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[2010] ZAFSHC 18
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Botha v Matjhabeng Municipality (A78/2009) [2010] ZAFSHC 18 (18 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A78/2009
In the case between:
PETRUS FRANCOIS
BOTHA
Applicant
and
MATJHABENG
MUNICIPALITY
Respondent
CORAM:
VAN ZYL, J
et
LEKALE, AJ
JUDGMENT:
LEKALE, AJ
_______________________________________________________
HEARD ON:
1 FEBRUARY 2010
_______________________________________________________
DELIVERED ON:
18
FEBRUARY 2010
_______________________________________________________
INTRODUCTION
[1] This is, in the main,
an application for an order reviewing and setting aside a decision of
the respondent taken on the 20
th
January 2009 at a special council meeting effectively:
1.1 allowing and
entertaining a counter request to a seconded request for a secret
ballot on a motion proposed by the applicant
calling for the removal
of the executive mayor of the respondent from office;
1.2 subjecting to a vote
a seconded request for a secret ballot on a motion for the removal of
the executive mayor of the respondent
from office.
[2] In the alternative to
an order for judicial review the applicant seeks an order declaring,
in terms of the respondent’s
applicable Standing Rules and
Orders, that a seconded motion for a secret ballot cannot be
countered or defeated by a motion for
voting by way of show of hands.
[3] Although a notice of
intention to oppose the application was filed on behalf of the
respondent, the application is effectively
unopposed insofar as the
respondent’s attorney, Mr Moroka appeared in chambers before
the hearing of the application and
announced that, after consultation
with senior counsel, the respondent had decided to allow the
application to proceed without
appearance on its part. In this
regard the court wishes to express its appreciation and thanks to Mr
Moroka for his professionalism.
[4] A closer perusal of
the Notice of Motion reveals that no specific consequential relief is
sought in the event of the application
being granted. Realising the
aforegoing the court enquired from Mr Claasen, appearing for the
applicant and in the presence of
Mr Moroka, after what an appropriate
relief would be in such an eventuality. It was, thereupon, opined
for the applicant, with
Mr Moroka’s approval, that in such
circumstances it would be appropriate for the applicant to re-submit
the motion in a proper
form and in accordance with applicable
Standing Rules and Orders.
BACKGROUND
[5] The applicant, a
member of the respondent’s council, sponsored a motion for the
removal of the respondent’s Executive
Mayor (“Mayor”)
from office on various grounds in terms of a notice submitted on the
30th September 2008. The motion
was duly seconded by 3 (three) other
councillors. In the affidavit submitted in support of the
application, the applicant avers
that he requested a secret ballot in
respect of the relevant motion and that request was duly seconded.
Save for an announcement
in a letter to the respondent’s
Speaker (“Speaker”) to the effect that the applicant
intended to request a secret
ballot in terms of the Standing Rules
and Orders, the aforegoing is neither apparent
ex
facie
the notice of motion nor is it captured verbatim in the minutes
dispatched by the respondent as part of the record in terms of
Rule
53 (1) (b) of the Uniform Rules of Court (“the Rules”).
[6] On the 20
th
January 2009 a special meeting was held by the council of the
respondent to deal with the motion in question. It is clear from
the
minutes that it was generally accepted by the meeting that the
applicant, in fact, made such a duly seconded request for a
secret
ballot in respect of the said motion.
[7] At the meeting the
applicant duly moved for the removal of the mayor in accordance with
the said. The house was, however, divided
on the issue and the
motion had to be taken to a vote in accordance with the applicant’s
request. The Speaker, however,
allowed and entertained a counter
request for voting on the motion to take place by show of hands in
line with the standard procedure
applicable to ordinary meetings
after soliciting counsel from the respondent’s in-house legal
advisor.
[8] The issue of voting
on the motion was, thereafter, put to a vote by way of show of hands
on the basis that there were two opposing
requests with regard to how
voting was to take place before the council. Voting on the motion
itself, eventually, took place by
way of show of hands after the
request for a secret ballot had been defeated.
