IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 2613/23
In the matter between:
BREEDE VALLEY ONHAFHANKLIK
Applicant
and
SPEAKER OF THE BREEDE VALLEY MUNICIPALITY
First Respondent
EXECUTIVE MAYOR OF THE BREEDE VALLEY
MUNICIPALITY
Second Respondent
MUNICIPAL MANAGER OF THE BREEDE VALLEY
MUNICIPALITY
Third Respondent
BREEDE VALLEY MUNICIPALITY Fourth Respondent
Coram: Acting Justice A Montzinger
Heard: 01 August 2024
Delivered electronically: 01 November 2024
JUDGEMENT
Montzinger AJ
Summary introduction
1. The applicant, Breede Valley Onafhanklik ("BVO"), a political party, seeks to
review and set aside the decision of the Breede Valley Municipal Council (the
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“Council”), to unilaterally appoint BVO’s members, to serve on the C ouncil’s s 80 1
committees.
2. Section 80 of the Structures Act provides for the establishment of committees,
composed of councillors, to assist the executive mayor or executive committee of the
Council in carrying out their executive functions. In this case the s 80 committees
were established to assist the Council’s executive committee.
3. This matter requires me to determine whether the Council’s decision to
appoint the members of BVO , who are all elected councillors, to serve on the s 80
committees is administrative or executive action . Depending on the nature of the
decision it must then be subjected to scrutiny either in terms of the provisions of
PAJA
2 or the principle of legality.
Chronology of events
4. On 1 December 2021, the Council unanimously adopted resolution
C114/2021, establishing various s 80 committees, each with designated
chairpersons. The committees were aligned with the Breede Valley Municipality's
(the “Municipality”) directorates, covering finance, engineering, public, strategic, and
community services. The resolution required each political party , represented on the
Council, to nominate one councillor to serve on the various committees by 10
December 2021. BVO did not adhere to the deadline and did not nominate any of its
members to serve on the s 80 committees.
5. On 22 March 2022, three months after the December 2021 deadline has
passed, BVO sent a letter to the executive mayor questioning the necessity and
powers of the s 80 committees. In the letter, BVO e nquired whether the committees
would be granted delegated executive powers. BVO’s request for certainty was
motivated by two reasons. Firstly, BVO’s members had other employment in addition
to their roles as councillors of the Municipality; and secondly, they wanted assurance
1 Local Government: Municipal Structures Act 117 of 1998 (the “Structures Act”)
2 Promotion of Administrative Justice Act, 00 of 2000 (“PAJA”)
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that their participation would be meaningful, rather than taking part in discussions
that often proved irrelevant to actual decisions. The executive mayor responded the
following day, confirming that the delegation of powers and duties to s 80
committees is discretionary , and that no powers had been delegated to the
committees, and that there was no intention to do so in the future.
6. In the meantime, the s 80 committees were established. BVO’s members did
not participate, since February 2022, in the committees as confirmed in a letter to
BVO dated 21 July 2022 by the Speaker of the Council . As a result , this letter
informed BVO that under sections 3 and 4 of Schedule 7 to the Structures Act and
the Municipality’s Standing Rules of Order, BVO’s members were obliged to attend
the committee meetings. The letter further warned BVO and its members of potential
sanctions for non- attendance, including that they could be remov ed from office if
they were absent for three or more consecutive meetings. On 3 August 2022, the
Speaker sent another letter, this time referring to the Code of Conduct for
councillors, request ing BVO to participate and to nominate councillors to serve on
the s 80 committees. BVO did not oblige.
7. A council meeting was scheduled for 23 August 2022. The agenda included
item 9.3, with reference to resolution C114/2021 passed in December 2021. Item 9.3
recommended that the Council nominate and appoint the BVO councillors to serve
on the various s 80 committees. A day before the intended council meeting, on 22
August 2022, BVO sent a letter to the Municipal Manager and the Speaker, stating
that resolution C114/2021 did not authori se the Municipality to nominate councillors
on behalf of BVO and request ed a removal of item 9.3 from the agenda.
Furthermore, BVO expressed the view that even if the Municipality had such
authority, the obligation to nominate had lapsed on 10 December 2021.
