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[2019] ZAKZPHC 71
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Mabaso and Another v Khumalo and Others (7663/19P) [2019] ZAKZPHC 71 (30 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No:- 7663/19P
In the
matter between:
MARIA
BUYISILE
MABASO
First Applicant
LAWRENCE
DUBE
Second Applicant
and
MICHAEL
KHUMALO
First Respondent
MNCEDISI
MAPISA
Second Respondent
ELPHAS
DLADLA
NO
Third Respondent
ABAQULUSI
MUNICIPALITY
Fourth Respondent
INKATHA
FREEDOM PARTY
Fifth Respondent
DEMOCRATIC
ALLIANCE
Sixth Respondent
ECONOMIC
FREEDOM FIGHTERS
Seventh Respondent
MEC FOR
CO-OPERATIVE GOVERNMENT
AND
TRADITIONAL AFFAIRS, KZN
Eighth Respondent
AWELIHLE
THERON SHONGWE
Ninth Respondent
THE
SPEAKER, ABAQULUSI MUNICIPALITY
Tenth Respondent
JUDGMENT
Vahed
J:
[1]
This matter was argued before me on 29
October 2019. A decision is required before the meeting of the
council of the fourth respondent,
which is scheduled to commence at
10h00 on 31 October 2019. The judgment has therefore been prepared
under considerable time pressure.
The luxury of a reasonable period
of time in which to gather and assemble my thoughts has been denied
me and I must do the best
with the time and the materials that I have
at my disposal.
[2]
The matter concerns the position of the
first respondent in his role as Speaker of the council of the fourth
respondent (i.e. the
tenth respondent in these proceedings). The
applicants’ ultimate aim is to have the first respondent
removed as Speaker of
the council of the fourth respondent and to
have the second respondent removed from his position as Deputy Mayor
of the fourth
respondent. For that to be achieved the applicants, in
this application, seek orders intimately connected with the
occupation by
the first respondent of the office of the tenth
respondent.
[3]
In
Tlouamma
and others v Speaker of the National Assembly and others
2016 (1) SA 534
(WCC) the court referred to the qualities of a
Speaker (there with reference to a National Assembly but
substantially equally applicable
here) by
inter
alia
referring to G Bergougnous:
Presiding Officers of National
Parliamentary Assemblies: A World Comparative Study (1997)
(Inter-Parliamentary Union, Geneva) at
97, 99 where the ‘typical’ Speaker as a person was
defined as someone:-
“
With
long experience of parliamentary life, elected by the Assembly he
presides for Parliament’s term with no possibility
of
dismissal, belonging to the majority acting with impartiality,
respecting and enduring respect for the rights of the opposition.
His
role primarily focuses on the chairing of public sittings, a task he
may temporarily hand over to a replacement, appointed
or elected for
this purpose. During the sitting, he maintains order and discipline,
ensures respect for the rules of procedure
by interpreting its
provisions if need be, gives the floor or withdraws the right to
speak, and initiates the voting procedure.
On the other hand, he
refrains from taking the floor during debates, gives up his right to
propose legislation and only votes in
exceptional circumstances.”
[4]
Ignoring those aspects of that description
that could define a Speaker of a National Assembly or Parliament, and
putting aside for
the moment the question whether the first
respondent possesses lengthy experience in “parliamentary
life”, the qualities
spoken of apply equally to the qualities
one expects to find in a Speaker in a local authority such as the
fourth respondent. The
question that poses itself in this application
and in a related matter to which I shall refer presently, concern an
acute examination
as to whether those qualities are sufficiently
exhibited by the first respondent when he discharges his office as
the tenth respondent
- the Speaker of the Abaqulusi Municipality.
[5]
In
Tlouamma
the court also focused attention on
what was said by Hollis King, a former Speaker in the Westminister
Parliament, writing in
The
Parliamentarian
vol 47 (1966) at 131
“
The Impartiality of the Speaker”
where he said:-
“
(A)fter
a long period or evolution, the impartiality of the modern Speaker
has become almost mathematical – certainly beyond
doubt or
question.
And this the British Parliament
believes to be right – that, while the House of Commons is a
place where, rightly, the fiercest
controversy takes place, it shall
take place within an ambit of mutual respect for each other’s
personal honour, for ordered
and regular procedure, and for the
protection of all opinions, even those of the smallest minority. And
because this conception
lies at the heart of parliamentary democracy,
Parliament selects one of its Members, divests him of his political
past, and hands
over to him the dignity and authority to preserve
this fundamental idea.”
[6]
In
Tlouamma
the court rightly observed that there
are significant and fundamental differences between the Westminster
system and those that
obtain in South Africa. However our system has
its roots in the Westminster system and certainly, while the
differences exist,
the notion of an independent Speaker while the
person occupying the post discharges the office of Speaker, is beyond
question.
[7]
Thus, there lies lurking in the background
of this application, the question as to whether the first respondent
possesses those
qualities and has discharged his office in accordance
with those qualities. On the evidence placed before me there appears
to be
no doubt that first respondent leaves much to be desired when
he discharges the office of Speaker of the fourth respondent.
