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[2010] ZASCA 111
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MEC of the KwaZulu-Natal for Local Government, Housing and Traditional Affairs v Amajuba District Municipality and Others (590/2009) [2010] ZASCA 111; [2011] 1 All SA 401 (SCA) (20 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 590/2009
In the matter between:
THE
MEMBER OF THE KWAZULU-NATAL
EXECUTIVE
COUNCIL FOR LOCAL
GOVERNMENT,
HOUSING AND
TRADITIONAL
AFFAIRS Appellant
and
AMAJUBA
DISTRICT MUNICIPALITY First Respondent
INKATHA
FREEDOM PARTY Second Respondent
AFRICAN
NATIONAL CONGRESS Third
Respondent
DEMOCRATIC
ALLIANCE Fourth Respondent
THE
FEDERAL CONGRESS (FEDCON) Fifth Respondent
ROYAL
LOYAL PROGRESS PARTY Sixth Respondent
THE
ELECTORAL COMMISSION OF
SOUTH
AFRICA Seventh Respondent
Neutral citation:
The Member of the
KwaZulu-Natal Executive Council for Local Government, Housing and
Traditional Affairs v Amajuba District Municipality
(590/2009)
[2010] ZASCA 111
(20 September 2010).
Coram:
Mpati P, Cloete, Heher, Ponnan and Leach
JJA
Heard: 26 August 2010
Delivered: 20 September 2010
Summary:
Local authorities – election of
members to the executive committee of a district municipality in
terms of
s 43(1)
of the
Local Government: Municipal Structures Act
117 of 1998
– election to be decided by way of a majority vote
of the members of the municipal council.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
KwaZulu-Natal High Court,
Pietermaritzburg (Hollis AJ sitting as court of first instance):
The appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
LEACH JA (Mpati P, Cloete, Heher, Ponnan JJA
concurring):
[1] This appeal arises from a political squabble in the
council of the first respondent, the Amajuba District Municipality, a
‘district
municipality’ as defined in s 1 of the Local
Government: Municipal Structures Act 117 of 1998 (‘the Act’)
surrounding
the removal of two councillors from its executive
committee and the council’s refusal to re-elect the same two
councillors
to the executive committee to fill the vacancies caused
by their removal. This led to the MEC for Local Government, Housing
and
Traditional Affairs (at the time Mr M Mabuyakhulu, the brother to
one of the removed councillors) applying to the High Court,
Pietermaritzburg
for a declaratory order which, if granted, would
oblige the council to accept the two councillors back onto the
executive committee.
Any inference of nepotism on his part caused by
his action has been dissipated by the problem in this case not being
unique to
the first respondent and his successors in office having
persisted with the proceedings in order to obtain guidance from the
court.
In any event, the application was dismissed and, with the
leave of the court a quo, the appellant (the current MEC) appeals now
to this court against that decision.
[2] Every municipality must have a
council
1
that is obliged, inter alia, to strive to achieve the objectives
detailed in s 152 of the Constitution, and to review the needs
of the
community it serves, its priorities to meet those needs and its
mechanisms for doing so.
2
There are 25 councillors in the first respondent’s council, 15
appointed by local municipalities and ten elected by voters.
The
councillors are members of different political parties, namely, the
second, third, fourth, fifth and sixth respondents in this
appeal,
although at all material times, most were either members of the
second respondent, the Inkatha Freedom Party (‘the
IFP’)
or the African National Congress (‘the ANC’), the third
respondent. Every municipality must also have a
chairperson, called
‘the speaker’, elected from among the municipal
councillors, either at the council’s first
sitting after an
election or when necessary to fill a vacancy.
3
[3] The first respondent operates
under a ‘collective executive system’ as envisaged by the
Act and as mandated by the
Determination of Types of Municipality Act
7 of 2000 (KZN). This entails it having an executive committee with
various functions
and powers.
4
Section 43 of the Act further provides:
‘
(1) If
the council of a municipality establishes an executive committee, it
must elect a number of councillors necessary for effective
and
efficient government, provided that no more than 20 per cent of the
councillors or 10 councillors, whichever is the least,
are elected.
An executive committee may not have less than three members.