[9] The motion for the
removal of the Mayor was defeated after the applicant and all other
councillors from the opposition had refrained
from participating in
the vote on the basis that the process was flawed and illegal.
[10] The applicant,
eventually, launched the present proceedings after the respondent had
refused to rescind the relevant decision
when it was pointed out to
it by the applicant’s attorneys that the procedure followed and
the advice given to the Speaker
by the legal advisor were contrary to
the provisions of Rule 83 read with Rule 85 of the respondent’s
valid and applicable
Standing Rules and Orders.
[11] The respondent’s
position, as reflected in its written response to the applicant’s
lawyers dated the 16th February
2009, is that Rule 85 of the
respondent’s Standing Rules and Orders was amended on the 29th
August 2006 to provide that a
request for a secret ballot in terms of
Rule 83 gets carried if it is seconded by the majority of councillors
present at the meeting
and that the applicant’s request was
neither seconded nor supported by the majority of councillors present
at the relevant
meeting.
[12] A notice of
intention to oppose the application was delivered and the record,
inclusive of the reasons for the relevant decision
was, eventually,
furnished as required by Rule 53(1) (b) of the Rules. There is,
however, effectivly no answer to the applicant’s
averments and
contentions insofar as no answering affidavit was filed by and for
the respondent.
ISSUE TO BE
DETERMINED
[13] The salient
questions to be decided are, effectively, the following:
13.1 what were the
applicable Standing Rules and Orders as at the date of the relevant
decision?
13.2 whether or not the
relevant decision is consonant and in accordance with applicable
Standing Rules and Orders.
APPLICANT’S
CONTENTIONS
[14] The applicant
effectively contends,
inter
alia
,
that:
14.1 the applicable
Standing Rules and Orders are those accepted by the respondent’s
council on the 19
th
December 2000 because they were,
inter
alia,
duly published in the Provincial Gazette on the 1
st
December 2000 as required by the Constitution of the Republic of
South Africa of 1996 (“the Constitution”) and prescribed
by the Local Government: Municipal Systems Act, no. 32 of 2000 (“the
Systems Act”);
14.2 the purported
Standing Rules and Orders of 2006 were, in fact, of no force and
effect as at the relevant date because they
were never published in
the official Provincial Gazette so as to take effect as provided by
the Constitution;
14.3 The relevant
decision of the Speaker is an administrative action as defined by the
Promotion of Administrative Justice Act,
no. 3 of 2000 (“PAJA”);
14.4 the decision in
question is not in accordance with applicable Standing Rules and
Orders;
14.5 the decision has the
effect of providing for that which the Standing Rules and Orders do
not provide for;
14.6 the decision is
procedurally unfair;
14.7 the decision is
materially influenced by an error in the interpretation of the
relevant Standing Rules and Orders;
14.8 the decision is in
conflict with the Constitution.
APPLICABLE LAW
[15] As correctly
submitted by Mr Claasen, section 162(1) of the Constitution provides
that,
“
(1) A municipal by-law may
be enforced only after it has been published in the official gazette
of the relevant province;
(2) A provincial official gazette
must publish a municipal by-law upon request by the municipality;
(3) Municipal by-laws must be
accessible to the public.”
[16] The Systems Act, as
correctly contended for the applicant, provides as follows with
regard to by-laws:
“
12(3) No by-law may be
passed by a municipal council unless –
…
the proposed by-law has been
published for public comment in a manner that allows the public an
opportunity to make representations
with regard to the proposed
by-law.
A by-law passed by a municipal
council –
(a) must be published promptly in
the Provincial Gazette, and, when feasible, also in a local newspaper
or in any other particular
manner to bring the contents of the by-law
to the attention of the local community; and
(b) takes effect once published or
on a future date determined in or in terms of the by- law.”
[17] Section 14 of the
Systems Act, further, gives the relevant Minister and Member of
Executive Committee (“MEC”)
the power to make or amend
standard draft Rules and Orders or by-laws after consultation with
each other or at the request of organised
local government nationally
or provincially by notice in the Gazette or provincial gazette.
