REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 19623/2024
In the matter between:
DEMOCRATIC ALLIANCE First Applicant
LINCOLN DE BRUYN Second Applicant
And
COUNCIL OF THEEWATERSKLOOF
LOCAL MUNICIPALITY First Respondent
SPEAKER OF THEEWATERSKLOOF
LOCAL MUNICIPALITY Second Respondent
THEEWATERSKLOOF LOCAL MUNICIPALITY Third Respondent
JOHN MICHELS Fourth Respondent
THEUNIS ZIMMERMAN Fourth Respondent
Heard: 20 September 2024
Delivered: 15 November 2024
__________________________________________________________________
JUDGMENT
__________________________________________________________________
LEKHULENI J
INTRODUCTION
[1] This application is brought by the Democratic Alliance ('the DA') and
Councillor Lincoln De Bruyn ('Councillor De Bruyn') seeking urgent declaratory relief
from this Court regarding two decisions made by the Council of Theewaterskloof
Local Municipality. These decisions were taken during a special council meeting held
on Monday, 2 September 2024. The decisions involve the removal of Councillor De
Bruyn from his position as Executive Mayor of the Municipality and the election of
Theunis Zimmerman ('the fifth Respondent') as the new Executive Mayor. The
applicants seek an order that these decisions ('the impugned decisions') be declared
unconstitutional, unlawful and invalid and that they be reviewed and set aside.
[2] In addition, the applicants seek a personal, punitive costs order against the
Speaker of the Council ('the fourth respondent'). This prayer is based on the premise
that the Speaker acted in bad faith, was grossly negligent, and ignored clear and
obvious mandatory legal requirements. The applicants contend that the Speaker
overstepped his authority and failed to comply with his duty as a public official and
grossly violated Councillor De Bruyn's right to a fair and lawful process in relation to
his removal as the Executive Mayor.
FACTUAL BACKGROUND
[3] The first applicant is the Democratic Alliance a registered political party with
11 seats in Theewaterskloof Municipal Council. Councillor D e Bruyn, the second
applicant, is a member of the DA and was officially appointed as the Executive
Mayor of Theewaterskl oof Municipality on 14 August 2024. However, he was
removed from his position following a motion of no confidence during a special
council meeting held on 2 September 2024. Subsequent thereto, the fifth respondent
was appointed new Executive Mayor of Theewaterskloof Municipality in that meeting.
[4] The applicants seek to challenge the impugned decisions made by the
Council during the special council meeting to remove Councillor De Bruyn from the
position of Executive Mayor of the Municipality and to appoint the fifth respondent as
the new Executive Mayor. The sequence of events leading to the meeting held on 2
September 2024 and the subsequent removal of Councillor De Bruyn from the
position of Executive Mayor can be summarised as follows:
[5] Theewaterskloof Municipality can be considered a hung Municipality, meaning
no party has an outright majority of the Council. Coalition parties manage the
Council. The Municipality operates on a precarious balance since the Council is
governed by coalitions rath er than a simple majority. In July 2024, a motion of no
confidence was proposed to remove Ms Mary Liebenberg, who was serving as the
Municipality's Executive Mayor. The motion was driven by a joint Coalition Caucus
comprising the Good Party, the DA and SRW P. After the removal of Councillor
Liebenberg, Councillor De Bruyn was appointed as an Executive Mayor of the
Municipality. The appointment of Councillor De Bruyn was due to a joint coalition
caucus.
[6] On 16 August 2024, the African National Congress ('the ANC'), through its
Councillors, gave notice of a motion of no confidence for the removal of Councillor
De Bruyn as the Executive Mayor. In the Notice of Motion, substantial reasons were
provided for the removal of Councillor De Bruyn. The ANC presente d the following
reasons for Councillor De Bruyn's removal:
“The reasons for moving the motion is because the Executive Mayor,
Councillor is as follows:
Interference in Administrative Functions: The Mayor has directly
intervened (sic) in administrative matters, undermining the authority and
independence of municipal officials . On 15 th August 2024, the Mayor gave
verbal instruction(s) to the acting Municipal Manager to “fire” and remove an
official from the municipality administration.
Violation of Municipal Systems Act: The Mayor's actions contravene the
Municipal System Act, which mandates a clear separation between the
council's policy-making role and the administration's implementation role.
Obstruct the implementation of Council decisions : The Mayor’s
interferences has obstructed a senior manager and prevented him to
implement council decisions , as evidenced by the Mayor's direct instructions
to the senior manager (Wilfred Solomons-Johannes) in front of his staff in a
meeting held on 15 th August 2024, that he is not allow (sic) to manage
anything and can only have access to his work emails.
Erosion of Public Trust: The Mayor’s actions have eroded public trust in the
municipality’s ability to govern effectively and transparently.”
[7] The applicants assert that section 29(1) of the Local Government Municipal
Structures Act 117 of 1998 ('the Structures Act') empowers the Speaker to decide
when and where the Council meets and provides that if a majority of the councillors
request the Spea ker in writing to convene a council meeting, the Speaker must
convene a meeting at the time set out in the request. The applicants further aver that
in terms of Rule 6(6) of the Rules of Order adopted by the Council, the Speaker must
convene a special coun cil meeting pursuant to a written request from a majority of
Councillors. However, on Friday, 23 August 2024, Ms Marelize Faul, the Manager of
Corporate Services, gave notice to Councillors that a special council meeting had
been called for Thursday, 29 August 2024 and that the agenda for the meeting would
be distributed as soon as it was available.
[8] According to the applicants, Ms Faul had no authority to call for a special
council meeting. Furthermore, the applicants asserted that the special council
meeting for 29 August 2024 was also unlawfully called in violation of Rule 6(6) of the
Rules of Order, as there was no written request submitted to the Municipal Manager
by a majority of Councillors to call a special council meeting.
[9] The applicants contend that the special council meeting held on 29 August
2024, was unlawfully convened. They assert that the Council was not legally
permitted to consider or make decisions on any matters due to non -compliance with
Rule 6(6) of the Rules of Order and Section 29(1) of the Structures Act. On 26
August 2024, a municipal official, Mr Zamion Baron, dis tributed an agenda for the 29
August 2024 council meeting. In terms of this correspondence, the Municipal
Manager gave notice that a special council meeting had been called for 09h00 on 29
August 2024 to discuss matters listed on the agenda. None of the ma tters on the
agenda included the removal or election of the Executive Mayor.
[10] On Tuesday, 27 August 2024, at 15h37, Mr Baron notified Councillors that the
Speaker had requested a change in the time of the special council meeting
scheduled for 29 Augu st 2024. According to Mr Baron, the Speaker wished to
change the time for the meeting from 09h00 to 14h00. Later that day, at 16h35, Mr
Barron distributed a further agenda for the special council meeting scheduled for 29
August 2024 to the Councillors for discussion. The second agenda for 29 August
2024 did not include any matters dealing with the removal or election of an Executive
Mayor of the Municipality.
[11] On Wednesday, 28 August 2024, at 11h36, Mr Baron distributed a further
supplementary agenda for the special council meeting scheduled for 29 August 2024
to the Councillors for discussion. The third agenda also did not include any matters
dealing with the removal or election of the Executive Mayor of the Municipality. On
28 August 2024, at 15h22, Mr Baron distributed a fourth supplementary agenda for
the special council meeting scheduled for 29 August 2024 to Councillors for
discussion. This agenda only referred to the report presented by the directorate of
community services for discussion. It did not include any matters dealing with the
removal or election of the Executive Mayor of the Municipality.
