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[2023] ZAGPJHC 147
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Dhlamini and Another v City Manager of The City of Ekurhuleni Metropolitan Municipality and Others (2023-009319) [2023] ZAGPJHC 147 (13 February 2023)

FLYNOTES:
CITY MANAGER AND
UNCONSTITUTIONAL CONDUCT
MUNICIPALITY
– City manager – Duties – Expected to be an
enforcer of the Constitution and to resist political
pressure to
act unconstitutionally – Speaker adjourning meeting due to
unruly conduct – City manager resuming
meeting –
Unlawful decisions then taken reviewed and set aside –
Warning that the court will make personal costs
orders against
administrative officials and councillors guilty of repeated
unconstitutional conduct, particularly where it
involves disregard
for court orders.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG
Case
No: 2023-009319
REPORTABLE:
YES
/
NO
OF
INTEREST TO OTHER JUDGES: YES/
NO
REVISED:
NO
DATE:
13/02/2023
In
the matter between:
RAYMOND
DHLAMINI
First
Applicant
DEMOCRATIC
ALLIANCE
Second
Applicant
and
THE
CITY MANAGER OF THE CITY OF
EKURHULENI
METROPOLITAN MUNICIPALITY
First
Respondent
DR
IMOGEN
MASHAZI
Second
Respondent
COUNCIL
OF THE CITY OF EKURUHLENI
METROPOLITAN
MUNICIPALITY
Third
Respondent
THE
CITY OF EKURHULENI METROPOLITAN
MUNICIPALITY
Fourth Respondent
NTHABISENG
TSHIVHENGA
Fifth
Respondent
GAUTENG
MEC FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
Sixth
Respondent
JUDGMENT
DODSON
AJ:
[1]
This matter
was heard in the urgent court. It has largely become resolved as a
consequence of what became common cause in the course
of argument.
[2]
The first
applicant is the speaker of the third respondent municipal council.
The position of speaker of a municipal council is
provided for in
part 2 of chapter 3 of the Local Government: Municipal Structures Act
No. 117 of 1998 (“the Structures Act”)
at sections 6 to
41.
[3]
On Thursday 26
January 2023, the first applicant (“the speaker”)
presided over an ordinary meeting of the council. According
to him,
after the lunch break, several councillors became disruptive and
stormed the speaker’s chair.
[4]
Acting under
Rule 72(1) of the City of Ekurhuleni Metropolitan Municipality
Standing Orders by-law (“the standing orders”),
which
empowers the speaker, in the event of grave disorder, to adjourn the
meeting for such period as he or she deems necessary,
he adjourned
the meeting.
[5]
Later that day
he received an email attaching a request from members of some of the
political parties represented in the council,
to resume the adjourned
council meeting. The request was purportedly made in terms of section
29(1) of the Structures Act. Given
their centrality to the matter, it
is appropriate at this stage to quote the relevant parts of section
29:
“
29.
Meetings at municipal councils
(1)
The speaker of
the municipal council decides when and where the council meets
subject to section 18(2), but 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.
(1A)
If the speaker or acting speaker refuses to call a meeting of the
council as requested in terms of subsection (1),
the municipal
manager, or, in the absence or refusal by the municipal manager, a
person designated by the MEC for local government
in the province,
may call and chair the meeting.”
[6]
The request
was repeated on Friday 27 January 2023. The speaker responded in
writing confirming that the meeting had been adjourned
in terms of
rule 72 and saying, further –
“
I
have written to the whip of council to call for a multi-party meeting
to address the issues which led to subsequent adjournment
of the
meeting. It is important the issues are addressed by that forum for
the safety of all councillors so we continue to have
a council
meeting that allows for debates and freedom of speech.
…
Therefore,
I will wait for the outcome of the multi-party meeting and
communicate a date for the continuation of the meeting.”
[7]
Later on 27
January 2023, the first respondent, the city manager, wrote a letter
to a set of political parties in response to the
letter addressed to
the speaker saying:
“
After
a due consideration of [the request], I have decided to abide by the
request, as provided for in section 29(1) and section
29(1A) of the
Municipal Structures Act and the 2021 amendment.”
