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[2013] ZAGPPHC 93
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Democratic Alliance and Others v Mosiane-Segotso and Others (16550/13) [2013] ZAGPPHC 93 (8 April 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Date:
8 April 2013
Case
Number: 16550/13
In
the matter between:
THE
DEMOCRATIC ALLIANCE
…...............................................................
First
Applicant
J
C LANDSBERG
….......................................................................................
Second
Applicant
PROF
A L
COMBRINK
.....................................................................................
Third
Applicant
and
B
E
MOSIANE-SEGOTSO
….........................................................................
First
Respondent
X
D
KHAM
........................................................................................................
Second
Respondent
DNS
TSAGAE
..................................................................................................
Third
Respondent
M
D
LEGOETE
.................................................................................................
Fourth
Respondent
H
C
STOLZ
........................................................................................................
Fifth
Respondent
TLOKWE
CITY
COUNCIL
................................................................................
Sixth
Respondent
B
G MOUMAKWE N
O
.....................................................................................
Seventh
Respondent
A
J
MAPHETHLE
...............................................................................................
Eight
Respondent
JUDGMENT
A B ROSSOUW A J
[1]
This matter came before me on 25 March 2013 by way of urgency. I
delivered judgment on 29 March 2013, without giving full reasons.
What follows, are my full reasons:
[2]
At the outset I want to express my gratitude towards Mr Van der Merwe
SC and Mr Botes for their valuable heads of argument,
which have been
of great assistance.
[3]
This is an urgent application in terms of which the applicants seek
an interim interdict that Prof Combrink (the third applicant)
be
reinstated as the executive mayor of the Tlokwe City Council (the
sixth respondent) (‘the Council’) pending the
outcome of
an application under case number 12107/13 in terms whereof the
validity of the election of Mr Maphetle (the eighth respondent)
on 26
February 2013 as the executive mayor of the City Council, is
challenged. I shall henceforth refer to these applications as
the
urgent application and the main application respectively.
[4]
The urgent application was met with a counter application in terms of
which Mr Maphethle sought an order declaring the election
of Prof
Combrink to the office of executive mayor on 22 November 2012, as
invalid and requested it to be set aside.
[5]
The relevant facts underlying the aforementioned applications can be
summarised thus:
[6]
The Council is a municipal council as envisaged in Chapter 7 of the
Constitution of the Republic of South Africa, 1996 (‘the
Constitution’).
[7]
In order to regulate its business and proceedings as envisaged in s
160 (6) (b) of the Constitution, the Council has published
the Rules
of Order (‘Rules’) of the municipality in terms of s 162
of the Constitution, which rules were accepted as
by-laws in terms of
s 156 of the Constitution and s 12 of the Local Government Municipal
Systems Act 32 of 2000 (‘the Systems
Act’).
[8]
The Council consists of 52 councillors: 30 councillors are
representatives of the African National Congress (‘ANC’),
19 councillors are representatives of the Democratic Alliance (the
first applicant), 2 councillors are representatives of the Freedom
Front Plus and 1 councillor represents the Congress of the People
(‘Cope’).
[9]
Mr Maphethle was the Council’s Executive Mayor up until 21
November 2012. He was elected by the ANC into office pursuant
to the
local government election that was conducted during May 2011.
[10]
On 14 September 2012, 2 councillors on behalf of the ANC submitted to
the Manager: Office of the Speaker, a motion with allocated
number
45/2012 (‘motion 45’), to remove Mr Maphethle as the
Council's executive mayor. This was done in terms of section
58 of
the Local Government: Municipal Structures Act 117 of 1998 (‘the
Act’).
[11]
The Council's 103rd ordinary meeting was held on 21 November 2012. At
this meeting Ms Mosiane-Segotso (the first respondent)
(‘the
Speaker') enquired from the two ANC councillors whether they were
proceeding with the motion and they answered in the
affirmative. The
Speaker allowed the councillors to debate the matter whereafter an
extensive debate ensued. The Speaker then ruled
that voting would
take place and explained the voting process. 37 of the councillors
indicated verbally that they were in favour
of the motion and 10
councillors indicated verbally that they opposed the motion. 1
councillor indicated verbally that he wanted
to abstain from the
voting process.
