How the SPTC mayoral case was fought

RYDER GABATHUSE
Staff Writer | Thursday April 21, 2011 00:00

 

When the case started in earnest at the Francistown High Court last Friday, it was apparent, sparks were going to fly in this legal battle.

The applicant in this case was Mukokomani represented by attorney David Ditiro assisted by his partner Kagiso Jani. On the other hand, the council's principal attorney Phillip Mokone represented the first respondent, SPTC.

The second respondent, Godfrey Mbaiwa represented himself. In presenting the applicant's case, attorney Ditiro preferred to deal with peripheral legal issues, which he felt were important to his case.

He addressed the court on the respondent's affidavits, which he argued were not properly filed in court. It was also his contention that the respondent's understanding of affidavits was doubtful. He therefore submitted that the affidavits be struck off the record.

'The affidavits filed by the respondents do not even attempt to deal with the pleadings of the applicant. They have failed to respond to specific allegations raised by the applicant,' said Ditiro. He added that it was even not easy, 'to determine the pleadings of the respondents'.

It was at this juncture that Francistown High Court judge, Justice Tshepho Motswagole interjected: ' But when reading the affidavit, in whole, you will realise that it contradicts the applicant attorney's aversion.' He stressed that considering the fact that the matter was brought before court under a motion of urgency his court would tend to condone the stated omissions.

It was the applicant's attorney who insisted that the Town Clerk, Kutlwano Matenge, did not authorise anyone to depone to the disputed affidavits. It was common cause in a number of affidavits that the police officer(s) who commissioned them did not specify his/her rank, as the law requires.

After reading High Court Order 5 rule 1, first respondent attorney, Mokone, sought the court's condonation on the irregularities picked on the affidavits. 'I will be inclined to seek condonation My Lord, in regard to some irregularities raised by learned counsel. That the answering affidavit of Matenge does not address the applicant's founding affidavit point by point,' he said.

On the next affidavit of the Deputy Town Clerk, Mompati Seleka, Mokone addressed the court on the significance of Seleka's affidavit to the respondent's case. In particular, he said Seleka's affidavit goes on to elaborate what Matenge has already laboured on. When asked by the court if he thinks this particular affidavit was necessary, Mokone emphasised: 'It was done out of abundance of caution My Lord.' But the court's major concern about the disputed affidavits was whether such were referred to in any of the affidavits. At this juncture, Mokone whose legal ship was now apparently sinking endured the wrath of the court.

'I think the learned colleague has conceded my lord that the deponent (in the disputed affidavit of Kgakgamatso Ramatlopi) is referred to in the affidavit of Matenge,' he had said. He sparked condemnation from the court as Justice Motswagole angrily retorted: 'I think counsel you are simply taking advantage of the leniency of this court.' Even after Mokone had tried hard to convince court that Ramatlopi was mentioned more than four times in the affidavit of Matenge, Justice Motswagole further cautioned him: 'I say it's irrelevant to stick to the affidavit of Matenge. If a counsel takes advantage of the leniency of the court, it therefore challenges the court to adopt the stringent approach.'

'You have failed on the basis of proving to show that the affidavit of Kgakgamatso makes him an important person. Otherwise, I am now tempted to strike that out. Look, now I am doing the case for you although you are paid for doing your job,' said Justice Motswagole.

In the end, the court ruled in favour of the applicants and struck off the affidavits of Mmapula Phuduhudu, Mompati Seleka, Evelyn Kgodungwe, Tebogo Matlhogonolo, Odirile Kelebetse, Molefe Molatlhegi, Dorcus Letlhogela and Mogae Ketshogile.

'The above listed affidavits are struck off the record either because their submission was improperly done or they were not properly commissioned amongst others. The aforementioned deponents shall bear the costs of the application,' pronounced Motswagole. On the other side, the applicant won the bid to have paragraph 8 of the applicant (SPTC) struck off record with first respondent directed to pay the costs of the application. When quizzed by Justice Motswagole if he intended to apply to file proper papers, and whether he would seek leave to have the affidavits properly sworn to, Mokone replied: 'I am not intending to apply for a postponement. I would not even seek leave to submit the corrected version.'

