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[2018] ZANCHC 55
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Democratic Alliance v Matika and Others (1858/18; 1860/18) [2018] ZANCHC 55; 2019 (1) SA 214 (NCK) (29 August 2018)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
CASE NO: 1858/18 &
1860/18
In
the matter between:
THE
DEMOCRATIC
ALLIANCE
Applicant
v
O.M.
MATIKA
1
st
Respondent
MINISTER OF
CO-OPERATIVE GOVERNANCE
HUMAN
SETTLEMENTS AND TRADITIONAL AFFAIRS
2
nd
Respondent
ACTING EXECUTIVE MAYOR
SOL PLAATJE
LOCAL
MUNICIPALITY
3
rd
Respondent
ACTING SPEAKER OF THE
MUNICIPAL COUNCIL,
SOL
PLAATJE LOCAL
MUNICIPALITY
4
th
Respondent
ACTING MUNICIPAL
MANAGER, SOL PLAATJE
LOCAL
MUNICIPALITY
5
th
Respondent
ELIZABETH
JOHNSON
6
th
Respondent
THE
SHERIFF OR HIS DEPUTY,
KIMBERLEY
7
th
Respondent
Judgment:
Tlaletsi JP
et
Olivier ADJP
Heard
on:
22 August 2018
Decided
on:
29 August 2018
Coram:
Tlaletsi JP, Olivier ADJ
JUDGMENT
TLALETSI
JP
et
Olivier ADJP
[1]
These
are two applications brought on urgent basis which have now been
consolidated. The first application was launched by
the
Democratic Alliance (“DA”) on 30 July 2018 against
councillor O.M. Matika
[1]
(“Mr
Matika”) and several other respondents seeking relief on the
following terms: -
1.1
A
rule nisi
be issued calling on the respondents to show cause on 15 August 2018,
why a final order should not issue that Mr Matika is directed
to
vacate the post and office of the Executive Mayor of the Sol Plaatje
Municipality immediately upon service of this order on
him;
1.2
Alternatively, that the third respondent
(Acting Speaker) be ordered to call a special meeting of the Council
of the Municipality
within 5 days from the date of the order and in
calling the meeting the motion of no confidence in the Executive
Mayor, dated 25
July 2018 be tabled at such meeting.
[2]
On 30 July 2018 Mr Matika also filed an
application to be heard on 01 August 2018. In Part A of the
application Mr Matika
sought relief,
inter
alia
, in the following terms:
2.1
That pending the determination of the
review envisaged in Part B:
2.1.1
The First to Ninth Respondents are hereby
interdicted and restrained from continuing to implement the decision
taken on the 25
th
July 2018 removing the Applicant (Mr Matika) from his position as the
Executive Mayor of the First Respondent (The Municipality).
2.1.2
That the First to Ninth Respondents be
ordered to reinstate the Applicant to his position as the Executive
Mayor of the First Respondent
with immediate effect;
2.2
In Part B of the application Mr Matika is
seeking relief on substantially the following terms:
2.2.1
That the First Respondent’s meeting
held on 25 July 2018 titled “
Special
Council Meeting
” be reviewed and
set aside, alternatively declared unlawful and invalid;
2.2.2
That all resolutions reached during the
aforesaid meeting be reviewed and set aside, alternatively declared
unlawful and invalid;
2.2.3
Any Respondent opposing this application be
directed to pay the costs of the application on an attorney and own
client scale,
mutatis mutandi
jointly and severally, the one paying the other to be absolved.
[3]
On 31 July 2018 this Court (Williams J)
granted an interim order by agreement between the parties
substantially in the following
terms:-
3.1
The two applications are consolidated and
are to be heard together on 22 August 2018.
3.2
In the interim, from the date of this order
to the determination of the consolidated application:
3.2.1
Mr Matika will vacate the office of the
Executive Mayor and will not perform or purport to perform any
functions or exercise or
purport to exercise any powers of the office
of Executive Mayor;
3.2.2
The current Mayoral Committee will not be
reconstituted and;
3.2.3
No personnel in the office of the Executive
Mayor will be replaced.
[4]
It is significant that the agreed interim
order dispensed with Part A of Mr Matika’s application and
partially gave effect
to para 1.1 of the DA’s relief above in
that councillor Matika vacated the office of the Executive Mayor
pending the finalisation
of this application.
[5]
Mr Matika as well as the Acting Speaker are
opposing the relief sought by the DA. In the other matter the DA is
opposing the relief
sought by Mr Matika. The Acting Speaker does not
oppose the application or the relief sought by Mr Matika. The
Acting Speaker
has filed a composite affidavit in which he explains
the events that preceded the alleged council meeting of 25 July 2018
and also
answers in opposition to the relief sought by the DA.
He is represented by counsel, Mr F Peterson. Mr Matika is represented
by Ms A Stanton. The DA is represented by Ms N Mayosi and
Ms K Harding.
[6]
The Acting Municipal Manager (Ms KR
Sebolecwe) as well as the Municipality abide by the ruling of the
Court in the consolidated
applications. The Acting Municipal
Manager has filed an affidavit to provide this Court with relevant
information at the
municipality’s disposal and or under her
control regarding the alleged council meeting held on 25 July 2018 so
as to enable
this Court to make an informed decision.
Furthermore, the Acting Municipal Manager has filed the unapproved
minutes of the
said meeting as well as the transcript of the
recordings of the meeting. She has also filed confirmatory
affidavits by the
officials who provided secretarial services at the
aforesaid meeting. Nothing turns on these affidavits save as to
confirm the
correctness of the recordings and the unapproved minutes.
[7]
The Acting Executive Mayor (Mr Thabane), Ms
Elizabeth Johnson (former Speaker), the Minister of Co-operative
Governance, Human Settlements
and Traditional Affairs as well as the
Sheriff of Kimberley, who are the second, sixth, seventh and eighth
respondents respectively
in the DA application are not opposing the
application.
[8]
The African National Congress (ANC),
Economic Freedom Fighters (EFF), Congress of the People (COPE),
Freedom Front Plus and Independent
councillors who are the
fourth, sixth, seventh, eighth and ninth respondents respectively in
the application brought by Mr
Matika are also not opposing the
application.
