Only the Constitutional Court can help axed Cape Town municipal manager Wallace Mgoqi after his bid to appeal a high court decision against him was dismissed on Tuesday.
The Cape High Court dismissed with costs Mgoqi’s appeal against a full-bench decision in May, setting aside a one-year extension of his contract as city manager.
”In short we have not been persuaded that there is a reasonable prospect that another court may come to a conclusion different from that to which we have come,” Judge Deon van Zyl said in a written judgment handed down.
Van Zyl said Mgoqi’s counsel, Norman Arendse, did not advance any new arguments or refer to any case law not already considered by the court in deciding the issues.
Mgoqi had applied for leave to appeal to the Supreme Court of Appeal against ”the whole of the judgments and orders” handed down by the full bench on May 19, arguing that the court had erred.
The full bench 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 former mayor Nomaindia Mfeketo’s unilateral decision to extend Mgoqi’s contract by a year.
Judge Deon 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.
Recapping arguments led in court during the case, Van Zyl said the central issue was whether Mfeketo had the power to extend Mgoqi’s contract.
Noting the only ground of appeal directed at those findings, Van Zyl said the court’s first alleged error appeared to be based on a distinction between an appointment and the extension of an existing contract.
”… this amounts, it would appear, to a distinction without a difference. The real question is whether Alderman Mfeketo had the power to conclude any such contract with Dr Mgoqi. We concluded, on a number of grounds, that she did not have such power,” Van Zyl said.
He said the second alleged error was couched in ”broad and general terms” and did not warrant an analysis of the grounds of review again.
On the question of awarding costs against Mgoqi, Van Zyl agreed with submissions by Ashley Binns-Ward, representing the Democratic Alliance-led city council.
”He [Mgoqi] has now made a conscious decision to bring an application for leave to appeal in which he seeks to attack virtually all the findings … irrespective of their legality or constitutionality. In doing so he has exposed himself to the eventuality that this court might not be persuaded to grant such leave.
”It cannot be said that this is in the public interest that he should do so. It would hence appear that the usual principle should now be applied, namely that the city, as the successful party, should be entitled to costs,” said Van Zyl.
Mgoqi’s attorney, Clem Druker, confirmed after the court’s ruling that his client would now await the outcome on an application to the Constitutional Court to hear the matter. — Sapa