[12] The applicants asserted that on 29 August 2024, the special meeting began at
14h00. The applicants stated that after the declarations of the Speaker and
Councillor De Bruyn as the Executive Mayor, the Speaker ought, in terms of the
agenda, to have proceeded to deal with the announcement of Councillor De Bruyn
as the Executive Mayor of members of the Mayoral Committ ee. The Speaker,
however, unilaterally removed the relevant item from the agenda and sought to deal
with the announcement of Chairpersons and committee members . The applicant s
assert that representative Councillors of the ANC complained that the Speaker could
not deal with the announcement of Chairpersons and committee members without
first allowing for the announcement of the members of the Mayoral Committee.
[13] After a heated debate and disruptions , the Speaker adjourned the special
council meeting for an hour . When the special council meeting recommenced at
16h30, the representative Councillors of the ANC complained about the Speaker's
failure to adhere to the rules . According to the applicants, the ANC Councillors
complained that because the Speaker had adjourned the special council meeting, it
could no longer continue , and a new meeting with an agenda had to be called in
terms of the Rules of Order.
[14] The appl icants further state that the Speaker subsequently adjourned the
meeting to continue on Monday, 2 September 2024. According to applicants, the
Speaker's decision to adjourn the 29 August 2024 special council meeting to 2
September 2024 contravened Rule 33 of the Rules, which regulates the adjournment
of Council meetings. This Rule prescribes that a council meeting may only be
adjourned pursu ant to a motion that is proposed by a Councillor, seconded by
another and adopted by the Council. In terms of Rule 33(6) of the Rules of Order, a
meeting that has been adjourned must be reconvened on the date specified in the
motion or amended motion.
[15] The applicants contend that there was no proposal for the 29 August 2024
special council meeting to be adjourned, let alone a proposal that was submitted and
adopted by the Council. To this end , the applicant s averred that the Speaker’s
decision to adjourn the 29 August 2024 special council meeting to 2 September 2024
was unconstitutional and unlawful.
[16] In anticipation of the meeting for 2 September 2024, on Sunday 1 September
2024, at 11h47, Ms Faul sent an email to the Councillors on behalf of the Speaker
regarding the special council meeting scheduled for 2 September 2024. In the said
email, the Speake r requested that an annexe and supplementary agenda be
distributed for discussion at the meeting on 2 September 2024. The annexe
distributed on behalf of the Speaker dealt with a matter entitled Validity of the
appointment of the Executive Mayor of the Mun icipality. This item also included a
report from the Municipal Manager concerning the validity of Councillor De Bruyn's
appointment as the Municipality's Executive Mayor.
[17] In addition, through Ms Faul's email, the Speaker also distributed a
supplementary agenda with an item entitled 'Notice of motion for the removal of the
Executive Mayor of Theewaterskloof Municipal Council (Alderman LM de Bruyn) in
terms of Rule 26 of the By -law on Rules of Order for the Internal Arrangement of the
Municipal Council ’. Given the extremely limited time frame between when the
applicants were informed about the notice of motion calling for Councillor De Bruyn's
removal and the 2 September 2024 special counci l meeting, Councillor De Bruyn
asserts that he could not collect and prepare evidence and submissions to the
Council to deal fairly with the allegations against him. Councillor De Bruyn further
contended that it was plainly unfair of the Speaker to afford him, and other
Councillors less than 24 hours' notice to consider and prepare for the motion of no
confidence in him as the Executor Mayor.
[18] In amplification of their contention, the applicants averred that Councillor De
Bruyn was unable to respond ad equately to the allegations in the motion in the few
hours between when the Speaker gave him the notice just before midday on Sunday,
1 September 2024, and the 2 September 24 council meeting that began at 10h00.
The applicants further stated that the unfai rness of the Council considering the
motion of no confidence, and the 2 September 2024 special council meeting was
also compounded by the fact that the motion is dated 16 August 2024 but was only
handed to Councillor De Bruyn on the eve of the adjourned special council meeting.
[19] In addition, the applicants asserted that t o date, the Speaker has failed to
explain why he waited until the day before the special council meeting, scheduled for
02 September 2024, to disclose the notice of motion calling for Councillor De Bruyn’s
removal as the Executive Mayor.
[20] At the special council meeting held on 2 September 2024, the Council
considered the motion of no confidence against Councillor De Bruyn and decided to
remove him as the Executive Mayor. The Council subsequently proceeded to elect
Theunis Zimmerman as the Executive Mayor of the Municipality. The applicants seek
a declaratory and review relief in respect of the impugned decisions. According to the
applicants, these decisions constitute the exercise of public power and are
reviewable by this Court under the principle of legality. The applicants contended that
to the extent that this Court upholds the applicants' review in respect of the Council's
decision to remove Councillor De Bruyn as the Executive Mayor, the subsequent
decision taken by the Council to appoint the fifth respondent as the Executive Mayor
is unlawful and stands to be reviewed and set aside.
[21] On the other hand, the respondents opposed the applicants' application. As
the second respondent, the Speaker filed an answering affidavit on behalf of the
other respondents and questioned the urgency of this application. The Speaker
asserted that the matter could not be urgent as Councillor De Bru yn participated in
the 2 September 2024 special council meeting to be appointed Executive Mayor but
failed. Regarding the merits of the application, the Speaker stated that the
Municipality has complied with both the Rules of Order and the statutory provis ions,
rendering the removal of Councillor De Bruyn complaint.
[22] To this end, the Speaker implored the Court to dismiss the applicants'
application with costs. The Speaker explain ed that on 16 August 2024, the ANC,
through Councillor Derrick Appel, gave notice of the removal of Councillor De Bruyn
as the Executive Mayor. The said notice of motion of no confidence was in terms of
Rule 26(1) of Theewaterskloof Rules of Order that Counc illor Mr Nongxaza
seconded.
[23] The Speaker stated that the DA received the notice on the same day, 16
August 2024. The notice provided significant reasons for the removal of Councillor
De Bruyn, as detailed in paragraph 6 above. The Speaker asserted that in terms of
Rule 26(1) of the Rules of Order, the motion had to be introduced at the next Council
meeting or on a date determined by the Speaker in line with Rule 26(1) at least ten
(10) working days before the date of the council meeting at which it is to be
introduced. Ten days from 16 August 2024, when the motion was received, was 30
August 2024.
[24] The council meeting took place on 29 August 2024. As a result, the motion of
no confidence to remove Councillor De Bruyn was not included o n the agenda for
this meeting since the required 10 -day notice period had not yet expired. The
Speaker asserted that on numerous occasions, he informed the DA caucus that
there was a motion of no confidence against Councillor De Bruyn for his removal.
The Speaker also mentioned that he personally informed Councillor De Bruyn that
there was a council motion for his removal and asked him what he would do about it,
but the latter did nothing about it.
[25] On 30 August 2024, the ANC formally inquired about t he scheduled date for
the debate on the motion. A virtual special council meeting was held on 31 August
2024, during which the ANC also inquired about the motion. However, due to
network connectivity issues experienced by the councillors, only two items co uld be
addressed on the agenda. On request by the administration, the Speaker asserted
that he granted permission for the outstanding issues to form part of the 2
September 2024 special council meeting. The administration advised him that the
motion of no confidence could serve at the meeting on 2 September 2024. Despite
his instruction on 31 August 2024, the supplementary agenda, which included the
motion of no confidence against Councillor De Bruyn, was only sent on 1 September
2024.