[12]
Mr Maphethle vacated the chair of executive mayor after the voting
was conducted. Thereafter the Acting Municipal Manager of
the Council
took the chair and commenced with the election process for a new
executive mayor. At this juncture 9 members of the
ANC indicated that
they did not want to be part of the process and left the meeting at
23:50. A tenth member left the meeting at
midnight.
[13]
The Speaker called for the nominations of the new Executive Mayor and
two nominations were handed over to the Speaker. Prof
Combrink of the
DA and Mr Tsagae (the third respondent) of the ANC were nominated.
Shortly after midnight, ie on 22 November 2012,
Mr Tsagae accepted
the nomination by signing the required form of written confirmation.
Prof Combrink, who was not present at the
meeting due to prior
arrangements, accepted the nomination by way of a short message
system (sms) at 00:09.
[14]
Ballot papers were handed out to the remaining 39 councillors present
to cast their secret vote for the new executive mayor.
The Speaker
announced the outcome of the election which was as follows: 20 votes
in favour of Prof Combrink and 19 votes in favour
of Mr Tsagae. The
council then resolved as follows:
‘
That
cognisance be taken that Cllr Mrs Prof A Combrink be (sic) was
elected as Executive Mayor of the Thlokwe City Council with
immediate
effect (2012-11-22).’
[15]
The next ordinary meeting of the City Council was scheduled for 3
December 2012.
[16]
The very same day, ie 22 November 2012 the Manager: Office of the
Speaker received a motion on behalf of the ANC for the removal
of
Prof Combrink as executive mayor. The motion was entered and numbered
as 49/2012 (‘motion 49’). The Speaker did
not include
motion 49 in the agenda for the Councils 104th meeting that was
scheduled for 3 December 2012, because it was not received
by the
Speaker’s office at least 10 working days prior to the next
meeting, as is required in terms of the Rules.
[17]
On 3 December 2012 and under the auspices of s 44.5 of the Rules the
Speaker allowed a debate regarding the legality of the
method of Prof
Combrink’s acceptance of her nomination. There was an objection
from the DA members alleging an abuse of s
44.5 of the Rules, which
objection was overruled by the Speaker. In terms of a compromise
proposal the acting municipal manager
was instructed by the Council
to obtain a legal opinion regarding the said method of acceptance.
The council then resolved as follows:
‘
That
the status quo with regard to councillor Prof Ms A L Combrink as the
Executive Mayor of the Tlokwe City Council be maintained
until a
Court of Law has ruled otherwise or Council has resolved otherwise.’
[18]
The 105th ordinary meeting was scheduled for 29 January 2013. The
Speaker prepared the agenda and put motion 49 for the removal
of Prof
Combrink as executive mayor on the agenda under the heading ‘New
motions and petitions’.
[19]
At the meeting of 29 January 2013 the aforesaid legal opinion was
made available and debated and it was resolved 'That cognisance
be
taken thereof' . At this meeting councillors Kham (second respondent)
and Tsagae (third respondent) who proposed motion 49 were
absent. The
Speaker initially took the view that the said motion had lapsed in
terms of the Rules of Order, but later ruled that
it be deferred to
the 106th ordinary meeting of 26 February 2013.
[20]
On 30 January 2013 two councillors, ie Mr Kham and Mr Stolz (the
fourth and fifth respondents), proposed and seconded a new
motion
with allocated number 51/2013 (‘motion 51’), for the
removal of Prof Combrink as mayor and submitted it to the
Speaker’s
office.
[21]
During the first half of February 2013 the Speaker prepared the
notice for the next ordinary meeting that was scheduled for
26
February 2013. The Speaker signed the aforesaid notice on 11 February
2013 and the following items appeared on the notice: ’[Item]
15. Motions or proposals deferred from previous meetings.’ and
’[Item] 16. New motions and petitions’. Motions
49 and 51
appeared on the agenda as well as the legal opinion that was dealt
with at the meeting of 29 January 2013.