8. Despite BVO's contestation, item 9.3 was tabled at the Council meeting on 23
August 2022. Resolution C100/2022 was unanimously adopted and provided that the
Municipal Council nominate and appoint the BVO councillors to the various s 80
committees, which it did. The adoption of resolution C100/2022 and the appointment
of BVO’s members to the various committees were communicated to BVO in a letter
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dated 30 August 2022. Pursuant thereto, one of BVO’s members were invited to
attend the s 80 committee meeting for financial services . However, on 10 October
2022 BVO rather sent a letter to the Speaker and e xecutive mayor, confirming that
its member would not attend, and that BVO intended to challenge the nomination
and appointment of its councillors to the s 80 committees.
9. Fearing that its members might be expelled from the Council for failing to
attend the s 80 committee meetings, BVO, as the political party and not its individual
members, almost four months after its October 2022 letter , launched a review
application on 14 February 2023. The basis of the review application was that the
decision it s ought to challenge constitute an administrative action, and as such,
should be reviewed under various provisions of PAJA. Alternatively, BVO contended
that the decision was arbitrary and irrational, thereby warranting a review under the
principle of legality. As a remedy, BVO sought only to have the decision set aside.
10. The Municipality opposed the application on the grounds that the decision
was not administrative but rather executive action. The Municipality further argued
that the Council's power to appoint councillors to s 80 committees is derived from
statute and justified the unilateral appointment of councillors to these committees,
even if against their will, on the basis that councillors are obliged to participate in the
work of the Council for the benefit of the entire citizenry.
11. In evaluating the different contentions, I will first consider whether there was
an unreasonable delay in BVO launching its application. Next, I will contextualise the
establishment of s 80 committees within the relevant legislative framework and
where they fit into the function of a municipal council. I will then determine whether
the decision in question constitutes administrative or executive action, to be able to
determine which standard of review to apply. Based on my findings, I will consider
the appropriate remedy, if any, and finally address the issue of costs.
Was there an unreasonable delay
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12. Subsection 7(1) of PAJA mandates that a review application must be
instituted without unreasonable delay and not later than 180 days. BVO's review
application was filed on day 175. Nearly six months elapsed between the Council’s
decision in August 2022 and BVO's launching of the review application in February
2023. Another 18 months elapsed before the matter was argued before me.
13. Nonetheless, despite my reservations about whether the application was
launched within a reasonable time, the delay issue was not raised in the
Municipality’s answering papers. While I may raise the issue of delay mero motu ,
judgements, like Camps Bay Ratepayers
3, advises caution in doing so where the
respondent has not raised it. In due consideration for judicial economy, it would not
serve any purpose to pronounce on the delay issue any further.
Legislative framework - section 80 committees
14. Section 80 committees, al though established in terms of the Structures Act,
find their foundation in ss 160(1)(c) of the Constitution that deals with the “Internal
procedures’ of the council of a municipality. It empowers a municipal council to elect
an ‘executive committee’ and ‘other committees’, subject to national legislation.
15. In terms of s 42 of the Structures Act only certain type of municipalities may
establish executive committees. One of the functions of an executive committee of a
municipal council is to receive reports from the committees of the council referred to
in s 80 of the Structures Act.
16. A municipal council’s power to establish committees is provided for in sections
79 and 80 of the Structure Act, which is located in part 5 of chapter 4, that addresses
"Other Committees of Municipal Councils".
17. Subsection 79(1) of the Structures Act provides as follows:
‘(1) A municipal council may—
3 Camps Bay Rate Payers’ and Residents’ Association and Another v Harrison and Another 2011 (4)
SA 42 (CC) at para 53 referring to Mamabolo v Rustenburg Regional Local Council 2001 (1) SA 135
(SCA) at 141H and Scott and Others v Hanekom and Others 1980 (3) SA 1182 (C) at 11992E-1194A
Page 6
(a) establish one or more committees necessary for the effective and
efficient performance of any of its functions or the exercise of any of its
powers;
(b) appoint the members of such a committee from among its members;
and
(c) dissolve a committee at any time.
(d)
18. While ss 80(1) of the Structures Act provides for the following:
80. Committees to assist executive committee or executive mayor. —
(1) If a municipal council has an executive committee or executive mayor, it
may appoint in terms of section 79, committees of councillors to assist the
executive committee or executive mayor.
