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[2013] ZAWCHC 174
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Macpherson and Others v Stoffels and Others (13789/2013) [2013] ZAWCHC 174; [2014] 1 All SA 221 (WCC) (12 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
Reportable
Case no: 13789/2013
In the application
of:
CHRISTIAAN MACPHERSON
...........................................................................
First
Applicant
FELICITY MAGXAKA
....................................................................................
Second
Applicant
BERNARDUS VAN WYK
...................................................................................
Third
Applicant
VERNATT IVAN VAN DER
WESTHUIZEN
.................................................
Fourth
Applicant
DIANE DE JAGER
................................................................................................
Fifth
Applicant
JULIA LE ROUX
..................................................................................................
Sixth
Applicant
PIERRE NEL
.....................................................................................................
Seventh
Applicant
PETER LESLIE ROBERTS
..............................................................................
Eighth
Applicant
EWA FORTUIN
....................................................................................................
Ninth
Applicant
RYK RAYMOND WILDSCHUT
.......................................................................
Tenth
Applicant
DANIE JOHAN FOURIE
...............................................................................
Eleventh
Applicant
JURIE HARMSE
...............................................................................................
Twelfth
Applicant
JOHN MAXIM
..............................................................................................
Thirteenth
Applicant
DEMOCRATIC ALLIANCE
......................................................................
Fourteenth
Applicant
and
JOHANNES NICOLAAS HENDRICK
STOFFELS
.......................................
First Respondent
THE SPEAKER OF OUDTSHOORN
MUNICIPALITY
............................................................................................
Second
Respondent
THE MINICIPAL MANAGER OF
OUDTSHOORN MUNICIPALITY
.................................................................
Third
Respondent
THE WESTERN CAPE MECOF LOCAL
GOVERNMENT, ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING
.............................................................
Fourth
Respondent
JUDGMENT:TUESDAY12NOVEMBER
2013
Schippers J:
This is the third
of three applications brought under the above case number to compel
the first respondent, a councillor and the
Speaker of Oudtshoorn
Municipality (“the Municipality”), to convene a meeting
of the Council of the Municipality,
to consider and put to a vote
motions of no confidence in the Speaker, Executive Mayor and Deputy
Executive Mayor of the Municipality.
The applicant is theMinister
for Local Government, Environmental Affairs and Development Planning
of the Western Cape Province
(“the MEC”).
The first, second
and third respondents (“the respondents”) oppose the
application. Where appropriate I shall refer
to the first respondent
as, “the Speaker”. The respondents have brought a
counter-application in which they seek
an order directing the MEC to
investigate the facts and circumstances in relation to a deed of
settlement entered into between
the third and seventh applicants,
referred to below.
Factual overview
The basic facts are
uncontroversial and may be simply summarised. The Council of the
Municipality (“the Council”)
consists of 25 seats. In
the local government elections in 2011 the African National Congress
(ANC) secured 12 seats, the Democratic
Alliance (DA) 11, the
Congress of the People (COPE) one seat and the National People’s
Party (NPP) one. The ANC and the
NPP which together held 13 seats
formed a coalition (“the ANC-led coalition”) and took
control of the Municipality.
The DA and COPE which held 12
seats(“the DA-led coalition”) formed the opposition.
Subsequently five
ANC councillors including the 12
th
applicant (“Harmse”)
resigned and the Independent Electoral Commission (IEC) declared
their seats vacant. Two of
the vacant seats were filled by way of
proportional representation. A by-election to fill the remaining
three ward vacancies
was held on 7 August 2013. Harmse, now a member
of the DA, won one seat in the ward by-election and the ANC, the
remaining two.
This resulted in the DA-led coalition comprising 13
councillors (12 DA and the 13
th
applicant who represents
COPE) gaining the majority of the seats on the Council.
On 13 August 2013
the DA-led coalition, in terms of rule 34 of the Rules of Order
Regulating the Conduct of Meetings of the Council
of the
Municipality of Oudtshoorn (“the Rules of Order”), gave
notice to the first respondent, in his capacity as
Speaker of the
Municipality, of its intention to table motions of no confidence in
the Speaker, Executive Mayor and Deputy Executive
Mayor(“the
motions of no confidence”) at a meeting of the Council on 22
August 2013. Thereafter, the notice states,
the Councilshould
immediately proceed with an election to fill those vacancies.
By letter dated 21
August 2013, the Speaker informed the DA caucus leader that the
Council meeting scheduled for 22 August 2013
would be held on 29
August 2013, as he had been informed by his attorney that the DA-led
coalition was not ready for the meeting
and had requested a
postponement. On the same day he sent another letter to the DA
caucus leader advising that he was not in
a position to accede to
the request for a Council meeting because the subject matter of that
request was currently pending before
a judicial body - this Court.
He referred to an application under case number 8616/2013 which he
had launched in this Court and
which he said was still to be heard,
in which the DA persisted with its allegation that it had removed
the first respondent as
Speaker, and the Executive Mayor and Deputy
Executive Mayor from office on 31 May 2013.
Seemingly on the
basis that the application under case number 8616/2013 was pending
before this Court, the Speaker invoked rule
30(2)(b) of the Rules of
Order which states that no discussion shall be permitted on any
matter in respect of which a decision
by a judicial body is pending,
and declined to entertain the motions of no confidence. Furthermore,
based on the DA’s persistence
in defending that application,
the Speaker said, he was not in a position to accede to the request
for a Council meeting for
the stated reasons – to consider and
vote on the motions of no confidence. He went on to say that he was
of the view that
allowing a discussion of the motions “would
impugn the credibility and integrity of Council”.
On the same day
i.e. 21 August 2013, the Speaker wrote to the first applicant
(“Macpherson”), the third applicant
(“Van Wyk”),
the seventh applicant (“Nel”)and Harmse, in which they
were advised that they had been suspended
with immediate effect.
Macpherson was informed that based on information at his disposal,
the Speaker was of the opinion that
he had breached the Code of
Conduct for Councillors (“the Code of Conduct”),contained
in Schedule 1 to the Local
Government: Municipal Systems Act 32 of
2000 (“the Systems Act”), by being a party to or
entering into a settlement
agreement with Nel to waive legal fees
amounting to millions of rands owed by Nel to the Municipality. Van
Wyk was told that
the Speaker had good reason to believe that he was
attempting to or would interfere with the investigation involving
Nel if he
was not suspended. A similar letter was addressed to Nel.
Harmse was informed that serious accusations of bribery and
corruption
against him had been brought to the Speaker’s
attention; that these were being investigated; and that he had good
reason
to believe that Harmse was attempting to or would interfere
with the investigationif he was not suspended.
The applicants’
attorneys replied in a letter dated 22 August 2013. They informed
the Speaker that he was attempting to
prevent the DA from taking
control of the Council; that his reasons for refusing to convene the
meeting on 22 August 2013 were
contrived; and that hehas no power to
suspend the said councillors as he purported to do. He was called
upon to confirm by no
later than 23 August 2013 that he would call
the meeting requested by the DA councillors to consider the motions
of no confidence,
and to unconditionally withdraw the suspensions.
When these
undertakings were not given, the applicants launched an urgent
application on 23 August 2013 for an order directing
the Speaker to
give effect to their written request of 13 August 2013, to convene a
meeting of the Council by Thursday 29 August
2013 and no later than
5 September2013 to consider and vote on the motions of no
confidence; and an order that the decisions
suspending Macpherson,
Van Wyk, Nel and Harmse be reviewed and set aside (“the first
application”). The applicants
also sought an order that in the
event that the Council meeting was not convened or completed by 5
September 2013, the MECshould
be directed to give effect to the
applicants’ written request of 13 August 2013, to convene a
meeting of the Council to
discuss and vote on the motions of no
confidence. The MEC is cited as the fourth respondent in the first
application.
