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[2014] ZAGPPHC 153
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Democratic Alliance of South Africa and Others v City of Tshwane Metropolitan Municipality and Others (33441/13) [2014] ZAGPPHC 153 (28 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 33441/13
DATE:
28 MARCH 2014
In the matter
between:
DEMOCRATIC
ALLIANCE OF SOUTH
AFRICA
....................................................
1st
Appellant
MIDDELBURG,
ALEXANDER WILLEM
FREDERIK
..........................................
2nd
Applicant
VAN DER WALT,
PHILLIPUS
ANDRIES
..................................................................
3rd
Applicant
And
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
....................................................................................................
1st
Respondent
RAMOKGOPA,
KGOSIENTSO
.........................................................................
2na
Respondent
NGOBENI,
JASON
..............................................................................................
3rd
Respondent
MOSUPYOE, A W M
K
........................................................................................
4th
Respondent
MPHEPHU,
ADOLFUS
........................................................................................
5th
Respondent
THE MINISTER OF
PROVINCIAL AND LOCAL
GOVERNMENT
...................................................................................................
6th
Respondent
THE MEC:
PROVINCIAL AND LOCAL
GOVERNMENT
GAUTENG
PROVINCE
.......................................................
7th
Respondent
THE INDEPENDENT
ELECTORAL COMMISSION
...................................
8th
Respondent
JUDGMENT
FOURIE, J:
INTRODUCTION
[1] This application
concerns the validity of the Ward Committee Elections conducted by
the City of Tshwane during January/February
2012 and July 2012. The
Municipality is divided into 105 municipal wards. Each municipal ward
is represented by an elected ward
councillor and for each ward a ward
committee is also elected. During 2001 a Ward Committees Document,
also referred to as a policy
document, was adopted by the
Municipality. It provides for a procedure whereby ward committees are
to be elected. On 30 June 2011
the Municipality resolved that a
proposed by-law on Public Participation: Ward Committees, Petitions,
Meetings and Hearings should
replace the Ward Committees Document and
that the proposed by-law be approved for immediate implementation. It
is common cause
that the by-law was only promulgated on 1 February
2012.
[2] The relief
sought by the applicants can be summarised as follows: First, the
Ward Committees By-law should be declared void
due to non- compliance
with section 160(4) of the Constitution, 1996; Second, the ward
committee elections held during January/February
2012 and July 2012
should be declared unconstitutional and invalid; Third, in view of
certain shortcomings of the Ward Committees
By-law, the Municipality
should be ordered to comply properly with all the statutory
requirements for the adoption and promulgation
of a (new) ward
committees by-law and to arrange, without delay, for ward committee
elections to be held. Lastly, that the first
to fourth respondents
(the Municipality, the Executive Mayor, Municipal Manager and Speaker
of the Council) be ordered to pay the
costs of the application,
jointly and severally, on an attorney and client scale.
[3] As far as the
Ward Committee’s By-law is concerned, the applicants contend
that the adoption process, which preceded its
promulgation, was
invalid for various reasons, the most important being that the public
participation requirements as stipulated
in section 160(4) of the
Constitution, 1996 were not complied with. The Municipality indicated
that it does not persist with its
contention that the by-law was
properly enacted. It was therefore conceded, rightly so in my view,
that the by-law is invalid and
that the relief sought in this regard
may be granted. What remains to be decided is whether the elections
were validly undertaken
and, if necessary, whether an order should be
granted with regard to the adoption and promulgation of a (new) Ward
Committees By-law
and costs. I shall first deal with the statutory
framework and thereafter consider these contentions by dealing with
each of them
in turn.
STATUTORY
FRAMEWORK
[4] Section 156 of
the Constitution provides, amongst others, that a municipality has
executive authority in respect of, and has
the right to administer,
matters assigned to it by national or provincial legislation,
including the passing and administering
of by-laws. In terms of
section 160(4) no by-law may be passed by a municipality unless all
the members of the council have been
given reasonable notice and the
proposed by-law has been published for public comment.