[8]
Consequent
upon her decision, she called a council meeting for Monday 30 January
2023.
Having
regard to the wording of section 29(1) and (1A) of the Structures Act
and the powers of the speaker in rule 72 of the standing
orders, the
speaker took the view that there was no lawful basis for the city
manager to call or chair a meeting of the council
under either of
these provisions of the Structures Act and that it was procedurally
irrational. The speaker’s stance was
that section 29(1) calls
for a request to be made by a majority of councillors, whereas only
13 had signed the request addressed
to him. In any event, he had
lawfully adjourned the meeting under rule 72 and, with reference to
section 29(1A), he had never refused
to call a meeting of council.
[9]
Therefore, the
speaker and the second applicant, the Democratic Alliance brought an
urgent application on Sunday 29 January 2023
to interdict the second
respondent and the council from proceeding with the meeting that had
purportedly been called for 10h00
on Monday 30 January 2023. The
urgent application was granted in the form of interim relief pending
the final adjudication of a
review of the city manager’s
decision to call the extraordinary council meeting.
[10]
The order
notwithstanding, at 10h00 on Monday 30 January 2023, the city manager
commenced the extraordinary council meeting but
decided to adjourn it
to Tuesday 31 January 2023.
[11]
On the same
day, the applicants’ attorneys wrote to the second respondent
to emphasise that the mere convening of the meeting
had constituted
contempt of the court’s order.
They gave
notice further that should she not cancel the meeting which she had
purported to adjourn to Tuesday 31 January 202, they
would again
approach the court, this time with an urgent application to have her
held in contempt of the order.
[12]
Later that day
the city manager’s attorneys wrote to the applicants’
attorneys claiming that she had not taken any steps
to proceed with
the meeting on 30 January 2023 but instead had merely informed
councillors that the business of the day would not
continue and they
adjourned the meeting until the next day so she could consider how to
proceed once she had obtained a copy of
the court’s typed
order. The letter said further that she had, after consulting with
counsel, decided to cancel the extraordinary
council meeting that she
had purported to adjourn to Tuesday.
[13]
Also on that
day, Monday 30 January 2023, the speaker wrote to all political
parties with representatives in council as well as
the chief whip,
the chair of chairs and the secretary of council to inform them that,
after considering all factors, he had “decided
to call for the
continuation of the meeting which will be held on Thursday 2 February
2023 as it will be circulated on the notice
of the meeting”.
[14]
On Wednesday 1
February 2023, a multi-party whippery meeting was held and a demand
emanating from that meeting was that the speaker
recuse himself when
a motion of no confidence in him was to be raised at the resumed
meeting.
The
speaker took up the attitude that there was no basis for his recusal.
[15]
The
ordinary
council
meeting
commenced
on
Thursday
2
February
2023
at
13h00.
Shortly
after that the speaker met with all the heads of the political
parties to agree on a way forward to elect a new chief whip
of
council. That matter was then dealt with. After that there was a
lengthy debate about the order of the agenda. According to
the
speaker, this debate implicated a complex question about how the
council’s standing orders should be interpreted.
[16]
At
approximately 18h50, a proposal was made that the speaker was
conflicted in the performance of his duties and that he should
hand
over his role as presiding officer to the “chair of chairs”
whom I understand to be the senior chairperson of
all the
chairpersons of the various committees of the council. In response,
the speaker pointed out that he was required by section
37(a) of the
Structures Act to preside at the meeting of the council and by the
standing orders to determine the proceedings of
the council, and to
keep order. These responsibilities could not be assumed by the chair
of chairs. He therefore refused to accede
to the proposal to hand
over his duties as the presiding officer.