Just before the court adjourned briefly, Justice Motswagole reminded both parties that there were four points that he wished the learned colleagues could premise their arguments of the civil litigation going forward.

* He preferred the counsels to address the issue of statutory notice, and that is, whether the case was properly brought before him or not;

* Whether there is a provision, which entitles the councillors to remove a councillor from office;

* To determine if there is anywhere in the applicant's affidavit dealing with the terms of office of the mayor; and* Whether it was proper for the mayor to stop the council meeting without hearing the other party. And whether it was appropriate for a man to preside over a meeting that seeks to remove him from office. Addressing the court on the matter of the statutory notice, applicant's attorney, Ditiro said: 'We have to agree that no statutory notice was given. This is solely because this matter started off as an urgent application,' he said and added: 'I have seen a court of appeal decision stating that the statutory notice can be waved and such a waiver should be done by the local authority itself.'

He further argued that the SPTC has waved its right to be given the notice because they chose to oppose the litigation. On the mayor's two-and-a-half years stay in office, the court suggested to the applicant's attorney that he should have indicated that the mayor was appointed on such and such a day and that his term of office has not yet expired.

The court then read Township Act regulation 11(1), which talks about the elections of the mayor. It says the mayor shall be elected every two-and-a-half years through a secret ballot. It further says that the mayor shall remain in office unless he resigns or is disqualified or ceases to continue with office.

The court further read the powers given to the minister in removing a councillor from office of the mayor. But it was noted that in the material case, there was no dispute that it was not the minister who removed the mayor from his office.

Justice Motswagole registered a great concern when it came to the question he had asked as to whether it was proper for the mayor to stop the meeting without hearing the other side.

He then quickly raised a concern that by refusing to hear the other side, which defeats the principle of natural justice, 'Mukokomani behaved as if he owned the council. He should have heard both sides whether it was trash. But Mukokomani chose not to even take advice from anyone.'

The applicant's attorney was strongly opposed to a feeling that Mukokomani had pecuniary interest in the motion of no confidence debate against him to the extent that he should have recused himself.

'I find it strange that the mayor should have recused himself from a debate where a decision where an adverse decision would be taken against him through vote,' said Ditiro. Justice Motswagole was of the view that, 'Mukokomani should have stepped down from chairing the debate and debated the motion like everybody else rather than frustrating the principle of natural justice.'

When given an opportunity to present the first respondent's position, counsel Mokone started off on the wrong footing. He conceded that an impression was created that certain procedures, which would have been carried in proceedings, would not be feasible.

His response then invited questions from the court. Justice Motswagole demanded to know why Mokone could not give statutory notice. His answer was that for the first respondent to have decided on the waiver, it means they could have just come up with a resolution. He emphasised that the SPTC had a duty to come to court and comply with the order. He also indicated albeit he somersaulted at a later stage 'by conduct the SPTC had waved its right.'

Justice Motswagole then pointed out that it was his first time to witness such a concession. He then reminded Mokone: 'I am afraid counsel, there is nothing showing that the SPTC has waved its right. What are the principles for a waiver to operate,' demanded the court.

Mokone seemed to be irritating the court so much that Justice Motswagole further reminded him: 'Mokone listen, you don't have the patience of listening, even when you know I have the fate of your clients in my hands. Council is creation of statutes, yet it's proving difficult to produce a regulation which deals with removal of someone from office.' Motswagole raised a concern that he had a problem in understanding the omission by the minister not to remove Mukokomani from office. Addressing the court on the issue of pecuniary interest, Mokone stated that in view of the provisions of regulation 10 was from the time the motion-of-no-confidence was brought up. He emphasised that the mayor was supposed to have declared his interest in that the position of the mayor attracts a substantial lucrative benefits. 'Where it is proposed that a person of the position of the mayor is to be removed from office, then such a person would have pecuniary interest in such a matter,' argued Mokone. He then cited the supporting authorities.

After listening to both parties, Justice Motswagole sought time to avoid 'giving a half-baked decision'.