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2020
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[2020] ZAWCHC 102
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Plaaslike Besorgde Inwoners (PBI) and Others v George Municipality and Others (7529/2020) [2020] ZAWCHC 102 (24 August 2020)
IN
THE HIGH court of South Africa
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NO:
7529/2020
In
the matter between:
PLAASLIKE
BESORGDE INWONERS
(PBI)
1
st
Applicant
AFRICAN
NATIONAL CONGRESS
(ANC)
2
nd
Applicant
ECONOMIC
FREEDOM FIGHTERS
(EFF)
3
rd
Applicant
SOUTH
AFRICAN CIVICS
(SAC)
4
th
Applicant
AFRICAN
INDEPENDENT CONGRESS
(AIC)
5
th
Applicant
VIRGIL
GERICKE N.O
(PBI)
6
th
Applicant
NOMAWETHU
GUSHMAN N.O
(ANC)
7
th
Applicant
MBULELO
MAGWALA N.O
(EFF)
8
th
Applicant
MERCIA
DRAGHOENDER N.O
(SAC)
9
th
Applicant
KHUMBULELE
MKHONDO N.O
(AIC)
10
th
Applicant
and
GEORGE
MUNICIPALITY
1
st
Respondent
MUNICIPALITY
MANAGER OF
GEORGE
2
nd
Respondent
SPEAKER
OF GEORGE MUNICIPAL
COUNCIL
3
rd
Respondent
MAYOR
OF GEORGE
MUNICIPALITY
4
th
Respondent
DEMOCRATIC
ALLIANCE
(DA)
5
th
Respondent
Date
of hearing: 07 August 2020
Date
of Judgment: 24 August 2020 (delivered via email to the parties’
legal representatives)
JUDGMENT
INTRODUCTION
[1]
This application was brought on an urgent basis wherein the
applicants seek an order “
[r]eviewing,
declaring null and void and setting aside the mayoral election of 22
May 2020 for the position of mayor of the George
Municipality”.
During
argument, the applicants abandoned relief sought in prayers three and
four of their notice of motion which for purpose of
this judgment
became superfluous.
[2]
By the time that the applicants filed their replying papers, the
fourth applicant had withdrawn its mandate and did not participate
in
the proceedings when the matter was argued. When I refer to the
applicants, it is to the exclusion of the fourth applicant.
[3]
The first to fourth respondents (“the respondents”)
opposed the granting of the relief sought, and the fifth respondent,
namely the Democratic Alliance, (“the DA”) did not
participate in the proceedings.
[4]
The first to fifth applicants are political parties registered to
participate in political activities and elections in the national,
provincial and local spheres of government. The sixth, seventh, ninth
and tenth applicants are whips of the first, second, fourth
and fifth
applicants respectively, whereas the eight applicant is the regional
secretary of the third applicant.
[5]
The first respondent is a Municipality (“the Municipality”)
as referred to in Chapter seven of the Constitution
of the Republic
of South Africa, 1996 (“the Constitution”) and regulated
in terms of, amongst other legislation, the
Local Government:
Municipal Structures Act 117 of 1998 (“the Structures Act”).
The second respondent is the municipal
manager of the Municipality,
the third respondent, its speaker and the fourth respondent is its
newly elected executive mayor.
[6]
At the times relevant to this matter, the DA was in control of the
Municipality. On 22 May 2020, a council meeting and an election
for
its executive mayor for the Municipality took place, resulting in the
election of the fourth respondent who is a member of
the DA. It is
this election which the applicants seek to have set aside. In doing
so, the applicants raised two main issues for
this court to decide,
namely first, whether the speaker, who is also a member of the DA,
deliberately manipulated the timing of
scheduled council meetings by
cancelling or postponing them until he was sure of the successful
election of the fourth respondent,
and second whether the meeting of
22 May 2020 and the election process was marred by irregularities.
[7]
I am indebted to both counsel who appeared in this matter before me.
Mr Fisher appeared for the applicants and despite having
accepted his
brief on short notice, argued with compassion and professionalism. Mr
Breitenbach acted for those respondents who
opposed the relief
sought. I am indebted for his detailed heads of argument setting out
all relevant legislative provisions.
THE
LEGISLATIVE FRAMEWORK
[8]
Since this matter concerns the election of the executive mayor of the
Municipality, it is apposite to consider, to the extent
necessary,
the applicable legislative framework.
The
Constitution
[9]
Chapter 7 of the Constitution provides the framework for the
establishment of local government, which no doubt occupy an important
role in our constitutional democracy. The chapter makes provision, in
section 152, for the establishment of municipalities for
the whole of
the territory of the Republic. It sets out the objects of local
government, which are -
“
a)
to provide democratic and accountable government for the local
communities;
b)
to
ensure the provision of services to communities in a sustainable
manner;
c)
to
promote social and economic development;
d)
to
promote safe and healthy environment; and
e)
to
encourage the involvement of communities and community organisations
in the matters of local government.”
