African National Congress v Municipal Manager, George Local Municipality and Others (550/2008) [2009] ZASCA 139; [2010] 2 All SA 108 (SCA) ; (2010) 31 ILJ 69 (SCA) ; [2010] 3 BLLR 221 (SCA) (17 November 2009)

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[2009] ZASCA 139
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African National Congress v Municipal Manager, George Local Municipality and Others (550/2008) [2009] ZASCA 139; [2010] 2 All SA 108 (SCA) ; (2010) 31 ILJ 69 (SCA) ; [2010] 3 BLLR 221 (SCA) (17 November 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 550/2008
In the matter between:
AFRICAN NATIONAL CONGRESS
Appellant
and
THE MUNICIPAL MANAGER, GEORGE LOCAL
MUNICIPALITY
First Respondent
GEORGE LOCAL MUNICIPALITY Second
Respondent
HENRY JOHANNES JONES
Third Respondent
THE DEMOCRATIC ALLIANCE
Fourth Respondent
THE INDEPENDENT ELECTORAL
COMMISSION
Fifth Respondent
THE MINISTER FOR LOCAL GOVERNMENT
AND HOUSING, WESTERN CAPE Sixth
Respondent
Neutral citation:
African National Congress v The Municipal
Manager, George Local Municipality
(550/08)
[2009] ZASCA 139
(17
November 2009)
Coram:
MPATI P, BRAND, MLAMBO, MAYA JJA, and BOSIELO AJA
Heard:
10 SEPTEMBER 2009
Delivered:
17 NOVEMBER 2009
Summary:
Whether
a municipal ward councillor’s letter of resignation from a
municipal council duly delivered to a municipal manager but

subsequently withdrawn by its author and returned to him unread
constitutes a valid resignation under
Section 27(a)
of the
Local
Government: Municipal Structures Act 117 of 1998
.
ORDER
On appeal from:
Cape
High Court (Irish AJ sitting as court of first instance).
The appeal is
dismissed
with costs.
JUDGMENT
MAYA
JA: (MPATI P, BRAND, MLAMBO JJA, BOSIELO AJA
concurring)
[1]
This appeal turns on whether a municipal councillor’s resignation
letter, which is delivered to a municipal manager but is subsequently

withdrawn by its author and returned to him unread, constitutes a
valid resignation for the purposes of s 27(a) of the Local
Government:
Municipal Structures Act 117 of 1998 (‘the Act’).
[2] The appellant challenges a
refusal by the Cape High Court (Irish AJ) of its application for
various forms of relief
based
on its contention that the seat occupied by the third respondent, Mr
Jones, as a ward councillor of the fourth respondent,
the Democratic
Alliance political party (‘the DA’), in the council of the second
respondent, George Local Municipality (‘the
municipality’) became
vacant consequent to his resignation from the municipality and as a
member of the DA. The appeal is with
the leave of the court below.
[3] Despite the substantial conflict
which mired the background facts of the matter especially in relation
to Jones’ motives
for resigning and the events surrounding such
resignation, those relevant to the central dispute were not in real
contention. On
an application of the principles set out in
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
1
these facts may be summarised as follows. The case arose in the
aftermath of the last parliamentary floor crossing
2
window-period in September 2007. At the time, the DA controlled the
municipality, in alliance with various smaller political parties,
by
a slim majority of 18 seats, one which was held by Jones, whilst the
appellant held the remaining 17 seats. It appears that
there were
tensions within the DA which resulted in some of its members
resigning and others being suspended or expelled from the
party.
[4] Jones was one of the
disenchanted DA members because promises previously made to him on
behalf of the party to advance his
political career had not
materialized. He intended leaving the DA to join the appellant and
had submitted the requisite notice
to the appellant for filing with
the Electoral Commission.
3
His imminent departure from the DA would obviously upset the balance
of control in the municipality and was, seemingly, a matter
of great
concern to the relevant parties.
[5
]
On 26 March 2008, the municipal manager, Mr Africa, found a sealed
letter on his desk which his receptionist said she had been
told,
presumably by its courier, was Jones’ resignation as the DA’s
ward councillor from the municipality’s council. According
to the
municipal manager, he did not read the letter because he had to
attend an imminent council budget meeting. He further believed,