In his answering
affidavit in the first application, the first respondent states that
the application was in substantial part
moot, because the applicants
had been informed in an e-mail sent on 23 August 2013 that the
suspensions complained of had been
revoked with immediate effect;
and that the respondents in an e-mail sent on 27 August 2013, had
made it clear that a meeting
would be convened on 4 September 2013,
and that the agenda would include the motions of no confidence as
requested by the DA
councillors.
On 28 August 2013
thefirst application came before Rogers J. By agreement the
following orders inter alia were made:
“
1.
It
is recorded that the first and second respondents:
Have given effect to the
Applicants’ written request, dated 13 August 2013, to convene
a Council meeting to consider motions
of no confidence in the
Speaker, Executive Mayor and Deputy Mayor and that such meeting has
been convened for Wednesday 4 September
2013 at 11h00.
Have undertaken not to attempt
to suspend First to Thirteenth Applicants as councillors of the
Oudtshoorn Municipal Council
until the meeting referred to in
paragraph 1.1 above is completed.
2. In the event that the meeting
is not convened or completed by Wednesday, 4 September 2013, Fourth
Respondent is directed to give
effect to the Applicants’
written request, dated 13 August 2013, to convene a meeting of the
Oudtshoorn Municipal Council
to consider the motions of no confidence
in the Speaker, Executive Mayor and Deputy Mayor, which meeting or
meetings shall take
place at a time and a place to be determined by
Fourth Respondent.”
However, at the
meeting of 4 September 2013 the Council did not consider or vote on
the motions of no confidence. In a written
notice the Speaker said
that he had considered the motions and ruled that they conflict with
rule 30(2) of the Rules of Order,
which precludes discussion on any
matter in respect of which a decision by a judicial body is pending,
and that the motions of
no confidence could not be discussed in
Council until the outcome of the High Court hearing (the first
respondent’s application
under case number 8616/2013) on 10
September 2013. He then closed the meeting.
Consequently on 10
September 2013,the MECapproached this Court for a variation of the
order issued by Rogers J inter alia as follows:
declaring that the
MECconvene a meeting of the Council on Thursday 19 September 2013 at
a time and place as determined by him,
to consider and put to a vote
the motions of no confidence referred to in the applicants’
notice of 13 August 2013; and
directing the third respondent to
notify all members of the Council of the time and place of the
meeting (“the second application”).
The respondents did
not oppose the second application and did not file any answering
papers. By letter dated 12 September 2013,
their attorney informed
the State Attorney that the Speaker and the third respondent
proposed that an order be taken by agreement
that the meeting of the
Council be held on 20 September 2013.
Consequently, on 13
September 2013 an order by agreement between the parties was made by
Henney J, varying the order by Rogers
J as follows. The fourth
respondent was directed to convene a meeting of the Council on
Friday 20 September 2013 to consider,
discuss and put to a vote the
motions of no confidence referred to in the applicant’s
written request for a meeting dated
13 August 2013.
A meeting of the
Council was held on 20 September 2013. All 25 councillors were
present. The minutes record that the Speakermade
a finding that Nel
and Van Wyk had breached item 2 of the Code of Conduct;that
herecommended that they be removed from the Council;
and that he
decided that their voting rights should be suspended and revoked,
pending the final decision of the MEC. The ANC-led
coalition
insisted that the investigative report prepared by the Office of the
Speaker regarding the breach of the Code of Conduct
by Nel and Van
Wyk be put to a vote. A total of 12 votes were received and the
report was accepted. No votes were received on
a proposal that the
Speaker’s report be rejected. The minutes also record that it
was resolved that the motion of no confidence
be rejected.
On 1 October 2013
the MEClaunched this, the third application. He seeks an order
directing that the meeting of the Council be
continued at a time and
place to be determined by him; that an independent person be
appointed by the Chairperson of the Cape
Bar Council to chair that
meeting but with no right to vote; and that the meeting shall deal
exclusively with the motions of
no confidence as determined in the
order granted by Henney J on 13 September 2013. He also seeks an
order:prohibiting the first
and second respondents from taking any
action of any nature to prevent the motions of no confidence from
being considered, discussed
and put to a vote; declaring that the
Speaker’s revocation of the voting rights of Nel and Van Wyk
is
ultra vires
and unlawful; and directing the first
respondent to pay the costs of the application in his personal
capacity on a scale as between
attorney and client.
It is necessary to
address four preliminary points which the respondents have raised.
These arethat the application is not urgent;
that the remaining
councillors, the Municipality and the Council have not been joined;
that the application is barred in terms
of the provisions of s 45(1)
of the Intergovernmental Relations Framework Act 13 of 2005 (“the
Framework Act”); and
that the fourth respondent lacks the
requisite
locus standi
to apply for the relief sought.
Urgency
The application was
served on the respondents’ attorney during the afternoon of 1
October 2013 and their answering affidavits
had to be delivered by
10h00 on Thursday 3 October 2013. The respondents contend that there
is no attempt in the founding affidavit
to found this level of
urgency, having regard to the fact that the MEC took ten days for
the preparation of his own case. They
also contend that in the
particular circumstances of this case, no considerations of urgency
arise inferentially from the facts
alleged or from the nature of the
relief sought; and that there are strong indications that the matter
has been brought by way
of urgency for an ulterior purpose.
These contentions
are without substance. The first application was launched on 23
August 2013. This was done after the Speaker
declined to give effect
to the applicants’ written request of 13 August 2013, that he
convene a meeting of the Council
on 22 August 2013 to consider the
motions of no confidence; and pursuant to his suspension of
Macpherson, Nel, Van Wyk and Harmseon
21 August 2013.On the eve of
the hearing of the first application on 28 August 2013, the
respondents gave an undertaking to convene
a meeting on 4 September
2013. On 28 August 2013 they did not oppose the application on the
ground that it was not urgent, nor
could they. Instead, they agreed
to the order made by Rogers J.
Likewise, in the
second application to compel the Speakerto convene a meeting of the
Council on Thursday 19 September 2013, the
respondents never
suggested that the application was not urgent. Yetagain they
conceded to an order in terms of which the Speaker
undertook to
convene a meeting of the Council on Friday 20 September 2013 to
consider and vote on the motions of no confidence.
When that did not
happen this application was launched on 1October 2013.
In these
circumstances, it does not lie in the mouths of the respondents now
to say that the matter is not urgent.
Non-joinder
The respondents
contend that the Municipality and the Council have a direct and
substantial interest in this application arising
from the provisions
of the Constitution, the Systems Act, the Local Government:
Municipal Structures Act 117 of 1997 (“the
Structures Act”)
and the Rules of Order. They say that the relief sought in paragraph
2 of the notice of motion –
an order that the Speaker be
directed to convene a meeting to consider and vote on the motions of
no confidence – affects
every councillor in that it
fundamentally impacts upon the manner in which the Council is
constituted and the right of each councillor
to introduce motions,
and their accountability to the community.
The Council is said
to have a legal interest in the relief sought because the right to
determine its internal procedures in terms
of s 160 of the
Constitution is affected by paragraph 2 of the order sought. So too,
its right to govern on its own initiative
the local government
affairs of the local community and the duty to exercise the
Municipality’s executive and legislative
authority, as
contemplated in s 4 (1)(a)-(c) and 4(2)(a) of the Systems Act.
1
The MEC’s
answer to the non-joinder point is that no relief is sought in
respect of, and will not in any way impact upon,any
of the remaining
councillors or the Council itself. The relief, if granted, would
merely ensure that a duly constituted meeting
of the Council,
convened in terms of the variation order, is able to continue.
It is settled law
that a party who has a legal interest in the subject matter of
litigation which may be prejudicially affected
by the judgment of a
court, must be joined in the proceedings.
2
It follows that the
contention advanced on behalf of the MEC that no relief is sought
against the remaining councillors or the
Council, is irrelevant. The
only question is whether those parties it is alleged should have
been joined, have a legal interest
in the relief sought.