(2) An executive committee must
be composed in such a way that parties and interests represented in
the municipal council are represented
in the executive committee in
substantially the same proportion they are represented in the
council.
(3) A
municipal council may determine any alternative mechanism for the
election of an executive committee, provided it complies
with section
160(8) of the Constitution.’
5
[4] The first respondent’s
executive committee was established on 3 April 2006 at the municipal
council’s inaugural
meeting. To give effect to the imperative
contained in s 43(2) of the Act, it comprised five members: two from
the ANC, two from
the IFP and one representing a minority party.
Councillors DB Mabuyakhulu and JCN Khumalo of the ANC were elected
both to the committee
and as mayor and deputy-mayor,
6
respectively, while councillor AT Zwane, another ANC member, was
elected speaker of the council.
7
[5] At the time of this meeting, and
for some time thereafter, the ANC, together with the support of a
minority party with whom
it formed a coalition, held a majority in
the council. However, in the fickleness of politics the minority
party later left the
ANC in the lurch and allied itself to the IFP
which, with its support, then held a majority in the council. The
majority promptly
called for a council meeting with the view of
removing the ANC councillors from the posts of mayor, deputy-mayor
and speaker. Presumably
in an attempt to retain those posts in ANC
hands, the speaker turned a deaf ear to this request and, eventually,
an application
to compel the holding of a council meeting was brought
in the Pietermaritzburg High Court. In a vain attempt to delay the
inevitable,
the executive committee opposed the application. It is
undisputed that councillors Mabuyakhulu and Khumalo (the mayor and
his deputy)
were the guiding hands behind this opposition which was
funded from the municipality’s coffers. Unfortunately for them,
the
application succeeded, a council meeting was held and, in due
course, both they and the speaker were removed from office and
replaced.
[6] The council then proceeded to
hold an investigation into the possible waste of municipal funds by
the council’s opposition
to the application and, on 13 February
2008, acting under s 53(1) of the Act,
8
it removed councillors Mabuyakhulu and Khumalo from the executive
committee. Although they remained members of the council, they
were
neither disciplined nor sanctioned (under item 14(2) of schedule 1 to
the
Local Government: Municipal Systems Act 32 of 2000
steps may be
taken against councillors who breach the code of conduct which, inter
alia, may result in their suspension or removal
from office
– although the council
may not suspend or remove them: that may only be done by the MEC
9
).
Moreover, no steps were taken to recover the wasteful expenditure
from them under the Municipal Finance Management Act 56 of
2003.
[7] Section 53(3) of the Act provides for members of an
executive committee who are removed from office to be replaced by way
of
an election ‘subject to section 43’. The effect of
this is that the ANC was entitled to have two councillors elected
to
fill the vacancies created by the removal of councillors Mabuyakhulu
and Khumalo in order to reflect the proportional representation
of
the parties in the council. Obdurately, the ANC caucus in the council
nominated councillors Mabuyakhulu and Khumalo once again
for election
to fill those vacancies. The majority of the council refused to elect
them and the ANC councillors, in turn, refused
to put up any other
candidates for election. This resulted in a state of deadlock but, as
the three remaining members of the executive
committee constituted a
quorum, the executive committee continued about its work –
albeit without ANC representation.
[8] Faced with this situation, the MEC adopted the
position that the council had enjoyed no right to refuse to approve
whoever the
ANC nominated to the executive committee. When the
council refused to back down the MEC, relying upon s 139(1) of
the Constitution
which authorises a provincial executive to intervene
when a municipality ‘cannot or does not fulfil an executive
obligation
in terms of the Constitution or legislation’,
proposed a resolution to the provincial executive council of
KwaZulu-Natal
that either an administrator be appointed to run an
election aimed at the installation of the ANC’s nominees as
members of
the executive committee of the first respondent’s
council or, alternatively, that the first respondent’s council
be
dissolved and fresh elections held with the first respondent’s
functions being performed by the administrator until a new
council
was established.