The
above clearly demonstrates that local government, as a third sphere
of government, plays a critical role in our democracy, with
an
objective to involve communities within the whole democratic process
on which our constitutional democracy is built. The election
of not
only those representative to municipal councils, but also those who
hold important positions on those counsel are of vital
importance.
The
Structures Act
[10]
The Structures Act, as well as the
Local Government: Municipal
Systems Act 32 of 2000
are the main pieces of legislation giving
effect to the provisions of Chapter 7 of the Constitution. For
present purposes, it is
only necessary to consider the provisions of
the Structures Act.
[11]
The Structures Act makes provisions for various different types of
executive systems in local government, but it suffices to
state for
present purposes that an executive mayoral system has been adopted in
respect of the Municipality. In accordance with
this system the
municipal council elects an executive mayor to whom certain executive
functions are delegated, as set out in section
56 of the Structures
Act. The executive mayor plays an important role within the
municipality, such role including identifying
and evaluating the
needs of the community, recommending strategies to the municipal
council, etc. In addition, the executive mayor
is required to perform
duties and functions delegated by the council and to oversee the
provisions of services to the community.
[12]
Section 55(1) if the Structures Act requires that a municipal council
must elect an executive mayor (where the council has
chosen to have
an executive mayor in terms of section 54(2)) within 14 days of the
council’s election. In terms of section
55(2), a vacancy in the
office of the executive mayor must be filled when necessary. Section
55(3) provides that the procedure
set out in Schedule 3 of the
Structures Act applies whenever a municipal council meets to elect an
executive mayor.
[13]
Schedule 3 to the Structures Act provides for the procedure whenever
a municipal council meets to elect, amongst other, an
executive
mayor. The procedure includes for the person presiding at a meeting
to call for nominations of the candidates for the
position to be
filled, for a form to be completed and signed by two members of the
council, for the person being nominated to indicate
acceptance by
his/her signature, and for the announcement by the presiding officer
of the names of the person/s nominated. No debate
is allowed.
Furthermore, the Schedule provides for the election procedure to be
followed. Voting must take place by secret ballot.
[14]
The speaker too, fulfils an important function within the municipal
counsel. Chapter 2 of the Structures Act provides for the
election
and functions of the speaker. Duties of the speaker, amongst other,
include to decide when and where the council meets,
to preside at
meetings, to maintain order during meetings and to ensure that
council meetings are conducted in accordance with
the rules and
orders as adopted by the council.
The
Rules of Order
[15]
Section 160(6) of the Constitution permits municipal councils to make
by-laws which prescribes rules and orders for its internal
arrangements, its business and procedures and for the establishments,
composition, procedures, powers and functions of its committees.
[16]
The Municipality has adopted “
Rules
of Order for Council and its Committees”
(‘the
Rules”) regulating the conduct of meetings of its municipal
council.
[17]
Item 3 of the Rules deals with the conduct at meetings and provides
for the duties of the speaker to amongst other, maintain
order during
meetings, ensure compliance with the Code of Conduct for Councillors
at meetings, ensure that meetings are conducted
in accordance with
the rules of order (except if otherwise ruled by the speaker) and
ensure that members conduct themselves in
a dignified and orderly
manner. In terms of Rule 4, the ruling of the speaker “
in
regards to the application or interpretation of these Rules and the
other procedural matters not dealt with in the Rules of Order
is,
once he/she has given his/her reasons, final and binding.”
[18]
Further responsibilities of the speaker include, to determine the
date, time and venue of municipal council meetings, and to
ensure
that such meetings take place at least quarterly (Rule 6.1); and to
determine whether Municipal Council meetings are urgent
or not (Rule
6.7).
[19]
Rule 6.3 provide that the Municipal Manager must give at least 72
hours’ notice of Municipal Council meetings to enable
members
to prepare adequately. In the case of urgent meetings, Rule 6.7
provides that the notice period must be at least 24 hours.
[20]
The Rules further provides that “
[e]very
member of the Municipal Council must specify in writing an electronic
mail address and/or physical address within the municipal
area of
George where he/she can receive or electronically notice of meetings
and other official correspondence. Delivery to this
address will
constitute proper notice of meetings of the Municipal Council.”
(Rule
6.10).
[21]
Rule 6.5 provides that where members have not received proper notices
of meetings, this will not affect the validity of such
meetings.
THE
COVID-19 PANDEMIC AND THE REGULATIONS PROMULGATED UNDER THE DISASTER
MANGEMENT ACT
[22]
The key events which gave rise to the present application occurred
during a time that our country (and the world) faced a global
pandemic (COVID-19) caused by a novel coronavirus which was first
identified in Wuhan, China during December 2019 and which spread
globally during the early part of 2020. This resulted in our national
government declaring a national state of disaster in terms
of section
27 (1) of the Disaster Management Act 57 of 2002 (“the DMA”)
on 15 March 2020.
[23]
On 23 March 2020 our President announced a nation-wide “lockdown”
beginning at midnight 26 March 2020 and ending
16 April 2020 (this
initial 21 day period was eventually extended until the end of April
2020).
