Democratic Alliance v African National Congress and Others (8590/02) [2002] ZAWCHC 65 (21 November 2002)

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[2002] ZAWCHC 65
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Democratic Alliance v African National Congress and Others (8590/02) [2002] ZAWCHC 65; 2003 (1) BCLR 25 (C) (21 November 2002)

IN THE HIGH COURT OF
SOUTH AFRICA
REPORTABLE
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
CASE NO. 8590/02
In the matter
between:
THE
DEMOCRATIC ALLIANCE
Applicant
and
THE
AFRICAN NATIONAL CONGRESS
First Respondent
THE NEW
NATIONAL PARTY
Second Respondent
THE CITY
MANAGER, CITY OF CAPE TOWN N.O.
Third Respondent
THE
MUNICIPAL COUNCIL, CITY OF CAPE TOWN N.O.
Fourth Respondent
THE
SPEAKER, CITY OF CAPE TOWN N.O.
Fifth Respondent
THE MAYOR,
CITY OF CAPE TOWN N.O.
Sixth Respondent
THE
EXECUTIVE COMMITTEE,
CITY OF
CAPE TOWN N.O.
Seventh Respondent
THE CITY
OF CAPE TOWN
Eighth Respondent
________________________________________________________________
REASONS FOR
JUDGMENT: 21 NOVEMBER 2002
________________________________________________________________
VAN
HEERDEN J:
This
application was instituted as a matter of urgency on 30 October 2002
and was argued before me the following evening as a fully-fledged
opposed application. Having heard argument by Mr
Osborne
(on
behalf of the applicant), Mr
Farlam
(on behalf of the first
and second respondents), as well as Mr
Jamie SC
(on behalf of
the third to the eighth respondents), it was ordered that the
application be dismissed with costs. I indicated at
that time that
reasons for such order would, if required, be furnished to any of the
parties on application. Those reasons are now
set out below.
The applicant
is the Democratic Alliance (
DA
). The first respondent is the
African National Congress (
ANC
), the second respondent is the
New National Party (
NNP
), whereas the third to the seventh
respondents are various structures and office-bearers of the City of
Cape Town, cited herein in
their official capacity. For the sake of
convenience, I shall henceforth refer to them by their official
designations, namely as
‘
the City Manager
’; ‘
the
Municipal Council
’ or simply ‘
the Council
’; ‘
the
Speaker
’; ‘
the Mayor
’; and ‘
the Executive
Committee
’, respectively. The City of Cape Town (‘
the
City
’), the juristic person of which the third to the seventh
respondents form part, was joined as the eighth respondent at the
commencement
of the hearing of the matter.
The present
litigation arose out of the ‘
floor-crossing
’ legislation
approved by Parliament earlier this year, following a political
realignment that took place in November 2001. Pursuant
to such
political realignment, the NNP withdrew from the alliance (ie the DA)
that had existed from July 1999 between itself, the
former Federal
Alliance and the former Democratic Party (
DP
), forming an
alliance with the ANC instead and leaving the control of the DA
predominantly in the hands of the former DP. This led
to a shift of
power in,
inter alia
, various local authorities, including the
City of Cape Town.
The Legislative
and Constitutional Background
In June
this year Parliament enacted the Constitution of the Republic of
South Africa Amendment Act 18 of 2002 (‘
the First Amendment
Act
’), the Local Government: Municipal Structures Amendment Act
20 of 2002 (‘
the Local Government Amendment Act
), the
Constitution of the Republic of South Africa Second Amendment Act 21
of 2002 (‘
the Second Amendment Act
’), and the Loss or
Retention of Membership of National and Provincial Legislatures Act
22 of 2002 (‘
the Membership Act
’). These four acts allow,
under certain circumstances, for members of national, provincial and
local legislatures elected under
the banner of one political party to
‘
cross the floor
’ to another political party during the
term of the relevant legislature, without losing their seats in that
legislature in the
process.
The first two Acts mentioned above relate to floor
crossing in the local government sphere. The First Amendment Act
establishes limited
exceptions to the rule (the so-called
‘
anti-defection provision
’) that a local government
councillor who ceases to be a member of the party that nominated him
or her, loses his or her seat on
the council. It provides for a
fifteen-day period during the second and fourth year after a local
government election, during which
party allegiances may be changed
without the councillors concerned losing their seats, subject to the
fulfilment of certain requirements,
the primary one being that at
least 10% of the representatives of a particular party must leave if
this is to apply. The First Amendment
Act also puts into place a
‘
once-off
’ fifteen-day period immediately following the
commencement of the Act, during which period party allegiances may be
changed without
the councillors concerned losing their seats, without
the abovementioned 10% threshold (to which all subsequent ‘
window
periods
’ are subject) being applicable.
The Local Government Amendment Act complements the
First Amendment Act by removing references in the Local Government :
Municipal
Structures Act 117 of 1998 (‘
the Structures Act
’)
to the bar on floor-crossing, and by making provision for various
aspects of local government to accommodate the new system of
limited
floor-crossing. The amendments to the Structures Act include the
reconstitution of metropolitan subcouncils, the registration
of
political parties and the role of the Electoral Commission.
The Second Amendment Act and the Membership Act
both relate to floor- crossing in national and provincial
legislatures. For the purposes
of the present proceedings, it is not
necessary to discuss the content of these acts in any further detail.
All four Acts were challenged on an urgent basis
in this Court by the United Democratic Movement (
UDM
). A Full
Bench of this Division suspended the commencement of the four Acts,
pending the decision of the Constitutional Court on
the application
by the UDM to have the Acts declared unconstitutional and invalid.