The relief sought
in paragraph 2 of the notice of motion, in essence, is an order
directing that a meeting of the Council be convened
for the purpose
of considering and voting on the motions of no confidence. That is
the function of the Speaker, the first respondent.Section
36 of the
Structures Act provides that each municipal council must have a
chairperson, called the speaker, elected by the council
from among
the councillors.
3
The functions of a
speaker are set out in s 37 of the Structures Act. These are to
preside at meetings of the council; to perform
the duties and
exercise the powers delegated to the speaker in terms of s 59
of the Systems Act; to ensure that the council
meets at least
quarterly; to maintain order during meetings; to ensure compliance
in the council and council committees with
the Code of Conduct; and
to ensure that council meetings are conducted in accordance with the
rules and orders of the council.
4
It is thus not
surprising that the Rules of Order, which apply to all meetings,
5
provide that a
notice of intention by a member to introduce a motion shall be given
in writing to the speaker.
6
Given these powers
conferred on a speaker, I do not think that it can be said that a
judgment on the issues in this application
cannot be sustained or
carried into effect without necessarily prejudicing the interests of
the Municipality, the Council or
the remaining councillors; or that
the relief sought in paragraph 2 of the notice of motion impacts
upon the Municipality’s
powers under s 160 of the Constitution
or s 4(1) and (2) of the Systems Act.Moreover, in this regard this
application is unique
– the facts show that not one, but two
orders of this Court were capable of being carried into effect
without the joinder
of the Municipality, the Council or the
remaining councillors. And there is no reason to believe that this
judgment will prejudicially
affect their interests, this
afortiori
given the allegations in the answering affidavit
that the relevant meetings of the Council were indeed convened, and
that there
has been compliance with the orders of Rogers J and
Henney J.
The relief sought
inparagraphs 3 and 4 of the notice of motion are directed at
preventing the first and second respondents (the
Speaker acting
personally and in his official capacity) from doing anything to
prevent the motions of no confidence from being
considered and put
to a vote; and declaring that the first respondent’s
revocation or suspension of the rights of Nel and
Van Wyk to vote at
the meeting of 20 September 2013 is
ultra vires
and
consequently unlawful. I consider that the interest which the
Municipality has in this part of the relief to be of such a
nature
and soindirect as not to render it a necessary party in this
application, as envisaged in the test to which I have referred.
The
Council and the remaining councillors plainly have no legal interest
in the relief sought in paragraphs 3 and 4 of the notice
of motion.
As to the relief
sought in paragraph 2 of the notice of motion, the party which
properly should have been joined in this application,
is the
Municipality. Section 2 of the Systems Act makes it clear that it is
the Municipality – not its council –
which is an organ
of State within the local sphere of government having a separate
legal personality and consisting of the political
structures and
administration of the municipality and the community thereof. In
terms of theSystems Act,a “political structure”
in
relation to a municipality includes “the council of the
municipality”.
However, I consider
that for practical purposes, the Municipality has received notice of
these proceedings. The Municipal Manager,
who in terms s 55(1)
of the Systems Act is the head of administration of a municipality,
has been joined as the third respondent.
There is no reason to
believe that the third respondent has not, or will not, take
adequate steps to ensure that the Court’s
judgment will not
prejudicially affect any interest the Municipality might have.
7
For these reasons I
consider the non-joinder point unsound.
Is the Framework
Act a bar to the application?
The respondents
contend that the second, third and fourth respondents are organs of
state; that there is a duty on the MEC to
avoid litigating with
another organ of state; and that s 41(2) of the Framework Act, which
requires an organ of state in good
faith to make every reasonable
effort to settle a dispute before declaring a formal
intergovernmental dispute, is a bar to the
present application.
The Act defines an
intergovernmental dispute as follows:
“
I
ntergovernmental
dispute’
means a
dispute between different governments or between organs of state from
different governments concerning a matter-
arising from -
a statutory power or function
assigned to any of the parties; or
an agreement between the parties
regarding the implementation of a statutory power or function; and
which is justiciable in a court
of law,
and includes any dispute between
the parties regarding a related matter;”
In my view, the
dispute between the parties does not fall within the ambit of this
definition. The relief sought in paragraphs
2 and 3 of the notice of
motion does not involvea dispute concerning a matter arising from a
statutory power or function assigned
to any of the parties. No party
in this case disputes the Speaker’s power to convene a meeting
of the Council or to accept
a motion. The dispute concerns
essentially the Speaker’s failure to convene a meeting to vote
on the motions of no confidence
and to give effect to two court
orders.
The relief sought
in paragraph 4 of the notice of motion may raise an
intergovernmental dispute. Although s 41(3) of the Constitution
obliges organs of state to make every reasonable effort to settle
intergovernmental disputes in terms of the procedures provided
for
that purpose, ie in the Framework Act, s 41(4) is cast in
discretionary terms. If a court is not satisfied that the
requirements of s 41(3) have been met, it may refer the dispute back
to the organs of state or determine the dispute.
8
In my view, this is
a case where the court can and should determine the lawfulness or
otherwise of the Speaker’s conduct
in removing Nel and Van Wyk
from the Council, and suspending and revoking their voting rights.
I therefore hold
that the Framework Act is not a bar to the determination of this
application.
Locus standi
The respondents
contend that the MEC has no
locus standi
to bring this
application, on the following grounds. First, contrary to his
assertion, this application is not directed merely
at varying the
order issued by Henney J, as the relief sought in paragraphs 2, 3
and 4 of the notice of motion are based upon
what happened at the
meeting of the Council on 20 September 2013 and cannot be said to
flow from the allegations contained in
the first application.
Secondly, the founding affidavit states that the MEC seeks to
replace the first respondent as the Speaker
of the Council for
purposes of the “continued meeting” (of 20 September
2013), without any legal basis for this relief.
Thirdly, the fourth
respondent has no powers of oversight or control of the Council, nor
any function to ensure that “the
democratic governance process
is allowed to take its course”, as alleged.
The issue of
locus
standi
was superficially addressed in the respondents’
heads of argument. It was not dealt with at all in the MEC’s
heads
of argument. For this reason I issued a direction that the
parties file written submissions by 23 October 2013 on the question
whether the MEC has
locus standi
to seek the relief sought in
paragraphs 2 – 6 of the notice of motion, having regard to the
provisions of s 160(1) of the
Constitution and ss 36-40 of the
Structures Act.
In the further
written submissions on behalf of the MEC, it is contended that he
has
locus standi
by virtue of his constitutionally mandated
oversight, monitoring and supervisory powers in respect of local
government, as provided
for in ss 139, 155(6) and 155(7) of the
Constitution. It is also contended that ss 155(6) and 155(7)
empower the MEC,
in terms of the principle of legality, to intervene
in the manner sought in this application.
The
respondents’submissions may be summarised as follows. The MEC
has no
locus standi
, having regard to the structure and
allocation of powers between the national, provincial and local
spheres of government in
the Constitution and national legislation.
The purported exercise of any power which does not fall within the
competency of a
sphere of government violates the principle of
legality and is consequently invalid. Section 139(1) of the
Constitution does
not grant the MEC any basis to launch this
application; neither does he assert that the relief sought is
claimed on the basis
of s 139. The absence of any reference to
powers of intervention by the provincial executive or the MEC in
relation to the powers
and functions of a speaker and the
functioning of a municipal council itself, is significant and
consonant with the autonomy
of local government. It is clear from
the provisions of s 160 of the Constitution and ss 36 – 40 of
the Structures Act,
that the MEC has no power to convene Council
meetings. That function falls within the preserve of the Speaker in
terms of s 29
and 37(c) of the Structures Act and rule 8(2) of the
Rules of Order.
A person who claims
relief from a court in any case must, as a general rule, establish
that he has a direct interest in the case
in order to acquire the
necessary
locus
standi
to
seek relief.