[17]
This resulted
in what the speaker described as several councillors engaging in
extremely unruly and disruptive behaviour, resulting
in a breakdown
of the orderly process of discussion, deliberation and
decision-making. Video footage was offered in support but
it did not
turn out to be necessary for me to have regard to it. Acting once
again in terms of his powers under rule 72(1) of the
standing orders,
he decided to adjourn the meeting at approximately 19h07.
[18]
The speaker
contends that his decision to adjourn the meeting was binding and
enforceable against all relevant parties, including
the city manager,
the councillors and the council, and that it stood unless and until
set aside by a competent court.
[19]
After he had
adjourned the meeting, councillors from the Democratic Alliance, the
Freedom Front Plus, Inkatha Freedom Party and
the African Christian
Democratic Party left the council chamber.
[20]
Some of the
other councillors however remained in the council chambers. At
approximately 19h19, some 12 minutes after adjournment
of the council
meeting, the city manager entered the council chamber.
She sat in the
speaker’s chair. She claimed that she had “just received
a second letter from the majority of political
parties requesting her
to reconvene the meeting”. She went on to say –
“
I
respond to the second letter that I have just received from the
majority of parties in council to chair this meeting in terms
of
section 29(1A) of the … Structures Act to assist councillors
or council to continue with its business of service delivery
to the
citizens of the City of Ekurhuleni.”
[21]
The speaker
goes on in the founding affidavit to point out that the letter could
never have constituted a valid request for the
purposes of section
29(1A) of the Structures Act, that might otherwise have empowered her
to call and chair a council meeting,
for the following reasons –
[21.1]
Section 29(1A) only empowers the city manager to call a meeting of
council if the speaker refuses to agree to a valid
request for such a
meeting by a majority of councillors under section 29(1);
[21.2]
There was however no valid request for a meeting under section 29(1)
for the speaker to consider. To constitute a valid
request the letter
would have to have been signed by a majority of the councillors. The
speaker however claimed that the letter
had been sent by a “majority
of the political parties”;
[21.3]
The speaker had not refused to accede to any request in writing for a
meeting under section 29(1);
[21.4]
In any event he would have had no power to accept any such demand
because once a meeting has been adjourned by the
speaker under rule
72(1), the decision is final and stands.
[22]
The speaker
asserted further that the city manager’s decision to call and
chair the meeting was procedurally irrational.
[23]
The speaker
also points out that the city manager, when she made her decision,
purportedly to resume the adjourned meeting, would
have been fully
aware of her lack of authority to do so, because of the focus on the
provisions of section 29(1) and (1A) during
the urgent proceedings in
this court on the immediately preceding Sunday and Monday.
[24]
The speaker
goes on to refer to a number of other provisions of the Structures
Act, the standing orders and the Constitution that
rendered the
speaker’s purported resumption of the meeting, and the
decisions that followed in the meeting, unlawful, void
and invalid.
[25]
The decisions
that were taken at the resumed meeting, all of which are impugned in
these proceedings, were as follows:
[25.1]
The decision of the city manager to call, alternatively to continue
with a council meeting after it had been adjourned
by the speaker;
[25.2]
The decision of the
city manager to preside at, dispose of the business of, and call for
a rollcall at, the purportedly resumed
meeting;
[25.3]
The decision of the
city manager to put to a vote a motion for the appointment of the
fifth respondent as acting speaker;
[25.4]
The
decision
of
the
council
to
appoint
the
fifth
respondent
as
the
acting
speaker;
[25.5]
The decision to
remove the speaker (i.e. the first applicant) from office as
speaker;
[25.6]
The
decision to suspend rule 83(2)(i) of the council standing orders;
[1]
[25.7]
The decision to
rename Masoleng Park to Bokgabo Park;
[25.8]
The decision to require the city and the relevant department to
consider complying with the obligation to consistently
provide a
weekly refuse removal service and credit the accounts of residents
and businesses for the non- existent and/or erratic
provision of
waste removal services.
[26]
The applicants
contend in the first instance that, the meeting having been
unlawfully called by the city manager, and unlawfully
chaired by her
and, after her, the “acting speaker”, everything that
took place at that meeting was unlawful and therefore
a nullity. They
enumerated multiple additional statutory breaches which they contend
vitiated the various decisions. It is no longer
necessary for me to
go into the details of those alleged breaches.