[9]
It is common cause that on 24 July 2018,
the Acting Speaker received a written request to convene a special
meeting of the Municipal
Council at 10:00 on 25 July 2018. The
request letter stated that the list of the attached councillors who
had requested a meeting
to be held on Monday 23 July 2018 are the
ones who are requesting that the meeting be held 25 July 2018 at
10:00. The list referred
to contained names and signatures of
councillors of the Municipality totalling 39. As indicated the
list itself requested
that the meeting be held on Monday 23 July 2018
at 10:00, and was dated 19 July 2018. Also annexed to the
letter of 23 July
2018 was an undated document headed “
Motion
of Exigency
” which in essence
recommended that Mr Matika be removed as the current Executive Mayor
of the Municipality with immediate
effect. The Acting Speaker
further received another letter dated 23 July 2018 with a heading
“
Motion of Exigency
”.
Both these documents were prepared by councillor Phiri.
[10]
On the Acting Speaker’s version the
discrepancies in the documents raised his suspicion. Upon examination
of the documents,
he discovered that the document/petition asked for
a meeting to be held on 23 July 2018 and not 25 July 2018 as
reflected in the
request letter to which the list was attached. There
was also a duplication of signatures and some were proxy signatures.
The Acting
Speaker convened a meeting of all the Chief Whips
represented in the Municipal Council, (Chief Whips’ forum) in
order to
discuss the request and the discrepancies. The meeting
was convened for 17:00 on the same day. Only two Chief Whips,
representing
the ANC and COPE attended the meeting. Councillor Phiri
who is the DA’s Chief Whip in the municipality, acknowledges
receipt
of a telephone call inviting him to the meeting. He however,
could not attend the meeting because it was called on short notice
and he had other commitments. He was also not informed that the
motion of no confidence brought by the DA would be discussed at
the
meeting. The Acting Speaker adjourned the meeting and scheduled
another meeting for the next morning on 25 July 2018.
At this
stage the Acting Speaker had already decided not to call the meeting
as requested.
[11]
Upon inquiry from some of the councillors
on the list of signatories, the Acting Speaker learned that they
signed a petition for
a meeting to be scheduled for 23 July 2018 in
order to discuss the safety concerns of councillors and not for a
motion of no confidence
in the Executive Mayor. At least three
of the councillors referred to have provided the Acting Speaker with
letters indicating
that they were misled and have filed confirmatory
affidavits to confirm the averments by the Acting Speaker relating to
them.
[12]
At approximately 11:00 on 25 July 2018, the
Chief Whips forum was convened. Present were the Chiefs Whips for the
ANC, COPE, DA
and EFF. According to the Acting Speaker he drew
their attention to the discrepancies and advised them that he was not
going
to convene any meeting for that day, 25 July 2018. Copies
of the letters from the councillors who alleged that they were misled
were also distributed. It was then agreed that the council
meeting as called for in the letter of 23 July 2018 should fall
away
because of
inter alia
,
duplication of signatures and proxy signatures.
[13]
It is common cause that during the Chief
Whips forum meeting, there were councillors who had gathered in the
council chamber waiting
for the council meeting to start.
According to the Acting Speaker the DA Chief Whip, councillor Phiri
left the whips meeting
and later returned with a new list of
signatures totalling 33 and a covering letter dated 25 July 2018
requesting a council meeting
for 12:30 the same day. He
mentioned that Councillor Phiri was advised by the ANC Chief Whip
that at least 24 hours’
notice was required for the special
council meeting and that notice should be given to other councillors
who were not in the council
chamber at the time.
[14]
The DA’s version is that councillor
Phiri did not leave the meeting and return with a new request for the
meeting. According
to him this was done earlier in the morning prior
to this meeting and that the Acting Speaker came to this meeting with
copies
of the new request and circulated it to all the whips. It is
also the DA’s version that on 24 July 2018 the Acting Speaker
undertook to convene the council meeting as requested but failed to
do so, and also that the Chief Whips meeting on 25 July 2018
ended on
the undertaking by the Acting Speaker to convene the council meeting
as requested or instructed by the new letter.
[15]
It is not in
dispute that a “
meeting
”
in the Council chamber commenced at 13:30 with 35 councillors in
attendance. However, the Acting Speaker was not in
attendance.
The Acting Municipal Manager as well as the Municipality’s
Legal Advisor were also not in attendance.
Councillor Tshite
chaired the meeting. One of the councillors, Stout was appointed as
Acting Speaker for the duration of the meeting
and took over from
councillor Tshite. The Executive Director: Infrastructure and
Services, Mr B Dhluwayo was appointed Acting
Municipal Manager in the
position of the serving Acting Municipal Manager. Mr Dhluwayo’s
acting appointment was made
in his absence and he did not turn up for
the meeting.
[16]
Councillor Phiri addressed the meeting and
moved a motion of no confidence in the Executive Mayor, Mr Matika.
Without any debate
whatsoever the motion was carried unanimously.
Councillor Thabane of the ANC was elected as Acting Executive Mayor
unopposed.
He was thereafter congratulated by councillors
representing the ANC, the DA, the EFF and an independent councillor
respectively.
[17]
Mr Matika refused to accept the outcome of
the meeting contending
inter alia
,
that the meeting was not lawfully constituted and convened and that
the outcome thereof is invalid and or unlawful. On the
other
hand the DA contended that that meeting was properly constituted and
that its outcome is lawful and binding on Mr Matika.
This
dispute led to the DA launching its application to have Mr Matika
vacate the office of Executive Mayor and that councillor
Thabane
assume the responsibilities of Acting Executive Mayor. On the
other hand Mr Matika brought his application to interdict
those that
want him to vacate his position of Executive Mayor and to have the
proceedings of the meeting reviewed and set aside.
[18]
The
DA and the Acting Speaker have different versions about what was said
during the Whips meeting, and on what note and understanding
the
Acting Speaker left. On the
Plascon
Evans
[2]
approach the version of the Acting Speaker should prevail, because it
is not untenable or far-fetched. As will be seen, it
is also
consistent with probabilities.
[19] Mr Matika and the
Acting Speaker have raised several irregularities, which they say
occurred in the process just described.
In view of what
follows, it is not necessary to consider all of them, because in our
view the irregularities that occurred as regards
the convening of the
meeting and notice to councillors and that were raised by both Mr
Matika and the Acting Speaker are of such
a nature that the
applications can be disposed of on the basis of those irregularities
alone.
