Brief Summary

Municipal Law — Council Meetings — Quorum — Applicants challenging the legality of the election of the Mayor and Deputy Mayor of Amajuba District Municipality held on 20 May 2025 — Claiming that the meeting lacked a quorum as a majority of councilors were denied entry — Court finding that the meeting was unlawfully constituted due to the absence of a proper quorum and failure to adhere to procedural requirements — Election of Mayor and Deputy Mayor set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned motion proceedings in the KwaZulu-Natal Division of the High Court, Pietermaritzburg, in which a group of councillors (the Applicants) sought declaratory relief aimed at invalidating a municipal council meeting and the decisions taken at it, most notably the election of the Mayor and Deputy Mayor of the Amajuba District Municipality.

The Applicants (thirteen individuals, all cited by name in the papers) brought the application against the Amajuba District Municipality and the Council for the Amajuba District Municipality (cited as the First and Second Respondents), together with various individual councillors and political parties (cited as further respondents), including the Independent Electoral Commission. The opposition to the relief was advanced by the First and Second Respondents.

The application was launched on 23 May 2025. On that date, at the hearing, an order was taken by consent between the Applicants and the Second Respondent, issuing a rule nisi with a return date of 24 July 2025. The rule nisi called upon the respondents to show cause why an order should not be granted declaring unlawful and setting aside the council meeting held on 20 May 2025, the election of the Mayor and Deputy Mayor at that meeting, and any decisions taken at the meeting. The consent order also regulated the filing of further affidavits and reserved costs.

The matter later served before the court for determination of whether the rule nisi should be confirmed or discharged. The general subject-matter of the dispute was the lawfulness of municipal decision-making, specifically whether the council meeting and the mayoral and deputy mayoral elections complied with the Local Government: Municipal Structures Act 117 of 1998 and applicable standing rules and orders.

2. Material Facts

It was common cause that the Amajuba District Municipality council comprised 29 councillors, and that the Applicants contended a quorum of 15 councillors was required before a vote could be taken.

It was also common cause that the former Mayor, Prince Ndadukho Zulu, resigned in December 2024, and that thereafter the Deputy Mayor, Thembelihle Elvis Mthembu, acted as Mayor.

On 7 May 2025, the First to Fifteenth Respondents (described as constituting the majority of councillors) submitted a petition to the Speaker in terms of section 29(1) of the Municipal Structures Act. The petition requested the Speaker to convene a council meeting to deliberate on a motion of no confidence against the Speaker and to elect a new Mayor. On the Applicants’ version, the Speaker did not convene such meeting as requested, and the Municipal Manager also did not act on the letter.

On 18 May 2025, the Speaker issued notice convening a special meeting for 20 May 2025 at 10h00 for purposes of electing the Mayor and Deputy Mayor. The notice did not include the item relating to the motion of no confidence against the Speaker.

At the meeting of 20 May 2025, a dispute arose when it was discovered that a councillor (the Ninth Applicant) did not appear on the register and had allegedly been replaced by Ndomiso Masondo as a councillor for Team Sugar South Africa. The Applicants contended that this purported replacement was irregular and unlawful, not compliant with applicable procedures, and not presented to the Independent Electoral Commission.

It was common cause that the meeting descended into chaos and that the meeting in its initial form was stopped. It was also common cause that the Speaker then moved the meeting to another room within the municipality building, where the meeting proceeded and the Mayor and Deputy Mayor were elected. The court recorded that, on the respondents’ version, the relocation was described as merely a change of venue, prompted by damage to microphones and disorder.

A central factual dispute concerned what occurred after the relocation. The Applicants alleged that councillors who had walked out (and who, on the Applicants’ version, were entitled to participate) were refused access to the room where the meeting continued, and that members of the South African Police Service prevented them from entering. The answering affidavit, as assessed by the court, did not provide detail as to how councillors were informed where and when the meeting would continue, nor did it meaningfully address why police were at the door or on what basis entry was refused.

Another disputed factual aspect concerned whether there was a quorum when the meeting continued in the other room and the elections were conducted, including whether the presence and participation of a person alleged not to be a councillor could be counted for purposes of quorum.

3. Legal Issues

The matter required determination of whether the rule nisi (issued by consent) should be confirmed or discharged, which in turn depended on the lawfulness of the meeting and decisions impugned in the provisional order.

The central legal questions included whether the continued meeting and elections on 20 May 2025 were invalid on the grounds that councillors were allegedly excluded from participating, that the meeting was not properly continued or notified after relocation in accordance with the applicable standing rules, and that the meeting proceeded without a lawful quorum (particularly in light of the alleged participation of a person not duly entitled to sit and vote as a councillor).

A further legal issue raised by the First and Second Respondents was whether the relief was procedurally competent, including whether there was non-joinder because the individuals elected as Mayor and Deputy Mayor were cited only as councillors and not in their official capacities as Mayor and Deputy Mayor, and whether the relief was framed as an impermissible interim declarator or retrospective interdict. These points required the court to decide issues of law and the application of legal requirements to the facts, as well as an evaluative assessment of whether, on the papers, the Applicants had made out a case for confirmation of the rule.

4. Court’s Reasoning

The court approached the matter on the basis that the proceedings were concerned with confirming or discharging the rule nisi previously granted, and that the rule nisi itself contemplated final declaratory relief setting aside the meeting and elections. The court noted that the opposing affidavit of the Acting Municipal Manager dealt extensively with interim interdict requirements, but the court considered that the order granted in the rule nisi did not contain interdictory relief; it contemplated setting aside the meeting and appointments.

On the evidence, the court identified several aspects as common cause, including that a meeting was convened for 20 May 2025, that it became chaotic, and that the Speaker moved it to another room where the meeting continued and the Mayor and Deputy Mayor were elected. The court then assessed the adequacy of the respondents’ version explaining the relocation and continuation of the meeting.