[26] On 29 August 2 024, the joint coalition caucus agreed that certain items be
withdrawn and that the announcement of the Mayoral Committee would be made
with the second item, which dealt with the composition of the section 80 Committees
of which members of the Mayoral Comm ittee would be the chairpersons. The
Speaker further stated that because they anticipated disruption of the ANC
challenging Councillor De Bruyn as Executive Mayor, the DA and Councillor De
Bruyn did not object when the meeting was adjourned on 29 August 20 24. The
Speaker disputed vehemently the assertion by Councillor De Bruyn that he
unilaterally and unlawfully removed certain items from the agenda. According to the
Speaker, the joint coalition caucus decided to remove the items of which the second
applicant was the chairperson.
[27] The reconvened meeting of 29 August 2024 after the adjourned meeting was
requested by the majority of the councillors led by the DA. The Speaker contended
that the ANC representative Councillors correctly pointed out t hat the reconvened
meeting was against the Rules of Order. As a result, a new meeting was called;
therefore, the meeting of 2 September 2024 was not a resumption of the 29 August
2024 meeting. The Speaker indicated that the meeting on 2 September 2024 was
agreed upon by all parties involved. To claim that this meeting is unlawful is
unreasonable, as everyone consented to it.
[28] The Speaker further propounded that the meeting of 2 September 2024 was
not a resumption of the meeting of 29 August 2024. Accor ding to the Speaker, in a
meeting that the Speaker had with Councillor De Bruyn, they agreed that matters of
29 August 2024 would be dealt with on 31 August 2024 and 2 September 2024,
respectively. The meeting of 31 August 2024 was a resumption of the meet ing of 29
August 2024 in terms of rule 33(9).
[29] The Speaker asserted that Ms Faul, as Manager for Corporate Services, is
the official delegated by the Municipal Manager to compile an agenda. The Speaker
did not compile the agenda, but he only instructe d Ms Faul to place the item on the
agenda through a supplementary agenda. The Speaker further averred that he
instructed Ms Faul to include the motion of no confidence against Councillor De
Bruyn to be included in the supplementary agenda and to distribute it to the
Councillors on 31 August 2024. The instruction was only executed on 1 September
2024, at 11h47, when Councillor De Bruyn received a notice of his removal.
[30] However, t he Speaker conceded that the motion of no confidence against
Councillor De Bruyn was not urgent and not brought under Rules 28 of the Rules of
Order.1 In his view, neither the Rules of Order nor section 58 of the Structures Act set
1 Rule 28 of the Rules of Order provides that: “(1) A councillor may direct the attention of the Municipal
Council to any matter that does not appear on the agenda and of which prior notice has not been
given, by stating briefly the subject of the matter, an d propose an urgent motion, that the matter which
the time for ‘prior notice’. Only Rule 6(4) refers to a period of 5 working days' notice
to be given to call a meeting for the Councillors and the public in respect of an
ordinary meeting. The Speaker contended that he had personal knowledge of
Councillor De Bruyn's interference in the administration. It started on the 14 August
2024 meeting in which the Speaker was elected as Speaker, and Councillor De
Bruyn was elected Executive Mayor.
[31] At the council meeting of 22 August 2022, the allegations mentioned in the
motion were brought to the attention of the Council after receiving two complaints
from senior managers. The Council resolved to investigate the matter via externa l
investigations. According to the Speaker, they have already appointed external legal
representatives to investigate the matter.
[32] The Speaker postulated that section 58 of the Structures Act does not
explicitly state the time frame in which prior notice of motion must be sent. It only
referred to 'prior notice'. When the Speaker receives a notice of motion of no
confidence and decides at which council meeting it will be placed on the agenda, the
agenda is sent out to the Councillors prior to the meeting, allowing them to receive
the notice of motion. In the motion of no confidence in Councillor De Bruyn, no
charges were brought against him. The Speaker stated th at the motion of no
confidence is ostensibly about the loss of confidence in the elected office branch,
here being the Executive Mayor.
[33] The Speaker mentioned that there is no need to prepare evidence or
submissions, and like any other motion, the Sp eaker calls on the proposer and
seconder to read out the motion to confirm and move it. The Speaker contended that
the applicants partook in the process from the beginning to the end. The colleagues
from the DA did not oppose the motion of no confidence ag ainst Councillor De
Bruyn. The motion for Councillor De Bruyn's removal was confirmed and read out by
the ANC caucus, and the DA did not oppose the motion; therefore, it became an
has been brought to the attention of the municipal council, be considered forthwith as an urgent
matter.
(2) When the motion referred to in subsection 28(1) of this by -law, has been seconded and adopted,
the coun cillor who proposed the motion, shall be permitted to have the matter considered without
further notice.”
unopposed matter in terms of Rule 13 of the Rules of Order. The Speaker contended
that the ANC made a proposal that was seconded for the appointment of an
Executive Mayor. After that, the DA also made a proposal that was also seconded for
the appointment of an Executive Mayor.
[34] The ANC nominated the fifth respondent, and the DA nominated Councillor De
Bruyn, who accepted the nomination. Councillor De Bruyn participated in the election
and competed with the fifth respondent. The voting proceeded, and the fifth
respondent was successful and duly elected. The Speaker explains th at Councillor
De Bruyn is dead silent on his participation in the election and in being nominated by
the DA. The Speaker opines that if Councillor De Bruyn had been successful, we
would not have been seized with this application for his appointment.
[35] According to the Speaker, the process of the removal of the Executive Mayor
only became unlawful because the DA and Councillor De Bruyn were voted out of
power. If any other party structure had been voted out, the applicants would not have
raised any issue. The Speaker averred that the removal of Councillor De Bruyn was
correctly dealt with in terms of the Rules of Order, and Councillor De Bruyn was,
therefore, rightfully removed at a lawfully convened and constituted special council
meeting on 2 Septe mber 2024. The Speaker denied that the applicants are entitled
to the relief sought in the notice of motion and asked this Court to dismiss the
applicants' application with costs.
PRINCIPAL SUBMISSIONS BY THE PARTIES
[36] At the hearing of this matter , Mr Sive, the applicants’ Counsel submitted that
this matter is urgent in that without the urgent intervention of this Court, as the
lawfully appointed Executive Mayor, Councillor De Bruyn is inhibited by the
impugned decisions from continuing to perform any of his duties. Furthermore,
Counsel submitted that the impugned decisions create fundamental uncertainty in
the democratic system and set a precedent that threatens to undermine the
democratic functioning of other Municipal Council.
[37] On the merits, Mr Sive submitted that the applicants’ application is
underpinned by three guiding principles, which are: first, in making the impugned
decisions, the Council and the Speaker were bound to comply with the Constitution,
the Structures Act and the By-Laws on Rules of Order for the internal arrangements
of the Council. Secondly, Mr Sive submitted that this Court is compelled by section
172(1)(a) of the Constitution to declare the impugned decisions invalid. Thirdly, Mr
Sive contended that a final order may be granted if those facts averred in the
applicants’ founding affidavit, which have not been seriously disputed by the Speaker
together with the facts alleged by Speaker, justify such an order.
[38] Mr Sive pointed to several shortcomings which the Speaker and the Council
failed to comply with when Councillor De Bruyn was removed as Executive Mayor
through a motion of no confidence. Amongst others, Mr Sive referred to section 58 of
the Structures Act, which expressly requires that prior notice of an intention to move
for the removal of the Executive Mayor must be given. Mr Sive contended that this
section requires that fair notice must be given to Councillor De Bruyn and a ll
Councillors about the motion of no confidence calling upon Councillor De Bruyn's
removal from office as the Executive Mayor.