CONVENING
OF THE MEETING
[20]
It is common cause that the Acting Speaker never convened a meeting
for 25 July 2018, and it is not really seriously disputed
that
only a Speaker or Acting Speaker would have been competent to do so
in the present circumstances.
[21]
As already mentioned, it is the version of the DA that the Acting
Speaker had, at the Whips meeting that took place during
the morning
of 25 July 2018, undertaken to take the steps required to see to it
that a meeting was convened for 12:30 and that
no notice was given of
such a meeting. As also already mentioned, the version of the
Acting Speaker differs from this, and
on his version he left the
meeting on the basis that he would not convene a meeting.
[22]
The probabilities favour the version of the
Acting Speaker:
22.1
Firstly, it is a fact that he did not go to the Acting Municipal
Manager, as he had according to councillor Phiri promised
to do;
22.2
He also never went to the Council chamber, and this fits in with him
having left the Whips meeting on the footing that there
would be no
meeting, and probably on the assumption that the Chief Whips who had
attended the Whips meeting would convey this to
the councillors who
were present in the chamber;
22.3
These actions are not consistent with the behaviour of someone who
had undertaken to convene a meeting and to facilitate notice
thereof.
[23]
It is clear that, in the present
circumstances, only the Acting Speaker could convene the meeting.
23.1
Section 29(1) of the
Local
Government: Municipal Structures Act
[3]
(“
the
MSA
”)
provides that
“
The
speaker of a municipal council decides when and where the council
meets …, but if a majority of the councillors requests
the
speaker in writing to convene a council meeting, the speaker must
convene a meeting at a time set out in the request
”.
23.2
It is common cause that the Sol Plaatje Municipality had, as
envisaged in section 160(6) of the
Constitution
[4]
,
adopted the so-called “
Standard
Rules of Order for Council and its Committees
”
(“
the
rules
”)
as a by-law. Rule 6.1 provides that the “
speaker
must determine the date, time and venue of meetings of the municipal
council
”
while Rule 6.7 provides that the “
speaker
… must, after receiving a written request signed by a majority
of the members of the municipal council, call a meeting
of that
council
”.
It is therefore also clear from a proper reading of the Rules that it
is for the Speaker to convene a meeting.
23.3
In
Makume
& another v Northern Free State District Municipality &
others
[5]
it was held that “
the
statutory power to convene a meeting of a municipal council is
ordinarily the statutory prerogative of a council speaker
”.
It has not been suggested that the present case was an exception and
that anyone else would have been competent to
convene a meeting.
[24]
Ms Mayosi, counsel for the DA, referred us
to the provisions of section 37(a) of the
MSA
,
in terms of which “
The speaker of
a municipal council … presides at meetings of the council
”,
and argued that, in the absence of a Speaker or an Acting
Speaker, or in the event of the Speaker or Acting Speaker
not being
available to attend the meeting, councillors would be entitled to
elect a councillor to act as Speaker for the purposes
of a particular
meeting, and to preside over such meeting.
[25]
Section 41 of the
MSA
does indeed provide for this, but this would surely presuppose that
such election takes place at a properly convened meeting, of
which
proper notice has been given, but which is then left without a
Speaker or an Acting Speaker to preside over it. What
transpired in the Council chamber during the afternoon of 25 July
2018 did not form part of a meeting convened by the Acting
Speaker,
Mr Springbok.
[26]
The argument for the DA was that the
councillors who were present at the chamber were left with no other
option but to proceed with
the meeting, even if it had not been
convened by the Acting Speaker. As had in fact been pointed out
during the discussions
in the chamber leading up to the impugned
resolutions, there had been the option of obtaining an interdict to
compel the Acting
Speaker to convene the meeting.
NOTICE
[27]
Rule 6.3 requires that a Municipal Manager
“
must
give at least five … clear working days written notice of the
meetings, together with the agendas …, to all members
of the
municipal council
”.
[28]
Where the Speaker or Acting Speaker has, in
response to a written request in terms of Rule 6.7, convened or
called a meeting of
the council, the Municipal Manager is enjoined by
the provisions of rule 6.8 to
“
give
notice of the meeting stipulating the time, date and venue of the
meeting by placing a notice to this effect on a notice board
situated
at the main administrative office of the municipality, and by placing
an advertisement in English in one … newspaper
circulating in
Kimberley
”.
[29]
In view of the fact that the sole purpose
and business of the present meeting was the removal of the Acting
Mayor, the provisions
of section 58 of the
MSA
are also relevant:
“
A
municipal council, by resolution may remove its executive mayor or
deputy executive mayor from office. Prior notice of an
intention to move a motion for the removal of the executive mayor or
deputy executive mayor must be given
”.
[30]
Notice to members of the municipal council
must be effected by dispatching the notice to the electronic mail
address or physical
address specified by such member in terms of Rle
6.9.
[31]
It is common cause that notice of the
meeting of 25 July 2018 did not take place in any of the forms
referred to above.
[32]
As far as Mr Matika himself is concerned,
it was submitted on behalf of the DA that he did
“
not
allege that he did not know of the motion of no confidence against
him, only that he did not receive formal notice of it
”.
This
submission is incorrect. Mr Matika did in fact, in his replying
affidavit in the Matika-application, deny having been
aware of the
motion of no confidence against him
[6]
.
[33]
Mr
Matika would in any event have needed to be aware not only of the
intended meeting, but also of the exact time of the meeting,
for it
to be argued that the absence of a proper notice to him had no effect
on his ability to attend the meeting and to deal with
the motion of
no confidence against him. In
Heatherdale
Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and
Another
[7]
it was held (at 486 D-G)) that
“
a
person who is entitled to the benefit of the audi alteram partem rule
… must be given a reasonable time in which to assemble
the
relevant information and to prepare and put forward his
representations; secondly he must be put in possession of such
information
as will render his right to make representations a real,
and not an illusory one
”.
[34]
Even if Mr Matika had become aware of a
request for a meeting on 25 July 2018 at 10:00, there is no
evidence upon which it
can be found that he had, as a fact, also
become aware of the new time of 12:30.
