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[2018] ZAECPEHC 49
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Democratic Alliance and Others v MEC for Cooperative Governance and Traditional Affairs, Eastern Cape and Others (3023/2018) [2018] ZAECPEHC 49; [2018] 4 All SA 356 (ECP) (20 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE
NO.: 3023/2018
In
the matter between:
DEMOCRATIC
ALLIANCE
ROLAND
ATHOL PRICE TROLLIP
CONGRESS
OF THE PEOPLE
AFRICAN
CHRISTIAN DEMOCRATIC PARTY
PATRIOTIC
ALLIANCE
First
Applicant
Second
Applicant
Third
Applicant
Fourth
Applicant
Fifth
Applicant
and
MEC
FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS, EASTERN CAPE
JENNY
ROESTORFF
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY
JOHANN
METTLER
BUYELWA
NANCY MAFAYA
MONGAMELI
BOBANI
TSHONONO
CHRISTOPHER SOLOMON BUYEYE
VICTOR
MANYATI
PUMELELE
STANLEY NDONI
AFRICAN
NATIONAL CONGRESS
ECONOMIC
FREEDOM FIGHTERS
UNITED
DEMOCRATIC MOVEMENT
AFRICAN
INDEPENDENT CONGRESS
UNITED
FRONT
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Fifth
Respondent
Sixth
Respondent
Seventh
Respondent
Eighth
Respondent
Ninth
Respondent
Tenth
Respondent
Eleventh
Respondent
Twelfth
Respondent
Thirteenth
Respondent
Fourteenth
Respondent
JUDGMENT
HUISAMEN
AJ
INTRODUCTION
:
[1]
This is an urgent application in which the
applicants seek the following relief:
“
1.
That the application be heard as one of urgency;
2.
That the decision of the first respondent on 27 August 2018
designating the second respondent to preside over the election of
a
speaker in the council of the third respondent be reviewed and set
aside;
3.
That the actions and decisions of the second respondent in presiding
as chairperson over the election of the speaker of the council
be
reviewed and set aside;
4.
That the election of the fifth respondent as speaker of the council
be reviewed and set aside;
5.
That it be declared that the meeting of the third respondent’s
council on 27 August 2018, as presided over by the second
respondent,
and subsequently by the fifth respondent was not a properly
constituted meeting of the council and was unlawful and
void;
6.
That all the decisions taken by the meeting referred to above and in
particular the resolutions:
6.1
that the second applicant be removed from office as the executive
mayor;
6.2
that the sixth respondent be elected as executive mayor;
6.3
that the office of the deputy executive mayor be reinstated and that
the seventh respondent be elected as deputy executive mayor;
6.4
that the incumbent chief whip be removed from office and that the
ninth respondent be elected to that position;
be
reviewed and set aside; alternatively, be declared to be
unlawful and void;
7.
That the first respondent, jointly and severally with such of the
remaining respondents as may oppose the application, pay the
cost
thereof.
”
[2]
The third and fourth respondents are
abiding the decision of the court.
[3]
The first, second, fifth, sixth, seventh,
eighth and ninth respondents are opposing the matter. The tenth
to fourteenth respondents
filed a joint notice of opposition.
They however did not file opposing papers and there was no appearance
for them at the
hearing of the matter.
[4]
The first respondent (the MEC), the sixth
respondent (Bobani) and the eighth respondent (Manyati) have all
filed extensive answering
affidavits. Bobani’s answering
affidavit was also deposed to on behalf of the fifth, sixth, seventh
and ninth respondents.
[5]
Manyati’s answering affidavit
contains, at the end thereof, notice of a counter application in the
following terms:
“
59.1.
declaring that the eighth respondent’s membership of the DA
still subsists and will continue to subsist until compliance
with the
DA Constitution has been performed;
59.2
declaring that the eighth respondent remains a Councillor of the
third respondent;
59.3 declaring the
fourth respondent’s conduct in purporting to secure the
declaration of vacancy as unlawful, unconstitutional
and invalid;
alternatively,
and in the event of the applicants being successful on any aspect of
the main application
;
59.4
compelling the Municipal Manager, alternatively the second
respondent, acting in terms of Rule 10.3, to continue the relevant
council meeting immediately and/or within 48 hours of the granting of
this conditional counterapplication;
59.5
costs in the event of opposition.
”
[6]
The second applicant (Trollip) deposed to
the founding affidavit on behalf of all the applicants, as well as to
their replying affidavit
and the answering affidavit to Manyati’s
counter application, to which Manyati has replied.
[7]
At the commencement of the hearing I was
informed by Adv Ronaasen SC, who appeared for the applicants, that
the fifth applicant
withdrew as an applicant in the matter.
[8]
Bobani raised a defence of non-joinder
in
limine
, contending that the applicants
seek to review and set aside decisions and actions of 61 councillors
and that all of these councillors
should have been cited as
respondents. Bobani also contended that the offices of the
executive mayor, the deputy executive
mayor, the speaker, the chief
whip of council and other MAYCO members should have been joined as
well. In addition, the MEC
raised the preliminary defences of a
lack of urgency, non-joinder, failure to give notice in terms of
Uniform Rule 16A(1) and the
existence of material disputes of fact.
[9]
These defences
in
limine
were not pursued during argument
before me. Alternatively they were abandoned and I do not find it
necessary to deal with them
for purposes of this judgment.
THE
APPLICABLE LEGISLATIVE FRAMEWORK
:
[10]
The following is a brief summary of the
applicable legislative framework in this matter:
10.1 Section 36 of the Local
Government: Municipal Structures Act No 117 of 1998 (the
Structures Act) provides in the first
instance that a municipal
council must have a chairperson who will be called the speaker and
further that when necessary to fill
a vacancy for the position of
speaker, a municipal council must elect a speaker from among the
councillors. Section 36(3)
then provides that:
“
The
municipal manager of the municipality or, if the municipal manager is
not available, a person designated by the MEC for Local
Government in
the province, presides over the election of a speaker.
”
10.2 Section 36(4) of the Structures
Act provides as follows:
“
The
procedure set out in Schedule 3 applies to the election of a
speaker.
”
10.3 Schedule 3 to
the Structures Act provides as follows under the heading “
Election
of Municipal Office-bearers
”
:
“
(1)
Application
The
procedures set out in this Schedule applies whenever a municipal
council needs to elect a speaker, an executive mayor, a deputy
executive mayor, a mayor or a deputy mayor.
(2) Nominations
The
person presiding at a meeting to which this Schedule applies must
call for the nomination of candidates at the meeting.
(3)
Formal Requirements
(1)
A nomination must be made on the form determined by the municipal
manager.
(2)
The form on which a nomination is made must be signed by two members
of the municipal council.
(3)
A person who is nominated must indicate acceptance of the nomination
by signing either the nomination form or any other form
of written
communication.
(4) Announcement of
names of candidates
At
a meeting to which this Schedule applies, the person presiding must
announce the names of the persons who have been nominated
as
candidates, but may not permit any debate.
(5) Single
candidate
If
only one candidate is nominated, the person presiding must declare
that candidate elected.
(6) Election
procedure
If
more than one candidate is nominated-
(a)
a vote must be taken at the meeting by secret ballot;
(b)
each councilor present at the meeting may cast one vote; and
(c)
the person presiding must declare elected the candidate who receives
a majority of the votes.
(7)
Elimination procedure
(1)
If no candidate receives a majority of the votes, the candidate who
receives the lowest number of votes must be eliminated and
a further
vote taken on the remaining candidates in accordance with item 6.
The procedure must be repeated until a candidate
receives a majority
of the votes.