NATIONAL
LEGISLATION
[5]
Section 73
of
the
Local Government: Municipal Structures Act No 117 of 1998
provides for the establishment of ward committees. It provides as
follows in subsections (1) to (4):
“(1) If a
metro or local council establishes ward committees, it must establish
a ward committee for each ward in the Municipality.
(2) A ward committee
consists of-
(a) the councillor
representing that ward in the council, who must also be the
chairperson of the committee; and
(b) not more than 10
other persons.
(3) A metro or local
council must make rules regulating -
(a) the procedure to
elect the subsection (2)(b) members of a ward committee, taking into
account the need -
(i) for women to be
equitably represented in a ward committee; and
(ii) for a diversity
of interests in the ward to be represented;
(b) the
circumstances under which those members must vacate office; and
(c) the frequency of
meetings of ward committees.
(4) A metro or local
council may make administrative arrangements to enable ward
committees to perform their functions and exercise
their powers
effectively. ”
[6]
Section 74
provides that a ward committee may make recommendations on any matter
affecting its ward and has such duties and powers as the
metro or
local authority may delegate to it in terms of
section 59
of the
Local Government: Municipal Systems Act, No 32 of 2000.
[7]
Section 1
of the
Local Government: Municipal Systems Act, No. 32 of 2000
defines a
by-law as “legislation passed by the council of a municipality
binding in the Municipality on the persons to whom
it applies."
Sections 12
and
13
deal with legislative procedures and publication
of by¬laws.
Section 12
provides as follows:
“(1) Only a
member or committee of a municipal council may introduce a draft
by-law in the council.
(2) A by-law must be
made by a decision taken by a municipal council -
(a) in accordance
with the rules and orders of the council, and
(b) with a
supporting vote of a majority of its members.
(3) No by-law may be
passed by a municipal council unless -
(a) all the members
of the council have been given reasonable notice; and
(b) the proposed
by-law has been published for public comments in a manner that allows
the public an opportunity to make representations
with regard to the
proposed by-law.
(4) Subsections (1)
to (3) also apply when a municipal council incorporates by reference,
as by-laws, provisions of-
(a) legislation
passed by another legislative organ of State; or
(b) standard draft
by-laws made in terms of
section 14.
”
[8]
Section 13
provides:
“A by-law
passed by a municipal council -
(a) must be
published promptly in the Provincial Gazette, and, where feasible,
also in a local newspaper or in any other practical
way to bring the
contents of the by-law to the attention of the focal community; and
(b) takes effect
when published or on a future date determined in or in terms of the
by-law.”
[9]
Section 17
prescribes mechanisms, processes and procedures for community
participation, it provides, inter alia, that a municipality must
establish appropriate mechanisms, processes and procedures to enable
the local community to participate in the affairs of a municipality
and must for this purpose provide for notification and public comment
procedures, where appropriate.
Section 18
provides that a
municipality must communicate to its community information concerning
the available mechanisms, processes and procedures
to encourage and
facilitate community participation.
Section 21
stipulates that, when
anything must be notified by a municipality, in terms of this Act or
any other applicable legislation, notification
must be done in the
local newspaper or newspapers of its area or by means of radio
broadcasts covering the area of that municipality.
Section 21A deals
with documents which are to be made public by displaying them at the
municipality’s head office.
[10] On 24 June 2005
and in terms of section 120, read with section 22 of the Municipal
Systems Act, Guidelines for the Establishment
and Operation of
Municipal Ward Committees were published (GN 965 in GG 27699). The
purpose is to provide uniform and simplified
guidelines to ward
committee members, ward councillors and municipalities on the
establishment and operation of ward committees.
As far as the
election procedure is concerned, reg. 9 differentiates between two
election models, i.e. the sectoral and geographic
model.
