About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 59
|
|
MEC for the Co-Operative Governance and Traditional Affairs, KwaZulu-Natal v Nongoma Local Municipality and Others (2565/2022P) [2024] ZAKZPHC 59 (31 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO.:
2565/2022P
In
the matter between:
THE
MEC FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS, KWAZULU-NATAL
APPLICANT
and
NONGOMA
LOCAL MUNICIPALITY
FIRST
RESPONDENT
THE
SPEAKER OF THE FIRST RESPONDENT
SECOND
RESPONDENT
ZULULAND
DISTRICT MUNICIPALITY
THIRD RESPONDENT
THE
SPEAKER OF THE THIRD RESPONDENT
FOURTH
RESPONDENT
THE
COUNCILORS OF THE FIRST RESPONDENT
WHOSE
NAMES ARE SET OUT IN ANNEXURE NOM2
TO
THE NOTICE OF MOTION
FIFTH RESPONDENT
THE
COUNCILORS OF THE SECOND RESPONDENT
WHOSE
NAMES ARE SET OUT IN ANNEXURE NOM2
TO
THE NOTICE OF MOTION
FURTHER RESPONDENTS
ORDER
I
make the following order:
1.
The
application is dismissed.
2.
Each party
shall bear its own costs.
JUDGMENT
NOTYESI
AJ
Introduction
[1]
This
application arises out of a dispute between the applicant, the MEC
for Co-Operative Governance and Traditional Affairs for
KwaZulu-Natal, and the first and third respondents, Nongoma Local
Municipality and Zululand District Municipality, relating to
the
decisions by the first and third respondents to reduce the number of
their executive committee members, following the determination
of the
numbers of these executive committees at inaugural council meetings.
The central dispute concerns the interpretation of
the provisions of
ss 43(1), 45, 46, 47 and 53 of the Local Government: Municipal
Structures Act (the “Structures Act”)
[1]
dealing with the establishment of executive committees.
[2]
The applicant (hereinafter referred to as
the “MEC”) seeks an order declaring the resolutions
passed on 14 December
2021 and 7 January 2022 by the councils of the
first and third respondents (hereinafter referred to as “NLM”
and “ZDM”,
respectively) in terms of which the two
municipalities had reduced the number of their executive committee
members, to be unlawful.
The MEC also seeks a declaratory order that
municipal councils may not reduce or increase the number of members
of their executive
committees once it has been determined at an
inaugural council meeting held after elections, unless all the
members of the executive
committee are removed in accordance with the
provisions of s53(2) of the Structures Act. The MEC contends that the
resolutions
of the two municipalities, which had reduced the number
of members of the executive committees, should be set aside.
[3]
The application is opposed by ZDM only.
Initially, NLM had opposed the application. To that end, it had filed
an answering affidavit.
Later, NLM filed a notice to abide the
court's decision. It, however, did not withdraw its answering
affidavit and, therefore,
NLM’s answering affidavit is before
this court and the allegations made therein shall be considered.
[4]
NLM
had raised several grounds of opposition to the relief sought by the
MEC: first, non-joinder; second, non-compliance with the
Intergovernmental Relations Framework Act
[2]
(“the IRFA”); third,
locus
standi
and fourth, rationality of the impugned resolutions. ZDM opposed the
application on the basis that the MEC’s interpretation
of
s43(1), read with s 45 of the Structures Act, is erroneous and
inconsistent with the autonomy of municipalities. ZDM had contended
that municipalities are vested with executive and legislative
authority and, therefore, may pass any resolutions that are in
accordance
with the Constitution.
[3]
Material
facts
[5]
The facts are largely common cause. The
local government elections were conducted on 1 November 2021. The
results were declared
on 9 November 2021. In terms of the Structures
Act, the municipalities were obliged to hold their first meetings
within 14 days
from the date of declaring the results of the
elections. In the case of a district municipality, it must hold its
first meeting
within 14 days of the last local municipal council
meeting in its district. In that first meeting, the council must
elect the Speaker,
constitute the executive committee, and elect the
Mayor and the Deputy Mayor. Similarly, the district municipality,
would in its
first meeting, elect the Speaker, constitute the
executive committee, and elect the Executive Mayor and the Deputy
Mayor.
[6]
Councillors were elected for NLM and ZDM in
those elections. The total number of councillors for NLM is 45,
whilst those of ZDM
is 37. Following the elections, NLM and ZDM held
their respective inaugural council meetings. At those inaugural
meetings, NLM
and ZDM determined the size of their executive
committees. This is what followed in respect of the two
municipalities, according
to the MEC.
[7]
NLM determined its number of executive
committee members to be 20 per cent of 45 councillors. Following a
formula of calculation
based on 20 per cent of 45 council members,
the determination for the number of the executive committee was nine
seats. These seats
must be allocated proportionally to political
parties. Following the formula, the seats were allocated, and the
results were as
follows: the IFP was allocated four seats; the NFP
was allocated three seats and the ANC was allocated two seats. The
allocation
gives a total of nine. Although the IFP has the majority
of members in the executive, it does not have the majority on its
own.
[8]
Following the first council meeting, the
NLM held a special council meeting on 14 December 2021. At the
meeting, a resolution was
passed for the reduction of the number of
executive committee members from nine to seven. In terms of the
resolution, two members
of the executive committee had to be removed.
The result of this reduction is that the formula based on a seven
member seat would
work differently. The outcome based on the seven
seats was: IFP, four seats; NFP, two seats and ANC, one seat. The
reduction of
the number of members of the executive committee
resulted in the IFP becoming a majority party alone in the executive
committee.