(2)
When applying sub-item (1), if two or more candidates each have the
lowest number of votes, a separate vote must be taken on
those
candidates, and repeated as often as may be necessary to determine
which candidate is to be eliminated.
(8)
Further meetings
(1)
If only two candidates are nominated, or if only two candidates
remain after an elimination procedure has been applied, and
those two
candidates receive the same number of votes, a further meeting must
be held within seven days of the time determined
by the person
presiding.
(2)
If a further meeting is held in terms of sub-item (1) the procedure
prescribed in this Schedule must be applied at that meeting
as if it
were the first meeting for the election in question.
(3)
If the further meeting held in terms of sub-item (1) only two
candidates are nominated, or if only two candidates remain after
an
elimination procedure has been applied, and those two candidates
receive the same number of votes, the person presiding at such
meeting must determine by lot who of the two candidates will hold the
office for which the election has taken place.
”
10.4 Rule 10 of the
council’s rules of order provides,
inter
alia
, as follows under the heading
“
Interruption,
Suspension or Adjournment of Proceedings
”
:
“
10.1
If a meeting of Council has commenced, it must continue uninterrupted
until it has completed its business unless it is interrupted,
suspended or adjourned as provided for in these Rules.
10.2
Only the Speaker may interrupt, suspend or adjourn proceedings of the
Council for such period or until such date and time as
may be
determined by the Speaker. At the discretion of the Speaker,
he/she may discuss an adjournment of the meeting with
the Whips of
Parties.
10.3
The proceedings of an interrupted, suspended or adjourned meeting
must immediately recommence on the termination of the period
of
interruption or suspension or at the date and time to which it was
adjourned. No additional business to that submitted
to it in
terms of these Rules may then be considered.
”
10.5 Rule 18
provides,
inter alia
,
as follows under the heading “
Quorum
requirements
”
:
“
18.1
A quorum of the Council or a Committee of the Council will constitute
a majority (50% plus one) of all Councillors or Councillors
who are
members of that Committee, as the case may be.
18.2
Notwithstanding Rule 18.1 above, and subject to Section 30(1) of the
Structures Act, at least a majority of Councillors, or
of the members
of the Committee in question, must be present before a vote on any
matter may be taken.
”
10.6 Rule 19
provides as follows under the heading “
Absence
of quorum
”
:
“
19.1
If there is no quorum at the time appointed for the commencement of
the meeting of the Council, the meeting may not commence
until a
quorum is present, at which stage the Speaker must take the Chair.
19.2
If a quorum is still not present at the expiration of a period of ten
minutes of the time appointed for the meeting, the Speaker
must take
the Chair and adjourn the meeting.
19.3
Such adjournment shall be for a period not exceeding a further 20
minutes, after which if a quorum is still not present the
meeting
must be adjourned by the Speaker to a future date and time.
19.4
If, during the course of a meeting of the Council, the Speaker
becomes aware of the absence of a quorum, the Speaker must act
in
accordance with Rule 19.3 above [and] must adjourn the meeting.
19.5
Whenever a meeting of the Council is adjourned owing to the absence
of a quorum, the time of such adjournment, as well as the
names of
those Councillors present, must be recorded in the minutes of the
proceedings of the Council.
”
10.7 Rule 20
provides as follows under the heading “
Acting
Speaker
”
:
“
If
the Speaker of a Municipal Council is absent or not available to
perform the functions of Speaker, or during a vacancy, the Council
under the chairpersonship of the Municipal Manager or designated
official, must elect another Councillor to act as Speaker.
”
THE
FACTS AND DISCUSSION OF SUBMISSIONS
:
[11]
The following is a summary of the factual
matrix within which the issues in this matter have to be determined:
11.1 On 3 August
2016 the council elected Trollip as executive mayor and Lawack as the
speaker of the third respondent (the Municipality).
They held
these positions until the events of 27 August 2018;
11.2
None
of the political parties represented in the council on its own
commands an absolute majority.
The first applicant (the DA) was however able to establish a
functioning majority by entering into a coalition with a number
of
political parties. This coalition, bar a few interim changes,
has remained in place until 27 August 2018 and consisted
of the DA
and the third to fifth applicants;
11.3 The council
consist of 120 councillors;
11.4 On 27 August
2018, at approximately 10:00, a meeting of the council, which had
been adjourned from 16 August 2018, came to
order and commenced under
the chairmanship of councillor Lawack in his capacity as speaker.
There is no dispute between the
parties that the council meeting was
duly constituted with proper prior notice to all councillors.
11.5 All 120
councillors were present;
11.6 The voting
alliance consisting of the DA and the third to fifth applicants was
represented by 60 councillors and that consisting
of the tenth to
thirteenth respondents was represented by 60 councillors. In
the event of an equality of votes on any item,
the speaker was
entitled to give a casting vote;
11.7 Under item 6
of the agenda the following motions were received from various
councillors,
inter alia
:
(a) The removal of
the speaker of council from office and the election of a new speaker;
(b) The removal of
the executive mayor and the election of a new executive mayor;
(c) The rescinding
of the council’s decision to resolve the office of deputy
executive mayor and the reinstatement of the
office of deputy
executive mayor;
(d) The election of
a deputy executive mayor;
(e) The removal of
the council chief whip from office and the appointment of a new
council chief whip;
11.8 Under rule 18
of the council’s rules of order, a quorum of the council is
constituted by a majority (50% plus 1) of all
councillors;
11.9 Accordingly, a
majority of councillors must be present before a vote on any matter
may be taken;
11.10 In terms of
section 30(4) of the Structures Act, if on any question there is an
equality of votes, the councillor presiding
must exercise a casting
vote in addition to that councillor’s vote as councillor;
11.11 The first
motion which came before the council for consideration on 27 August
2018 was that submitted by Bobani seeking the
removal of the speaker
from office and the election of a new speaker. After a short
adjournment and some debate, a counting
and thereafter a recounting
of the votes, it was recorded that there were 60 votes for the motion
and 59 votes against it, with
Manyati, a councillor representing the
DA in the council, having abstained from voting in the face of a
specific resolution of
the DA’s caucus in the council to oppose
the motion;
11.12 Lawack
accordingly announced that the motion had been carried and he left
the chair, whereafter the fourth respondent (Mettler),
the municipal
manager, took Lawack’s place as chairperson of the council and
commenced to explain the process that would
thereafter unfold;
11.13 Before the
commencement of the process to select a new speaker, councillors
Banga and Senekal requested Mettler to grant an
opportunity to
caucus. However, Mettler ruled that by virtue of the provisions
of rule 10 of the rules of order
only
the speaker
may interrupt, suspend or
adjourn the proceedings of the council or grant a caucus. The
request was therefore refused;
11.14 Trollip then
requested that Mettler obtain legal opinion on that question and
after due consideration Mettler agreed.
As it was close to the
lunch hour, Mettler adjourned the meeting until 14:00 for purposes of
enabling him to obtain an opinion;
11.15 Prior to the
adjournment, councillors Senekal and Jordan, duly authorised by a
decision of the DA’s voting coalition,
submitted a nomination
form to the council secretariat for the position of speaker.
They again nominated Lawack for the position.
This nomination
form was duly signed by each of the said councillors as well as by
Lawack in acceptance thereof;
11.16 During the
adjournment, a number of statements and social media clips were
handed to Trollip, providing evidence that Manyati
had publicly
declared his intention to resign his membership of the DA.