[24]
On 25 March 2020, the Minister of Cooperative Governance and
Traditional Affairs (“the Minister”) issued regulations
in terms of section 27(2) of the DMA which regulated the lockdown
period. On the same day the Minister also issued directives under
those regulations in response to COVID-19 pertaining to the
cooperative governance and traditional affairs sectors (“the
25
March directions”). The purpose of these directions is to
direct municipalities and provinces in respect of various matters
in
response to COVID-19, including municipal public spaces, facilities
and offices, isolation and quarantine, municipal operations
and
governance, institutional arrangements and development of COVID-19
response plans and precautionary measures to mitigate employee
health
and safety risks.
[25]
Paragraph 6.5 of the 25 March directions, provides that control
measures must be put in place in relation to public spaces,
facilities and offices to ensure social distancing to prevent the
risk of transmission. “
Social
distancing”
is defined in paragraph 5 as “
limiting
personal contact as a measure to reduce the probability of contact
between persons carrying an infection, and others who
are not
infected, so as to minimize disease transmission, morbidity and
ultimately, mortality”
[26]
Paragraph 6.7 dealing with municipal operations and governance
provides in paragraph 6.7.2 thereunder that no municipal council
meetings outside the District Command Centre Meetings may be
undertaken during the initial 21 day lockdown period, or any extended
period that may be declared. All ordinary council meetings were
suspended in terms of paragraph 6.7.2 (e).
[27]
On 30 March 2020, the Minister issued further directions (“the
30 March directions”) replacing paragraph 6.7 of
the 25 March
directions. The 30 March directions required municipalities during
the initial lockdown period or any extended period
that may be
declared to:
1.
undertake
only meetings of the Metropolitan and District Command Centres (para
6.7.2);
2.
to
suspend all municipal council meetings (para 6.7.3(a)); and
3.
not
convene any meetings (para7.6.3(b)).
[28]
On 23 April 2020, the President announced that after 30 April 2020
(ie the end of the initial period of lockdown), a risk adjusted
strategy to gradually ease lockdown restrictions. Five alert levels
were announced, Alert level 5 being with high virus spread
and/or low
health system readiness, during which drastic measures are required
to contain the spread of the virus to save lives,
and Alert level 4
with moderate to high virus spread with low to moderate health system
readiness during which period some activity
can be allowed to resume
subject to extreme precautions required to limit community
transmissions and outbreaks. Alert level 4
was applicable from 1 May
2020 until after 22 May 2020 when the impugned election of the
executive mayor took place, and it is
therefore not necessary for
present purposes to consider other Alert levels.
[29]
On 7 May 2020, the Minister issued further directions pertaining to
municipal operations and governance (“the 7 May directions”),
replacing paragraph 6.7 of the 30 March directions. The 7 May
directions provided, amongst other, that;
1.
all
meetings of councils must be done using media platforms such as
teleconferencing and videoconferencing (para 6.7.3); and
2.
municipalities
and municipal entities are directed to convene meetings to consider
any council-related business.
THE
CHRONOLGY OF EVENTS
[30]
Most, but not all of the chronology of factual events which gave rise
to this application are common cause. I am mindful that
in motion
proceedings such as the present matter, where there are disputes of
fact, and there are no referral of such disputed
issues to oral
evidence, a final order can only be granted if the facts averred by
the applicants and admitted by the respondents,
together with facts
averred by the latter, justify such order. This is so unless the
respondents’ version consists of bald
or uncreditworthy
denials, raises fictitious dispute of fact, is palpably implausible,
far-fetched or so clearly untenable that
the court is justified in
rejecting them merely on the papers - See
Plascon Evans
principle (see
Plascon-Evans Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A). In
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2 SA 277
the rationale for the
Plascon-Evans
principle was well elucidated as follows (at p
290, para 26);
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on affidavit, a final
order can be
granted only if the facts averred by the applicant’s (Mr
Zuma’s) affidavits, which have been admitted
by the respondent
(the NDPP), together with the facts alleged by the latter, justify
such order. It may be different if the respondent’s
version
consists of bald or uncreditworthy denials, raises fictitious
disputes of facts, is palpably implausible, far-fetched or
so clearly
untenable that the court is justified in rejecting them merely on the
papers.”
[31]
A rejection of the respondent’s version on the basis of the
Plascon-Evans
rule “
occurs
infrequently as a court are alive to the potential for evidence and
cross-examination to alter its view of the facts and
the plausibility
of evidence”
as
held by Wallis AJ in
Media
24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty)
Ltd
2017
(2) SA 1
at p18A.
[32]
According to the applicants, the series of events which gave rise to
this application stems from certain political instability
within the
DA during 2019 and 2020, which caused a loss of DA councillors within
the municipality which resulted in the shifting
in the balance of
power within the council. In his founding affidavit deposed to on
behalf of the applicants, Mr Virgil Gericke
(‘Gericke”),
the sixth applicant and a member of the first applicant, referring to
the state of affairs in the DA at
the time, states that “
[t]his
unhealthy position for the DA inspired Speaker, a member of the DA,
to adopt certain strategies, which in my humble view
were biased and
unlawful, during Council Meetings to avoid the DA’s loss of
control over the George Municipal Administration.”
