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[2015] ZACC 24
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Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape v Municipal Council of the Oudtshoorn Municipality and Others (CCT05/15) [2015] ZACC 24; 2015 (6) SA 115 (CC); 2015 (10) BCLR 1187 (CC) (18 August 2015)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 05/15
In
the matter between:
PROVINCIAL
MINISTER FOR LOCAL
GOVERNMENT,
ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENT PLANNING, WESTERN
CAPE
...................................................
Applicant
and
MUNICIPAL
COUNCIL OF THE
OUDTSHOORN
MUNICIPALITY
...........................................................................
First Respondent
OUDTSHOORN
MUNICIPALITY
........................................................................
Second
Respondent
NATIONAL
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
................................................
Third
Respondent
SOUTH
AFRICAN LOCAL
GOVERNMENT
ASSOCIATION
..........................................................................
Fourth
Respondent
Neutral
citation:
Provincial Minister for
Local Government, Environmental Affairs and Development Planning,
Western Cape v Municipal Council of the
Oudtshoorn Municipality and
Others
[2015] ZACC 24
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ
and Tshiqi
AJ
Judgment:
Molemela AJ (unanimous)
Heard
on:
21 May 2015
Decided
on:
18 August 2015
Summary:
Local Government: Municipal Structures
Act 117 of 1998
—constitutional validity of
section 30(4)
—
section is constitutionally invalid
Wide
language in
section 30(4)
— any question— inconsistent
with section 160(3)(b) of the Constitution
ORDER
Application
for confirmation of the order of the Western Cape Division of the
High Court, Cape Town (Davis J):
(1)
The order granted by the High Court is confirmed.
(2)
There is no order as to costs.
JUDGMENT
MOLEMELA AJ:
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Nkabinde J, Theron AJ and Tshiqi
AJ concurring):
Introduction
[1]
This
is an application for confirmation of an order of the High Court of
South Africa, Western Cape Division, Cape Town (High Court)
declaring
section 30(4)
of the
Local Government: Municipal Structures Act
[1]
(Structures
Act) constitutionally invalid as contemplated in section 172(2)(a) of
the Constitution of the Republic of South Africa,
1996
[2]
(Constitution).
The
parties
[2]
The
applicant is the Provincial Minister for Local Government,
Environmental Affairs and Development Planning, Western Cape
(Provincial
Minister), duly appointed as such in terms of section 42
of the Constitution of the Western Cape, 1998. The first
respondent
is the Municipal Council of the Oudtshoorn Municipality
(Council) as contemplated in section 18 of the Structures Act.
[3]
The
second respondent is the Oudtshoorn Municipality (Municipality), a
local municipality established in terms of section 12 of
the
Structures Act.
[4]
[3]
The third respondent is the National Minister of
Co-operative Governance and Traditional Affairs (National Minister)
cited in his
official capacity as the member of the national
executive responsible for the administration of the laws relating to
the governance
of Municipal Councils and Local Government Affairs in
general. The fourth respondent is the South African Local
Government
Association (SALGA), a voluntary association representing
the interests of 278 municipalities across the country.
Factual
background
[4]
This application arose out of a dispute between
the Municipality and the Provincial Minister over whether the
Municipality’s
budget for its 2014/15 financial year was
validly approved. The Council’s vote on the budget on 28
May 2014 had resulted
in a deadlock, with 12 councillors voting in
favour of the approval of the budget and 12 councillors voting
against it. The
deadlock was broken when the Speaker of the
Council (Speaker), who had already voted in favour of the budget,
exercised a casting
vote, thus voting for the second time in order to
secure the approval of the budget. When exercising his casting
vote, the
Speaker purported to act in terms of section 30(4) of the
Structures Act.
[5]
Having
become aware of the Council’s decision, the Provincial Minister
asserted, in a letter addressed to the Municipality,
that the
approval of the budget brought by the Speaker’s exercise of a
casting vote violated section 160(3)(b)
[5]
read
with section 160(2)
[6]
of
the Constitution. The Municipality’s stance was that the
Speaker’s exercise of the casting vote was lawful
as it was in
accordance with section 30(4) of the Structures Act. The
Provincial Minister advised the Council that section
30(4) did not
give the Speaker a casting vote in matters listed in section 160(2)
of the Constitution, which included approval
of a municipal budget.
The Provincial Minister further advised the Council that the budget
had not been lawfully approved.
Litigation
history
[6]
The Provincial Minister approached the High Court
seeking a declarator relating to the interpretation of section 30(4)
of the Structures
Act and an order setting aside the 2014/15 budget.