[8]
That, however, is not the question that I
have to resolve. It is for the council of the fourth respondent to
resolve when the question
of his fitness to hold office ultimately
comes to be debated before it.
[9]
The relief that is sought from me is set
out in the Notice of Motion in the following terms:-
“
1.
The matter is to be heard as an urgent application and the forms and
service provided in the rules
are dispensed with.
2.
It is ordered that the meeting of the fourth respondent scheduled to
take place on 31 October 2019, shall
take place as scheduled on 31
October 2019.
3.
The tenth respondent is ordered to take all necessary steps to ensure
that the said meeting is
held.
4.
It is ordered that at the said meeting the first applicant shall be
permitted to propose and the
second applicant shall be permitted to
second, the motions, notice of which have been submitted by the
applicants to the first
respondent, calling for:
(a)
The removal, in terms of section 40 of the Local Government:
Municipal Structures Act, No. 117 of 1998 (the Structures Act)
of the
first respondent as speaker of the fourth respondent’s council.
(b)
The removal, in terms of section 53 of the Structures Act, of the
second respondent, as a member of the executive committee
and as
deputy mayor of the fourth respondent’s council.
5.
It is ordered that in terms of the rule 9(a) of the rules of order
and procedure of the fourth
respondent’s council, once the said
motions have been proposed and seconded, they shall be put to the
vote by the person
presiding at the meeting.
6.
The first respondent is interdicted from presiding at the said
meeting when the said motions
are proposed, seconded, debated and
voted on.
7.
The said meeting shall be presided over by the ninth respondent when
the said motions are proposed,
seconded, debated and voted on.
8.
The first respondent is ordered to pay the costs of this application
on the attorney and client
scale, provided that if any other
respondent opposes this application such respondent is ordered to pay
such costs jointly and
severally with the first respondent.”
[10]
As the notice of motion indicates that
relief was sought as a matter of urgency and as final relief.
[11]
The relief is opposed by the first, second,
fourth. ninth and tenth respondents. I refer to them in this judgment
as “the
respondents”.
[12]
First, the parties need to be identified.
[13]
The first and second applicants are members
of the council of the fourth respondent, the Abaqulusi Municipality.
They are both members
of the African National Congress (“the
ANC”) and the first applicant is the whip for the caucus of the
ANC in that
council. The second applicant is also a member of
council.
[14]
They claim that the application is brought
with the support of the other ANC members who are duly elected
councillors of the fourth
respondent.
[15]
The first respondent is also a councillor
and occupies the position of Speaker of the council of the fourth
respondent. He is also
cited in his official capacity as Speaker, as
the tenth respondent.
[16]
The second respondent is a councillor as
well, and he is the Deputy Mayor of the fourth respondent, but
presently discharging the
functions of Mayor because that position is
vacant.
[17]
The third respondent is a civil servant
appointed to act as administrator discharging certain functions of
the fourth respondent,
that appointment being made in terms of s 139
of the Constitution because the fourth respondent is under
intervention by the provincial
executive in terms of s 139(2) of the
Constitution.
[18]
The fifth, sixth and seventh respondents
are the political parties who, in addition to the ANC, make up the
composition of the council
of the fourth respondent. The eighth
respondent requires no further description. The ninth respondent
however, is currently the
acting municipal manager in the employ of
the fourth respondent.
[19]
The council of the fourth respondent is
currently made up of 44 seats. The four political parties share those
44 seats with 22 being
occupied by members of the ANC, 18 by the
members of the Inkatha Freedom Party (“IFP”), 3 by the
Democratic Alliance
(“DA”), and a single seat by the
Economic Freedom Fighters (“EFF”). The IFP, the DA and
the EFF have formed
a coalition to collectively oppose the ANC and as
a result of the formation of that coalition the council of the fourth
respondent
municipality can be described as a “hung council”,
because the ANC and the coalition each command 22 votes in council.
[20]
The ANC, for some time, has been attempting
to have the first respondent removed from the office of the tenth
respondent. In other
words, they want him removed from the office of
Speaker. They also want the second respondent removed from the office
of Deputy
Mayor. They pursue those objectives because they contend
that the first and second respondents have not been fulfilling their
roles
and obligations as Speaker and Deputy Mayor respectively and
have been acting to the prejudice of the fourth respondent and solely
in the interests of their political party, ie. the IFP.
[21]
The applicants contend that repeated
efforts to have appropriate resolutions placed before a meeting of
the council of the fourth
respondent for debate and a vote have been
consistently and unlawfully frustrated by the actions of the first
respondent. For that
reason the relief set out earlier is being
sought in this application.
[22]
The applicants have approached this court
previously. In an earlier application under case number 5856/2019P
(“the pending
application”) the first applicant sought
relief against the first, second, third and fourth respondents and
representatives
of the fifth, sixth and seventh respondents. She
sought relief in the following terms:-
1.1
First
Respondent is directed to convene, within five days of the service of
order, a Special meeting of the Abaqalusi Council for
the purposes of
enabling the council to vote on the Notice of Motion, a copy of which
is annexed hereto marked “
X.