[9] The MEC’s proposal was accepted by the
provincial executive council on 26 June 2008. Faced with this, the
first respondent
launched an application in the Pietermaritzburg High
Court challenging the provincial executive’s power to intervene
in its
affairs. As a result, on 14 July 2008 a rule nisi returnable
on 15 August 2008 was issued calling upon the premier of the province
of KwaZulu-Natal and certain other parties to show cause why the
resolution of the executive council should not be declared invalid
and why the provincial executive should not be interdicted from
intervening in the council’s affairs as it had resolved to
do.
[10] Section 139(2) of the Constitution provides that if
a provincial executive intervenes in a municipality’s affairs,
it
is to give written notice of the intervention to the national
minister responsible for local government affairs. The national
executive
disapproved of the provincial executive’s
intervention which thus came to naught and the interdict was never
argued to finality.
Presumably, the rule nisi lapsed with the
effluxion of time.
[11] Notwithstanding this, the ANC councillors in the
first respondent’s council persisted in their refusal to
nominate anyone
except councillors Mabuyakhulu and Khumalo to fill
the two vacancies on the executive committee. At a council meeting on
23 March
2009, a secret ballot was held in respect of the seat on the
executive committee reserved for a minority party which was to be
filled by a councillor from either the Democratic Alliance (the
fourth respondent) or the Federated Congress (the fifth respondent)
who had an equal entitlement to it. After this election had been
held, the ANC was again afforded the opportunity to nominate two
of
its councillors to sit on the executive committee. Once more, an ANC
councillor submitted the names of councillors Mabuyakhulu
and
Khumalo, this time subject to a condition that they be appointed with
effect from 1 May 2008. Whether this condition vitiated
the validity
of the nomination is not necessary to consider for purposes of this
judgment. What is of importance is that once the
nomination had been
made, a councillor representing the Democratic Alliance stated that
the council’s resolution on the removal
of those councillors
from the executive committee still stood and that, in those
circumstances, the nomination was not acceptable.
Although it is not
disputed that the majority of the full council voted in favour of
this view, it has never been contended by
any party to these
proceedings that the ANC was not entitled to nominate the two
councillors concerned and, in truth, the events
of this meeting
amount to no more than a refusal to elect those whom the ANC had
nominated (as was correctly accepted by counsel
for the appellant).
[12] It was in these circumstances that the MEC again
decided to intervene. This he did on 7 April 2009 by launching the
proceedings
presently on appeal by way of a notice of motion seeking,
inter alia, the following relief:
‘
2.1 THAT it be and is
hereby declared that in terms of
Section 43
of the
Local Government:
Municipal Structures Act No. 117 of 1998
read with Section 160 of the
Constitution:-
2.1.1 each party or interest to
be represented on the Executive Committee of a Municipal Council is
entitled to be represented pro
rata to its representation in the
Municipal Council;
2.1.2 each party or interest
aforesaid is entitled to choose and nominate any sitting Municipal
Councillor to be elected to the
Executive Committee;
2.1.3 a Municipal Council is
obliged to accept and elect those sitting Municipal Councillors
chosen and nominated by the party or
interest as aforesaid.
2.2 THAT the refusal by the
Municipal Council of First Respondent to accept the two nominated
candidates from Third Respondent for
election to the Executive
Committee of First Respondent at its meeting held at Madadeni on
Monday 23
rd
March 2009 be and is hereby declared to be
unlawful.
2.3 THAT Third Respondent is
entitled to nominate for election any two sitting Municipal
Councillors of First Respondent of its
choice to the two positions
reserved for Third Respondent on the Executive Committee and the
Municipal Council is thereupon obliged
to elect them to the Executive
Committee.’
[13] Paragraph 2.1.1 of the notice of motion is,
effectively, a restatement of the provisions of s 43(2) of the Act
and relates
to an issue about which there has never been a dispute.
In these circumstances declaratory relief in those terms in
unnecessary
and was not sought by appellant’s counsel.
Similarly, the relief set out in paragraph 2.1.2 of the notice of
motion is also
unnecessary as there has never been a dispute as to
the entitlement of any party or interest represented in the municipal
council
to nominate a councillor for election to the executive
committee. Paragraph 2.2, which was formulated in the light of what
occurred
at the meeting of 23 March 2009, is also unnecessary as
essentially all that occurred at that meeting was a refusal to elect.