Trollip immediately made this information available
to the
chairperson of the DA’s federal executive who convened a
meeting of the federal executive by telephone conference
at 13:30;
11.17 The federal
executive resolved that Manyati’s membership of the DA had
ceased with immediate effect;
11.18 The
chairperson of the federal executive of the DA shortly thereafter
forwarded letters to the fourth and eighth respondents
recording the
decision of the federal executive. Copies of these letters were
also hand delivered to Mettler and Manyati;
11.19 The said letter addressed to
Mettler on 27 August 2018 reads as follows:
“
The
Federal Constitution of the Democratic Alliance provides, in section
3.5.1.2 that any member who ‘publicly declares his
or her
intention to resign and/or publicly declare his or her resignation
from the party ceases to be a member with immediate effect.
The
Democratic Alliance has in its possession of video and audio
recording in which Councillor Victor Manyati very clearly states
his
intention to resign from the Democratic Alliance.
The
Federal Executive of the Democratic Alliance met by way of a
telephone conference at 13:30 today and resolved that Councillor
Manyati’s membership of the DA ceased. I would be
grateful if you would take the necessary steps to declare a vacancy
with immediate effect.
”
11.20 The letter addressed to Manyati
reads as follows:
“
I
have in my possession two affidavits and a recording indicating that
you intend to leave the Democratic Alliance. As you
know,
section 3.5.1.2 of the Party’s constitution states that any
member who ‘publicly declares his or her intention
to resign
and/or publicly declares his or her resignation from the Party’,
ceases to be a member immediately.
In
the face of incontrovertible evidence that you did so publicly
declare your intention to resign, the Federal Executive met by
means
of a telephone conference at 13:30 today and resolved that your
membership had ceased with immediate effect.
We
will be informing the City Manager accordingly.
”
11.21 The council
meeting reconvened at approximately 14:00, whereupon Mettler advised
the meeting that he had received an oral
opinion from senior counsel
to the effect that his ruling had been correct and that he was not
entitled to grant a caucus or otherwise
to adjourn the meeting;
11.22 Mettler then
proceeded to read the letter from the chairperson of the Federal
Executive of the DA to the meeting;
11.23 There was
then some debate on the question of whether or not the DA was
entitled to declare Manyati’s membership as
having been
terminated. Mettler advised the council that he would seek
legal opinion on the matter of the cessation of Manyati’s
membership of the DA;
11.24 Mettler then
again “
stood the meeting down
”
(in his own words) and requested the attorney and senior counsel
advising them to attend at the council chamber. Most
of the
members of the council remained in the chamber whilst Mettler was
consulting. Mettler later returned to the council
chamber, took
his place as chairperson and advised that on the basis of legal
advice received by him he was obliged to declare
a vacancy and in
fact did so declare a vacancy as a result of the termination of
Manyati’s membership of the DA;
11.25 Mettler at
this stage also read a letter which he had received from an attorney
acting on behalf of Manyati indicating that
Manyati intended to
contest the termination of his membership. It was further
contended in the letter that Manyati remained
a councillor until such
time as his expulsion was lawfully confirmed after a disciplinary
process and/or the DA had taken administrative
steps for his removal
as a councillor;
11.26 At that point
all of the councillors representing the DA and the members of its
voting alliance left the council chamber,
save for Manyati, who
remained behind. The reason for leaving the chamber was
obviously to frustrate the further conduct
of the meeting on the
assumption that Manyati’s position had been declared vacant and
the meeting would therefore be without
a quorum after the DA alliance
had left (even if Manyati stayed behind). According to Trollip
the councillors retired to
a caucus meeting. Nobody from the
DA’s voting alliance thereafter returned to the council
chamber. According
to the respondents the DA coalition left the
chamber with full knowledge that 61 councillors remained behind and
the DA alliance
members left at their own risk;
11.27 Mettler then
declared that the council meeting lacked a quorum and could not
continue. Various councillors contested
this decision,
whereafter he reiterated that his decision remained that a vacancy
had occurred and that, consequently, the meeting
was not quorate.
Mettler then “
left the chamber
”
(in Trollip’s words) at approximately 15:20;
11.28 Shortly
thereafter, Trollip received a message from Mettler that the latter
wished to see him. Trollip met Mettler at
the City Hall.
Mettler advised that he had received further advice which possibly
cast doubt upon his decision to declare
a vacancy and that it was his
intention to convene a further council meeting the following day.
This decision to reconvene the
following day was taken after Mettler
had been advised, and also realized, that he had incorrectly declared
a vacancy. Trollip
expressed the view that before reconvening the
meeting Mettler was obliged to consult with him. Trollip also
pointed out
that, in any event, in terms of the rules of order, five
working days’ notice of a further meeting was required;
11.29 Mettler then sent an electronic
message to councillor Riordan, a councillor of the tenth respondent
(the ANC) in the following
terms:
“
Just
had further legal advice. Will be calling council meeting for
tomorrow and will retract declaration of vacancy.
Please don’t
continue with meeting. At liberty to read this sms to cllrs.
”
11.30 Shortly thereafter Mettler
supplemented this message as follows:
“
Was
advised to give adequate notice, for Monday three September.
”
11.31 After Mettler
had left the chamber, councillor Lungisa (a representative of the
ANC) urged all present to remain in the chamber,
obviously persisting
that there had in fact been a quorum. A period of discussion
ensued as to whether or not to continue
with the agenda items;
11.32 Councillor
Riordan received the electronic message referred to above from
Mettler and read it out to those present;
11.33 At
approximately 17:00, an official in the speaker’s office, upon
instructions of Mettler, circulated a notice to all
relevant
officials notifying them of the re-scheduled council meeting on 3
September 2018;
11.34 Importantly,
the said notice was circulated:
(a) after Mettler
had been advised that his earlier declaration of the vacancy was
incorrect;
(b) after Mettler
had realized that he had to retract his declaration of a vacancy;
(c) after Mettler
had refused to return to the meeting, despite the aforesaid;
and
(d) after the MEC
had already commenced with the implementation of the fallback
procedure provided for in section 36(3) of the Structures
Act, to
which I will revert in more detail later herein;
11.35 Shortly after
17:00, the second respondent (Roestorff) arrived at the council
chamber and after a meeting in the street with
councillors Lungisa,
Bobani and other members of the leadership of the ANC, entered the
chamber at approximately 17:30, took the
chair and introduced
herself;
11.36 According to
Trollip he had made enquiries from Mettler and was informed that
after Mettler had left the chamber, subsequent
to declaring that the
council meeting lacked a quorum, he was at all times in his office in
City Hall, which is directly across
from the street of the chamber.
His cellphone was on and he was also accessible by landline (and
e-mail). His secretary was
also available;
11.37 According to
Trollip Mettler informed him that he was at no stage contacted by the
MEC or anybody on the MEC’s behalf,
nor did he receive any
electronic or other form of message enquiring as to his
availability. According to Trollip Mettler
“
was
plainly available to return to the meeting in the Council chamber to
the extent that this was necessary (if for example the
meeting had
become quorate)
”
;
11.38 Annexed to
Trollip’s affidavit is an unsigned confirmatory affidavit of
Mettler;
11.39 On 3
September 2018 Mettler deposed to an affidavit in which he stated,
inter alia
,
as follows:
“
3.
I read the Founding Affidavit attested to by the Second Applicant.
4.
The Third Respondent and I abide any decision of the above Honourable
Court regarding the above Application.
5.
On Index – Pages 113 to 114 of the Application Papers, there
appears an unsigned Affidavit which bears my name.
6.
I decline to attest to such Affidavit through the Third Respondents
and my attorney of record on the basis that I am an official
of the
Third Respondent and I did not consider it appropriate that I align
myself with any of the political parties who are in
dispute in
respect of the issues raised in the Affidavits.
7.
Insofar as the allegations in Paragraph 68 are concerned
(which
allegations dealt with the further sms in relation to adequate notice
forwarded by Mettler to councillor Riordan)
,
the impression may be created that the sms which I forwarded to
councilor Riordan was as a result of discussions with the deponent
and advice from the deponent.