[33]
It is common cause that on 20 February 2020, a vacancy in the office
for the executive mayor of the Municipality arose when
the incumbent,
Mr Melvin Naik ceased to be a member of the municipal counsel because
his membership of the political party he represented,
namely the DA,
was terminated.
[34]
As for the rest of the relevant events, the first event in the
chronology mentioned by Gericke is the cancellation at 6am on
27
February, of a meeting which was scheduled for 10am that day. On the
agenda for that meeting was a motion of no confidence tabled
against
the speaker as well as the deputy mayor. The councillors were
locked-out from the meeting. In doing do, the speaker cited
safety
reasons without elaborating thereon.
[35]
The speaker deposed to the answering affidavit on behalf of the first
to fourth respondents. The first event of importance,
according to
the speaker, was on 28 November 2019 when he had to cancel a meeting
of the municipal council shortly before it was
due to start because
of a rowdy crowd of persons who refused to take their protest outside
the chamber and building so as to allow
the meeting to proceed.
[36]
The mention of the meeting scheduled for 28 November 2019 was
important as the meeting scheduled for 27 February 2020 was
cancelled, according to the speaker, because he was informed from a
reliable source that the 27 February meeting was going to be
disrupted (as did happen with the 28 November meeting) by a large
number of members of the public. Nothing on record indicates
that
there were any complaints about the cancellation at the time and the
reason for the cancellation proffered by the speaker
seem to have
been accepted. The applicants’ case can only be that this
cancellation appeared only at a later stage to have
been part of a
pattern of manipulation to cancel and re-schedule meetings to ensure
that the DA carries a majority for any important
decisions to be
taken.
[37]
The next important event, which is mentioned by both the applicants
and the respondents is the meeting scheduled for 26 March
2020 where,
amongst other, the motions of no confidence against the deputy mayor
and the speaker were to be tabled. As a result
of the declaration of
a state of national disaster and the resultant initial period of
lockdown during which all municipal meetings
had to be suspended in
terms of paragraph 6.7 of the Minister’s directions, this
meeting was cancelled. In my view, this
cancellation was legitimate
and cannot be said to form part of any pattern of manipulation as
alleged by the applicants. It was
also not possible to bring the
meeting forward as advocated by Gericke in his replying affidavit as
the directions were issued
on 25 March 2020, the day before the
scheduled meeting, leaving no time for the rescheduling of the
meeting to an earlier date.
The speaker correctly states that he was
obliged to cancel the meeting by paragraph 6.7 of the 25 March
directions. No further
attention is warranted in respect of the
cancellation of this meeting.
[38]
Another meeting scheduled for 31 March 2020, for which a motion of
no-confidence was tabled in the chief whip of the municipality,
had
to be cancelled for the same reasons as the cancellation of the 26
March meeting.
[39]
Following the 7 May directions, notices were sent out to councillors
on 15 May 2020 for a special e-council meeting to be held
on
Microsoft Teams, one of the standard media platforms in use by
municipalities following the Minister’s direction for the
holding of such meetings. The meeting was to be held at the George
Municipality, Main Building (also referred to as the civic centre)
on
18 May 2020 at 14:00. Councillors were requested to arrive 30 minutes
early to be showed to a particular venue.
[40]
Also on 15 May 2020, an email was sent to councillors with, amongst
other things, links to access the agenda for the scheduled
meeting
and a further email with the Microsoft Teams link for the meeting.
The only item on the agenda was the election of the
executive mayor.
The voting for the executive mayor was planned to take place in the
civic centre, ie the main building as referred
to in the notice for
the meeting. Arrangements were made for votes to be casted in four
separate places within the complex, namely
the banquet hall, the main
hall, the conference room and the council chamber.
[41]
Councillors from certain of the applicant political parties
experienced some IT issues, but nothing turns on this as the
scheduled
meeting was cancelled.
[42]
On 17 May 2020, the speaker received news that a municipal staff
member working in the civic centre tested positive for the
coronavirus which necessitated the closure of the civic centre for
sanitising, and he accordingly decided to postpone the meeting
until
further notice. Gericke confirmed that the speaker cancelled the
meeting scheduled for 18 May 2020 by sms and WhatsApp to
councillors
only citing coronavirus health risks. The email that was sent out to
councillors notifying them of the cancellation
of the meeting,
however stated that the postponement (not cancellation) was “
due
to Covid-19 circumstances beyond our control, which demands deep
sanitising of the main building again.”
[43]
In my view, the closure of the civic centre after an employee was
infected with the coronavirus and the resultant postponement
of the
council meeting cannot be faulted. The decision to close the building
under the circumstances for deep sanitising is exactly
what was
expected in terms of the directions of the Minister, especially in
relation to precautionary measures to mitigate employee
(as well as
public) health risks.
