REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number 90/2004
Reportable
In the matter between:
NORTHERN FREE STATE DISTRICT
MUNICIPALITY APPELLANT
and
VG MATSHAI RESPONDENT
CORAM
: SCOTT, FARLAM, CLOETE, LEWIS JJA et
MAYA AJA
HEARD: 3 MARCH 2005
DELIVERED
: 30 MARCH 2005
SUMMARY: Local Government – meetings – power of speaker of district
municipal council to adjourn meeting.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
2
[1] The appellant in this ma tter, the Northern Free State District
Municipality, appeals against a decision delivered on 25
September 2003 in the Free State High Court by Van der Merwe J,
with whom Hattingh J concurred, setting aside a decision taken by
the appellant’s council on 20 May 2003 to re move the respondent
from her position as the speaker of the counc il, confirming that the
respondent retained her position and status as speaker in all
respects as from 20 May 2003 and ordering the appellant to pay
the costs of the application.
[2] A special meeting of the appellant ’s council was held on 20
May 2003. Item 6 on the agenda wa s a motion for the removal of
the respondent as speak er of the council. According to the motion
it was submitted in terms of s 40 of the Local Government:
Municipal Structures Act 117 of 19 98, read with Ru le 87 of the
Standard Rules and Orders.
[3] At a stage of the meeting when only items 6 and 7 had not
been dealt with, the respondent, as it is put in the minutes,
‘suggested and ruled that item 6 which is the first item on the agenda be
delayed and discussed at the end’.
It appears further from the mi nutes that one of the councillors,
Councillor JETR Ramokhoase ‘challenged [this] ruling and
proposed that the sequence of the items on t he agenda be
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maintained’ and that another councillor, Councillor GP
Mandelstam, ‘advised the Speaker that it is not within her powers
to rule over the changes in t he sequence of the items on the
agenda but it is the Council that has to decide’.
[4] The respondent, who, as has been seen, had ruled that item
6 be discussed after item 7 and at the end of the meeting, then
ruled that item 6 not be discussed at the meeting at all. The
reasons she advanced are set out as follows in the minutes:
‘1. Minutes of special council meeting held on 17 April 2003 were
corrected; as a result item 6 should have not formed part of the agenda
dated 20 May 2003.
2. The Special Council Meeting (no 5 of 2002/2003) was specifically
convened to discuss item 7 and furthe r that she, cllr Matshai, was not
consulted about the inclusion of item 6 on this agenda.
3. She did not receive any correspondence from the initiator of the
motion, cllr Ramokhoase, with regard to the discussion of this item.
4. She was not given sufficient notice to structure her defence and further
that councillors were not given 7 days notice.
5. Since 21 days have passed, she was under the impression that the
motion has lapsed.’
(The correction to whic h she referred in the first of her reasons
read as follows:
‘The resolution [on item 6] should read … thus:
“That the item on the motion for the removal of speaker in terms of rule 87 of
4
the Standard Rules and Orders be postponed to the special meeting that will
be announced in due course.”’)
[5] The executive mayor replied to the reasons advanced by the
respondent for her ruling, saying that at a meeting held on 13 May
2003 between the re spondent, the municipal manager and himself
it was agreed that item 6 should form part of t he agenda for the
council meeting to be held on 20 May 2003.
[6] After further discussion the coun cil resolved that item 7 be
discussed first and that, despite the respondent’s ruling on item 6,
it also be discussed. Item 7 was then postponed to the next special
council meeting to be held two da ys later. After item 7 was
discussed the respondent left the coun cil chamber after purporting
to adjourn the meeting.
[7] The meeting continued in the absence of the respondent.
Councillor Ramokhoase, accompani ed by two other councillors,
was sent to inform t he respondent that the council intended to
continue with the discussion of the motion and to give her the
opportunity to respond appropriately, whereupon the meeting was
adjourned to await the respondent’ s response. After some time
Councillor Ramokhoase returned and reported that the respondent
refused to participate in the proc eedings and to re spond to the
motion. The meeting th en continued and item 6 was discussed. In
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terms of Rule 87(9) of the Standard Rules the municipal manager
presided as non-voting chairperson.
[8] The motion for the remo val of the re spondent from her office
as speaker was carried unanimous ly and Councillor GT Hadebe
was elected as speaker for the rema inder of the council’s term of
office.