[39] Mr Sive further submitted that the Speaker admitted that Councillor De Bruyn
was only informed of the motion of no confid ence against him as the Executive
Mayor on Sunday, 1 September 2024, less than 24 hours before the special council
meeting held on 2 September 2024. According to Counsel, the limited time afforded
to Councillor De Bruyn meant that he could not collect and prepare evidence and
submissions to the Council to deal with the allegations against him in the motion of
no confidence.
[40] The applicants' Counsel further submitted that it was irrational for the Council
to follow a process that precluded Councillor De Bruyn from fairly submitting relevant
considerations and adequately responding to the allegations in the motion calling for
his removal. The validity of the decision to elect the fifth respondent as the Executive
Mayor depended on the prior decision by t he Council to remove the second
applicant. Mr Sive submitted that this decision stands to be reviewed and set aside
or declared nullified.
[41] In addition, Mr Sive argued that the Speaker's conduct in this matter was
egregious. According to Counsel, the Speaker acted in bad faith and in audacious
violation of his constitutional and statutory duties by disregarding the Rules of Order
when he adjou rned the meeting on 29 August 2024 without a motion proposed,
seconded and adopted by the Council thus contravening Rule 33 of the Rules.
Counsel asked the court to grant the relief sought in the notice of motion and to grant
costs de bonis propriis against the Speaker.
[42] On the other hand, Mr Carolissen , the respondents’ Counsel contended that
the applicants partook in the process of the removal of Councillor De Bruyn from his
position as Executive Mayor from the beginning to the end. The applicants did not
oppose the motion. Mr Carolissen submitted that the said motion of Councillor De
Bruyn’s removal from office was confirmed, read out by the ANC caucus and the DA
did not oppose the motion and therefore it became an unopposed matter in terms of
Rule 13 of the Rules of Order.
[43] Mr Carolissen further submitted that from the minutes of proceedings, the
ANC made a proposal that was seconded for the appointment of an Executive
Mayor, and thereafter, the DA also made a proposal that was also seconded for the
appointment of an Executive Mayor. Counsel argued that the ANC nominated the
fifth respondent, and the DA nominated Councillor De Bruyn, who accepted the
nomination. Councillor De Bruyn participated in the election and competed with the
fifth resp ondent. Following that, the voting occurred, resulting in the successful
election of the fifth respondent.
[44] The respondents' Counsel contended that Councillor De Bruyn is dead silent
on his participation in being nominated by the DA and in his participation in the
election. Had Councillor De Bruyn been successful with the election, Counsel
argued, we would not have been seized with this applicati on for his appointment. Mr
Carolissen further asserted that the process of the removal of the Executive Mayor
only became unlawful because Councillor De Bruyn and the DA were voted out of
power. Mr Carolissen further explained that the motion of no confide nce against
Councillor De Bruyn was confirmed and was not opposed. The removal of Councillor
De Bruyn was correctly dealt with in terms of the Rules of Order.
[45] Mr Carolissen further submitted that on 1 September 2024, all the Councillors,
including Co uncillor De Bruyn, were given prior notice for the motion of no
confidence to be tabled before the Council meeting. At the Council meeting of 2
September 2024, the motion was tabled and debated by the Councillors, and
Councillor De Bruyn was nominated and participated in the meeting. Only afterwards
did Councillor De Bruyn and the DA complain about the meeting. No complaints
were raised before the meeting. According to Mr Carolissen, the object of the
Structures Act and the Rule of Order have been achieved in that Councillor De Bruyn
received prior notice of his removal. The Councillors debated the motion in their
meeting, and Councillor De Bruyn participated and was nominated for the meeting.
Counsel implored the Court to dismiss the applicant's application with costs.
ISSUES TO BE DECIDED
[46] From the discussion above, this application raises four critical questions for
consideration, namely:
1. Whether the applicants have made out a case for urgency as envisaged in
Rule 6(12) of the Uniform Rules?
2. Whether the decision to remove Councillor De Bruyn as the Executive Mayor
should be reviewed and set aside?
3. Whether the participation of Councillor De Bruyn in the council special
meeting that led to his removal amount to a waiver of rights to challenge th e
procedural fairness of the meeting?
4. Should the Speaker be ordered to pay punitive costs out of his own pocket as
a penalty for improper conduct?
APPLICABLE LEGAL PRINCIPLES AND DISCUSSION
[47] For completeness, I will deal with the disputed issues discussed above ad
seriatim.
Urgency
[48] The respondents challenged the urgency with which this application was filed.
They argued that this matter is not urgent. The respondents, particularly the
Speaker, asserted that the applicants brought this application against him as a
personal vendetta because, as a coalition partner, the Speaker allowed the motion
against Councillor De Bruyn to be confirmed in terms of the Rules of Order and
statutory regulations. The Speaker also contended that this application is merely a
political ploy to bring change to the Municipality. In the respondents' view, the matter
could not be urgent because Councillor De Bruyn participated on 2 September 2024
to be appointed as the Executive Mayor but was unsuccessful.
[49] Rule 6(12) of the Uniform Rules of court confers courts with a wide discretion
to decide whether an application justifies enrolment on the urgent court roll based on
the facts and circumstances of eac h case .2 An application is urgent when an
applicant cannot obtain substantial redress in due course. 3 The degree of departure
from the modes of service and time frame in the Uniform Rules must be
commensurate with the urgency in each case .4 I have considered the issues raised
in this matter, and I am of the view that it is urgent. If indeed, the impugned decisions
leading to the removal of Councillor De Bruyn from his position as an Executive
Mayor are unlawful, it would constitute an ongoing affron t to democracy which
requires urgent rectification by this Court.
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
3 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
4 Republikeinse Publikasie (edms) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A-G.
[50] Furthermore, it is now trite that the reviews of abuse of public power
implicating the rule of law are normally urgent. 5 The applicants asserted that the
Speaker acted egregiously by flouting the Rules of Order and the relevant statutory
provisions of the Structures Act when the special council meeting was called which
led to the removal of Councillor De Bruyn as an Executive Mayor. In my view, as it
will be demonstrated hereunder, the impugned decisions constitute an ongoing
affront to democracy, which requires urgent rectification by this Court.
[51] Without the urgent intervention of this Court, the applicants will be unable to
obtain substantial redress in respect o f the further damage or harm that will virtually
result from the implementation of the impugned decisions. The impugned decisions
create fundamental uncertainty in the democratic system and set a precedent that
threatens to undermine the democratic functioning of other municipalities.
[52] To this end, I agree with Mr Sive's assertions that, should this Court fail to
intervene promptly in this matter, the Municipality's operations will remain in disarray.
The various officials employed by the Municipality will find themselves uncertain
regarding the legality of decisions made by any newly appointed Executive Mayor.
This ambiguity will hinder their ability to safeguard and promote the interests of the
constituents they serve. In the circumstances, I am of t he firm view that this matter is
urgent and satisfies the requirements set out in Rule 6(12) of the Uniform Rules of
court. I turn to consider the second disputed issue in this application.
Should the decision to remove the second applicant as Executive Mayor be
reviewed and set aside or declared invalidity?