9
In the founding
affidavit the MEC says that he seeks to vary the order granted by
Henney J to make provision for the continuation
of the meeting of
the Council of 20 September 2013; and that he seeks the replacement
of the first respondent as Speaker for
the purposes of the continued
meeting and certain ancillary relief, which is necessary to ensure
that the variation order is
given effect to. He also says that in
his capacity as the provincial Minister responsible for local
government affairs, he has
an inherent interest in the manner in
which the Council is governed and managed; and that it is clear from
the provisions of
the Systems Act and the Structures Act as well as
s 139 of the Constitution, that he has a statutory obligation to
ensure that
the Council is governed in accordance with the relevant
legislative provisions and the rule of law.
I do not think that
the relief sought in paragraph 2 of the notice of motion can be
construed as an order for the continuation
of the meeting of the
Council on 20 September 2013. That meeting, as a fact, was convened
and came to an end. The MEC’s
main complaint, as set out in
the founding affidavit, is that the Speaker, by his conduct, has
made it clear that he will resort
to any means to ensure that the
motions of no confidence are not put to a vote by the Council. That
is the purpose of this application,
not the continuation of a
meeting. The MEC must therefore show that he has
locus standi
to approach the court for such an order, which in my view must be
founded on the Constitution or legislation – not an order
of
court. In this regard it should be noted that the orders by Rogers J
and Henney J were granted by agreement and the question
of the MEC’s
locus standi
was neither argued nor decided.
It has been held on
highest authority that it is a fundamental principle of the rule of
law that the exercise of public power
is only legitimate where
lawful. To the extent that the rule of law expresses this principle
of legality, it is generally understood
to be a fundamental
principle of constitutional law.
10
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.
11
The fundamental
principle of the rule of law admits of no exception and applies to
all state authority, including judicial authority.
12
Thus, if the MEC
has no power to compel a speaker of a municipality to convene a
meeting to consider a motion of no confidence,
a court order cannot
give him such power.
It follows that the
power of the MEC to compel the Speaker to convene a meeting for the
purpose of considering and voting on the
motions of no confidence
must be sourced in law, be it the Constitution or a statute.
Local government is
autonomous and the provincial sphere of government and all organs of
state within that sphere must respect
the constitutional status,
institutions, powers and functions of local government;
13
and exercise their
powers and perform their functions in a way that does not encroach
on the functional or institutional integrity
of local government.
14
Subject to national
and provincial legislation, a municipality has the right to govern
the local government affairs of its community,
and provincial
government may not compromise or impede a municipality’s right
to exercise its powers or perform its functions.
15
Decisions
concerning the exercise of all powers and the performance of all
functions of a municipality vestexclusivelyin its municipal
council.
So too, the election of its chairperson.
16
It will immediately
be observed from the above constitutional provisions that the MEC
has no “inherent interest in the manner
in which the Council
is governed and managed”, to the contrary.
But it is contended
that the MEC has oversight, monitoring and supervisory powers in
respect of local government, in terms of
ss 139 and 155(6) and
(7) of the Constitution.
The relevant
provisions of s 139 of the Constitution are in these terms:
“
139. Provincial
intervention in local government.
-
(1) When a municipality cannot or does not fulfilan executive
obligation in terms of the Constitution or legislation, the
relevantprovincial
executive may intervene by taking any appropriate
steps to ensure fulfilment of that obligation, including –
issuing a directive to the
Municipal Council, describing the extent of the failure to fulfil
its obligations and stating any steps
required to meet its
obligations;
assuming responsibility for the
relevant obligation in that municipality to the extent necessary to
–
maintain essential national
standards or meet established minimum standards for the rendering of
a service;
prevent that Municipal Council
from taking unreasonable action that is prejudicial to the interests
of another municipality or
to the province as a whole;
or
maintain economic unity; or
…
(2) If a provincial executive
intervenes in a municipality in terms of subsection (1) (b)-
(a) it must submit a written
notice of the intervention to-
(i) the Cabinet member
responsible for local government affairs; and
(ii) the relevant provincial
legislature and the National Council of Provinces,
within 14 days after the
intervention began.”
In my view the
MEC’s reliance on s 139 of the Constitution is misplaced, for
two reasons. First, s 139, on its plain wording,
contemplates
intervention in local government by a provincial executive, not an
MECacting alone.Secondly, s 139 of the Constitution
itself restricts
provincial intervention to a case where a municipality cannot or
does not fulfil an executive obligation in
terms of the Constitution
or legislation. The Speaker’s failure to put to a vote the
motions of no confidence is not a
failure or inability by the
Municipality to fulfil an executive obligation.
There is nothing in
the founding affidavit to suggest that the alleged intervention by
the MEC is at the instance of the Provincial
Executive of the
Western Cape Province, or that there has been compliance with s
139(2). The MEC simply says that it is clear
from the provisions of
s 139 of the Constitution that he has “a statutory obligation
to ensure that the Council is governed
in accordance with the
relevant legislative provisions and … the rule of law”.
In terms of s
151(2) of the Constitution, both the executive and legislative
authority of a municipality is vested in its municipal
council. In
this respect, the local government system is a hybrid one.
17
The fact that both
executive and legislative authority is vested in the municipal
council is understandable, given the nature
of the functions of
local government, which concern delivery of services and facilities
to local communities: power, water, waste
management, parks and
recreation and decisions concerning the development of the municipal
area. Thus executive decisions ordinarily
involve decisions having a
direct effect on the lives of those living in the area.
18
Likewise, s 156(1)
of the Constitution provides that a municipality has executive
authority in respect of the local government
matters in Part B of
Schedule 4 and Part B of Schedule 5 of the Constitution –
largely comprising the rendering of services
such as fire-fighting
services, municipal health services, municipal transport, storm
water management systems, bridges and amusement
facilities,
cleansing services, cemeteries and funeral parlours, municipal parks
and recreation, traffic and parking, refuse
removal and the like.It
is thus not surprising that s 139(b)(i) authorises a provincial
executive to assume responsibility for
an executive obligation of a
municipality to maintain essential national standards or meet
minimum established standards for
the rendering of a service.
The executive
obligations of a municipality contemplated in s 139 of the
Constitution thus concern the delivery of basic services
and the
improvement of the well-being of members of the community within its
area in relation to the local government matters
referred to in s
156(1) of the Constitution.
19
Section
139 of the Constitution does not feature at all in this application.
The next question
is whether the MEC has
locus standi
by virtue of the
provisions s 155(6) and (7) of the Constitution, which read as
follows:
“
(6) Each provincial
government must establish municipalities in is province in a manner
consistent with the legislation enacted
in terms of subsection (2)
and (3) and, by legislative or other measures, must –
provide for the monitoring and
support of local government in the province; and
promote the development of local
government capacity to enable municipalities to perform their
functions and manage their own
affairs
(6A) …
(7) The national government,
subject to section 44, and the provincial governments have the
legislative and executive authority
to see to the effective
performance by municipalities of their functions in respect of
matters listed in Schedules 4 and 5, by
regulating the exercise by
municipalities of their executive authority referred to in section
156(1).”
It is convenient to
deal firstly with s 155(7) of the Constitution. It does not apply.
It authorises a provincial government to
see to the effective
performance by a municipality of its functions in respect of the
matters listed in Schedules 4 and 5 to
the Constitution, ie local
government matters. However, that is not the purpose of this
application. It has nothing to do with
the failure of the
Municipality to carry out any of the local government matters
referred to Part B of Schedule 4 or Part B of
Schedule 5.
The MEC’s
reliance on s 155(6) of the Constitution is likewise misplaced. That
provision contemplates legislative or other
measures – which
must first be passed or put in place - to provide for the monitoring
and support of local government and
to promote the development of
local government capacity, to enable municipalities to perform their
functions and manage their
own affairs. The relief in paragraph 2 of
the notice of motion is not sought in terms of any legislative
provision or a measure
as contemplated in s 155(6), which, on its
plain wording, does not authorise
ad hoc
monitoring of local
government or promotion of local government capacity.
