(1)(a) of the Local Government: Municipal Structures Act, No. 117 of 1998 (the ‘Structures Act’). I was duly elected by the council of the first respondent to serve as the Deputy Executive Mayor in terms of the provisions of section 55 of the Structures Act.
7. The first respondent is the NELSON MANDELA BAY METROPOLITAN MUNICIPALITY (the ‘Municipality’), a Metropolitan Municipality established in terms of the provisions of section 155(1) of the Constitution, 1996, and in terms of the provisions of section 12 of the Structures Act. The seat of the Municipality is at City Hall, Vuyisile Mini Square, Govan Mbeki Avenue, Port Elizabeth.
8. The second respondent is the Speaker of the first respondent, Mr. J. Lawack, who was elected by the council of the first respondent in terms of the provisions of section 160(1)(b) of the Constitution and section 36 of the Structures Act. In his capacity as a proportional representative councillor he represents the Democratic Alliance on the council of the first respondent.
9. The third respondent is the City Manager of the First Respondent, Mr. Johan Mettler, who is the ‘Municipal Manager’ for purposes of the relevant legislation, and who was appointed by the council of the first respondent in terms of the provisions of section 54A of the Local Government: Municipal Systems Act, No 32 of 2000 (the ‘Systems Act’), as amended.
10. The fourth respondent is the Executive Mayor of the Municipality, Mr. Athol Trollip, who was elected by the council of the Municipality to that position pursuant to the provisions of section 55 of the Structures Act. He is also a proportional representative councillor representing the Democratic Alliance on the council of the first respondent.
11. The fifth to twelfth respondents, the fifth respondent is the AFRICAN CHRISTIAN DEMOCRATIC PARTY (‘ACDP’), the sixth respondent is the AFRICAN INDEPENDENT CONGRESS (‘AIC’), the seventh respondent is the AFRICAN NATIONAL CONGRESS (‘ANC’), the eighth respondent is the CONGRESS OF THE PEOPLE (‘COPE’), the ninth respondent is the DEMOCRATIC ALLIANCE (‘DA’), the tenth respondent is the ECONOMIC FREEDOM FIGHTERS (‘EFF’), the eleventh respondent is the UNITED FRONT (‘UF’) and the twelfth respondent is the PATRIOTIC ALLIANCE (‘PA’) who are duly registered political parties, represented on the council of the First Respondent by councillors.
12. The thirteenth respondent is MARLON DANIELS, a proportional representative councillor representing the Patriotic Alliance, the twelfth respondent, on the council of the first respondent. He is joined as a party in his representative and personal capacities, as a party with a substantial interest in the relief sought in these proceedings.
13. The fourteenth respondent is NQABA BHANGA, a proportional representative councillor representing the Democratic Alliance on the council of the first respondent, the Municipality. He is cited in his personal and representative capacity as a party with a substantial interest in the relief sought in these proceedings.
14. The fifteenth to one-hundred-and-twenty-ninth respondents are ward councillors and proportional representative councillors on the council of the first respondent, the Municipality. They are cited herein for their direct or substantial interest in the relief sought in these proceedings and/or on the basis that the relief sought herein, if granted, cannot be carried into effect without affecting their rights as councillors of the Municipality.
15. There are one-hundred-and-twenty councillors on the council of the Municipality. A true copy of the first respondent’s record of all the councillors’ names, addresses, representation of wards or proportional representation (‘prop’) and the political party affiliations are annexed hereto marked as annexure ‘MB1’.
16. The one-hundred-and-thirtieth respondent is NOMBEKO NORICIA NKOMANA, the Strategic Manager: Executive Support in the Office of the Deputy Executive Mayor. The term of her contract of employment was linked to the term of the Deputy Executive Mayor. Her contract of employment was terminated by a letter from the First Respondent dated 30 August 2017 as a consequence of the removal of the Second Applicant. True copies of her contract of employment dated 20 October 2016, and the letter of termination are annexed hereto as annexures ‘MB2’ and ‘MB3’ respectively.