Notwithstanding certain provisions in this regard, reg. 9(1) also
provides that:
“A
metropolitan or local municipality must make rules regulating the
procedure to elect members to the ward committee taking
into account
the need for women to be equitably represented and for a diversity of
interests to be represented
[11] In terms of
reg. 9(7) certain election procedures are “proposed”. In
terms thereof the ward councillor and administrative
assistant (if
applicable) must ensure that meetings are fully representative of
almost all villages/stakeholders, an attendance
register is
completed, only registered voters may participate and women are
equitably represented.
PROVINCIAL
LEGISLATION (GAUTENG)
[12] On 19 March
1999 the Rationalisation of Local Government Affairs Act, No. 10 of
1998 for Gauteng came into operation. The purpose
of this Act
(section 2) is to rationalise the legislative and administrative
framework within which the local sphere of government
may conduct its
affairs in relation to, amongst other things, the making and issuing
of by¬laws. In section 1 a by-law is defined
as follows:
“any law made
by a municipal council and includes a code or procedure. ”
[13] Section 3
thereof provides that any person applying or interpreting this Act
must give a construction which is consistent with
the purpose
thereof, taking into account the particular purpose, role and
circumstances of the local government concerned. It also
provides
that the provisions must be considered in the light of any other law
governing a municipal council and in a manner that
favours a
reasonable interpretation of the relevant laws that avoids conflict
between them.
[14] Section 7
thereof stipulates the procedure for making by-laws. Subsections (1)
to (6) provide as follows:
“(1) To make a
by-law, a municipal council must pass a resolution declaring its
intention to this effect.
(2) After the
resolution has been passed, the municipal council must-
(a) announce its
intention to make by-laws by notice in the Provincial Gaiette, and
where these exist, in one or more newspapers
circulating in the area
concerned;
(b) specify the
following in the notice:
(i) that comment is
being sought on a draft by¬law;
(ii) in summahsed
form, what the draft by-law deals with;
(Hi) the person to
whom or place where enquiries relating to the draft by-law may be
directed;
(iv) subject to
subsections (7) and (8), the place where, time when and the
circumstances and manner in which a copy of the draft
by-law may be
obtained or displayed for inspection;
(v) the period for
comment on the draft by-law which must be no less than one month from
the date of the notice; and
(vi) the person with
whom or place where comments on the draft by-law may be lodged;
(c) at any time
before making the by-law consultations with any relevant interest
groups may be held in any forum, including the
holding of an enquiry;
and
(d) the comments
received and the content of consultations must be considered before
making the by-law.
(3) The municipal
council has not made a by-law within one year of the announcement
referred to in subsection (1)(b), that by-law
cannot be made unless
the procedure provided for in subsection (1) is repeated.
(4) The provisions
of subsections (1)(b) and (2) do not apply in respect of-
(a) any by-law which
the public interest requires to be made without delay; and
(b) an amendment to
correct a textual error.
(5) The provisions
of subsection (1) to (3) apply in respect of amending or appealing
any by-law, with such changes as may be required
by context.
(6) A by-law comes
into operation on the date of its publication in the Provincial
Gazette or such other date specified in the Provincial
Gazette.
