Brief Summary

Local Government — Municipal Structures Act — Validity of council meeting — Applicants sought to interdict the MEC and municipal council members from proceeding with a meeting called by the MEC, arguing it was unconstitutional and invalid due to procedural irregularities — Court held that the MEC's decision to convene the meeting was inconsistent with the Constitution and declared it invalid, issuing a rule nisi for further consideration and interdicting the respondents from proceeding with the meeting pending final determination.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an urgent application brought in the KwaZulu-Natal High Court, Pietermaritzburg, during the court recess. The applicants sought, primarily, interdictory relief to prevent a special municipal council meeting from proceeding, and ancillary relief reviewing and impugning the lawfulness of the provincial intervention that purported to convene that meeting.

The applicants were Alfred Duma Local Municipality, its Speaker (cited as the second applicant), and its Municipal Manager (cited as the third applicant). The principal respondent was the Member of the Executive Council: Cooperative Governance and Traditional Affairs, KwaZulu-Natal (the MEC). The remaining respondents included the Alfred Duma Municipal Council and 37 individual councillors, who were associated with a petition calling for a special meeting and motions of no confidence against the Mayor, Deputy Mayor, and Speaker.

On 29 March 2023, the court granted an urgent order (including a rule nisi and interim interdict) and indicated that reasons would follow. The reasons were later delivered on 22 May 2023. The urgent order condoned non-compliance with time periods and notice requirements, interdicted the holding of the scheduled meeting (pending return day), and set in motion the determination whether the MEC’s decision to convene and chair the meeting under section 29(1A) of the Local Government: Municipal Structures Act 117 of 1998 was constitutionally and administratively valid.

The subject-matter of the dispute concerned the lawfulness of convening a municipal council meeting under the Structures Act and municipal standing orders, particularly whether the jurisdictional facts for invoking section 29(1A) (intervention by the municipal manager or MEC’s designate when the speaker refuses) were present, and whether the MEC’s conduct impermissibly intruded into municipal autonomy.

2. Material Facts

A petition requesting a special council meeting was first received by the municipal manager on 13 March 2023, “purportedly” signed by 37 councillors, invoking section 29(1) of the Structures Act read with rule 8(1) of the Municipality’s standing orders. The municipal manager responded on 15 March 2023 that the request had to be addressed to the Speaker, because section 29(1) places the convening obligation on the speaker when a majority requests a meeting in writing.

On 16 March 2023, the councillors delivered the petition to the Speaker. The petition sought a special meeting on 23 March 2023 and attached three urgent motions: removal of the Mayor, removal of the Deputy Mayor, and removal of the Speaker, each on the basis of alleged failure to perform duties. The requesting councillors provided a joint statement asserting urgency linked to flooding in Ladysmith and alleged “leaderlessness”.

The court treated as material that the statement accompanying the request did not set out reasons explaining why the intended business was so urgent that it could not wait for an ordinary meeting, as required by rule 8(3)(b)(ii) of the standing orders.

After receiving the request, the Speaker formed the view that a number of signatures were not authentic. On 20 March 2023, he wrote to one of the councillors, indicating he would investigate the authenticity of signatures and requested original signatures, seeking 14 days to complete an investigation with assistance from a handwriting/signature expert. The Speaker expressly stated that he was not refusing to convene a meeting but was seeking verification to ensure the request was legitimate.

On 21 March 2023, a councillor (Mthethwa) responded asserting that the Speaker’s proposed 14-day period was designed to frustrate the meeting, and characterised the conduct as a refusal triggering section 29(1A). The Speaker responded on 23 March 2023, reiterating that he was not refusing but investigating the signatures.

The same councillor also directed the municipal manager to convene the meeting under section 29(1A) on the basis that the Speaker had refused. The municipal manager replied on 23 March 2023 that section 29(1A) only empowers him to convene a meeting if there is a refusal, and that his understanding was that the Speaker had not refused but had raised concerns with serious legal implications. He asked that the investigation be allowed to run its course.

Also on 23 March 2023, the Speaker wrote to the MEC, enclosing correspondence and explaining the signature concerns and the request for time to investigate. It was common cause that the MEC did not respond to that letter.

On 27 March 2023, the MEC issued a letter stating she had received a petition signed by a majority requesting her to designate a person to convene and chair a meeting under section 29(1A). She recorded that she had considered the submitted documents and municipal rules, and stated she was satisfied that the Speaker and/or municipal manager were “unable” to comply with section 29(1A). She designated the Head of Department, Mr T Tubane, to chair the meeting. Mr Tubane then issued a notice convening the special council meeting for 30 March 2023, with an agenda including the motions of no confidence and the election of replacements.