THE PURPOSE OF THIS APPLICATION
17. The purpose of this application is twofold:
17.1 first, to obtain interim interdictory relief on an urgent basis pending the determination of the final relief; and
17.2 second, to indicate the basis of the final interdictory relief which will be sought within three weeks of the interim relief, be it by way of application of by way of action.
18. The following interim relief is sought in this application:
18.1 That the First Respondent be and is hereby interdicted and restrained, pending the final determination of the relief sought in Part B hereof, from implementing the decision of the First Respondent taken during its Council meeting of 24 August 2017 that the Second Applicant be removed from the office of Deputy Executive Mayor.
18.2 That the second respondent, Mongameli Bobani, is reinstated in his position as Deputy Executive Mayor of the First Respondent as of 24 August 2017.
19. The following final substantive relief will be sought in terms of Part B of the Notice of Motion:
19.1 A declarator to the effect that the introduction of a notice of motion of no confidence in the Deputy Executive Mayor of the Council of the first respondent by Marlon Daniels, the twelfth respondent, at a meeting of 24 August 2017, was unconstitutional and unlawful ab initio and is accordingly reviewed and set aside;
19.2 A declarator to the effect that the acceptance of a notice of motion of no confidence in the Deputy Executive Mayor of the Council of the first respondent by the Speaker, the second respondent, at a meeting of 24 August 2017, was unconstitutional and unlawful ab initio and is accordingly reviewed and set aside;
19.3 A declarator to the effect that the voting by councillors of the first respondent on a motion of no confidence in the Deputy Executive Mayor of the Council of the first respondent, at a meeting of 24 August 2017, was unconstitutional and unlawful ab initio and is accordingly reviewed and set aside.
19.4 A declarator to the effect that the decision by the council of the first respondent to pass the notice of motion of no confidence in the Deputy Executive Mayor of the Council of the first respondent at a meeting of 24 August 2017, was unreasonable and irrational and accordingly was unconstitutional and unlawful ab initio and is accordingly reviewed and set aside.
19.5 A declarator to the effect that the second respondent, Mongameli Bobani, is restored to his position as Deputy Executive Mayor of the First Respondent as of 24 August 2017.
20. The actions sought to be reviewed and set aside in this application occurred on 24 August 2017. This application is served and filed within a week of the occurrence of the unlawful conduct.
21. This matter is by its very nature urgent, as it concerns the exercise by a local authority of its plenary powers in the public interest and the question whether such powers were exercised within the ambit of the pertinent constitutional constraints, namely the unlawful deprivation of fundamental constitutional rights such as section 160 (3) of the Constitution, which requires that:
‘[a] majority of the members of a Municipal Council must be present before a vote may be taken on any matter’.
22. The provisions of section 160(3) of the Constitution are mirrored by Rule 18.1 of the Rules of Order adopted by the first respondent on 6 September 2007, which Rules regulate meetings of the Council. A true copy of the aforesaid Rules of Order is hereunto annexed marked annexure ‘MB4’. Rule 18.1 provides as follows:
A quorum of the Council or a Committee of the Council will constitute a majority (50% plus 1) of all Councillors or Councillors who are members of that Committee as the case may be.
23. Rule 18.2, moreover, provides as follows:
Notwithstanding Rule 18.1 above, and subject to Section 30(1) of the Structures Act, at least a majority of Councillors, or of the members of the Committee in question, must be present before a vote on any matter may be taken.
24. A majority of council members of the Municipality were not present when the motion of no confidence was voted on by the members of council on 24 August 2017. Accordingly, the vote was unconstitutional, and that unconstitutional decision must urgently be set aside. In consequence of the unconstitutional conduct as aforesaid, a senior official of the first respondent was prejudiced and the position has been left vacant as a result.
25. The court’s discretion to set aside unconstitutional conduct is limited by section 172(1) of the Constitution, which provides as follows:
‘(1) When deciding a constitutional matter within its powers, a court—
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency’
26. The position of the Deputy Executive Mayor is a senior executive statutory function, buttressed for example, by his appointment in terms of the provisions of section 55 of the Structures Act, and his removal in terms of section 58 of the Structures Act. Because of my removal, the position is currently vacant.