The Legal Framework
[53] The Constitution of our country establishes local government as a distinctive
sphere of government that is interdependent and interrelated with national and
provincial spheres of government. Section 155 of the Constitution establishes
5 Democratic Alliance v National Commissioner of Correctional Services; Hellen Suzman Foundation v
National Commissioner of Correctional Services; Afriforum NPC v National Commissioner of
Correctional Services [2022] 2 AII SA 134 (GP) at para 12.
various categories of Municipalities. The Structures Act, established in terms of
section 155(3) of the Constitution, gives effect to the aspirations envisioned in the
Constitution of providing municipal services equitably and sustainably.
Theewaterskloof Municipality was established in terms of section 12 of the
Structures Act. Members of the Council are elected in terms of section 157 of the
Constitution.
[54] Section 151(3) of the Constitution confers upon a Municipality 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. Section 160(6)
of the Constitution confers on the municipal council the power to make By -Laws
which prescribe the rules and orders for its internal arrangements and its business
proceedings.
[55] Theewaterskloof Municipal Council adopted Rules of Order in terms of
sections 160(6)(a) and (b) of the Constitution to make by -laws that prescribed rules
and orders for its internal arrangements and business proceedings. The Rules of
Order adopted by the Council for the internal arrangements of the Municipal Council
tightly regulate the Council's powers. The purpose of the Rule of Order for the
Theewaterskloof Municipal Council is to make provisions for Rules for the business
and proceedings of the Municipal Council and t o make provisions for internal
arrangements and matters in connection therewith.
[56] Consistent with the doctrine of the separation of powers, this Court has a duty
to ensure that the Council comply with the Constitution and the Local Government:
Municipal Structures Act 117 of 1998 (‘Structures Act’) . The court has a duty to
ensure that the Council safeguard the fundamental constitutional values of
accountability, the rule of law and the supremacy of the Constitution. The Court is
responsible for ensuri ng that the decisions taken by the Council are consistent with
the constitutional values enshrined in the Constitution. Notably, section 160(8)(b) of
the Constitution establishes that members of the Council are entitled to participate in
its proceedings an d those of its committees in a manner that is consistent with
democracy.
[57] The Speaker of a Municipal Council decides when and where the council
meets.6 If a majority of the Councillors requests the Speaker in writing to convene a
Council meeting, the Speaker must convene a meeting at a time set out in the
request. In general, the Speaker presides at th e meetings of th e Council and must
ensure that the Council meets at least quarterly .7 The Speaker is required to
maintain order during meetings and to ensure compliance in the Council with the
Code of conduct. Notably, the Speaker must ensure that the Council meetings are
conducted in accordance with the Rules of Order and must take responsibility for the
ethics and accountability of the Council.8
The Special Council Meeting of 29 August 2024
[58] In the present matter, it is common cause that on Friday, 23 August 2024, the
Manager of Corporate Services, Ms Marelize Faul, notified Councillors that a special
council meeting had been called for Thursday, 29 August 2024. In the
correspondence, Ms Faul advised Councillors that a special council meeting has
been scheduled for Thursday, 29 August 2024, at the Council Chambers, Municipal
Offices in Caledon. In addition, Ms Faul advised the Councillors that an agenda for
the meeting would be distributed as soon as it was available. It is common cause
that after Ms Faul's correspondence, various agendas were circulated to the
Councillors in anticipation of the special meeting of 29 August 2024.
[59] From the express provisions of th e Rules of Order, particularly Rule 6(6), Ms
Faul, the Manager of Corporate Services , had no authority to call a Special Council
Meeting. Rule 6(6) of the Rules of Order sets out the circumstances under which a
special council meeting may be called. For completeness, Rule 6(6) of the Rules of
Order provides as follows:
“A majority of councillors may request the speaker in writing to conven e a
special council meeting, and the speaker shall conv ene such a meeting at a
time set out in the request, subject thereto –
6 Section 29(1) of the Local Government: Municipal Structures Act 117 of 1998.
7 section 37(c) of the Local Government: Municipal Structures Act 117 of 1998.
8 section 37(e) of the Local Government: Municipal Structures Act 117 of 1998.
(a) that should the speaker fail to convene a special council meeting as
requested by majority of councillors, the majority of councillors may request
the municipal manager to convene such a meeting, and the municipal
manager shall convene such meeting at the time as set out in the request;
and
(b) the noticed by the majority of councillors for a special council meeting shall
clearly indicate the reports to be dealt with at such a special meeting, and no
other matters may be dealt with at the special council meeting, except with the
consent of the majority councillors.” (emphasis added)
[60] The above Rule s of Order explicitly indicate that a special council meeting
may be convened by either the Speaker or the Municipal Manager, contingent upon
the submission of a written request by a majority of the Councillors. It is evident that
the majority of Councillors in this case did not provide a written notice to the Speaker
to convene the special council meeting, nor did they outline the reports that were to
be dealt with during this meeting. Furthermore, the Municipal Manager had no
authority to unilaterally schedule a special council meeting on 29 August 2024, as
there was no formal request from the majority of Councillors for convening such a
meeting.
[61] From a careful reading of Rule 6(6) discussed above, a Municipal Manager
could call a special council meeting as requested in writing by a majority of
councillors only if the Speaker had previously failed to call such a meeting despite a
written request by a majority of councillors. Rule 6(6)(a) of the Rules of Order makes
is abundantly clear that the majority of councillors may request the Municipal
Manager in writing to convene a special council meeting if the Speaker has failed to
convene the meeting as requested by the majority of Councillors.
[62] In the present matter, there is no evidence whatsoever that the Speaker failed
or refused any request by the majority of Councillors to call for the special council
meeting on 29 August 2024. There is also no evidence that such a request was ever
made in writing by a majority of councillors to the Speaker or the Municipal Manager.
Evidently, the Municipal Manager could not lawfully and independently call for the 29
August 2024 special council meeting. In my view, the purported special council
meeting called by the Municipal Manager for 29 August 2029 did not comply with the
Structures Act and the Rules of Order of Theewaterskloof Municipality.
[63] I must stress the fact that the exercise of all public power in terms of our law
must comply with the Constitution, which is the Supr eme law and the doctrine of
legality, which is part of our law. In terms of the principle of legality, which flows from
the Rule of law as a founding value in section 1(c) of the Constitution, the Speaker
and the Council may not exercise any power or perfo rm a function beyond that
conferred upon them by law .9 Consistent with this principle, in Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan ,10 the
Constitutional Court stated:
“It seems central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained by the principle
that they may exercise no power and perform no function beyond that
conferred upon them by law.”
[64] The Council's exercise of public power must be consistent with the law,
including the Constitution, Structures Act, and the Rules of Order. As it will be
demonstrated hereunder, the special council meeting called by the Municipal
Manager was fraught with irregularities and in my view was unlawful.
The Special Council Meeting of 02 September 2024
[65] It is common cause that after a heated debate and disruptions at the meeting
of 29 August 2024, the Speaker adjourned the special council meeting for an hour.
The respondents contend that on resumption of the meeting, the ANC caucus
pointed out that the reconvened meeting was in contrast with the Rules. Pursuant
thereto, a new meeting was called, and thus, the meeting of 2 September 2024 was
not a resumption of 29 A ugust 2024. According to the respondents, the meeting of 2
9 Affordable medicines Trust of Health 2006 (3) SA 247 (CC) at para 49.
10 1999 (1) 1 SA 374 (CC) at para 58.
September 2024 was agreed upon with the applicant s and for the applicants to say
the meeting is unlawful is preposterous. On the other hand, the applicants contend
that the meeting of 2 September 2 024 was a continuation of the meeting of 29
August 2024.