8.
For the reasons stated above, I do not align myself with any
political party and the sms which is quoted in Paragraph 68 and
appears as the second sms on annexure “FA11” was sent on
the advice of Senior Counsel.
”
11.40 On 6
September 2018 Mettler deposed to a supplementary affidavit in which
he stated,
inter alia
,
as follows:
“
3.
This Affidavit is supplementary to the Affidavit deposed to by me on
3 September 2018.
4.
Save as is otherwise dealt with in my Affidavit of 3 September 2018
and save to point out that the reference in the second and
third
lines of Paragraph
60
erroneously refer to the Third, Fourth and Fifth Respondents as
opposed to Third, Fourth and Fifth Applicants, I confirm the
correctness
of the contents of the Founding Affidavit to the extent
that these refer to me and my actions.
”
11.41 On 12
September 2018 Mettler deposed to a further supplementary affidavit
in which he stated,
inter alia
,
as follows:
“
3.
This Affidavit is supplementary to the Affidavits deposed to by me on
3 September 2018 and 6 September 2018.
4.
The Third and Fourth Respondents continue to abide the decision of
the above Honourable Court in the above matter.
5.
I have read the First Respondent’s Answering Affidavit, the
Confirmatory Affidavit deposed to by S.V. Maqungo, the Confirmatory
Affidavit deposed to by N.D. Jamjam and the Supporting Affidavit
deposed to by the Second Respondent which were received on 11
September 2018.
6.
I confirm having been contacted on 27 August 2018 by N.D. Jamjam who
wanted me to take delivery of a letter at the Council Chamber
to
which I responded that I was in my office and the letter could be
delivered to me at my office.
7.
I confirm further that I have no record of any attempt by the Second
Respondent to contact me on 27 August 2018 and that during
the
afternoon of 27 August 2018 after leaving the Council Chamber, I was
available at my office.
”
11.42 In his latest
supplementary affidavit Mettler therefore confirmed that he was
contacted with a request to return to the council
chamber, albeit to
take delivery of a letter. This is in plain contrast to
Trollip’s allegation in paragraph 75 of
the founding affidavit
which was that Trollip was informed by Mettler, and I repeat: “
that
at no stage was he contacted by the First Respondent or by anybody on
his behalf, nor did he receive any electronic or other
form of
message enquiry as to his availability
”
;
11.43 The
respondents’ version as to the availability of Mettler to chair
the meeting differs markedly from that of the applicants.
According
to Bobani, councillors from the remaining majority tried to contact
Mettler to proceed with the meeting. Councillor
Ndoni (the
ninth respondent) phoned Mettler in Bobani’s presence at
15:42. Councillor Lungisa was also present when
Ndoni phoned
Mettler. Ndoni told Mettler that the meeting was quorate and
specifically requested him to return to the council
chamber to
preside over the election of a speaker. Mettler however
declined, insisting that he would reschedule the council
meeting to
the following day;
11.44 According to
Bobani, Roestorff also tried to contact Mettler from Bobani’s
cellphone in his presence and in the presence
of councillors Lungisa
and Ndoni. Mettler did not answer. His voicemail
indicated that he was “
not
available
”;
11.45 Ndoni deposed
to an affidavit, as part of the opposing papers, in which he stated,
inter alia
,
as follows:
“
5.
At 15:42 on 27 September 2018, I phoned the Municipal Manager from my
cell phone. When I made the call, and for its entire
duration,
I was in the presence of Mayor Bonani
(sic)
and Councillor Andile Lungisa.
6. I spoke with the
Municipal Manager for 59 seconds. To the best of my
recollection, the conversation went like this:
Councillor
Ndoni
:
Hi Johan, it’s Councillor Ndoni (Bicks) here can we talk?
Municipal
Manager
:
Yes Councillor
Councillor
Ndoni
:
Johan I would like to persuade you to come back to the meeting, I
personally do not think that walking away and leaving
councilors
behind was a right thing to do.
Municipal
Manager
:
Yes Councillor you know after receiving a second legal opinion on the
standing of Councillor Manyati, I had the same thinking
you have and
I wanted to come back, but given the fact that other councilors [the
DA Coalition] have left already on the basis
of the first legal
advice I feel that I must re-schedule the meeting for tomorrow.
Councillor
Ndoni
:
Well if you say so there is nothing I can do, I hope you will
consider what I have advised. Thank you.
7.
I expressly asked the Municipal Manager to return to the chamber to
preside over the election of a new Speaker. The Municipal
Manager declined to do so. He insisted that he would be
re-scheduling the meeting. With that, I returned to the
meeting.
”
11.46 In Roestorff’s affidavit,
which was filed together with the answering affidavit of the MEC, she
stated,
inter alia
, as follows:
“
I
further confirm that I called the Fourth Respondent on my way to the
Council Chambers two times without any success.
”
11.47 It needs to be stated that
Roestorff read out to the meeting a letter from the MEC in the
following terms:
“
Kindly
be advised that I have designated you, in terms of section 36(3) of
the Local Government: Municipal Structures Act,
1998 (Act 117
of 1998) to preside over the election of a speaker at Nelson Mandela
Bay Metropolitan Municipality. You are
expected to ensure that
the procedure that is set out in Schedule 3 of the Structures Act is
observed when elections are conducted.
”
11.48 After taking
the chair, Roestorff requested the attendance register to be
completed to establish if there was a quorum.
She was advised
by councillors that the attendance register would be circulated
before she left. She then stated that she
would proceed with
the process of the election of a speaker in compliance with the
requirements of Schedule 3 of Structures Act;
11.49 Councillor
Vena suggested that a hand count be conducted to establish whether or
not there was a quorum. Roestorff agreed
to this and those
present, including Manyati, were counted to be 61 councillors
present;
11.50 Roestorff
then called for nominations for the position of speaker.
According to the applicants this occurred orally.
However,
according to the respondents there was only one nomination on a
signed nomination form and that was the nomination of
councillor
Mafaya. According to the respondents no nomination for councillor
Lawack was presented to council as the applicants
had voluntarily
absented themselves from the council meeting. The respondents
contend that, in doing so, the DA coalition
partners were exercising
their constitutional rights to protest and to dissociate. Their
actions however had no external
legal effect;
11.51 Roestorff
then announced councillor Mafaya (the fifth respondent) to have been
duly elected as speaker. Mafaya then
took the chair as speaker
and announced that she would proceed with the further items on the
agenda;
11.52 According to
the respondents Roestorff lawfully discharged her mandate to preside
over the election of a speaker. There
was only one nomination
on a signed nomination form for the speaker and that was that of
councillor Mafaya. The motions which
are the subject matter of
these proceedings were then all validly passed with a quorum of 61
councillors and with the majority
of votes in favour;
11.53 The respondents contend that the
provisions of Schedule 3 of the Structures Act were complied with,
alternatively they contend
that any non-compliance was formal of
nature and did not render the process invalid. The DA coalition
had left the meeting
and it did not nominate an alternative
candidate. Section 5 of Schedule 3 then obliged Roestorff to
declare councillor Mafaya
duly elected as speaker, which Roestorff
duly did.
THE
APPLICANTS’ “NEW” CAUSE OF ACTION
:
[12]
In
the applicants’ replying affidavit and their heads of argument
the applicants purported to amend their cause of action
by the
introduction of the following new arguments based on the trite
Oudekraal
[1]
principles:
“
12.