27. As is evident by the attached schedule of meetings scheduled, Circular 70/2017, the next council meeting of the first respondent is scheduled for 21 September 2017, at which meeting it is likely that the vacant position of Deputy Executive Mayor occasioned by the unlawful decision of the council of the first respondent will be filled by a new incumbent. Unless the interim relief is granted, the subject matter of the final relief will become moot, in the sense that such relief will no longer be capable of being granted without irrevocable prejudice to the new incumbent. I further point out that the notice of motion in terms of which I was removed was only capable of partial adoption by the counsel because, after the purported adoption of the first part of the motion, the Speaker had no option but to adjourn and/or end the proceedings in the light of the walk-out referred to above. A true copy of the aforesaid circular is annexed hereto marked annexure ‘MB5’. A true copy of the notice of motion is annexed hereto marked annexure ‘MB9’.
28. The Second Applicant’s remuneration as a Deputy Executive Mayor has been severally curtailed as a result of his irregular removal. Evidence of the scale of remuneration for ordinary councillors and Executive Mayors for municipalities of the size of the First Respondent is provided in the gazetted remuneration scale, Determination of Upper Limits of Salaries, Allowances and Benefits of Different Members of Municipal Councils, annexed hereto as annexure ‘MB8’. Since the Second Applicant is remunerated on a monthly basis, the deprivation of his lawful salary for his elected position as a Deputy Executive Mayor is already in effect. I will not be able to receive adequate relief if the matter is heard in due course.
29. A further urgent consequence of the removal of the Deputy Executive Mayor is the termination of the employment contract of the Strategic Manager: Executive Support in the Office of Deputy Executive Mayor. Her contract of employment, in clause 2, links her term of employment to that of the Deputy Executive Mayor. The Municipality issued her with a formal letter of termination on 30 August 2017. The employment contract and the letter of termination are annexed hereto marked annexures ‘MB2’ and ‘MB3’ respectively. When the Second Applicant is restored to his position, so should the 130th respondent, Nombeko Nkomana, be reinstated to her position contractually linked to the Second Applicant’s position.
30. The degree of urgency is commensurate with the time periods afforded the respondents to notify the applicant of their intention to oppose the application and to file their answering affidavit, if any. I submit that the degree of urgency relied on by the applicants in this matter is justified.
31. Given the urgent nature of this application and the number of respondents, I find it impracticable if not impossible to effect formal service of this application on all the respondents. I have personally arranged with the respondents to accept informal service at the address of the First Respondent by way of fax. Proof of service of this application will be tendered at the hearing of this matter and if necessary, a supplementary affidavit will be filed to confirm such service.
32. This Honourable Court has jurisdiction to hear the matter as the whole cause of action arose within its jurisdiction.
33. There are 120 councillors in the Municipality, the first respondent. The DA has the largest number of seats in the Council, but because it does not command an outright majority in the Council, it needs the co-operation of a number of smaller parties such as the UDM, in order to govern the Municipality in coalition. It has secured the requisite co-operation of the UDM to this end pursuant to a Coalition Agreement in terms of which the UDM’s nominee must be appointed as the Deputy Executive Mayor.
34. The distribution of seats amongst the various political parties is as follows:
34.1 Two councillors represent voters who voted for the UDM, the first applicant.
34.2 One councillor represents voters who voted for the ACDP.
34.3 One councillor represents voters who voted for the AIC.
34.4 Fifty councillors represent voters who voted for the ANC.
34.5 One councillor represents voters who voted for the COPE.
34.6 Fifty-seven councillors represent voters who voted for the DA.
34.7 Six councillors represent voters who voted for the EFF.
34.8 One councillor represents voters who voted for the UF.
34.9 One Councillor represents voters who voted for the PA.
35. On 24 August 2017, the majority of the councillors of the Municipality were governed by a Co-Governance Agreement. A true copy of the Co-Governance Agreement is annexed hereto marked annexure ‘MB7’.