[27]
The applicants
then applied urgently for these decisions to be declared void
ab
initio
and
a nullity, alternatively to review and set them aside, along with any
further decisions that may have been taken consequent
upon the
decisions taken at the impugned meeting. They sought urgent final
relief in this regard, alternatively, interim relief
pending part B
adjudication of their legality in due course.
[28]
Answering
affidavits were filed by the first to fourth respondents. The facts
were largely uncontested. The main facts were in any
event apparent
from a transcript of the impugned proceedings, which was attached to
the papers. They alleged that what underlay
the application was a
political dispute between the speaker and certain councillors and
that what the applicants were trying to
avoid was the legitimate
deliberation by the council of a motion of no confidence in the
speaker. The participating respondents
also brought a
counterapplication in which they sought the following relief:
“
16.1
The speaker is requested to convene a
meeting of council for Wednesday 15 February 2023;
16.2
The motion of
no confidence the speaker recorded in an annexure to the founding
affidavit would be considered at the meeting;
16.3
In the event
that the motion is carried, the council will in the same meeting
elect a new speaker in accordance with the council’s
standing
orders in the Municipal Structures Act;
16.4
The meeting is
chaired by ElecXions Agency, or such other accredited agency
available to conduct the meeting.”
[29]
The applicants
filed a replying affidavit in which they pointed out that there was
no real contestation in the participating respondents’

answering affidavit, of their case as pleaded in the founding
affidavit. The relief sought in the counterapplication, contemplating

as it did this court directing a meeting chaired by an outside party,
would give rise to a serious breach of the separation of
powers
doctrine and would also conflict with various constitutional and
statutory provisions. The speaker also conveyed in the
replying
affidavit that
“
in
the event that this court grants the declaratory or review relief
sought by the DA and myself in the main application, I intend
duly to
call a special council meeting by 16 February 2023, or as soon
thereafter as reasonably possible…. This will enable
the
Council to function and conduct its business”.
[30]
In the course
of argument, the counter application was withdrawn. Counsel for the
participating respondents went on to concede that
the meeting of
Thursday 2 October 2023 had been unlawfully resumed by the city
manager, on account of non-compliance with section
29(1) and (1A),
that the appointment of the fifth respondent as acting speaker had
been unlawful and that the purported removal
of the speaker from
office was similarly unlawful. He was not willing to concede that the
further decisions to suspend rule 83(2)(i)
of the standing orders, to
rename the park and to require the city and the relevant department
to consider complying with refuse
removal obligations, were unlawful.
In any event, he contended that the relief in relation to those
decisions was not urgent and
could be the subject matter of a hearing
in due course.
[31]
Counsel
did not, however, strongly resist the proposition put to him from the
bench that, once the resumption of the meeting by
the city manager is
held to be unlawful, all of the decisions which followed it must,
domino-like, fall too.
[2]
Nor
did he strongly resist the proposition that it would be unfair to
impose on another judge at a hearing in due course, the determination

of these further questions when they could fairly be said to be ripe
for immediate determination in the present hearing.
[32]
In my view,
the concession was correctly made that the actions of the city
manager in calling and purporting to resume the council
meeting on
Thursday 2 February 2023, were
unlawful.
All
of
the
decisions
that
followed
these
unlawful
acts
are
similarly
unlawful and invalid. This includes any decisions or actions taken
pursuant to those decisions.
There is no
need to delay adjudication of some of these. The founding value of
the supremacy of the Constitution and the rule of
law in section 1(c)
supports the quick imposition of legal certainty upon the affairs of
the municipality.
Legal
certainty is also promoted by the review and setting aside of the
impugned decisions, in addition to their declaration as
a
constitutional nullity.
[33]
In the
circumstances, I find that the applicants have made out a case for
the grant of the substantive relief sought on a final
basis.
