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[2018] ZAWCHC 22
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De Lille v Democratic Alliance and Others (2153/18) [2018] ZAWCHC 22; [2018] 2 All SA 464 (WCC); 2018 (4) SA 171 (WCC) (14 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
[
Reportable
]
Case No: 2153/18
In
the matter between:
PATRICIA
DE
LILLE
Applicant
and
DEMOCRATIC
ALLIANCE
First
Respondent
THE
SPEAKER OF THE MUNICIPAL COUNCIL
OF
THE CITY OF CAPE
TOWN
Second
Respondent
THE
CITY OF CAPE
TOWN
Third
Respondent
JUDGMENT:
14 FEBRUARY 2018
Henney,
J
Introduction
[1]
This is an interlocutory application brought on an urgent basis,
pending the hearing of Part B of this application to be heard
on a
later date. In this application, the Applicant (“the
Mayor”) seeks the following relief:
1.1
Interdicting and restraining members of First
Respondent’s (“the Party”) caucus for the City of
Cape Town (“the
caucus”) from participating in the motion
of no-confidence proceedings they instituted for the removal of the
Mayor as Third
Respondent’s (“the Council”)
Executive Mayor, which motion is to be considered on 15 February 2018
(“the
motion”), other than on the basis that each member
of the caucus shall be free to vote for or against the motion in
accordance
with the dictates of his or her own conscience.
1.2
Interdicting and restraining Second Respondent
(“the Speaker”) and the Council from proceeding with the
voting on the
motion unless it is by way of secret ballot.
1.3
Interdicting and restraining the Party’s
Federal and Provincial office bearers from influencing members of the
caucus on the
manner they should vote in respect of the motion.
[2]
The relief that the Mayor would be seeking in Part B is a declaration
that Clause 6.7 of the DA Caucus Regulations for the City
of Cape
Town be declared unconstitutional and inconsistent with the Local
Government: Municipal Structures Act
[1]
(“the Structures Act”). Furthermore, that the Rules
of Order Regulating the Conduct of Meetings of the Municipal
Council
of the City of Cape Town (“Rules of Order”) be deduced
inconsistent with the Structures Act to the extent that
it does not
confer a discretion on the Speaker to rule that voting on a motion of
no-confidence shall take place by secret ballot.
Lastly, that
Clause 3.5.1.12 of the Party’s Federal Constitution be declared
unconstitutional and invalid for being inconsistent
with the
Constitution of the Republic of South Africa
[2]
and the Structures Act. There is no dispute that this
application, due to the pending motion of no-confidence in the Mayor
scheduled for 15 February 2018, is urgent.
[3]
Mr Mpofu SC, assisted by Mr J de Waal, appeared for the Mayor.
Mr Jamie SC, assisted by Mr Michael Bishop, appeared for
the Party.
Mr Rosenberg SC, assisted by K Reynolds, appeared for the Speaker and
the Council.
Background
Facts and Circumstances
[4]
The Party instituted an investigation into the conduct of the Mayor.
After a report was submitted to the Party, the so-called
Steenhuizen report, which made adverse findings against the Mayor,
she was required to make representations to the Party as to
why she
should not resign from her post, or why the Party ought not to move a
motion of no-confidence in her. After she made
representations
to the federal executive (“FedEx”) of the Party, the
FedEx determined not to support any motion of
no-confidence in the
Mayor, until the Party and the City’s investigations had been
concluded.
[5]
The ANC, however, placed a motion of no-confidence on the agenda of
the council, against the Mayor. This led to a caucus
meeting,
held on 24 January 2018, where the members of the caucus were to
decide, by means of a secret ballot, whether a motion
of
no-confidence should be instituted against the Mayor.
[6]
A decision was taken by the caucus with 84 votes in favour of such a
motion and 59 votes against such a motion. It was
further
decided that the matter be referred to the FedEx, so as to decide the
best course of action. This resulted in a further
caucus
meeting, held on 29 January 2018, which was attended by Mr James
Selfe (“Mr Selfe”), the chairperson of the
FedEx and also
a member of the National Assembly of the Parliament of the Republic.