36. The co-governance arrangement in this Municipality consisted of fifty-seven DA councillors, two UDM councillors, one COPE councillor, and one ACDP councillor, equating to sixty-one councillors in number out of the one-hundred-and-twenty councillors in the Council of the First Respondent.
37. Of particular relevance in these proceedings is the position of the PA. The PA was not formally accepted as a party to the co-governance agreement by all parties to the agreement.
37.1 However, the Executive Mayor and DA councillor, Athol Trollip, unilaterally considered the PA’s Marlon Daniels, the thirteenth respondent herein, to be a member of the coalition.
37.2 The fact that the DA unilaterally considered the PA to be a coalition partner was communicated via press releases. The advice and consent of the other coalition partners was not considered. One such press release is annexed hereto marked annexure ‘MB6’; its content is incorporated herein. It is clear from this press release that the DA unilaterally amended the coalition contract and merely informed its other coalition partners of this contract variation.
37.3 The UDM has not accepted the unilateral contract variation by the DA attempting to join the PA as a coalition partner. Accordingly, such variation is invalid and of no force and effect.
38. A material fact in these proceedings is the admitted cooperation between the DA and the PA, and the sharing of confidential coalition information by the DA with the PA without the consent of other coalition partners.
39. Thus, when Marlon Daniels, the thirteenth respondent, introduced a notice of motion of no confidence against the Deputy Executive Mayor (more fully deposed to below); he has done so with its partner, the DA, and in particular, Mr Athol Trollip.
THE CONVENING OF THE COUNCIL MEETING OF 24 AUGUST 2017
40. The Speaker of the First Respondent purported to convene a Council meeting of the First Respondent on the 10th of August 2017, which meeting was postponed without any reason having been supplied, to 24th of August. accordance with the provisions of the Structures Act, at which I was present on 24 August 2017.
40.1 An agenda was duly circulated to members in advance of the meeting. I do not know whether such circulation occurred within the period prescribed by the Rules of Order, including Rule 12 (a true copy of which is annexed hereto marked annexure ‘MB4’).
40.2 Marlon Daniels, the Thirteenth Respondent, moved a motion on the 24th of August in terms of item 8.2 of the Agenda, which states as follows:
“(a) That the Council resolves to remove Councillor M E Bobani from his position as Deputy Executive Mayor.
(b) That an election to fill vacancy of Deputy Executive Mayor be proceeded with in terms of the Council’s Rules of Order and Schedule 3 of the Local Government Municipal Structures Act, Act 117 of 1998.
NOTICES OF MOTION IN TERMS OF THE RULES
41. Rule 24.1 provides as follows:
Every notice of intention to introduce a motion or question must be submitted in writing, signed and dated by the Councillor submitting it and must contain in full the motion or question to be submitted and must be delivered to the Speaker at least ten clear business days before the date of the meeting at which it is intended to be introduced or asked.
42. Rule 24.2 provides as follows:
The motion/s must be with the Speaker ten clear business days before the meeting.
43. Rule 24.3 provides as follows:
No motion, except a motion of exigency, or a motion of course may be considered by the Council, which is not before the meeting in question, unless notice thereof has been given in terms of Rule 24.1 above.
44. The motion of no confidence in me, as the Deputy Executive Mayor, was not introduced as a motion of exigency or a motion of course.
45. Because the motion was first circularized as an item on the agenda of the Council meeting originally scheduled for the 10th of August 2017, a notice of intention to introduce the motion was required to be submitted at least ten clear business days before the date of that meeting pursuant to the provisions of Rule 24.1. I do not know whether this provision or the provisions of Rule 24.3 were complied with.
46. Rule 7.4 of the Rules of Order provides as follows:
The Municipal Manager must give Councillors at least 5 business days written notice for ordinary Council and Committee meetings at the registered address of each political party and Councillor represented in Council, but the Speaker may convene an emergency meeting at shorter notice.
47. The provisions of Rule 7.5 of the Rules of Order are the following:
If one or more Councillors fail to receive such notice, such failure does not render the convening of such meeting invalid, provided that each Political party has been given notice, proof whereof shall be furnished by the Speaker’s office.