Counsel
for the appellant therefore correctly confined his argument
to the relief set out in paragraphs 2.1.3 and 2.3 in the notice of
motion which, essentially, amounts to the same thing viz that the ANC
was entitled to nominate any two of its municipal councillors
in the
first respondent for the two vacancies on the executive committee,
including those councillors whose removal had caused
the vacancies in
the first place, and that the council was thereupon obliged to accept
such persons onto that committee.
[14] In advancing this contention,
the appellant placed particular emphasis on s 160(8) of the
Constitution which provides both
that parties and interests reflected
within the municipal council are to be ‘fairly represented’
10
and that
members
of a municipal council ‘are entitled to participate in its
proceedings and those of its committees in a manner that
. . . is
consistent with democracy’.
11
As was stressed in
Democratic
Alliance & another v Masondo NO & another
,
12
these provisions are designed
to ensure that minority parties can meaningfully participate in the
deliberative processes of municipal
councils and its committees. This
objective the legislature clearly sought to achieve in s 43(2) of the
Act by providing for proportional
representation in the executive
committee of the parties and interests represented in the council.
[15] The appellant argued that s
43(1) of the Act, which requires a municipal council to ‘elect’
councillors onto its
executive committee, is to be interpreted in the
light of these constitutional values and that, in doing so, democracy
can only
be given its full voice if the word ‘elect’ in
that section is not given the narrow sense of a decision taken by way
of a majority vote, as to do so could result in a majority of the
council, in effect, deciding for a minority party who was to
represent it in the committee and denying it its representative of
choice. This, so the argument went, was anti-democratic and
led to
unfair representation in the executive committee – and could,
for example, lead to a minority party’s most competent
councillors being excluded from participation in a council’s
executive processes. Consequently, the word ‘elect’
should be interpreted widely to connote ‘select’ in the
sense that the council is obliged to accept the councillor
put
forward by a party entitled to have a councillor in the executive
committee. Accordingly, so the argument continued, as the
two
councillors concerned had not been sanctioned by removal from the
municipal council, they were in the same position as all
other
sitting councillors and were to be ‘elected’ in the wide
sense if nominated by the ANC for the two vacant posts.
[16] The immediate difficulty that I
have with this argument is that it appears to fly in the face of the
Constitution itself, s
160(1)(c) of which provides for a municipal
council to ‘elect an executive committee’ subject to
national legislation
(which in the present case is clearly the Act).
All questions concerning the passing of by-laws, the approval of
budgets, the imposition
of rates and other taxes, levies and duties,
and the raising of loans, are to be determined by a decision taken by
a municipal
council with the supporting vote of the majority of its
members.
13
Section 160(3)(c) goes on to provide that al other questions before a
municipal council – which includes the election of
an executive
committee – are to be ‘decided by a majority of the votes
cast’. The appellant’s suggestion
that the Act should be
interpreted to mean that a municipal council was obliged to accept a
decision taken by another on who should
be a member of its executive
committee, is wholly inconsistent with this constitutional
requirement.
[17] Moreover, in my view, a
requirement that the members of the executive committee of a
municipal council be elected by a majority
of the members of that
council does not do violence to democracy or the underlying values of
the Constitution. An essential element
of democracy is that effect be
given to the will of the majority. This was emphasised
by the Constitutional Court in
Masondo
.
The issue in that case was whether mayoral committees established
under s 60 of the Act are ‘committees of municipal councils’
as contemplated by s 160(8) of the Constitution. The majority
concluded that they were not whereas O’Regan J in a minority
judgment concluded otherwise. Writing for the majority, Langa DCJ
stated that democratic and accountable government for local
communities
14
‘involves ensuring that the will of the majority prevails and
also that the views of the minority are considered’
15
– the latter being achieved by members of the executive
committee being ‘representative of minority parties and
interests’.
16
O’Regan J expressed a similar view. Although differing from the
majority in regard to its applicability to mayoral committees,
she
observed that s 160(8) of the Constitution entitled councillors in
municipal councils to participate in the proceedings of
the council
and its committees subject to parties and interests being fairly
represented therein and that the principle of fair
representation
‘remains subject to democracy (which implies that the majority
must always be able to determine decisions)’.