[66] There is a dispute of fact on whether the meeting of 2 September 2024 was a
continuation of the first meeting of 29 August 2024 or whether it was a new meeting.
In my view, what is critical is that at that meeting (2 September 2024), Councillor De
Bruyn was removed from his position as an Executive Mayor. The Speaker admits
that the meeting of 2 September 2024 was a special council meeting. The Speaker
does not dispute that contrary to section 29(1) of the Local Government: Municipal
Structures Act and Rule 6(6) of the Rules of Order, he did not convene the 2
September 2024 special council meeting pursuant to a written request from a
majority of councillors.
[67] As discussed above, s ection 29 (1) of the Structures Act empowers the
Speaker to decide when and where the Council meets and provides that if a majority
of the councillors request the speaker in writing to convene a council meeting, the
speaker must convene a meeting at the time set out in the request . For
completeness, section 29(1) of the Local Government: Municipal Structures Act 117
of 1998 provides:
“The speaker of the municipal council decides when and where the council
meets subject to section 18(2), but if the majority of the councillors request the
speaker in writing to convene a council meeting, the speaker must convene a
meeting at the time set out in the request.”
[68] It is clear from the above provision that the Speaker's decision to call the 2
September 2024 special meeting was ultra vires and inconsistent with the Rules of
Order. The Speaker acted beyond the power conferred on him by section 29( 1) of
the Structures Act. In addition, Councillor De Bruyn impugned the legality of his
removal from his position as he contends that it was fraught with irregularities. I
agree with this proposition.
[69] I must state that the Speaker's contention that the meeting of 2 September
2024 was a new meeting and not a continuation of the special meeting of 29 August
2024 is unsupported by the objective facts and cannot be correct. The objective
facts, particularly the documentary evidence submitted on record, clearly confirm that
the meeting of 2 September 2024 continued the meeting of 29 August 2024. The
email correspondence of Ms Faul, the Manager of Corpor ate Services, on 1
September 2024 corroborates the applicants' version. 11 This email was sent under
the instruction of th e Speaker indicating his intention for th e 2 September 2024
special council meeting to be a continuation of the meeting held on 29 and 31 August
2024.
[70] Importantly, the Speaker acknowledges that matters from the 29 August 2024
special meeting were dealt with at the special council meeting of 2 September 2024.
Rule 33(9) of the Rules of Order provides that no matters may be transacte d at the
resumption of an adjourned council meeting other than the unconcluded reports that
were on the agenda of the meeting which has been adjourned. Evidently, the
inclusion of the motion of no confidence against Councillor De Bruyn for the special
council meeting of 2 September 2024 offended Rule 33(9) of the Rules of Order.
[71] On 2 September 2024, a dramatic series of events unfolded that ultimately
resulted in the removal of Councillor De Bruyn from his position as an Executive
Mayor. I turn to consider those events. It is common cause that on Sunday, 1
September 2024, at 11h47, Ms Faul communicated on behalf of the Speaker an
annexe and a supplementary agenda for the meeting of 2 September 2024. The
annexe distributed on behalf of the Speaker dealt with a matter entitled validity of the
appointment of the Executive Mayor. This item included a report from the Municipal
Manager concerning the validity of the Speaker's appointment as the Executive
Mayor of the Municipality. Through Mr Faul’s email t o the Councillors, the Speaker
also distributed a supplementary agenda with an item entitled “Notice of motion for
the removal of th e Executive Mayor of the Theewaterskloof Municipal Council
11 It stated: “the 3 agenda -items of the special council in -committee Meeting of the 31 st August 2024,
which was not discussed, will also be discussed as part of the in -committee Agenda of th e Special
Council Meeting of the 2nd of September 2024.”
(Alderman LM De Bruyn) in terms of Rule 26 of the Bylaw of Rules of Order for the
Internal arrangements of the Municipal Council.
[72] It is a matter of record that the motion of no confidence against Councillor De
Bruyn was incorporated into the agenda for the meeting scheduled on 2 September
2024. This development was communicated to the Councillors at 11h47 , on 01
September 2024, leaving them with less than 24 hours to adequately prepare for the
motion. Notably, the motion was neither urgent nor did it necessitate any departure
from the established Rules of Order. The timing of this notification in my view, raises
concerns, especially c onsidering that the motion was not of an urgent nature and,
therefore, did not warrant any deviation from the established Rules.
[73] In terms of Rule s 6(4) and 6(7) , the Municipal Manager or his delegated
official had to give notice of every council meeting to each Councillor and the public
at least 5 working days before such meeting takes place. It cannot be disputed that
adequate notice was not given at all to the Councillors and to Councillor De Bruyn for
the special council meeting of 02 September 2024 . The Speaker has not explained
or advanced any plausible explanation as to why he waited until the day before the
Council meeting to disclose the notice of motion calling for Councillor De Bruyn’s
removal as the Executive Mayor.
[74] The Speaker admitted in his answering affidavit that the Councillors were only
informed of the motion against Councillor De Bruyn, the Executive Mayor, on
Sunday, 1 September 2024, less than 24 hours before the special council meeting
held on 2 September 20 24 where the Council adopted the motion. According to the
Speaker, despite his instruction on 31 August 2024, the supplementary agenda,
which included the motion, was only sent on 1 September 2024.
[75] What is concerning is that the Speaker does not dispute that the limited time
afforded to Councillor De Bruyn meant that he could not collect and prepare
evidence and submissions to the Council to deal with the allegations made against
him in the motion of no confidence. Instead, the Speaker contends that Councillor De
Bruyn would be granted ample time to defend the allegations levelled against him
when an external investigation into the allegations against him commences.
[76] In my view, this contention misses the point and cannot be correct. It must be
stressed that Councillor De Bruyn and the Councillors in the Council do not
represent their own interests but the interests of the electorate or their
constituencies. The short notice on the motion of no confidence given to the
Councillors deprived them of the opportunity to consult with the constituencies they
represent on the motion of no confidence against Councillor De Bruyn. Furthermore,
removing an Executive Mayor is a deci sion with profound consequences which, in
my view, absent true urgency, cannot be rushed and must follow the proper process
in the Rules of Order. The motion of no confidence was plainly not urgent. The
motion was submitted to the Speaker on 16 August 2024 and was not placed before
the Council by the Speaker as an urgent motion.
[77] I must emphasise that the demand for the Council to observe a fair process is
a cornerstone of democratic governance. It ensures that an Executive Mayor facing
removal is giv en a fair chance to present his case. As an incumbent E xecutive
Mayor, Councillor De Bruyn should have been given adequate notice of the motion of
no confidence against him. Significantly, section 160(8)(b) of the Constitution enjoins
members of a Council to participate in its proceedings in a manner that is consistent
with democracy. Furthermore, our constitutional democracy values require that
Councillors be given adequate notice to review the motion, understand its grounds,
and make an informed decision.
[78] In this case, the short notice deprived Councillors of the opportunity to
democratically participate in the adjudication of the motion. The failure to provide
adequate notice to the Councillors compromised their ability to efficiently and
effectively fulfil their duties. I firmly believe that a decision of such significance,
namely the removal of an Executive Mayor, ought to be conducted with transparency
and accompanied by full d isclosure of the reasons and evidence supporting the
motion. The public must also have confidence in the fairness and transparency of the
Council's procedures. The short notice given to the Councillors for the removal of
Councillor De Bruyn as the Executiv e Mayor erodes public trust and confidence.
Councillor De Bruyn and other Councillors were entitled to fair notice before the
Council removed him as the Executive Mayor.