[44]
On 18 May 2020 at 14: 01, the speaker sent an email to all
councillors informing them that the postponed meeting for the
election
of the executive mayor would be held on 19 May 2020 at
14:00, again using the Microsoft Teams platform at various venues to
be
communicated shortly. The only item on the agenda for this meeting
again was the election of the executive mayor.
[45]
On the same day, at a meeting of the whips of the various parties and
the speaker, it was agreed, amongst other, that the venues
for the
meeting, and more specifically where the voting would take place
would be venues in Blanco, Conville, Pacaltsdorp, Rosemore
and
Thembalethu. Each of the councillors would be allocated to one of the
five venues. The meeting would be held virtually, but
physical voting
at the five venues would take place.
[46]
On 19 May 2020, news was received that another municipal staff member
whose work entail the entering of the main administrative
building
and all adjacent municipal buildings had tested positive for the
coronavirus which, according to the speaker, necessitated
the closure
of the buildings for sanitising. The speaker accordingly decided to
cancel the scheduled meeting until further notice.
An email was sent
to councillors informing them of the cancellation until further
notice.
[47]
For the same reasons relating to the cancellation of the meeting that
was scheduled for 18 May 2020, I cannot find fault the
cancellation
of the meeting scheduled for 19 May 2020. Health and safety under
these circumstances should no doubt be paramount.
[48]
On 21 May 2020 at 13:55, an email was sent to councillors informing
them that the meeting for the election of the executive
mayor would
take place on 22 May 2020 at 14:00. The meeting was to take place on
Microsoft Teams and the email contained the necessary
link.
[49]
On the same day, 21 May 2020, the Whips of the various political
parties and speaker agreed that the venue of the meeting,
specifically where voting would take place would be venues in Blanco,
Conville and Thembalethu. A further email was sent out to
councillors
informing them of the venues and their allocations to the voting
venues.
[50]
Since the procedure of the meeting and the voting is impugned, it is
required to deal with what transpired in some detail.
First, it is
necessary to set out the full text of an email which was sent out to
all councillors at 09:56 on 22 May 2020 informing
them of the
procedure to be followed at the meeting and for the election of the
mayor. It reads as follows:
“
THIS IS
THE FINAL AND CORRECT NOTIFICATION:
Issued Friday
22 MAY 2020
ISSUED BY
OFFICE OF MUNICIPAL MANAGER
Good day
Councillors
You will have
received notification of the Special Council e- Meeting called for
Friday 22 May at 14h00.
The election
process for the election of an Executive Mayor as prescribed in
Schedule 3 to the Municipal Structures Act, 117 of
1998, will be
followed. The process is as follows:
1.
The
Speaker will call for nominations for the position of Executive
Mayor, Nomination forms in this regard will be available at
the three
venues identified.
2.
Once
nominations are closed, the duly completed and signed form(s) must be
handed to the official of Corporate Services present
at the venue who
will check the form to ensure it is signed by two Councillors and
accepted by the person(s) nominated. The official
will then
communicate the name(s) of the persons who have been nominated to the
Speaker who will announce the names live on MS
Teams.
3.
No
debate will be permitted.
4.
If
only one candidate is nominated, the Speaker will declare the
candidate elected.
5.
If
more than one candidate is nominated, voting will take place by
secret ballot.
6.
Councillors
will be afforded the opportunity to vote at the venue allocated to
specific Councillors as per the list circulated.
Ballot papers will
be made available at the venues.
7.
Safety
must be observed at all venues, such as the wearing of face masks,
social distancing and hand sanitising.
8.
Councillors
who do not have transport to go to a venue for voting purposes, will
be provided with transport.
9.
Ballot
papers must be placed in a ballot box provided for this purpose.
Voting will only take place once the whips of the parties
have
inspected the open boxes, where after it will be sealed.
10.
For
safety reasons, Councillors will enter the venue one by one to cast
their votes in booths provided. Ballot papers must be place
in the
sealed ballot boxes.
11.
Officials
will provide assistance inside the halls.
12.
Once
all Councillors have voted, the sealed ballot boxes from Thembalethu
and Blanco will be transported to the Conville Civic by
a vehicle
provided by Fidelity Guards, escorted by the South African Police
Services. Once the ballot boxes are delivered, all
ballot boxes will
be emptied simultaneously and then counted by the Director: Corporate
Services in the presence of the Party Whips.
The Director: Corporate
Services will communicate the number of votes received by each
candidate to the Speaker who will declare
elected the candidate who
received the majority of the votes.
All of the
necessary checks and balances will be in place at all times.
We thank you for
participating in the historic events, a first for George Municipality
and given our current scenario, the way forward
for many months to
come. I trust the combined efforts of the Councillors and municipal
officials will contribute to the success
of tomorrow proceedings.
Trevor Botha
Municipal
Manager”
[51]
It is important to note that the meeting was to take place (and did
take place) on the virtual platform, but the actual voting,
took
place physically and by secret ballot at the three venues.