[9] The respondent then instituted proceedings in the Free State
High Court for an order (a) dec laring that porti on of the meeting
which took place after she adjourne d it to be null and void,
alternatively setting aside the dec ision to remove her from her
position as speaker; (b) confirming her po sition and status as
speaker in all respects, includin g her salary, power s and benefits;
and (c) that the respondents in the court a quo, that is to say the
present appellant, the municipal ma nager and the councillors who
voted for the resolution removing the re spondent as speaker, pay
the costs.
[10] In her founding affidavit the re spondent stated that she was
only notified on 19 May 2003 that the motion for her removal as
speaker was to be co nsidered at a specia l meeting of the council
to be held the next day. She de nied that a meeting between
herself, the executive mayor and the municipal manager took
place on 13 May 2003 at which it was decided that item 6 should
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form part of the agenda of the meeti ng to be held on 20 May 2003.
She indicated that her counsel w ould address the court on the
question as to whether she received the fair hea ring to which she
was entitled before the decision was taken to remove her as
speaker, her attitude being that she had no t been given proper
notice of allegations against her. She also indicated that it was her
contention that she had va lidly adjourned the meeting before item
6 was discussed and that the pr oceedings thereafter were
irregular, with the result that the decision then taken was invalid.
[11] All the respondents in the court a quo, with one exception,
opposed the application. The main affidavit fil ed in opposition to
the application was deposed to by Mr B Molotsi, the municipal
manager. In his affidavit the de ponent denied th at the respondent
only received notice of the agenda of the special meeting on 19
May 2003. He confirmed the accuracy of the statement made at
the meeting on 20 May by the executive mayor which has been
referred to in para 5 ab ove. As the respondent sought an order in
the application without re sort to oral evidenc e, the application had
to be determined on the basis of the facts set out in Mr Molotsi’s
affidavit (see Plascon-Evans Paints L td v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A) at 634E to 635C).
[12] The court a quo held that the respondent’s ruling that item 6
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could not be discussed at the meeting and her action in adjourning
the meeting ‘even if made ultra vires or without good cause’
(matters on which Van der Merwe J said that he expressed no
opinion) ‘could simply not be ignored.’ The learned judge
continued:
‘It is a fundamental principle of our law that no one may take the law in his or
her own hands. This is in my view part and parcel of the rule of law, the
supremacy of which is reaffirmed in Section 1(c) of the Constitution. To ignore
such a ruling and adjournment, amounts in my view to taking the law in own
hands. The ruling and the adjournment stand as official acts until overturned
or set aside by a court on review. This is the procedure that could have been
taken by anyone aggrieved by the ruling and the adjournment, which was not
done.
What in fact happened was that the aforesaid ruling was simply ignored by the
decision to nevertheless discuss the matter. The argument that the resolution
to continue was taken before adjournment loses sight hereof. Similarly the
adjournment was ignored by the continuation of the meeting thereafter. It is
rightly not suggested that a new meeting was convened. The respondents
therefore, in my view, misconceived their remedy. Whatever the view was of
the respondents as I have indicated, the ruling and the adjournment stood as
official acts that could not be ignored.
It follows that the decision on 20 May 2003 to remove the applicant on the
basis that it took place as I have quoted was invalid and must be set aside.’
[13] I cannot agree that in acting as they did after the respondent
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purported to adjourn the meeting the member s of the council took
the law into their own hands. They did nothing of the kind. In
ignoring the ruling and adjournme nt by the respondent and
proceeding with the meeting and a consideration of item 6 they
undoubtedly acted at their peril, as it were, in that if it were
subsequently held that the ruling and adjour nment were valid then
the decision they took would ex hypothesi be invalid.
[14] Mr Edeling, who appeared for the respondent, submitted that
the respondent’s ruling and her action in adj ourning the meeting
stood and had legal co nsequences until set aside by a court of
law. In support of this proposition he re lied on the recent decision
of this Court in Oudekraal Estates Pty Ltd v City of Cape Town
2004 (6) SA 222 (SCA), in which it was held (para 26 at 242A-C)
that until invalid administrative acti on is set aside by a court in
proceedings for judicial review it exists in fact and has legal
consequences that cannot simply be overlooked.
[15] I do not think that the pr inciple upheld in the Oudekraal case
can be applied in this matter. One of the issues in that case was
whether the first respon dent, the City Council, was entitled to
justify its refusal to approve an engineering services plan for a
township by relying on what was described as a collateral
challenge to the validity of the earlier decision by the Administrator
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to approve the townsh ip. This Court held the council was not
entitled to justify it s refusal to approve th e plan by raising a
collateral challenge to the Administrator’s approval of the township.