[7]
During this meeting, he told caucus members that they are bound by
the majority decision that the caucus has no-confidence in
the Mayor,
whether they agree or not. Later, after taking cognizance of
the UDM decision
[3]
(to which I
will refer to at a later stage), he qualified the statement by
saying: “
You
are bound to the caucus position unless you can compellingly
demonstrate that the conscience vote would demonstrably be for
the
advancement of good governance through quality service delivery and
accountability.”
[8]
At a further caucus meeting on 29 January 2018, which was attended by
Mr Selfe and other senior leaders of the Party, he said
that the
FedEx had decided that the caucus must be instructed to vote with the
ANC in support of the motion of no-confidence. He
once again
reiterated that the caucus decision was binding on all members of the
caucus.
[9]
According to the Mayor, many members raised objections to voting with
the ANC. Some indicated that the branches were unhappy
and
would not have been consulted. The counter argument was that
the decision was binding. Later on in that meeting,
it was
announced that the ANC had withdrawn the motion, so the discussion
was moot. Mr Selfe then said that the instruction
was for the
caucus to bring a separate motion of no-confidence, at the first
opportunity.
[10]
It is further common cause that in two further press statements on 31
January 2018, released by the FedEx, the Party caucus
in Cape Town
was authorised to lodge a motion of no-confidence in the Mayor. The
Mayor contends that the Party councillors
should be entitled to a
free vote, which implies a secret vote, whether or not to support the
motion of no-confidence which has
been tabled against her.
[11]
According to her, since the ANC has decided to withdraw the motion of
no-confidence in her, there is every chance that some
ANC councillors
would vote against the motion of no-confidence. And she
believes that other opposition members of the council
would also vote
against the motion. She also believes that councillors
representing other political parties, including the
ANC, would allow
a conscience vote.
[12]
The position in respect of councillors representing the Party,
however, is different in this regard, due to the existence of
clause
3.5.1.12 of the Party’s Constitution, which reads:
“
3.5.1
A
member ceases to be a member of the Party when he or she:
…
3.5.1.12 being a
public representative of the Party in a legislative body, in any
meeting of that legislative body, moves, seconds,
votes in favour of
or in any other manner supports a motion of no-confidence against a
member of the Party or member of another
Party with which the Party
is in coalition in that legislative body, except with the leave of
the Federal Executive;
....”
This
clause should be read with clause 6.7 of the caucus regulations,
which provides that:
“
All decisions
made by the caucus are binding on all members of the caucus. On
issues on which the Party allows a free vote,
no caucus decision may
derogate from that. (Currently, only the issue of abortion and
the death penalty allow a free vote).”
[4]
[13]
The Mayor submits that this must also be read with clause 19 of the
caucus regulations, which allows for the amendment of the
caucus
regulations by a two thirds majority vote; however clause 6.7 has not
been amended. According to her clause 6.7 is
entirely
inconsistent with the motion of no-confidence procedure provided in
section 58 of the Structures Act, and the principle
of
accountability, as explained by the Constitutional Court in the UDM
matter.
[14]
In order to get some assurance from the Party, the Mayor’s
attorneys, on 5 February 2018, addressed a letter via email
to the
Party’s attorneys, regarding whether it would permit caucus
members to exercise a free vote on the motion of no-confidence.
The
Party replied that the FedEx cannot instruct caucus members on what
decisions to take and that the Party was not aware
that the caucus
had taken a view on whether its members should have a free vote on
the motion. It stated, however, that the
FedEx would
communicate its position to the caucus that its members should be
allowed to vote according to their conscience and
that no person
would be disciplined on how they voted on this motion.
[15]
The Party further stated that from their perspective, there was no
need for a secret ballot to be used when the motion was
voted on.
Also, that this is a matter for the council to decide in terms
of its rules. As a result of this, the Mayor’s
attorneys,
on 6 February 2018, addressed a letter, via email, to the chairperson
of the caucus of the City of Cape Town, Ms Suzette
Little, wherein
she was requested to confirm by 7 February 2018 whether the caucus
had committed itself to seek a free vote, failing
which she would be
forced to institute proceedings against the Party.