48. Neither the First Applicant nor I could find any record that the municipal manager gave written notice to the First Applicant or me of the meeting. If such notice were given, I call upon Speaker to furnish the necessary proof that the requisite notice had been given, and that accordingly, Sub-Rules 7.4 and 7.5 have been complied with.
49. Despite the provisions of Rule 17.6, the Council does not keep hourly attendance registers.
50. Rule 19(4) provides as follows:
“If, during the course of a meeting of the Council, the Speaker becomes aware of the absence of a quorum, the Speaker must act in accordance with Rule 19.3 above and adjourn the meeting.
51. Rule 19.3 of the Council’s Rules of Order states as follows:
“Such adjournment shall be for a period not exceeding a further 20 minutes, after which if a quorum is still not present the meeting must be adjourned by the Speaker to a future date and time”.
52. Over and above the aforementioned Rules, section 37(f) of the Structures Act, renders compliance with the Rules peremptory:
The Speaker of a municipal council must ensure that the council meetings are conducted in accordance with the rules of orders of the council.
53. I maintain that I should have been, at the very least, afforded an opportunity to defend myself against the allegations of purported “erratic” behaviour that led to purported “instability” within the First Respondent (the words in the motivation contained in the motion, item 8.2 of the Agenda). As far as the procedural requirement for the validity of my removal is concerned, the facts in the paragraphs above justify the conclusion that the council was inquorate at the time of the purported adoption of the resolution removing me as Deputy Executive Mayor.
54. In summary, I respectfully contend that the resolution taken by the First Respondent as introduced by the Thirteenth Respondent during its Council meeting held on the 24 August 2017 were unlawful for the reasons stated herein above.
THE QUORUM REQUIREMENT: RELEVANT CONSTITUTIONAL, STATUTORY AND RULES PROVISIONS APPLIED TO THE FACTS
55. Section 30(1) of the Structures Act states that a majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter. Accordingly, at least sixty-one councillors must be present for any council decision to be taken.
56. The provisions of section 30(1) implement the similar voting provision in the Constitution section 160(3), and also the detailed provisions of Rule 18 of the Rules of Order, deposed to in the section of this application dealing with urgency above.
57. A few days prior 10 August 2017, I received a copy of a council agenda scheduling a council meeting for 10 August 2017. In the said council agenda, under item 8.2, I noticed a purported motion of no confidence raised against me by Cllr M.V. Daniels of the PA. however, this council meeting scheduled for 10 August 2017 was postponed without any reason to 24 August 2017. The motion of no confidence is annexed hereto marked Annexure “MB9”.
58. When the motion of no confidence in me as deputy executive mayor was tabled, the fifty members of the ANC, the six members of the EFF, the two members of the UDM and the one member of the AIC stood up and informed the Speaker that they would not form part of the voting and decided to leave the council chamber.
59. The Speaker of the First Respondent proceeded to count the votes in favour of the motion to remove me as deputy executive mayor whilst the exodus of members from the chamber of the council was in progress.
60. Prior to the walk-out commencing, the party whips of the ANC and the EFF announced the intention of their respective parties to leave the chamber of the council. Thereafter, the ANC and EFF members stood up, left their seats and proceeded to walk out of the chamber at the single door that was open. Other parties followed the walk-out, including the UDM and the AIC.
61. Before the voting process had been finalized, the walk-out rendered the meeting inquorate. Had the Speaker acted in terms of Rule 19.4 of the Rules of Order, as he was bound to, the meeting should have been adjourned before the votes were counted.
GROUNDS FOR REMOVAL
62. There was no factual or legal basis upon which the motion of no confidence in me could reasonably or rationally have been sustained in that:
62.1 I had not been formally accused of any wrongdoing nor had I been convicted of any wrongdoing;
62.2 I had accordingly not been granted any opportunity of defending myself nor was I given the opportunity to be even heard in my own defence.