The crisp issue in those proceedings was whether a Speaker of a
municipal
council could, where there was a deadlock in respect of a
motion to pass a budget, exercise a casting vote in order to approve
such council’s budget. The Provincial Minister contended
that the section, properly interpreted, ought not to apply
to issues
set out in section 160(2) of the Constitution.
[7]
The Council and the Municipality initially opposed
the application but later reached an agreement with the Provincial
Minister.
The agreement was that the Provincial Minister would
not persist with the relief of setting aside the budget as it would
not be
practical to do so without adversely affecting the continued
functioning of the Municipality.
[8]
For this reason, the only issue before the High
Court was the proper interpretation of section 30(4) of the
Structures Act.
The Provincial Minister considered the issue
important because it could also affect all municipalities within the
Western Cape
Province.
[9]
No relief was sought against the National Minister
and SALGA as they were joined only by virtue of their interest in the
relief
sought. At the High Court, the National Minister filed
no papers and did not participate in the proceedings. SALGA
filed a notice to abide.
[10]
The High Court granted an order in these terms:
“
(1)
It is ordered that section 30(4) of the [Structures Act] is
unconstitutional and invalid to the extent that it allows a
councillor,
presiding over the meeting of a municipal council, to
exercise a casting vote in addition to his or her deliberate vote as
a councillor,
also in respect of any matters referred to in section
160(2) of the [Constitution].
(2)
It is declared that the following words be read into section 30(4):
‘other than a matter mentioned in section 160(2) of
the
Constitution’ after the word ‘question’ in the
first line of that section.
(3)
It is declared that the orders made in paragraphs (1) and (2) shall
have no bearing on passed decisions in respect of matters
referred in
section 160(2) of the Constitution that have already been adopted as
at the date of this order, including the first
respondent’s
decision to approve the second respondent’s budget on 28 May
2014.”
[7]
Since
an order of constitutional invalidity that pertains to an Act of
Parliament has no force unless it is confirmed by this Court,
the
High Court’s order was referred to this Court for confirmation
in terms of section 172(2)(c) of the Constitution.
The
issues
[11]
The central issues are (a) whether section 30(4)
of the Structures Act is inconsistent with section 160(3)(b) of the
Constitution
and therefore invalid, and if so, (b) what is the
appropriate remedy?
The
correct approach to statutory interpretation
[12]
This
Court has previously stated that when interpreting a statute,
Judicial Officers must consider the language used as well as
the
purpose and context and must endeavour to interpret the statute in a
manner that renders the statute constitutionally compliant.
[8]
[13]
In
Bertie
Van Zyl
,
this
Court stated that “[t]he purpose of a statute plays an
important role in establishing a context that clarifies the scope
and
intended effect of a law”.
[9]
It
pointed out that a
contextual
or purposive reading of a statute must remain faithful to the actual
wording of the statute.
[10]
[14]
In
National
Coalition
,
it was held that legislation must be interpreted in a way that
promotes the spirit, purport and objects of the Bill of Rights
but
limited to what the text of the statute is reasonably capable of
meaning.
[11]
This
position was echoed in
Hyundai,
where
Langa DP stated that “judicial officers must prefer
interpretations of legislation that fall within constitutional bounds
over those that do not, provided that such an interpretation can be
reasonably ascribed to the section”.
[12]
He,
however, warned against an unduly strained interpretation.
[13]
These
statements were quoted with approval by this Court in
Democratic
Alliance
.
[14]
The meaning of
section 30(4)
[15]
Section 30 of the Structures Act, entitled
“Quorums and decisions”, provides as follows:
“
(1)
A majority of the councillors must be present at a meeting of the
council before a vote may be taken on any matter.
(2)
All questions concerning matters mentioned in section 160(2) of the
Constitution are determined by a decision taken by a municipal
council with a supporting vote of a majority of the councillors.
(3)
All other questions before a municipal council are decided by a
majority of the votes cast, subject to section 34.
(4)
If on any question there is an equality of votes, the councillor
presiding must exercise a casting vote in addition to that
councillor’s vote as a councillor.”
[16]
Section 160 of the Constitution provides, in
relevant part, as follows:
“
.
. .
(2)
The following functions may not be delegated by a Municipal Council:
(a)
The passing of by-laws;
(b)
the approval of budgets;
(c)
the imposition of rates and other taxes, levies and duties; and
(d)
the raising of loans.
(3)
(a)
A majority of the members of a Municipal Council must be present
before a vote may be taken on any matter.
