Rich Mguni v Minister of Local Government & Public Works N.O and Somveli Dhlamin and Victoria Falls Municipality

### Preamble
1
HB 114/20
HC 748/20
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RICH MGUNI

Versus

MINISTER OF LOCAL GOVERNMENT & PUBLIC WORKS N.O

and

SOMVELO DHLAMINI

and

VICTORIA FALLS MUNICIPALITY

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 29 May 2020, 4 June 2020

Urgent chamber application

K. Phulu, for the applicant.

R. Hove,for the 1strespondent

B. Ndove ,2nd  respondent

K. Ngwenya, 3rd respondent

DUBE-BANDA J.	The applicant instituted proceedings as a matter of urgency.  The application was lodged in this Court on 15 May 2020, and heard on 29 May 2019.  The final and the interim relief sought by the applicant have been formulated as follows:

“Terms of the final order sought:

That it be and is hereby declared that the election of the applicant is lawful as it was in consequence of section 103 (4) as read section 103 (3) (iii) of the Urban Councils Act (Chapter 29:15).

Alternatively, that it be and is hereby ordered that applicant’s election occurred after 2ndrespondent‘s recall and is therefore valid.

That 1st respondent cannot reverse the election of applicant without a court order as he has no such power.

That it be declared that the directive of the 1st respondent dated 12th May 2020 to the 3rd respondent is unlawful as it is inconsistent with sections 316, 103 (3) (iii) and 103 (4) of the Urban Councils Act (Chapter 29:15).

Alternatively, that 1st respondent’s directive to 3rd respondent is unlawful as 2nd respondent was lawfully recalled from his position as a councillor of the MDC party and same was communicated to 1st respondent who acted on it.

That any party or parties that oppose this application, amongst others the 1st, 2nd and 3rd respondents, individually or jointly and severally one paying the others to be absolved, shall bear the costs of this application.

“The interim relief granted

The 3rd respondent, through its Town Clerk, is excused from compliance with 1st respondent’s directive purporting to nullify the election of applicant to the position of mayor for Victoria Falls Municipality and therefore same is hereby stayed pending the return date of this application.

Service of the provisional order

The Deputy Sheriff be and is hereby authorised to effect service of the provisional order on the respondents. “

The application is opposed by all the respondents, who filed comprehensive opposing affidavits and heads of argument.

The onus is on the applicant of finally satisfying the court that he has made a case for the interim or interlocutory interdict that he is seeking from this court.

Applicant is seeking an interim interdict. While applications for the grant of interdicts feature in the law reports for many years prior to the landmark decision of the Appellant Division of South Africa in Setlogelo v Setlogelo1914 AD 22, the judgment of Innes JA was the first which distinguished clearly between the final interdict and the requirements thereof, and the interlocutory interdict and the requirements of such a relief. The requirements of an interim interdict have been stated and restated in numerous cases. The following statement of the requirements by CORBETT J (as he then was) in L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267A-F, is representative of what has become the almost standard formulation of the requirements: “Briefly these requirements are that the applicant for such temporary relief must show –

a) that the right which is the subject of the main action and which he seeks to protect by means of an interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

c) that the balance of convenience favours the granting of interim relief; and

d) that the applicant has no other satisfactory relief.

See Econet (Pvt) v Minister of Information 1997 (1) ZLR 342 (H) @ 344G – 345B.

Where a clear right is proved, then the applicant for an interim interdict needs not show that he or she will suffer irreparable harm if the interdict is not granted. The applicant merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed. See Nyambi & Ors Min Local Govt& Anor 2012 (1) ZLR 559 (H), Nyika Investments (Pvt) Ltd v Zimasco Holdings (Pvt) & Ors 2001 (1) ZLR (H) at 213G-214B.

For this application to succeed, it must meet the requirements of an interlocutory interdict.