VALIDITY OF WARD
COMMITTEE ELECTIONS
[15] It is common
cause that the officials of the Municipality initially laboured under
the misapprehension that the elections would
be regulated by the Ward
Committees By-law which was adopted on 30 June 2011, but only
promulgated on 1 February 2012. In an attempt
to address this dilemma
the Municipal Manager (third respondent) released a media statement
on 20 January 2012 in which the following
was said:
"Although the
promulgation of the current by-law for the ward committee elections
has not gone through yet, this however did
not create a vacuum for
the successful execution of ward committee elections as the current
elections are being done in terms of
an existing Council approved
policy. The promulgation of the by-law was delayed and the City
Manager is investigating the cause
of delay and will ensure that the
by-law is promptly promulgated. ”
The *Council
approved policy” is a reference to the Ward Committees Document
which was already adopted during 2001. At the
commencement of the
council meeting on 26 January 2012 the Speaker (fourth respondent)
gave an oral report on the status of the
elections which were held
from 16 to 25 January 2012. She also indicated that, although the
by-law was by then not yet promulgated,
“this however did not
create a vacuum for the successful execution of Ward Committee
Elections as the current Ward Committee
Elections are being conducted
in terms of the existing Council approved policy. ”
[16] This brings me
to the following question: what is the legal status of the Ward
Committees Document with regard to ward committee
elections? The main
thrust of the argument presented on behalf of the applicants is that
this document had to be promulgated to
have legal effect. In answer
to this contention it was argued on behalf of the respondents that
the said document remained binding
and effective until validly
amended or repealed by a subsequent one. It was also pointed out that
in terms of section 73(3) of
the Municipal Structures Act a
municipality was only required to make rules regulating the procedure
to elect members of a ward
committee and, so it was argued, the Ward
Committees Document (or policy) should be regarded, on a proper
interpretation thereof,
to embody such rules. I shall now consider
both arguments.
[17] When one
considers the provisions of the Municipal Structures Act (including
Schedule 1, Part 2 in respect of ward elections)
it appears that
the procedure to
elect members of a ward committee is not expounded in the Act itself.
Section 73(3) provides that a local council
must make rules
regulating such a procedure. The only requirement in this regard
relates to women to be equitably represented and
a diversity of
interests to be taken into account. It is therefore possible that the
rules of municipalities may differ, subject
to the requirements
referred to above.
[18] As far as the
Municipal Systems Act is concerned, it also appears that the
provisions of this Act do not address the procedure
to elect members
of a ward committee. Section 12 determines legislative procedures
with regard to by-laws and the publication thereof
as required by
section 13. Having regard to the definition in section 1, a by-law
means legislation passed by the council and therefore,
strictly
interpreted, it may, but does not necessarily include rules and
orders referred to in section 12(2)(a).
[19] To provide
uniform and simplified guidelines for the establishment and operation
of municipal ward committees in all the provinces,
the regulations
referred to above were published on 24 June 2005. As far as the
election procedure is concerned, reg. 9(1) also
provides (as already
stipulated in section 73(3) of the Municipal Structures Act) that a
municipality must make rules regulating
the procedure to elect
members of a ward committee. Nowhere in the national legislation or
these regulations is the “procedure
to elect” prescribed,
save to provide that a municipality must make rules to regulate this
procedure.
[20] However, in the
provincial legislation (Gauteng) a specific procedure for making
by-laws and the promulgation thereof is provided
for in section 7 of
the Rationalisation of Local Government Affairs Act. There appears to
be a link between the provisions of section
7 and the procedure for
making rules to elect members of a ward committee. The linking clause
is the definition of a by-law as
it appears in section 1. This
includes a “procedure”.
[21] The word
“procedure” is not defined in the Act. The correct
approach should therefore be to determine the ordinary
grammatical
meaning of this word, unless that would lead to some absurdity or
inconsistency. In the Shorter Oxford English Dictionary,
6th Edition
(2007) the word “procedure” is described, inter alia, as
follows:
.. the fact or
manner of proceeding; a system of proceeding; conduct, behaviour, ...
(a) LAW the formal steps to be taken in a legal
action; the mode of
conducting judicial proceedings;
(b) POLITICS the
mode of conducting business in parliament ”
In Van Rhyn Deep GM
Co Ltd v Director of Labour
1915 WLD 94
at 96 it was pointed out that
“procedure” may, in a wide sense, mean that branch of
legislation which provides for
the enforcement, as distinct from the
conferring, of rights.
[22] In the present
context it appears that the grammatical and ordinary sense of the
word “procedure” is to indicate
a manner or system of
proceeding or steps to be taken in connection with the enforcement of
a statutory or constitutional right.
Therefore, the “procedure
to elect” as referred to in section 73(3) of the Municipal
Structures Act as well as in reg.