(b)
All questions concerning matters mentioned in subsection (2) are
determined by a decision taken by a Municipal Council with
a
supporting vote of a majority of its members.
(c)
All other questions before a Municipal Council are decided by a
majority of the votes cast.”
[17]
Both parties have adopted the position that
section 30(4) of the Structures Act is inconsistent with section
160(3)(b) of the Constitution
to the extent that it empowers a
presiding councillor to have a casting vote on an issue listed in
section 160(2) of the Constitution.
[18]
As
aptly noted in the High Court judgment, it is significant that the
original text of section 160 adopted by the Constitutional
Assembly
was held by this Court to be in breach of the Constitutional
Principles in
First
Certification
.
[15]
This
Court held the section to be incongruent with Constitutional
Principles XXIV and X which demanded a framework for local government
powers and functions and which required that formal legislative
procedures shall be adhered to by legislative organs at all levels
of
government.
[16]
According
to this Court, this meant that the Constitution ought to indicate how
local governments are to take decisions.
[17]
The
upshot of the decision in that case was a revised section 160.
[19]
An analysis of this section in its current form
shows a deliberate change in the wording used in section 160(3)(b)
and (c). This
change in the wording suggests that the
Constitution envisaged a bifurcated process in respect of approval of
motions which are
brought before a council. If the motion
concerns the approval of budgets, as contemplated in section
160(3)(b), that decision
must be taken with a supporting vote of a
majority of that council’s members. This would mean that
the majority of
the total complement of the council members would
have to vote in favour of that motion. Thus, where a municipal
council
has 24 or 25 members, it would be necessary for at least 13
of those councillors to vote in favour of that motion.
[20]
On the other hand, the procedure envisaged in
section 160(3)(c) is that if the motion does not concern any of the
functions which
are set out in section 160(2) of the Constitution, a
decision can be taken by a majority of the votes cast. This
would mean
that a mere majority of the quorum required would suffice
in order to pass a motion. Following the scenario sketched
above,
this would mean that if 13 council members out of a complement
of 24 or 25 attend a meeting, a motion would then be carried if seven
of the council members in attendance voted in favour of it. It
is clear that the reason behind requiring a higher threshold
in
respect of resolutions pertaining to the matters listed in section
160(2) is that they are considered to be weighty matters.
Such
weighty matters should not have to be decided by way of a Speaker
exercising a casting vote.
[21]
A reading of section 30 of the Structures Act
shows that section 30(1) amounts to a re-enactment of what is
contained in section
160(3)(a) of the Constitution, namely that a
majority of the members of a council must be present before a
decision can be taken.
Section 30(2) states that all questions
relating to section 160(2) of the Constitution are to be determined
by a decision
taken by a municipal council with a supporting vote of
a majority of the councillors. Section 30(2) thus mirrors
section
160(3)(b). Section 30(3) largely echoes the
provisions of section 160(3)(c).
[22]
Section
30(4) of the Structures Act, however, finds no equivalent provision
in section 160 of the Constitution. It provides
that “[i]f
on
any
question
there
is an equality of votes, the councillor presiding must exercise a
casting vote in addition to that councillor’s vote
as a
councillor”.
[18]
The
section commences with the words: “If on any question there is
an equality of votes”. That phrase is couched
in wide
terms indeed. A plain reading of the language used in section
30(4) suggests that it covers all the matters set out
in section
30(2) and (3) and thus covers all motions before a municipal council.
To the extent that section 30(4) permits
this, it seems to be
inconsistent with the broader legislative scheme governing
municipalities and the Constitution. This
is because section
160(3)(b) of the Constitution plainly sets a threshold that requires
decisions in relation to items listed in
section 160(2) to be
supported by a majority of the members of a municipal council.
This means that where there is a tie,
the threshold created by
section 160(3)(b) requiring the support of the majority of the
members of a council is not met.
[23]
In
Abahlali
Basemjondolo,
this
Court warned that while it is important to prefer an interpretation
of a statutory provision that avoids any constitutional
inconsistency, one must be careful not to choose an interpretation
that cannot be readily inferred from the text of the provision.
[19]
The
question is whether section 30(4) can be interpreted congruently with
section 160 of the Constitution. An order of constitutional
invalidity ought not to be granted where words are capable of being
interpreted in a manner that renders the provision constitutional.