Councillors could take part in the virtual meeting at any of the
three venues, from their homes or any place of their choosing. The
whole process entailed the following;
51.1
the call by the speaker for the nominations of candidates for
election as the executive mayor via the
virtual platform;
51.2
the physical presence of the persons nominating candidates at one of
the three venues in order to complete
and sign the nomination form;
51.3
the physical presence of the persons nominated for the positions at
the venue where he/she was nominated
in order to sign acceptance of
his/her nomination form;
51.4
the announcement by the speaker of the names of the persons nominated
via the virtual platform;
51.5
the announcement by the speaker via the virtual platform of the start
of the voting process;
51.6
the inspection of the ballot boxes by the party whips at each of the
venues if they so wished;
51.7
the physical presence of the councillors at the venues allocated to
them in order to cast their votes;
51.8
the sealing of the ballot boxes and the transportation thereof from
two of the venues to the Conville
venue where counting took place;
51.9
the presence of the party whips at the Conville venue where counting
took place; and
51.10
the declaration by the speaker via the virtual platform that the
candidate who received the most votes had been
elected as the
executive mayor.
[52]
Three officials of the Municipality was put in charge in each of the
three voting venues as electoral officials.
[53]
Those councillors who elected to attend the meeting from any of the
three venues were allowed to enter the venue at the start
of the
meeting or when they arrived during the meeting instead of one by one
as notified. Nothing turns on this.
[54]
After the speaker started the meeting from the Conville venue, there
were some heated debate on two issues which I shall deal
with here.
First, after the speaker announced that there were three members (who
happened to be DA members) who were particularly
vulnerable to the
infection to the coronavirus. He did not mention any names. The
opposition councillors objected to the participation
of the three
unnamed members in the election process. Gericke in his founding
affidavit states that the speaker informed the meeting
that three
members were “exposed” to the virus, as opposed to the
account of the speaker in his answering affidavit
that the three were
“particularly vulnerable” to infection.
[55]
The speaker explains in the answering affidavit that he ignored the
objection from the opposition councillors for four reasons.
First,
the meeting, apart for the voting stage, was to be held virtually and
he knew that the three councillors concerned were going
to attend at
their allocating voting venues only when they had to vote.
Second,
two of the three councillors had not been “exposed” to
the virus, instead they and/or their families were particularly
vulnerable to the virus. One of the two in question was over the age
of 65 and his wife was receiving treatment for cancer. The
daughter
of the second was pregnant.
Third,
one of the three he referred to, was Councillor Kritzinger whose son,
a municipal employee, had tested positive for the virus
– she
showed no signs of infection and her temperature was going to be
tested before she entered her allocated voting venue.
Her period of
contact with others inside the voting station could be limited by
ensuring that she voted last, that she entered
the voting venue only
when the time came for her to vote and that she left immediately
thereafter. This is in line with 6.5 of
the 25 March directions
(which did not change and was still applicable) relating to social
distancing.
Fourth,
he regarded the objection “
as
a transparent and baseless attempt to reduce the number of DA
councillors who could participate in the election of the new
Executive
Mayor”.
[56]
The second issue which caused heated debate was the objection raised
by the opposition councillors because of the absence from
his
assigned venue by Councillor Raybin Figland (“Figland”),
who indicated that he wanted to nominate Councillor Leon
Van Wyk
(“Van Wyk”). The objection, according to the speaker, was
not upheld as Figland was not required to be at the
venue at that
stage when nominations were called for. After he indicated that he
wanted to nominate Van Wyk, he travelled to the
Conville venue to
complete the nomination form. This, in my view was in line with the
due process adopted.
[57]
After the speaker called for nominations, Councillor Virgil Gericke,
a member of the first applicant and Van Wyk of the DA
were duly
nominated for election as the executive mayor. Both accepted their
nominations at the venues where they were present
and the nomination
forms were taken by officials to the Conville venue where it was
received by the speaker.
[58]
The speaker then adjourned the meeting in order for 50 anonymous
ballot papers to be prepared at the Conville venue with the
names of
the two nominees and for the ballot papers to be transported to the
other two venues.
[59]
What transpired during and before the actual voting process caused
the opposition councillors to lodge certain complaints which
have
become issues for consideration in this application. To put these
issues in context, it is necessary to repeat two provisions
of the
Rules, namely Rule 7.1 which provides that the “
quorum
for a meeting of the Municipal Council or Committee is a majority of
its members”,
and
Rule 15.2 which provides that “
[b]efore
any vote is taken on any matter before the Council no Councillor or
any other person shall be allowed to enter or leave
the Council
Chamber, while voting is in process.”
[60]
When the official, Mr James arrived at the Thembalethu voting venue
with the ballot papers after they had been prepared at
the Conville
venue, he found two councillors, Councillors Snyman and Stimela, who
were meant to vote there and who had earlier
been inside the venue,
locked out. Another councillor, Councillor Louw who was also meant to
vote there also arrived. Mr James
had a discussion with the
councillors inside, during which it became apparent some of them were
of the view that since Snyman and
Stimela had left the voting venue
after the meeting had started, they should not be allowed back. Mr
James explained that they
had not left the venue whilst the voting
process was ongoing and should be allowed back. The persons inside
then allowed those
inside to enter the venue. In any event, the
meeting was adjourned after the nominations process, and had not yet
re-commenced
at this juncture.