Prima facie right

Interdicts are based upon rights, that is, rights in which in terms of the substantive law are sufficient to sustain a cause of action. The applicant must show a right which he apprehends will be infringed. If it is prima facie established, though open to some doubt, it is enough. If he does not do so, his application for an interlocutory interdict must fail. The use of the phrase “prima facie established though open to some doubt,” indicates that more is required than merely to look at the allegations of the applicant, but something short of weighing up the probabilities of conflicting versions is required.

What then is the approach of the court to be in the face of a dispute of fact on the papers before it? The approach is to take the facts set out by the applicant, together with any facts set out by the respondent which applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief on the return date. The facts set up in contradiction by the respondent should then be considered. If serious doubt, not only some doubt, is thrown on the case of the applicant he should not succeed in obtaining an interim relief. See C.B. Prest Interlocutory Interdicts (J1993 Juta & Co. Ltd) 60. The onus of proving such prima facie right rests upon the applicant.

In casu, the right that applicant seeks to protect, by way of an interim interdict, is that he was elected mayor of Victoria Falls Municipality, and he has assumed office as the mayor and he has set out to perform his duties as such. If he proves this, on a prima facie basis, he would be entitled to the interim relief he seeks. If he fails, then he cannot secure an interim relief from this court.

Was applicant elected mayor for the Municipality of Victoria falls? According to applicant, 2nd respondent tendered a resignation, from the position of mayor on 20 March 2020. He contends that as a result of the resignation, a vacancy automatically occurred in the office of the mayor. He says the vacancy, in terms of the law, was to be filled within thirty days. The Municipality had to have an election to elect a mayor to complete the terms of the resigned mayor. On the 7 May 2020, an election was held to elect a mayor for the Municipality. He contends that he was elected mayor. According to applicant, he has assumed office as mayor and has set out to perform his mayoral duties.

Applicant places before court, a copy of what he alleges is a of resignation letter written by the 2nd respondent. Second respondent categorically makes the point that he neither authored nor signed the alleged letter of resignation. He contends that he never delivered the letter to the Town Clerk of the Municipality. He characterises the letter as a complete forgery. He says he does not know where applicant got such a letter. He says the name of the author is different from his and that the signature is not his. He says the alleged letter of resignation is not dated. It is signed by one Somveli Dlamini. His name is not Somveli Dlamini, but Somveli Dhlamini. He says he saw the letter of purported resignation circulating on social-media. He quickly alerted the Town Clerk of the Municipality, by letter dated 8 April 2020, dissociating himself from the letter and requesting the Clerk to disregard it. Such letter is before court.

It is then for the applicant to show that, notwithstanding the challenge, the document is a letter authored and signed by the 2nd respondent. Such proof must be in the affidavits before court,there is none. In the founding affidavit there is none, applicant filed an answering affidavit, but did not deal with this challenge.

It is incorrect for a party just to throw in documentary evidence before court, without showing the basis upon which such evidence is admissible, even in the face of a challenge, it is still incorrect to remain mute about the basis upon which the document has been placed before court.

The alleged resignation letter presents a serious huddle for the applicant. There is a material dispute of fact on the issue of whether second respondent indeed authored and signed the alleged resignation letter.  This dispute is so material that it cannot be resolved on the papers before court.  Mr Phulu, for the applicant, concedes that such a dispute cannot be resolved on the papers.

Again, the letter itself has serious pitfalls. Section 103 (3) (iii) of the Urban Councils Act [Chapter 29:15] says,  if a mayor resigns, by notice in writing addressed to the town clerk, he or she shall cease to hold office as such with effect from the date the notice is received by the town clerk. The letter was not addressed to the town clerk. It is addressed to a political party and copied to the Town Clerk. It is an internal political party communication. In fact it says, “I will be writing the formal letter of resignation addressed to the Town Clerk upon my return to Victoria Falls, next week.”