[9]
In respect of ZDM, the municipality had a
total of 37 councillors. The inaugural council meeting was held on 26
November 2021. At
that meeting, the council determined that the
number of members for its executive committee should be six. On 29
December 2022,
Councillor Sibusiso Nkwanyana raised a motion for
consideration by the council for the removal of one executive
committee member
and the reduction in numbers of the members of the
executive committee from six to five.
[10]
On 7 January 2022, a council meeting was
convened. The motion on the reduction of the executive committee
members was considered.
Following that meeting, the council resolved
to reduce the size of the executive committee from six to five. The
five seats were
recalculated for allocation to the political parties.
The recalculation of the seats resulted in the ANC losing one seat in
the
executive committee. The result was that one out of two of the
ANC councillors in the executive committee was removed.
[11]
The MEC alleges that he received complaints
from the NFP that the council had reduced the number of members of
the executive committee
in NLM. He also received a similar complaint
from the ANC that ZDM had reduced the number of members of the
executive committee.
There is no confirmatory affidavit from the
alleged complaining parties. The MEC obtained legal advice and, based
on that legal
advice, contended that the conduct of the two
municipalities was contrary to the provisions of the Structures Act
and, accordingly,
unconstitutional.
[12]
In its answering affidavit, NLM contends
that the MEC has no
locus standi
to seek the relief. In this regard, NLM contends that the MEC has no
powers of oversight or control of municipal councils and that
he has
no power to interfere with the decision-making process of municipal
councils unless he is acting in terms of limited instances
specified
in the Constitution. According to NLM, the municipalities are
autonomous from the national or provincial government.
NLM contended
that the application by the MEC is not
bona
fide
and is intended to advance the
political interests of the ANC and the NFP, which are his political
allies. According to NLM, the
MEC seeks an interpretation of the
Structures Act that would increase the number of members serving on
the executive committee
to the political benefit of his political
party, the ANC and its ally, the NFP.
[13]
NLM also contended that the relief sought
by the MEC has a direct legal effect on all municipalities in
KwaZulu-Natal and, therefore,
the MEC ought to have joined all the
municipalities in KwaZulu-Natal or at least given notice.
[14]
NLM has further contended that the MEC’s
application is raising a dispute involving the power of the municipal
council to
determine the size of its executive committee. It alleged
that the MEC was obliged, in terms of s 41(3) of the Constitution, to
make every effort to settle the dispute by means of mechanisms and
procedures provided for that purpose and until such mechanisms
were
exhausted, the MEC was precluded to approach a court of law.
[15]
NLM avers that it has acted lawfully when
passing the resolution. The resolution was passed to save costs and
to improve the effectiveness
of the executive committee. It alleges
that the executive of nine members was large. The municipality had a
small budget. On this
basis, NLM contended that its decision to
reduce the size of the executive committee was to give effect to
circular no. 10/2019
which had provided for the municipal cost
containment regulation.
[16]
ZDM alleged that its communities are
underdeveloped. It further alleged that the territory of the district
incorporates local municipalities
of Nongoma, Uphongolo, Dumbe,
Vryheid and Ulundi. ZDM alleges that the local municipalities within
its jurisdiction are relatively
poor and derive very little revenue
from the services that they provide. For its existence, it largely
depends on various grants
received from the National Treasury. In
response to the allegation of the MEC, ZDM confirms that it held its
first meeting on 26
November 2021. It determined the number of
executive committee members to be six.
[17]
The resolution to reduce the number of its
executive committee from six to five was subsequent to a motion
raised by the council
in terms of its standing orders and procedures.
The motion was considered by the council and the following factors
were taken into
account:
(a)
financial constraints;
(b)
the need for budget funding and planning of
the municipality; and
(c)
the cost-cutting measures.
[18]
ZDM alleges that the resolution to reduce
the number of its executive committee members is in line with the
Municipal Costs Containment
Regulations of 2019. On this basis, ZDM
alleges that the reduction of the number of its executive committee
members is rational
in that there would be a saving in costs and
expenditure. It contends, in this regard that the saved costs would
be utilized for
service delivery and other obligations of the
municipality. It alleged that it conducted a financial analysis to
quantify the financial
implications of having an executive committee
of six members as against that of five members. ZDM had disputed the
allegations
that it had aimed at a particular political party when
reducing the number of its executive committee members. ZDM contended
that
the resolution to reduce the number of members of its executive
committee was necessary for the effective and efficient governance
of
the municipality and that the resolution was passed lawfully.
The issues for
determination
[19]
The issues for determination are:
(a)
whether the MEC has locus standi;
(b)
non-joinder;
(c)
resolution of intergovernmental disputes; and
(d)
whether or not a municipality may reduce the size of its executive
committee after a determination
at the inaugural council meeting.
Whether the MEC has
locus standi
[20]
The main relief sought by the MEC in the
notice of motion is couched in these terms:
‘
That
it be
and is hereby declared that upon a
proper interpretation of
s 45
of the
Local Government Municipal
Structures Act, 1998
read with
s 46
,
s 43(1)
and
s 53(2)
, a municipal
council may not reduce or increase the number of members of the
executive committee once it has been determined in
terms of
s45
unless all the members of the executive committee are removed in
terms of
s 53(2)
of the said Act.’
[21]
To establish
locus
standi,
the MEC relied on the
provisions of s 154 of the Constitution, which provides:
‘
The
national government and provincial governments, by legislative and
other measures, must support and strengthen the capacity
of
municipalities to manage their own affairs, to exercise their powers
and to perform their functions.’