[16]
This letter was also sent, via email, to Mr Selfe. In response
to this, Ms Little replied via email, which was also sent
to Mr
Selfe, in the form of an attachment that she had already sent to the
Mayor on 30 January 2018, that she had previously advised
the Mayor:
“
that James Selfe was of the opinion
that in terms of section 9.3.5 of the Party’s constitution, all
caucus members are bound
by the caucus decision, even those who did
not vote on that day. This is a majority decision and that is
what the caucus
is bound to.”
It
is common cause that after this communication was sent to the Mayor
these proceedings were instituted.
[17]
The Mayor in my view was clearly justified in bringing this
application, as a result of the fact that it was the Party’s
position at that stage that councillors were not permitted to vote
according to their conscience. Mr Selfe, in his Answering
Affidavit, in response to these allegations by the Mayor, states that
at the meetings of 29 January 2018 he informed the members
of the
caucus that they were bound to support the motion, unless the Party
indicated otherwise, and he understood that to be the
correct legal
position in terms of clause 9.3.5 of the Party’s Constitution.
Also that he repeated that view at the
meeting 31 January 2018.
[18]
He further states that subsequent to the Party receiving further
legal advice, it reconsidered its position. He says
the
leadership at the time then resolved that it would afford the members
of Council a conscience vote on the motion. This
fact was
communicated to the Mayor in the letter dated 6 February 2018.
[19]
He further states that although they did not purport to speak on
behalf of the caucus, in the time available to respond to
the letter
it was not possible to confirm the caucus’ position. And
that it appears the Mayor had accepted that that
was the Party’s
position and then she approached the caucus to ascertain its
position. When she did this, unfortunately
the chairperson of
the caucus did not ascertain what the caucus’ position was, in
the light of the Party’s decision
that there should be a free
vote. Instead, she forwarded an email reflecting the previous
position of the members of the
caucus, regarding support of the
motion.
[20]
He further stated that since 6 February 2018, the first caucus
meeting only took place on 12 February 2018, where they were
informed
that members would have a free vote and that no steps would be taken
against members, whichever way they voted. What
I find strange
about this explanation, however, is that when Ms Little replied to
the Mayor’s attorneys in the email dated
7 February 2018, which
was also sent to him, where it was stated that according to his (Mr
Selfe’s) opinion in terms of section
9.3.5 of the Party’s
Constitution all caucus members are bound by the caucus decision,
even though they did not vote on that
day, he did not correct Ms
Little or state that the Party, after having received legal advice,
did not hold that position any more.
[21]
What I also find astonishing was how Mr Selfe, as a member of the
National Assembly of Parliament, who may have taken part,
and his
Party has indeed taken part, in a motion of no-confidence against the
president of the Republic South Africa, after the
court in the UDM
case made a decision that members of Parliament have a right to vote
with their conscience, would have been ignorant
thereof when he on 29
January 2018 told members of his Party that they do not have the
right to vote with their conscience and
that a caucus decision binds
all members of the caucus, whether they agreed with it or not.
[22]
He had to know, or ought to have known, that not only members of the
National Assembly, but also councillors in a local government,
should
vote with their conscience, rather than on the instructions of how
their political party expects of them to vote, as happened
when the
ANC at national government level gave their members no choice but to
vote on the instructions or wishes of the Party.
And it is
difficult to accept that when he, on 29 January 2018 and 31 January
2018, told the Party caucus members that they
were not permitted to
vote freely and with their conscience, he acted in the belief that
that was the correct legal position.
[23]
In the light of this, in my view, the Mayor was justified in bringing
this application, because up until the afternoon before
this
application was heard in this Court, she was under the belief and
impression that members of the caucus of the City of Cape
Town could
not exercise their vote freely and with their conscience. The
Party was therefore, and rightly so, constrained
to accept that
members of the City Council caucus are by law entitled to vote freely
and with their conscience, without having
to acquire the permission
of the Party.
[24]
A motion of no-confidence constitutes a threat of the ultimate
sanction, which in this case, a council can impose on a Mayor
should
she fail or be perceived to have failed to carry out her
constitutional obligations. (Paraphrasing from paragraphs
10
and 43 of the UDM case where
Mogoeng CJ
,
held: ”…
These are crucial
accountability-enhancing instruments that forever remind the
President and Cabinet of the worst repercussions
that could be
visited upon them, for a perceived or actual mismanagement of the
people’s best interests…” and
“… It
constitutes one of the severest political consequences imaginable - a
sword that hangs over the head of the
President [in this case the
Mayor] to force him or her to always do the right thing.”)