I take the view that it would be incorrect for the Town Clerk to rely on such communication, not addressed to him, to declare the office of the mayor vacant. He must wait until such time that he receives a formal resignation letter from the mayor, addressed to him and which complies with section 103 (3) (iii) of the Urban Councils Act.  The letter before court does not meet the requirements of section 103 (3) (iii) of the Act.The letter is not at law a resignation letter. I take the view that there is no evidence that second respondent did resign as mayor. On the facts of this case, second respondent did not resign from the office of mayor of the Municipality of Victoria Falls.

Mr Phulu concedes that the second respondent did not resign from the office of the mayor.  His argument is that, the absence of a resignation by second respondent, is not dispositive of this matter. It is contended that the political party, being the Movement of Democratic Change, that had deployed second respondent to council, recalled him (2nd respondent). It is argued that he was recalled in terms of section 129 (k) as read with section 278 (1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013. Mr Phulu cites a plethora of authorities dealing with recall of a deployed member by his political organisation.

It is contended that first respondent then directed the holding of an election to replace second respondent as mayor for the purposes of filling the mayoral vacancy. There is a heated dispute between the applicant on one hand, and the first and second respondents on the other hand, whether the recall was lawful. This is a material dispute which cannot be resolved on these papers. In fact, I take the view that nothing turns on that alleged recall at this stage. My thinking is that, the onus is on the applicant to prove a prima facie case, he must show that at the time he says he was elected or purportedly elected, there was a vacancy in the office of the mayor. It is not for the respondents, particularly the second respondent, to show that he was mayor. He who alleges must prove. He who seeks a remedy must prove that he is entitled to such remedy. Applicant must prove that there was a vacancy in the office of the mayor. He must prove that he was lawfully elected mayor. He must prove that he assumed the office of the mayor. He must prove that he is executing the functions of the mayor in Victoria Falls. I accept that applicant is seeking an interim interdict, prima facie proof, even open to some doubt would suffice. But there must be proof.

Again in his affidavits, applicant contends that his election to the office of mayor was anchored on the recall of the second respondent. This point is argued comprehensively in applicant’s heads of argument. It is argued that the office of the mayor became vacant by operation of section 129(k) as read with section 278 (1) of the Constitution of Zimbabwe Amendment (N0. 20) Act 2013.

I note that applicant’s contention is not borne out by the facts of this case. In the draft copy of the Minutes of Victoria Falls Municipality placed before court by applicant himself, it is apparent the election was anchored not on the recall but on the alleged resignation by the second respondent. The following appears in the draft Minutes under the heading “discussion”:

“A member noted the resignation of Cllr S Dhlamini from the Mayoral position as a noble idea.

It was resolved that:

Cllr S. Dhlamini resignation from mayoral post be accepted by Council with effect from the 20th of March 2020.

Proposed by: Cllr Mambume

Seconded by: Cllr N Sibindi.

Ministry of Local Governance wrote a letter dated 5 May 2020 reversing the recall of 25 March 2020 and hereby re-instating Cllr S. Dhlamini to Council as a Councillor following a letter from MDC T Secretary General Mr D. Mwonzora. Members noted the re-instatement of Cllr S. Dhlamini in his capacity as Councillor not as mayor since he had resigned and resignation accepted.”

Therefore, the purported election of applicant to the office of mayor of Victoria Falls Municipality was anchored on the purported resignation of second respondent. I have made a factual finding that second respondent did not resign the office of the mayor. Therefore, the purported election of the applicant to the office of the mayor, was itself a nullity. It was anchored on a nullity. There was no vacancy in the office of the mayor. Section 103 (3) (iv) Section 103 (3) (iii) of the Urban Councils Act says if the seat of the councillor who is a mayor becomes vacant by virtue of section 78(2) (b), (c), (d), (e), (f) or (g) of the Act he or she shall cease to hold office as such with effect from the date that seat becomes vacant. There was no resignation. There was no vacancy.