In its subsequent judgment,
1
the Constitutional Court, whilst declaring the Membership Act to be
unconstitutional and invalid, upheld the constitutionality of
the
First Amendment Act and the Local Government Amendment Act. It also
provided that the first (once-off) fifteen-day window period
during
which floor-crossing at local government level would be allowed
(which had in effect been suspended by the interim orders
made by
this Court and the Constitutional Court), would commence running on 8
October 2002. Municipal council members wishing to
‘
cross the
floor
’ would thus be able to do so during such fifteen-day
period (terminating on 22 October 2002).
The Municipal Council Meeting
of 29 October 2002
Pursuant to this judgment of the Constitutional
Court, the Speaker of the City of Cape Town Municipal Council, acting
in terms of
section 29(3)(a) of the Structures Act (as inserted by
section 3 of the Local Government Amendment Act), convened a meeting
of the
Council for 29 October 2002, the purpose of such meeting being
(
inter alia
) to deal with the consequences of the floor-
crossings during the abovementioned fifteen-day window period. The
Council was also
scheduled to deal at such meeting with the
reconstitution and recomposition of the various structures and
committees of the Council
as provided for by section 6 of the First
Amendment Act.
The Council, consisting of 200 members, had, until
the floor-crossing which took place during the period from 8 to 22
October 2002,
been controlled by the DA. At that stage, the DA held
107 seats in the Council, the ANC holding 77 seats and various
smaller political
parties holding the balance (of 16 seats). As a
result of the floor-crossing, the overall balance of power in the
Council shifted
to the ANC/NNP alliance. By the expiry of the window
period on 22 October 2002, the DA was left with 71 seats in the
Council, the
ANC with 80 seats and the NNP with 32 seats, while
various smaller parties held the remaining 17 seats.
At the meeting on 29 October 2002, the Council
reconstituted the Executive Committee by electing 5 members of the
ANC and 3 members
of the NNP to the Committee. Portfolios were
allocated to all of these seats, except for the one seat held by the
ANC councillor
who was elected as Mayor. Two nominees from the DA
caucus were elected to the remaining 2 seats on the Executive
Committee, both
these seats being without portfolio.
The Council thereupon proceeded to reconstitute
the Rules Committee of the City of Cape Town and the Subcouncils
Establishment Portfolio
Committee (‘
the Subcouncils Committee
’),
and to allocate members of the different political parties to these
committees. Having resolved that the Rules Committee would
have 12
members (including the Speaker), the ANC was allocated 4 seats and
the NNP 3 seats (in addition to the Speaker, the Chairperson
of the
Committee, who is an NNP councillor). Only one member of the DA was
allocated a seat on the Rules Committee, the remaining
3 seats being
allocated to minority parties.
Also at the meeting held on 29 October 2002, the
Council resolved that the Subcouncils Committee would have 6 members,
with the seats
thereafter being allocated as follows: the ANC and
the NNP 2 seats each; the DA one seat; and a minority party the
remaining seat.
All these allocations were made in the face of
vigorous opposition and protest from the DA, which voted against
every relevant resolution
during the meeting. The outcome of the
meeting was that the DA ended up with limited representation on the
three committees in question.
The relief claimed in the present
application sought to redress that situation by setting aside the
resolutions of the Council determining
the composition of the
abovementioned committees. The applicant also sought the following
orders consequential upon the setting
aside of the said resolutions:
‘
2.2 The
municipal council of the City of Cape Town is hereby ordered to meet
within twenty four (24) hours of the issuance of this
order, for the
purpose of reconstituting the executive committee of the City of Cape
Town in such a manner that parties on the council
are accorded fair
representation on the committee, as required by the Constitution of
the Republic of South Africa;
The municipal council of the City of Cape
Town is hereby ordered to reconstitute the executive committee of
the City of Cape Town
by allowing Applicant to occupy four (4)
seats, of which at least two (2) seats must hold portfolios;
Alternatively, in the event that this
Honourable Court deems it fit not to grant prayers 2.1 and 2.3 of
the Notice of Motion,
ordering that:
First and Second Respondents shall
resign from two (2) seats on the executive committee of the City
of Cape Town;
The municipal council of the City of
Cape Town shall meet within twenty four (24) hours of issuance of
this order for the purpose
of filling the two positions vacated in
terms of 2.4.1 above with two councillors designated by the
Democratic Alliance caucus
of the City of Cape Town;
The Executive Committee of the City of
Cape Town be hereby interdicted from meeting or taking any
decisions, whether collectively
or individually, until this
Honourable Court has disposed of this matter;
…
The
municipal council of the City of Cape Town shall meet within twenty
four (24) hours of issuance of this order to reconstitute
the Rules
Committee of the City of Cape Town in such a manner that parties on
the council are accorded fair representation on
the committee, as
required by the Constitution of the Republic of South Africa, by
allowing Applicant to occupy at least five
(5) seats on the rules
committee of the City of Cape Town
…
The municipal council of the City of Cape
Town shall meet within twenty four (24) hours of issuance of this
order to reconstitute
the Sub-Councils Portfolio Committee of the
City of Cape Town in such a manner that all parties on the council
are accorded fair
representation on the committee, as required by
the Constitution of the Republic of South Africa, by allowing
Applicant to occupy
at least two (2) seats on the sub- councils
portfolio committee of the City of Cape Town
…
’
The DA further asked that the ANC and the NNP be
ordered to pay the costs of the application on an attorney and client
scale (irrespective
of whether or not they opposed the application).