[25]
In my view the resort to such a motion should be reserved for very
serious and extreme cases and should be exercised with due
care to
the rights of the person against whom it is directed, in this case
the Mayor. In my view, given the circumstances
preceding and
leading up to the decision to proceed with the motion of
no-confidence in the Mayor, she has made out a case that
she has a
prima facie right.
[26]
The only question to consider is whether the motion of no-confidence
vote should be exercised or executed by means of a secret
ballot.
The Mayor argues that it would defeat the whole purpose of
having a free vote if such vote were not by means of a
secret ballot.
She argued that members would still be subjected to
victimisation by Party bosses and they would not be able
to exercise
their vote freely, effectively and in accordance with their
conscience, and without undue influence, intimidation or
fear of
disapproval by others.
[27]
The Mayor is seeking the following relief from this Court: she asks
that this court should order that the Party instruct its
members of
the caucus to support the vote by a secret ballot, in respect of the
motion to be considered and voted on in the council
meeting on 15
February 2018.
[28]
I am not convinced that this Court is permitted in law to issue such
an order. I disagree with Mr Mpofu that it will
not breach the
separation of powers, and that it will not cross into the terrain of
the legislature in the local government sphere.
Mr Mpofu argued
that the order would not be directed at the Council, but at a
political party. I disagree, because
it will direct or order a
political party to exercise a specific function in the legislative
sphere of local government.
[29]
The Party, even though they are not in principle opposed to a vote by
means of secret ballot, argued that it would not be necessary,
and
further stated that voting by public representatives should, as far
as possible, be open and transparent. They in any
event argued
that in terms of the rules, the Council should make a decision
whether a vote should be by means of a secret ballot.
That is
also the position of the Speaker, as well as the Council. The
Speaker, however, contends that it is up to the
Council in terms of
the Rules of Order to make such a decision.
[30]
Neither the Structures Act nor the Rules of Order makes provision for
a vote to be held by means of a secret ballot. In
terms of the
Structures Act
[5]
, the election
of the Mayor should take place by means of a secret ballot, just as
in the case of the election of the President
of the Republic of South
Africa, where the Constitution of the Republic provides that such
election takes place by means of secret
ballot. There is,
however, just like in the case of the President, no provision made
that a motion of no-confidence in the
Mayor should take place by
means of a secret ballot. The Party, as well as the Speaker and
the City Council, argues that
rule 15.5 of the Rules of Order should
be used when the council is faced with a motion of no-confidence.
Rule 15.5 states:
“
Where
there is opposition to any proposal to be decided, voting must be by
a show of hands or by means of an electronic voting system
when
available, unless otherwise resolved.”
[31]
The Court was at pains to point out that if the decision – as
to whether a motion of no-confidence should take place
through the
mechanism of the secret ballot - were left to the Council, where the
majority of the members of the Council, if they
were opposed to such
a voting mechanism, would obviously vote against such a procedure,
and in such a case, a minority would never
be able to secure a vote
by means of the mechanism of a secret ballot.
[32]
The Court also pointed out to counsel that, given the interpretation
which the Constitutional Court in the UDM case adopted
to address
this lacuna, which was a purposive interpretation that would give
effect to the values enshrined in the Constitution,
of dignity,
equality, freedom, openness, accountability and transparency, and if
a similar approach is to be applied to the Rules
of Order, it would
be similar to the procedure used in the National Assembly, when
dealing with motions of no-confidence by means
of secret ballot.
[33]
The Court, when interpreting legislation, which includes the Rules of
Order as well as the Structures Act, must have regard
to the
following statement from the Hyundai case
[6]
:
“
[21] Section
39(2) of the Constitution provides a guide to statutory
interpretation under this constitutional order. It states:
'When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.'
This means that all
statutes must be interpreted through the prism of the Bill of Rights.