1.2
It
is directed that such voting shall be by secret ballot.
1.3
First
Respondent is ordered to pay the costs of this application, provided
that if any other Respondent(s) opposes this application
it shall be
requested that such Respondent(s) be ordered to pay such costs
jointly and severally with First Respondent.”
[23]
The reference to the Notice of Motion
marked X is a reference to the council motion the applicants want
debated and is repeated
later in this judgment.
[24]
That application is opposed, the requisite
affidavits have been exchanged, and is awaiting hearing on the
opposed motion roll in
this court on 15 November 2019.
[25]
The history of the interaction between the
ANC for the one part, represented by the applicants in this
application, and the first
applicant in the pending proceedings, and
the first and other respondents, both in the pending proceedings and
in this application,
is as follows.
[26]
The applicants contend that, since May
2019, they have on numerous occasions attempted to table and have the
council of the fourth
respondent vote on a motion for the removal of
the first and second respondents from the positions they occupy. They
contend that
the first respondent has employed various strategies to
prevent a vote on the motion, the most recent being on 26 September
2019.
[27]
In the answering affidavit the first
respondent takes the view that this application manifests as the
pursuit of a ninth attempt
on the part of the ANC to unseat him as
Speaker. He sets out the eight previous occasions, the first of
which, according to him,
was in August 2018 and the last of which was
on 26 September 2019. On each of those occasions no vote took place
or, if the matter
was voted on, it was defeated. For that state of
affairs, on each occasion, the first respondent either blames the ANC
councillors,
or provides other reasons for the matter not being dealt
with.
[28]
The applicants and the ANC do not seem to
take much issue with the number of occasions the matter either
served, or purported to
serve before the fourth respondent’s
council; but it does take issue with the reasons for the matter not
being dealt with.
It blames the IFP, or the coalition or, the first
respondent’s devious machinations.
[29]
No purpose would be served by an
examination of the differences between each of the groupings and
their respective views of what
occurred on each of the occasions when
the matter served, or purported to serve, before council. The two
groupings are firmly and
intractably opposed to each other and each
seeks to obtain maximum traction in their respective bids for control
of the fourth
respondent.
[30]
The applicants highlight the events of two
meetings to reinforce their claim to the relief set out in the notice
of motion. These
are the meetings that occurred on 1 August 2019 and
26 September 2019, and they draw attention to the conduct of the
first respondent
at these two meetings to demonstrate that he has
acted irrationally and unlawfully and, will at future meetings, in
all probability,
act similarly.
[31]
The motion that the first applicant sought
to promote on each of the occasions complained of, and in particular
on 1 August 2019,
on 26 September 2019 and which she intends to
promote at the meeting which is the subject of this application (i.e.
on 31 October
2019) is for all intents and purpose identical. It
reads as follows (imperfections retained):
“
NOTICE
OF MOTION
Notice of Motion is hereby
submitted in terms of AbaQulusi Municipal by-laws, Rules of Order and
Procedure as adopted by the Council
in its inaugural meeting of
August 2016 and in terms of Section 40 of Municipal Structures Act
No. 117/1998 as amended.
This Motion serve as Notice to
the following Councillors;
1.
Hon.
Speaker Cllr MB Khumalo
2.
Hon.
Mayor Cllr MJ Sibiya and
3.
Hon.
Deputy Mayor Cllr MC Maphisa
That Council intends to remove
them from their respective offices due to the following reasons;
1.
Hon. Speaker
Cllr MB Khumalo
The Speaker since January 2019
has on more than two occasions, continuously called and presided over
meeting of Council that were
not quorating.
Hon. Mayor MJ Sibiua and Hon
Deputy Mayor MC Maphisa under their leadership, they allowed a wrong
decision taken by a wrongful sitting
of Council to challenge a
decision of Cogta in the Court of Law, that of bringing administrator
in the Municipality using Municipality’s
coffers/money
illegally so.
We therefore propose the
following that:
A.
(1) Hon. Cllr MB Khumalo be removed from the position as Council as
Speaker
(2) Hon. Cllr
MJ Sibiya be removed from the position of Council as Mayor, and
(3) Hon. Cllr
MC Maphisa be removed from the position of Council’s Deputy
Mayor.
B.
(1) Motion be put on a vote by secret ballot.
Proposer: Hon Cllr MB Mbaso
Seconder: Hon. Cllr NS Mgidi
(signed)
(signed)”
[32]
The format of that notice, on each
occasion, has been accompanied by addenda which indicate that the
mover and seconder sought also
to remove the incumbents occupying the
office of mayor and deputy mayor.
[33]
At the meeting held on 1 August 2019 the
motion served before the council. It appears to be common cause that
it was allowed to
be proposed by the applicant and it was duly
seconded. A transcript of what transpired at the meeting has been put
up. The transcript
is largely unintelligible but it seems reasonably
clear that at some point one of the councillors noted that the first
applicant's
name as spelt on the motion was incorrectly spelt as
"Mbaso”. Animated debate followed as to whether such a
person existed
within Council as a councillor. The first respondent
as Speaker allowed that debate to unfold and in fact at times took
active
part in that debate. Ultimately, the first respondent ruled on
the matter in the following terms:
“
SPEAKER:
WAIT A
MOMENT.