19. When subsections 79(1) and 80(1) are read together, they grant a municipal
council the power to establish committees to ensure the efficient and effective
performance of its functions. S ubsection 79(1) provides the general power for the
council to create committees from among its councillors, while ss 80(1) provides for
the power that the council may establish particular committees to assist the
executive committee or the executive mayor.
20. Up to this point, there is no dispute that the Breede Valley Municipality is a
type of municipality that may establish an executive committee for its Council. That
being the case, there is also no dispute that the Council in this instance could
establish s 80 committees. Where the parties depart is on the appointment of
councillors to serve on s 80 committees. BVO asserts that neither ss 79(1) nor ss
80(1) of the Structures Act grants a municipal council the authority to unilaterally
appoint councillors to the committees. On the other hand, the Municipality’s position
is that the power to appoint councillors to the committees expressly flows from these
sections. I will henceforth return to this issue. First, it is necessary to determine what
is the nature of the action of appointing councillors to s 80 committees.
Is the decision administrative or executive action
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21. The action under scrutiny is the Council ’s decision on 23 August 2022 to
appoint the members of BVO to the s 80 committees. BVO has attacked the decision
in terms of either PAJA or the principle of legality, while the Municipality categorised
the decision as purely executive action. If the Municipality’s contention is correct the
decision is not open to what the Constitutional Court, in Motau 4 described as ‘a
higher level of scrutiny in terms of PAJA 5, but rather being ‘ subject to the less
exacting constraints imposed by the principle of legality’.
22. I
t is well recognised that drawing the distinction between an administrative or
executive action ‘is often not easily made’ . The determination needs to be made ‘ on
a case- by-case basis ;
there is no ready -made panacea or solve- all formula’ 6.
However, although the distinction is hard to make or to recognise the distinction must
be drawn as I am not at liberty to choose between the two bases for review 7, even if
the decision or action is reviewable under both PAJA and the principle of legality. As
the court found in Minister of Home Affairs v Public Protector 8, an applicant for
judicial review does not have a choice as to the ‘pathway’ to review: if the impugned
action is administrative action, as defined in PAJA, the application must be made in
terms of s 6; if the impugned action is some other species of public power, the
principle of legality will be the basis of the review
9.
23. In evaluating whether a decision constitutes an administrative action the
approach followed in Grey ’s Marine
10 have found widespread acceptance in our
jurisprudence. According to Grey’s Marine:
“…Administrative action is rather, in general terms, the conduct of the
bureaucracy (whoever the bureaucratic functionary might be) in carrying out
the daily functions of the state which necessarily involves the application of
4 Minister of Defence and Military Veterans v Motau and Others (2014 (8) BCLR 930 (CC); 2014 (5)
SA 69 (CC (“Motau”)
5 Par 27
6 Motau par 36
7 Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC), 2006 (8) BCLR 872,
Chasklason CJ paras [95], [96] and Ngcobo J paras [426]-[428]
8 Minister of Home Affairs and Another v Public Protector of the Republic of South Africa [2018] 2 All
SA 311 (SCA); 2018 (3) SA 380 (SCA) – par 27
9 Minister of Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment Action
Campaign & another as amici curiae) 2006 (2) SA 311 (CC); [2005] ZACC 14 - paras 95-97
10 Grey’s Marine Hout Bay (Pty) Ltd & others v Minister of Public Works & others [2005] ZASCA
43; 2005 (6) SA 313 (SCA) para 21. (“Grey’s Marine”)
Page 8
policy, usually after its translation into law, with direct and immediate
consequences for individuals or groups of individuals.” [footnotes omitted]
24. I may be oversimplifying it, but i n short , following Grey’s Marine , what will
assist me is to determine whether the administrative action is in general about
implementing a policy rather than creating one, and whether it involves practical
routine decisions that directly affect people’s rights or obligations.
25. BVO’s founding and supplementary affidavits contained no allegations why
the decision it seeks to review is administrative action. The allegation is simply made
that the decision is reviewable in terms of PAJA. It was simply argued that firstly, the
role and functions of s 80 committees is not closely related to policy formulation.
