August 30 2012 at 11:15

When a court finds that the highest official of a municipality tried to conceal important information and was economical with the truth, what should happen to the person concerned?

A new judgment from the East London High Court flags this issue after Judge John Smith slated the behaviour of Buffalo City’s municipal manager, Andile Fani.

The judge was considering an application by the municipality for the setting aside of a previous court decision. This was granted by default on April 3 when no one from the municipality pitched in court to oppose the original case brought by Johan Koekemoer.

He had asked that the court order the municipality to transfer to him ownership of a steep strip of land next to his house so that he could make his driveway less dangerous. About 25 years ago the municipality agreed to sell to a previous owner of the house, but transfer was never finalised.

Three conditions must be met before a court will agree to scrap a default judgment: a “reasonable explanation” must be given for why no one came to court to oppose the original application; and the defaulting party must show both that it has a real defence to the original application; and that it is acting in good faith by trying to have the default judgment set aside.

After hearing both sides, Judge Smith said the municipality had failed to satisfy even one of these conditions.

Explaining why the municipality failed to pitch in court, Fani said he only became aware of the matter a week after the judgment was granted. He said the papers had been served on the wrong person, the general receptionist, who “could not recall” what she had done with the papers.

Fani said that when Koekemoer’s attorneys reminded the municipality’s legal services department a few days before of the April 3 hearing, the municipal attorney couldn’t find the papers. Then she took sick leave for a week, but she sent a message to a colleague in the legal department reminding him of the matter. He was in a meeting and did nothing.

Judge Smith was unimpressed. The municipality could not challenge the validity of the notice of service simply because its receptionist could not remember what she had done with the papers, he said. In addition, the two municipal attorneys were “grossly negligent”.

“The municipality is an entity with vast resources, including a legal services department. It also regularly instructs firms of attorneys to act on its behalf.”

Fani argued that the municipality had a real defence in that the sale had “lapsed” because the premier’s approval had not been obtained.

But the judge said Fani had been “less than forthcoming with the court” about the facts. A 1995 circular by the premier to provincial municipalities, found by Koekemoer’s lawyers, laid down the process for the selling off of municipal land. This new process had been followed exactly and internal letters, also handed in by Koekemoer’s lawyers, indicated that as far as all the relevant authorities were concerned, the sale had been approved. 

Koekemoer’s lawyers argued that the original judgment should stand and that the municipality should have to pay costs on a punitive scale to indicate the court’s disapproval of its behaviour.

They said Fani was “deliberately disingenuous” – legal-speak for not telling the truth – in that he withheld important information from the court showing that approval had been granted for the sale and that the relevant municipal officials were aware of this fact.

The judge agreed: Fani’s failure to disclose the documents and the fact that approval had been granted by the MEC inevitably led to the conclusion that Fani hoped Koekemoer would not be able to find the documents. This “regrettable” conduct was unbecoming of a senior official and was part of an attempt to “advance the municipality’s case”.

Of course it’s the same old, same old: one of the poorest parts of SA must carry the extra legal costs loaded on the municipality by way of punishment. In addition, many people will be disappointed by Fani’s less than transparent actions; he has been widely seen as a new broom, determined to give the municipality a fresh start after years of such corruption and maladministration that it barely functions.

But is “disappointment” enough? Surely an adverse finding by a court, couched in such strong words, should lead to an inquiry, if not immediately dismissal?

It’s the Eastern Cape we’re talking about, so don’t hold your breath.


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