[34]
That leaves
only the question of costs. The applicants seek an order of costs
de
bonis propriis
against
the city manager in her personal capacity (“a personal costs
order”) on account of her role in the events precipitating
the
urgent application. For this reason, she has been joined in her
personal capacity as second respondent, over and above her
having
been joined in her official capacity as first respondent. In
particular, the applicants point to the fact that her
unconstitutional
conduct fell hot on the heels of the earlier order
by this court interdicting her convening of a council meeting with
reference
to the same provisions of the Structures Act.
They also
refer to what she said at the impugned meeting regarding this court’s
interim interdict granted only four days before:
“
We
need to clear the air that the interdict was based on the timeline
that the Judge did not receive papers on time and the Judge
only
interdicted the meeting that was held at 10 o’clock. And if you
remember, councillors, the meeting was never held. I
came here and
adjourned the meeting of 10 o’clock. And in terms of the court
papers, the Judge was arguing that why are we
not prepared to
actually move the meeting to 16h00 same day or actually the following
day. So anyway we left the matter at that
and
we
also interdicted the decision of the Judge to grant the interdict
to the DA
.”
(emphasis added)
[35]
It was
asserted that the latter comments reflected contempt for this court’s
processes and authority.
[36]
The city
manager did not put up anything other than an affidavit confirming
the main answering affidavit, which did not focus on
resisting a
personal costs order. On this basis, the applicants contend that the
complaints against her stand uncontested and a
case has properly been
made out for a personal costs order. Counsel for the participating
respondents, however, sought a fair opportunity
for the city manager
to defend herself in her personal capacity at a further hearing,
asserting that she would advance an innocent
explanation for the
comments quoted above. The parties indicated that such a hearing
could take place on this coming Thursday,
if needs be.
[37]
I have
carefully considered the matter. There can be no doubt that the city
manager’s conduct was, from a constitutional perspective,

brazen.
This
is so in respect of her conduct, even if she has an innocent
explanation for her comments. The political role played by her
when
she in fact forms part of the administration of the Municipality, is
problematic to say the least.
[38]
However, she
was not a lone ranger in this regard. She was acting on the unlawful
instructions of a significant number of the political
parties
represented in council. Singling her out for a personal costs order
seems to me to be disproportionate in the circumstances.
I have
therefore decided against such an award.
However, this
judgment should serve as a warning that the court will make personal
costs orders against administrative officials
and councillors guilty
of repeat unconstitutional conduct, particularly where it involves
disregard for court orders. Relevant
in this regard are the following
subsections of section 165 of the Constitution:
“
(3)
No person or organ of state may interfere with the functioning of the
courts.
(4)
Organs of
state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.
(5)
An order or
decision issued by a court binds all persons to whom and organs of
state to which it applies.”
[39]
The
position of municipal manager is dealt with in
sections 55
to
57
of
the
Local Government: Municipal Systems Act No. 32 of 2000
. Her role
in relation to court orders was described in
Meadow
Glen
[3]
as
follows:
“
[24]
From the above-mentioned provisions it is clear that the municipal
manager is, so far as the officials of a municipality are
concerned,
the responsible person tasked with overseeing the implementation of
court orders against the municipality.…The
municipal manager
is the official who is responsible for the overall administration of
the municipality and the logical person
to be held responsible. Even
if, as must necessarily be the case, the municipal manager delegates
tasks flowing from a court order
to others it remains his or her
responsibility to secure compliance therewith.”
[40]
In this sense,
the municipal manager is also expected to be an important enforcer of
the Constitution in her own right. In future
one would expect her to
resist political pressure to act unconstitutionally. If she fails
again on this score, she or others similarly
placed should not expect
leniency when it comes to a costs award.