Applicant says boldly in his founding affidavit that he was elected mayor and he has assumed office as mayor and has set out to perform his mayoral duties. Again this allegation by the applicant is factual incorrect. Section 48 (2) of the Urban Councils Act provides that before undertaking any duty as such, a mayor shall take and subscribe before the town clerk such oath of loyalty and office as may be prescribed. Applicant did not take the oath as provided in section 48 (2), therefore, irrespective of whatever angle or prism one looks at this matter, applicant was not at law elected mayor, and he is not the mayor. He did not execute the functions of mayor of Victoria Falls Municipality.

Realising these insurmountable huddles, Mr Phulu, changed track, started to refer to applicant as mayor-elect.  Still he cannot be mayor elect. His purported election was in itself void. Nothing could stand on it. There cannot be a mayor elect, if there is no vacancy in the office of the mayor.

According to Mr Ngwenya for the third respondent, this respondent couldhave not opposed this matter, and could have simply abided by the order of the court. However, the challenge it is facing is that, in the event the interim relief sought by applicant is granted, there would be two persons answering to the position of mayor of Victoria Falls Municipality. The Town Clerk of Victoria Falls makes this point very clear and very loud in his opposing affidavit filed with this court.  He says the interim relief sought by the applicant, if granted will result in Victoria Falls Municipality having two mayors pending the return date. Cut to the borne, the Town Clerk is saying there is a sitting mayor in Victoria Falls. According to the third respondent, second respondent is the mayor recognised by Council at this stage. Applicant filed an answering affidavit, did not contest this allegation. It is a fact.

Second respondent has got the keys to the office of the mayor. He is executing mayoral duties. No council can have two mayors at the same time. Such would result in an unattainable situation for the council.

Applicant seeks a provisional order/ interim relief. The purpose of a provisional order is to regulate, and where possible to preserve the rights of the parties pending the final determination of the matter which is in issue, by the court. It is to preserve the position until the rights of the parties can be determined at the hearing of the suit. Put differently, a provisional order is meant to arrest the status quo, until such time that the rights of the parties are ascertained and determined by the court.

This one sought by the applicant is designed to subvert, undermine and disrupt the status quo. If granted it would result in the removal of the second respondent from the office of the mayor and installing the applicant. That is not the purpose of a provisional order. It is not the duty of the court to be removing mayors and installing mayors. This would amount to a text book case of judicial overreach.

In fact, granting such an order, would be in essence granting a final order through the proverbial “back door.” Applicant would have achieved what he desires in the final relief sought, that he be declared the mayor of Victoria Falls. A court must refuse to be hoodwinked into granting a final order disguised as a provisional order.

My view is that, applicant has failed, to establish a prima facie right, though open to some doubt, that he was elected mayor of Victoria Falls Municipality, and he has assumed office as the mayor and he has set out to perform his duties as such.

My finding is that applicant has not established a prima facie right. Therefore, the requirement that of a well-grounded apprehension of irreparable harm if the interim relief is not granted, and he ultimatelysucceeds in establishing his right, does not arise in this case. The balance of convenience does not favour the granting of interim relief, because applicant has not established a prima facie right.  On the facts of this case, this court cannot even start to engage the requirement of the absence of alternative remedy.

In the event this court were to accede to the request of the applicant, it will result in him taking over the mayoral office of Victoria Falls, and dislodging the second respondent. A writ might even be deployed to eject the person of the second respondent from the office of the mayor. This is not the purpose of a provisional order.

On the facts of this case, I take the view that an interim interdict sought by the applicant must be refused.

There remains to be considered the costs of the present application.   No good grounds exist for a departure from the general rule that costs follow the event.  The respondents have been successful in this litigation and are clearly entitled to their costs of the application.

Disposition

The onus is on the applicant, to establish a prima facie right, though open to some doubt, that he is entitled to the interim relief he seeks in this application. He has failed to discharge such onus.In the result, the following order is issued:the interim relief sought by the applicant is refused with costs of suit.

Ncube Attorneys, applicant’s legal practitioners

Attorney-General’s Office – Civil Division, 1st respondent’s legal practitioners

Ndove and Associates, 2nd respondent’s legal practitioners

Dube, Nkala & Company 3rd respondent’s legal practitioners