[18] It is clear from the
Constitution and legislation that publication by notice in the
Gazette is a
sine
qua non
for a by-law to take effect.
[19] The 2000 Standing
Rules and Orders provide as follows with regard to voting in the
respondent’s council and committee
meetings:
“
83(1) Voting in a council or
committee meeting is by show of hands, unless a councillor requests a
secret ballot on any question.
When such a request is received the
provisions of Rule 85 applies.”
“
85(1) A request in terms of
Rule 83 that a secret ballot be held in respect of any motion or
proposal, is carried if it is seconded.”
APPLICATION AND
EFFECT OF THE LAW
[20] The applicant
contends that the relevant actions of the respondent, through its
Speaker, constitute an administrative action
and that the relevant
decision falls to be reviewed and set aside in terms of section 6 of
PAJA.
[21] In the aforegoing
regard, Mr Claasen cites and apparently relies on the decision in
SKWEIT
v SPEAKER OF THE GREATER TAUNG LOCAL MUNICIPALITY
(case number 2317/07) (2008 ZANWHC52) where the decision to remove a
councillor as a member of its executive committee by a municipal
council was, effectively, held to be an administrative action as
defined by PAJA.
[22] Section 1 of PAJA
defines an administrative action in relation to an organ of state
such as the respondent as,
“
Any decision taken, or any
failure to take a decision by –
an organ of state, when –
(i) exercising a power in terms of
the Constitution or a provincial constitution with a small c; or
(ii) exercising a public power or
performing a public function in terms of any legislation.
(b) …
which affects the rights of any
person adversely and has direct, external legal effect.”
[23] It follows from the
aforegoing that, for an impugned conduct to be reviewable in terms of
PAJA, it must constitute an administrative
action as defined by PAJA.
[24] The enquiry into
whether or not the conduct in question constitutes an administrative
action and is, as such, subject to PAJA
is twofold and involves, as a
starting point, the constitutional stage which is concerned with
whether or not the conduct involved
constitutes administrative action
within the meaning of section 33 of the Constitution. Only if that
question is decided in the
affirmative does the second stage of the
enquiry arise viz. the statutory leg which relates to whether or not
the conduct in question
amounts to an administrative action for the
purposes of PAJA and, as such, is reviewable in terms thereof.
(see the judgment of
Ngcobo
J in
Chirwa
v Transnet Limited & others
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC) @ paragraph
[139]
(Chirwa)).
[25] The focus in the
constitutional stage of the enquiry is on the relevant function
giving cause to the offending conduct and
not the functionary whose
conduct is in question.
(see
President
of the Republic of South Africa & others v South African Rugby
Football Union and others
2000
(1)
SA 1(CC)
@ paragraph [141] (SARFU)).
[26] The constitutional
stage of the enquiry is concerned with determining whether action
should be characterised as the implementation
of legislation and, as
such, an administrative action or as the formulation of policy which
does not constitute an administrative
action. It involves a series of
considerations including the source of the relevant power which was
exercised, its nature and subject
matter as well as whether it
involves the exercise of public power. In making the relevant
determination –
“
difficult boundaries may
have to be drawn in deciding what should and what should not be
characterised as administrative action
for the purposes of section
33. These will need to be drawn carefully in the light of the
provisions of the constitution and the
overall constitutional purpose
of an efficient, equitable and ethical public administrative. This
can best be done on a case by
case basis.”
(see
SARFU
decision paragraph [143] and
Marais
v Democratic Alliance 2002
(2) AIISA 424 (C) cited by the applicant).
[27] Once the impugned
conduct passes the constitutional qualification test it falls to be
subjected to the PAJA administrative
action test (statutory test)
which, in effect, involves the subjection of the impugned conduct to
a series of considerations aimed
at establishing whether or not it
meets the seven requirements prescribed by section 1 of PAJA for
qualifying as an administrative
action. Some of the requirements are,
in my view, part of the constitutional qualification test and, in
their case and where appropriate,
the relevant conduct may be
regarded as having passed muster for the purposes of PAJA. The extent
of the enquiry, in my view, depends
on the facts of each case.