[22]
This caused the DA (the first applicant), Mr Landsberg (the second
applicant), an elected councillor and caucus leader of the
DA in the
Council and Prof Combrink to write a letter through their attorneys
to the Speaker. This letter was received on behalf
of the office of
the Speaker on 22 February 2013. In this letter the Speaker was
requested to remove the item pertaining to the
legal opinion, which
was dealt with at the 105th ordinary meeting and motions 49 and 51
from the agenda. The penultimate paragraph
reads as follows:
‘
We
want your written undertaking not later than close of business today
that you will immediately remove those items from the agenda,
and not
to allow you to succumb to the demands of the ANC, by
misappropriating the [Rules], by failure whereof we will ask the
High
Court for appropriate relief on Monday, 25 February 2013.’
[23]
The Speaker replied in writing on the same date. She undertook to
remove the item relating to the legal opinion as well as
motion 49
from the agenda without addressing the applicants’ request in
respect of motion 51.
[24]
In a further letter to the Speaker dated 22 February 2013 the
applicants responded, inter alia, as follows:
‘
You
cannot cure the previous deficiencies, by now merely removing them,
and by saying that the last motion [motion 51] now becomes
"legitimate" because of the previous motions removed.'
[25]
On 25 February 2013 the applicants launched the main application
under case number 12107/13; that is the day before the Council
meeting. In the main application, a declaratory order is sought, the
prayers of which could be summarised thus:
1.
That the decision of the Speaker to place the item pertaining to the
legitimacy of the process of the election of Prof Combrink
on the
agenda for the 106th ordinary meeting is void and is to be set aside,
because the item was concluded at the 105th ordinary
meeting;
2.
That the Speaker’s deference of motion 49 to the 106th ordinary
meeting is void and to be set aside because motion 49 had
lapsed in
terms of s 19.1.4 of the Rules;
3.
That the decision of the Speaker to place motion 51 on the agenda for
the 106th ordinary meeting is void and is to be set aside,
for the
reason that the Speaker should have disallowed the acceptance of
motion 51 and/or not having motion 51 placed on the agenda
for the
106th ordinary meeting, since motion 51 was moved in contravention of
the following sections of the Rules: 2.3, 19.7 and
19.8 read with s
58 of the Structures Act.
[26]
The agenda for the 106th ordinary meeting was sent to all the
councillors, but some of the councillors were only given 4 days
notice of the meeting.
[27]
At the ordinary meeting of 26 February 2013 the Speaker conceded that
motion 49 should not have been included on the agenda
and it was
subsequently removed. The Speaker refused to remove motion 51, which
was included under the heading 'Motions’.
The Speaker's
attention was then directed to the provisions of s 20.1.2 (b) of the
Rules, which reads as follows:
‘
20.1.2
The speaker shall disallow a motion or proposal - in respect of which
-
(a)
(a)
a decision by a judicial or quasi-judicial body is pending.'
[28]
The Speaker was requested by a counsellor of the DA to interpret rule
20.1.2 (b) on a point of order. In this regard the Speaker
was
referred to rule 40.1 of the Rules, which reads as follows:
“
Any
member may request that the ruling of the Speaker or chairperson as
to the interpretation of the Rules of Order be recorded
in the
minutes and the Municipal Manager shall keep a register of such
rulings.
[29]
The Speaker refused to entertain the point of order as a point of
order in the absence of an existing court order.
[30]
All 52 councillors of the City Council were present at the meeting
and each one of the 52 councillors partook in the voting
of motion
51. The motion was carried with a majority vote as follows: 30 votes
for and 22 votes against the removal of Prof Combrink
as executive
mayor. Subsequently, Prof Combrink and Mr Mpathle were nominated as
the next executive mayor, which nominations were
properly accepted.
The result of the election was as follows: Number of votes cast: 52,
number of votes for Cllr Maphethle: 31
and number of votes for Prof
Combrink: 21. After the announcement of the results, Mr Mapethle took
the chair as the Councils newly
elected mayor.
[31]
On about 19 March 2013 the applicants launched this urgent
application under case number 13544/2013. The following relief is
sought:
'2.