From these facts it is clear that the fourth respondent, who was
fulfilling his statutory obligation to preside over the election
of a
new speaker in terms of section 36 of the Local Government:
Municipal Structures Act, 117 of 1998 (“the Structures
Act”)
took the following actions, which are administrative actions as
contemplated in the Promotion of Administrative Justice
Act, 3 of
2000 (“PAJA”):
12.1.
he declared a vacancy in the Council pursuant to the termination of
the eighth respondent’s membership of the first
applicant;
12.2.
he declared the meeting to be inquorate; and
12.3
he adjourned the meeting;
12.4
he re-scheduled the meeting of the council for 3 September 2018;
12.5
he advised the Independent Electoral Commission of the vacancy in the
Council.
13.
The abovementioned administrative actions/decisions of the fourth
respondent:
13.1
as a fact do exist;
13.2
continue to exist until, in terms of due process, they are properly
considered and set aside by a court;
13.3
had consequences.
”
[13]
It is
a trite principle that the court will not permit an applicant to make
out a case in reply when it failed to make out a case
in the founding
papers.
[2]
[14]
I
accept that this is not an absolute rule and that courts should not
be overly technical in this regard.
[3]
[15]
In the circumstances I intend to apply this
general rule with a fair measure of common sense.
[16]
Applicants’ counsel, Adv Ronaasen SC,
contended that the applicants’ case has always remained the
same and that the
facts for the administrative action on which they
now rely, were apparent from the founding papers. I disagree
with this
contention, with particular reference to the contention
that Mettler “
adjourned the
meeting
”. It is common
cause that Mettler did not adjourn the meeting in terms of rule 19,
but that he simply “
left the
chamber at approximately 15:20
”.
His intention was specifically not to adjourn the meeting and I again
refer to paragraphs 74 and 75 of the applicants’
founding
papers, which reads as follows:
“
74.
In this regard I have made enquiries from the Fourth Respondent who
has informed me that after he left the Council chamber subsequent
to
declaring that the Council meeting lacked a quorum, he was at all
times in his office in City Hall which is directly across
the street
from the chamber. His cell phone was on and he was also
accessible by landline (or for that matter by email).
His
secretary was also available.
75.
He informed me that at no stage was he contacted by the First
Respondent or by anybody on his behalf, nor did he receive any
electronic or other form of message enquiring as to his
availability. He plainly was available to return to the meeting
in the Council chamber to the extent that this was necessary (if for
example the meeting had become quorate).
”
[17]
These allegations pertaining to Mettler’s
availability were obviously necessary for purposes of the applicants’
cause
of action to review and set aside the intervention of the MEC
in the meeting. It was not the applicants’ case in its
founding papers that Mettler had formally adjourned the meeting. He
subsequently decided, after his discussion with Trollip and
after he
had received the further advice that he incorrectly declared a
vacancy, not to return to the chamber and to resume the
meeting the
next day. In doing so, he did not comply with rule 19 of the
rules of order in terms of which he was obliged
to adjourn the
meeting for a period not exceeding 20 minutes, after which, if a
quorum was still not present, the meeting had to
be adjourned to a
future date and time.
[18]
In the circumstances I find, as a fact,
that the meeting was not formally adjourned by Mettler and that his
belated attempt to do
so, after the provisions of section 36(3) had
already been invoked, had no legal effect.
[19]
A
further difficulty for the applicants in relation to the decisions or
rulings by Mettler, is the question whether or not such
rulings
constituted administrative action as contemplated in PAJA. It
was convincingly argued by Adv Ngcukaitobi, who appeared
on behalf of
fifth, sixth, seventh and ninth respondents, that the decisions of
Mettler, in his capacity as acting speaker, were
merely preliminary
and procedural rulings as part of fluid proceedings, which cannot
ever be regarded as administrative action.
It would be
untenable, so it was contended, to suggest that every ruling of the
speaker is cast in stone until it is reviewed and
set aside in a
court of law. I agree with this contention. City councils would never
get their business done if every ruling of
the speaker stood until it
was overturned on review. This would however, in my view, depend on
the nature of the ruling and the
specific facts and circumstances
which prevail at the time of the ruling.
[4]
[20]
In my view the interim nature of Mettler’s
procedural rulings in this matter disqualify them from being
administrative action
for purposes of PAJA.
[21]
It was also argued by Adv Mpofu SC, who
appeared for Manyati, that the rulings of Mettler in this matter
plainly fell within the
legislative functions of the municipal
council and are, for that reason, excluded by the provisions of
section 1 (b) (dd) of PAJA.
In light of my finding set out above, I
do not deem it necessary to decide this particular issue for purposes
hereof.
[22]
I therefore find that the creative approach
of the applicants to introduce the aforesaid administrative action
argument in relation
to the rulings of Mettler is without merit, and
was in any event introduced too late, in the circumstances of this
particular matter.
I want to make it clear that this finding is
pertinent to the facts of this matter only. It is not inconceivable
that certain rulings
of a speaker might indeed, depending on the
prevailing facts and the consequences thereof, constitute
administrative action for
purposes of PAJA. This is, however,
in my view, not one of those cases.
THE
MAIN ISSUES ON THE MERITS
:
[23]
This then brings me back to the main issues
on the merits of the main application, namely the issue of a quorum;
the issue of the
availability of Mettler, and the issue of compliance
with the provisions of Schedule 3 to the Structures Act. I will
deal
with these issues below
a seriatim
.
Was
the council meeting of 27 August 2018 quorate
?
[24]
There is no dispute between the parties
that there was a quorum at the beginning of the council meeting on 27
August 2018 (in fact
all 120 councillors were present). There
also seems to be no dispute that, when the DA coalition councillors
left the chamber,
60 councillors plus Manyati remained behind.
This was a sufficient number of councillors to constitute a quorum,
provided
that Manyati was still a councillor.
[25]
The applicants suggest in their founding
papers that Manyati was no longer a member of the DA at that time,
and that there was therefore
a vacancy, which would have meant, if
this were correct, that only 60 councillors stayed behind, which was
insufficient for a quorum.
The DA subsequently seems to have
realized that their impromptu termination of Manyati’s
membership during the lunch adjournment
was premature.
[26]
In this regard the DA’s internal
disciplinary documents clearly indicated that, as far as the DA was
concerned, 28 August
2018 was Manyati’s last day as a member of
the DA. The following are the pertinent extracts from the
relevant documentation
of the DA:
26.1 On 29 August 2018 the DA
addressed a letter to Manyati in the following terms:
“
Attached
hereto please find a determination by the Federal Legal Commission of
the Democratic Alliance in which they find that your
membership of
the Party has ceased by virtue of the fact that you publicly declared
your intention to resign from the DA.
You
will note from paragraph 19.1 of this determination that you should
be afforded a further opportunity to make representations
as to why
your membership has not ceased. Accordingly, and on behalf of
the Federal Executive, I am giving you 24 hours from
the time of
service of this letter for you to provide me with reasons why your
membership has not ceased…
”
26.2 The ultimate
determination of the Federal Legal Commission of the DA reads,
inter
alia
, as follows:
“
9.
The original of the attached copy of the Letter of Cessation of
Membership (Annexure “G”), dated 28 August 2018,
was
served on Manyati’s daughter at 13:32pm on the same day by the
Sheriff of the Court, Mr Morne De Lange, in the presence
of Ms Vicky
Knoetze and others. The panel was provided with a return of
service and service affidavit which is attached hereto
as Annexures
“H” and “J”.
10.
The letter advises Manyati, inter alia, that, in terms of ss 3.5.1.2,
3.5.1.3 and 3.5.1.13 his membership of the Party ceased
on 28 August
2018…
19.