In my view, the ordinary interpretation of the words “any
question” in section 30(4) is one that envisages matters
listed
in section 30(2) of the Structures Act which includes those mentioned
in section 160(2) of the Constitution. Because
of the usage of
the wide phraseology of “any question” in section 30(4),
one cannot interpret the section to be applicable
only to section
30(3) where the words “a majority of the votes cast” are
used. The only meaning that can be inferred
from section 30(4)
is that the section applies to all issues determined by a municipal
council including those mentioned in section
160(2) of the
Constitution.
[24]
Furthermore, the express wording in section 30(4)
cannot be overcome by the fact that the section goes on to refer to
“an
equality of votes”. Although a section 160(2)
matter requires the support of a majority of councillors (rather
than
votes cast) to pass, it is still possible for a decision to have an
equal number of votes. In the case of a section
160(2) matter,
however, the decision would just be unable to pass, and the council
would have to amend the by-laws or budget and
hold a further vote on
the decision. This is in line with the import of decisions
taken in relation to section 160(2) matters.
[25]
The inescapable conclusion is that section 30(4)
of the Structures Act is incapable of an interpretation that renders
it constitutional
and valid. It is inconsistent with section
160(3)(b) of the Constitution and falls to be declared invalid.
Appropriate
relief
[26]
In terms of section 172(1)(a) of the Constitution,
this Court has the power to declare a law that is inconsistent with
the Constitution
invalid to the extent of its inconsistency. In
that event, this Court, in terms of section 172(1)(b), is enjoined to
make
an order that is just and equitable, including an order
suspending a declaration of invalidity to allow a competent authority
to
correct the defect.
Reading-in
[27]
The
question that arises is whether this Court should read words into
section 30(4) of the Structures Act in order to render
it
compatible with section 160(3)(b) of the Constitution. The
starting point is captured in
Gaertner
where
this Court held that “reading- in” should be resorted to
sparingly because the “actual act of writing or
editing
legislation may constitute a possible encroachment by the Judiciary
on the terrain of the Legislature and, therefore, a
violation of the
separation of powers”. This Court, however, held that
depending on its nature and extent, reading-in
does not unduly
encroach on the terrain of the Legislature.
[20]
[28]
In
this regard, this Court in
National
Coalition
summarised
principles that are applicable when considering whether or not to
employ “reading-in” as a remedial measure.
[21]
The
principles enunciated are:
(a)
The provision which results from reading words into a statute should
be consistent with the Constitution;
(b)
The result achieved should interfere with the laws adopted by the
legislature as little as possible;
(c)
A court should be able to define with sufficient precision how the
statute ought to be extended in order to comply with the
Constitution;
(d)
A court should endeavour to be as faithful as possible to the
legislative scheme within the constraints of the Constitution;
and
(e)
Even where the remedy of reading in is otherwise justified, it ought
not to be granted where it would result in an unsupportable
budgetary
intrusion.
[29]
In
C
,
this Court held that the legislature may at any time pass an
amendment that addresses the reading-in.
[22]
It
was stated that “[i]n the ordinary course, where reading-in can
provide an effective remedy, it will generally be preferable
to a
bald declaration of invalidity and to a suspensive order, coupled
with interim relief”.
[23]
[30]
The High Court granted an order that the words
“other than a matter mentioned in section 160(2) of the
Constitution”
be inserted after the word “question”
in the impugned section. Both parties have submitted that it
would be just
and equitable for this Court to grant the reading-in
remedy adopted by the High Court. The applicant advances
persuasive
reasons why reading-in is the appropriate remedy.
The first one is that the constitutional invalidity of section 30(4)
is
attributable to an omission of very few words that can be easily
read into the section without impermissibly traversing the
legislative
terrain. The second one is that the wide scope of
section 30(4) appears to be an inadvertent error, something confirmed
by
the fact that the section is inconsistent with section 30(3).
The third one is that there are no other options available to
cure
the unconstitutionality. I endorse these reasons, as they are
in line with the guidelines enunciated by this Court in
National
Coalition
.
Should
the order operate retrospectively?
[31]
The
National Minister emphasised that it is crucial for this Court to
limit the reach of the declaration of invalidity so that it
operates
prospectively only. In
Cross-
Border
,
this Court confirmed that the default position when it comes to an
order of constitutional invalidity is that the order “will
have
immediate retrospective effect”.
[24]
This
is so unless the Court making the declaration declares otherwise for
reasons pertaining to justice and equity.
[25]
[32]
An order of full retrospective force would render
unlawful all decisions taken by Municipal Councils in which section
30(4) of the
Structures Act was invoked. The parties submitted
that an order that operates retrospectively would be disastrous to
the
many municipalities that took decisions on matters referred to in
section 160(2) of the Constitution through the exercise of a casting
vote and subsequently implemented them. That result would also
adversely affect third parties who contracted with these
municipalities. An appropriate order would therefore be one
that prospectively declares section 30(4) inconsistent with the
Constitution and invalid.