[35]
It was submitted on behalf of the DA that :
“
The
motion of no confidence must have come to the attention of the ANC
Chief Whip. It follows that it ought to have come to
the
attention of Mr Matika
”.
It
is, of course, blatant speculation to say that the ANC Chief Whip
would have notified Mr Matika of the motion of no confidence
after
the Whips meeting of the afternoon of 24 July 2018. Why would
he have done so if it is undisputed that the Acting Speaker
had left
that meeting on the note that the meeting that had been requested for
25 July 2018 would not proceed? This would
mean that the
meeting of that afternoon dispersed on the basis that the motion of
no confidence would not be discussed in a meeting
the next day.
As regards the second request for a meeting, which was made at some
time after 11:00 on the morning of 25 July
2018, the question is when
the Chief Whip of the ANC would have had the opportunity to notify Mr
Matika that the motion of no confidence
would then be discussed at
the meeting which would take place at 12:30, and in other words
within little more than an hour after
the Chief Whip had become aware
of that fact himself.
[36]
In the circumstances there is nothing to
gainsay Mr Matika’s assertion that he had been unaware of the
motion of no confidence.
The fact that the motion had also
previously been planned, but had never been moved at earlier
meetings, does not mean that Mr
Matika would have been aware that a
motion of no confidence was going to be moved at a meeting to be held
at 12:30 on 25 July
2018. Furthermore, it would be reasonable
for Mr Matika, by virtue of being an office bearer elected by the
Municipal Council,
that he be formally served with a notice of the
council meeting when his position as such is going to be a subject
for discussion.
[37]
Even if it could be speculated that Mr
Matika was aware of the existence or the possibility of a motion of
no confidence against
him, there is absolutely no evidence that he
would have been aware of the exact contents of the proposed motion.
[38]
Even when the Acting Speaker and the Acting
Municipal Manager did not arrive at the chamber, and when it must
have been very clear
to those present that they were not going to
come and that in all probability notice hadnot been given of the
meeting, no attempt
was made to ensure that at the very least Mr
Matika, the target of the motion of no confidence, got notice of the
meeting.
[39]
In
her heads of argument Ms Mayosi made reference to the case of
Mojaki
v Ngaka Modiri Molema District Municipality
[8]
,
which dealt with a Municipal Manager who had himself frustrated the
attempt to give him notice. The case is clearly not
applicable
in the present circumstances, because there is no evidence here that
Mr Matika had frustrated any attempt to make him
aware of the meeting
scheduled for 12:30 on 25 July 2018, and of the contents of the
proposed motion of no confidence.
[40]
It was submitted, on behalf of the DA, that
“
steps
taken by the majority of councillors were effective when measured
against the object of the Legislature
”,
as
far as the issue of notice is concerned.
[41]
As far as the objects of the Legislature
are concerned, it is apposite, in the first place, to refer to the
provisions of section
152(1)(a) of the
Constitution
,
which provides that one of the objects of local government is
“
to
provide democratic and accountable government for local
communities
”.
[42]
Furthermore, section 160(8) of the
Constitution
provides that
“
Members
of a Municipal Council are entitled to participate in its proceedings
… in a manner that-
a)
allows parties and interests
reflected within the Council to be fairly represented;
b)
is consistent with democracy; and
c)
may be regulated by national
legislation.
”
[43]
As far as national legislation is
concerned, we are of the view that the provisions of section 58 of
the
MSA
are indeed intended to facilitate and achieve the objects in the
Constitution
,
for the simple reason that the democratic right to participate, as
intended in the
Constitution
,
cannot be exercised by a member or councillor if he/she is unaware of
the fact that the meeting is going to take place.
[44]
It is not clear what is meant by the
submission that the councillors took steps to achieve this object.
There is no evidence,
or even suggestion, of any attempt by those
present to contact and notify either Mr Matika or any of the absent
councillors.
There is also no allegation that this was in fact
not possible.
[45]
Ms
Mayosi made reference to cases like
Liebenberg
NO and Others v Bergrivier Municipality
[9]
and
Weenen
Transitional Local Council v Van Dyk
[10]
,
and
the principle that
,
even
if there had been a failure to comply with statutory provisions, the
question would remain whether the object of those provisions
had
effectively been achieved. In the present case, however, the
complete failure to give notice to Mr Matika and any of
the other
councillors had in our view frustrated the object that decisions must
be taken in circumstances where all members of
a council had been
given the opportunity to participate and to debate before voting
takes place and a decision is reached.
The need for an
opportunity to participate and to debate, and the right thereto, were
confirmed in the
Makume
case
[11]
:
“…
in
the absence of a proper notice of the intended motion there
could have been no valid council resolution to carry the …
motion. No council resolution can be taken in a vacuum. A
municipal council is an assembly of divergent political parties.
These various political parties had their say when the executive
mayor was enthroned by popular vote. Those various political
parties ought to have their say when the executive mayor is
dethroned. Logically these various political parties in the
local assembly cannot democratically have their say in a meaningful
way unless they are timeously notified prior to the relative
council
meeting by way of a written notice of the intended motion …
Any councillor or any political party intending to impeach
the
executive mayor was legally obliged to timeously inform, not only the
mayor, but also each and every member of the municipal
council of his
or her intention to do so. …
Certainly
it is not enough to say the executive mayor knew beforehand that he
was going to be removed. The fact of the matter
is that all the
councillors irrespective of their political affiliations were also
entitled to know. … Respect for
law is as important as
clean public administration itself. None of the two should be
sacrificed on the altar of the other
”
.
[46]
In
Democratic
Alliance and Another v Masondo NO and Another
[12]
it was held that “
inclusive
deliberation prior to decision making
”
is required to give effect to section 160(8) of the
Constitution
.
In our view it is clear that even if a single councillor was deprived
of the right to debate and to participate, because
of the absence of
notice, the objects of the
Constitution
and of the
MSA
would have been frustrated.
[47]
Ms
Mayosi argued, with reference to subsections (a) and (c) of section
160(3) of the
Constitution
[13]
and subsections (1) and (3) of section 30 of the
MSA
[14]
,
that those provisions require only that a majority of members be
present at a meeting and that decisions be taken by a majority
vote,
and she argued that these objects have been achieved in the present
case, because the majority of the councillors were indeed
present and
because the decision was taken unanimously.