[41]
Counsel
for the participating respondents also advanced an argument that the
costs should be limited to those incurred until the
time of the
filing of the answering affidavit, given the constructive stance
taken up in the answering affidavit. However, in truth,
the
concessions as to unconstitutionality were not to be found in the
answering affidavit and the relief sought in the counter
application
was a constitutional non-starter. The concessions came during
argument. I do however take into account (a) the constructive

approach of counsel for the participating respondents in readily
conceding the unconstitutionality at the hearing, (b) the fact
that a
costs order against the council is ultimately paid for by the
ratepayers of a municipality and (c) the reasoning of Keightley
J in
awarding neither personal, nor attorney client costs in not
dissimilar circumstances in
Phalatse
.
[4]
I
accordingly decline to order costs on a punitive scale.
[42]
I make the
following order:
[1]
The rules,
time limits, forms and procedures provided for in the Uniform Rules
of Court are dispensed with in terms of Rule 6(12),
to the extent
necessary, and the application is heard as a matter of urgency.
[2]
The following
decisions (collectively “
the
unlawful decisions
”)
taken on Thursday, 2 February 2023, after the council meeting had
been adjourned by the Speaker, Mr Raymond Dhlamini, including
-
[2.1]
the first respondent’s decisions -
[2.1.1]
to purport to resume
a council meeting after it had been adjourned by the speaker of the
council; and
[2.1.2]
at the adjourned
Council Meeting to:
(a)
preside;
(b)
dispose of
business;
(c)
call for a
roll call; and
(d)
allow and put
to a vote, a motion for the appointment of councilor Tshivhenga as
the “acting speaker” of the council;
and
[2.2]
the third respondent’s decisions to -
[2.2.1]
appoint councillor Tshivhenga as the “acting speaker” of
the council;
[2.2.2]
remove Mr Raymond Dhlamini from the office of speaker of the council;
[2.2.3]
suspend rule 83(2)(i) of the council standing orders;
[2.2.4]
rename Masoleng Park to Bokgabo Park; and
[2.2.5]
require the fourth respondent and the relevant department to consider
complying with the obligation to consistently
provide a weekly refuse
removal service and credit the accounts of residents and businesses
for the non-existent and/or erratic
provision of waste removal
services are declared to be unlawful, unconstitutional and invalid.
[3]
The unlawful
decisions are reviewed and set aside.
[4]
Any decisions
or acts taken pursuant to the unlawful decisions are declared to be
unlawful, unconstitutional and invalid and are
reviewed and set
aside.
[5]
The costs
incurred by the applicants are to be paid by the first, third and
fourth respondents including, the costs of two counsel.
A.C.
DODSON
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Counsel
for the Applicants:
Anthony Stein SC
Daniel
Sive
Instructed
by:

Minde Schapiro & Smith Inc
Counsel
for the Respondents:
Nazeer Cassim SC
Michelle
Augustine
Instructed
by:

KM Mmuoe Attorneys
Date
of hearing:
10 February 2023
Date
of judgment:         13
February 2023
[1]
Rule
83 deals with the “nature of motions” and rule 83(2)(i)
provides in relevant part that “[m]otions …may
not be
the same in substance as any motion debated in Council in the
previous six (6) Months.”
It
is asserted by the applicants that this stands in the way of the
desire of certain parties represented in the council to move
a
motion of no confidence in the current mayor, in respect of whom
there was recently such a resolution debated.
[2]
See,
for example,
Corruption
Watch NPC and Others v President of the Republic of South Africa and
Others; Nxasana v Corruption Watch NPC and Others
(CCT
333/17; CCT 13/18)
[2018] ZACC 23
;
2018 (10) BCLR 1179
(CC);
2018
(2) SACR 442
(CC) (13 August 2018) at paras 31-35.
[3]
Meadow
Glen
Home
Owners
Association
and
Others
v
City
of
Tshwane
Metropolitan
Municipality
and
Another
(767/2013)
[2014] ZASCA 209
;
[2015] 1 All SA 299
(SCA);
2015 (2) SA 413
(SCA)
(1 December 2014)
[4]
Phalatse
and another v The Speaker of the City of Johannesburg and others
(unreported
judgment of the Gauteng Division, Johannesburg under case number
2022/26790 dated 25 October 2022)