Secondly, that a decision appointing councillors to committees in terms of the
Structures Act does no more than give effect to the legislative framework as opposed
to giving effect to policy. Thirdly, the proposition was advanced that the court should
not focus on the source of the function but rather the nature and that since the
decision to establish s 80 committees involve a discretion it points towards being a
policy implementation issue and is therefore administrative in nature. Lastly, it was
argued that the appointment of councillors to s 80 committees is more in the nature
of the discharge of low -level bureaucratic power in the daily functions of a
municipality, and for that reason, on a legal policy basis it would be appropriate to
subject the exercise of that power to the more rigorous, administrative- law review
standard provided for in PAJA.
26. The Municipality in its answering affidavit provided a substantial basis why it
contended the decision was executive action. It provided an explanation of the roles
of s 80 committees and why the decision to appoint BVO’s members to the
committee constitutes executive action. It was argued on behalf of the Municipality
that the decision by the Council to appoint councillors to s 80 committees does not
qualify as administrative action for three main reasons. First, the decision does not
involve ‘the conduct of the bureaucracy ’ in routine state functions but rather pertains
to the structural organi sation of the C ouncil, deriving from its powers under ss
160(1)(c) of the Constitution. Second, the s 80 committees serve as extensions of
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the Council’s policy -forming role, offering the executive committee advice for
informed governance. Third, the power to appoint councillors to these committees is
closely tied to the Council’s broad, policy -formulating functions that makes it
executive in nature. BVO’s replying affidavit failed to engage with the allegations by
the Municipality and dismissed it as legal argument.
27. Before evaluating the different argument s, I will address the contention on
behalf of BVO, that while the decision to establish s 80 committees may be executive
action, the decision to appoint councillors to serve on the committees is rather
administrative action. The argument is not persuasive for the reason that the creation
of the committees and the appointment of councillors to serve on them are joined at
the hip. It must be that if the decision to establish s 80 committees is executive
action, then the appointment of councillors to serve on the committees attracts the
same classification. The creation of the committee involves the appointment of
councillors to serve on them. There can be no committee without the councillors.
There is no basis for a piecemeal approach in attempting to differentiate between a
series of decisions that has to do with the same issue.
28. Returning to whether the decision is administrative of executive action. I am
not persuaded that the decision which BVO seeks to review is administrative action.
On the facts of this matter, there are a myriad of reasons why this is so. I identify
only a few.
29. The source and nature of the power to constitute s 80 committees and appoint
councillors to serve on them has an executive character to it. As mentioned earlier ,
the power to create committees is expressly provided for in the Constitution.
11 In
addition, the power to appoint s 80 committees forms part of chapter 4 of the
Structures Act, which sets out the executive functions of a Municipal Mayor and
Council.
30. The Structures Act further envisaged the establishment of the committees to
assist the executive committee in executing its tasks. The decision to appoint
11 ss 160(1)(c)
Page 10
councillors to these committees does not stem from administrative or policy
implementation obligations. Instead, it represents an exercise of a limited discretion
and strategic allocation of resources within the C ouncil to align with its broader
executive functions rather than the daily operational duties associated with
administrative action. To be clear, t he discretion the Council has relates to the
decision whether to create the committees in the first place. The discretion is not in
the nature that lends itself to administrative action as there is no obligation that the
Council have to establish s 80 committees. A council can serve an entire term
without establishing the committees. This points towards a discretionary power that
is circumscribed and afforded to the executive to exercise when needed. However,
there is not discretion on the obligation to appoint councillors to serve on the
committees.
31. Further, as the court found in Masondo
12, although in relation to an executive
committee, actions associated with the internal functioning of council structures,
such as committee appointments, fall within the executive scope of authority.
Applying the reasoning in Masondo, the appointment of a councillor to serve on s 80
committees impacts only the internal structure of the C ouncil, rather than directly
affecting the public’s rights in a way that would activate the protections of PAJA.
32. Also, I agree with the Municipality contentions, that having regard to how the
power to create s 80 committees is set in the legislative scheme of the Structures
Act, these committees serve as adjuncts to the policy -formulating function of the
municipal council. They rather seem to be aimed at assisting the executive
committee in obtaining information, advice, and recommendations, which would then
play an integral part to potential policy formulation and strategic decision- making.
This is consistent if one has regard to it that the key duties of the executive
committee are stated in ss 44(2)(a) – (d) and ss 44 (3)(a) – (h) of the Structures Act,
and includes assisting the Council to ensur e efficient governance, service delivery,
and community development.