[22]
In bringing this application, the MEC is
seeking a decision of the court regarding the proper interpretation
of ss 43 and 45 of
the Structures Act. The construction to be placed
upon those sections will be in the interest of the MEC and the
municipalities
in managing their own affairs and exercising and
performing their functions. That will surely support the
municipalities. The MEC
is empowered to support the municipalities in
this regard. He has a legal interest in the proper functioning of the
municipalities.
I agree with the submission of Mr
Pillemer
,
counsel for the MEC, that the bringing of the application was a
necessary measure to be taken in order to resolve the dispute
about
the power of a municipal council to reduce the size of its executive
committee.
[23]
Section
154 read with s 155(6)
[4]
of the
Constitution empowers the provincial government with the oversight
role over local municipalities. The relief sought by
the MEC is in
accordance with the duties of the provincial government in terms of
the Constitution. In the
founding
affidavit, the MEC has averred:
‘
I
bring this application in the exercise
of
the oversight role of monitoring and providing support to
municipalities conferred on the provincial government in terms of
s154 and 155(6) of the Constitution of the Republic of South Africa,
1996 (“the Constitution”).’
[24]
In
my view, the MEC has a direct and substantial interest in local
government within the municipalities. This interest is derived
from
the Constitution and is statutorily entrenched.
[5]
This position was confirmed in
Member
of the Executive Council of the Eastern Cape responsible
for Local Government and Traditional Affairs v
Inkwanca
Local Municipality and Others
.
[6]
[25]
I therefore find that the MEC has the
locus
standi
to bring the application and
seek the relief set out in the notice of motion. To the extent that
the issue of
locus standi
was raised in NLM’s answering affidavit, it must fall away.
Whether there is
non-joinder
[26]
In
Bowring
NO v Vrededorp Properties CC and Another
[7]
it was held:
‘
Though
the Trust may well be right
in its analysis
of the effect of Vrededorp’s claim, the enquiry relating to
non-joinder remains one of substance rather than
the form of the
claim. (See eg
Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA
637
(A) at 657). The substantial test is whether the party that is
alleged to be a necessary party for purposes of joinder has a legal
interest in the subject matter of the litigation, which may be
affected prejudicially by the judgment of the Court in the
proceedings
concerned (see
eg Aquatur
(Pty) Ltd v Sacks and Others
1989 (1)
SA 56
(A) at 62A-F;
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs and
Others
2005 (4) SA 212
(SCA) paras [64]
– [66].’
[27]
NLM and ZDM reduced the number of executive
committee members by way of resolutions. It is those resolutions that
prompted the MEC
to institute these proceedings. There is no evidence
that other municipalities have passed similar resolutions. The
substance of
the application is whether or not the municipalities are
empowered to reduce the number of their executive committees
following
the first council meeting in which such number was
determined. This is a legal issue. Its determination would not
adversely affect
municipalities. I agree that all municipalities have
an indirect interest in the outcome of the proceedings. That is,
however,
not the test for joinder.
[28]
The
test for joinder has been stated in
Judicial
Service Commission and Another v Cape Bar Council and Another
,
[8]
where Brand JA said:
‘
It has by now
become
settled law that the joinder of a party is only required as a matter
of necessity — as opposed to a matter of convenience
— if
that party has a direct and substantial interest which may be
affected prejudicially by the judgment of the court in
the
proceedings concerned (see eg
Bowring
NO v Vrededorp Properties CC and Another
2007
(5) SA 391
(SCA)
para
21). The mere fact that a party may have an interest in the outcome
of the litigation does not warrant a non-joinder
plea. The right of a
party to validly raise the objection that other parties should have
been joined to the proceedings, has thus
been held to be a limited
one (see eg
Burger
v Rand Water Board and Another
2007
(1) SA 30
(SCA)
para
7; and Andries Charl Cilliers, Cheryl Loots and Hendrik Christoffel
Nel
Herbstein
& Van Winsen The Civil Practice of the High Courts of South
Africa
5
ed vol 1 at 239 and the cases there cited)
.
’
[29]
On
the question of non-joinder, I conclude that to the extent that it
was raised – it lacks merit and must accordingly also
fall
away. My conclusion in this regard finds support in
Sookhraj
and Another v Municipal Manager of the Umdoni Local Municipality and
Others,
[9]
where it was stated:
‘
l
hold the view that
the issue of joinder is
not crucial in view of the fact that the declarations sought only
implicates and/or triggers the legal issue
the court has to decide.
The legal issue relates to the exercise of public power and
governance in the municipality. The parties
who are cited are those
who are imbued with exercising that power and responsibility in the
implementation of the decisions in
council. The third parties or
interests not cited are not left out in the cold since they form part
of the municipality government
and exercise their democratic rights
within that sphere of government…’
[30]
The contention on non-joinder is,
therefore, rejected.
Resolution of
intergovernmental disputes
[31]
It is so that s41 of the Constitution and the provisions of the IRFA
require all spheres of government and
all organs of state to settle
the dispute amongst themselves before
approaching
the courts. Sections 41(3) and (4) of the Constitution provides:
‘
(3)
An organ of state involved
in an
inter-governmental dispute must make every reasonable effort to
settle the dispute by means of mechanisms and procedures provided
for
that purpose, and must exhaust all other remedies before it
approaches a court to resolve the dispute.
(4)
If a court is not satisfied that the requirements of subsection (3)
have been met, it may refer
a dispute back to the organs of state
involved.’
[31]
The IRFA is the legislative measure
contemplated in s 41(2) of the Constitution. The object of the IRFA
is to promote and facilitate
intergovernmental relations and also to
provide mechanisms and procedures to facilitate the settlement of
intergovernmental disputes.
