By Nonduduzo Kunene | 2019-10-21
EZULWINI Ward Four Councillor Nokuthula Mthembu has filed an urgent court application challenging her dismissal.
The application was submitted in the High Court on Friday by lawyer Mangaliso Magagula of Magagula and Hlophe Attorneys.
Chairperson of council Bongile Mbingo has been cited as the first respondent while Ezulwini Municipality is the second respondent.
In the court papers, Mthembu pleads that the matter be heard before October 31.
Mthembu wants to be reinstated as councillor for Ezulwini Ward Four and the respondents are interdicted from implementing or giving any decision of council declaring a casual vacancy in Ward Four Ezulwini Council. It is stated it should operate with immediate interim effect.
In addition, the applicant is calling upon the chairperson of Ezulwini council to show cause why reviewing and setting aside the decision of council to declare a casual vacancy in Ward Four should not be made.
It further wants the decision of the council to declare a casual vacancy in Ward Four Ezulwini Town Council to be declared null and void and of no effect and or force.
Therefore, if the respondents intend to oppose the urgent application, they should file their notice on or before today in the afternoon.
In her application, Mthembu seeks to review the council and municipal judgements. In her affidavit, she argues that as an elected councillor of Ward Four she held an elective office in terms of the constitution which could only be terminated as provided in the constitution.
It is stated that a municipal council does not have the right to constitutional authority to dismiss an elected councillor whose term of the constitution is similar to that of members of parliament.
“I was elected a councillor in 2017 and the term of office expires in 2022. The constitution does not provide for a dismissal of a councillor before the term of office expires.
Any law that that purports to confer such power on a Council is inconsistent with the constitution,” she stated.
Mthembu stated that the decision of the council to declare a casual vacancy in Ward four is null and void for several reasons.
Firstly, Mthembu through the court papers mentioned that the decision taken by the council which included the chairperson who had earlier agreed to recuse herself in the matter owing to her serious conflict of interest.
Despite declaring that she would recuse herself, she continued participating in the matter which vitiated the decision of council.
Secondly, she stated that the decision was taken by the council without affording her a hearing as required in terms of Section 33 of the constitution. In addition, Mthembu said the council misconceived its functions and took into account irrelevant considerations and ignored relevant ones.
On April 12, Mthembu was served with a letter from the council chairperson for absenteeism from council meetings.
In the letter which is also one of the supporting documents presented before court, it is stated that Mthembu had been absent from three meeting of the council dated January 21, February 27 and March 28 all in 2019.
It is stated that she was absent without permission or any leave of absence which should be sought from council.
The letter instructed her to show cause why a casual vacancy with respect of her position as councillor forWard Four in terms of section (f) of the Urban Government Act of 1969 should not be declared. Her response was expected no later than April 15, 2019.
In the application, Mthembu also stated that she was not aware of any council meetings apart from January meeting that she received any invitation for.
She stated that she could not attend that meeting and had informed the council in their last meeting which was held in November 2018 as by January she had to take her children to school in South Africa. Besides the January meeting, she said she had never received any information.
Mthembu also hinted that ever since she was elected she noticed she was being marginalised on issues and that there was a lot going on at Council behind her back. Therefore, it did not come as a surprise that there were meetings held in her absence for which she was not invited to.
Mthembu was elected as Ward Four councillor in 2017. She had been serving as an elected councillor for the ward since 2003.
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