DON’T
EVEN GO TO THE POINT OF ORDER.
THE HONOURABLE COUNCILLOR SEEMS
LIKE HE ONLY JOINED COUNCIL CHAMBERS TODAY.
BECAUSE THE SPEAKER IS A MEMBER
OF COUNCIL.
SO YOU KNOW THAT IF YOU SPEK OF
A VOTE OF NO CONFINDENCE THERE IS NO POINT WHERE IS SAYS THE SPEAKER
MUST STEP OUT BECAUSE HE IS
IMPLICATED.
NO.
THERE IS.
EVEN OF YOU VOTE HE ALSO VOTES.
SO THERE IS NOTHING WRONG.
THE THING THAT I AM SAYING WE
MUST FIX.
NO HONOURABLES THAT IS THE FACT.
THER EIS NO COUNCILLOR MBASO IS
THIS CHAMBER.
SO IF THERE IS NOT COUNCILLOR
MBASO THE MISTAKE THAT WAS DONE.
THE COUNCILLOR THAT WAS
PROPOSING WAS SUPPOSED TO.
IF IT IS INDEED WRONG AND SHE IS
NOT MBASO SHE WAS SUPPOSED TO REQUEST TO CORRECT IT WHEN SHE READ THE
MOTION.
BECAUSE THIS WAS NOT WRITTEN BY
THE ADMINISTRATION.
IT WAS WRITTEN BY HER.
WE TOOK IT AS SHE WROTE IT.
SO THAT IS WHY I WAS ASKING
WHETHER THERE IS A COUNCILLOR MBASO HERE.
SO WE SO NOT HAVE A COUNCILLOR
MBASO.
SO THE MOTION IS NON-EXISTANT.
IF YOU WANT TO BRING ANOTHER ONE
YOU HAVE A RIGHT TO BRING ANOTHER MOTION.
THEREFORE I AM REJECTING THIS
MOTION.
THANK YOU VERY MUCH.”
[34]
Thus, it will be seen, that the motion was
taken off the agenda as a result of its rejection by the first
respondent.
[35]
The council sat again the following day, 2
August 2019, where the identical motion was reintroduced, but then
subsequently withdrawn
by the first applicant.
[36]
On 12 August 2019 the pending proceedings
were commenced. The first applicant contends, in those proceedings,
that they were commenced
as expeditiously as possible after the 1
August 2019 debacle. The matter served on the urgent motion court
roll on 16 August 2019,
on which day it was adjourned
sine
die.
After the exchange of affidavits,
it was enrolled for hearing on 3 September 2019, on which date it was
adjourned to 15 November
2019 for argument as an opposed motion on
that day.
[37]
The thrust of the first applicant's
contentions in the pending proceedings was that given the conduct of
the first respondent, she
enjoyed no prospect of the first respondent
convening a future meeting at which her motion would be properly
tabled, debated and
voted upon. For that reason she sought the order
as set out in paragraph 1.1 of that application.
[38]
The respondents who opposed that
application contended, inter alia, that directory relief was
misconceived in that the motion could
be tabled at any of the future
meetings of the fourth respondent, and contended further that further
meetings were imminent, one
in fact for 26 September 2019. They
contended also that because the first applicant reintroduced the
identical motion on 2 August
2019, that act indicated an acceptance
of the fact that the ruling on 1 August 2019 was proper. The fact
that the motion was subsequently
withdrawn on 2 August 2019 was
irrelevant to that argument.
[39]
In the pending proceedings the respondents
also indicated that the first applicant had in fact tabled the
identical motion for debate
at the meeting then to be held on 26
September 2019.
[40]
As matters turned out the 26 September 2019
meeting did proceed and the motion again served before council.
Again, in the present
papers, the applicants put up a transcript of
the meeting. The transcript is difficult to follow. By way of example
the following
extract in the transcript is attributed to the first
applicant:
“
THANK
YOU, I WOULD LIKE TO APOLOGIZE ON BEHALF OF THE CONUNCILLOR. THE
PROBLEM IS THAT, SPEAKER, PLEASE CLARIFY YOUR USE OF WORDS
BECAUSE WE
AS THE ANC WE HAVE A MOTION THAT’S NEW THAT BEEN TABLED, THE
MOTION YOU SPEAK OF INCLUDED UMBASA THAT WAS TAKEN
TO COURT. THE OF
THE 5
TH
IS THE ONE WERE SPEAKING OF RIGHT NOW, SO THE WAY YOU ARE PUTTING IT,
IT IS AS IF WHEN WE VOTE, IT IS NOT CLEAR WHICH CASE ARE
VOTING FOR,
IT WOULD BE BETTER IF YOU ARE SAYING THAT WE, THAT HAVE A NEW MOTION,
IT IS THE ONE WANT BECAUSE THESE CASES YOU ARE
SPEAKING OF INVOLVE
MBASA REALLY, SPEAKER USE CORRECTLY PHRASE HIS WORDS AS TO HOW WE ARE
GOING TO VOTE NOT THE WAY HE IS CURRENTLY
PHRASING IT NOW.”