The urgency of the matter arose from the fact that
the first meeting of the reconstituted Executive Committee was
scheduled to be
held on the morning of 1 November 2002, prior to a
meeting of the Council to be held on the same day. The agenda for
the Council
meeting included important and urgent matters such as a
consideration of rates rebates and other budgetary matters. The
Council
would be precluded from considering these matters unless they
had first been considered by the Executive Committee and a report and
recommendation of such Committee submitted to the Council (as
required by section 30(5) of the Structures Act).
Arguments and discussion
It was contended on behalf of the DA that the
‘
gross disproportionality
’ of its representation on the
abovementioned three committees does not constitute the ‘
fair
representation
’ to which it claims to be entitled and which is
required, so it was argued, by the Constitution of the Republic of
South Africa
Act 108 of 1996 (‘
the 1996 Constitution
’).
In this regard, reference was made to section 43
of the Structures Act, which is pivotal to the present application,
and which provides
as follows, under the heading ‘
Composition of
executive committees
’:
‘
(1) If
a council of a municipality establishes an executive committee, it
must elect a number of councillors necessary for effective
and
efficient government, provided that no more than 20 per cent of the
councillors or 10 councillors, whichever is the least are
elected.
An executive committee may not have less than three members.
An executive committee must be composed in
such a way that parties and interests represented in the municipal
council are represented
in the executive committee in substantially
the same proportion they are represented in the council.
A municipal council may determine any
alternative mechanism for the election of an executive committee,
provided it complies with
section 160(8) of the
[1996]
Constitution.
’
Section 160(8) of the 1996 Constitution, in turn,
provides as follows:
‘
Members of a
Municipal Council are entitled to participate in its proceedings and
those of its committees in a manner that –
allows parties and interests reflected
within the Council to be fairly represented;
is consistent with democracy; and
may be regulated by national legislation.
’
According to applicant’s counsel, the
requirement contained in section 160(8)(b) is readily satisfied.
Thus, a system of majority
rule on a ‘
first-past-the-post
’
(
FPTP
) electoral system (sometimes also referred to as a
(‘
winner-takes-all
’
system) would ‘
be
consistent with democracy
’. (On the FPTP model, upon which the
South African electoral system was based prior to the first
democratic elections in 1994,
see further Currie & De Waal
The
New Constitutional and Administrative Law : Volume 1 –
Constitutional Law
(2001) 134-135.) Even a mechanism which
provided that
all
the seats on an executive committee would be
filled by members of the party holding 51% of the seats in the
council concerned would
in all likelihood be immune to challenge on
the basis of the provisions of section 160(8)(b).
However, section 160(8)(a) of the 1996
Constitution goes beyond requiring merely that the electoral
mechanism chosen be ‘
democratic
’. It also imposes the
requirement that the mechanism chosen ‘
allow parties and
interests reflected within the Council to be
fairly
represented
’ (emphasis added). It is this concept of ‘
fair
representation
’ which lies at the heart of the present debate.
It was submitted that the introduction (in section
160(8)(a) of the 1996 Constitution) of the concept of ‘
fair
representation
’ in this context excluded the ‘
winner-takes-all
’
philosophy of FPTP-style democracy. It must accordingly follow, so
it was argued, that a mechanism for constituting the Executive
Committee (and, indeed, also the Rules Committee and the Subcouncils
Committee) of the City of Cape Town that allows for
gross
disproportion between the number of council seats held by a party and
the representation of such party on Council committees would
fail the
test set by section 160(8)(a).
Council for the DA further contended that the core
values of the new South African political order are reflected in the
provisions
of section 1 of the 1996 Constitution, which values
include (in paragraph (d) of section 1) a ‘
multi-party system of
democratic government
’
2
The importance of a ‘
multi-party system of democratic
government
’ is accordingly underscored by its inclusion as one
of the values on which the State is founded.
3
According to counsel, the
Constitutional
Principles
set out in Schedule 4 to the Constitution of the
Republic of South Africa Act 200 of 1993 (‘
the 1993
Constitution
’), with which the 1996 Constitution was required
to comply (in terms of section 71(1)(a) of the 1993 Constitution),
illustrate
the importance of political parties, including minority
political parties, in the new South African constitutional
dispensation.
Constitution Principle VIII provides as follows:
‘
There shall be
representative government embracing multi-party democracy, regular
elections, universal adult suffrage, a common voters’
roll and, in
general, proportional representation.
’
Constitutional Principle XIV, in turn, provides as
follows:
‘
Provision shall
be made for participation of minority political parties in the
legislative process in a manner consistent with democracy.
’
It was argued on behalf of the applicant that, on
a proper interpretation, the 1996 Constitution ‘
prescribes
’
proportional representation at all levels of government - national,
provincial and local. Counsel referred, in this regard, to
the
change in the wording of section 157(3) of the 1996 Constitution
brought about by section 1 of the First Amendment Act. Prior
to the
amendment, section 157(3) read as follows:
‘
An electoral
system in terms of subsection (2) must ensure that the total number
of members elected from each party reflects the total
proportion of
the votes recorded for those parties.
’
Following its substitution by section 1(b) of the
First Amendment Act, section 157(3) provides that:
‘
An electoral
system in terms of subsection (2) must result, in general, in
proportional representation.