Having perused and considered all relevant and available documentary
evidence at hand, the panel finds that Manyati’s
membership
ceased on
28
August 2018
by virtue of the provisions of s 3.5.1.2, 3.5.1.3 and 3.5.1.13 of the
DA Constitution. It is accordingly recommended to the
Federal
Executive that:
19.1
Manyati should be afforded a further opportunity, by the submission
of documentary evidence, within a reasonable time to be
set by the
Federal Executive, to persuade the Federal Executive to the belief
that his membership did not cease on 28 August 2018;
and
19.2
Should Manyati fail to persuade the Federal Executive that his
membership did not cease on
28
August 2018
in terms of s 3.5.1.13 of the DA Constitution; then cessation
of his membership be confirmed and all consequences thereof
implemented
”
(emphasis
added);
26.3 On 28 August 2018 the aforesaid
date of termination was confirmed in a letter from the DA’s
attorneys addressed to Manyati’s
attorneys, which letter read,
inter alia
, as follows:
“
In
the circumstances, your client’s membership of the DA ceased
with effect from 28 August 2018.
”
[27]
Mr Ronaasen argued that the reference in
paragraph 2 of the determination of the Federal Legal Commission to a
letter of cessation
of membership, dated 28 August 2018, was a
mistake and obviously should have been a reference to the letter of
Selfe, the chairperson
of the Federal Executive of the DA, dated 27
August 2018 in terms of which Manyati was informed that “
In
the face of incontrovertible evidence that you did so publicly
declare your intention to resign, the Federal Executive met by
means
of a telephone conference at 13:30 today and resolved that your
membership had ceased with immediate effect.
”
[28]
I disagree with Mr Ronaasen’s
submission. The Federal Legal Commission made it clear that the
panel was presented with
a copy of a “
Letter
of Cessation of Membership
”,
dated 28 August 2018. This is obviously a correct reference to
the letter of cessation of membership, which was in
fact dated 28
August 2018 and which letter was served by the sheriff on Manyati’s
daughter on 28 August 2018. This
letter came to the attention
of Manyati for the first time when he entered his study at
approximately 07:00 on 29 August 2018.
[29]
The DA should furthermore, and in any
event, have been fully aware of the provisions of its own
constitution, which would have made
a termination of Manyati’s
membership on 27 August 2018, without any prior notification to him,
and without affording him
an opportunity to present his case,
impossible. Mr Mpofu referred me in this regard to clause
10.5.1 of the constitution
of the DA which provides,
inter
alia
, as follows:
“
10.5.1
The Rules of Procedure prescribed by the Federal Legal Commission
must apply to all proceedings of a panel: Provided
that the
rules of natural justice must at all times be adhered to. In
particular a panel must not make any adverse finding
against any
person unless:
10.5.1.1
The person has been sufficiently informed of every allegation against
him or her and has been given the opportunity to
rebut the
allegations; and
10.5.1.2
He or she has been given the opportunity to submit evidence of
mitigating factors…
”
[30]
In terms of the provisions of its own
constitution, the DA has, in the circumstances, guaranteed the right
of its members not only
to the principles of natural justice but also
to the principles of a fair process.
[31]
Insofar as the DA persisted with their
contention that Manyati’s membership ceased during the course
of the adjournment of
the council meeting on 27 August 2018, it seems
to me that the principles of natural justice were barely, if at all,
observed by
the DA. In this regard Mr Mpofu submits as follows
in the heads of argument filed on behalf of Manyati:
“
19.1
Manyati was not given a reasonable opportunity to respond to any
adverse statements or evidence held against him – the
decision
to remove his membership was taken minutes after he had abstained his
vote;
19.2
Manyati was summarily dismissed without a proper process being
followed or any charges being put to him;
19.3
As opposed to being heard, he was simply informed of a decision,
rather than being heard prior to the decision being made;
19.4
He was subjected to numerous subsequent cessations of his membership
that purported to sanitize a process that was marred with
irregularity.
”
[32]
Mr Mpofu also referred me in argument to
the recent decision of the full bench of the Western Cape Division of
the High Court in
the matter of
Patricia
De Lille v The Democratic Alliance and Others
,
case number 7882/18, handed down on 27
June 2018
, where the court held,
inter
alia
, as follows:
“
[48]
… In the circumstances counsel for the DA was
constrained to concede that until such confirmation by FedEx, as
a
matter of law, cessation of membership does not occur. In the
absence of such a finding the membership of an affected member
remains extant and does not cease to exist in law.
[49]
Our finding that in terms of the party’s constitution and its
rules, membership does not cease automatically, by operation
of law,
and is dependent upon a determination which has to be made to that
effect, which must in turn be confirmed in order to
become operative…
[67]
Chp 10 of the DA’s constitution in turn provides that the FLC
must determine the rules of procedure which may be applicable
to it,
which may not be in conflict with the Federal constitution. The
procedures that are applicable to proceedings of panels
are dealt
with in Clause 10.5 of the Federal constitution.
(The
court then quoted clause 10.5.1 of the DA constitution referred to
above.)
[68]
It is apparent from these peremptory provisions that before making an
adverse finding against De Lille, the parties was required
to give
her an opportunity to submit evidence in mitigation, which is common
cause, it did not do. Although ordinarily mitigation
only comes
into play when penal or disciplinary sanctions can be imposed, cl
10.5.1 extends this to
all
proceedings of an FLC panel ie not only proceedings in panels
conducting disciplinary proceedings, but also those constituted to
determine whether a member’s membership has ceased, and it
further provides that
no
panel may make an adverse finding against any member, unless he or
she has been given an opportunity to put forward mitigating
factors.
”
[33]
Manyati disputes in his opposing papers
that his membership of the DA has been terminated at all.
[34]
I am constrained, in these
circumstances, to find that Manyati was still a member of the DA and
a duly elected councillor on 27
August 2018.
[35]
There was therefore factually no vacancy at
any point on 27 August 2018 and because there was no vacancy there
was, at all material
times, a quorum of 61 councillors.
[36]
This brings me to Mettler’s purported
declaration of a vacancy in the council during the meeting of 27
August 2018.
Mr Mpofu submitted that Mettler’s incorrect
declaration of a vacancy had no effect on the quorum of the meeting
and the meeting
could therefore proceed to deal with the further
items on the agenda. However, the DA then opportunistically
ceased upon
the declaration of a vacancy as an opportunity to render
the meeting inquorate by leaving the chamber together with its
alliance
members.
[37]
It is important to note that the meeting
had not been formally adjourned immediately after the declaration of
a vacancy. After
the DA coalition left the chamber, Mettler
declared that the meeting was inquorate and also left the chamber.
He however
did not
adjourn
the meeting at that stage to the next day or to a later date.
Apart from probably acting unlawfully by leaving the chamber
at that
time, Mettler was compelled to comply with the provisions of rule 19
in terms of which he had to again establish that the
meeting was not
quorate twenty minutes later.
[38]
Back in his office, Mettler then received
further legal advice in terms of which he realized that he was wrong
in declaring the
vacancy. Mettler duly conveyed this
information to Trollip. However, instead of returning to the
chamber immediately
and continue with the meeting, which was
factually quorate, Mettler did not do so, neither did the DA
coalition members, who were
by then fully aware that the declaration
of the vacancy was wrong, return to the chamber. The DA
coalition is, unfortunately
for them, bound by the consequences of
their political gamesmanship in this regard.
[39]
In accordance with the council rules, the
meeting should, after the departure of the DA coalition, have
continued until it had completed
its business.
Was
the municipal manager “not available” to chair the
meeting for purposes of section 36 of the Structures Act
?
[40]
Rule 20 of the rules of order provides that
if the speaker is absent or not available to perform the functions of
speaker, or during
a vacancy, the council under the chairmanship of
the municipal manager or designated official must elect another
councillor to
act as speaker.