In terms of the IRFA, all organs of state
must make every effort to avoid intergovernmental disputes when
exercising their statutory
powers or performing their statutory
functions; and must settle intergovernmental disputes without
resorting to judicial proceedings.
[32]
In
terms of the Constitution and the IRFA, the MEC has a constitutional
and statutory duty to avoid judicial proceedings. All reasonable
steps necessary to resolve the dispute must first be undertaken.
These principles of the IRFA were considered in
Eskom
Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others
[10]
and the Supreme Court of Appeal, in defining what constitutes a
“dispute”, referred to the case of
Williams
v Benoni Town Council
[11]
,
where it was said:
‘
I am
unable
to agree . . . that there is no "dispute" until the parties
are at arm's length. A dispute exists when one party maintains
one
point of view and the other party the contrary or a different one.
When that position has arisen the fact that one of the disputants,
while disagreeing with his opponent, intimates that he is prepared to
listen to further argument, does not make it any the less
a dispute
.’
[33]
In
Competition
Commission v Hosken Consolidated Investments Ltd and Another
,
[12]
the Constitutional Court held:
‘…
The
mere fact
that parties had a difference of
opinion regarding an important jurisdictional issue suggests that
there was a live dispute. This
is particularly so where the
difference of opinion existed between an important statutory entity
such as the Commission and parties
who are involved in a proposed
transaction that may trigger the far-reaching investigative powers of
the Commission…’
[34]
On the above principles, I turn to consider
the application of the IRFA.
[35]
NLM submitted, in its answering affidavit,
that the MEC was bound by the IRFA and ss 41(3) and (4) of the
Constitution to first
settle the dispute with the municipalities. The
MEC failed to do so. On that basis, NLM contended that the
application should
fail and be referred back to the parties for
resolution. I disagree. On the facts of the present case, there is no
room for the
resolution of the dispute in terms of the IRFA and s 41
of the Constitution. The issue concerns the interpretation of a
statute.
It is not the case of the MEC that the municipalities are
not entitled to elect or remove the members of their executive
committees.
This is a very important matter of a legal nature that
requires the court’s attention. I accept that there was a
dispute
of interpretation between the MEC and the municipalities.
These need to be decisively resolved by a court. I do sound a warning
that organs of the state must, always, comply with the provisions of
IRFA and s 41 as failure to do so may result in a refusal
to hear the
matter. That I proceed with the hearing of this matter should not be
construed to mean that the intergovernmental disputes
should not be
exhausted before the court is resorted to.
[36]
For the above reasons, whilst I accept that
there was a dispute, I am inclined to exercise my discretion in
favour of hearing the
merits of the application. Accordingly, I
reject the defence raised by NLM based on non-compliance with the
IRFA.
Whether municipalities
may reduce the size of its executive committee after it
has been determined at the inaugural
council meeting
[37]
In
addressing the power of municipalities to reduce the number of its
executive committee members, it is necessary to make reference
to the
constitutional and statutory obligations that the municipalities
bear. Section 151(1) of the Constitution establishes the
local sphere
of government, which consists of municipalities throughout the
territory of the Republic. Subsection (2)
vests
the executive and legislative authority of municipalities in its
municipal councils. And in terms of subsec (3) each municipality
has
‘the right to govern, on its own initiative, the local
government affairs of its community, subject to national and
provincial legislation, as provided for in the Constitution.
[13]
[38]
Section
152,
[14]
in turn, sets out the
objectives of local government, which include:
‘
(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communities
in a sustainable manner;
(c
)
to promote social and economic development;
(d
)
to promote a safe and healthy environment; and
(e
)
to encourage the involvement of communities and community
organisations in the matters of local
government.’
Subsection (2) instructs
that a municipality must strive, within its financial and
administrative capacity, to achieve the objectives
set out in the
Constitution. In terms of s 153
(a)
, a municipality must
‘structure and manage its administration and budgeting and
planning processes to give priority to the
basic needs of the
community, and to promote the social and economic development of the
community’.
[39]
I refer to the above sections for the
reason that both NLM and ZDM contended that the reduction of the size
of their respective
executive committees was brought about as a
result of financial constraints and budgeting. Whether that
consideration is relevant
in the interpretation of ss43 and 45 of the
Structures Act, is what this court must consider later.
[40]
The powers and functions of municipalities
are set out in s 156 of the Constitution. Section 156(5) provides
that a municipality
‘has the right to exercise any power
concerning a matter reasonably necessary for, or incidental to, the
effective performance
of its functions’. Section 43
(c)
vests the legislative authority of the local sphere of government in
municipal councils, as set out in s 156.
[41]
Section 160 of the Constitution, in turn,
deals with the internal procedures of a municipal council. In terms
thereof a municipal
council:
‘
(a)
makes decisions concerning the exercise of all the powers and the
performance of all the functions of the
municipality;
(b)
must elect its chairperson;
(c)
may
elect an executive committee and
other committees, subject to national legislation; and
(d)
may employ personnel that are necessary for the
effective performance of its functions.’ (My emphasis.)
[42]
Pursuant
to the constitutional framework and mandate conferred on
municipalities, the national government enacted various legislative
measures to give effect to the dictates of the Constitution. For
present purposes regard must be had to the Structures Act and
the
Local Government: Municipal Systems Act (“the Municipal Systems
Act”).