’
With reference to the abovequoted section 43 of
the Structures Act, counsel argued that subsection 43(2) was intended
by the Legislature
to govern the
outcome
or
end result
of whatever mechanism or process is followed by a municipal council
to elect its executive committee, while subsection 43(3) was
intended
to deal simply with the
methodology
determined by the relevant
municipal council for such election. Following this interpretation
of subsections (2) and (3) of section
43, it was contended that,
whatever ‘
alternative mechanism
’ is decided upon by the
municipal council concerned ‘
for the election of
’ its
executive committee, the
outcome
of such election must be that
the executive committee ‘
be composed in such a way that parties
and interests represented in the municipal council are represented in
the executive committee
in
substantially the same
proportion
they are represented in the council
’
(emphasis added).
I cannot agree with Mr
Osborne’s
interpretation of the ‘
interrelationship
’ between
subsections (2) and (3) of section 43 of the Structures Act. One of
the established presumptions of statutory interpretation
is that no
word in a statute should be regarded as tautologous or meaningless
(see, in this regard,
Wellworths Bazaars Ltd v Chandler’s Ltd &
Another
1947 (2) SA 37
(A) at 33; see also Devenish
Interpretation of Statutes
(1992) 210 and the other
authorities there cited). Subsection 43 (3) allows a municipal
council to determine ‘
any
alternative
mechanism for the election of an executive committee, provided it
complies with section 160(8) of the Constitution
’ (emphasis
added). As subsection 43(1) deals primarily with the minimum and
maximum permissible number of seats on an executive
committee, and
does not deal with the representation of parties and interests on
such executive committee, it follows logically that
the ‘
alternative
mechanism for the election of an executive committee
’ referred
to in subsection 43(3) must be ‘
alternative
’ to the
provisions of subsection 43(2) - ie alternative to the composition
of an executive committee whereby parties and interests
represented
in a municipal council are represented in the committee ‘
in
substantially the same proportion
’ as their representation in
the council. This interpretation of subsection 43(3) is borne out by
the proviso to such subsection,
which requires that the ‘
alternative
mechanism
’ determined by the relevant municipal council comply
with section 160(8) of the Constitution. The provisions of section
160(8)
of the Constitution, as quoted above, clearly deal, not with
the
mechanism
or the
process
to be followed by a
municipal council for the election of its committees, but rather with
the
outcome
of such election process.
It follows that I do not agree with counsel’s
submission that, even where an ‘
alternative mechanism
’ has
been determined by a municipal council for the election of its
executive committee members, section 43(2) of the Structures
Act
still requires that the executive committee must represent the
parties and interests represented in the council in
a
‘substantially proportional
’ fashion. As was pointed out by
the respondents, the City’s Executive Committee, both in the past
and as reconstituted on 29
October 2002, was
not
composed in
accordance with the provisions of section 43(2) of the Structures
Act, ie its membership was not in substantially the
same proportion
as the representation of the different parties and interests on the
Council. Instead, under the former DA-dominated
Council, an
‘
alternative mechanism
’, as referred to in section 43(3),
was adopted at the first meeting of the Council on 15 December 2000
(the City of Cape Town having
been established on 5 December 2000
pursuant to the provisions of section 12 of the Structures Act), and
applied by the DA-dominated
Council between December 2000 and October
2002. I will return to this aspect at a later stage.
In addressing the meaning of the requirement of
‘
fair representation
’ set by section 160(8)(a) of the 1996
Constitution, reliance was also placed by counsel for the DA on the
decision in
Democratic Party & Others v Brakpan Transitional
Local Council & Others
4
This case concerned an application by the DP for an order declaring
that it was an unconstitutional derogation from the principle
of
‘
fair representation
’ (enshrined in section 160(8)(a) of
the 1996 Constitution) for a transitional local council to appoint an
executive committee comprising
members of the ANC and the NP only, in
circumstances where the NP and the DP were equally represented on the
said council.
5
The crisis that led to the application was precipitated when the
third applicant, until then a member of the NP, and who had a
seat on
the six-member executive committee of the Council, resigned from the
NP and joined the DP, but refused to give up his seat.
(There was at
the time no anti-defection clause applicable to local government.)
The transitional local council as a whole then
voted to dissolve the
executive committee and to elect a new five-member executive
committee in its place. Of the 20-member transitional
local council,
the ANC had at that stage 14 councillors, the NP 2 councillors and
the DA 2 councillors (being the second and third
applicants). No DA
councillor was elected to the new executive committee, which
committee consisted of 4 members of the ANC and
1 member of the NP.
6
The Court (
per Cloete J
) held that the
decision to reconstitute the executive committee in such a manner
that the DP was
not
represented on such committee while the
NP, which had the same number of representatives on the Council as
the DP,
was
represented thereon, was unconstitutional. In the
view
of Cloete J, this decision violated the provisions
of section 160(8)(a) of the 1996 Constitution, which required that,
as far as practically
possible, the members representing political
parties in a local government council ‘
participate fairly
’
in the committees of that council:
‘
The object and
purpose of s 160(8)(a) of the Constitution is to ensure, so far as is
practically possible, that members representing
political parties in
a council participate fairly in the committees of the council. Such
fairness is to be determined according
to the representation on the
council and not according to political support among the electorate
…
7
In considering the
Brakpan Transitional Local
Council
case, it must be borne in mind that the applicable
‘
national legislation
’ (as referred to in section
160(8)(c) of the Constitution), for the purposes of that case, was
the
Local Government Transition Act 209 of 1993
. At that time,
section 16(6)
of Act 209 of 1993 provided as follows:
‘
Notwithstanding
anything to the contrary in any law contained, a transitional council
or transitional metropolitan substructure referred
to in subsection
(1) may elect an executive committee
according to a
system of proportional representation
from among
its members to exercise such powers and perform such duties as such
transitional council or transitional metropolitan
substructure may
determine: Provided that during the pre-interim phase it will not be
necessary to elect such committee according
to a system of
proportional representation: Provided further that –
the transitional council or transitional
metropolitan substructure shall determine
the system of
proportional
representation
and the
number of members of and the quorum for the executive committee;
the executive committee shall endeavour to
exercise its powers and perform its duties on the basis of
consensus; and
if consensus on any matter cannot be
achieved, such matter may be decided by the committee by resolution
of a majority of at least
two-thirds of its members, or the
committee may, if a majority of the committee so decides, submit a
report and recommendation
on the matter to the transitional council
or transitional metropolitan substructure for a decision.