[61]
After the ballot boxes were inspected and locked, voting at the three
venues commenced at the same time. The councillors were
called
forward to vote one by one by the officials in charge at each of the
three venues. Each signed a register, collected a ballot
paper and
used it to cast their votes in secret. All the councillors who were
allocated to the three venues voted, except for Councillor
Muller who
was absent from the Thembalethu venue and did not vote at all. The
speaker, who was stationed at the Conville venue
permitted Councillor
Kritzinger to enter the venue after all the other councillors had
voted to enter the venue to cast her vote
so as to minimise potential
risks to others at the venue, as her son had tested positive for the
coronavirus. When it came
time for her to vote, the speaker
fetched her from her car, her temperature was taken (which was
normal) and she was allowed to
vote, wherafter she left the venue.
Kritzinger showed no signs of infection on the day that she voted,
nor did she show signs thereafter
or tested positive for the virus
since then. The extent of her exposure to her son is unclear. There
is no indication on the papers
whether her son lives with her, when
and for how long they were in contact, whether such contact was
before or after (and for what
period before or after) his showing of
symptoms or his positive test. The measures put in place to allow her
to cast her vote,
was reasonable in my view. I will deal with this
and her right to vote again below.
[62]
After voting was completed, the ballot boxes were sealed and taken by
a security company from Thembalethu and Blanco to the
Conville venue
where the votes were counted. There were 49 ballots in total, which
contained 26 votes in favour of Van Wyk and
23 votes in favour of
Gericke. Using the virtual platform the speaker then announced the
result of the election and that Van Wyk
had been elected as the new
executive mayor of the municipality.
EVALUATION
[63]
When the coronavirus hit the world, it posed a problem to all and
sundry to change the way we were used to doing things. There
has been
no universal response on how to adapt behaviours in dealing with the
virus, maybe apart for measures relating to social
distancing,
wearing of face masks and improved hygiene. Governments - all spheres
of it, as well as business had to adopt to new
rules and procedure of
best coping with the virus. The resultant lockdown experienced in our
country had a pertinacious effect
on what we considered normal and
routine in our daily lives.
[64]
In order for life to continue under lockdown, various measures were
implemented to do what is necessary to safeguard the economy.
Similarly, in order for government (and businesses to) to carry on
with its duties, it had to adapt to new measures and ways of
doing
things. At the initial stage of lockdown, there was a phase
concentrating on health readiness. Gradually more activities
were
allowed after that initial phase in terms of the government’s
risk adjusted strategy. On local government level, meetings
were
initially disallowed, but later directions were promulgated to allow
meetings on media platforms. Meetings were allowed to
take place to
consider any council related business in terms of the 7 May
directions.
[65]
The Municipality had to cancel two council meetings during March 2020
as a result of the prohibition in terms of the 25 March
directives.
Health risks also caused two meetings to be either postponed or
cancelled during May 2020. These risks emanated from
the infection of
two employees shortly before the meetings were due to take place, and
in both cases it required deep sanitising
of the venues where the
meetings, or at least the voting parts thereof were due to take
place.
[66]
The applicants allege that the cancellation of these meetings were
sinister in order to afford the DA an
unfair
advantage during motions and mayoral elections. The applicants,
however, cites no objective facts on which this court can
rely on in
order to conclude that the inference relied on is reasonable.
[67]
In his heads of argument, Mr Breitenbach refers to a quote by Lord
Wright in
Caswell v Powel Duffryn Associated Colliers Ltd
[1939] 3 All ER 722
(HL) a7 733, as quoted in
Bates &
Lloyd Aviation V Aviation Insurance Co
1985 (3) 916 at 939,
as follows;
“
There
can be no inference unless there are objective facts from which to
infer the other facts which it is sought to establish.
In some cases,
the other facts can be inferred with as much practical certainty as
if they had been actually observed. In other
cases the inference does
not go beyond reasonable probability. But if there are no positive
proved facts from which the inference
can be made, the method of
inference fails and what is left is mere speculation and conjecture.”
Besides
the
Bates
matter, this approach has also been followed in
Moraitis
Investments v Montic Diary
2017 (5) SA 508
at 523 and in
Gavric
v Refugee Status Determination Officer
2019 (1) SA 21
(CC) (see footnote 115).
[68]
On the contrary to what the applicants wants the court to infer,
namely that the cancellations or postponements of various
meetings
were for sinister reasons, it is clear that good reasons exist for
the postponement or cancellation of each of the meetings
so postponed
or cancelled. I have dealt with these reasons above.
[69]
A further complaint raised by the applicants is that the speaker did
not announce, at the commencement of the meeting on 22
May, that one
of the DA councillors were absent – it turned out that this
councillor did not participate in the meeting at
all and also did not
in the voting process. Had this been announced, it is alleged,
the opposition may have walked out of
the meeting thereby
compromising the quorum requirement for the meeting to proceed.
