NWDC ex-chairperson, deputy challenge ouster
Mpho Mokwape | Monday October 9, 2023 06:00
The two councillors, Kebareeditse Ntsogotho, a resident of Khwai and sitting councillor for Khwai-Mabebe ward and deputy chairperson Lekone Masoko who is a resident of Maun and a sitting councillor for Shashe Ward say they were illegally removed from office on May 30, 2023 following a special council meeting.
The duo has since filed a notice of motion before Lobatse High Court judge, Justice Reuben Lekorwe seeking amongst others an order reviewing and setting aside NWDC’s decision to remove them from their position as chairperson and deputy chairperson respectively in its special full council. They want the said decision to remove them from them be reviewed and set aside on the basis that it was invalid and unlawful.
“Consequently be declared that the election and/or appointment of new council chairperson and deputy chairperson be set aside on the basis that it is invalid and unlawful,” reads the court papers.
Furthermore, the councillors want the court to order that they be reinstated to the positions of Chairperson and deputy Chairperson respectively with full rights and benefits that would have accrued while they were removed.
Ouster from Office In the founding affidavit for the former chairperson Ntsogotho, he said on the said date of the special full council meeting before their removal he warned one council member, Ntlogelang Kebonyekgotla, that he was now debating any other business which was not part of the agenda for the meeting of May 30, 2023 and that was improper. Ntsogotho explained that the said councillor disregarded this advice and was supported by another member, Moetetse Mogalakwe.
“I indicated that since they were insistent in proceeding with the removal motion that I and my deputy would step aside to allow the meeting to decide on the matter since we are conflicted. We did so and the house elected Itumeleng Kelebetseng as an interim chairperson,” he said.
He pointed out that before the Kelebetseng assumed the said interim position, the council’s secretary warned the house that the issue pertaining to their removal from office was a new item which was not on his notice of May 25, 2023 and therefore it was unlawful. 23. Ntsogotho also said despite the secretary’s warning, Kelebetseng after taking over, ignored the advice and proceeded with the debate relating to their removal from office and ultimately a vote was conducted over the removal and that 20 members voted for their removal while six voted against the removal. He said his position in opposing the introduction of the removal from the office was premised on my interpretation of section 26 (3) of the Local Government Act, 2012 and standing order 33 (d) of KN 2 which read as: Section 26 (3) 24.1 "the notice of a special meeting shall specify the objects of the meeting and no other business may be discussed at that meeting" Standing order 33 (of the council’s standing orders) 24.2 "the notice of a special meeting shall specify the objects of the meeting and no other business may be discussed at that meeting other than the specified objects". “My interpretation of the two provisions is that once a notice of a special full council meeting is issued with agenda items, at such a meeting, it shall not be permissible to discuss any other business or add other agenda items during the course of such a special full council meeting,” Ntsogotho said.
He further noted that in moving to have them removed from office, such a decision was grossly irregular and incurably improper and main contention, being that special full council meeting under the Act lacks the competency to add the motion of no confidence on them such a move had the effect of adding other agenda items to the two that were contained in the notice of May 25, 2023. Subsequently he emphasized that for that reason alone, the decision to remove them must be set aside.
Election of new chairperson and deputy Ntsogotho said after their purported removal from office, the meeting was adjourned to 1530 hours for purposes of electing new chairperson and deputy chairperson and at that stage the meeting was still chaired by the Kelebetseng. He said Kelebetseng and Nico Folae were then elected new chairperson and deputy chairperson respectively pointing out that as a matter of fact, no election was held as the two were nominated unopposed and they were simply confirmed as such. “The decision to proceed with election of the new chairperson and deputy chairperson was said to be in terms of Standing Order 12 of the standing orders which provides that in the event where the office of the chairperson or deputy chairperson has become vacant from any cause during the term of office, a successor shall, within seven days of the meeting of the council after the vacancy occurs be elected by members of the council,” he stated. He said the interpretation was clearly flawed on the ground that the special meeting that had commenced at 10:00 hours was merely adjourned to the afternoon and was not closed and as a result the said move was in clear violation of section 26 (3) of the Local Government Act, 2012 and standing order 33. Moreover, Ntsogotho said the 1530 hours process was a special full council meeting to elect new leadership and should have been preceded by a seven day circulation of the notice in compliance with standing order 33 (c) of the standing orders.
“I am advised and verily believe that in the afternoon session, only a document reflecting the agenda of the afternoon session was shared at the commencement of the afternoon session. I respectfully beg leave to incorporate the contents therein as if specifically pleaded herein. This is directly similar to the agenda item that was shared for the meeting of. It is not a notice but simply an agenda item shared at the beginning of the meeting or a day before the meeting,” he said. The ex-chairperson added they did not attend the afternoon session as they believed that the move to convene a sitting for election of new council leadership was clearly and awfully wrong.
He stated that whichever way one looks at it, there is no other way to classify the afternoon session except to say that it was a continuation of the morning special full council sitting and alternatively it was a special full council sitting called without due notice. Defective notice Ntsogotho noted that at the time of the meeting, him and his deputy did not realise that they were in violation of standing order 33 (c), as the members were given five days notice as opposed to seven days notice. He explained that it was apparent that the notice was made on May 25, 2023 and it reached members on or about that date if not May 26, 2023. “This rendered the holding of the meeting of May 30, 2023 illegal. The notice was issued under the hand of the council secretary and I believe that we have made out a case for a clear right to remain in office as the decision to remove us was illegal and so was the appointment and/or election of the new leadership,” he said. The former chairperson said he accept that it is within the prerogative of the council to remove from office anyone of them, but such has to done in a properly constituted meeting.
He explained that any removal done outside the provisions of the law as in the instant case stands to be reviewed and set aside on the basis of illegality and invalidity. “I further aver that a decision to remove us from office cannot be made and effected in a special full council meeting which did not have removal as part of our removal as in het instant case.
I must further mention that the decision to remove us from office was made in bad faith by all members who caused issuance without following procedure because such was predetermined and was not premised on anything that occurred on the day,” said Ntsogotho. Factual background of the case According to the court papers, Ntsogotho and Masoko were elected chairperson and deputy chairperson on January 24, 2023 until they were allegedly removed illegally on the May 30, 2023. On May 25, 2023 council’s secretary issued a notice for special full council meeting to be held on the May 30, 2023. The said notice was issued pursuant to a request to convene a special full council meeting dated May 19, 2023 made by 20 ward councilors pursuant to Standing Order 32 (b) of the NWDC Standing Orders of 2018.
“The notice was evidently issued in terms of Standing Order 33 (a) of the 1st Respondent's standing orders revised in 2018 ("the standing orders*) and it clearly stated that it was convened to discuss the following items, update on the water situation in Maun, update on the progress of the Maun General Hospital project,” states the court papers.
The paper states that the notice of the meeting was circulated five days before the meeting and that was in clear violation of Standing Order 33 (c) of the standing orders; "the notice for special full council shall be sent or delivered to the members seven days before the date of the meeting" It is reported that the said meeting was held as scheduled on May 30, 2023 at 10:00 hours, and Ntsogotho in his capacity as the council chairperson chaired it, and his deputy and that the report on the first agenda item, "update on the progress of the Maun General Hospital project" was presented by an officer from the Department of Facilities Management and Ntsogotho gave councilors an opportunity to deliberate on the said presentation. Accordingly, councillor Ntlogelang Kebonyekgotla was said to be the first member to take to the floor and instead of dealing with the said agenda item, he allegedly briefly pointed out certain aspects of the report and immediately moved a motion for removal of the chairperson and his deputy from the offices respectively.