’
(emphasis added)
The two reported cases followed by the learned
judge in the
Brakpan Transitional Local Council
case in coming
to his conclusion (as set out above), namely
Crowther & Andere
v Plaaslike Oorgangsraad vir Bethlehem & Andere
8
and
Nasionale Party in die Oos-Kaap en 'n Ander v Port Elizabeth
Oorgangsraad & Andere
9
also concerned the meaning of the words ‘
according to a
system of proportional representation
’ in
section 16(6)
of the
Local Government Transition Act of 1993
, as did the case of
Louw v
Matjila & Others
10
referred to in both the
Crowther
and the
Nasionale Party in
the Oos-Kaap
cases. Moreover, all three lastmentioned cases also
concerned the requirements for local government executive committees
set by
section 177 of the 1993 Constitution, which Constitution was
applicable to the facts of those cases. In this regard, section 177
of the 1993 Constitution provided, under the heading ‘
Executive
committees
’:
‘
A council of a
local government shall elect,
according to the system of
proportional representation as may be prescribed by a law
,
from among its members, an executive committee to exercise such
powers and perform such functions as may be determined by such
council:
Provided that –
the council shall determine the number of
members of and the quorum for the executive committee;
the executive committee shall endeavour to
exercise its powers and perform its functions on the basis of
consensus among its members;
and
if consensus on any matter cannot be
achieved, such matter may be decided by the committee by resolution
of a majority of at least
two-thirds of all its members, or the
committee may, if a majority of the committee so decides, submit a
report and recommendation
(if any) on the matter to the council for
a decision
.’ (emphasis added)
Unlike section 43 of the Structures Act of 1998,
which is applicable to the present matter,
section 16(6)
of the
Local
Government Transition Act makes
no
provision for the
determination by a local government council for a ‘
mechanism for
the election of
[such council’s]
executive committee
’
which is ‘
alternative
’ to a
system of proportional
representation. It is also interesting to note that, by contrast
with the above quoted provisions of
section 16(6)(a)
to (c) of the
Local Government Transition Act, section
52 of the Structure Act now
provides, under the heading ‘
Quorum and decisions
’, that:
‘
(1) A
majority of the members of an executive committee constitutes a
quorum for a meeting.
A question before the committee is decided
if there is agreement among at least the majority of the members
present at the meeting.
If on any question there is an equality of
votes, the member presiding must exercise a casting vote in addition
to that member’s
vote as a member.
’
Moreover, unlike section 177 of the 1993
Constitution, the 1996 Constitution does not prescribe that the
executive committee of a
local government council must be elected
‘
according to a system of proportional representation as may be
prescribed by a law
’, but instead (as indicated above) provides
simply for participation by member of a municipal council in the
proceedings of the
council and those of its committees in a manner
which allows for ‘
fair representation
’ of parties and
interests reflected within the council (section 160(8)(a)); which is
‘
consistent with democracy
’ (section 160(8)(b)); and
which ‘
may be regulated by national legislation
’ (section
160(8)(c)). It would appear that the envisaged ‘
national
legislation
’ is in fact the Structures Act. Further, by
contrast with section 160(8), section 157(3) of the 1996
Constitution, prior to its
substitution by section 1(b) of the First
Amendment Act, provided that the electoral system governing the
election of members to
a
municipal council
‘
must ensure
that the total number of members elected from each party reflects the
total proportion of the votes recorded for those
parties
.’ As
indicated above, the ‘
new
’ wording of section 157(3) now
simply requires that the electoral system governing the election of
members to a municipal council
‘
must result,
in
general
, in proportional representation
’ (emphasis
added).
In the light of the material difference in wording
between
section 16(6)
of the
Local Government Transition Act, as
applied by Cloete J in the
Brakpan Transitional Local Council
case, and section 43 of the Structures Act applicable to the present
matter, I am in agreement with the submission made by both counsel
for the respondents that the
Brakpan Transitional Local Council
case is clearly distinguishable from the matter presently before me.
With reference to section 160(8)(a) of the 1996
Constitution, counsel for the DA further contended that it is
difficult to understand
what ‘
fair representation
’ could
mean other than ‘
participation
’ in relation to the share
of a political party’s seats in the Municipal Council. There may
be questions of ‘
proximate fairness
’ requiring larger
political parties to allocate a seat on the Executive Committee to
the collectivity of political parties with
only a small
representation on the Council. However, so the argument went, there
must, at the very least, be a rational relationship
between the
number of minority party representatives holding seats on the
Executive Committee and such parties’ representation
in the Council
as a whole.