[48]
But section 160(3) of the
Constitution
surely presupposes a properly constituted and convened meeting for
members to vote at.
[49]
On this line of reasoning a group of
councillors could hold a “
meeting
”,
without having given any notice thereof to the remaining councillors,
as long as they constitute a majority of councillors.
They
could then even, if this argument is drawn to its logical conclusion,
at such a “
meeting
”
take a decision that directly affects a co-councillor and member,
like removing him/her from a position like that of Speaker
or Mayor,
without prior notice to the specific member. Surely the
Legislature could never have intended such a situation.
The
word “
meeting
”
in section 30(3) of the
MSA
must surely have been intended to refer to a properly convened
meeting, which in turn would necessarily imply that all councillors
had received proper notice.
[50]
If subsections (1) and (3) of section 30 of
the
MSA
are to be read as argued by Ms Mayosi it would render the requirement
of prior notice in section 58 of the
MSA
meaningless and also, more importantly, the object of an opportunity
for all councillors to participate in meetings would be frustrated.
[51]
In
Van
der Linde and Others v Prince and Others
[15]
it was held that: “ …
whilst
it is undisputed that the majority of the council members took
decisions on 26 February 2018 and that the meeting was quorate
in
accordance with section 29(1) of the Structures Act 117 of 1998, the
decision cannot be valid and binding simply because the
majority of
the council members were present when the decision to vote the
respective council members out of office and into office
as
contemplated in section 30(3) of the Structures Act 117 of 1998. As
earlier stated, this does not [circumvent] irregularities
and
non-compliance”
[16]
.
The facts in that matter were very similar to the facts in the
present matter. The “
meeting
”
had not been convened by the Speaker or Municipal Manager, notice had
not been given to all members or to the public in
accordance with the
Rules of Order of that council and the period between the request
that the meeting be called and the stated
time for that meeting would
in any event have resulted in much shorter notice than required by
those rules.
[52]
The
Mojaki
case does not provide support for an argument that a valid decision
can be taken without any notice at all. What was considered
in
that matter was short notice, and not an absolute absence of notice,
because
it was found that the applicant in that matter had in fact been “made
aware of the action which the Administrator
intended taking and
….offered an opportunity to make his presentation
”
[17]
.
[53]
Ms Mayosi argued that it was the duty of
the Acting Municipal Manager to give notice. This is irrelevant
for purposes of considering
the validity of the meeting, and the
consequences of the absence of prior notice. In any event, the
absence of the Acting
Municipal Manager and of the Acting Speaker at
the Council chamber must have made it very clear to everyone there
that notice had
in fact not been given, and yet the councillors
present there decided to proceed and to take the decisions.
[54]
In her heads of argument Ms Mayosi
submitted that it is undisputed that the Acting Speaker had informed
councillor Phiri that notices
would be sent out. This is not
correct. In his answering affidavit the Acting Speaker stated
that councillor Keetile,
the Chief Whip of the ANC, told councillor
Phiri that, in the event of urgent meetings, 24 hours’ notice
was required, and
also that councillors who were not in the Council
chamber also had to be notified of the meeting. We have already
alluded
to the probabilities in this regard.
[55]
Once again, however, even if councillor
Phiri had told the councillors in the Council chamber that the Acting
Speaker had undertaken
to see to it that notices were sent out (which
incidentally also does not appear from the transcribed record of the
discussions
in the chamber), this would not detract from the fact
that, in any event, notice had as a fact not been given by the time
that
the two decisions were taken.
[56]
The deponent for the DA submitted that the
absence of notice to members could, in view of the provisions of Rule
6.4, not affect
the validity of the proceedings at the meeting. It
reads as follows:
“
The
fact that any member(s) has/have not received notice of a meeting in
accordance with these rules will not affect the validity
of any
proceedings of that meeting
”.
56.1
In our view it is important to note that it is the receipt of notice
that is addressed in the Rule, and not the giving thereof.
The
importance of this distinction becomes clear when regard is had to
the provisions of Rule 6.9:
“
Every
member of the municipal council must specify in writing an electronic
mail address and/or a physical address within the municipal
area of
Kimberley, where he/she will receive notice of meetings … .
Delivery to this address will
constitute proper notice of meetings of the municipal council
.”
(My emphasis)
56.2
This means that, once a notice has been dispatched to the designated
address, the member cannot be heard to complain that it
was not
received, because dispatching it to that address will “
constitute
proper notice
”.
56.3
Rule 6.4 must in our view be read in conjunction with Rule 6.9.
If a member has chosen an address and the method by which
notices can
be sent to that member, and dispatching the notice to that address
and in that manner then proves to be ineffective,
it will not
invalidate the proceedings at the relevant meeting.
56.4
That this must be what the Legislature intended is clear, because
otherwise any member could challenge the validity of proceedings
at
the meeting by simply claiming that notice thereof was not received.
It would be almost impossible to prove the contrary.
The
Legislature could never have intended such an absurdity
[18]
.
56.5 Even if such a
notice was really in actual fact not received, for example because of
some problem with the electronic mail
address specified or because
the notice is not delivered to the physical address by the Post
Office, the dispatch of the notice
will constitute proper service and
the validity of the subsequent proceedings will not be affected by
the absence of actual receipt
of such a notice. The duty to
elect an effective method of communication, and the risk of it
failing, is on the individual
members.
VALIDITY
OF THE PROCEEDINGS OF 25 JULY 2018
[57]
Ms
Mayosi argued, with reference to
inter
alia
the case of
Unlawful
Occupiers, School Site v City of Johannesburg
[19]
,
and the principle that non-compliance with even peremptory provisions
will not necessarily be fatal where the object of the relevant
legislation had been achieved, that the Rules are mere by-laws and
that neither the Rules not the
MSA
provide that non-compliance with their provisions would result in
their invalidity.
[58]
As already pointed out, however, the
objects of the Legislature have in the present matter indeed been
compromised by the failure
to give notice to all the members of the
council and to Mr Matika; a failure which has also offended the
audi
alteram partem
principle of natural
justice.
[59]
Furthermore, the Legislature could never
have intended proceedings which had not been part of a properly
convened meeting, and which
took place in a gathering of a group of
members who knew full well that the provisions of the Rules had not
been complied with,
to nevertheless constitute valid proceedings of
the Council.