Besides the fact that I find no obligation
of the speaker to have
made such announcement, the possible walking out of the opposition,
too, is conjecture and speculation and
should be ignored.
[70]
It is apposite to mention that the council at the time consisted of
50 elected members, 25 of whom were members of the DA.
Gericke
informed in his answering papers that the DA had an agreement with
two political parties, namely the African Christian
Democratic Party
and the Freedom Front, who each had one member on the council, in
terms of which these parties would support the
DA in matters like
motions of no-confidence and the election of the new mayor. This was
not denied in the replying affidavit.
[71]
As for the contention that three of the DA members should not have
been allowed into their allocated voting venues in order
to cast
their votes as they were “exposed” to the virus, I cannot
agree. In fact, only one of the three DA councillors
may have had
potential exposure as her son had contracted the virus. The extent of
the exposure is not known. The other two members
were vulnerable, or
at least members of their families were. In my view the contention
that these three members should have been
denied their democratic
vote is opportunistic and cannot pass muster.
[72]
Mr Breitenbach acknowledged that the only possible transgression of
the Rules may have been the decision to allow Kritzinger
to vote.
This may have been contrary to Rule 15.2 which forbids any councillor
to leave or enter the council chamber while voting
is in progress. If
this is so, the speaker too would have transgressed the Rule as he
left the voting venue to fetch Kritzinger
from her vehicle after all
the other councillors had voted, so that she could vote last.
[73]
Enfranchisement is an important foundation on which our democracy is
built. This entails the right of not only the electorate
to cast
their votes, but also those who has been democratically elected by
the electorate to represent them. A founding provision
in section 1
of the Constitution provides:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
…
(d) Universal
adult suffrage, a national common voters roll, regular elections and
a
multi-party system of democratic government, to ensure
accountability, responsiveness and openness.
”
(my underlining)
[74]
After referencing the above founding provision in the Constitution
O’Regan J opined in
African Christian Democratic Party v
Electoral Commission
[2006] ZACC 1
;
2006 (3) SA 305
CC at para [23] p 316:
“
These
foundational values require a court of law, and the Electoral
Commission, when interpreting provisions in electoral statutes,
to
seek to promote enfranchisement rather than disenfranchisement and
participation rather that exclusion.”
Further
on, at paragraph [25] of the judgement, it was held;
“
The
question thus formulated is whether what the applicant did
constituted compliance with the statutory provision viewed in the
light of their purpose. A narrow textual and legalistic approach is
to be avoided.”
[75]
The fact that non-compliance with statutory or other legislative
provisions is not always fatal, has been affirmed in numerous
cases.
In
Liebenberberg
NO and others v Bergrivier Municipality
2013
(5)
SA 246
Cc, the Constitutional Court stated at para [25] that “
a
failure by a municipality to comply with relevant statutory
provisions does not necessarily lead to the actions under scrutiny
being rendered invalid. The question is whether there has been
substantial compliance, taking into account the relevant statutory
provisions in particular and the legislative scheme as a whole.”
[76]
In
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (5) SA 199
SCA, at para [22], it was held that “
[I]t
is clear from the authorities that even where the formalities
required by statute are peremptory, it is not every deviation
from
the literal prescription that is fatal. Even in that event, the
question remains whether, in spite of the defects, the object
of the
statutory provision has been achieved.”
[77]
In the present matter, the object of Rule 15.2 has not been canvassed
on the papers, but it seems that the Rule is more tailored
where
voting happens in chambers by the show of hands. In this event, the
comings and goings of those entitled to vote can lead
to confusion
and miscalculation of the votes, for obvious reasons. There seem to
be no logical purpose for strict compliance with
this Rule where
voting takes place by secret ballot.
[78]
In the result, even if there was not strict compliance with Rule 15.2
by the speaker in that he left the meeting before voting
was
concluded and entered again with Kritzinger, who also entered the
venue after voting had commenced, such non-compliance in
my view
should not render the whole voting process invalid. In any event, we
must be mindful of the circumstances under which the
impugned meeting
and voting took place, relating to the state of disaster and the
resultant lockdown regulations and directives
applicable. Allowing
Kritzinger to vote after others had casted there votes was a rational
measure put in place by the speaker
to avoid possible contamination.
COSTS
and CONCLUSION
[79]
The respondents advised that in the event of the application being
dismissed, they did not seek a cost order. I agree that
in the
present matter, no cost order should be made. In my view, the events
and circumstances which lead up to the application
was strange to
everyone concerned, and unfamiliar measures had to be taken in order
for the Municipality to continue with its business.
The applicants
were entitled to have these tested by the court.
[80]
In the circumstances, the application is dismissed, with no order as
to costs.
_______________________
HOCKEY AJ
For
Applicants: Adv. W Fisher
Instructed
by: Stephen Kleynhans Attorney
For
1
st
to 4
th
Respondents: Adv. Breitenbach SC
Instructed
by: Schröter & Associates Attorneys