It was submitted in this regard that the
allocation of only 20% of seats on the Executive Committee to a party
(the DA) which holds
nearly 40% (38.797% to be precise) of the total
number of Council members who qualify for representation on the
Executive Committee
11
clearly constitutes a gross disproportionality. According to
counsel, there is no rational relationship between the strength of
the DA in the Council and its allocated seats on the Executive
Committee. The same applies to the allocation of only 1 seat (8.333%
of the total number of seats) on the Rules Committee, and the
allocation of only 1 seat (16.666% of the total number of seats) on
the Subcouncils Committee to the DA, such party’s representatives
on the Council representing 35.5% of the total number of members
of
Council from whose ranks the members of these two committees had to
be drawn.
According to Mr
Osborne
, the committee
allocations were nothing more than a ‘
political ploy
’
intended to marginalise the DA in the committees of the Council of
the City of Cape Town; an
ad hoc
political scheme, foisted
upon the Council by the ANC/NNP Alliance. The committee allocations
were especially unfair, so it was
argued, since they produced the
anomalous result that the NNP, which holds less than half of the
Council seats held by the DA (32
seats, as opposed to 71 seats), has
ended up with significantly more seats on each of the three
committees than the DA. Counsel
argued that the present situation
is, in that respect, very similar to that faced by the Court in the
Brakpan Transitional Local Council
case, in which (as
indicated above) Cloete J held that it was unfair, in a situation
where the NP and the DP held the same number
of seats on the Brakpan
Transitional Local Council, that the former party should be
represented on that Council’s executive committee,
but not the
latter party. It was further argued that, as regards the Executive
Committee, the unfairness of the present situation
is aggravated by
the fact that neither of the two seats allocated to the DA has a
portfolio attached to it. By contrast, all three
seats on the
Executive Committee allocated to the NNP have portfolios attached to
them.
The respondents argued, on the other hand, that it
could only be in terms of a ‘
proportional representation
’
system, as envisaged in section 43(2) of the Structures Act, that the
DA could rely upon any entitlement to a specified number
of seats on
any one of the three committees at issue in these proceedings. This
is so because, unlike the express and objectively
determinable system
referred to in section 43(2), details of the ‘
alternative
mechanism
’ envisaged in section 43(3) of the Structures Act
(which subsection requires compliance with section 160(8) of the 1996
Constitution)
are noticeably lacking. It is for this reason,
according to the respondents, that ‘
one cannot conflate
“fair
representation”
with proportional representation
’ (in the
words of Mr Peter Gabriel, the Chief Whip in the Municipal Council,
who deposed to the main answering affidavit filed
on behalf of the
ANC).
The respondents pointed out that section 160(8) of
the 1996 Constitution refers in terms to ‘
participation
’
in the proceedings of Council committees, and not to the
composition
thereof. It was submitted on behalf of the
respondents that this would appear to acknowledge the fact that
participation in, short
of membership of, a Council committee is
constitutionally sanctioned and desirable. As was pointed out by Mr
Richard Wootton, the
Acting Director: Legal Services of the City of
Cape Town (who deposed to the main answering affidavit filed on
behalf of the third
to the eighth respondents), all councillors are
permitted as of right, in terms of the Rules of Order of the
Executive Committee
and of the Council’s other committees, to
attend meetings of the committees and, with the permission of the
relevant chair, to
address such meetings. All councillors are
therefore permitted, as of right, to ‘
participate
’ in the
proceedings of all Council committees, although councillors are not
allowed to vote in any committee unless they are members
of the
relevant committee.
Both counsel for the respondents also referred to
the decision of Horn J in the unreported case of
The Democratic
Alliance & Another v Masondo N.O. & Another
.
12
Counsel acknowledged that this decision is of no
direct
relevance to the present proceedings: the
Masondo
case
related to the appointment of a mayoral committee in terms of section
60 of the Structures Act and the court held that section
160(8) of
the 1996 Constitution does not apply to mayoral committees, such a
committee not being a committee of the municipal council,
but rather
a committee of the executive mayor. However, when dealing (albeit
obiter
) with the meaning of the words ‘
fair
representation
’ in section 160(8)(a) of the 1996 Constitution,
Horn J pointed out that the requirement of fair representation in
terms of section
160(8)(a) ‘
is itself a relative concept which
must be measured against what it is that the Legislature
set
out to
achieve when enacting
’ that section.
13
It was argued on behalf of the respondents that,
given the inherent flexibility of the concept of fair representation
- and accordingly
the range of possibilities which could fall within
the ambit of this concept - the DA could not simply point to its
representation
in the Council and then lay demand, in the language of
entitlement, to a corresponding (or even a substantially
corresponding) membership
of the relevant committees. This would
amount to a system of proportional representation or one
substantially similar thereto, which
is
required by section
43(2) of the Structures Act, but
not
by section 43(3) thereof,
read together with section 160(8) of the 1996 Constitution.
In the
United Democratic Movement
case
(
supra
), the Constitutional Court specifically considered the
proportional representation system and its relationship to the
multi-party
system of democratic government contemplated by section
1(d) of the 1996 Constitution. The Constitutional Court stated
14
that, textually, proportional representation was not included in the
founding values set out in section 1 of the 1996 Constitution,
nor
could it be implied as a requirement of multi-party democracy. In my
view, it is clear from,
inter alia
, the judgment of the
Constitutional Court in the
United Democratic Movement
case
that the requirement of ‘
fair representation
’ set by
section 160(8)(a) of the 1996 Constitution can be met by a system of
representation other than proportional representation
or a system
approximating one of proportional representation. Indeed, as was
argued by counsel for the respondents, such a result
appears to flow
ineluctably from the fact that section 43 of the Structures Act
clearly makes a distinction between a system of proportional
representation (as envisaged in section 43(2)) and a system
encompassed by the ‘
alternative mechanism
’ provided for in
section 43(3).
