Upholding the city of Cape Town’s decision to revoke a contract extension for city manager Wallace Mgoqi, the Cape High Court on Friday agreed that former mayor Nomaindia Mfeketo had had no power to do so.
”Inasmuch as Alderman Mfeketo exceeded her authority in purporting to amend the terms of her delegated power, her decision to extend Dr Mgoqi’s contract was fatally flawed and hence unlawful and invalid,” said Judge Deon van Zyl in his 64-page written judgement.
A full bench of the court was asked to decide on two matters — an application by Mgoqi to declare a council meeting on April 10 as invalid and unconstitutional; and an interlinked application by the city to set aside Mfeketo’s unilateral decision to extend Mgoqi’s contract by a year.
Van Zyl, with judges Andre Blignault and Abe Motala concurring, set aside Mgoqi’s contract extension as unlawful and invalid and ordered that Mgoqi vacate his office at the civic centre.
Mgoqi’s application was dismissed.
Ashley Binns-Ward, on behalf of the city, had argued that should the city’s application succeed to set aside Mfeketo’s decision, then the relief sought by Mgoqi would be moot.
Binns-Ward challenged Mfeketo’s decision to extend the contract, saying the reasons provided by her were highly unsatisfactory. The judges unanimously cleared Mfeketo of acting in bad faith, but her lawyer was criticised for not advising her properly.
Referring to a ”somewhat confusing array of defences” presented by Mgoqi’s counsel, Norman Arendse, the court found that the audi alteram partem (hearing the other side) principle could only be invoked if Mgoqi’s contract had been legal.
Similarly, the defence of arbitration was rejected, as was the defence of legitimate expectation and ”unclean hands”.
Mgoqi’s application sought an order declaring that the decision of the Speaker to call a special meeting on April 10, was unconstitutional and invalid.
The court dismissed this, saying that counsel now wanted all decisions taken at the April 10 meeting to be declared unconstitutional and invalid.
”His [Mgoqi’s] attack remained, so it would appear to have been of a procedural nature in that it was directed at setting aside the Speaker’s decision to call a section 59(3)(a) meeting. If indeed his intention had been to seek the invalidation of all the proceedings at the meeting of 10 April 2006, I would at least have expected that an appropriate amendment of the notice of motion be moved,” said Van Zyl.
At court Mgoqi’s attorney, Clem Druker, said they would first have to study the judgement, before deciding on a possible course of action, including an appeal.
Mcebisi Skwatsha, one of a number of ANC provincial executive committee members attending proceedings, said the ANC needed to study the judgement before commenting.
”We are saddened but totally accept” the decision of the court, he said.
Skwatsha said the ANC, which was actively agitating against the DA-led coalition government of the City of Cape Town, was ”very curious” about the judgement — particularly what it said about the March 15 council meeting.
During this meeting the incumbent mayor, the Democratic Alliance’s Helen Zille, narrowly defeated Nomaindia Mfeketo to the mayoralty.
Skwatsha reasoned that if Mgoqi’s contract extension had been invalid, he was then presiding illegally at the meeting. Thus the election of Zille and Freedom Front Plus speaker, Dirk Smit, was also illegal.
In the judgement, the court does not deal explicitly with this matter, saying for present purposes it was not necessary to decide the issue.
”Neither Dr Mgoqi, nor any other person, has to date challenged the election of the mayor or Speaker… If and when these questions are properly challenged, they may be considered by a court dealing therewith,” said Van Zyl.
The Independent Democrats’ caucus leader in the city, Simon Grindrod, said in reaction to the ruling that the DA might now have to accept the first meeting of the newly-elected council, over which Mgoqi presided, was also unlawful.
”They cannot have it both ways,” Grindrod said.
”As the city manager was occupying his position illegally, it may be the case that the election of the mayor and Speaker must now be declared invalid.” – Sapa