12 Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) (“Masondo”)
Page 11
33. Furthermore, the action to create the committees and to appoint councillors to
them had no direct external legal effect as it only had an effect on the councillors of
BVO. It only required them to serve on and attend the s 80 committee meetings. In
fact, the primary basis for BVO’s application was because its members complained
that they had other engagements in addition to being councillors and that they found
the workings of the committees a waste of time. There was no suggestion on the
papers that the decision had an external effect nor is there any indication that it
would have. There was some suggestion during argument, that appointing BVO’s
members to the committees affects its constituency, but this claim is far fetch. BVO’s
members are not being excluded from the work of the Council, but rather included. It
is inconceivable that BVO’s constituency will find it offensive that its representatives
are being asked to participate in the work of the Council.
34. Having regard to the nature of the action, its purpose and objective I am also
not persuaded that the decision ought to be subject ed to a higher threshold of
scrutiny under PAJ A, rather than the principle of legality. The creation and
appointment of a councillor to serve on the s 80 committees is discretionary and
further away from the effective discharge by a municipality of its day-to-day
administrative functions. Neither BVO, or the Council has presented a case that the
Municipality or the Council is defunct because of the ineffectiveness of the
committees or as a result of the members of BVO’s failure to participate or not. In
fact, BVO in its replying affidavit spend considerable focus on making out a case
how the Municipality can function without the creation of s 80 committees and also
how its members can still contribute to the work of the Council without having to take
part in the work of s 80 committees.
35. I am therefore not persuaded that the decision to appoint BVO’s members to
serve on the s 80 committees falls within the definition of administrative action in
terms of PAJA. The action must therefore be scrutinised under the principle of
legality.
Does the decision contravene the principle of legality
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36. In support of its case that the Council’s decision does not survive the legality
standard of review , BVO’s case in the supplementary affidavit is premised on two
pillars. Firstly, that the decision is ultra vires , since resolution C114/2021 did not
authorise the Council to unilaterally nominate and appoint councillors who had not
been nominated by their political party. Secondly, that the decision to appoint BVO’s
councillors to s 80 committees against their will was not rationally connected to the
purpose of the power in terms of resolution C114/2021 or any enabling legislation, as
there is no requirement in s 80 that the committees must include members of all the
different political parties. Furthermore, by BVO’s members not being on these
committees the business of the Council would not be affected.
The legal principles: a legality review
37. The doctrine of legality is one of the constitutional controls through which the
Constitution regulates the exercise of public power
13. In assessing the legality of
executive action, there are generally two major considerations. The first
consideration is whether the functionary that performed the action did so within the
powers conferred on it14 (intra vires) or beyond those powers ( ultra vires). Secondly,
an objective assessment whether the exercise of a power is rationally related to the
purpose for which the power was given
15, and is not arbitrary16. Related to rationality
is a further consideration which is, whether the process followed to arrive at the
decision was rational.17
38. On the issue of procedural irrationality the position is as confirmed in Law
Society
18. Procedural fairness is not a requirement that has to be assessed under
13 ABSA Bank Ltd and related matters v Public Protector and others [2018] 2 All SA 1 (GP) par 52
14 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) para 58 and
Affordable Medicines Trust and Others v Minister of Health and Others [2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) at paras 49, 75 and 77.
15 Motau par 69
16 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of
the Republic of South Africa and Others [2000] ZACC 1 ; 2000 (2) SA 674 (CC); 2000 (3) BCLR
241 (CC) at n 32 at par 85.
17 Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20;
2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007) (“Masetlha”)
18 Law Society of South Africa and Others v President of the Republic of South Africa and Others
2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (“Law Society”)
Page 13
legality, as per the finding in Masetlh. However, depending on the circumstances of
the case Mogoeng J in Law Society endorsed the approach followed in Albutt19 and
Simelane20 that what is important is rather procedural irrationality, which is a
requirement under legality. The position is therefore that procedural fairness has to
do with affording a party likely to be disadvantaged by the outcome the opportunity to
be properly represented and fairly heard before an adverse decision is rendered.
While procedural irrationality is about testing whether or ensuring that there is a
rational connection between the exercise of power in relation to both process and the
decision itself and the purpose sought to be achieved through the exercise of that
power
21.