This construction,
in my opinion, is buttressed by the provisions of the Systems Act.
That Act and the Structures Act were passed
to give effect to the
provisions of Chapter 7 of the Constitution.
20
The preamble to the
Systems Act states that it was passed inter alia,"to establish
a framework for support, monitoring and
standard setting by other
spheres of government in order to progressively build local
government into an efficient, frontline
development agency, capable
of integrating the activities of all spheres of government for
overall social and economic upliftment
of communities”.
Provincial monitoring of municipalities is specifically provided for
in s 105 of the Systems Act. It provides
inter alia that the MEC for
local government in a province must establish mechanisms and
procedures in terms of s 155(6) of the
Constitution, to monitor
municipalities in the province in managing their own
affairs,exercising their powers and performing
their functions; and
to monitorlocal government capacity.
21
In terms of s
106(1) of the Systems Act,if an MEC has reason to believe that
fraud, corruption or any other serious malpractice
has occurred in
municipality, he or she must by written notice to the municipality,
request the municipal council or municipal
manager to provide the
MEC with information required in the notice; or designate a person
to investigate the matter.
22
Within 14 days the
MEC must submit a written statement to the National Council of
Provinces (NCOP) motivating the action; and
send a copy of the
statement to the national Minister responsible for local government
and the Minister of Finance.
23
In this case the
MEC has not exercised the powers conferred on him in terms of s
106(1) of the Systems Act. Neither does he allege
that he has done
so.
It follows that the
MEC has no
locusstandi
under s 155(6) or (7) of the
Constitution to launch this application.
What remains, then,
is whether the MEC has
locus standi
under the Structures Act
or the Systems Act.
In terms of the
Structures Act, each municipal council must have a speaker, elected
from among councillors at the first sitting
of the council after its
election.
24
The
speaker decides when and where the council meets, but if a majority
of councillors request the speaker in writing to convene
a council
meeting, the speaker must convene a meeting at a time set out in the
request.
25
The speaker places
items on the agenda and determines the priority of business at the
meetings of the council.
26
The speaker’s
term of office ends when the next council is declared elected; or
when he or she resigns as speaker or is
removed from office or
ceases to be a councillor.
27
A
municipal council by resolution may remove its speaker from office.
Prior notice of an intention to move such a motion must
be given.
28
Thus the Speaker
may be removed from office only by the Council.
The constitutional
and statutory provisions outlined above make two things clear. The
first is that the MEC has no “inherent
interest in the manner
in which the Council is governed and managed”; neither does he
have any “statutory obligation
to ensure that the Council …
is governed in accordance with the rule of law”. To the extent
that the court in
Imbabazane
held otherwise, I
respectfully disagree.
29
The second is that
the relief sought in paragraph 2.1 of the notice of motion, namely
that an independent person appointed by
the Cape Bar Council act as
chairperson of the Council, cannot be granted. Mr Jamie,who with
MsAdhikari appeared for the MEC,
conceded this and submitted that
the third respondent should be directed to chair the proposed
meeting.
It is not clear why
the applicants, all councillors of the Municipality who clearly have
locus standi
, did not launch this application. Instead, they
filed an affidavit by their attorney, MsJonker, in which she says
the applicants
support this application brought by the MEC, which in
essence involves the enforcement of the orders made by Rogers J and
Henney
J.MrVermeulen, who with Mr De Bruyn and MrSnijders, appeared
for the respondents, rightly submitted that MsJonker’s
affidavit
takes the lack of
locus standi
on the part of the
MEC no further.
For these reasons I
have come to the conclusion that the MEC has no
locus standi
to claim the relief in paragraphs 2 and 3 of the notice of motion.
However, the relief
sought in paragraph 4 of the notice of motion - a declaratory order
that the Speaker’s revocation of
the voting rights of Van Wyk
and Nel is unlawful -stands on a different footing.
The MEC has
locus
standi
by
virtue of item 14(2) of the Code of Conduct, which provides that a
municipal council may request the MEC for local government
in the
province to suspend a councillor for a period, or remove a
councillor from office.
30
The Speaker, at the
meeting of 20 September 2013, recommendedthat Nel and Van Wyk be
removed from the Council,and decided that
their rights to vote be
suspended and revoked, pending the decision of the MEC.
In my view, the MEC
plainly has a legal interest in the relief sought in paragraph 4 of
the notice of motion.
The declaratory
order
On 20 September
2013 the Speaker opened the council meeting. The minutes record that
he invoked the powers under rule 6 of the
Rules of Order, in terms
of which a speaker may at any time and without notice introduce an
urgent matter. He said that he had
done certain investigations into
alleged breaches of the Code of Conduct; that one of these
investigations related to the alleged
fraudulent settlement in the
case of
Nel v Oudtshoorn Municipality
; and that he had
requested the relevant councillors to respond to his report on the
investigation but that they did not, save
for a letter by their
attorneys. He went on to say that as Speaker, he was required to
ensure compliance with the Code of Conduct
in terms of s 37(e) of
the Structures Act; that the Code prescribes that the removal of a
councillor is justified in specified
circumstances,which is the only
possible sanction particularly where the breach is of a gross
nature.
Then the Speaker
said:
“
Ek het al dieinligting in
hierdiesaakoorweeg, en ek het my oordeeluitgeoefendaaroor, en ek het
bevinddatbeideraadsheerPierre Nel
and raadslidBen van Wyk die
munisipaliteitvalslik en ten onregteverteenwoordig het en item 2 van
die gedragskodeverbreek het
.
Dienooreenkomstig, en met die
erns van die beskuldigings as basis,
beveelekaandatbeideraadsheerPierre Nel en raadslidBen Van Wyk
uit die
raadverwyder word. Hierdieaanbevelingsal, in terme van item 13(3) van
die gedragskode, onmiddellikaan die Provinsiale Minister
van
PlaaslikeRegeringversend word.
Boonopmaakeknou ‘n
beslissingdat die stemreg van beideraadsheerPierreNel en raadslid Ben
van Wyk opgeskort word en herroep
word, hangende die finale besluit
van die Provinsiale Minister van PlaaslikeRegering in
hierdieaangeleentheid.”
Items 13 and 14 of
the Code of Conduct set out the procedure which must be followed
when a councillor breaches the Code. Item
13 provides that if the
chairperson of a municipal council on reasonable suspicion is of the
opinion that a councillor has breached
the Code, he or she must
authorise an investigation, give the councillor a reasonable
opportunity to reply in writing regarding
the alleged breach and
thereafter report the matter to a meeting of the council.
31
The
chairperson must report the outcome of the investigation to the
MEC.
32
Item 14 of the Code
of Conduct reads inter alia as follows:
“
14. Breaches of Code.
-
(1) A municipal council may –
Investigate and make a finding
on any alleged breach of a provision of this Code; or
Establish a special committee-
to investigate and make a
finding on any alleged breach of this Code; and
to make appropriate
recommendations to the council.
If the council or a special
committee finds that a councillor has breached a provision of this
Code, the council may-
issue a formal warning to the
councillor;
reprimand the councillor;
request the MEC for local
government in the province to suspend the councillor for a period;
fine the councillor; and
request the MEC to remove the
councillor from office.
(a) Any councillor who has been
warned, reprimanded or fined in terms of paragraph (a), (b) or (d)
of subitem (2) may within 14
days of having been notified of the
decision of council appeal to the MEC for local government in
writing setting out the reasons
on which the appeal is based.
(b) A copy of the appeal must be
provided to the council.
(c) The council may within 14
days of receipt of the appeal referred to in paragraph (b) make any
representation pertaining to the
appeal to the MEC for local
government in writing.