All law-making authority must be
exercised in accordance with
the Constitution. The Constitution is located in a history
which involves a transition from
a society based on division,
injustice and exclusion from the democratic process to one which
respects the dignity of all citizens,
and includes all in the
process of governance. As such, the process of
interpreting the Constitution must recognise
the context in which we
find ourselves and the Constitution's goal of a society based on
democratic values, social justice and
fundamental human rights. This
spirit of transition and transformation characterises the
constitutional enterprise as a whole.
[22] The purport and
objects of the Constitution find expression in s 1, which lays out
the fundamental values which the Constitution
is designed to achieve.
The Constitution requires that judicial officers read
legislation, where possible, in ways which
give effect to its
fundamental values. Consistently with this, when the
constitutionality of legislation is in issue, they
are under a duty
to examine the objects and purport of an Act and to read the
provisions of the legislation, so far as is
possible, in
conformity with the Constitution
.”
[34]
In coming back to this case, where there is an apprehension on the
part of the Mayor, and on the part of some of the caucus
members,
that by voting against the wishes of the Party, even though the Party
at the very last moment changed tack and decided
that each councillor
may exercise a free vote and may vote with their conscience, that
notwithstanding this assurance, Councillors
would still be hesitant
not to exercise their free vote in accordance with their conscience.
[35]
And one should have regard to the further concern raised, that should
it be left open to the full Council, that is made up
of a majority of
DA members, it will be difficult if not impossible to make a fair,
rational and constitutionally compliant decision
whether the
no-confidence motion should be voted on by means of a secret ballot.
There is a high probability that such a
decision would not be a
balanced and a fair one, if it is not taken by a non-partisan person
like the Speaker, who has to exercise
his or her duty in a rational
and constitutionally compliant manner. An interpretation
similar to that adopted in the UDM
case, must be given to the Rules
of Order and the Structures Act, which would render a fair, balanced
and constitutionally compliant
decision as to whether such a vote
should take place by means of a secret ballot.
This
court is therefore of the view that the person or authority that
would be best suited to make such a decision would be the
Speaker.
[36]
In this regard, the Court is of the view that the speaker has a
discretion, where he or she is called upon to interpret the
rules, in
terms of rule 4, which states: ”
The
ruling of the Speaker in regard to the application or interpretation
of these Rules and other procedural matters not dealt with
in the
Rules of Order is, once he/she has given his/her reasons, final and
binding.”
[37]
This particular rule, in my view, would grant the Speaker the
necessary discretion to make a decision whether a motion of
no-confidence should be decided by means of a secret ballot, until
the relief which the Mayor seeks in part B, has been determined.
[38]
The only difficulty the Court has at this stage, is that although an
argument was advanced along similar lines in the papers
of the Mayor
filed of record, no relief in such terms have been requested by the
Mayor. The Respondents though, in their
papers filed of record,
as well as their heads of argument, have adequately responded to the
submissions made by the Mayor in this
regard.
[39]
When this issue was raised, Mr Mpofu argued that they have prayed for
alternative or further relief and the Court would be
permitted to
grant such relief. He further argued that this being a
Constitutional matter which the court is deciding, the
Court within
its power in terms of the provisions of section 172 (1) (b) of the
Constitution of the Republic, “
may make
any order that is just and equitable”.
[40]
Mr Jamie cautioned that the Court should be mindful of the unintended
consequences such an order may have. Mr Rosenberg,
on behalf of
the Speaker, also cautioned that the Court should resist the
temptation to legislate in granting the alternative relief.
In
deciding what the appropriate relief would be in this case,
especially where it deals with a constitutional matter, the answer
once again lies in the Constitution.
[41]
In this regard the following was stated in the
Fose
[7]
case:
“
[19]
Appropriate relief will in essence be relief that is required to
protect and enforce the Constitution. Depending on the
circumstances of each particular case the relief may be a declaration
of rights, an interdict, a mandamus or such other relief
as may be
required to ensure that the rights enshrined in the Constitution are
protected and enforced. If it is necessary
to do so, the
courts may even have to fashion new remedies to secure the protection
and enforcement of these all-important rights.”