The Ultra Vires attack
39. This basis for review is not couched as an attack that s 80 does not empower
the Council to appoint members from among itself to serve on the committees.
According to BVO the decision is ultra vires , since resolution C114/2021 did not
authorise the Council to unilaterally nominate and appoint councillors who had not
been nominated by their political party. This ground of attack draws the two
resolutions into focus.
40. Resolution C114/2021 recorded that in terms of ss 160(8) of the Constitution,
members of a municipal Council are entitled to participate in its proceedings and
those of its committees in a manner that, inter alia: - a llows parties and interest s
reflected within the Council to be fairly represented; and i s consistent with
democracy. The resolution recommended the creation and establishment of certain s
80 committees and the appointment of certain councillors as chairperson s to the
committees. On the appointment of councillors to the committees it was resolved that
the executive mayor appoint the chairpersons and that:
“…each party nominate one Councillor to serve on the above Committees and
submit their names on or before 10 December 2021 at the Speakers’ office.”
19 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA
293 (CC); 2010 (5) BCLR 391 (CC) (“Albutt”);
20 Democratic Alliance v President of South Africa [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12)
BCLR 1297 (CC) (“Simelane”) at paras 34-5.
21 Law Society supra paras 61 - 65
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41. I understand BVO’s argument to be that having regard to resolution
C114/2021 the power to ‘nominate’ councillors to serve on the s 80 committees was
reserved for the political parties. As a result the Council could not pass the later
Resolution C100/2022, in August 2022, to ‘nominate’ and ‘appoint’ councillors to
serve on the s 80 committees.
42. I am not convinced of the ultra vires argument based on resolution C114/2021
for at least the following reasons. Firstly, s 80 clearly affords the Council the power to
‘appoint’ its councillors to serve on the committees and there is nothing in the
wording of resolution C114/2021 to suggest that it restricted the power of the Council
to continue to do so. Secondly, there is no indication in resolution C114/2021 that
suggest that if the political parties do not nominate their members, that the Council is
barred from making appointments in terms of s 80 of the Structures Act.
43. Thirdly, as BVO has pointed out , the power afforded to the political parties to
nominate their members had lapsed on 10 December 2021. So even if there was
merit in relying thereon that resolution C114/2021 restrained the Council ’s power ,
that restraint has lapsed by December 2021 and was no longer effective by August
2022, when resolution C100/2022 was passed.
44. Lastly, the nomination of councillors to serve on s 80 committees is not a
precondition for ‘appointment’ in terms of s 80 of the Structures Act. BVO found
value in this attack since Council actually provided the political parties the
opportunity to recommend which members would serve on which committees. On
my reading of sections 79 and 80 the Council could simply have appointed council
members from amongst themselves, without a nomination process. The fact that the
council incorporated a nomination process did not dilute the power it had in terms of
s 80 to simply appoint its members to the committees.
45. I therefore find that the decision cannot be reviewed on the basis that it was
ultra vires the resolutions on which BVO relied.
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The Rationality of the decision
46. BVO submits that it was highly irrational for the Council to appoint BVO
councillors against their will and without party nomination. Furthermore, it was
submitted on behalf of BVO that there is no requirement in s 80 that the committees
must include members of all the different political parties and that the business of
council would be affected, if it does not have representation by all the different
political parties. Procedurally, BVO also contend that the procedure was irrational
since resolution C114/2021 called for nominations and the Council ignored its own
resolution and appointed Councillors against their will.
47. There are various difficulties with BVO’s attack on the basis of rationality.
48. As the court has said in Allbutt
22 I should be mindful not to interfere with the
means the Council selected to appoint councillors to its s 80 committees simply
because I, for that matter BVO, do not agree with it or because there are other more
appropriate means that could have achieved the same objective. I must determine
whether the Council’s chosen means are rationally connected to the intended
objective.
49. What were the chosen means, and what was the intended objective? The
means selected can easily be disposed of, as this is, what BVO termed the
‘unilateral’ appointment of its councillors. Coupled with that is the fact that there was
a resolution passed rather asking the political parties to nominate, which the Council
later ignored. I have already found that resolution C114/2021 on BVO’s version has
lapsed by August 2022. However, for purposes of this ground of attack I will
approach the matter from the position that there was a resolution making provision
for nomination and notwithstanding the resolution the Council still appointed BVO’s
members to the s 80 committees. The means was therefore: the unilateral
appointment of councillors despite a resolution that afforded the political party the
right to nominate which councillors it wanted to serve on the s 80 committees or not.