(d) The MEC for local government
may, after having considered the appeal, confirm, set aside or vary
the decision of the council
and inform the councillor and the council
of the outcome of the appeal.
The provisions of
items 13 and 14 of the Code of Conduct make it clear that the
Speaker has no power to make any determination
that Nel or Van Wyk
breached the Code of Conduct. Only the Council or a special
committee established by it can make such a finding.
33
He
has no power to recommend the removal of a councillor. If a
councillor breaches the Code of Conduct, only the Council may
request the MEC to suspend the councillor for a period, or remove
the councillor from office.
34
The
power to suspend or remove a councillor from office is solely that
of the MEC.
35
The
Speaker has no power to decide that the voting right of
anycouncillor should be suspended or revoked - there is no
legislative
provision which authorises him to do this.
As stated above,
the principle of legality implies that a body exercising public
power must act within the powers lawfully conferred
on it. In
Pharmaceutical
it was held that
the principle requires that the exercise of public power by a
functionary should not be arbitrary: a decision
must be rationally
related to the purpose for which the power was given, otherwise it
is in effect arbitrary and inconsistent
with this requirement.
36
Thus, in making a
finding that Nel and Van Wyk had breached the Code of Conduct;
recommending that they be removed from the Council;
and deciding to
suspend and revoke their voting rights pending the decision of the
MEC, the Speaker violated the principle of
legality. His actions are
ultra vires
and unlawful, and fall to be set aside.
The respondents
however submit that the sanctions provided for in item 14 are not an
exhaustive list of the remedies at the disposal
of the Speaker; and
the fact that the Speaker’s suspension of the voting rights of
Neland Van Wyk does not fall within
the purview of item 14, is not
determinative of the lawfulness of the suspension. Then it is
submitted that there is nothing
remarkable about the suspension of
their voting rights, as they in any event could not have
participated in the voting and the
motion was carried.
These submissions
have no substance. The Systems Act, which contains the Code of
Conduct, is a special law enacted inter alia
to “provide for
the core principles, mechanisms and processes … necessary to
enable municipalities to move progressively
towards the social and
economic upliftment of local communities”. Its preamble states
that local government requires an
efficient, effective and
transparent local public administration which conforms to
constitutional principles.
The suspension and
removal of a councillor for a breach of the Code of Conduct is
governed exclusively by the Code. The Speaker
does not have “a
reservoir of common law powers” in relation to the suspension
of councillors. The preamble to the
Code itself has accountability
by councillors as an object - they are elected to represent local
communities on municipal councilsand
to ensure that a municipality
has structured mechanisms of accountability to local communities. In
fulfilling their role in providing
services equitably, effectively
and sustainably, councillors must be accountable and report back to
constituencies. The Code
states that it was drafted in order to
ensure that councillors fulfil their obligations to their
communities and support the
achievement by the municipality of its
objectives set out in s 19 of the Structures Act. The latter
provision, in turn, states
that a municipal council must strive
within its capacity to achieve the objectsof local government set
out in s 152 of the Constitution.
Those objects include the
provision of democratic and accountable government for local
communities.
As already found,
the Speaker’s conduct was a violation of the principle of
legality, was
ultra vires
and unlawful. The motion in terms
of which this conduct purportedly was sanctioned by the Council, is
likewise unlawful.
The MEC is
accordingly entitled to the declaratory order sought.
The
counter-application
The respondents
seek an order, firstly, directing the MEC to designate a person to
investigate the facts and circumstances in
connection with the
execution of a deed of settlement, in terms of which, it is alleged,
Van Wyk purported to abandon a costs
order in favour of the Council
in the matter of
Nel
v Oudtshoorn Municipality
.
37
Secondly,
upon completion of the investigation and in the event of it being
found that there was criminal conduct involved in
the execution of
the deed of settlement, the MEC should be ordered to act in terms of
the provisions of s 106(1)(b) of the Systems
Act; and report the
matter to the South African Police Service for criminal prosecution.
Thirdly, the MEC should be ordered to
submit any further issues
arising in this application to a dispute resolution mechanism to be
determined by the Premier of the
Western Cape.
It appears from the
respondents’ papers that on 25 June 2013, Nel and Van Wyk
entered into the deed of settlement in the
following
circumstances.In 2010 Nel launched an application in this Court
challenging the Council’s appointment of a municipal
manager.
That application was dismissed with costs on an attorney and client
scale. An application for leave to appeal against
that order was
also dismissed with costs on the same scale. Nel’s appeal to
the Supreme Court of Appeal was dismissed with
costs. The
respondents estimate that the various cost orders against Nel amount
to some R700 000. The deed of settlement
however records that
each party ieNel and the Municipality would bear his or its own
costs in relation to the matter from its
inception; and that Van Wyk
is duly authorised by a resolution of the Municipality. In effect
then, all the costs orders against
Nelin favour of the Municipality
were abandoned.
Nel, Van Wyk andthe
MEC have not answered these allegations. In the replying affidavit
the MECsays that the allegations are irrelevant
and that the
respondents’ complaint that he has not acted against Nel and
Van Wyk is premature. I should however point
out that the Premier in
an e-mail sent on 5 July 2013 to the respondents’ attorneys,
said that there was no resolution
by any competent authority in
either the Municipality or the DA for anyone representing either
party to conclude a deed of settlement
in the case of
Nel v
Oudtshoorn Municipality
. She went on to say that the so-called
deed of settlement is of no force and effect, and is not justified
nor condoned by the
DA which would not allow a private legal bill to
be passed on to ratepayers.
The notice of
counter-application states that the provision in terms of which the
MEC should be directed to investigate the facts
and circumstances in
connection with the execution of the deed of settlement, is s
106(4)(b) of the Systems Act. However, that
provision does not
authorise this Court to make an order in the terms sought in the
counter-application. In terms of s 106(4)(a)
of the Systems Act the
national Minister may request the MEC to investigate
maladministration or fraud which in the Minister’s
opinion has
occurred in a municipality. Section 104(6)(b) goes on to provide
that the MEC must table a report detailing the outcome
of such an
investigation in the relevant provincial legislature within 90 days
from the date on which the Minister requested
the investigation.
38
An opinion by the
Minister that there is maladministration or fraud or any other
serious malpractice in a municipality, is thus
a jurisdictional
requirement for both the exercise of the power under s 106(4)(a) of
the Systems Act and the report which the
MEC is required to table
under s 104(4)(b).
39
However, in
argumentMrVermeulen submitted that s 106(1)(b) and item 14 of the
Code of Conduct of the Systems Act authorises this
Court to make an
order in the terms sought in the counter-application.
The argument is
unsustainable. The jurisdictional requirement for the exercise of
the power under s 106(1) is that the MEC must
have reason to believe
that fraud, corruption or any other serious malpractice has occurred
in a municipality. This Court cannot
direct him to form the
requisite belief. Apart from this, the facts show that the relief
sought in paragraphs 1 and 2 of the
notice of counter-application is
wholly inappropriate. The respondents contend that Neland Van Wyk
breached the Code of Conduct.
If they wish to have these Councillors
suspended or removed from the Council, the procedure prescribed in
items 13 and 14 of
the Code of Conduct must be followed. In my view,
this Court cannot cut across those provisions by ordering the MEC to
investigate
misconduct. As already stated, the lawgiver has
determined that misconduct by councillors, who are accountable to
their local
communities, must be dealt with in terms of the Code of
Conduct.
It follows that the
respondents’ reliance on item 14 of the Code of Conduct for
some sort of mandamus to compel the MEC
to investigate the
circumstances under which the deed of settlement was concluded, is
misguided.
The respondents
have also not established any factual or legal basis for the order
sought in paragraph 3 of the counter-application
– that the
MEC be ordered to submit vague “further issues arising in the
application” to a dispute resolution
procedure determined by
the Premier. Having regard to the order made below, there are no
further issues which arisein this application.