9(1) of the Guidelines for the
Establishment and Operation of Municipal Ward Committees should be
interpreted to mean that certain
steps are to be taken to implement
the right to elect members of a ward committee. If this
interpretation is applied to those sections
(in the national and
provincial legislation) where the word “procedure”
appears in relation to the election of members
of a ward committee, a
consistency with regard to meaning, contents and context becomes
apparent.
[23] The reason why
the Provincial Legislature has decided to include “procedure”
in the definition of a by-law is to
ensure that in Gauteng all
procedures of a formal nature, involving the exercise of a
legislative power by a municipality, must
be made subject to the
procedure for the making of a by-law as prescribed in section 7. This
interpretation is in accordance with
the purpose of the Act as set
out in section 2 and the provisions of section 3. Furthermore, there
is no conflict between this
interpretation and the national
legislation referred to above, more particularly the provisions of
section 73(3) of the Municipal
Structures Act. Therefore, rules (of a
procedural nature in the sense referred to above) having a
legislative character are subject
to the provisions of section 7 of
the Rationalisation of Local Government Affairs Act and will, after
its publication, also enjoy
the status of a by-law.
[24] There is also
another important consideration to be taken into account with regard
to this interpretation. In terms of section
152(1) of the
Constitution one of the objects of local government is to provide
democratic and accountable government for local
communities. Section
72(3) of the Municipal Structures Act provides that the object of a
ward committee is to enhance participatory
democracy in local
government. Section 17 of the Municipal Systems Act also provides for
mechanisms, processes and procedures for
community participation.
Public participation is an important element of democracy. In Doctors
for Life International v Speaker
of the National Assembly
[2006] ZACC 11
;
2006 (6) SA
416
(CC) par 115 Ngcobo J said the following in this regard:
“(Participation
by the public on a continuous basis provides vitality to the
functioning of representative democracy. It encourages
citizens of
the country to be actively involved in public affairs, identify
themselves with the institution of government and become
familiar
with the laws as they are made. ”
Having regard to
these considerations, the interpretation suggested above also takes
into account core values of our society, such
as regular elections
and a multiparty system of democratic government. It is therefore to
be expected that the procedure to implement
these values should be
duly promulgated.
[25] This brings me
back to the contents of the Ward Committees Document. It is important
to point out the following: Paragraph
5 indicates that “Council
has to regulate the elections”. Paragraph 6 specifically refers
the welectoral procedure
that will regulate the elections of ward
committees”. It also refers to the “electoral process”
which includes
an identification process, selection process and a
ward meeting. Paragraph 7 deals with “procedures for ward
committees”
in terms whereof certain regulatory procedures are
to be applied with regard to, inter alia, term of office, vacation of
office
and filling of vacancies. It therefore appears that a
substantial part of this document relates to procedure, in the form
of rules
or directives, having a legislative character, to implement
the right to elect members of a ward committee. It comes as no
surprise
that the deponent on behalf of the respondents also refers
to this document in paragraph 22 of the answering affidavit as an
“Electoral
Procedure to regulate the elections of ward
committees”
[26] Having regard
to all these considerations, it appears that the Ward Committees
Document is a “procedure” as referred
in the definition
of a by-law in section 1 of the Rationalisation of Local Government
Affairs Act. It should therefore follow that
the provisions of
section 7 also apply to this document. There is no evidence that the
procedure stipulated in section 7 of the
Rationalisation of Local
Government Affairs Act was followed. To the contrary, it appears to
be common cause that this document
was never promulgated. It
therefore never came into operation as determined by section 7(6) of
the said Act. The implications are
obvious: the ward committee
elections for January/February 2012 and also July 2012 were conducted
in the absence of any valid regulatory
framework and should therefore
be declared unconstitutional and invalid.
[27] If I have
misdirected myself in holding that the Ward Committees Document is
subject to the provisions of section 7 of the
Rationalisation of
Local Government Affairs Act, there is another reason why the ward
committee elections should be declared invalid.