[15]
[43]
The dispute between the MEC, NLM and ZDM,
in this application, turns on the interpretation of ss43, 45, 46, 47
and 53 of the Structures
Act. These sections deal with various
aspects of the executive committee and membership to that committee:
(a)
s43 deals with the composition of executive committees for
municipalities;
(b)
s45 deals with the determination of members of executive committees;
(c)
s46 deals with the term of office of members;
(d)
s47 deals with vacancies in the executive committee; and
(e)
s53 deals with the removal from office of executive committees.
[44]
In terms of s43(1)
(a)
of the Structures Act, ‘if the council of a municipality
establishes an executive committee, it must determine a number of
councillors necessary for effective and efficient government,
provided that no more than 20 per cent of the councillors (fractions
to be disregarded) or 10 councillors, whichever is the least, are
determined’.
[45]
In terms of s45, a council must determine
the members of its executive committee from among its members at a
meeting that must be
held:
‘
(a)
within 14 days after the council’s
election;
(b)
if it is a district council, within 14 days after
the last of the local councils has appointed its representatives to
the district
council; or.
(c)
…
[46]
In terms of s46, the members of an
executive committee are determined for a term ending, subject to s47,
when - the type of the
municipality has changed; and the next
municipal council is declared elected. Section 47 deals with
vacancies and provides that:
‘
(1)
A member of an executive committee vacates office during a term if
that member:
(a)
resigns as a member of the executive
committee;
(b)
is removed from office as a member of
the executive committee in terms of section 53; or
(c)
ceases to be a councillor, and
(2)
The filling of a vacancy in an executive committee is subject to
section 43.’
[47]
Section 53 deals
with
removal from office of executive committee members as follows:
‘
(1)
A
municipal
council may, by resolution remove from office one or more or all the
members of its executive committee. Prior notice of an intention
to
move a motion for the removal of members must be given.
(2) If all the members of
an executive committee are removed, a new determination of members
must take place, and a new election
of the mayor and, if the
municipality has a deputy mayor, the deputy mayor, must be held in
terms of sections 45 and 48, respectively.
(3) The election of a
member or members of an executive committee following a removal from
office in terms of this section, is subject
to section 43.’
Discussion
[48]
The
starting point is the Constitution. The Constitution declares its own
supremacy which pervades all law.
[16]
Mr
Madonsela,
counsel
for ZDM
,
correctly
so in my view, submitted that s151 of the Constitution establishes
the ‘autonomy’ of municipalities. I agree,
for indeed the
section vests both the legislative and executive authority of the
municipality to the council. The provisions of
s151 must be read with
s43
(c)
of the Constitution which confirms that the legislative authority of
the local sphere of government is vested in the municipal
council, as
set out in s156. The Constitutional
Court
in
Cape
Town City v Independent Outdoor Media (Pty) Ltd and Others
[17]
held:
‘
In
considering
the impugned provision, one needs to consider the empowering
provisions of s43
(c)
of the Constitution, which provides
that the legislative authority of the local sphere of government is
vested in the Municipal
Councils, as set out in s156. This
entitlement connotes a regulatory and policy-making role more than a
mere authority to administer
and implement prescripts. This position
was confirmed by this court in
Fedsure
, where it was held
that municipal councils are deliberative, legislative assemblies with
constitutionally guaranteed legislative
powers.’ (Footnotes
omitted.)
[49]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[18]
it was held:
‘
Under
the interim
Constitution
(and
the 1996 Constitution) a local government is no longer a public body
exercising delegated powers. It
s council is a
deliberative legislative assembly with legislative and executive
powers recognised in the Constitution itself. Whilst it might
not
have served any useful purpose under the previous legal order to ask
whether or not the action of a public authority was “administrative”,
it is a question which must now be asked in order to give effect to
section 24 of the interim Constitution and section 33 of the
1996
Constitution. The cases referred to by Milne JA are of little
assistance in dealing with this question.
’
[50]
The scheme of the constitutional provisions
under Chapter 7 of the Constitution confers both the executive and
legislative authority
of the municipalities. In interpreting
legislation that gives effect to the provisions under Chapter 7, one
should avoid interpreting
such legislation in a manner that would
subvert the provisions of the Constitution under Chapter 7. In other
words, the interpretation
of any national or provincial legislation
must be within the context of the constitutional provisions under
Chapter 7. By now,
it is well settled that municipalities enjoy both
legislative and executive autonomy from other spheres of government.
That position
is constitutionally ordained.
[51]
The
national or provincial government is expressly prohibited from
compromising or impeding a municipality’s ability or right
to
exercise its powers or perform its functions.
[19]
In my view, where the municipality is empowered by the Constitution
to perform a particular function, irrespective of whether the
national legislation or provincial legislation makes provisions for
the performance of such functions, a municipality is not acting
unlawfully or unconstitutionally if the power can be sourced from the
Constitution.
[52]
Mr
Madonsela
submitted that the relief sought by the MEC is a mere attempt to
interfere with the autonomy and independence of ZDM for impermissible
political reasons. In this regard, Mr
Madonsela
placed reliance on the provisions of s160
(c)
of the Constitution which grants discretion to a municipal council to
elect an executive committee and other committees, subject
to the
national legislation. Section
160
(c)
:
‘
A
Municipal
Council-
(c) may elect an
executive committee and other committees, subject to national
legislation.’