[99] The
counter-application thus falls to be dismissed.
Costs
[100] The costs of
the first application before Rogers J stood over for later
determination. In that application the applicants
seek an order
directing the first respondent to pay the costs of the application in
his personal capacity on a scale as between
attorney and client,
alternatively that his attorney, Mr Hardy Mills, pay the costs of the
application
de bonispropriis
.
[101] The costs of
the second application before Henney J also stood over for later
determination and it was agreed between the
parties that if the
motions of no confidence were put to a vote at the meeting of 20
September 2013, the MEC would not pursue the
issue of costs.
[102] In this, the
third application, the MEC asks for an order directing the first
respondent to pay the costs in his personal
capacity on a scale as
between attorney and client, alternatively that his attorneys of
record be directed to pay the costs
de bonispropriis
. In
argument Mr Jamie indicated that the MEC does not persist with any
claim for costs against the respondents’ attorneys.
[103] Theparties
were requested to file written submissions by Wednesday 23 October
2013 as to which party should be liable for
the costs of the first
and second applications and on what scale, which they did.
[104] The applicants
submit that the first respondent should pay the costs of the first
and second applications in his personal
capacity, for the following
reasons. He conceded the relief sought in the first application when
confronted with his unlawful actions
in refusing to call a meeting of
the Council and unlawfully attempting to suspend certain councillors.
He also agreed to the relief
sought in the second application, after
he had convened and then unlawfully adjourned the Council meeting of
4 September 2013.
He then agreed to convene the meeting of 20
September 2013 but the motions of no confidence were not put to a
vote as a direct
result of the first respondent’s
mala fide
actions. He agreed to both orders of this Court made on 28 August
2013 and 13 September 2013, but deliberately undermined those
orders
by utilising various unlawful means to prevent the motions of no
confidence from being put to a vote. His actions are fundamentally
at
odds with his statutory and constitutional duties as Speaker, and
were aimed solely at retaining his position as a councillor.
[105] The
respondents contend that throughout, the Speaker was about the
affairs of the council and not on a frolic of his own.
The fact that
his own position was under threat is not conclusive, for the
following reasons inter alia. The chain of events which
culminated in
the meeting of 20 September 2013 was set in motion at the Council
meeting of 31 May 2013. The decisions taken by
the applicants at the
meeting of 31 May 2013 have been declared unlawful and set aside by
Le Grange J. The Speaker’s pursuit
of the investigation of the
deed of settlement cannot be faulted, since the results of that
investigation redounded to the benefit
of the Municipality. The fact
that the Speaker at the relevant times acted pursuant to legal
advice, has not been seriously challenged.
The Speaker’s
conduct falls within the indemnity provided by s 28 of the Structures
Act or s 2 and 3 of the Western Cape
Privileges and Immunities of
Councillors Act 7 of 2011.
[106] In
Coetzeestroom
40
Innes CJ laid down
the general rule in regard to costs against public officials or
statutory functionaries, as follows:
“
With respect to the
question of costs, the Court should lay down a general rule in regard
to all applications against the Registrar
arising on matters of
practice. To mulct that official in costs where his action or his
attitude, though mistaken, was
bona
fide
would in my
opinion be inequitable. … This general rule we shall follow
for the future; but the Court will reserve to itself
the right to
order costs against the Registrar if his action has been
mala
fide
or grossly
irregular. … The rule will not apply to cases in which the
Registrar may be sued for damages caused to a third
party by a
negligent or improper discharge of his duties. In such cases the
question of costs will have to be decided simply on
the facts before
the Court.”
41
[107] The Appellate
Division has not decided whether a court should, as a general guide
to the manner of exercising its discretion,
follow the rule laid down
in
Coetzeestroom
.
42
It has held that the
rule should not be elevated into a rigid one of universal application
which fetters the judicial discretion
in relation to costs.
43
In
Swartbooi
44
the Constitutional
Court stated that under the common law, generally speaking, an order
for costs
de
bonispropriis
against
persons acting in a representative capacity is appropriate if their
actions are motivated by malice or amount to improper
conduct.
45
[108] I turn now to
consider the question whether the Speaker’s actions were
mala
fide
or improper.
[109] The Speaker
himself concedes that the notice of 13 August 2013 containing the
motions of no confidence complies with rule
34(2) of the Rules of
Order and thus was proper. This is underscored by the fact that he
agreed to convene the meetings of 4 and
20 September 2013. At the
material times the Speaker therefore knew that the motions had to be
considered and put to a vote at
a meeting of the Council. Moreover,
it is not disputed that there was a by-election on 7 August 2013,
which entitles the DA-led
coalition to the majority of the seats on
the Council.
[110] The Speaker
however employed a few stratagems to prevent the motions of no
confidence from being considered and put to a vote.
(1) On 21 August
2013 the Speaker, acting unilaterally, suspended Macpherson, Nel, Van
Wyk and Harmse with immediate effect. Save
for Harmse, they were
suspended because, in the words of the Speaker, they “made
themselves guilty of alleged fraud by allowing
[a] fraudulent
settlement agreement to be entered into … in breach of items 2
and 6(2) of the Code of Conduct”. By
letter dated 22 August
2013, the applicants’ attorneys informed the Speaker that he
has no power to suspend councillors;
that only the Council is
empowered to impose certain sanctions; and that only the MEC can
suspend or remove a councillor. The applicants
were forced to
approach this Court. On 23 August 2013 the Speaker revoked the
suspensions.
(2) On 27 August
2013, the Speaker agreed to convene a meeting of the Council on 4
September 2013. In his answering affidavit in
the first application,
the Speaker said that the motions of no confidence were the only
items on the agenda for that meeting. However,
the Council did not
vote on the motions on 4 September 2013, because he made a ruling
that they are in conflict with rule 30(2)
of the Rules of Order and
could not be discussed until the outcome of his application brought
in this Court under case number 8616/2013.
Aside from the fact that
the rule 30(2) pointhas no merit, it is contrived. The Speaker had
already in his letter of 21 August
2013 referred to rule 30(2) as a
reason for not convening a meeting of the Council on 22 August 2013,
and implicitly abandoned
the point when he agreed to convene the
meeting of 4 September 2013 to vote on the motions. At the relevant
times the Speaker knew
or must have known that he was again going to
invoke rule 30(2) in order to prevent the motions of no confidence
from being put
to a vote on 4 September 2013. Had he told the
applicants that he would resort to the very same strategem, there is
no doubt that
they would never have agreed to the order made by
Rogers J. Indeed, MrVermeulen fairly conceded this.
(3) The Speaker
agreed to the order by Henney J. However, at the meeting of the
council on 20 September 2013 hemade a finding that
Nel and Van Wyk
had breached the Code of Conduct.He did this for the same reason that
he had initially suspended them on 21 August
2013– their
involvement in the deed of settlement -which suspensions he had
revoked. But he went further. He recommended
that they be removed
from the Council and suspended and revoked their voting rights.
Again, if he had told the applicants or the
MEC that he would resort
to this strategem, they would not have agreed to the order made by
Henney J.
(4) At the relevant
times the Speaker was aware of the provisions of the Code of Conduct.
That much is clear from what he said in
correspondence and at the
meeting of 20 September 2013. He could thus not have been mistaken
about the ambit of his powers under
the Code. In this regard the
submission that the Speaker acted pursuant to legal advice, does not
bear scrutiny. The opinion from
counsel attached to his answering
affidavit is dated 19 August 2013. He suspended the four councillors
on 21 August 2013, but then
revoked those suspensions on 23 August
2013. He has not explained this.
[111] In my view the
most plausible and probable inference to be drawn from the above
facts,
46
is that the
Speaker’s conduct was
mala
fide
.