As already pointed
out above, section 73(3) of the Municipal Structures Act provides
that a municipality must make rules regulating
the procedure to elect
members of a ward committee. This provision appears to be peremptory.
The words “rules regulating”
are indicative of an
intention to invest these rules with legislative powers. It is a
requirement of both the common-law and statute
that subordinate
legislation, even if it has been validly enacted, is not of binding
force and effect in law until it has been
promulgated. The purpose of
promulgation is to notify those who will be, or may be, affected by
the legislative enactment in question
of its import and effect
(National Police Service Union v Minister of Safety and Security
[2000] ZASCA 106
;
2000
(3) SA 371
(SCA) at 378D-E).
[28] The common-law
position appears from the following passage in Byers v Chinn and
Another
1928 AD 322
at 327:
“The learned
Judge-President laid down the general proposition that: ‘Before
a law or any regulation or by-law having
the force of law can become
operative, it must be duly promulgated. ’ The rule is supported
by numerous decisions of the
Courts of South Africa besides those
quoted by the Local Division and is founded on the common-law. ”
In my view the
common-law position equally applies to rules which are intended to
have the force of law as indicated by the provisions
of section 73(3)
of the Municipal Structures Act.
[29] The statutory
requirement for promulgation is to be found in section 16 of the
Interpretation Act, 33 of 1957 which provides:
“When any
by-law, regulation, rule or order is authorised by any law to be made
by the President or a Minister or by the Premier
of a province or a
member of the Executive Council of a province or by any local
authority, public body or person, with the approval
of the President
or a Minister, or of the Premier of a province or a member of the
Executive Council of a province, such by-law,
regulation, rule or
order shall, subject to the provisions relative to the force and
effect thereof in any law, be published in
the Gazette.” {My
emphasis.)
[30] The following
should be pointed out with regard to this provision: First, the
qualification “with the approval of’
apparently only
applies when such approval, as a procedural requirement, is
stipulated by the enabling Act, or other [aw, but is
probably not
intended to be a general qualification for publication. In this
regard one should remember that when municipal councils
make
legislation, they do so in accordance with original legislative
powers conferred on them by the Constitution (section 156).
Second,
the further qualification “subject to the provisions
..."appears to allow for certain exceptions. In my view
these
exceptions are not applicable to the present matter, notwithstanding
the provisions of section 21 and 21A of the Municipal
Systems Act.
Notification and the displaying of documents referred to in those
sections apply, in my view, to documents other than
those containing
rules which are intended to have legislative power. Or, to put it
differently, rules which are intended to have
legislative power
should also be promulgated. Therefore, as far as the common-law and
section 16 of the Interpretation Act are
concerned, the Ward
Committees Document, which contains rules of a legislative nature,
should have been published in the Provincial
Gazette. The failure to
comply with these common-law and statutory directives also render the
said document of no force and effect.
INTERDICTORY
RELIEF
[31] As indicated in
paragraph 2 above, the applicants also apply for an order that the
first respondent be ordered to take the
necessary steps for the
adoption and promulgation of a (new) Ward Committees By-law and to,
without delay, arrange for a ward committees
election to be
conducted. The nature of this relief appears to be that of a final
interdict, in the form of a mandamus.
[32] In the present
context this would mean an order to compel the performance of a
specific statutory duty and to remedy the effects
of an invalid
election. Such an order is usually granted when a statutory body has
failed or refused to fulfil a statutory obligation
or to perform a
constitutional duty (cf. Wildlife Society of Southern Africa &
Others v Minister of Environmental Affairs and
Tourism of the RSA &
Others
1996
(9) BCLR 1221
(Tk)
and Fullimput 221 v Minister of Safety and Security & Others
2006
(10) BCLR 1202
(T)). It has not been alleged in the papers before me
that the first respondent has refused or failed to comply with its
statutory
duty as stipulated in section 73(3) of the Municipal
Structures Act. It is common cause that the officials of the
municipality
initially laboured under the misapprehension that the
elections would be regulated by the Ward Committees By-law which was
adopted
on 30 June 2011, but only promulgated on 1 February 2012.
