Ending three days of legal jousting, the Cape High Court reserved judgement on Thursday in a case that will decide the future of axed Cape Town city manager Wallace Mgoqi.
Judge Deon van Zyl said he was ”painfully” aware of the urgency of the matter, but would need time with his two fellow judges on the full bench to consider the arguments of both sides.
He said judgement would be prepared ”as soon as possible”.
Van Zyl, sitting with judges Abe Motala and Andre Blignault, is being asked to decide on two matters — an application by Mgoqi to declare a city-council meeting on April 10 invalid and unconstitutional; and an interlinked application by the city to set aside former mayor Nomaindia Mfeketo’s unilateral decision to extend Mgoqi’s contract by one year.
On Thursday, Norman Arendse, counsel for Mgoqi, filed a supplementary note in response to argument the previous day by Ashley Binns-Ward for the city.
In the note, Arendse said there are four reasons why he regards the council’s April 10 decision to revoke the contract extension as ”unlawful and unconstitutional”.
These are that it was an administrative action as defined in the Promotion of Administrative Justice Act, that the decision was inconsistent with Mgoqi’s labour rights, that it violated a principle of law, and that the city acted unconstitutionally and in a ”procedurally unfair manner”.
Arendse said Mgoqi had not been given an opportunity to state his case before being dismissed, and argued that the court should not give effect to setting aside Mfeketo’s decision, even on technical grounds.
This would lend credence to the discredited dictum that ”giving someone a hearing will make no difference”.
He said the matter should be referred back to the council and for it, sitting as an employer, to give Mgoqi a hearing.
Arendse said pending the court’s judgement Mgoqi is entitled to regard himself as the city manager, and as such, should have his costs covered by the city — as are Mfeketo’s. Mfeketo is the second respondent in the case. The city has said it will pay her costs, but not Mgoqi’s.
Replying for the city, Sean Rosenberg, standing in for Binns-Ward, said all the rights apparently violated in respect of Mgoqi were predicated on the fact that his appointment was valid. The city contends that it was not.
Rosenberg said the questions raised in Arendse’s supplementary note were not ”properly” raised in papers, particularly the non-compliance with the Promotion of Administrative Justice Act.
Rosenberg said the right to a hearing was also predicated on whether the decision to revoke was an administrative action as defined in the Act.
This prompted Van Zyl to ask whether Mgoqi should at least have been given an opportunity to state his case.
”Would that not have been fair and equitable?” asked Van Zyl, to which Rosenberg answered that Mgoqi, who is a lawyer, knew about the council meeting and could have put in a submission.
On Wednesday, Binns-Ward criticised Mfeketo’s decision to reappointment Mgoqi, saying Mfeketo ”has not given an account of her decision which bears scrutiny”.
Binns-Ward questioned Mfeketo’s authority to grant the extension, suggesting that the power to appoint a municipal manager was a ”non-delegable power” of a municipality.
”It is plain that Mfeketo exceeded her powers, and her actions in purporting to reappoint Mgoqi were unlawful and legally void,” Binns-Ward said, mentioning also her affidavit before court that did not shed any light on her reasoning for making the crucial decision on the eve of the local government elections. — Sapa