[28] For the purposes of
the present matter those requirements are that the impugned conduct
should be (1) a decision as defined,
(2) made by an organ of state
(3) when exercising a public power or performing a public function
(4) in terms of any legislation
(5) which affects the rights of any
person adversely (6) and has direct external legal effect and (7)
does not fall under any of
the exclusions listed in the definition of
administrative action by PAJA.
(see
Grey’s
Marine Hout Bay (Pty) Ltd and others v Minister of Public Works and
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) referred to with approval by
Langa
CJ
in
Chirwa
at paragraph [181]).
[29] In casu I am not
satisfied that the conduct in question qualifies as an administrative
action for the purposes of the Constitution.
The aforegoing obtains
because:
29.1 in my view the
causes of the applicant’s grief are, in effect, the rulings
made by the Speaker, as the presiding chairperson,
in the course of
ensuring that the meeting was being conducted in accordance with the
Standing Rules and Orders of the respondent;
29.2 the source of the
Speaker’s powers to make such rulings is section 37(a) read
with section 37(f) of the Local Government:
Municipal Structures Act
(the Structures Act) which provides that the Speaker presides at
council meetings and obliges him to ensure
that meetings are
conducted in accordance with Standing Rules and Orders;
29.3 although the nature
of the relevant power and function involved is obviously statutory,
its subject matter viz. compliance
with Standing Rules and Orders
relating to voting at Council and Committee meetings, indicates that
the exercise of the same and
performance of the duty involved are
limited to council meetings and do not impact on the general public.
There is no apparent
need for it to be exercised in the public
interest. The power is confined to internal procedural affairs of the
respondent which
are applicable only to meetings and not to other
operations involving, inter alia, interaction with members of the
public. It is
as much a matter of internal procedures of a municipal
council as the election of its chairperson and executive committee by
a
municipal council is regarded as an internal matter by section 160
of the Constitution;
29.4 the relevant
decision evidently affects the rights of the applicant and other
councillors in their capacities as councillors
and not as members of
the public;
29.5 in my view the
Constitution and,
a
fortiori
,
PAJA are concerned with and applicable to situations where organs of
state or private persons engage with the public through the
exercise
of powers and performance of public functions by virtue of the
Constitution, legislation or any other empowering provisions.
They
are intended to protect members of the public in their capacities as
such and not functionaries as they interact with one
another in their
official capacities and in the course of performing their official
duties as such. As
Skweyiya
J
in
Chirwa
@ paragraph [47] observed:
“
The purpose of the
administrative justice provisions is to bring about procedural
fairness in dealings between the administration
and members of the
public.”
(see further the
Preamble
to
PAJA);
29.6 the primary function
of the respondent’s council at the relevant meeting was to
exercise its elective or decision - making
powers concerning the
exercise of its powers and functions as a municipality as provided
for by section 160 of the Constitution.
The exercise of the
administrative powers of the respondent are the domain of the
administration under the Municipal Manager as
the head while the
Executive Mayor exercises most of its executive powers as per Section
56 of Structures Act. The Speaker, as
the chairperson of the council,
is the head of the legislative side of the respondent and exercises
those executive powers of the
council as may have been delegated to
him. The relevant decision-making powers are provided for under
internal procedures by the
Constitution.
(see generally sections
37; 55 and 58 of Structures Act).
29.7 the relevant
decision was, as such, made in the context of an internal
decision-making process a kin to policy formulation
and is,
therefore, related thereto.