17
She continued:
18
‘
Moreover,
s 160(8)(b) is clear that the principle of fair representation is
always subject to democracy and the will of the majority.
Members of
the mayoral committee must therefore submit to that principle, as
must all councillors.
The
principle established by s 160(8) is a principle which requires
inclusive deliberation prior to decision-making to enrich the
qualities of our democracy. It does not subvert the principle of
democracy itself
’
(emphasis added).
[18] Under s 151(2) of the
Constitution, the executive authority of the municipality vests in
its council. The first respondent
has a ‘collective executive
system’ as referred to in the Act and s 43(2) of the Act, which
mandates the proportional
representation of the parties and interests
in the municipal council in the membership of its executive committee
which exercises
the council’s executive authority. This
advances the values of a multi-party system of democratic government
in accordance
with one of the founding values enshrined in s 1 of the
Constitution. But it is the participation of minority parties in the
executive
committee which does so, not the participation of any
particular individual. The selection of the persons to act on that
committee
has been entrusted to the municipal council, and it is
clear from both the majority and minority judgments in
Masondo
that a system whereby a majority vote of councillors is used to
determine the members of a municipal executive committee is in
no way
undemocratic. It allows a minority party to put forward its
candidates and its views to be heard and considered as to their
suitability to be elected. It also ensures that the will of the
majority shall prevail: and that is the hallmark of democracy.
On the
other hand, the same cannot be said of the interpretation put forward
by the appellant viz. that the majority of a municipal
council is
obliged to accept the views of a minority on a crucial issue such as
the suitability of a person to be entrusted with
the conduct of the
executive functions of a municipality.
[19
] Another
major difficulty I have with the appellant’s argument is that
it does violence to the language used by the legislature.
While the
ambit of interpretation is to give effect to the object or purpose of
the legislation under consideration, in doing so
the words used must
be given their ordinary grammatical meaning unless to do so would
lead to an absurdity that the legislature
could not have
contemplated. This court has previously observed that ‘it is
not the function of the court to do violence
to the language of a
statute and impose its views on what the policy or object of the
measure should be’.
19
And although a court must always be mindful of the values on which
the Constitution is based and which it seeks to advance, if
the
language in a statutory enactment ‘is ignored in favour of a
general resort to “values” the result is not
interpretation but divination’.
20
[20] The interpretation that the appellant seeks to
place upon s 43(1) cannot be reconciled with the ordinary grammatical
meaning
of the words used by the legislature. It provides that ‘.
. . if the council of a municipality establishes an executive
committee,
it
must elect a number of councillors necessary for
effective and efficient government’. Not only do the words
‘elect’
(used in the section) and ‘select’
(advanced by the appellant) both have as their ordinary accepted
meaning a connotation
of choice (and in that regard the appellant’s
argument is but a play on words) but, most importantly, the section
vests the
choice of members of the executive committee in the
municipal council and not in a party or interest represented in that
council.
Furthermore, s 45 of the Act requires this election to take
place at a meeting of the council. The obligatory rubber stamping of
an earlier decision taken by a party as to who should represent it on
the executive committee, as the appellant argued should occur
(for
which the legislature could simply have provided if that had been its
intention), can hardly be construed as an election by
the council at
a council meeting. The interpretation which the appellant wishes to
place on s 43(1) is more than just strained.
It simply is not what
the words of the section, given their ordinary grammatical meaning,
connote. A court has no power to legislate,
and it would require a
rewriting of the section to convey what, in the appellant’s
view, the legislature ought to have provided.
[21] Significantly, appellant’s counsel conceded
that at times there might have to be an election in what he called
the ‘narrow
sense’, involving a decision taken by a
majority vote of members of the executive committee. This would of
course occur when,
for example, two parties in a council had an equal
claim to an available seat on the committee (as indeed occurred on
23 March
2009 when the council voted on whether the fourth or
fifth respondent’s candidate should be elected to the
committee, as
already mentioned). It would also be necessary if a
party nominated more candidates than the number of seats to which it
is entitled;
and while that may be unlikely to occur, it cannot be
excluded. Other examples spring readily to mind. The fact remains
that in
certain circumstances there clearly will have to be an
election of members of the executive council by way of a majority
vote.