[41]
Although rule 10.2 provides that “
Only
the Speaker may interrupt, suspend or adjourn proceedings…
”
,
the municipal manager would, in given circumstances, have these same
rights in his capacity as acting speaker. I do not
think there
is merit in the respondents’ contention that Mettler could not
adjourn the meeting on the basis that only the
speaker could do so.
It would, for instance, be untenable to suggest that Mettler was
obliged to continue with the meeting,
and not have the right to
adjourn the proceedings, even in the absence of a quorum.
[42]
Section 36(3) of the Structures Act then
provides that where the municipal manager of the municipality is not
available, a person
designated by the MEC for Local Government in the
province shall preside over the election of a speaker.
[43]
The provisions of section 36(3) are plainly
intended to prevent a municipal manager from disabling the workings
of the council by
simply refusing to preside over the election of a
speaker.
[44]
In this matter Mettler knew that 61
councillors were left in the chamber. He was informed that his
ruling that the meeting
was not quorate was incorrect. He realized
that his ruling had to be retracted. He also knew that the
rules of order required
the meeting to continue uninterrupted.
He was asked to return to the meeting, but declined. Ndoni
phoned Mettler at
15:42 on 27 August 2018 from his cell phone.
Mettler however refused to return.
[45]
Despite the minor factual dispute of what
exactly happened, Mettler, in his further supplementary affidavit,
concedes that he was
phoned by a councillor with a request to return
to the chamber. He, however, did not do so.
[46]
Roestorff, the designated substitute
chairperson of the MEC, also tried to get hold of Mettler on two
occasions. Mettler, however,
did not answer his phone. In doing
so, Mettler plainly made himself unavailable, triggering the section
36(3) fallback position
which entitled the MEC to designate an
alternative person to preside over the election of a speaker.
[47]
It is important to note again that Mettler
did not formally adjourn the council meeting. He merely
declared the meeting inquorate
and thereafter left the chamber.
On the DA’s version he was available to return to the meeting
to the extent that this
was necessary (if for example the meeting had
become quorate). At the time when Mettler decided not to return
to the chamber,
he was fully aware of his earlier incorrect ruling
and that the meeting was in fact quorate.
[48]
Rule 10.1 of the rules of order makes it
plain that a meeting of the council must continue uninterrupted until
it has completed
its business.
[49]
The meeting had a quorum of 61
councillors. It should therefore have continued uninterrupted.
The meeting, however,
needed a speaker to continue. Mettler’s
role was to preside over the election of a speaker. His absence
necessitated
the procedure set out in section 36(3) of the Structures
Act.
[50]
The position might have been different if
Mettler had returned to the meeting and formally adjourned it to a
future date in terms
of the provisions of rule 19. It is quite
conceivable that, should this have occurred, the meeting could not
have been reconvened
without prior notice to all councillors.
[51]
However, for the reasons advanced above I
find that the council meeting was not adjourned before section 36(3)
of the Structures
Act was invoked by the MEC; that Mettler had
to return to the meeting in terms of rule 19; that his refusal
to do so,
rendered him “
not
available
” to chair the meeting
and that the MEC then validly proceeded in terms of the provisions of
section 36(3).
Were
the provisions of Schedule 3 to the Structures Act complied with?
[52]
The main issue in this regard relates to
items (5) and (6) of Schedule 3 which provides as follows:
“
(5)
Single candidate
If
only one candidate is nominated, the person presiding must declare
that candidate elected.
(6) Election
procedure
If
more than one candidate is nominated-
(a)
a vote must be taken at the meeting by secret ballot;
(b)
each councilor present at the meeting may cast one vote; and
(c)
the person presiding must declare elected the candidate who receives
a majority of the votes.”
[53]
The DA contends that, as they have earlier
submitted a proposal to the secretariat of the council, there were
two candidates and
the voting should therefore have taken place by
way of a secret ballot.
[54]
The respondents contend that the DA
Alliance did not submit a nomination in terms of item (2) of the
Schedule and, for that reason,
there was only a single nomination.
[55]
Item (2) of the Schedule reads as follows:
“
(2)
Nominations
The
person presiding at a meeting to which this Schedule applies must
call for the nomination of candidates at the meeting.”
[56]
In my view the trigger for the submission
of nominations was indeed the calling for nominations by the person
presiding in terms
of item 2. Roestorff was the person presiding.
She called for nominations and only one nomination was submitted. The
DA Alliance
was absent and therefore did not submit a nomination to
the person presiding. I do not think that the earlier submission of
their
nomination to the secretariat was in compliance with item 2 of
Schedule 3.
[57]
I therefore find, on all the facts already
comprehensively set out and dealt with above, that there was
compliance, alternatively
substantial compliance, with the provisions
of Schedule 3, by the respondents.
MANYATI’S
COUNTER APPLICATION
:
[58]
In Manyati’s counter application he
seeks the relief which is set out in paragraph [5] above.
[59]
The counter application flows from the same
facts and circumstances set out above.
[60]
The Applicants have essentially raised two
defences to the counter application. Firstly they raised a
defence of non-joinder
on the basis that the Independent Electoral
Commission (“the IEC”) and councillor Lutho Sokudela, who
was appointed
in the place of Manyati, should also have been joined
as respondents. The submission was that the IEC and Sokudela
had direct
and substantial interests in the relief sought in the
counter application and that such relief would operate adversely to
their
interests.
[61]
As far as the defence of a lack of
jurisdiction is concerned the applicants contend that the DA’s
national head office is
in Cape Town and because the primary relief
sought in the counter application, in particular the relief which is
set out in paragraphs
59.1, 59.2 and 59.3 of Manyati’s
affidavit, relates exclusively to the DA. This court, so it was
contended in the opposing
papers in the counter application,
therefore lacked the necessary jurisdiction to hear the matter.
[62]
On the point of non-joinder Manyati
contends that the letter from the IEC purporting to declare a vacancy
and which was not addressed
to him, and which letter forms the basis
of the applicants’ contention that the IEC should have been
joined as a party, was
attached for the first time to Trollip’s
answering affidavit to the counter application. Manyati only
became aware
of the letter on 12 September 2018 when Trollip’s
answering affidavit was served on him. It could therefore not
have
been expected of him to have joined the IEC as a party to the
counter application.
[63]
The
test to be applied in this regard is whether or not a party has a
direct and substantial interest in the subject matter of the
litigation, that is, a legal interest in the subject matter of the
litigation which may be affected prejudicially by the judgment
of the
court.
[5]
The mere fact that a party may have an interest in the outcome of the
litigation does however not always necessarily warrant
a plea of
non-joinder.
[6]
The general rule is that any party is a necessary party and should be
joined if such a person has a direct and substantial
interest in any
order the court might make, or if such an order cannot be sustained
or carried into effect without prejudicing
that party, unless the
court is satisfied that the particular party has waived his or her
right to be joined.
[7]
[64]
I am not convinced that this is a matter
where the court’s order cannot be sustained or carried into
effect without prejudicing
the aforesaid two parties. The IEC
is an independent organization established under chapter 9 of the
Constitution.
It is responsible for the management of elections
of national, provincial and municipal legislative bodies in
accordance with national
legislation. In the exercise of these
functions the IEC is responsible for voter’s roles and for
keeping record of
duly elected officials. It is inconceivable
that the IEC would have entered into the fray of these proceedings.
The
IEC would, in any event, only have been joined as a nominal
respondent. When the outcome of these proceedings is conveyed
to the IEC, they will, needless to say, simply amend their records
accordingly.
[65]
As far as councillor Sokudela is concerned,
his involvement is also merely of a formal nature. His
appointment flows from
the purported termination of Manyati’s
membership. Should the termination of Manyati’s
membership be unlawful,
the
status quo
ante
will simply be restored which will
in effect mean that Sokudela’s appointment will be reversed.