22 Par 51
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50. The Municipality has provided a comprehensive explanation of why appointing
BVO councillors to the s 80 committees was rational . As an active participant in the
Council BVO did not dispute the rationale for creating s 80 committees and the roles
and responsibilities of a council member . To determine if the means were justified, I
must consider the purpose of s 80 committees alongside the roles and
responsibilities of municipal councillors. In my view the following factors constitute
the objective the Council wanted to achieve by appointing the members of BVO in
the manner that it did:
50.1 Section 80 committees are established to assist the executive
committee or executive mayor by providing information, advice, and
support essential for informed decision- making and to ensure efficient
and accountable governance.
50.2 The Constitution and Structures Act empowers a municipal council to
appoint councillors to s 80 committees, even in the absence of
nomination by their political party. Certainly this is to ensure that all
political interests within the council are represented. Subsection 160(8) of
the Constitution emphasises the principle of fair representation and
requires that minority parties participate meaningfully in council
processes. This inclusivity is fundamental to the democratic operation of
the council and supports the Council’s broader mandate of fostering
participatory governance.
50.3 BVO’s councillors, like all councillors, are obligated under s 53 of the
Municipality’s Roles and Responsibilities Manual to engage actively in
council business. Their duties transcend party interests and include
serving the community, which necessitates their participation in
committee work.
51. Consequently, for the reasons stated in the previous paragraphs, the
Council’s decision aligns with and upholds the legislative framework designed to
facilitate inclusive and effective municipal governance. Therefore, the means of
unilateral appointment were justified and rational when considered against the
unqualified power to appoint as contained in s 80 of the Structure Act.
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52. Given the legislative and constitutional imperatives, the unilateral appointment
of councillors to s 80 committees can be rationally justified. It ensures the proper
functioning of the committees, aligns with the democratic principles of fair
representation, and enforces the responsibilities that councillors have to participate
in municipal governance. Allowing councillors to opt out of committee work would
undermine the governance structure established by the Structures Act and subvert a
council’s obligation to participate in delivering efficient and inclusive municipal
services.
53. With regard to procedural fairness or irrationality. I am of the view that this
matter did not warrant the BVO councillors being heard before they are appointed.
Section 80 does not provide for such an opportunity. Furthermore, they are
councillors and s s 80(1) read with s s 79(1) allows for councillors to be appointed,
and part and parcel of being a councillor is to take part in the work of council. It is
therefore not clear on what basis the BVO councillors could insist on a right to be
heard before they are appointed.
54. Also, as I have found, the Council’s decision to unilaterally appoint BVO
members to the s 80 committees must be viewed within the specific legal and
contextual framework governing municipal governance and the unique role of
councillors. The decision to unilaterally appoint did not make the observance of
procedural fairness irrelevant. Rather, the distinguishing factor here is the special
legal duty that councillors have, rooted in their roles as elected representatives
responsible for serving the entire community and contributing to the effective
functioning of the Council. Councillors are fundamentally obligated to participate in
council and committee activities, a duty stemming from their role that demands
active engagement beyond party affiliation.
55. All of the reasons mentioned are in support of my finding that t he decision to
unilaterally appoint BVO councillors to the s 80 committees does not amount to
procedural irrationality because the chosen means are rationally connected to
achieving the intended objective. The decision therefore does not offend the principle
of legality and is not liable to be set aside.
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Conclusion
56. I therefore find that the decision which BVO sought to review is executive
action and reviewable in terms of the legality standard. Applying that standard it
survives scrutiny as the decision to appoint BVO councillors to the s 80 Committees
was rational and the means in doing so justified the objective.
57. In respect of costs, I see no reason why it should not follow the result.
58. The application is therefore dismissed with costs , with costs of counsel on
scale B as from 12 April 2024.
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicants’ counsel: Adv DC Joubert SC
Applicant’s attorney: Chris Fick & Associates
Respondents’ counsel: Adv T Sarkas
Respondents’ Attorney: Fairbridges Wertheim Becker