That, pending the finalisation of the application under case number
12107/13:
2.1
the legal force and/or effect of the decision which was adopted by
the [Council] on Tuesday, 26 February 2013, by virtue of
[motion 51],
is suspended;
2.2
the Respondents are interdicted and/or prohibited from enforcing the
decision which was adopted by the [Council] on Tuesday,
26 February
2013, by virtue of [motion 51], in terms of which [Prof Combrink] was
removed from office as Executive Mayor; and
2.4
that [Prof Combrink] is reinstated as the [City Council’s]
Executive Mayor.’
[32]
Mr Maphethle launched a counter application against Prof Combrink.
The following final relief is sought in the counter application:
‘
1.
That it be declared that the election of [Prof Combrink] as Executive
Mayor of the [Council] on 21/22 November 2012 was invalid
and be set
aside.
2.
Costs only in the event of opposition.’
[33]
The real disputes between the parties are the following:
1.
Whether proper notice was given of the 106th ordinary meeting.
2.
Whether motion 51 was irregularly dealt with.
3.
The validity of the election of Prof Combrink.
[34]
I proceed to deal with these issues seriatim.
WHETHER
PROPER NOTICE WAS GIVEN OF THE 106th ORDINARY MEETING.
[35]
It is clear from the provisions of s 2 of the Rules read with s 160
(3) (c) of the Constitution and s 30 (2) of the Structures
Act that
an executive may or may be removed from office at an ordinary meeting
by a decision taken by Council by a majority of
the votes cast.
[36]
Section 58 of the Structures Act merely requires prior notice of a
meeting, without stipulating the period of notification.
It reads as
follows:
‘
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.’ (Own italics).
[37]
Section 2.3 of the Rules regulates the manner and the period of
notification of ordinary meetings as follows:
'Notice
of the time and place of every ordinary meeting including the
complete and final agenda shall be served on every councillor
at
least five working days before the meeting.’ (Own italics).
[38]
Mr Botes, who appeared for the applicants, argued that all the
councillors should have had 5 days prior notice of the ordinary
meeting, failing which the meeting was irregular. His argument was
based on the peremptory terms in which the rule is cast.
[39]
Legalistic debates as to whether a statutory provision is peremptory
or merely directory and whether exact, as opposed to substantial
compliance
is
required, only tells us about the outcome of the interpretation and,
as such, does not have any a priori significance. The correct
approach is a common sense approach by asking the question whether
there has been compliance with the provision. In deciding whether
there has been compliance, the object sought to be achieved by the
provision and the question whether the object has been achieved
are
of importance. The object sought to be achieved must be established
from the intention of the legislature ascertained from
the language,
scope and purpose of the enactment as a whole and the provision in
particular. (See Weenen Transitional Local Council
v Van Dyk
2002 (4)
SA 653
(SCA) at 659B to F, Ex parte Mothuloe (Law Society, Transvaal,
Intervening)
1996 (4) SA 1131
(T) at 1137H to 1138F and Maharaj and
others u Rampersad
1964
(4)
SA 638
(A) at 646C).
[40]
In order to seek the object sought to be achieved, I am of the view
that extensive interpretation and more in particular analogical
interpretation could be invoked in the present case, in other words
an interpretation based on a ‘for the same reason’
logic:
provisions applicable to an expressly mentioned instance can, ex
identitate rationis, be extended to other (similar) instances
which
are not expressly mentioned. (See L M du Plessis The Interpretation
of Statutes p 155 to 156).
[41]
The notification period mentioned in s 58 of the Structures Act must,
analogically interpreted, be a reasonable period: This
appears from
the provisions of s 160 (4) of the Constitution, which states that no
by-law may be passed by a municipal council
unless reasonable notice
has been given. This constitutional requirement is echoed in s 12 (3)
(a) of the Systems Act. The Rules
originate from the Constitution and
the System Act. Section 2 of the Rules makes no distinction between
meetings for the purpose
of passing by-laws and other meetings, such
as the removal of an executive mayor. If follows logically that the
legislator’s
intention could only have been that reasonable
notice must be given of all meetings. In the light hereof, the
notification period
mentioned in s 2.2 of the Rules can only be
construed as the Council’s embodiment of what a reasonable
period is.
[42]
The reasonableness of the actual notification period will, in my
view, depend on factors such as the subject matter of the
tabled
motion and the prejudice suffered, if any, because of the period of
notification.