[30] Even if I am wrong
in the aforegoing finding with regard to the constitutional leg of
the enquiry, I am not satisfied that
the relevant conduct satisfies
the statutory test in terms of PAJA in that:
30.1 although the court
is prepared to accept, without further ado, that the impugned conduct
constitutes a decision for the purposes
of PAJA despite nagging
questions surrounding the administrative nature of the rulings in
question which appears not to be of public
administration nature, the
rulings clearly had no direct, external legal effect. In this regard
the following dictum of
Sachs
J
in
Minister
of Health and Ano. v New Clicks SA (Pty) Ltd and others
2006 (2) SA 311
@ paragraph [583] is apposite:
“
I believe that S37 of the
Constitution of the
Republic of South Africa, 1996 and
PAJA are
together designed to control the
exercise of
public power in a special and
focused manner,
with the object of protecting
individuals or
small groups in their dealings with
the public
administration from unfair
processes or
unreasonable decisions. The
function should
not be diffused. It involves the
micro
management of public power, and is
all the
more effective because of its
intense and
coherent focus.”
30.2 the rulings are,
however, closely related to the
exercise of a
constitutional power insofar as they were made in the context of a
decision – making process relating to exercise
of powers and
performance of functions of the municipality according to S 160 of
the Constitution and are, thus, in my view, decisions
for the
purposes of PAJA;
30.3 the requirement for
the decision to have direct external legal effect in the definition
of
“administrative
action”
buttresses the view expressed earlier that PAJA is intended to
protect members of the public in their capacities as such and in
their interactions with functionaries who exercise constitutional or
public powers and whose bargaining positions are, thereby,
enhanced
and strengthened vis-à-vis such members of the public. It is
not intended to protect functionaries as they interact
with one
another as equals in their official capacities as such and as the
representative or constituent part of the relevant authority.
In casu
one part of the equation is missing viz. the public and, as such,
there was no transaction within the contemplation of
PAJA. The
respondent, for the purposes of PAJA, virtually dealt with itself at
the relevant time;
30.4 the power exercised
and the function performed by the Speaker at the relevant time can,
in my judgement, hardly be regarded
as being related to the exercise
of public power or performance of public duty. In my view
“public
power”
is
a power conferred on a functionary, be it an organ of state or a
private person, by an empowering provision for the benefit of
the
public and the exercise or nonfeasance in respect of which affects
the members of the public in their individual or collective
capacities as such. The aforegoing accords, in my opinion, with the
following view by De Smith, Woolf and Jowell in
JUDICIAL
REVIEW OF ADMINISTRATIVE ACTION
(1995) 5
th
Edition at 167 and quoted with approval by Conradie JA, with regard
to
Promotion of Access to Information Act, no 2 of 2000
in
MITTALSTEEL
SOUTH AFRICA LTD (FORMERLY ISCOR LTD) v HLATSHWAYO
2007 (1) SA 66
(SCA) at page 75, paragraph I:
“
A body is performing a
''public function'' when it seeks to achieve some collective benefit
for the public or a section of the public
and is accepted by the
public or that section of the public as having authority to do so.
Bodies therefore exercise public functions
when they intervene or
participate in social or economic affairs in the public interest.”
See further
CHIRWA
(supra)
at paragraph [138]).
30.5 in my judgement, the
impact of the relevant decision is mainly, if not wholly, limited to
the councillors, in their collective
capacity as such, in the same
way as the decision not to appoint the applicant to a senior position
within the South African Police
Service (SAPS) was found to have been
felt mainly by the relevant applicant in
GCABA
v MINISTER FOR SAFETY AND SECURITY AND OTHERS
case number CCT64/08
[2009] ZACC 26.