…
Further
also in the
Hoffmann
[8]
case:
“
[45] The
determination of appropriate relief, therefore, calls for the
balancing of the various interests that might be affected
by the
remedy. The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by
the infringement
of the constitutional right; second, to deter future violations;
third, to make an order that can be complied
with; and fourth, of
fairness to all those who might be affected by the relief.
Invariably, the nature of the right infringed and
the nature of the
infringement will provide guidance as to the appropriate relief in
the particular case. Therefore, in determining
appropriate
relief, 'we must carefully analyse the nature of [the] constitutional
infringement, and strike effectively at its source'.”
(See also
Du
Toit v Minister of Transport
[9]
and Park-Ross and Another v Director: Office for Serious Economic
Offences
[10]
.)
[42]
In my view, given the fact that none of the Respondents have
expressed any definitive and firm objection to a vote being held
by
means of a secret ballot, there is no reason why the Court should not
grant such interim relief. The exercise of such
a discretion is
an onerous one, where regard should be had to the particular facts
and circumstances under which such a motion
of no-confidence will be
taking place. In this regard
Mogoeng CJ
, in the
UDM
case, at para [86] - [88] had the following to say:
”
[86]
More
importantly, the power that vests in the Speaker to determine the
voting procedure in a motion of no-confidence, belongs to
the people
and must thus not be exercised
arbitrarily
or
whimsically
.
Nor is it open-ended and unguided. It is exercisable
subject to constraints. The primary constraint being that
it
must be used for the purpose it was given to the Speaker -
facilitation of the effectiveness of Parliament’s
accountability
mechanisms. Other constraints include the need
to allow Members to honour their constitutional obligations, regard
being
had to their sworn faithfulness to the Republic and irrevocable
commitment to do what the Constitution and the laws require them,
for
the common good of all South Africans.
[87] The Speaker is
chosen from amongst Members of the National Assembly. That
gives rise to the same responsibility to balance
party interests with
those of the people. It is as difficult and onerous a dual
responsibility as it is for Members, perhaps
even more so, given the
independence and impartiality the position requires. But
Parliament’s efficacy in its constitutional
oversight of the
Executive vitally depends on the Speaker’s proper exercise of
this enormous responsibility. The Speaker
must thus ensure that
his or her decision strengthens that particular tenet of our
democracy and does not undermine it.
[88] There must always
be
a proper and rational basis for
whatever choice the Speaker makes
in the exercise of the constitutional power to determine the voting
procedure.
Due regard must
always be had to real possibilities of corruption as well as the
prevailing circumstances and whether they allow
Members to exercise
their vote in a manner that does not expose them to illegitimate
hardships
.
Whether
the prevailing atmosphere is generally peaceful or toxified and
highly charged, is one of the important aspects of that
decision-making process.
”
(Emphasis added)
[43]
In coming back to this particular case, the Speaker of the Cape Town
City Municipality should be mindful, in exercising his/her
discretion, that in the City Council Party caucus, there is no
unanimity as to whether the Mayor should face a motion of
no-confidence
and that there could be members that would be inclined
to vote against the wishes of their own Party. Further, that
that
situation would affect their ability to exercise a vote freely
in accordance with their conscience, without fear and the disapproval
of other members of the Party.
[44]
In my view, there could also be no objection to an interim order,
pending the finalisation of Part B of the proceedings instituted
by
the Mayor, that the Speaker should, in terms of the rules, exercise
his/her discretion after taking into consideration all the
facts and
circumstances, as to whether the motion of no-confidence should be
decided by the mechanism of a secret ballot. In
my view, the
Mayor has also established a well-grounded apprehension of
irreparable harm if the interim relief is not granted.
[45]
The Mayor has also established the balance of convenience in her
favour for the granting of such relief, in that she will suffer
more
harm, if there is not a realistic chance (to be decided upon by the
Speaker) that at the very least the motion of no-confidence
is voted
on by means of a secret ballot, than the Respondents, who in
principle have no objection to a vote by means of a secret
ballot.
And furthermore, they would not be suffering substantially more
prejudice than her, should a vote by means of secret
ballot take
place.