[60]
The
Rules have, as already mentioned, been accepted and approved by the
Council of the Sol Plaatje Municipality, and members of
its Council
and its officials are therefore duty-bound to comply with the
provisions of those Rules as far as meetings are
concerned, failing
which the proceedings at such meetings will be unlawful
[20]
.
[61]
The
provisions of the Rules pertaining to notice include words like
“
must
”
and “
shall
”
and are therefore peremptory in nature
[21]
,
and in the present circumstances there is no basis for arguing that
non-compliance therewith had not affected the objects of the
Rules.
[62]
The result is that the proceedings at the
“
meeting
”
of 25 July 2018 were unlawful and invalid and that the decisions
taken there fall to be set aside, which would include the
resolutions
to remove Mr Matika from his position as Executive Mayor and to
appoint Mr Thabane as the Acting Mayor.
ALTERNATIVE
RELIEF
[63]
In prayers 4 and 5 of the notice of motion
in the DA application it is prayed that, in the event that it is
found that the meeting
was unlawful and that the resolutions referred
to are set aside, the Acting Speaker is ordered to call a special
meeting of the
council “
within 5 …
days
” of the date of the order
herein and to place on the agenda of such meeting the motion of no
confidence in Mr Matika dated
25 July 2018.
[64]
Ms Mayosi conceded that the first request
for a meeting had been superseded by the second request, and it was
therefore common cause
that the basis for such an order would be the
second request.
[65]
It
is trite that a Court “…..
should
be slow to assume a discretion which has been statutorily entrusted
to another tribunal.l
”
[22]
.
In
Doctors
for Life International v Speaker of the National Assembly and
Others
[23]
it was held
[24]
that “
courts
must be conscious of the vital limits on judicial authority
”
and “
should
not interfere in the processes of other branches of Government unless
to do so is mandated by the Constitution
”.
[66]
The crucial question will therefore be
whether the Acting Speaker was wrong to refuse to convene a meeting
in response to the second
request.
[67]
The
case for the DA was that the Acting Speaker had no discretion to
decide whether or not to convene a meeting, because section
29(1) of
the
MSA
enjoined the Acting Speaker to convene a meeting when requested to do
so. Somewhat surprisingly (in view of the criticism
of the
judgment earlier in the heads of argument for the DA) Ms Mayosi
relied on the following passage from the judgment in the
Speaker
of Bitou Municipal Council
v
Mbali
[25]
“
Even
if the (Speaker) held bona fide concerns regarding the motivations of
the proposed motion or the applicants’ failure
to notify the
(Municipal Manager)of the intention to propose the motion, she was
not authorised to ignore her duty in terms of
s 29(1) of the (
MSA
)
…
“.
[68]
This passage, however, clearly part of the
discussion by Davis J of the argument advanced by counsel for the
applicant. It
therefore forms part of an exposition of the
argument advanced on behalf of the applicant in that case, and is not
part of what
Davis J found and decided. This becomes clear when
the particular paragraph is read in the context of the rest of the
judgment,
and especially the paragraph immediately preceding the one
relied upon by Ms Mayosi.
[69]
In any event, the word “
request
”
in section 29(1) of the
MSA
surely presupposes a valid request, as envisaged in the Rules, and
such a request would have had to provide for at least 24 hours’
notice before the time of the meeting, and would have had to motivate
why there was a need for an urgent meeting and why the normal
minimum
of five days’ notice would not have sufficed.
[70]
This
is so because section 37(f) of the
MSA
enjoins a Speaker or Acting Speaker to “
ensure
that council meetings are conducted in accordance with the rules and
orders of the council
”
[26]
.
Rule 6.6 is also very clear in this respect, when it determines that
“
the
Speaker or in his/her absence the Acting Speaker determines whether
any meeting is urgent or not
”.
[71]
We
have already also referred to the
Makume
judgment, in which it was held that councillors cannot by means of a
request “
compel
(the Speaker or Acting Speaker) to break the law in the process of
disregarding time limits
”
[27]
.
[72]
We
are in agreement with the
dictum
in the
Bitou
case that a Speaker or Acting Speaker who receives a request to call
a meeting, would not have to do so on demand, and would be
entitled
to consider the issue of time and notice
[28]
.
[73]
Ms Mayosi went on to argue, however, that
the 24 hour notice period had in any event not been applicable,
because the motion was
one of exigency, as envisaged in Rule 26,
which provides as follows under the heading “
MOTION
OF EXIGENCY
”:
“
26.1
A councillor may direct the attention of the council to any matter
which
does not appear on the
agenda
, and
of
which no previous notice has been given
,
by stating briefly the subject matter and without comment thereon
moving ‘that the question to which attention has been
directed
be considered forthwith as a matter of urgency.’
26.2
If such motion is seconded and carried by a majority of the
councillors present the mover shall be permitted without notice
to
bring the matter under consideration by way of motion or question,
provided that no motion of exigency shall be in order during
the
consideration of any other matter.”
(My
emphasis)
[74]
The
first question to be considered is therefore whether the motion of no
confidence against Mr Matika was included in an agenda
for the
particular meeting. The minutes of the meeting do not make
mention of any agenda. However, when regard is had
to the
transcribed record of the discussions in the Council chamber that
afternoon, it appears that councillor Stout made mention
of an agenda
and pointed out that it erroneously describes the meeting as an
“
Ordinary
Council Meeting, 1
st
August 2018
”
[29]
.
It was then “
recorded
”
that the motion was in fact one of exigency, and it was then tabled
by councillor Phiri.
[75]
There
are also several other references to an agenda in the transcribed
proceedings. After councillor Wesley requested that “
a
quick agenda
”
be prepared, counsellor Stout remarked that the agenda needed to be
“
signed
off
”
and said that he would “
sign
(his) just to keep it safe on record, the agenda
”
[30]
.
At a later stage counsellor Phiri pointed out that his documents were
not correct “
in
terms of the agenda
”.
He suggested certain corrections and remarked that he thought that
“
the
agenda item would then be fine
”
[31]
.
[76]
The document that was referred to does not
form part of the record of proceedings that has been submitted.
It would appear,
from the discussion that it may very possibly have
included the motion of no confidence as an item of business to be
discussed.