When the Municipal Manager realised this was a mistake, he released a
media statement indicating that the elections would be conducted in
terms of the Ward Committees Document (another mistake) which
was
already adopted during 2001. Notwithstanding all these mistakes, the
Municipality still attempted to fulfil its statutory obligations.
This is an important consideration to take into account in deciding
whether the applicants are entitled to a mandamus. In my view
they
are not, as it has not been demonstrated that a right (with regard to
compliance of a statutory duty) has already been infringed
or that it
will in future be infringed. The first respondent should be afforded
the opportunity to first take a decision whether
to further comply
with its statutory obligations and constitutional duty, or not.
[33] It was argued
on behalf of the respondents that if an order declaring the elections
invalid were to be granted, then an order
suspending the effect
thereof should also be considered, leaving the elections of 2012
intact until the next round of elections
which will take place
between 2015 and 2016. Orders usually are effective from the date
upon which they are made. However, in terms
of section 172(1 )(b)(ii)
of
the Constitution a
Court may, when deciding a constitutional matter, grant an order
suspending the declaration of invalidity. Generally
speaking, a Court
must take into account the interests of the successful litigant on
the one hand and, on the other, the potential
disruption of the
administration that would be caused by a lacuna (cf. J & Another
v Director-General, Department of Home Affairs
& Others
[2003] ZACC 3
;
2003 (5)
SA 621
(CC) at 630B). In this regard one should consider whether an
immediate order of invalidity will create a lacuna that would cause
uncertainty, administrative confusion or potential hardship. In this
regard one should also take into account whether the remaining
powers
of the first respondent will continue to give adequate effect to the
purpose of the legislation. In this regard, section
17 of the
Municipal Systems Act makes provision for mechanisms, processes and
procedures to facilitate community participation.
I should also take
into account that, without properly constituted ward committees the
first respondent will still be able to function
effectively and there
is no evidence to suggest that a temporary lacuna will create
uncertainty, administrative confusion or potential
hardship. For
these reasons I am not convinced that an order for suspension should
be granted.
COSTS
[34] The last issue
to be considered relates to the question of costs. The applicants are
seeking a punitive costs order against
the first four respondents. It
was argued that the way in which the ward committee elections were
conducted is so far removed from
what can be expected from a public
institution, that a special order for costs is warranted. I do not
agree with this submission.
In AA Alloy Foundry (Ptv) Ltd v Titaco
Projects (Pty) Ltd
2000 (1) SA 639
(SCA) at 648E it was pointed out
that, in considering a punitive costs order, a Court should warn
itself against using hindsight
in assessing the conduct of a party.
In the present matter there is evidence of bureaucratic bungling and
an opportunistic attempt
to rectify it, but not to the extent that a
punitive costs order is justified. It will also be unnecessary to
order the second,
third or fourth respondents to pay the costs of
this application. Therefore, in my view, the usual order should
follow against
the first respondent only.
[35] In the result I
make the following order:
1. The By-law on
Public Participation: Ward Committees, Petitions, Public Meetings and
Hearings of the City of Tshwane Metropolitan
Municipality as
published on 1 February 2012 in the Extraordinary Provincial Gazette
No. 21 is declared invalid and void due to
non-compliance with
section 160(4) of the Constitution, 108 of 1996, read with section
12(3)(a) and 13(a) of the Municipal Systems
Act, 32 of 2000 and also
read with section 7(1) and (2) of the Rationalisation of Local
Governments Affairs Act, 10 of 1998 (Gauteng
Province);
2. The Ward
Committee Elections for the City of Tshwane Metropolitan
Municipality, conducted during 2012, are all declared
unconstitutional
and invalid;
3. The first
respondent is ordered to pay the costs of the application.
DS FORIE
JUDGE OF THE HIGH
COURT
Date: 27 March
2014