[41]
The upshot of what transpired at the 26
September 2019 meeting is that the first respondent appears to have
concluded that because
of the pending proceedings the entire matter
was
sub judice
and accordingly had to await the outcome of the pending proceedings.
The motion was not allowed to proceed. That is the impetus
for the
current proceedings.
[42]
When the matter was argued before me Mr
Rall
SC,
who with Mr
Crampton
appeared for the applicants, accepted that the applicants could have
applied to review the actions of the first respondent, both
in these
proceedings and in the pending proceedings. He argued, however, that
it was illogical to expect the applicant to return
to court on
repeated review applications each time the first respondent stepped
out of line. So much the better, he said, was the
route which the
relief foreshadowed in the notice of motion provided. There would be
no need to return to court and the first respondent's
shenanigans
would be thwarted once and for all. The first respondent's actions
were clearly wrongful and illegal and if there were
so for a review
based on illegality, so too could they underpin a mandatory
interdict.
[43]
The need for the urgent application he said
was based on the fact that, given the facts set out in the pending
proceedings, the
applicants legitimately expected that the motion
would be put to the vote at the ordinary council meeting that was
held on 26 September
2019. That did not happen because the first
respondent prevented that vote through an unlawful abuse of his
power. There was, Mr
Rall
argued, a reasonable apprehension that the first respondent would
again prevent a vote on 31 October 2019 unless the order was
granted.
[44]
There was, according to the argument, a
reasonable suspicion that the first respondent would be biased in
relation to the motion,
and on that ground alone it was suggested
that he ought to recuse himself from performing any official
functions in relation to
the motion. The principle underlying the
relief preventing the first respondent from presiding at the meeting
was that nobody can
be a judge in his or her own case and that
accordingly the applicants have sought to enforce the principle of
legality, namely
that all arms of government must act within the law.
For that contention the applicants rely on
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(A).
[45]
Anticipating that the first respondent
would act again, contrary to his duties to act fairly and impartially
as Speaker, the applicants
contended that I am entitled to make the
order they seek. As authority for the proposition they refer to
Jacobson v Pretoria Southern Rent Board
and others
1952 (3) SA 385
(T). I was
also urged to draw a parallel between the present case and that which
occurred in
Wahlhaus & others v
Additional Magistrate, Johannesburg & another
1959 (3) SA 113
(A).
[46]
In
Jacobson
the court intervened to direct that the members of the Rent Board
recuse themselves from a forthcoming sitting because of
irregularities
that had occurred during two earlier sittings and in
circumstances where they refused in advance to recuse themselves from
a forthcoming
hearing. In
Wahlhaus
the court took the rare and unusual step of intervening in pending
criminal proceedings in the lower courts to prevent a grave
injustice
from occurring.
[47]
Pre-empting an argument based on the
separation of powers the applicants argue that the relief they seek
does not ignore that principle.
They argue that the relief they seek
is aimed fundamentally at upholding the principle of legality.
[48]
Whilst maintaining the suggestion that it
was eminently reasonable for the ninth respondent to be ordered to
preside at the meeting
to be held on 31 October 2019, the applicants
were constrained to concede that the argument, that because he was
not an elected
member of the council he could not preside, had merit.
They conceded too that in those circumstances the suggestion by the
respondents
that
s 41
of the
Local Government: Municipal Structures
Act, 1998
provided the correct answer if I were to order that the
first respondent was precluded from presiding at the meeting. That
section
provides that "[i]f the speaker of the municipal council
is absent or not available to perform the functions of speaker, or
during a vacancy, the council must elect another councillor to act as
speaker".
[49]
In argument before me Mr
Madonsela
SC, who with Mr
Boulle
,
appeared for the respondents argued that the relief sought was
founded on three fundamental and material misconceptions. I deal
with
each in turn.
[50]
Firstly the relief sought offended the
doctrine of separation of powers because it required this court to
dictate to a separate
sphere of government as to how to conduct its
affairs. It required me to enquire into the first respondent's
fitness to hold the
office of the tenth respondent, i.e. the office
of Speaker of the fourth respondent. For that contention the
respondents rely principally
on
United
Democratic Movement v Speaker, National Assembly and othe
rs
2017 (5) SA 300
(CC) and indicate that if I were to act as requested
I "…would trench separation of powers…". The
fitness
or otherwise of the first respondent to hold office as
Speaker "… is a power that rests firmly in the hands of
the
[Council of the fourth respondent]…".
[51]
The second misconception relates to the
choice and method of choice of a replacement speaker which is
regulated by statute. I have
already dealt with this aspect.