It was required to perform its public duty in relation to the proposed
plan and could only rely on the alle ged invalidity of the township
approval once it had succeeded in a direct challenge to set it
aside. In paras 29 to 31 (at 2 43A-244A) reference was made to
cases where a prior administrati ve act forms the basis for a
subsequent administrative act. In such a case the subsequent act
will be valid, even if the prior ac t was invalid, unless the legal, as
opposed to the factual, ex istence of the prior ac t is a precondition
to the subsequent act. Cons iderations of this ki nd do not arise in
the present case. This case d oes not concern an attempt to justify
a refusal to take action which depends for its validity on the validity
of an earlier act which it is now said was invalid.
[16] This is really a converse ca se: subsequent action was taken
and its validity depends not on the validity of the previous action
but its invalidity. In such a case, in my view, there is no legal basis
for holding that it was not co mpetent for the councillors who
believed the adjournment to be invalid, to proceed as if it were; this
must obviously be subject to the qualification that if they were
wrong, and the adjournment were valid, then the ir proceedings
10
thereafter would be invalid.
The Oudekraal case can also be distingui shed from the present
case on the basis that the ruling pr esently under attack is not
administrative action such as wa s under considerat ion therein. In
view of the fact that the point was n ot fully canvassed in argument
before us I shall refrain from elaborating on this aspect of the case.
[17] It follows from what I have said that the court a quo erred in
granting the order sought by th e respondent without deciding on
the validity of the purported adjournment by the respondent.
To this question I now turn.
[18] The usual place to look in order to ascer tain whether and, if
so, in what circumstances the per son presiding over a meeting is
empowered to adjourn the meeting is the constituti on of the body
which is holding the meeting or, if they exist, its standing rules. It is
common cause in this case that although the appellant’s council
informally accepted the Standard Rules and Or ders published, in
terms of section 148A of the Local Government Ordinance 8 of
1962 of the Province of the Free State, in Provincial Gazette no
140A of 1 December 2000, it did not adopt them as regulations
made by it in terms of s 148A(2) . It follows that th ey cannot be
regarded as the source of the power which a person presiding over
the appellant’s council had to ad journ the proc eedings. Such
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adoption is necessary for the rules and orde rs to acquire legal
force in the appellant’s area of jurisdiction.
[19] There is also, as far as I am aware, no provision in the
Constitution or any national or pr ovincial legislation which deals
with the powers of a speaker of a local authority such as the
appellant’s council to adjourn the proceedi ngs of the council. It
follows that the answer to th e question as to whether the
respondent had the power to adjourn the proceedi ngs of the
appellant’s council as she purported to do before it began
discussing item 6 has to be found in the common law.
[20] The common law on the topic was discussed by Lichtenberg
AJ in Jonker v Ackerman 1979 (3) 575 (O) in which it was pointed
out (at 583A) that such South African decisions as there are rely
on English authority. Th is is not surprising because the English
case law contains a number of decisions in which the law on the
point is expounded in a systematic manner which appears to be in
accordance with both common sense and justice.
[21] The effect of the English decisions is su mmarised as follows
in Halsbury’s Laws of England 4 ed (2003 reissue), vol 6, para 148
as follows:
‘It is the duty of the chairman of a meeting to preserve order and to ensure
that the proceedings are properly conducted, so that the sense of the meeting
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regarding any relevant question is duly ascertained. He has no authority to
terminate the meeting at his own will and pleasure but has an inherent power
to adjourn the proceedings in the event of disorder. This power to adjourn
must be exercised bona fide for the purpose of facilitating and forwarding the
business and not for the purpose of procrastination. Such adjournment should
be for no longer than is required in the circumstances for the restoration of
order.’