[53]
The contention, in this regard, was that
when a municipality establishes an executive committee, it exercises
an original constitutional
power. The essence of the contention was
that the discretion to establish an executive committee is in the
context of the autonomy
of the municipality granted by s151(2) of the
Constitution. In such circumstances, so the contention goes, if the
council has the
discretion to establish an executive committee,
inherently that power includes the power to change the size of its
executive committee
for as long as, in doing so, the council acts
lawfully. The discretion of the council to form and determine the
size of its executive
committee is conferred as well by s43(1) of the
Structures Act. I agree and I must elaborate. The latter section
requires that
the council decide whether to establish an executive
committee and once it decides, ‘it must determine the number of
councillors
necessary for effective and efficient government’;
and that the number of councilors for the executive committee must
not
be more than 20 per cent of councillors or 10 councillors,
whichever is the least. These numbers reflect the statutory
prescribed
upper and lower limits of the executive committee. There
is no provision in the Structures Act that prohibits the council from
reducing the number of its executive committees. There is merit in
the submission by Mr
Madonsela
.
In my view, if the council is empowered to determine the number of
members of its executive committee with the qualification that
the
number must be necessary for effective and efficient government,
there can be no question that the council can reduce the number
for
the same reasons of effective and efficient government.
[54]
Mr
Pillemer
contended that s43(1) must be read together with s45 of the
Structures Act. In this regard, he submitted that once the number of
the executive committee has been determined in the meeting held
within 14 days after the council’s election in a local
municipality,
and in a district council within 14 days, after the
last of the local councils had appointed its representatives to the
district,
such determined number cannot be reduced or increased.
According to the submission, the number can only be reduced if all
the members
of the executive committee are removed in terms of s53(2)
of the Structures Act.
[55]
Mr
Pillemer
contended that the other provisions of s53 cannot be used as a means
of reducing the size of the executive committee. He contended
that
those provisions are specific for their purpose. The submission was
that the other provisions of s53 must be read with ss47
and 46 of the
Structures Act. Mr
Pillemer
submitted
that s46 fixes the term of the executive committee that has been
determined under s45. The essence of the submission is
that the term
of a member elected to the executive committee that has been
determined will only end if the municipality changes
its type; and
the next council is declared, subject to s47. Section 47 gives three
instances where a member of the executive committee
vacates office
during a term, and these are;
(a)
if he resigns as a member of the executive committee;
(b)
is removed from office as a member of the executive committee in
terms of s53; or
(c)
ceases to be a councillor.
[56]
In a nutshell, Mr
Pillemer
contended that a municipality ‘may not exercise a discretion’
to change the size of its executive committee after it
had been
determined at the start of the term of the council following
elections. The submission by Mr
Pillemer
was that the only exception, where the council can change the size of
its executive committee, is when all the members of the executive
committee are removed in accordance with s53(2).
[57]
I
am not persuaded by the submissions of Mr
Pillemer
that
a municipality cannot reduce the size of its executive committee
after the determination in the first meeting of the council.
Were
that construction to be accepted, it would mean that the municipality
is stuck with its original determined number or size
of the executive
committee, irrespective of its legislative mandate to determine the
number of councillors for the executive committee
that is necessary
for effective and efficient governance. In my view, local government
structures are given greater autonomy which
is derived from the
Constitution. In
City
of Cape Town and Another v Robertson and Another
[20]
it was held:
‘
The Constitution
has moved away from a
hierarchical
division
of governmental power and has ushered in a new vision of government
in which the sphere of local government is interdependent,
“inviolable and possesses the constitutional
latitude
within which to define and express its unique character” subject
to constraints permissible under our Constitution. A
municipality under the Constitution is not a mere creature of
statute, otherwise moribund, save if imbued with power by provincial
or national legislation. A municipality enjoys 'original' and
constitutionally entrenched powers, functions, rights and duties
that
may be qualified or constrained by law and only to the extent the
Constitution permits. Now, the conduct of a municipality
is not always invalid only for the reason that no legislation
authorises it. Its power may derive from the Constitution or from
legislation of a competent authority or from its own laws
.’
(Footnotes omitted.)
[58]
That being so, the legislative and
executive authority of municipalities are not boundless, for, a
municipality’s right to
govern remains subject to national and
provincial legislation.
[59]
The
national legislation in this case is the Structures Act. On the MEC’s
interpretation of s45 of the Structures Act, once
the council has
determined the number of councillors for the executive committee in
its inaugural meeting, it would be stripped
of its discretion to
reconsider the number of committee members necessary for effective
and efficient government as provided for
by s43(1), unless the entire
executive committee is removed in terms of s53(2). The interpretation
of the MEC is not without difficulties.
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[21]
it was held that the present state of the law can be expressed as
follows:
‘…
Interpretation
is the
process
of attributing meaning to
the words used in a document, be it legislation, some other statutory
instrument, or contract, having
regard to the context provided by
reading the particular provision or provisions in the light of the
document as a whole and the
circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the
language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning
is
possible each possibility must be weighted in the light of all
these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute of statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The “inevitable point of departure is the language of the
provision itself”, read in context and having regard
to the
purpose of the provision and the background to the preparation and
production of the document.’ (Footnotes omitted.)
[60]
The background to the Structures Act is the
Constitution. In terms of the Constitution, municipalities are
autonomous. They have
been given a discretion under s 160
(c)
to elect executive committees. In terms of the section, there are no
window periods for the election of the executive committee.
It is
sensible to read ss43(1) and 45 in the context of s160
(c)
and the entire Chapter 7 of the Constitution. In my view, these are
the obligations of councils in its first meetings after elections,
to
decide whether:
(a)
it establishes an executive committee;
(b)
if it does so, to determine the number of councillors for effective
and efficient government;
and
(c)
in terms of s 45 to do so within a period of 14 days after the
council’s elections in the
case of local municipalities and
within 14 days after the last meeting in the case of a district
municipality.