[46]
It is common cause, given the circumstances and facts surrounding the
case, that the Mayor had no other satisfactory remedy
other than to
come to this Court for the relief that she is seeking. She was
in constant contact with the Party to enquire
whether the members of
the caucus would be allowed to exercise a free vote, by means of a
secret ballot. On the papers, at
the very least until 7
February 2018, she was placed under the impression that the members
of the caucus would not be permitted
to exercise a free vote and had
to come to this Court for relief. In my view therefore, the
Mayor has satisfied the requirements
for interim relief.
Costs
[47]
In an ordinary case, the usual cost order would be that the costs
should follow the cause, which means that costs would be
awarded to
the Mayor. In this case, although up to the stage when the
Founding Affidavit was filed and just immediately before
the
proceedings were about to commence on 13 February 2018, the Party in
its Answering Affidavit, and further on during the morning
of the
proceedings, made it clear that they do not oppose the relief which
the Mayor is seeking (that the councillors should be
allowed to
exercise a free vote and vote with their conscience), they also had
no objection that the motion of no-confidence to
be scheduled on 15
February 2018 should not be voted on through the mechanism of a
secret ballot. It would therefore not
be inappropriate to order
them to be responsible for the cost of the Mayor up to the time when
they filed their Answering Affidavit.
The Speaker and the
Council did not fundamentally oppose any of the relief that was
sought by the Mayor.
[48]
In the result therefore, I make the following order:
1.
By
agreement between the Applicant and the First Respondent, for the
purpose of the motion of no-confidence in the Applicant scheduled
for
15 February 2018 (“the MONC”), the members of the First
Respondent’s caucus of the City of Cape Town shall
be free to
vote for or against the motion, in accordance with the dictates of
their own consciences, and no member will face any
adverse
consequences from the First Respondent no matter how they vote on the
motion.
2.
It
is further ordered that pending the determination of Part B, that the
Second Respondent is hereby ordered to exercise his/her
discretion as
to whether the motion of no-confidence scheduled to be considered and
voted on at the Council meeting to be held
on 15 February 2018,
should be voted on by means of a secret ballot.
3.
That the First Respondent pays the costs of two
counsel up to the time when it filed its Answering Affidavit.
4.
I
make no costs order against the Second and Third Respondents.
5.
That Part B of this application shall be heard on
a date to be allocated by the Judge President, alternatively, the
first available
date on the semi-urgent roll.
__________________________
R.C.A.
HENNEY
Judge
of the High Court
[1]
Act 117 of
1998
[2]
Act 108 of
1996
[3]
United
Democratic Movement v Speaker of the National Assembly and Others
2017 (5) SA 300 (CC)
[4]
This
document could not be obtained on either the Democratic Alliance
website, or the City of Cape Town website.
[5]
“55. Election of executive mayors.—(1) If a
municipal council chooses to have an executive mayor it must elect
an executive mayor and, if the MEC for local government in the
province so approves, also an executive deputy mayor, from among
its
members at a meeting that must be held—
(a) within 14 days after the
council’s election;
(b)if it is a district council,
within 14 days after the last of the local councils has appointed
its representatives to the district
council; or
(c)within 14 days after the date with
effect from which the type of the municipality has been changed from
any of those mentioned
in section 8 (a), (b), (c) or (d), 9 (a),
(b), (e) or ( f ) or 10 (a) or (c) to any of those mentioned in
section 8 (e), ( f
), (g) or (h), 9 (c) or (d) or 10 (b).
(2)
A vacancy in the office of executive mayor or executive deputy mayor
must be filled when necessary.
(3)
The procedure set out in Schedule 3 applies to the election of an
executive mayor and executive deputy mayor.”
Read with Schedule 3: “6.
Election procedure.—If more than one candidate is nominated—
(a) a vote must be taken at the
meeting by secret ballot;
(b)each councillor present at the
meeting may cast one vote; and
(c)the person presiding must declare
elected the candidate who receives majority of the votes.”
[6]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In Re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smith NO and Others 2001 (1) SA 545 (CC)
[7]
Fose v Minister of Safety
and Security 1997 (3) SA 786 (CC)
[8]
Hoffmann v South African
Airways 2001 (1) SA 1 (CC)
[9]
2006 (1) SA
297
(CC) at para 33
[10]
1995 (2) SA
148
(C) at 161 B-H