[52]
The third misconception argued by the
respondents relates to the entitlement of a Speaker to exercise
discretion and decision-making
without interference by a court,
provided that there must always be a proper and rational basis for
whatever choices he or she
makes. A review of such decisions is
always possible which can be set aside if they are irrational
because, if they are indeed
irrational, they are subject to review by
a court on the principle of legality. The argument was that this
remedy was always available
to the applicants, but not exercised
either in the pending proceedings or in the present matter.
[53]
Relying on
Glenister
v President of the Republic of South Africa and others
[2008] ZACC 19
;
2009
(1) SA 287
(CC) the respondents seek to remind this court that "…
it is a necessary component of the doctrine of separation of
powers
that courts have a constitutional obligation to ensure that the
exercise of power by other branches of government occurs
within
constitutional bounds. But even in these circumstances, courts must
observe the limits of their powers.".
[54]
Against that backdrop Mr
Madonsela
argued that the matter was not urgent. Given that the motion sought
to be tabled and pursued was in all material respects identical
to
the one that is the subject matter of the pending proceedings, and
given that it is always available to the applicants to request
at any
meeting of Council that the first respondent recuse himself, all of
the applicants’ complaints could and will be addressed
if they
are successful in the pending proceedings. There was no particular
pressing case made out that the intended motion had
to be debated at
the 31 October 2019 meeting. Indeed, so the argument seems to
suggest, the intended motion could be addressed
as soon as possible
once the pending proceedings were disposed of. Thus the urgency of
the present application is more imagined
than real.
[55]
During argument that aspect of the matter
was debated with Mr
Rall
.
It was conceded that, but for the question of costs, if the
applicants were successful in all their endeavours in the present
application, everything sought in the pending proceedings would fall
away. That concession, to my mind, is significant.
[56]
All of the applicants’ complaints,
but for that which concerns the 26 September 2019 meeting, form part
of the background
and the litany of complaints underpinning the
relief sought in the pending proceedings. The suggestion that the
relief sought in
these proceedings relate to an ordinary council
meeting whereas the pending proceedings are unrelated and therefore
different is,
a distinction without a difference. The ultimate aim is
to have the motion tabled, debated and then voted upon. Whether that
is
achieved via a special meeting as foreshadowed in the pending
proceedings or as a result of an order obtained in these proceedings
is irrelevant. The hurdle the applicants need to overcome is the one
of persuading this court that in the pending proceedings the
order
they seek is one this court can make or in the present proceedings
the order they seek is one that I can make. In either
case they are
faced principally with the separation of powers argument and the
other defences raised by the respondents. Restating
the matter in
this light then demands an answer to this question: is there any
desperate urgency that the motion be debated at
a meeting on 31
October 2019 as opposed to being debated at any other meeting after
the issues have been properly ventilated, if,
upon such ventilation,
a court is inclined to make any order at all? That question has not
been posed or answered in these papers.
It is at that level that the
respondents contend that the question of urgency must be viewed,
addressed and resolved.
[57]
There seems to me to be no acceptable
explanation as to why, given the litany of complaints that the
pending proceedings and this
application have laid bare, the
applicants could not have sought leave to deliver further affidavits
in the pending proceedings,
in an effort to place before the court
that which occurred in the lead up to and at the 26 September 2019
meeting. That would have
had the effect of strengthening and
bolstering their case concerning the conduct of the first respondent.
To argue that the present
application is a separate matter entirely
is to place form over substance.
[58]
In viewing the matter in that perspective I
make no prediction and offer no opinion on the approach that a court
ought to adopt
to the application foreshadowed in the pending
proceedings. That is a matter for the court sitting on 15 November
2019 to decide
and those issues are not before me today. However, I
cannot ignore that much of what is to serve before the court in the
pending
proceedings also serves before me today and, amongst those
issues, the question of separation of powers looms large.
[59]
The system of local government that we have
chosen for ourselves in this country is something the applicants and
the respondents
have to live with. The first respondent, as an
ordinary councillor and wearing his party political hat, has an
ordinary vote in
council. He uses that vote according to the dictates
of his political party. Wearing his hat as the tenth respondent, the
Speaker,
where there is an equal number of votes on any issue, he has
a deliberative or casting vote. That is the system that the parties
have to live with. It is indeed problematical in a hung municipality.
[60]
When the first respondent, wearing his hat
as Speaker, exercises the rights and duties of Speaker he must do so
without external
influence. In
Tlouamma
reference was made to
Canada (House of
Commons) v Vaid
[2005]
1 S.C.R. 667
,
2005 SCC 3
, [2006] 135 CRR (2d) 189 at para 20
.
There it was observed:
“
It is
a wise principle that the courts and Parliament strive to respect
each other’s role in the conduct of public affairs.
Parliament, for its part, refrains from commenting on matters before
the courts under the
sub
judice
rule.
The courts, for their part, are careful not to interfere with the
workings of Parliament. None of
the parties to this
proceeding questions the pre-eminent importance of the House of
Commons as “the grand inquest of the
nation”. Nor
is doubt thrown by any party on the need for its legislative
activities to proceed unimpeded by any external
body or institution,
including the courts. It would be intolerable, for example, if
a member of the House of Commons who
was overlooked by the Speaker at
question period could invoke the investigatory powers of the Canadian
Human Rights Commission
with a complaint that the Speaker’s
choice of another member of the House discriminated on some ground
prohibited by the
Canadian
Human Rights Act
,
or to seek a ruling from the ordinary courts that the Speaker’s
choice violated the member’s guarantee of free speech
under
the
Charter
.