[43]
In the present case, the subject matter of motion 51 was the
replacement of [Prof Combrink] as executive mayor on party political
grounds, which is something that, in my view, does not require an
extensive notification period. All 52 counsellors were present
and
voted at the meeting. In any event, no prejudice was alleged in the
applicants’ founding affidavit.
[44]
In the premises, I find that the object of the provision of s 2.1 of
the Rule has been achieved and, thus, that proper notice
was given of
the 106th meeting.
WHETHER
MOTION 51 WAS IRREGULARLY DEALT WITH.
[45]
A number of arguments were raised by Mr Botes as to why motion 51 was
irregularly dealt with. I shall deal with each of them.
[46]
The first argument was that the Speaker should have disallowed motion
51 to be tabled because s 20.1.2 (b) of the Rules disallows
a motion
in respect of which a decision by a judicial or quasi-judicial body
is pending.
[47]
Mr Botes argued that the word ‘decision’ should be given
a wide interpretation so as to include litigation and
that, because
of the pending (main) application, the motion could not have been
tabled.
[48]
Mr van der Merwe SC’s submission, in short, was that if it was
the lawgiver’s intention that the mere issue of
any judicial or
arbitration process or any application to be considered by a
quasi-judicial body, (which could take years to reach
finality, if
ever) would have been sufficient to stifle the works of the Council,
the provision would have clearly said so. I any
event, it is highly
unlikely that the lawgiver intended such an absurd result.
[49]
In the South African Concise Oxford Dictionary the word ‘decision’
is defined as ‘the action or process of
deciding’ and in
Herbert Porter & Co and another \/ Johannesburg Stock Exchange
1974 (4) SA 781
(WLD) at 794A to B Coetzee J said the following:
‘
In
Words and Phrases Legally Defined, vol 2 at p.33, s.v. “decision’,
the following extract from a judgement is given
which I think,
respectfully, is very apt: "The word ‘decision’
implies the exercise of judicial determination
as the final and
definitive result of examining a question.”’
[50]
In my view the use of the word ‘decision’ in the context
of s 20.1.2 (b) of the Rules denotes a prescribed or agreed
process
that has progressed to a point where one can honestly say that there
is a legal duty upon the decision-making body or person
to make a
decision.
[51]
When the 106th ordinary meeting was held, the main application was
still a babe in arms, far too young to be exposed to the
solids
contained in a decision.
[52]
I thus find that, under the circumstances, sec 20.1.2 (b) of the
Rules did not prevent motion 51 to be tabled.
[53]
The next argument was that the Speaker should have disallowed motion
51 on a number of grounds. This argument is based on the
alleged non-
compliance with the following sections of the Rules:
‘
19.1
Subject to the provisions of any other law -
19.1.1
19.1.2
19.1.1
notice of motion shall not be specified in the summons [agenda] for a
meeting unless it is received at least ten (10) working
days prior to
such a meeting;'
and
‘
19.1.4
a motion shall lapse if the member who submitted it or a member
assigned by him in writing, is not present at the meeting
when such
motion is being debated.' and
‘
19.8
No member or party may move a motion in terms of this section -
19.8.1
which is intended to rescind or amend a resolution passed by the
council within the preceding three months; or
19.8.2
which has the same purpose as a motion which was concluded within the
preceding three months’ (Own italics).
and
‘19.7 no member or party shall have more than one motion as
contemplated in
subsection
19.1.1 entered upon the agenda with the exception of a deferred
motion, . .
and
‘
20.1
The Speaker shall disallow a motion or proposal -
20.1.1
which is his opinion -
(a)
might lead to the discussion of a matter already dealt with in the
agenda or which has no bearing on the administration of or
conditions
in the municipality; . . . ’
[54]
Motion 51 was indeed received by the Office of the Speaker 10 days
prior to the 106th meeting, so there was proper compliance
with s
19.1.3.
[55]
From the transcription of the 106th meeting, it is clear that the
Council unanimously accepted that motion 49 had lapsed in
terms of s
19.1.4 of the Rules and that the Council unanimously sanctioned the
prior removal of motion 49 from the agenda by the
Speaker. With
motion 49 struck off the agenda, motion 51 was the only remaining
motion that dealt with the removal of Prof Combrink.