There can be no doubt
that these strict provisions are intended to ensure that the issue of
municipal governance is discussed and
settled at the commencement of
the council. Insofar as the establishment of the executive committee,
the determination of the number
of such executive committees is left
to the council. Such determination is subject to the prescribed upper
and lower limits. I
do not read the statute to mean that the council
is saddled with the number for its executive committee as determined
in the first
council meeting. Based on its executive and legislative
powers, the council may rescind its resolutions for as long as, in
doing
so, it acts lawfully.
[61]
The
preferred interpretation by the MEC would lead to absurdity and
unbusinesslike results. I say so for the reason that the
interpretation
will result in a situation where the municipality
would be saddled with the decision that was made in the first meeting
of the
council in circumstances where the council was not yet
familiar with the needs of the municipality. Secondly, it is easy to
infer
that the council, within a period of 14 days after the
elections, is not well vested with all the measures that would ensure
effective
and efficient government, which s43(1) of the Structures
Act requires from the council when determining the number of
councilors
in the executive committee. In
AmaBhungane
Centre for Investigative Journalism NPC v President of the Republic
of South Africa
[22]
it was stated:
‘
As
always, in
interpreting
any statutory provision, one must start with the
words, affording them their ordinary meaning, bearing in mind that
statutory provisions
should always be interpreted purposively, be
properly contextualised and must be construed consistently with the
Constitution.
This is a unitary exercise. The context may be
determined by considering other subsections, sections or the chapter
in which the
key word, provision or expression to be interpreted is
located. Context may also be determined from the statutory instrument
as
a whole. A sensible interpretation
should
be preferred to one that is absurd or leads to an unbusinesslike
outcome.’ (Footnotes omitted.)
[62]
In
South
African Nursing Council v Khanyisa Nursing School (Pty) Ltd and
Another
[23]
it was held:
‘
The
principles that guide our approach to interpretation have often been
stated: interpretation is a unitary exercise that
takes
account of text, context and purpose. Frequently, lawyers have
recourse to dictionaries as the repository of the ordinary
meaning of
words. This is often a good starting point. But the lawyer’s
reverence for dictionaries has limits. As this court
has observed, to
stare blindly at the words used seldom suffices to yield their
meaning in a statute or contract. Dictionaries
record the history of
how (often disparate) language communities have used words. There is
no straightforward attribution of a
dictionary meaning of a word as
the word’s ordinary meaning so as to construe a statute,
subordinate legislation or a contract.
The dictionary meaning of a
word will often give rise to further questions: for whom is this the
ordinary meaning, as used in which
community? And the different
shades of meaning with which a word has been used, over time, quite
often lead to selectivity bias.
That is to say, the interpreter
chooses the dictionary meaning that best suits the preferred outcome
of the case, rather than the
meaning that shows the greatest fidelity
to the meaning that best fits what has been written, given what we
know as to the institutional
originator of the words, what the words
are used for, and the larger design of the instrument we are called
upon to interpret.’
[63]
I, accordingly, in this regard, hold the
view that the power of the municipal council to change the size of
its executive committee
is in line with the powers of municipalities
in terms of ss 43
(c)
,
151(2) and 156 of the Constitution. The exercise of the powers
granted by the aforesaid sections are confirmed by the discretion
granted to the council under s43(1) of the Structures Act. The
discretion of the council, in terms of s43(1), accords with
s160(1)
(c)
of the Constitution. Accordingly, when councils reduce the size of
its executive committees, it exercises its original power conferred
by the Constitution. In such circumstances, the MEC has no oversight
powers over the municipalities, provided that the municipalities
are
acting within the prescripts of the law.
[64]
Insofar as NLM and ZDM had passed
resolutions in terms of which they reduced the number of their
executive committee members, they
have stated that the number was
reduced as a result of budgetary constraints and that the reduction
was for purposes of effective
and efficient government. The MEC has
not attacked the underlining reasons for the resolutions and the
process followed by the
municipality. Absent the attack on the
legality of the resolutions, they should stand. In terms of s 53(1)
of the Structures Act,
a municipal council may, by resolution, remove
from office one or more or all the members of the executive
committee. All that
the council is required to do when removing a
member of the executive committee or all members of its executive
committee, is to
give a prior notice of intention to remove the
member(s).
[65]
In
this case, the resolutions were preceded by a motion to reduce the
size of the executive committee. Once the resolutions were
passed,
the formula was used for the determination of the seat allocations.
The seats were determined based on the agreed new numbers
for NLM and
ZDM. The seats were accordingly allocated to political parties. None
of the political parties have challenged the legality
of the
resolutions. The resolutions were passed in properly convened council
meetings and there is no complaint about the procedures
that had been
followed. The resolutions were passed by the majority of the council
members and that is in terms of the Constitution.
There is merit in
the suggestion by the ZDM that the MEC is attempting to interfere
with the affairs of the two municipalities.
Based on all these
reasons, I reject the MEC’s interpretation of ss43(1) and 45 of
the Structures Act. I have read the judgment
of
Sookhraj
and Another v Municipal Manager of the Umdoni Local Municipality and
Others
,
[24]
where the issue before the court was not about the power of the
council to reduce the size of its executive committee. It is,
therefore, distinguishable from the present case. I have not found
another case that deals with the power of a council to reduce
the
size of its executive committee after it has been determined in the
inaugural meeting.