As mentioned above, the respondents further
pointed out that the composition of the City’s Executive Committee,
both in the past
and as reconstituted on 29 October 2002, did
not
comply with section 43(2) of the Structures Act, ie its membership
was not in substantially the same proportion as the representation
on
the Council of the various different parties and interests concerned.
Instead, an ‘
alternative mechanism
’ as permitted by
section 43(3), was adopted by the then DA-dominated Council of the
City of Cape Town at its first meeting on 15
December 2000, was
implemented by the Council at such meeting, and thereafter again in
February 2001 and in December 2001. It is
this same mechanism that
was again implemented at the meeting of 29 October 2002 insofar as
the election of members to the Executive
Committee was concerned. It
operated as follows:
‘[the Council would
elect the first eight members to the ten-member Executive Committee
and]
the eight persons so elected will be the first eight members
of the Executive Committee. Should this election result in a
situation
where certain political parties or interests are not fairly
represented, the remainder of the seats of the Executive Committee
must
be reserved for such parties or interest parties
[sic?].
These vacant seats must then be filled by an election by Council
from such parties or interest groups in a fair manner that is
consistent
with democracy and complies with the provisions of section
160(8) of the Constitution.
It may not be possible to accommodate all
parties and interests and it would therefore not be fair to try to
accommodate all parties
and interest groups, especially small parties
or interest groups. The Executive Committee has only ten seats
representing a council
of 200 and it is therefore recommended that
any party or interest group, having less than 10% support, not be
considered for representation
on the Executive Committee, unless a
representative from such party or interest group is elected as …
one of the eight … referred
to above.
’
According to the respondents, in the
implementation of this ‘
alternative mechanism
’, as adopted
in December 2000, the rationale for the election of the first 8
members of the Executive Committee was, in the case
of 7 of them,
their suitability for the executive post that each of them would
fill, such suitability in each instance being motivated
on the basis
of their particular qualifications, skills and experience relevant to
the particular portfolio for which they were nominated.
In the case
of the eighth member, his or her suitability to be Mayor was the
determining consideration. While the Executive Committee
constitutes
the executive of the Council, the ten portfolio committees, which
develop policy, are part of the legislative branch
of Council. Since
February 2001, members of the Executive Committee do not sit on the
portfolio committees, notwithstanding the
fact that members of the
Executive Committee are responsible for the portfolios with which the
various committees are tasked. This
structure and split of
responsibilities was decided upon by the Council in February 2001 in
order to comply with the principle of
separation of powers provided
for in the 1996 Constitution, by separating the executive,
legislative and judicial ‘
arms
’ of the City of Cape Town.
This separation of powers at local government level was to some
extent modelled on the structure employed
in the national and
provincial spheres of government.
It should be mentioned that, whilst taking the
view that the composition of the Executive Committee prior to 29
October 2002 was not
relevant for the purposes of the present
proceedings, the applicant nevertheless denied that the ‘
alternative
mechanism
’ described by the respondents was employed by the
Council after February 2001. According to the applicant, this
mechanism was
abandoned by Council during February 2001, whereafter
there were no longer any members on the Executive Committee without
portfolios;
the portfolios were “
shuffled around
’; the
members of the Executive Committee were no longer chairpersons of any
Council committees; and the committees to which such
members had been
elected in December 2000 became the separate portfolio committees.
In view of the fact that the applicant is seeking
final relief, I am
enjoined to apply to time-honoured principles articulated by Corbett
JA (as he then was) in
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
15
by approaching the application on the basis of those facts averred in
the applicant’s affidavits which have been admitted by the
respondents, together with the facts alleged by the respondents. It
follows that, for the purposes of the present proceedings, I
must
accept the respondents’ version that the mechanism of electing the
City’s Executive Committee utilised at the meeting on
29 October
2002 (aptly described by Mr
Farlam
as ‘
the best person
for the job
mechanism
’) was a mechanism that was not
only devised by the applicant, but was utilised by it from December
2000 until October 2002.
As regards the composition of the Rules Committee
and of the Subcouncils Committee, Mr
Farlam
correctly pointed
out that neither of such committees is governed by the provisions of
section 43 of the Structures Act. Such committees
are established in
terms of section 79 of the Structures Act, which section makes no
reference whatsoever to proportional representation.
The mechanism
for appointing the members of such committees, and the ultimate
composition of such committees, must therefore be
measured only
against the requirements set out in section 160(8) of the 1996
Constitution, as analysed above.
16
The Rules Committee is established by the Council
and headed by the Speaker. Its tasks are to consider the rules of
the Council,
to investigate violations of the Code of Conduct and so
on. According to the respondents, the rationale for the composition
of the
Rules Committee was developed by the then DA-dominated Council
in 2000. Because the Rules Committee performs a ‘
crucial
watchdog function
’, it was regarded as important to have as
many political parties as possible represented on such Committee.
For this reason, while
the governing party or interest group should
have a majority of seats on the Rules Committee, as many minority
parties as possible
should be allocated seats on such Committee.