To hold that the
Speaker was not entitled to remove the deferred motion 49 from the
agenda beforehand as it resulted in there being
two motions on the
agenda that dealt with the same issue in contravention of s 19.8.2
would, in my view, be too technical an approach.
[56]
Furthermore, the sole purpose and intent of motion 51 was clearly not
to amend or rescind the resolution in terms of which
Prof Combrink
was accepted as the newly elected executive mayor, but to replace
Prof Combrink as executive mayor, which the majority
of members was
entitled to do in terms of the provisions of s 58 of the Structures
Act.
[57]
In any event, motion 51 was only moved on 26 February 2013, ie after
the three months had expired. I therefor find that the
provisions of
ss 19.7, 19.8.1 and 19.8.2 of the Rules were not violated.
[58]
The alleged conclusion of the issue pertaining to the legitimacy of
the election of Prof Combrink at the 105th ordinary meeting
is, in my
view, a separate issue that has no bearing on the regularity of the
submission, tabling and moving of motion 51. It plays
no role in this
application. In any event, the said item was removed from the agenda
of the 106th meeting at the applicant’s
request.
THE
VALIDITY OF THE ELECTION OF PROF COMBRINK
[59]
The procedure to be followed when electing an executive mayor is set
out in the provisions of section 55 of the Structures
Act. Subsection
(3) of s 55 of the Structures Act stipulates that the procedure set
out in Schedule 3 to
the
Structures Act applies to the election of an executive Mayor. Section
3 (3) of Schedule 3 reads as follows:
‘
A
person who is nominated must indicate acceptance of the nomination by
signing either the nomination form or any other form of
written
confirmation.’
[60]
The verb ‘signing" prescribes the manner of acceptance of
the nomination.
[61]
The clear purpose of this provision is to create the best possible
proof of the acceptance of a nomination for obvious reasons,
namely
to avoid any disputes that could arise as to whether a nominee was
indeed available and willing to accept the demanding
and weighty
responsibilities attached to and associtated with the position of an
execute mayor. An sms message without an advanced
electronic
signature as provided for in
s 13
(1) of the
Electronic
Communications and Transactions Act 25 of 2002
, is no such proof. In
any event, the only inference that could be drawn from an sms message
is that a particular message has been
sent from a certain phone.
Although it would be reasonable to infer that the sender is also the
author of the message, it certainly
is no clear proof thereof. Thus,
I find that the acceptance of the nomination by sms falls woefully
short of the purpose of the
provision.
[62]
I therefore find that Prof Combrink’s acceptance of her
nomination was invalid.
[63]
The sixth, seventh and eights respondents applied in terms of Uniform
rule 32
(2) for the striking out of certain irrelevant, scandalous
and vexatious allegations contained in the applicant’s founding
and replying affidavits in the urgent application and certain
allegations contained in the applicants’ founding affidavit
in
the main application. Even though the submissions made by Mr van der
Men/ve SC in this regard were not without merit, I am not
persuaded
that the said allegations, insofar as the urgent application is
concerned, have prejudiced the sixth, seventh and eighth
respondents
in the conduct of their defence or have been prejudicial to their
interests. The allegations contained in the urgent
application have
been properly answered, and in the event of the main application
proceeding, the said respondents’ option
to invoke the
provisions of Uniform ru!e 32 (2) is still open. The allegations
complained of in the urgent application mainly consist
of
uncalled-for and/or irrelevant opinions, inferences and remarks, all
of which I have for purposes of this judgment disregarded.
[64]
In the light of my judgment I find it unnecessary to deal with the
other issues raised by the respondents.
[65]
In the result, I make the following order:
1.
The application is dismissed with costs, including costs of two
counsel.
2.
The sixth, seventh and eight respondents’ application in terms
of Uniform
rule 32
(2) is dismissed.
3.
The counter application is granted with costs, including costs of two
counsel.
4.
It is declared that the election of the third respondent (in the
counter application) as the executive mayor of the Tlokwe City
Council (ninth respondent in the counter application) on 21/22
November 2012 was invalid and is set aside.
A
B ROSSOUW A J
DATE:
08/04/2013