[79] It is also worth noting that section 58 of the Structures Act provides that a
municipal council, by resolution, may remove its Executive Mayor or Deputy
Executive Mayor from office. However, ‘prior notice’ of an intention to move a motion
for the removal of the Executive Mayor or Deputy Executive Mayor must be given.
This section does not set out when prior notice must be given. Consistent with the
fundamental principles of the rule of law and the principles enshrined in section
160(8)(b) of the Constitution, it is my considered opinion that it was crucial to provide
a fair and timely notice to Councillor De Bruyn, and other Councillors, regarding the
motion that s ought the removal of the Executive Mayor from office. This timely and
transparent notification was critical in enabling the Councillors to engage in a
thoughtful and informed manner, thereby allowing them to fulfil their democratic
responsibilities and contribute effectively to the decision -making process in the
Council.
[80] In Democratic Alliance v Matika ,12 the court observed that a s far as national
legislation is concerned, the provisions of s ection 58 of the M unicipal Structures Act
are indeed intended to facilitate and achieve the objects in the Constitution, for the
simple reason that the democratic right to participate, as intended in the Constitution,
cannot be exercised by a member or councillor if he/she is unaware of the fact that
the meeting is going to take place.
[81] In addition to the court's finding in Matika, I believe that the notice envisaged
in section 58 must be fair, reasonable and adequate. The notice must enable the
Councillors to engage expressively and meaningfully with the substance of the
motion and give the Executive Mayor ample time to collect and prepare evidence
and make submissions to Council to deal with the allegations a gainst him in the
motion of no confidence.
[82] To top it all, the evolution of our constitutional jurisprudence has culminated in
a principle that recognises rationality as applicable not only to the decisions rendered
12 2019 (1) SA 214 (NCK) at paras 43 and 55.
but also to the processes employed to reach those decisions. 13 Thus, the principle of
rationality applies to the process in terms of which the decision to remove Councillor
De Bruyn was arrived at. There must be 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.14
[83] In the present matter, it was irrational for the Council to follow a process that
precluded the Councillors and Councillor De Bruyn from fairly and adequately
submitting relevant considerations and properly responding to the allegations made
in the motion calling for his removal. The procedure set forth by the Speaker did not
enable the Council to make a rational decision regarding the motion of no confidence
against the second applicant. In my considered opinion, the removal of Councillor De
Bruyn from the position of Executive Mayor was unlawful and should be reviewed
and set aside. I turn to consider the third disputed issue.
Whether the applicants waived their rights to challenge the procedural fairness
of the meeting?
[84] The third disputed issue that demands this Court's attention is whether
Councillor De Bruyn, in not only participating in the meeting but being nominated and
accepting the nomination, waived his right to contest the validity of the meeting. Mr
Carolissen submitted that when Councillor De Bruyn parti cipated in the meeting and
was nominated, he waived his procedural rights to later complain about the
lawfulness of the meeting. Counsel further submitted that when Councillor De Bruyn
accepted the nomination, he at that stage believed that because of the coalition they
had with the Good Party and one other party, they would succeed in the election. On
this basis, Councillor De Bruyn participated in the meeting and was not concerned
about its validity.
[85] The respondents' Counsel argued that Councillor De Bruyn, as an Executive
Mayor, was always part of the meeting on 29 and 31 August 2024. He never
13 Law society of South Arica v President of th e Republic of South Africa 2019 (3) SA 30 (CC) at para
61.
14 Law society of South Arica v President of the Republic of South Africa (supra) at para 64.
objected to what happened in that meeting. The applicants have only launched the
application because the election did not run in their favour, as Councillor De Bruyn
was not appointed as the Executive Mayor. Mr Carolissen contended that Councillor
De Bruyn's participation in the meeting and in accepting the nomination waived any
right he had to contest the validity of the meeting.
[86] Mr Sive, on the other h and, refuted this proposition and argued that the
signed minutes of the special council meeting confirm that Councillor Fredericks of
the DA raised an objection during the council meeting on 2 September 2024 and
indicated that the DA would bring a review application. Mr Sive further submitted that
the applicants could not waive the demands of the statutory provisions and Rules on
which they rely in this application. The failure to honour these provisions cannot be
ignored by the applicants, as it is the pub lic, not just the applicants, who benefit from
them. Mr Sive implored the court to reject the respondents' waiver argument.
[87] Waiver is the legal act of abandoning a right on which one would otherwise be
entitled to rely.15 The onus to prove waiver li es with the party asserting it. A waiver
depends on the intention of the right-holder. A waiver can be proved through express
actions or by conduct pl ainly inconsistent with an intention to enforce the right.16 In
Phoenix Salt Industries (Pty) Ltd v The Lubavitch Foundation of Southern Africa,17
the Supreme Court of Appeal noted that a waiver is the renunciation of a right, and
when the intention to renounce is expressly communicated to the affected party,
such person is entitled to act upon it. The Court noted that w hen the renunciation is
evidenced by conduct inconsistent with the enforcement of the right or clearly
showing the intention to surrender that right, the intention can be acted upon, and
the right perishes.18
[88] In the present matter, the applicants challenged the decision to remove
Councillor De Bruyn from his position as an Executive Mayor under the principle of
legality. The principle of legality flows from the rule of law as a founding value in
15 National Union of Metal workers of South Africa v Intervale (Pty) Ltd 2015 (2) BCLR 182 (CC) at
para 60.
16 National Union of Metal Workers of Southa Africa v Intervale (Pty) (supra) para 61.
17 (330/2023) [2024] ZASCA 107 (3 July 2024) at para 23.
18 At para 23.
section 1(c) of the Constitution. The respondents asserted that the applicants
renounced their rights when they participated in the meetings on 29 August and 2
September 2024. To succeed with this defence, the respondents must show that the
applicants, as the right -holders and with full knowle dge of their rights to challenge
the impugned decisions, decided to renounce these rights.
[89] In my view, the respondents have not established that the applicants
voluntarily and knowingly abandoned their right to challenge the decision to remove
Councillor De Bruyn, an executive Mayor, under the principle of legality with full
knowledge and understanding of these rights. The participation of Councillor De
Bruyn in the subsequent election for the Executive Mayor is not enough to find that
there was a re nunciation of a right. It cannot be said that the participation of
Councillor De Bruyn in the meeting is inconsistent with an intention to challenge the
decision to remove him as an Executive Mayor.
[90] Importantly, at common law, certain rights affecting the public interest may not
be waived, and their waiver would amount to a contravention of mandatory
provisions.19 In other words, an individual cannot waive a matter in which the public
have an interest . In SA Eagle Co Ltd v Bavuma ,20 the Appellate Division, as it then
was, held that a person may only waive a benefit from a statutory provision if no
public interest were affected and no other person may seek to enforce that benefit.
Simply put, a statutory provision enacted for the speci al benefit of any individual or
body may be waived by that individual or body, provided that no public interests are
involved.
[91] The Court stated:
“It is a well -established principle of our law that a statutory provision enacted
for the special bene fit of any individual or body may be waived by that
individual or body, provided that no public interests are involved. It makes no
difference that the provision is couched in peremptory terms…. this rule has
frequently been applied by our Courts in holdin g that statutory protection
19 S v Van Zyl 1991 (1) SA 804 (A) at 808-G-H.
20 1985 (3) SA 42 (A) at 49 G-H.