Order
The
following order is made:
(1)
The order granted by the High Court is confirmed.
(2)
There is no order as to costs.
For
the Applicant: P Farlam and M Adhikari instructed
by
the State Attorney.
For
the Third Respondent:
K Pillay SC and M Lekoane instructed
by
the State Attorney.
[1]
117
of 1998. Section 30(4), entitled “quorums and decisions”,
reads:
“
.
. .
If
on any question there is an equality of votes, the councillor
presiding must exercise a casting vote in addition to that
councillor’s vote as a councillor.”
[2]
Section
172(2) reads:
“
(a)
The Supreme Court of Appeal, the High Court of South Africa or a
court of similar status may make an order concerning the
constitutional validity of an Act of Parliament, a provincial Act or
any conduct of the President, but an order of constitutional
invalidity has no force unless it is confirmed by the Constitutional
Court.
(b)
A court which makes an order of constitutional invalidity may grant
a temporary interdict or other temporary relief to a party,
or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
(c)
National legislation must provide for the referral of an order of
constitutional invalidity to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest may appeal,
or apply, directly to the Constitutional Court to confirm
or vary an
order of constitutional invalidity by a court in terms of this
subsection.”
[3]
Section
18 reads:
“
(1)
Each municipality must have a municipal council.
(2)
A municipal council must meet at least quarterly.
(3)
A municipal council consists of a number of councillors determined
by the MEC for local government in the province concerned
by notice
in the
Provincial Gazette
.
(4)
A municipality has the power to designate councillors determined by
the MEC for local government as full-time. An MEC’s
determination must be in accordance with a policy framework as may
be determined by the Minister after consulting the MECs for
local
government.”
[4]
Section
12, entitled “MECs to establish municipalities”, reads
in relevant part:
“
(1)
The MEC for local government in a province, by notice in the
Provincial Gazette
,
must establish a municipality in each municipal area which the
Demarcation Board demarcates in the province in terms of the
Demarcation Act.
(2)
The establishment of a municipality —
(a)
must be consistent with the provisions of this Act; and
(b)
takes effect at the commencement of the first election of the
council of that municipality.
.
. . .”
[5]
Section
160(3)(b) reads:
“
All
questions concerning matters mentioned in subsection (2) are
determined by a decision taken by a Municipal Council with a
supporting vote of a majority of its members.”
[6]
Section
160(2) reads:
“
The
following functions may not be delegated by a Municipal Council:
(a)
The passing of by-laws;
(b)
the approval of budgets;
(c)
the imposition of rates and other taxes, levies and duties; and
(d)
the raising of loans.”
[7]
This
is the version of the order that was embodied in the signed
transcript of the High Court judgment.
[8]
Cool
Ideas 1186 CC v Hubbard and Another
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para 28.
[9]
Bertie
Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
[2009]
ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) (
Bertie
Van Zyl
)
at para 21.
[10]
Id
at para 22.
[11]
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999]
ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National
Coalition
)
at paras 23-4.
[12]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
)
at para 23.
[13]
Id
at para 24.
[14]
Democratic
Alliance v African National Congress and Another
[2015]
ZACC 1
;
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC) (
Democratic
Alliance
)
at para 41.
[15]
Certification
of the Constitution of the Republic of South Africa, 1996
[1996]
ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) (
First
Certification
).
[16]
Id
at para 301.
[17]
Id.
[18]
Emphasis
added.
[19]
Abahlali
Basemjondolo Movement SA and Another v Premier of the Province of
Kwazulu-Natal and Others
[2009]
ZACC 31
;
2010 (2) BCLR 99
(CC) (
Abahlali Basemjondolo
) at
para 120.
[20]
Gaertner
and Others v Minister of Finance and Others
[2013]
ZACC 38
;
2014 (1) SA 442
(CC);
2014 (1) BCLR 38
(CC) (
Gaertner
)
at paras 82 and 84.
[21]
National
Coalition
above
n 11 at paras 74-5.
[22]
C
and Others v Department of Health and Social Development, Gauteng
and Others
[2012]
ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR 329
(CC) (
C
)
at para 57.
[23]
Id
at para 46.
[24]
Cross-Border
Road Transport Agency v Central African Road Services (Pty) Ltd and
Another
[2015]
ZACC 12
(
Cross-Border
)
at para 20.
[25]
Id
at para 21.