The legislature can hardly be presumed to have intended the
word ‘elect’ in that sense to apply only in certain
circumstances
and not in others, particularly when it failed to
specify in what circumstances there was to be an election or, as
argued by the
appellant, a mere nomination of committee members.
[22] It is also not without significance that the
legislature used the word ‘elect’ in the sense of a
decision by a
majority vote elsewhere in the Act. Thus a municipal
council is required by s 36 to elect its speaker and by s 48 to elect
its
mayor and deputy by way of a majority vote in the manner set out
in schedule 3. It may reasonably be inferred that the legislature
used the same word in the same sense throughout the same enactment,
particularly in relation to similar matters. There is no reason
to
think that, in using the word ‘elect’ in relation to the
election of members of the executive committee in s 43(1),
it
intended it to bear another, wholly different meaning in relation to
the election of other municipal office bearers.
[23] Finally, that the ultimate choice of who should be
on the executive committee vests in the council, and not in a party
or interest
represented in the council, is reinforced by s 53(1) of
the Act which provides for the removal of a member of the executive
committee
by way of council resolution after notice of such a
resolution has been given. This provides a clear indication that the
legislature
intended the council to determine whether any particular
person should be on its executive committee. If a minority party
could
merely override the majority of a municipal council by
re-nominating a councillor removed from the executive committee, not
only
would it have the absurd result of negating the power extended
to the council under s 53(1) of the Act but it would nullify the
council’s constitutional and democratic right to determine who
should be on that committee.
[24] In the light of all these considerations, it is
clear that the council was vested with the choice to determine who
should be
on its executive committee, and that the members of that
committee are to be appointed by way of a majority vote. The word
‘elect’
in s 43(1) of the Act is to be ascribed that
meaning rather than that which the appellant puts forward. The court
a quo correctly
determined the issue against the appellant, and the
appeal must fail.
[25] The appeal is dismissed with costs.
_________________
L E LEACH
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: A J Dickson SC; A A Gabriel
Instructed by PKX Attorneys, Pietermaritzburg
McIntyre and Van der Post, Bloemfontein
RESPONDENT: P J Olsen SC
Instructed by De Jager Baqwa Maritz Inc
c/o Tatham Wilkes, Pietermaritzburg
Symington and De Kok, Bloemfontein
1
Section 18(1) of the Act.
2
Section 19 of the Act.
3
Section 36(1) and (2) of the Act.
4
Set out in s 44 of the Act.
5
Section 43(3) ensures compliance with
s
160(8)(a) of the Constitution which provides that members of a
municipal council are entitled to participate in the proceedings
its
committees in a manner that ‘allows parties and interests
reflected within the Council to be fairly represented’.
6
Section 48(1) of the Act requires the municipal
council to elect a member of its executive committee as the mayor
and, if the
MEC for local government of the province so approves,
another member of the executive committee as the deputy mayor.
7
Section 36 of the Act obliges every municipal council to have a
chairperson, to be called ‘the speaker’. It is not
a
requirement that the speaker be a member of the executive committee.
8
‘A municipal council may, by resolution remove
from office one or more or all of the members of its executive
committee.
Prior notice of an intention to move a motion for the
removal of members must be given.’
9
Item 14(6) of schedule 1 to Act 32 of 2000.
10
Section 160(8)(a) of the Constitution.
11
Section 160(8)(b) of the Constitution.
12
[2002] ZACC 28
;
2003 (2) SA 413
(CC) para [18].
13
Section 160(2) as read with s 160(3)(a) of the Constitution.
14
The first objective of local government laid down by s 152 of the
Constitution.
15
At para 17.
16
At para 31.
17
Para 61.
18
Para 78.
19
Per Schutz JA in
Standard Bank Investment Corporation Ltd v
Competition Commissioner & others; Liberty Life Association of
Africa Ltd v Competition
Commissioner & others
[2000] ZASCA 20
;
2000 (2) SA
797
(SCA) para 16.
20
Per Kentridge JA in
S
v Zuma and others
1995 (1) SA 642
(CC)
para 18.