(often in the form of limitation of actions) afforded local authorities and
Government departments is capable of waiver when the protection is not
intended for the benefit of the public but for the benefit of the local authority or
Government department itself. So, for example, it was held in Steenkamp v
Peri-Urban Areas Health Committee 1946 TPD 424 at 429 that the protection
afforded by s 172 of Ord 17 of 1939, which provided that all actions against a
local authority shall be brought within six months of the time when the cause
of action arose, was not intended for the benefit of the public or the ratepayers
but for the protection of the local authority itself, and could therefore be
waived.”
[92] While in Dr JS Moroka Municipality v Betram (Pty) Limited and Another ,21 the
Supreme Court of Appeal stated:
“The first respondent’s argument on this issue faces a fundamental
difficulty. The decision in SA Eagle Insurance Co Ltd v Bavuma, referred to as
authority for the proposition in the dictum in Millennium Waste Management
quoted above that condonation can be granted where it is not inconsistent
with public policy, related to a statutory provision enacted for the specific
benefit of an individual or body. It was held that such a benefit may be waived
by that individual or body provided that no public interests were affected
thereby and that it was not open to another person, whom the statute was not
intended to benefit, to insist that the provision be observed .” (emphasis
added)
[93] The golden thread from these cases clearly buttresses the point that an
individual cannot waive a right in which the public has an interest. It follows that in
the present matter, the applicants could not waive their rights to rely on the statutory
provisions and the rules they invoke in this application to challenge the impugned
decisions. This is so because the statutory provisions and the rules upon which their
case for review is founded clearly affect the public interest and are enforceable
under the principle of legality. The Rules expressly make provision for the rules of
21 [2014] 1 AII SA 545 (SCA) at para 18.
order for the business and the proceedings of the Council. Moreover, the Rules and
statutory provisions govern the function of the Council, which serves the interests of
the public.
[94] The Rules of Order ensure transparency, accountability, fairness and
democratic participation in local government processes. The applicants cannot waive
these Rules and statutory provisions of the Structures Act that underpin their
application. These legal requirements are established not only to support the
applicants in their application but also to uphold the welfare and rights of the general
public. By adhering to these rules, both the applicants and the public benefit from a
structured and equitable process that ensures transparency and fairness within the
governance of the Municipality they serve.
[95] In addition, as previously stated, the applicants have brought this application
under the principle of legality as enshrined in section 1(c) of the Constitution. In my
view, there can be no question of waiver in relation to the demands imposed by the
Constitution.22 As pointed out by Mr Sive, the supremacy clause of the Constitution
requires that the Constitution itself be treated as the supreme law. 23 This
commitment to the supremacy of the Constitution and the rule of law means that the
exercise of all public power, including the removal of the Executive Mayor, is subject
to constitutional control.
[96] In light of the Supremacy of the Constitution, it is fundamentally incoherent to
suggest that the requirements dictated by the constitutional principle of legality can
be waived. Even if the applicants in this case desired to waive the demands of the
constitutional principle of legality, they cannot do so because any such act would be
unconstitutional and invalid. It follows that the applicants in this matter could not
waive their rights to challenge the legality of the decision taken by the Council to
remove the second applicant from his position as the Executive Mayor.
22 Woolman Category Mistakes and the Waiver of Constitutional Rights: A Response to Dee ksha
Bhana on Barkhuizen” (2008) 125 SALJ 10 at 13.
23 Merafong City Local Municipality v AngloGold Ashanti Limited 2017 (2) SA 211 (CC) at para 88.
[97] Consequently, from the above discussion, it is evident that the impugned
decisions made by the Council on 2 September 2024, are unconstitutional and
unlawful. In terms of section 172( 1)(a) of the Constitution, the decision to remove
Councillor De Bruyn from his position as the Executive Mayor is found to be
inconsistent with the Constitution and must be declared invalid. The unlawful
removal of Councillor De Bruyn as Executive Mayor co mpromised the legality of the
fifth respondent's election as Executive Mayor. Both decisions, in my view, must be
reviewed and sect aside. This leads to the last disputed issue.
Whether the Speaker should be ordered to pay punitive costs de bonis propriis
as a penalty for improper conduct?
[98] It is trite that the question of costs is a matter in the court’s discretion. It is
equally trite that, as a rule, costs follow the result, and successful parties should be
awarded their costs. 24 This rule should be departed from only where good grounds
for doing so exist. 25 One of the fundamental costs principles is to indemnify a
successful litigant for the expense put through in unjustly having to initiate or defend
litigation.
[99] The applicants seek an order that the Speaker be ordered to pay the costs of
this application personally from his own pocket for flaunting the statutory provisions
and Rules of Order in the Council meeting. The applicants contend that the
Constitution required the Speaker to discharge his duties to maintain the highest
standard of professional ethics and be accountable .26 The applicants assert that
instead, the Speaker acted in bad faith and in audacious violation of his
constitutional and statutory duties. According to the applicants, the Speaker failed to
comply with his constitutional injunctions
[100] The principles pertaining to personal costs orders against public officials are
well established in our law . Cour ts have granted costs de bonis propriis against
individuals in their personal capacities where their conduct showed a gross disregard
24 Union Government v Gass 1959 (4) SA 401 (A) 413.
25 Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 3 SA 692 (C).
26 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 146.
for their professional responsibilities, and where they acted inappropriately and in an
egregious manner.27 Mr Sive submitted that the Constitution itself is the source of the
power to order personal costs against public officials who are guilty of bad faith or
gross negligence in conducting litigation and discharging their constitutional
obligations.
[101] When awarding costs, a court has a discretion, which it must exer cise
judiciously and after due consideration of the salient facts of each case . The
decision a court takes is a matter of fairness to both sides. 28 The court is expected
to take into consideration the peculiar circumstances of each case, carefully
weighing the issues in each case, the conduct of the parties as well as any other
circumstances which may have a bearing on the issue of costs and then make such
an order as to costs as would be fair in the discretion of the court.
[102] Having considered the circumstances of this matter, I am of the view that a
punitive costs order against the Speaker is not warranted. I am also not persuaded
that any costs order de bonis propriis should be granted against the Speaker. Whilst
I appreciate that the Speaker failed to adhere to the Rules of Order and the relevant
statutory provisions, I am of the view that he should not be personally mulcted with
an order of costs. I appreciate that the Speaker presides and maintains order at the
Council; however, I am of the view that it is the Council that made the decision to
remove Councillor De Bruyn from his position without following due process. I
believe that the respondents must bear the costs hereof jointly and severally in their
official capacities.
ORDER
[103] Consequently, given all these considerations, the following order is granted:
27 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 146; Pheko v
Ekurhuleni Metropolitan Municipality 2015 (5) SA 600 (CC)) at para 51 and 54.
28 Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) at 1055F- G
[104] The applicants’ non-compliance with the Uniform Rules of court relating to
forms, service and time period s is condoned, and this application is dealt with as a
matter of urgency under uniform rule 6(12).
[105] The decision by the Council of Theewaterskloof Local Municipality at its
meeting on 2 September 2024 to -
105.1 remove Lincoln D Bruyn as the Executive Mayor of the Municipality,
and
105.2 elect Theunis Zimmerman as the Executive Mayor of the Municipality
(the impugned decisions) are declared unconstitutional, unlawful and invalid.
[106] The impugned decisions are reviewed and set aside.
[107] The respondents are directed to pay th e costs of this application jointly and
severally on scale C of the Uniform Rules.
____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Appellants: Adv Sive
Instructed by: Minde Schapiro & Smith Inc
For the first Respondent: Adv Carolissen
Instructed by: Brink Thomas Cassiem