A key feature of the court’s reasoning was the insufficiency of detail in the answering affidavit regarding the continuation of proceedings. The court noted that the answering affidavit merely stated that the Speaker moved the meeting after microphones were broken, but did not explain how councillors were informed of the new venue, when proceedings resumed, or what steps were taken to ensure that all councillors could attend and participate. The court treated the allegation that police prevented councillors from entering as serious. It reasoned that, if councillors entitled to attend were refused entry, that would render the meeting unlawful and invalid. The respondents’ denial was characterised as lacking the expected detailed engagement with such a serious allegation, including any explanation as to why police were stationed at the door.

The court also dealt with issues relating to notice. It recorded that 48 hours’ notice was required for such a meeting and accepted that, because the notice period extended over a weekend, the 48-hour requirement was not satisfied on a working-day basis. However, the court considered that this non-compliance did not appear to have affected the holding of the meeting because councillors were all present at the initial sitting.

In relation to quorum, the court noted that it was not apparent from the papers whether a quorum was present when the Mayor and Deputy Mayor were elected. While the quorum dispute formed part of the challenge, the court’s evaluation focused more strongly on the Applicants’ asserted right to be present and to participate. The court reasoned that even if there may have been a quorum, that was not sufficient to cure the irregularity if councillors entitled to attend were excluded from the continued proceedings without lawful basis. The court emphasised that the Applicants had not been expelled from the meeting, and therefore the meeting should not have proceeded in a manner that denied them attendance and participation.

On the respondents’ point of non-joinder and improper citation, the court held that the authorities relied upon by the respondents were distinguishable. In the court’s view, those cases addressed situations where an affected person was not joined at all, whereas in the present matter the persons elected as Mayor and Deputy Mayor were already parties to the proceedings as respondents and were aware of the allegations against them. The court accepted that they were not cited twice (once as councillors and once as office-bearers), but considered the difference insufficient to constitute non-joinder in circumstances where they were joined and the founding papers explained their involvement and the basis on which their election was attacked.

Finally, the court considered the effect of confirming the rule nisi. It reasoned that setting aside the meeting and elections would reinstate the status quo ante, meaning the position of Mayor would again be vacant and the person elected as Mayor would revert to Deputy Mayor. The court considered that this outcome would restore the prior position and necessitate compliance with proper procedures for any future election.

Having weighed the factual disputes on the papers, the seriousness of the exclusion allegations, the inadequate answering explanation, and the entitlement of councillors to attend and participate in a properly constituted meeting, the court concluded that the Applicants had made out a case for confirmation of the rule nisi.

5. Outcome and Relief

The court confirmed the rule nisi granted on 23 May 2025, with the result that the council meeting held on 20 May 2025, the election of the Mayor and Deputy Mayor at that meeting, and the decisions taken at that meeting were set aside in accordance with the terms of the provisional order.

The court ordered that the First and Second Respondents pay the costs of the application, including the reserved costs of 23 May 2025, and that such costs include the costs of two counsel where applicable.

Cases Cited

Machabeng Local Municipality v Eskom Holdings SOC Ltd 2017 (ZACC 35).

Watson NO v Nongoma Local Municipality and Another 2021 (5) SA 559 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Local Government: Municipal Structures Act 117 of 1998 (with specific reference to section 29(1) and section 31(1)).

Rules of Court Cited

No rules of court were cited in the judgment. The judgment referred instead to the municipality’s standing rules and orders, including a 48-hour notice requirement for special meetings (referred to as “Rule 4” in argument).

Held

The court held that the Applicants established sufficient grounds for confirmation of the rule nisi setting aside the 20 May 2025 council meeting and the elections of the Mayor and Deputy Mayor conducted after the meeting was relocated. The decisive consideration was that councillors who were entitled to be present were shown, on the papers, to have been excluded from the continued proceedings, and the respondents’ answering papers did not provide a satisfactory account of how the continuation was communicated or justified, nor a proper response to the allegation that police prevented access.

The court further held that there was no fatal non-joinder arising from the fact that the elected Mayor and Deputy Mayor were cited as respondents in their capacities as councillors rather than being cited again expressly in their office-bearing capacities, because they were parties to the proceedings and aware of the case made against them.

LEGAL PRINCIPLES

The judgment applied the principle that municipal council business must be conducted through lawfully convened and properly constituted meetings, and that councillors who are entitled to attend have a corresponding entitlement not to be unlawfully excluded from participating in such proceedings. Where the continuation of a meeting is moved to a different venue, the municipality bears a practical obligation (assessed on the papers in this case) to demonstrate that councillors were properly informed of the continuation and were not unlawfully prevented from attending.

The judgment also applied the principle that serious allegations going to the validity of a public decision-making process—such as an assertion that councillors were prevented by police from entering the meeting venue—require meaningful engagement in answering papers. A bare or unexplained denial, without detail addressing how exclusion was avoided or why security measures were in place, may weigh against the party resisting relief when the validity of the meeting depends on lawful participation.

On joinder, the judgment applied the distinction between cases where an affected person is not joined at all and cases where the affected persons are already parties to the proceedings. It treated the participation of the elected Mayor and Deputy Mayor as respondents, combined with their awareness of the allegations, as sufficient to meet the joinder concern raised, notwithstanding that they were not separately cited in their official capacities.

Finally, the judgment applied the remedial principle that setting aside an unlawful meeting and resulting elections restores the status quo ante, thereby undoing the effects of the impugned decision and requiring the responsible body to follow the correct procedure if it wishes to reconstitute the office-bearers lawfully.

Khoza and Others v Amajuba District Municipality and Others (2025-073654) [2026] ZAKZPHC 4 (29 January 2026)