admittedly erroneously, that the Act entitled him to a seven-day
period within which to process the resignation and that the matter

was therefore not urgent. Thus, the letter remained unattended until
noon on the following day when he received a telephone call
from
another DA ward councillor, Mr Londt, informing him that Jones had
changed his mind about the resignation and would fetch
his
resignation letter shortly. Indeed, Jones arrived at his office soon
thereafter, in Londt’s company. He then gave Jones his
letter,
unopened and unread, in the belief that he was entitled to withdraw
his resignation as the resignation had not yet been
declared to the
Electoral Commission in terms of the relevant law. Jones opened the
envelope in his and Londt’s presence, identified
its contents as
his resignation letter and left with it without showing it to him.
[6
]
At a DA meeting held later that day which the municipal manager
attended, Jones produced the letter and informed those present
that
he had resigned impulsively, actuated by emotional pressure, and
regretted the act. In the letter, which according to Jones
was
prepared for him by Pastor Smart and Inspector Ryk but was signed by
him, he resigned from both the DA as its member and as
a municipal
council member with immediate effect.
4
The letter indicated that its copies would be sent to a Mr de Swart,
the municipality’s executive mayor and the Electoral Commission

but, as it turned out, no such copies were sent.
[7] In view of Jones’ explanation
and express wish to remain a member of the DA, the party meeting
resolved not to take the matter
further. The manner in which the
municipal manager had dealt with the issue drew the ire of the
appellant’s Southern Cape branch
and the provincial minister for
Local Government and Housing. On 31 March 2008 Jones wrote another
letter to the municipal manager,
formally withdrawing his resignation
from the municipal council.
[8
]
In the court below and before us, the appellant contended,
principally, that in terms of s 27(a) of the Act Jones’ seat became

vacant as a matter of law once his letter of resignation was
delivered to the municipal manager who was, in any event, aware of

the letter’s content. It was argued that to deny a resignation by
reason of the municipal manager’s failure, whether deliberate
5
or negligent, to read the resignation letter would jeopardise
certainty of practice in municipalities. Further, this could expose

municipal managers to the risk of political interference to protect
an incumbent majority which might have appointed them to the
position
as in the present case, so the argument went. Another contention
advanced on the appellant’s behalf was that Jones’
membership of
the DA simultaneously ceased with the delivery of the resignation
letter by virtue of clause 3.5.1.3 of its federal
constitution which
proclaims cessation of membership when ‘a member declares his or
her resignation or intention to resign from
the party or intention to
join another party’.
6
[9
]
The relief sought by the appellant was thus aimed at compelling the
municipal manager to acknowledge that Jones had resigned
from the
municipal council and to declare a by-election to fill the council
seat supposedly left vacant by such resignation in
accordance with s
25(1)(d) and (3) of the Act.
7
Its basis was that the municipal manager’s acquiescence in Jones’
withdrawal of his resignation by returning his resignation
letter to
him and his failure to declare a vacancy so that a by-election to
fill Jones’ seat could be called, conduct which the
appellant
contended was unlawful, constituted administrative actions reviewable
under s 33 of the Constitution and the
Promotion of Administrative
Justice Act 3 of 2000
.
[
10]
The court below dismissed the application on the finding that the
resignation letter would have to be read by its intended
recipient to
become effective, which did not occur. The appellant’s reliance on
the provisions of the DA’s federal constitution
also did not find
favour with the court. In its view, Jones had not declared his
resignation as contemplated by such provisions.
Nor could the
appellant seek declaratory relief regarding Jones’ membership of
the DA as it was a private, contractual issue
between Jones and that
party.
[11
]
Section 27
governs a councillor’s vacation of office and, in subsec
(a), decrees that ‘[a] councillor vacates office during a term of
office if that councillor resigns in writing’. A resignation must
be effective immediately or from a specified date. Being a unilateral