[31] The decision in
SKWEIT
v SPEAKER OF THE GREATER TAUNG LOCAL MUNICIPALITY
(
supra)
is, in my respectful view, no authority for the proposition that
decisions having no direct external legal effect and concerned
only
with internal administrative or elective affairs of municipal
councils, as opposed to public administration, constitute
administrative
actions for purposes of PAJA insofar as:
31.1 the court therein
did not specifically consider the question whether or not the removal
of a councillor from its executive
committee by a municipal council
constitutes an administrative action for the purposes of PAJA. The
court, with respect, appears
to have simply accepted that as a
fait
accompli
after finding that the respondent was an organ of state and that the
Speaker was an administrator;
31.2 the court in that
matter, further, seems, with respect, not to have enquired after
whether or not the relevant decision was,
in fact, a
“decision”
in terms of PAJA and whether or not the Speaker exercised a public
power when the decision was made but to have, instead, accepted
without further ado that if the speaker is entitled to exercise
functions delegated to him or her by the council he or she was,
in
fact, performing such functions and
ipso
facto
a public function when the applicant was removed from the committee.
The learnt Judge, furthermore, appears, with due respect,
not to have
considered whether or not the decision in question had a
“direct,
external legal effect”
and did not fall under the specific exclusions as required by PAJA
for it to constitute an administrative action.
[32] PAJA is, therefore,
not applicable in this matter and the issue falls to be decided in
terms of the court’s common law
powers of judicial review
insofar as the applicant,
inter
alia
,
effectively contends that the respondent acted outside the provisions
of applicable Standing Rules and Orders in making the impugned
decision.
FINDINGS
[33] It is clear from
applicable law and the uncontroverted version of the applicant that:
33.1 the 2006 Standing
Rules and Orders were of no force and effect as at the date of the
relevant rulings insofar as they had not
been published in the
provincial gazette as at the relevant date. In this regard the court
was unable to find anything in the
available minutes of the
respondent to show that the relevant by-law was ever returned to the
respondent at any stage with proof
that it had been published;
33.2 the applicable and
effective Standing Rules and Orders as at 20
th
January 2009 were those published on the 1
st
December 2000. In this regard it is worth noting that even the
respondent’s internal legal advisor referred to and dealt
with
these Standing Rules and Orders when he advised the speaker and never
referred to the 2006 ones;
33.3 in terms of the said
applicable Standing Rules and Orders, a request for a secret ballot
in respect of any question gets carried
or effected once it is
seconded;
33.4 the applicant’s
request for a secret ballot was seconded;
33.5 the relevant
Standing Rules and Orders do not authorise the respondent to allow
and entertain a counter motion or request to
the contrary once the
request for a secret ballot has been seconded;
33.6 the respondent,
therefore, acted outside the applicable by-law when it, through its
Speaker, allowed and entertained a counter
request;
33.7 in the same vein,
the respondent acted
ultra
vires
the relevant Standing Rules and Orders when it subjected the
applicant’s seconded request for a secret ballot to a vote;
33.8 the relevant
decision falls to be set aside on these grounds alone;
33.9 everything that
followed after the irregular step was taken is, therefore, a nullity
insofar as it was, further, not condoned
by the applicant.
[34] The applicant relies
on a number of grounds in support of the application. The court is,
however, of the view that it is not
necessary to deal with each of
those grounds in the light of the above findings.
RELIEF
[35] Mr Claasen proposed
that in the event of the relevant decision being set aside the
appropriate further relief would be for
the applicant to be allowed
to re-submit the motion in accordance with applicable rules and
orders. The court finds no problem
with this proposal.
COSTS
[36] There is nothing
before the court to warrant a departure from the general rule with
regard to costs and no request for such
a departure is before the
court.
ORDER
[37] In the premises the
decision of the 20
th
January 2009 by the respondent allowing and entertaining a request
countering the applicant’s request for a secret ballot
and
subjecting the said motion or request by the applicant to a vote is
hereby set aside.
[38] The respondent shall
allow, accept and entertain a re-submission of the relevant motion by
the applicant, if he is so advised,
in accordance with the Standing
Rules and Orders published on the 1
st
December 2000.
[39] The respondent is
directed to pay the costs of the application.
_______________
L. J. LEKALE, AJ
I agree.
_____________
C. VAN ZYL, J
On
behalf of applicant: Adv. J Y Claasen SC
Instructed
by
Naudes
BLOEMFONTEIN
On
behalf of respondent: No Appearance
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
/em