These are truly matters “internal to the House” to be
resolved by its own procedures. Quite apart from
the potential
interference by outsiders in the direction of the House, such
external intervention would inevitably create delays,
disruption,
uncertainties and costs which would hold up the nation’s
business and on that account would be unacceptable even
if, in the
end, the Speaker’s rulings were vindicated as entirely proper.”
[61]
Thus the question that requires answering
is whether it is appropriate for this court to intervene at this
stage in anticipation
of irrational and or illegal conduct on the
part of the first respondent when he discharges his office as speaker
of the fourth
respondents council at any future meeting.
[62]
In
United
Democratic Movement
the court commenced
its judgment with the following observations (footnotes omitted):-
“
[1]
South Africa is a constitutional democracy — a government of
the people, by the people and for the people through the
instrumentality of the Constitution. It is a system of governance
that 'we the people' consciously and purposefully opted for to
create
a truly free, just and united nation. Central to this vision is the
improvement of the quality of life of all citizens and
the
optimisation of the potential of each through good governance.
[2] Since
constitutions and good governance do not self-actualise, governance
structures had to be created to breathe life into
our collective
aspirations. Hence the existence of the legislative, executive and
judicial arms of the state. They each have specific
roles to play and
are enjoined to interrelate as foreshadowed by the following
principle that guided our Constitution-making
process:
'There
shall be a separation of powers between the legislature, executive
and judiciary, with appropriate checks and balances to
ensure
accountability, responsiveness and openness.'
[3]
Knowing that it is not practical for all 55 million of us to assume
governance responsibilities and function effectively in
these three
arms of the state and its organs, 'we the people' designated
messengers or servants to run our constitutional errands
for the
common good of us all. These errands can only be run successfully by
people who are unwaveringly loyal to the core constitutional
values
of accountability, responsiveness and openness. And this would
explain why all have to swear obedience to the Constitution
before
the assumption of office.”
[63]
Later the court said this:
“
[7]
Public office, in any of the three arms, comes with a lot of power.
That power comes with responsibilities whose magnitude ordinarily
determines the allocation of resources for the performance of public
functions. The powers and resources assigned to each of these
arms do
not belong to the public office bearers who occupy positions of high
authority therein. They are therefore not to be used
for the
advancement of personal or sectarian interests.
Amandla
awethu, mannda ndiashu, maatla ke a rona,
or
matimba
ya hina
(power
belongs to us) and
mayibuye
iAfrika
(restore
Africa and its wealth) are much more than mere excitement-generating
slogans. They convey a very profound reality
that state power, the
land and its wealth all belong to 'we the people', united in our
diversity. These servants are supposed to
exercise the power and
control these enormous resources at the beck and call of the people.
Since state power and resources are
for our common good, checks and
balances to ensure accountability enjoy pre-eminence in our
governance system.
[8] This
is all designed to ensure that the trappings or prestige of high
office do not defocus or derail the repositories of the
people's
power from their core mandate or errand. For this reason, public
office bearers, in all arms of the state, must regularly
explain how
they have lived up to the promises that inhere in the offices
they occupy. And the objective is to arrest or address
underperformance and abuse of public power and resources. Since this
matter is essentially about executive accountability, that
is where
the focus will be.”
[64]
That description of the systems we have in
place reinforces our constitutional contract. Each arm of the state
must navigate strictly
within its own sphere of operation and it must
stick to its particular lane on the highway, for to change lanes,
would put it on
a collision course with other travellers along the
same constitutional path. If we have chosen for ourselves that
constitutional
model; if we have chosen that particular highway then
we must live, each of us, with its consequences. For the present
case; if
the first respondent, acting as Speaker, behaves
irrationally, if a case can be made out in that regard, this court
will be enjoined,
on application, to review his conduct. Requesting
that it engage in that process now stretching its arm into the future
so to speak
to manipulate the puppet strings so that future meetings
unfold properly would be a bridge too far. Unlike a rent board or
lower
criminal court, in which respect this court has extraordinary
but limited powers to be exercised on very narrow grounds, other
branches of government demand of this court that the separation of
powers be observed as a sacrosanct principle.
[65]
The woes of the British people with regard
to Brexit has dominated the international popular press in recent
months. It is appropriate
to refer to the first Brexit judgment of
the United Kingdom Supreme Court, (
Miller
& Anor, R (on the application of) v Secretary of State for
Exiting the European Union (Rev 3)
[2017]
UKSC 5)
where Lord Neuberger said:
“
3. It
is worth emphasising that nobody has suggested that this is an
inappropriate issue for the courts to determine. It is
also worth
emphasising that this case has nothing to do with issues such as the
wisdom of the decision to withdraw from the European
Union, the terms
of withdrawal, the timetable or arrangements for withdrawal, or the
details of any future relationship with the
European Union. Those are
all political issues which are matters for ministers and Parliament
to resolve. They are not issues which
are appropriate for resolution
by judges, whose duty is to decide issues of law which are brought
before them by individuals and
entities exercising their rights of
access to the courts in a democratic society.”