[77]
In our view the provisions of Rule 26 are
intended for a scenario where a meeting had been convened properly,
where there is a proper
agenda for that meeting and where the
specific item is not included in that agenda, but needs to be
discussed urgently.
[78]
Whether or not there was an agenda that
included the motion of no confidence as an item of business, it is
very clear that in the
present case the meeting had been sought
exclusively for the purpose of dealing with the particular motion.
This is therefore
not a case where the meeting was called or sought
for other items of business, and where the motion of no confidence
thereafter
arose as an urgent issue that needed to be debated and
resolved.
[79]
Furthermore, the definition of a motion of
exigency envisages that there must have been “
no
previous notice
” of such an issue
or motion. Here the councillors who signed the request for the
meeting did, on the DA’s own
version, prior to the meeting know
that precisely this motion was going to be considered. It can
in no way, on the papers
in this matter, be said that the councillors
who were present in the Council chamber did not have notice of the
motion of no confidence.
[80]
The issue in the present matter is in any
event not really about an urgent motion, but rather about an urgent
meeting.
[81]
Ms
Mayosi criticised the
Bitou
judgment insofar as it was found that the provisions of section 29(1)
of the
MSA
could not be interpreted to mean that a Speaker or an Acting
Speaker would have to convene a meeting “
on
demand
”,
regardless of the period of notice that such a demand would allow
for. It was argued that Davis J had conflated the
issue of the
calling of a meeting with the issue of the scheduling of a motion,
and that different procedures apply to the two
scenarios.
However, in the present matter the request for the meeting and the
scheduling of the motion of no confidence coincided,
and the demand
for a meeting with effectively no notice amounted to a demand for the
scheduling of a motion with effectively no
notice. Like in the
present matter, the “
sole
purpose of the request for a meeting
”
in the
Bitou
case was also to move particular motions
[32]
.
In our view the
Bitou
case is therefore in point and was correctly decided.
[82]
It follows that in our view the Acting
Speaker was completely within his rights to consider the issue of
notice and to refuse to
convene a meeting for a time which would have
left less than 90 minutes within which to notify all members of the
council and the
public.
[83]
On this basis alone the alternative relief
cannot be granted.
[84]
There
is, however, in any event the further problem that Rule 6.3 requires
“
at
least
”
five days’ notice for non-urgent meetings. Shorter notice
would be possible in cases where an urgent meeting
is called for by a
majority of councillors, but then there would have had to be at least
24 hours’ notice
[33]
and
it would be for the Speaker or Acting Speaker to determine whether
there is sufficient urgency to deviate from the requirement
of “
at
least
”
five days’ notice, as required by Rule 6.6. A period of
“
within
five days
”,
as provided for in the prayers seeking the alternative relief, would
therefore not comply with the normal period of notice
required by the
Rules, and no case has been made out that the issue is more urgent
than that and that the Acting Speaker or Speaker
should be compelled
to call a meeting with a shorter period of notice.
[85]
In any event it would, as already pointed
out, be for the Speaker or Acting Speaker to decide whether such
urgency exists, once
a request for such a meeting is submitted.
[86]
It is also not known to this Court whether
the councillors who had called for a meeting to be held on 25 July
2018 for the purposes
of the consideration of a motion of no
confidence in the Executive Mayor, at this stage still wish that such
a meeting be held
and that such a motion of no confidence be
discussed. There is no evidence to this effect before us.
[87]
It follows that we are of the view that
there is no reason why it should not be left to the councillors to
decide whether such a
request should again be submitted and, if so,
why it should not be left to the Speaker or Acting Speaker to decide
whether such
a request should be granted.
COSTS
[87]
As far as the Matika application is concerned,
there is no reason why costs should not follow the result. It
has also not
been argued that the costs of 31 July should not be
costs in the cause.
[88]
It was argued that the DA, the only party that
opposed that application, should be ordered to pay such costs on the
attorney and
client scale. The basis of this argument was that it is
clear from the transcription of the proceedings in the Council
chamber
leading up to the two impugned resolutions that there was a
realisation that the meeting may be unlawful, and that it was
nevertheless
decided to proceed.
[89]
The fact is, however, that it cannot on
the papers be said that this was the attitude of only the DA
councillors that were there.
So, for example, councillor Stout
also said, after the legal pitfalls had been raised,
"
we
must continue with this meeting. Where there is legal stuff, we
are here today, we are the majority. So for me it's
best we
continue now. Whatever legal court and whatever we will see it
afterwards
".
Other
councillors who were apparently also not DA members and who had also
heard the legal concerns raised there, also supported
the notion that
the meeting nevertheless be proceeded with. In the end it was
in fact unanimously decided to do so, and it
is common cause that
members of all political parties were present. To hold only the
DA responsible for that decision would
therefore be unfair.
[90]
When the contributions of some of the
councillors to this discussion are read in isolation, their attitudes
could be seen as cavalier
and reckless as regards the validity of the
meeting and of the decisions that they were about to take, and the
possible legal ramifications.
However, when they are read in
the context of everything that was said there it appears that there
was at that stage a legitimate
concern for the safety of Kimberley,
its residents and their property.
[91]
It was put on record that the "
community
out there (was) up in arms
" and
were "
already busy starting to
come into town
", that the
councillors present had taken a risk to be there and that it was
urgent that the meeting be proceeded with
"
in
the interest of the communities out there to avoid having another
shutdown that will cripple the economy of the Municipality
and will
not only hurt the Municipality, business out there, children will not
be going to school, a lot of people will be affected
by this
shutdown
" and that the
"
community (had) given (them) a
deadline of Wednesday, the 25th to come up with a solution and that
the Mayor refuses to withdraw
or to resign from his position to
accommodate the request from the community
".
[92]
When the proposals to proceed with the meeting
regardless of the legal consequences are seen against this
background, it could be
argued that they were misguided rather than
reckless. For the same reason we are of the view that the DA's
opposition in this application,
and its own application, cannot be
said to have been vexatious or mala fide.
[93]
We have therefore come to the conclusion that
it would be unfair to award a punitive costs order against the DA in
the Matika application.
The costs that would be awarded in this
matter are costs on party and party scale.