legal act, it does not need to be accepted by the intended recipient
to be so effective.
8
But, it must be unequivocally communicated to the other party to be
effective, unless there is a contrary stipulation.
9
The provisions of
s 27(a)
require more: that the notice of
resignation should be communicated in writing. The reason for that,
in my view, is not far to
seek and it is to provide certainty.
[12] As observed by the court below,
a ward councillor’s vacation of office from a municipal council has
serious implications
of public significance for a local authority as
it impacts various statutory provisions relating to quora and
composition and requisition
of meetings. For example, s 160(3) of the
Constitution (and s 30(1) and (2) of the Act) requires a majority of
municipal council
members to be present at a council meeting before a
vote can be taken on any matter and a determination of questions
before such
council by majority vote. In terms of s 160(4), the
council may not pass a by-law without notice to all councillors.
Furthermore,
a municipality is bound by strict statutory imperatives
when a vacancy does occur. As indicated above, s 25 of the Act
prescribes
that a by-election be held, within strict time frames, and
enjoins the municipal manager, after consultation with the Electoral

Commission, to set that process in motion. Thus, a set composition of
a municipal council’s membership is critical for its effective
and
orderly functioning and such composition must be readily
ascertainable at all times.
[13] The questions which then arise
in this matter are whether Jones resigned as a municipal councillor
and, if he did, whether
the municipality was advised of such
resignation. That he expressed the intention to resign was not
disputed, correctly so in my
view. What was contested was whether or
not such intention was communicated or conveyed to the mind of the
municipality. It was
argued for the appellant that mere delivery of
the resignation letter at the municipal manager’s office sufficed
and that in
this case the municipal manager was, moreover, aware of
the contents of the letter. On the other hand, the respondents
contended
that the appellant’s first hurdle was that the proper
party upon whom the notice should have been served was the Speaker of
the
council as its chairperson, not the municipal manager. It was
argued further that even if the municipal manager was the proper
recipient, he had to read the notice to be informed of the
resignation for purposes of s 27(a).
[14]
Regarding the question of a proper recipient, the legislature has not
identified the party within the municipal council upon whom
the
resignation notice must be served to be effective.
It seems to me that there may well be a strong case for the
submission that the municipal manager is such a party considering the

functions and powers of this functionary who is the administrative
and accounting head of a municipality.
10
These duties include managing communications between the
municipality’s administration and its political structures and
political
office bearers. It is the municipal manager who is
statutorily tasked to attend the immediate consequences of a
councillor’s
vacancy. In addition, notification of a councillor’s
resignation has historically been given to the municipal manager’s
counterpart,
the town clerk, under the
Act’s
predecessor, the Municipal Ordinance 20 of 1974 (the Ordinance),
11
which
previously
regulated municipalities. According to the affidavits, this practice
seems to have carried over to the Act’s tenure,
to resignations
recently preceding Jones’. But, regardless of these strong
indicators, I will assume without deciding that here
the municipal
manager upon whom notice of the resignation was served was indeed the
proper recipient of such notice.
[15]
What meaning to ascribe to the term ‘communicate’ in the present
context? The
Shorter
Oxford English Dictionary
defines it to mean ‘the imparting, conveying or exchange of ideas,
knowledge, etc. (whether by speech, writing, or signs)’.
Dealing
with a matter involving a legal act analogous to a resignation, a
cancellation of a lease agreement, in
Swart
v Vosloo
,
12
this court held that absent an agreement to the contrary, a party to
a contract who exercises his right to cancel must convey his
decision
to the mind of the other party to bring such cancellation into
effect.
13
I see no reason why this principle should not apply with equal force
to a resignation which is also a cancellation of a contract.
[16] That said, a written
communication can, in my opinion, effectively be conveyed to its
recipient’s mind only by its reading.
Here, the municipal manager
did not read the resignation letter. The fact that he may have been
told what it purportedly contained
is completely irrelevant.
Furthermore, it must, in my view, be considered that the Ordinance
similarly made
provision for the vacation of a councillor’s office and provided
for a vacancy in the office of a councillor when,
inter alia, ‘his
written resignation [was] received in the office of the town clerk’.
14
Mere receipt of the
resignation notice therefore sufficed for purposes of these
provisions. Notably, s 27(a) is worded differently
and says nothing
at all about receipt. I find this a significant departure which must
have been deliberate on the part of the legislature.
In my view, the
legislature would have stated expressly as it did in the Ordinance
that receipt of a resignation notice by a municipal
council suffices
for a councillor’s resignation to take effect if that was its
intention.
[17
]
I conclude, therefore, that it was imperative for the municipal
manager to read Jones’s letter for his resignation to come
into
effect. Whilst one may have some sympathy with the appellant’s
fears of possible manipulation of such official in the manner