[66]
The internal workings of the council of the
fourth respondent is a political matter for the councillors to
resolve. The removal
of the Speaker and his fitness to preside at
meetings are issues which are inappropriate for judges to decide.
[67]
The respondents also argued that the
mechanism of the current application constituted a collateral
challenge to the authority and
decisions of the Speaker, given that
he has already made rulings on the questions. Those rulings have not
been subjected to review
and accordingly stand until set aside. That
argument was supported by reference to
Merafong
City v Anglogold Ashanti Ltd
2017 (2)
SA 211
(CC) where Cameron J, writing for the majority, said
(footnotes omitted:
“
[41]
The import of
Oudekraal
and
Kirland
was
that government cannot simply ignore an apparently binding ruling or
decision on the basis that it is invalid. The validity
of the
decision has to be tested in appropriate proceedings. And the sole
power to pronounce that the decision is defective, and
therefore
invalid, lies with the courts. Government itself has no authority to
invalidate or ignore the decision. It remains legally effective
until properly set aside.
[42] The
underlying principles are that the courts' role in determining
legality is pre-eminent and exclusive; government officials,
or
anyone else for that matter, may not usurp that role by themselves
pronouncing on whether decisions are unlawful, and then
ignoring
them; and, unless set aside, a decision erroneously taken may well
continue to have lawful consequences. Mogoeng CJ explained
this
forcefully, referring to
Kirland
, in
Economic
Freedom Fighters
. He pointed out that our constitutional order
hinges on the rule of law:
'No decision grounded [in] the
Constitution or law may be disregarded without recourse to a court of
law. To do otherwise would
''amount to a licence to self-help''.
Whether the Public Protector's decisions amount to administrative
action or not, the disregard
for remedial action by those adversely
affected by it, amounts to taking the law into their own hands and is
illegal. No binding
and constitutionally or statutorily sourced
decision may be disregarded willy-nilly. It has legal consequences
and must be
complied with or acted upon. To achieve the opposite
outcome lawfully, an order of court would have to be obtained.'
[43] But
it is important to note what
Kirland
did not do. It
did not fossilise possibly unlawful — and constitutionally
invalid — administrative action
as indefinitely effective. It
expressly recognised that the
Oudekraal
principle
puts a provisional brake on determining invalidity. The brake is
imposed for rule-of-law reasons and for good administration.
It does
not bring the process to an irreversible halt. What it requires is
that the allegedly unlawful action be challenged by
the right actor
in the right proceedings. Until that happens, for rule-of-law
reasons, the decision stands.
[44]
Oudekraal
and
Kirland
did
not impose an absolute obligation on private citizens to take the
initiative to strike down invalid administrative decisions
affecting
them. Both decisions recognised that there may be occasions
where an administrative decision or ruling should be
treated as
invalid even though no action has been taken to strike it down.
Neither decision expressly circumscribed the circumstances
in
which an administrative decision could be attacked reactively as
invalid. As important, they did not imply or entail that, unless
they
bring court proceedings to challenge an administrative decision,
public authorities are obliged to accept it as valid. And
neither
imposed an absolute duty of proactivity on public authorities. It all
depends on the circumstances.
[68]
There is much to be said for that argument
but I am constrained to leave that question open. That debate is very
much alive in the
pending proceedings and it is preferable for the
point to be decided there.
[69]
Thus, on the question of the separation of
powers argument, and on the argument that this application warrants
no additional special
treatment not achievable in the pending
proceedings, the application must fail.
[70]
I conclude by stressing that nothing I say
in this judgment is to be construed as pre-judging the matters to be
dealt with in the
pending proceedings.
[71]
The application is dismissed with costs,
such costs to include the costs of two counsel where employed, and
are to include all costs
reserved on previous occasions.
Vahed J
Case
Information:
Date
of
Hearing
:
29 October 2019
Date
of
Judgment
:
30 October 2019
Counsel
for the
Applicants
:
AJ Rall SC with DP Crampton
Instructed
by
:
Matthew Francis Inc
Suite 4, 1
st
floor
Block A
21 Cascades
Crescent
Pietermaritzburg
Tel: 033 940
8326
Ref: Y
Maharaj/LM/04A023001
Counsel
for the 1
st
, 2
nd
, 4
th
, 9
th
and
10
th
respondents
:
TG Madonsela SC with AJ Boulle
Instructed
by
:
Buthelezi Mtshali Mzulwini Inc
Suite 7A
Essenview
Strathmore
Park
305 Musgrave
Road
Durban
Tel: 031 201
5541
Ref: ABAQ
1.2/ZM
c/o
Govindasamy Ndzingi & Govender (GHG) Inc
211 Burger
Street
Tel: 033 345
3427
Ref:
B1100/20/65