The applicants launched the urgent application on 29 March 2023, one day before the scheduled meeting. The Speaker provided a copy of the petition and indicated that a substantial number of signatures appeared “fabricated” to him, and that if those signatures were excluded, the request might not represent a majority. He stated he had engaged a handwriting expert to authenticate the signatures and maintained that neither he nor the municipal manager had refused to convene a meeting; rather, he intended to convene once verification was complete.

The MEC disputed that there was a proper basis for alleging forgery, contended the Speaker was in fact refusing and using the allegation as a delay tactic, and proposed that signature verification be dealt with as a first agenda item at the meeting.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicants had established grounds for urgent interim relief, including whether the MEC’s decision to invoke section 29(1A) and convene the meeting through a designate was prima facie unlawful or constitutionally inconsistent in the circumstances presented.

A key jurisdictional dispute concerned the trigger for section 29(1A): whether the Speaker (or acting speaker) had refused to convene a meeting requested under section 29(1), and whether the request itself was valid, including compliance with the Municipality’s standing orders applicable to special or emergency meetings.

The matter also implicated a mixed inquiry of law and application of law to fact. The legal content of section 29(1) and 29(1A), the municipal standing orders, and the constitutional provisions on municipal autonomy and co-operative governance formed the legal framework. The factual question—whether there was a refusal and whether the petition was procedurally compliant and supported by a genuine majority—fed into the legal conclusion as to the lawfulness of the MEC’s intervention.

A further issue arose regarding whether the applicants had authority to launch the application without attaching a council resolution, and whether that challenge could be entertained without compliance with the procedure in Uniform rule 7(1).

4. Court’s Reasoning

The court first addressed the authority point. It held that the proper method to dispute authority is Uniform rule 7(1), and referred to authority emphasising that this procedure must be used. Because the MEC had not invoked rule 7, the court accepted that it was not necessary for the applicants to prove authority to initiate the application for purposes of the urgent proceedings.

Turning to the urgent interdict and review-related interim relief, the court considered the factual setting against the legislative and regulatory scheme. The court accepted that the Speaker was placed in a difficult position: on the one hand, the Structures Act and standing orders require compliance with a majority request; on the other, the Speaker had to be satisfied that the request was lawfully made and that it genuinely reflected the will of the majority, particularly given his concerns about signature authenticity and the serious political and administrative consequences of the proposed motions of no confidence.

The court treated as important that the petition for a special meeting did not comply with rule 8(3)(b)(ii) in a material respect, namely the requirement to provide reasons why the intended business was urgent and could not wait for an ordinary meeting. This non-compliance supported the applicants’ contention that the request may not have been a valid request triggering an immediate obligation on the Speaker, and it reinforced the relevance of the Speaker’s position that he needed to ensure procedural regularity before convening a meeting of such consequence.

On the signature issue, the court considered that the Speaker’s doubts about authenticity deserved investigation, and that the request for time to investigate was not unreasonable in context. In response to the argument that the Speaker’s view amounted to inadmissible opinion evidence, the court noted that the evidence was relevant to the dispute and accepted the principle that a lay person may identify handwriting as prima facie evidence, with reference to section 4 of the Civil Proceedings Evidence Act 25 of 1965 (as discussed in argument before it).

The court was influenced by the MEC’s course of conduct after being informed of the dispute. It found that the MEC proceeded to convene the meeting without engaging with either the Speaker or the municipal manager, and without apparent investigation into the concerns raised. The court considered the proposal that councillors could verify signatures at the meeting, but expressed scepticism about the practical reliability of expecting signatories to admit to forged signatures where the objective was to compel the meeting. The court also found it unclear how the MEC concluded that the Speaker and municipal manager were “unable” to comply with the Structures Act.

In evaluating the interim interdict requirements, the court accepted that the applicants had established urgency, given the imminent meeting date and the potential consequences of allowing the meeting to proceed. It further assessed the balance of convenience and prejudice. The court considered that if the meeting proceeded and resulted in removal of key office-bearers, the consequences would be significant and potentially destabilising, and subsequent challenges could not adequately cure the immediate governance disruption. Conversely, delaying the meeting to allow verification and compliance would impose lesser prejudice on the respondents.

On prospects of success, the court avoided making definitive findings on the merits of the review, stating that final relief was for the court hearing the rule nisi. However, it expressed a prima facie view that the applicants had prospects of success. In this context, the court also remarked that section 29(1A) is open to abuse in politically charged environments, indicating the need for careful application of the provision.

Overall, the court concluded that the requirements for interim relief had been satisfied and that the MEC’s lack of engagement and absence of evident investigation, coupled with the procedural deficiencies and the Speaker’s reasonable verification concerns, justified the interim interdict and the issuing of the rule nisi.

5. Outcome and Relief

The court granted condonation for the applicants’ non-compliance with the Uniform Rules relating to notice and service under Uniform rule 6(12), and condoned non-compliance with section 35 of the General Law Amendment Act 62 of 1955 relating to notice.