[94]
This brings me to the DA application,
and its costs. Although the DA did not in its application seek a
costs order against the Acting
Speaker in the event of him not
opposing that application, it did as alternative relief seek an order
to compel him to convene
a meeting. In view of the conclusion
to which we have come as regards the Acting Speaker’s role as
seen on the available
evidence, he cannot be blamed for opposing the
DA application and is therefore also entitled to his costs therein.
[95]
It
is true that Mr Matika would not have been entitled to ignore the
resolutions to substitute him with Mr Thabane simply because
he
believed them to have been adopted at an unlawful meeting
[34]
.
In our view, however, the fact that Mr Matika had not immediately
vacated his office upon becoming aware of the resolutions
(a day or
two after the meeting) could in all fairness not be seen as him
simply ignoring the resolutions. It is clear that
he
immediately took steps to not only challenge the meeting and the
resolutions on review, but also to legalise his continued occupation
of that office pending the outcome of the review by means of an
interim interdict.
[96]
While it is possible that the DA
application was prepared and lodged without knowledge of Mr Matika’s
intended application,
the fact is that the DA then persisted with its
application even after councillor Matika’s application was
lodged.
In persisting with its application after the agreement
of 31 July 2018 the DA was in effect seeking final relief in the form
of
an order that Mr Matika vacate his office. One wonders if it
would not have been wise for the DA to have postponed its
application,
and the filing of answering affidavits by any
respondents who opposed that application, and to await the outcome of
the review
application. In the circumstances councillor Matika
was within his rights to oppose the DA application and is entitled to
his costs therein.
[97]
It is true that the
contents
of Mr Matika’s answering affidavit are to an extent the same as
that of his founding and replying affidavits in the
Matika
application, but this would be an issue for taxation and not for this
Court.
The
nett result would be that the DA is ordered to pay Mr Matika's costs
in the Matika application on the party and party scale,
including the
costs of 31 July 2018, as well as the costs of Mr Matika and Acting
Speaker in the DA application.
ORDER
[98]
In the result the following orders are
made:
99.1 The Application of
the Democratic Alliance in case no: 1858/18 is dismissed with costs.
(The costs referred are for Mr OM Matika
and the Acting Speaker).
99.2 The Application of
Mr OM Matika succeeds.
i) The meeting held on 25
July 2018 titled “
Special Council Meeting
”
is declared unlawful and set aside.
ii) All resolutions
reached during or at that meeting are declared invalid and set aside.
iii)
The Democratic Alliance is ordered to pay the costs of Mr OM Matika.
____________________________
LP
Tlaletsi
Judge President
_________________________
CJ
Olivier
Acting Deputy Judge President
APPEARANCES
:
For
the Democratic Alliance: N Mayosi and K Harding
Instructed by: Duncan &
Rothman Attorneys
Kimberley
For
Mr OM Matika: A Stanton
Instructed by: Thomas
Kouter Attorneys
Kimberley
For
the Acting Speaker: F Peterson
Instructed by: Mjila and
Partners Attorneys
Kimberley
[1]
Councillor O.M. Matika has been the Executive Mayor of the Sol
Plaatje Municipality until the resolution to oust him as such at
a
meeting held on 25 July 2018.
[2]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
.
(53/84)
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3) SA 620
(21 May 1984)
[3]
117
of 1998
[4]
The
Constitution of the Republic of South Africa Act
108
of 1996, which provides:
“
A
Municipal Council may make by-laws which prescribe rules and orders
for-
(a)
its internal arrangements;
(b)
its business and proceedings; and
(c)
the establishment, composition,
procedures, powers and functions of its committees
.”
[5]
[2007]
JOL 21038
(O) para [15]
[6]
Matika-application:
p342, para 23
[7]
1980
(3) SA 476 (T)
[8]
[2015]
JOL 32541 (LC)
[9]
2013
(5) SA 246 (CC)
[10]
2002
(4) SA 653
(SCA)
[11]
At
para’s [17] and [18]
[12]
[2002] ZACC 28
;
2003
(2) BCLR 128
(CC) para [78]
[13]
Section
160(3) –
“
(a)
A majority of the members of a Municipal Council must be present
before a vote may be taken on any matter.
(b)
…
(c)
All … questions before a Municipal Council decided by a
majority of the votes cast.”
[14]
Section
30 –
“
(1)
A majority of the councillors must be present at the meeting of the
council before a vote may be taken on any matter.
(2)
…
(3)
All other questions before a municipal council are decided by a
majority of the votes cast,… .”
[15]
Case
no: 3535/18 Western Cape Division, handed down on19 June 2018 by
Andrews AJ, Unreported.
[16]
Para
[16]
[17]
Mojaki
v Ngaka Modiri Molema District Municipality
,
supra
,
para [32]
[18]
Compare
Ngwenyama
v Mayelane and Another
[2012] 3 ALL SA 408 (SCA)
[19]
2005
(4) SA 199
(SCA); [2005] 2 ALL SA (108) para [22]
[20]
Nala
Local Municipality and Another v Lejweleputswa District Municipality
and Others
[2005] 3 All SA 571
(O) para [9] and [10];
Van
der Linde and Others v Prince and Others
,
supra
[21]
Compare
Minister
of Environmental Affairs and Tourism and Others v Pepper Bay Fishing
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and Others
v Smith
2004 (1) SA 308
(SCA) para’s [31] and [32]
[22]
Makhanya
NO and Another v Goede Wellington Boerdery (Pty) Ltd
[2013] 1 All SA 526
(SCA) para [42]
[23]
2006
(6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11)
[24]
Ibid
,
para [37]
[25]
2014
JDR 1751 (WCC) para [22]
[26]
See
also Rule 3.3: “
The
Speaker must: ensure that meetings are conducted in accordance with
these Rules of Order
”.
[27]
Makume
& another v Northern Free State District Municipality &
others
,
supra
,para
[15]
[28]
Speaker
of Bitou Municipal Council v Mbali
,
supra
,
para [26]
[29]
Matika-application:
p179
[30]
Matika-application:
p 204
[31]
Matika-application:
pp 215-216
[32]
Speaker
of Bitou Municipal Council v Mbali
,
supra
,
para [17]
[33]
Rule
6.5
[34]
Compare
Merafong
City v Anglogold Ashanti Ltd
2017 (2) 211 (CC)