[66]
In
MEC
KZN for Local Government, Housing and Traditional Affairs v Amajuba
District Municipality and Others,
[25]
where it was held:
‘
[23]
Finally, that the ultimate choice of who should be on the executive
committee vests in the council, and not in a party or interest
represented in the council, is re-enforced by section 53(1) of the
Act which provides for the removal of a member of the executive
committee by way of council resolution after notice of such a
resolution has been given. This provides a clear indication that
the
Legislature intended the council to determine whether any particular
person should be on its executive committee. If a minority
party
could merely override the majority of a municipal council by
re-nominating a councillor removed from the executive committee,
not
only would it have the absurd result of negating the power extended
to the council under section 53(1) of the Act, but it should
nullify
the council’s constitutional and democratic right to determine
who should be on that committee.
[24] In the light of all
these considerations, it is clear that the council was vested with
the choice to determine who should be
on its executive committee, and
that the members of that committee are to be appointed by way of a
majority vote. The word “elect”
in section 43(1) of the
Act is to be ascribed that meaning rather than that which the
appellant puts forward…’
Conclusion
[67]
For the foregoing reasons, I conclude that
the council has the power to reduce the size of its executive
committee, provided that,
in doing so, it follows a lawful process
and complies with the prescripts of the Structures Act and the
Constitution. The council
cannot increase the number of its executive
committee beyond 20 per cent of its councillors or may not have more
than ten councillors
in the executive committee. The council has the
discretion to determine the number for as long as it complies with
the upper and
lower limits of the number as determined by the
statute. Section 53(1) confers a discretion to the council to remove
one or more
of its executive committee members. The reason for
removal is not required. All that is required from the council is to
ensure
that it gives prior notice of intention to move a motion for
the removal of member(s) from the executive committee. These reasons
may include the reduction of the number of the executive committee.
[68]
The MEC has failed to make out a case for
the relief sought and the application
falls
to
be dismissed.
Costs
[69]
To sum up, both NLM and ZDM have acted
lawfully in reducing the size of their executive committees. The
relief sought by the MEC
cannot stand and the result is that the
application should fail. Regarding costs, both parties have agreed
that there should be
no costs order. The MEC was acting in the public
interest. I assume, without deciding, that the application was
bona
fide
. In these circumstances, each
party will pay its own costs.
Order
[70]
In the result, I make the following order:
1.
The application is dismissed.
2.
Each party shall bear its own costs.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the applicant:
M
Pillemer SC
Instructed
by:
Xaba
Attorneys
Pietermaritzburg
Counsel
for the first and second respondents:
Z
Ndimande
Instructed
by:
Nxumalo
& Partners
c/o
Nhlapho Attorneys
Pietermaritzburg
Counsel
for the Third Respondent:
TG
Madonsela SC
Instructed
by:
Garlicke
& Bousfield Inc
c/o
Stowell & Company
Pietermaritzburg
Heard
on:
23
April 2024
Judgment delivered on:
31 July 2024
[1]
Local
Government: Municipal Structures Act 117 of 1998
.
[2]
Intergovernmental
Relations Framework Act 13 of 2005
.
[3]
The Constitution of the Republic of South Africa, 1996
.
[4]
Section 155(6) of the Constitution provides: ‘Each provincial
government must establish municipalities in its province
in a manner
consistent with the legislation enacted in terms of subsections (2)
and (3) and, by legislative or other measures,
must-
(a)
provide for the monitoring and support of local government in the
province; and
(b)
promote the development of local government capacity to enable
municipalities to perform
their functions and manage their own
affairs.’
[5]
Sections
105 and 106 of the Local Government: Municipal Structures Act, 2000.
[6]
Member
of the Executive Council of the Eastern Cape responsible
for Local Government and Traditional Affairs v
Inkwanca Local Municipality and Others
[2014]
ZAECGHC 82.
[7]
Bowring
NO v Vrededorp Properties CC and Another
2007
(5) SA 391
(SCA) para 21.
[8]
Judicial
Service Commission and Another v Cape Bar Council and Another
2013
(1) SA 170
(SCA)
para
12.
[9]
Sookhraj
and Another v Municipal Manager of the Umdoni Local Municipality and
Others
[2024]
ZAKZDHC 2 para 31.
[10]
Eskom
Holdings SOC Ltd v Resilient Properties
(
Pty)
Ltd and Others
2021 (3) SA 47
(SCA).
[11]
Williams
v Benoni Town Council
1949
(1) SA 501
(W) at 507.
[12]
Competition
Commission v Hosken Consolidated Investments Ltd and Another
2019
(3) SA 1
(CC) para 23.
[13]
Section
151(3) of the Constitution.
[14]
Sections
152(1) and (2) of the Constitution.
[15]
Local
Government: Municipal Systems Act 32 of 2000
.
[16]
Section
1(c) of the Constitution provides: ‘The Republic of South
Africa is one, sovereign, democratic state founded on
the following
values:
(c)
Supremacy of the constitution and the rule of
law.’
[17]
Cape
Town City v Independent Outdoor Media (Pty) Ltd and Others
2024
(1) SA 309 (CC) para 45.
[18]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) para 26.
[19]
Section
151(4) of the Constitution.
[20]
City
of Cape Town and Another v Robertson and Another
[2004] ZACC 21
;
2005
(2) SA 323
(CC) para 60.
[21]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593 (SCA).
[22]
AmaBhungane
Centre for Investigative Journalism NPC v President of the Republic
of South Africa
2023
(1) SA 1
(CC) para 36.
[23]
South
African Nursing Council v Khanyisa Nursing School (Pty) Ltd and
Another
2024
(1) SA 103
(SCA) para 15.
[24]
Sookhraj
and Another v Municipal Manager of the Umdoni Local Municipality
[
2024]
ZAKZDHC 2.
[25]
MEC
KZN for Local Government, Housing and Traditional Affairs v Amajuba
District Municipality and Others
[2011]
1 All SA 401
(SCA).