suggested above, there is no indication at all in the papers that the
municipal manager refused or failed to read the letter for
any reason
other that the plausible ones he proffered ie that he had other
pressing municipal business to attend and thought he
had ample time
within which to process it. This finding, in my opinion, dispenses
with the need to consider whether or not the
municipal manager had
the authority to allow the withdrawal of the resignation letter (as
there was no actual resignation from
the municipal council) and
whether Jones resigned from the DA. The appeal must accordingly fail.
[18] In the result the appeal is
dismissed with costs.
______________________
MML MAYA
Judge of Appeal
APPEARANCES:
For appellant: D Borgström
Instructed by: Erleigh & Associates, Cape Town
Van der Merwe & Sorour, Bloemfontein
For 1
st
,
2
nd
and
3
rd
respondents: SP Rosenberg SC
Instructed by: Nico Smit Attorneys, Cape Town
Honey Attorneys, Bloemfontein
For 6
th
respondent: State Attorney, Cape Town
State Attorney, Bloemfontein
1
1984 (3) 623 (A) 634E-635C.
2
The Constitution of the Republic of South Africa Fourth Amendment
Act 18 of 2002, which was later repealed by the Constitution

Fourteenth Amendment Act and Constitution Fifteenth Amendment Acts
of 2008, created the controversial floor crossing system which

allowed members of parliament and provincial legislatures and local
government councillors during certain periods, subject to
specific
conditions, to switch their allegiance and take their seats with
them from one political party to another.
3
Established by s 181 of the Constitution of the
Republic of South Africa, 1996 and the
Electoral Commission Act 51
of 1996
.
4
The original text was in Afrikaans and read:
‘Geagte Heer
Re:
BEDANKING AS RAADSLID
Hiermee
dien ek my bedanking in as raadslid van die George Stadsraad en
Demokratiese Alliansie met onmiddelike effek.’
5
The
bona fides
of the municipal manager, a high-ranking DA member, in failing to
read the letter, allowing Jones to retrieve it and subsequently

joining forces with Jones in defending the application, was a matter
of great contention for the appellant.
So was Jones’
sudden appointment to the mayoral committee on 31 March 2008.
6
The appellant’s initial r
eliance on clause
3.5.1.1 of the DA’s Constitution, which provides for the
termination of membership when the member submits
his or her written
resignation from the party, was abandoned in view of the DA’s
denial of receiving Jones’ resignation.
7
These provisions of s
25 respectively provide:
‘(1)(d) A by-election must be held
if a vacancy in a ward occurs.
…
(3)(d) The municipal manager of the
municipality concerned, after consulting the Electoral Commission,
must, by notice in a local
newspaper, call and set a date for the
by-election, which must be held within 90 days of the date on which
the vacancy occurred.’
8
Stewart Wrightson (Pty) Ltd v Thorpe
1977
(2) SA 943
(A) 954A-B.
9
Schuurman v Davey
1908 TS 664
;
Jaffer v Falante
1959
(4) SA 360
(C) at 362F-363E;
Datacolor International (Pty) Ltd v
Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) paras 28 and
29.
10
Section 82 of the Act and
s 55(1)
of the
Local
Government: Municipal Systems Act 32 of 2000
.
11
Section 26(1)(b).
12
">
12
1965
(1) SA 100 (A) at 105G.
13
See also
Miller and
Miller v Dickinson
1971 (3) SA 581(A)
at 581H-588A;
Noble v Laubscher
1905 TS 125
at 126.
14
Section 26(1)(b).