While, at the meeting on 29 October 2002, the Council resolved that
the size of the
Rules Committee would be reduced from 16 members
(including the Speaker) to 12 members (also including the Speaker),
the allocation
of seats on such Committee was made on the same basis
as had been operative since 2000.
The Subcouncils Committee is not one of the ten
standing portfolio committees of the Council. As was the case under
the previous
DA-dominated Council, this Committee is established by
the Council to oversee the introduction of the different municipal
subcouncils,
to consider issues surrounding demarcation, and to deal
with
ad hoc
issues relating to the establishment and
functioning of municipal subcouncils. According to the respondents,
the ‘
formula
’ used for the composition of this Committee
by the DA-dominated Council was the same as that applicable to the
various portfolio
committees,
viz
that the ruling party or
interest group was given a majority, the remaining members of the
Committee being divided amongst the opposition
parties, with priority
given to the official opposition and as many other minority parties
as possible also being represented on
the Committee. While, at the
meeting on 29 October 2002, the Council resolved that the size of the
Subcouncils Committee would be
reduced from 11 members to 6 members,
the allocation of seats was done on exactly the same basis as that
previously utilised by the
DA-dominated Council.
The respondents’ allegations regarding the
composition of both the Rules Committee and the Subcouncils Committee
were not really
disputed by the applicant, the applicant taking the
stance that these details were not specifically relevant for purposes
of the
present proceedings.
Finally, it was argued on behalf of the
respondents that the 1996 Constitution makes provision for a
separation of powers between
the Legislature, the Executive and the
Judiciary.
17
It was submitted, with reference to the judgment of the
Constitutional Court in
Bel Porto School Governing Body &
Others v Premier, Western Cape, & Others
18
that the Court should not allow itself to be dragged into matters
which should be dealt with at a political or administrative level
and
not at a judicial level.
I agree with the argument advanced on behalf of
the respondents that there can be few cases concerning matters that
are more of a
political nature than the present one. The ANC/NNP
Alliance now controls the City of Cape Town. Such alliance is
entitled, in accordance
with the principle of majority rule enshrined
in (
inter alia
) section 160(3) of the 1996 Constitution, to
govern the City. Such government is carried out, on an executive
level, by the Executive
Committee. Seven of the members of such
committee have portfolios, ranging from finance and housing to health
and the environment
and other aspects of the government of the City,
all of which are vital to its inhabitants. The decisions as to who
fill such posts
and what their political loyalties are, are
quintessentially political issues which are not easily, if at all,
resoluble by the application
of legal norms, and by adjudication in a
court of law. Provided that the requirements set out in section
160(8) of the 1996 Constitution
are complied with, which in my view
is indeed the case in the present proceedings, a court should be
loath to interfere with local
government decisions such as those
currently before me.
Clearly, the fact that the system utilised for the
composition of the Executive Committee, the Rules Committee and the
Subcouncils
Committee at the meeting on 29 October 2002 is an
‘
inherited system
’, devised by the former DA-dominated
Council and utilised by it right up until 29 October 2002, is not
decisive in evaluating the
fairness or otherwise of the present
representation of the DA on the committees in question. However,
this fact is certainly one
of the considerations to be borne in mind
in such process of evaluation.
In dismissing the application, I was persuaded by
the submissions on behalf of the respondents, which submissions
brought me to the
conclusion that none of the applicant’s rights
had been infringed by the decisions taken at the Council meeting on
29 October 2002,
and that the applicant had not made out a case for
any of the relief sought by it.
While I was certainly of the view that the
applicant should be ordered to pay the costs incurred by all eight
respondents, I was not
persuaded by the arguments advanced by Mr
Farlam
to the effect that the applicant should be ordered to
pay the costs of the first and second respondents on a punitive
scale.
Conclusion
For the reasons set out above, the application was
dismissed with costs.
……………………………………..
B J VAN HEERDEN
1
Handed
down on 4 October 2002, reported
sub
nom. United Democratic Movement v President of the Republic of
South Africa and Others (1)
2002
(11) BCLR 1179 (CC).
2
See
President
of the Republic of South Africa & Others v South African Rugby
Football Union & Others
[1999] ZACC 9
;
1999
(4) SA 147
(CC) at para
[72]
.
3
See
Mohamed &
Another v President of the Republic of South Africa & Others
(Society for the Abolition of the Death Penalty in
South Africa &
Another intervening)
[2001] ZACC 18
;
2001
(3) SA 893
(CC) at
para
[39].
4
1999
(4) SA 339
(W).
5
Ibid
343.
6
At
342C-H.
7
At
344F-G
8
1997
(8) BCLR 1011
(O).
9
1998
(2) BCLR 141
(SE).
10
1995
(11) BCLR 1476
(W).
11
Political
parties holding less than 10% of the total number of Council Seats
not qualifying for representation on the Executive
Committee, in
terms of the electoral ‘
mechanism
’
adopted by the
then
DA-dominated Council in December 2000.
12
Witwatersrand
Local Division Case No. 01/9260.
13
At
14 of the typed judgment.
14
At
para [29].
15
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
16
See
the
Masondo
case (
supra
)
at 11, 13 and 15-16 of the typed judgment.
17
See
South
African Association of Personal Injury Lawyers v Heath & Others
2001 (2) SA 883
(CC) at para [22];
Minister
of Public Works & Others v Kyalami Ridge Environmental
Association & Another (Mukhwevho intervening)
2001
(3) SA 1151
(CC) at para [36].
18
[2002] ZACC 2
;
2002
(3) SA 265
(CC) at para
[87]
.