Makana Citizens Front (MCF) members will have to wait until further notice to learn the fate of their organisation’s leaders after a Makhanda High Court judge reserved judgment in an application to order the Makana Municipality to act on an Electoral Court judgment.
On 13 May 2024, the Electoral Court ordered that erstwhile MCF Proportional Representation (PR) councillors Lungile Mxube, Philip Machanick, Kungeka Mashiane, Jonathan Walton and Jane Bradshaw, who were kicked out by a rival faction in the organisation, be reinstated and the five councillors who replaced them – Lungisa Sixaba, Thandisizwe Matebese, Amanda Deke, Zonwabele Mantla and Milo Geelbooi, vacate their council seats.
The court had reviewed and set aside the decision to convene and conduct a disciplinary hearing at which it was decided to expel Mxube and his four fellow councillors on 14 February 2022 and replace them with Sixaba, Matebese, Deke, Mantla and Geelbooi.
However, the Makana Municipality had not implemented the court’s order or the Electoral Commission of South Africa’s (IEC) subsequent instruction to reinstate Mxube and his four fellow councillors and remove the incumbent five.
The municipality cited the five councillors’ intention to appeal the Electoral Court’s decision as the reason it did not implement the court’s order.
Spokesperson Anele Mjekula said an application for leave to appeal by the five councillors had suspended the Electoral Court judgment.
However, represented by Advocate Izak Smuts, instructed by Wheeldon Rushmere & Cole Inc, this week Mxube and his four fellow councillors sought the intervention of the Makhanda High Court.
They filed a semi-urgent application in which they sought an order directing the Makana Municipality to register the five of them as councillors of the municipality back dated to 12 April 2022.
They further asked the court to interdict the municipality, council Speaker Mabhuti Matyumza and municipal manager Pumelelo Kate, to stop them from preventing the five of them from “exercising their constitutional rights as councillors” of Makana Municipality. The third relief sought by the applicants was for the three parties to pay the costs of the application.
In their heads of argument, the applicants (Mxube and his four fellow councillors) pointed out that the five respondents (Sixaba and his four fellow councillors) claimed that they had always adopted the stance that they had “no wish to become directly involved in the internal party dispute” between the two factions.
The applicants said the municipality, Matyumza and Kate had abided by the decision of the Electoral Court, only objecting to back payment of remuneration to the applicants.
The applicants conceded that the Electoral Court had declined to make an order for back payment of remuneration. They said it was clear that the back payment issue did not form part of the court order. However, despite this, the municipality, Matyumza and Kate opposed the high court application.
The applicants accused the municipality, Matyumza and Kate of failing to carry out their undertaking to “fully and timeously comply with all the orders of the Electoral Court”. “The undertaking rings hollow when no consideration is given to [their]actions. [They] do not answer the applicants’ allegations that on 30 May 2024, [Matyumza] precluded the applicants from attending a council meeting regarding the adoption of a second adjustment budget and that he allowed the other five councillors to remain in attendance and vote on the local council budget, notwithstanding the fact that their appointment had been set aside by the Electoral Court.”
They further argued that the municipality, Matyumza and Kate were aware of the Electoral Court judgment, only arguing that they were of the view that the order was suspended as a result of the application for leave to appeal.
However, in their high court case, the applicants pointed to Section 96 (1) of the Electoral Act which states that the Electoral Court has final jurisdiction and no decision of the Electoral Court is subject to appeal or review.
Meanwhile, lawyer Ashley Basson, appearing for Sixaba and the four councillors, argued that the high court did not have jurisdiction to hear the matter and the judge should dismiss the application.
In their papers, the respondents opposed the application, alleging that the applicants had failed to make out a case for urgency.
The respondents further argued that the applicants had failed to make out a proper case for the high court to exercise its discretion to grant the order. They argued the applicants had failed to satisfy the requirements for mandatory relief.
However, the applicants maintained they had an urgent case in that the incumbent councillors were drawing salaries that are budgeted for duly elected councillors, and voting on matters where they have no entitlement to do so.
“It is submitted that public policy dictates that this matter be dealt with on an urgent basis so as to halt the harm to the applicants and to the public.”
Smuts dismissed the respondents’ assertion that the matter should rather be heard by the Electoral Court.
Appearing for the Makana Municipality, advocate Richard Buchanan, said the municipality would abide by any decision the court arrived at, but sought to absolve the municipality from any liability to pay costs for the court application.
Meanwhile, the ongoing leadership dispute within the MCF had caused friction in the Makana Municipal council and, as reported by Grocott’s Mail previously, law enforcement officers were once summoned to a special council meeting to remove Mxube and two councillors in his faction.