Furthermore having regard
to the very late introduction of the letter
of the IEC, which is dated 6 September 2018, Manyati cannot be blamed
for his failure
to join these parties. I also see no reason why
the counter application should be postponed to some future date for
the purposes
of effecting the joinder of these parties. It is
also plainly in the interest of justice that the matter be brought to
finality
as soon as possible.
[66]
I therefore find that the defence of
non-joinder is without merit.
[67]
As
far as the defence of a lack of jurisdiction is concerned, the basic
principle of our law in respect of jurisdiction is effectiveness.
[8]
[68]
In terms of section 21 of the Superior
Courts Act a high court has jurisdiction over all persons residing or
being in, and in relation
to all causes arising and all offences
triable within its area of jurisdiction.
[69]
There is no dispute between the parties
that the various causes of action in this matter arose within this
court’s jurisdiction.
The DA coalition partners
furthermore chose to launch their proceedings in this court. It
is, untenable to now expect a counter
application, arising from the
same facts, to be launched by Manyati in the Western Cape High
Court. To hold differently will
defeat the principle of
effectiveness.
[70]
I therefore also find that this defence is
without merit.
[71]
As far as the merits of the counter
application is concerned I have already found that the DA’s
purported termination of Manyati’s
membership on 27 August 2018
was unlawful, in breach of the DA’s own constitution and in
conflict with the
De Lille
-judgment.
Insofar as the DA’s own documentation seems to suggest that the
termination of Manyati’s membership
possibly only took place at
a later date, following some belated notification to Manyati, the DA
alliance partners are, in my view,
bound to their defence raised in
their papers, and persisted in before me, which is that Manyati’s
membership was lawfully
terminated on 27 August 2018. This
defence therefore has no merit.
[72]
It follows, in the circumstances, that
Manyati’s counterclaim must succeed.
[73]
I will direct the registrar to forward a
copy of my orders to the IEC. Sokudela is a member of the DA
and my orders will therefore,
needless to say, come to his attention
in due course.
CONCLUSION
:
[74]
As a result of the serious political
consequences of my decision in this matter I have deemed it necessary
to give a brief summary
of the salient points culminating in my
decision:
74.1
The
flaws in the political decision-making of the DA coalition on 27
August 2018 were as follows
:
(a) The decision to
terminate Manyati’s membership during the lunch adjournment, in
circumstances where the DA coalition ought
to have known that this
was not legally competent;
(b) The decision to
leave the council chamber after Mettler’s incorrect declaration
of a vacancy;
(c) The decision
not to return to the council chamber after the DA had been informed
by Mettler that his decision in relation to
the vacancy was
incorrect, which meant that there was at all material times a quorum
in the meeting;
(d) The insistence
of the DA coalition partners that they be given sufficient notice of
a continuance of the meeting in circumstances
where, on their own
version, Mettler was waiting and available in his office for purposes
of resuming the meeting should it become
quorate (which, of course,
it always was);
74.2
Mettler’s
errors in handling the situation can be summarized as follows
:
(a) His decision to
stand the meeting down twice in circumstances where the meeting had
to continue uninterrupted in terms of the
rules of order.;
(b) His failure to
return to the meeting after having been requested to do so by certain
councillors;
(c) His failure to
return to the meeting after he had been advised that the meeting was
at all material times quorate;
(d) His failure, in
any event, to properly adjourn the meeting in terms of the provisions
of rule 19(3). In terms of this
rule Mettler was obliged to
adjourn the meeting for a period “
not
exceeding a further twenty minutes
”
,
after which, if a quorum was still not present, the meeting had to be
adjourned by Mettler to a future date and time. As stated
above,
Mettler’s belated attempt to postpone the matter, after the
section 36(3) procedure had already commenced, had no
legal effect.
[75]
It is my wish that all political parties in
the Metro will endeavour to work together in a less confrontational
manner in the future,
in the best interests of all concerned.
[76]
However, for purposes of the present
matter, and based on the facts placed before me, I fail to find any
reviewable error in the
process adopted by the respondents on 27
August 2018.
[77]
As far as costs are concerned, the fifth
applicant had withdrawn its participation as an applicant in the
matter at the commencement
of the hearing. This withdrawal was not
accompanied by a tender for costs. The fifth applicant
therefore remains liable in
respect of the cost orders which are
contained in my orders set out below.
[78]
It is not in dispute between the parties
that the costs of two counsel would be justified in this matter.
[79]
I therefore make the following orders:
(1)
The
main application
:
(a)
The
application is dismissed;
(b) The applicants
are jointly and severally liable to pay the respondents’ costs,
including the costs of two counsel;
(2)
The
counter application
:
(a) It
is declared that the eighth respondent’s membership of the DA
still subsists and will continue to subsist until his
resignation, or
until the conclusion of disciplinary proceedings against him,
properly brought in compliance with the DA’s
constitution;
(b) In
the interim it is declared that Manyati remains a councillor of the
third respondent;
(c)
The applicants are jointly and severally liable to pay the eighth
respondent’s costs, including the costs of two counsel;
(3) The registrar of this
court is directed to forward a copy of this order by e-mail to the
IEC at
info@elections.org.za
.
________________________________
J D HUISAMEN
ACTING JUDGE OF THE HIGH COURT
Matter heard on: 13
th
September 2018
Judgment
delivered on: 20
th
September 2018
Counsel for the
Applicants: Adv O Ronaasen SC together
with
Adv Richards
Instructed by: Roelofse
Meyer Inc Attorneys
PORT
ELIZABETH
Counsel for the 1
st
and 2
nd
Respondents: Adv P
Beningfiled SC together
with
Adv Mqobi
Instructed by: The State
Attorney
PORT
ELIZABETH
Counsel for 3
rd
and 4
th
Respondents:
No appearance
Instructed by: McWilliams
& Elliot Inc.
PORT
ELIZABETH
Counsel for the 5
th
,
6
th
,
7
th
and 9
th
Respondents: Adv T Ngcukaitobi together with
Adv
C. Tabata and Adv T.
Romogale
Instructed by: N.E
Mbewana Attorneys Inc
PORT
ELIZABETH
Counsel for the 8
th
Respondent: Adv D Mpofu SC together with
Adv
J Mitchell and Adv Mkhize
Instructed by: Mabuza
Attorneys c/o Bester
Attorneys
PORT
ELIZABETH
Counsel for the 10
th
to 14
th
Respondents:
No appearance
Instructed by: Wikus van
Rensburg Attorneys
PORT
ELIZABETH
[1]
See
Oudekraal Estates
(Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
[2]
See
Poseidon Ships
Agencies (Pty) Ltd v African Coaling and Exporting Company (Durban)
(Pty) Ltd and
Another
1980 (1) SA
313
D at 316 A
[3]
See
Passenger Rail
Agency of SA v Swifambo Rail Agency (Pty) Ltd
2017 (6) SA 223
at 227
at paragraph
[11]
[4]
See
Botha
v Matjhabeng Municipality
[2015] JOL 34026
(FB), for an interesting
discussion on the nature of rulings by a speaker in related
circumstances.
[5]
See
Henri Viljoen (Pty)
Ltd v Awerbuch Bros
1953 (2) SA 151
(O) at 168 to 170
[6]
See
Judicial Service
Commission v Cape Bar Council
2013 (1) SA 170
(SCA) at 176 (I) to
177 (A)
[7]
See
Kethel v Kethel’s
Estate
1949 (3) SA 598
(A) at 610
[8]
See
White v Stattaford
and Company
1929 EDL 10
at 42