[22] The case relied on fo r the proposition that a chairperson has
no authority to terminate the meeting ‘at his own will and pleasure’
is National Dwellings Society v Sykes [1894] 3 Ch 159 , which was
cited with approval by Gane J in Neale v Mayor, East London 1935
EDL 225 at 235 and in Jonker v Ackerman, supra, at 583A–H. The
National Dwellings case, supra, concerned an ordinary general
meeting of a company at which a resolution was moved that the
reports and accounts be received. A counter-resolution was then
moved for the substituti on of the main resol ution of a resolution
that a committee of investigat ion be appointed to ascertain the
position of the company. Th e chairman, Sykes, ruled this
resolution out of order, whereup on the original resolution was put
and lost. The chairman then declared the reso lution to be lost and
said that he dissolved the meeti ng. He then vacate d the chair and
left the room, being accompanie d by a few shareholders. The
shareholders left in the room unanimously el ected another
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chairman and proceeded to pass resolutions. Chitty J held that the
meeting had validly continued de spite Sykes’s attempt to adjourn
it. He said (at 162):
‘A question of some importance has been mooted in this case, with regard to
the powers of the chairman over a meeting. Unquestionably it is the duty of
the chairman, and his function, to preserve order, and to take care that the
proceedings are conducted in a proper manner, and that the sense of the
meeting is properly ascertained with regard to any question which is properly
before the meeting. But, in my opinion, the power which has been contended
for is not within the scope of the authority of the chairman – namely to stop
the meeting at his own will and pleasure. The meeting is called for the
particular purposes of the company. According to the constitution of the
company, a certain officer has to preside. He presides with reference to the
business which is there to be transacted. In my opinion, he cannot say, after
that business has been opened, “I will have no more to do with it; I will not let
this meeting proceed; I will stop it; I declare the meeting dissolved, and I leave
the chair.” In my opinion, that is not within his power. The meeting by itself
(and these articles certainly apply to what I have said) can resolve to go on
with the business for which it has been convened, and appoint a chairman to
conduct the business which the other chairman, forgetful of his duty or
violating his duty, has tried to stop because the proceedings have taken a turn
which he himself does not like.’
[23] An earlier case on the point, mentioned in Shackleton on The
Law and Practice of Meetings 8 ed by I Shearman at p 72, is
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Stoughton v Reynolds (1736) Fort 168; 92 ER 804, a decision of
the Court of King’s Bench. In this case a vestry meeting was held
for the election of churchwa rdens. Before the election was
completed the vicar, wh o was in the chair, adjourned the meeting
to the next morning a gainst the wish of many present. Stoughton’s
supporters stayed behind and electe d him. The next morning the
vicar and his supporte rs sat and elected another person as
churchwarden whereafter Reynolds, the chancellor of the diocese,
declined to admit Stoughton to his office as churchwarden on the
ground that another person had be en chosen churchwarden. The
issue debated at the bar was whethe r the right to adjourn was
vested in the meeting or in the vicar. Lord Hardwicke CJ said (at
170):
‘The whole of this case will turn upon the adjournment. At the trial no
precedent could be found to satisfy me; and I do not believe any can be
found. … I do not find any such opinion [i.e at common law] to vest a power in
the person …. If therefore it is not in the vicar, it is said it must be in the
church-wardens, but I cannot find it is; and I do not think it can be said to be in
any one of them. In whom then can it be, but in the assembly itself? And the
right must be in the body ….’
Page J said (at 172):
‘Lord Holt was of opinion, that tho’ the mayor left the assembly, yet the
burgesses must proceed. …’
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Lee J said (also at 172):
‘the parson perhaps has a right of sitting from his freehold in the church. But I
do not think that can any ways give him greater right or authority than any of
the other members of the assembly …’
In the latest English case on the point that I could find, Byng v
London Life Association and Another [1990] Ch 170 (C.A.), the
National Dwellings case was cited by Sir Nicolas Browne-
Wilkinson VC (at 186B-C) as auth ority for the propos ition that ‘[a]
chairman has no g eneral right to adjourn a meeting at his own will
and pleasure, there being no circumstance preventing the effective
continuation of the proceedings’.
[24] I am satisfied that the common la w is as set out in the cases
I have cited. Its a pplication to the presen t case leads to the
conclusion that the issue the court a quo declined to consider has
to be decided in favou r of the appellant. The decision by the
respondent to adjourn the meeting after the council had already
decided that it would discuss i tem 6 and in the absence of
circumstances preventing the effectiv e continuation of business
was clearly invalid. The action of the council in proceeding with the
meeting, in going on with the business for which it had been
convened and in appointing a chairman to conduct the business
the respondent attempted to prevent was clearly valid as was the
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decision to remove the respondent from her position as speaker.
[25] Although the respondent pu rported to bring these
proceedings in her capacity as speake r it is clear that the interest
she had was personal to her. It follows, as her counsel was obliged
to concede, that the costs order consequent upon the success of
the appeal must be made against her in her personal capacity. The
same applies to the costs in the court a quo.
[26] The following order is made:
The appeal is allowed with costs, to be paid by the respondent in
her personal capacity.
The order granted in th e court below is set aside and the following
order is substituted therefor:
‘The application is dismissed with costs, such costs to be paid by
the applicant in her personal capacity.’
……………..
IG FARLAM
JUDGE OF APPEAL
CONCUR
SCOTT JA
CLOETE JA
LEWIS JA
MAYA AJA