63. Mr. Trollip had made the innuendo that a certain forensic report by PwC contained damning evidence of financial irregularities and/or corruption against me. This report was never provided to me, nor did its authors ever interviewed me prior to the compilation of the draft report. I dispute that the report could have contained any evidence of corruption or financial irregularity against me because in so far as I am concerned, none exist.
64. The draft forensic report of PwC was provided to the UDM on the 23rd of August, on the eve of the meeting of Council on the 24th of August. It was provided as evidence purporting to support the motion of no confidence in me. This report, by its own terms, and in the cover letter annexed thereto is a draft report for discussion only. No further action is required. The report contains no reference to any wrongdoing by me. The report has not been finalized, and it has not been adopted by Council.
65. One of the key parties investigated by the PwC forensic team was the tender award and the performance of a company called Milongani Eco Consulting. This company was awarded a tender before my appointment and before my service on the Public Health Committee, on which I served only for eight months until removed by the Executive Mayor, Mr Athol Trollip. I am not the accounting officer of the first respondent, and never have been; accordingly, I have no power to award tenders or to make payments to service providers. None of this alleged wrongdoing can be attributed to me.
66. After the release of this draft forensic report, and the removal of the Second Applicant, the President of the First Applicant published to a letter to all coalition partners dated 24 August 2017 referring to the UDM’s intention to pull out of the co-governance agreement with the DA. A true copy of this letter is annexed hereto marked annexure ‘MB10’, to the content of which attention is invited.
67. In response, the Leader of the DA wrote a letter on the same date. A copy of which is annexed hereto marked as annexure ‘MB11’. Two paragraphs are worth highlighting as devoid of any truth, the paragraphs that refers to:
67.1 ‘two separate forensic reports conducted by independent third-party auditing firms have found serious prima facie evidence of maladministration, fraud and tender irregularities involving departments directly under the operational and political authority of Cllr Bobani’. No such evidence in any report indicate any wrongdoing by myself. Moreover, I have not been afforded any opportunity to confront any evidence against me by any auditor.
67.2 ‘Cllr Trollip tabled detailed allegations against Cllr Bobani with substantive evidence, and despite our repeated calls, Cllr Bobani tabled no substantive response to these.’ I have not seen any such detailed allegations with substantive evidence to which I had to respond.
68. The conclusion from the aforegoing is enescapably that there are no substantive reasons for my dismissal as Deputy Executive Mayor and that the council acted arbitrarily and irrationally in deciding to accept the motion to remove me.
69. The following requirements for an interim interdict are present:
69.1 A prima facie right. The second applicant is constitutionally entitled to fair and lawful procedural action against him which is founded on probable cause. The conduct of the first respondent detailed above prima facie violates those rights as well as the provisions of the Rules of Order of the Council.
69.2 Irreparable harm. A well-grounded fear of irreparable harm is founded on the conduct complained of, consisting as it does of unsubstantiated accusations of material misconduct involving alleged dishonesty pressed home in unprocedural fashion which would necessarily lead to reputational harm which cannot be remedied by a claim for damages.
69.3 The balance of convenience is in the applicants’ favour. Where the breach of a constitutional right is in issue, this demands action by the court to remedy the breach.
69.4 There is no other satisfactory remedy. Damages will not remedy the reputational damage to the applicants or the breach of the applicants’ constitutional rights.
70. In the premises, I have no alternative other than to approach this Honourable Court on an urgent basis for interim relief in the form of an interim interdict pending the determination of the final interdict as set out more fully in the accompanying Notice of Motion, interdicting and restraining the implementation of the Council resolutions taken in the Council meeting of the First Respondent held on the 24th of August 2017.
71. I accordingly humbly pray for the relief sought in the accompanying Notice of Motion.
MONGAMELI ELLCOTTE BOBANI
I certify that the deponent has acknowledged that he knows and understands the contents of this Affidavit, which was signed and sworn to before me at on this day of AUGUST 2017. In administering the oath the requirements of Regulation R2477 dated 16 November 1988, as amended, have been complied with.
COMMISSIONER OF OATHS