A rule nisi was issued calling upon respondents to show cause on 31 May 2023 why the following should not be made final: a declaration that the MEC’s decision to call, convene and chair a council meeting under section 29(1A) (dated 27 March 2023) was unconstitutional and invalid; the review and setting aside of that decision; and an interdict restraining respondents from proceeding with the meeting convened under that decision.

The interdict preventing the meeting from proceeding operated as an interim interdict pending final determination. Costs for 29 March 2023 were ordered to be costs in the cause in the determination of the rule nisi, and the rule nisi included a costs prayer that, if opposed, costs would follow including costs of two counsel.

Cases Cited

Dhlamini and another v City Manager of The City of Ekurhuleni Metropolitan Municipality and others [2023] ZAGPJHC 147.

South African Informal Traders Forum and Others v City of Johannesburg and Others [2014] ZACC 8; 2014 (4) SA 371 (CC).

Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and others and a related matter [2022] ZACC 44; 2023 (5) BCLR 527 (CC).

Premier, Gauteng and others v Democratic Alliance and others [2021] ZACC 34; 2022 (1) SA 16 (CC).

ANC Umvoti Council Caucus and others v Umvoti Municipality 2010 (3) SA 31 (KZP).

Nongoma Local Municipality and 3 others v The MEC for Co-Operative Government and Traditional Affairs and others (KZP) unreported case no 2846/23P.

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 40, 41(1)(e), 151(3)–(4), and reference to section 139).

Local Government: Municipal Structures Act 117 of 1998 (sections 29(1), 29(1A), and reference to section 37).

Local Government: Municipal Systems Act 32 of 2000 (section 106(1), referred to in argument via cited authority).

Civil Proceedings Evidence Act 25 of 1965 (section 4).

General Law Amendment Act 62 of 1955 (section 35).

Rules of Court Cited

Uniform Rules of Court 6(12).

Uniform Rules of Court 7(1).

Uniform Rules of Court 49(1)(c).

Reference was made to Magistrates’ Courts Rule 51(1)(a)–(b) in the discussion of a procedural misunderstanding (not applied).

Held

The court held that the authority challenge could not succeed in the absence of a proper challenge under Uniform rule 7(1), and that it was accordingly unnecessary for the applicants to prove authority to bring the urgent application at that stage.

On the interim relief, the court held that the Speaker’s concerns regarding the authenticity of signatures and compliance with municipal standing orders were matters that warranted investigation, and that the request for time to investigate did not amount, on the papers before it, to an unreasonable refusal.

The court held that the MEC’s decision to convene the meeting under section 29(1A) was taken without engagement with the Speaker or municipal manager and without apparent investigation into serious concerns raised, and that the balance of convenience favoured preventing the meeting from proceeding pending determination of the rule nisi and related review issues.

The court therefore granted condonation for urgency-related non-compliance, issued a rule nisi, and ordered an interim interdict restraining the convening/holding of the meeting pending final determination.

LEGAL PRINCIPLES

The judgment applied the principle that challenges to a litigant’s authority to institute proceedings should be brought through the mechanism provided by Uniform rule 7(1), and that where this procedure is not utilised, the opposing party will generally not be entitled to insist on proof of authority in the manner argued.

In considering interim interdictory relief, the judgment applied the settled requirements for an interim interdict, including an assessment of urgency, the existence of a prima facie right, balance of convenience, reasonable apprehension of harm, and the absence of an adequate alternative remedy. The court accepted that prospects of success in review proceedings may contribute to establishing a prima facie right for interim relief in an appropriate case (as reflected in the authorities relied upon in argument).

The judgment applied the statutory framework of section 29(1) and 29(1A) of the Local Government: Municipal Structures Act 117 of 1998 in the context of municipal standing orders, treating the validity and procedural compliance of a majority request, and the existence of a refusal by the speaker, as central to whether section 29(1A) may permissibly be invoked.

The judgment further applied constitutional principles of co-operative governance and respect for municipal autonomy (as reflected in the constitutional provisions cited) in evaluating the propriety of provincial intervention in municipal council processes, particularly where the provincial authority had been informed of internal procedural concerns but proceeded without engagement or evident inquiry.

Finally, on the evidentiary point arising in urgent motion proceedings, the judgment accepted the relevance of signature-authenticity concerns and treated lay identification of handwriting/signatures as capable of constituting prima facie evidence in appropriate circumstances, with reference to the Civil Proceedings Evidence Act 25 of 1965 (section 4) as raised in argument.

Alfred Duma Local Municipality and Others v Member for the Executive Council: Cooperative Governance and Traditional Affairs, KwaZulu-Natal and Others (4569/23) [2023] ZAKZPHC 51 (22 May 2023)