He resorted to the strategems in order to prevent the motions of no
confidence from being put to a vote, thereby securing his
own
position. The facts also show that the Speaker acted improperly, for
which no inference is necessary.Mr Jamie correctly submits
that the
Speaker’s conduct was fundamentally at odds with his
constitutional and statutory duties. Either way, I consider
it
appropriate that he should pay the costs of the first and second
applications
de
bonispropriis
.
[112] MrVermeulen
conceded that if the Speaker acted
mala fide
, an order for
costs
de bonispropriis
would be appropriate. However, in his
further submissions, it is stated that this concession did not take
account of the provisions
of s 28 of the Structures Act read with s
161 of the Constitution, or of ss 2 and 3 of the Western Cape
Privileges and Immunities
of Councillors Act.
[113] Section 28 of
the Structures Act provides inter alia that provincial legislation in
terms of s 161 of the Constitution, must
provide at least that
councillors have freedom of speech in a municipal council and its
committees; and that councillors are not
liable in civil proceedings
for anything they have said in, produced before or submitted to, the
council or any of its committees.
47
Sections
2 and 3 of the Western Cape Privileges and Immunities of Councillors
Act are to similar effect. I do not think that the
provision of s 28
of the Structures Act or the provincial Act apply in this case for
the reasons that the Speaker acted
mala
fide
and
exercised his powers improperly.
[114] The
respondents also submit that if the Court finds that the MEC lacks
locus standi
, neither the first nor the second orders should
have been granted and the MEC should pay the costs of those
applications. The submission
is unsound. The first application was
brought by the applicants who plainly have
locus standi
. Both
orders were made by agreement, after the Speaker undertook to convene
the relevant meetings and put the motions of no confidence
to a vote.
[115] As regards the
costs of this application, it cannot be said that the MEC has been
substantially successful. He has only succeeded
in relation to the
relief sought in paragraph 4 of the notice of motion. But equally,
the respondents have not been substantially
successful. Although they
have succeeded as regards the relief sought in paragraphs 2 and 3 of
the notice of motion, they have
been unsuccessful in the
counter-application.
[116] For these
reasons, and given that the issues in this application and the
counter-application are not separate and distinct
but too closely
connected for the Court to apportion costs between the different
issues, I consider that the appropriate order
in this application is
one directing each party to pay his own costs.
48
[117] I make the
following order:
1. This application
is dealt with as one of urgency in terms of rule 6(12) of the Rules
of Court.
2. The relief sought
in paragraphs 2 and 3 of the notice of motion dated 30 September 2013
is refused.
3. It is declared
that the second respondent’sactions at the meeting of the
Council of Oudtshoorn Municipality on 20 September
2013: (a)in
finding that the third and seventh applicants had breached the Code
of Conduct for Councillors; and (b) in deciding
that their rights to
vote be suspended and revoked, are
ultra
vires
and unlawful.
4. The
counter-application is dismissed.
5. Each party shall
be liable for his own costs incurred in the third application
launched on 1 October 2013, and the counter application
brought on 7
October 2013.
6. The second
respondent will pay the costs of the application launched on 23
August 2013
de
bonispropriis
.
7. The second
respondent will also pay the costs of the application launched on 10
September 2013
de
bonispropriis
.
SCHIPPERS J
For
the Applicant(s) : Adv. I JAMIE SC
Adv.
M ADHIKARI
Instructed
by : Ms S B KARJIKER
State
Attorney
4
th
Floor, Liberty Life Centre
22
Long Street
Cape
Town 8001
For
the Respondent(s) : Adv. W J VERMEULEN SC
Adv.
DE BRUYN
Instructed
by : Mr S HILL
Mills
Attorneys c/o De Klerk & Van Gend Inc.
3
rd
Floor, Absa Building
132
Adderley Street
Cape
Town 8000
Date(s)
of hearing : Wednesday, 9 OCTOBER 2013
Judgment
delivered : Tuesday, 12 NOVEMBER 2013
1
Section
4 of the Systems Act reads as follows:
“
4.
Rights and duties of municipal councils.
–(1)
The council of a municipality has the right to-
govern
on its own initiative the local government affairs of the local
community;
exercise
the municipality’sexecutive and legislative authority, and to
do so without improper interference;
and
finance
the affairs of the municipality by-
charging
fees for services; and
imposing
surcharges on fees, rates on property and, to the extent authorised
by national legislation, other taxes, levies and
duties.
(2) The council of
a municipality, within the municipality’s financial and
administrative capacity and having regard to
practical
considerations, has the duty to-
(a) exercise the
municipality’s executive and legislative authority and use the
resources of the municipality in the best
interests of the local
community.”
2
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at
657;
United Watch and Diamond Co. (Pty) Ltd and Other v Disa
Hotels Ltd and Another
1972 (4) SA 409
(C) at 415G.
3
Section
36(1) and (2) of the Structures Act.
4
Section
37(a) – (e) of the Structures Act.
5
Rule
2(1).
6
Rule
34.
7
Amalgamated
Engineering Union
n 1 at 659.
8
City
of Cape Town v Premier, Western Cape and Others
2008 (6) SA 345
(C) para 16.
9
Cabinet
of the Transitional Government for the Territory of South West
Africa v Eins
1988 (3) SA 369
(A) at 388B;
Public Protector v
Mail & Guardian Ltd and Others
2011 (4) SA 420
(SCA) para
29.
10
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 56.
11
Fedsure
n 10 para 58.
12
S
v Mabena
2007 (1) SACR 482
(SCA) para 2;
Zumaand Others v
National Director of Public Prosecutions
2008 (1) SACR 298
(SCA)
para 15.
13
Section
40 of the Constitution reads as follows:
“
40.
Government of the Republic.
-
(1) In the Republic, government is constituted as national,
provincial and local spheres of government which are distinctive,
inter-dependent and interrelated.
(2)
All spheres of government must observe and adhere to the principles
in this Chapter and must conduct their activities within
the
parameters that the Chapter provides.”
14
Section
41(1) of the Constitution provides inter alia as follows:
“
41.
Principles of co-operative government and inter-governmental
relations.
-
(1) All spheres of government and all organs of state within each
sphere must-
…
respect
the constitutional status, institutions, powers and functions of
government in the other spheres;
…
exercise
their powers and perform their functions in a manner that does not
encroach on the geographical, functional or institutional
integrity
of government in another sphere.”
15
Section
151 of the Constitution is in these terms:
“
151.
Status of municipalities.
-
(1) The local sphere of government consists of municipalities, which
must be established for the whole of the territory of the
Republic.
(2) The executive
and legislative authority of a municipality is vested in its
Municipal Council.
(3) A municipality
has 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.
(4)
The national or a provincial government may not compromise or impede
a municipality’s ability or right to exercise its
powers or
perform its functions.”
16
Section
160(1) of the Constitution provides inter alia as follows:
“
160.
Internal procedures.
–
(1) A Municipal Council –
makes
decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality;
must
elect its chairperson.”
17
Democratic
Alliance and Another v Masondo NO and Another
[2002] ZACC 28
;
2003 (2) SA 413
(CC) paras 21.
18
Masondo
n 17 para 60.
19
Mnquma
Local Municipality and Another v Premier of the Eastern Cape and
Others
[2012] JOL 28311
(ECB) paras 59-61.
20
Masondo
n 17 para 12.
21
Section
105 of the Systems Act reads as follows:
“
105.
Provincial monitoring of municipalities.
-
(1) The MEC for local government in a province must establish
mechanisms processes and procedures in terms of section 155(6)
of
the Constitution to –
monitor
municipalities in the province in managing their own affairs,
exercising their powers and performing their functions;
monitor and
development of local government capacity in the province; and
assess the support
needed by municipalities to strengthen their capacity to manage
their own affairs, exercise their powers
and perform their
functions.
(2) The MEC for
local government in a province may by notice in the
Provincial
Gazette
require municipalities of any category or type specified
in the notice or of any other kind described in the notice, to
submit
to a specified provincial organ of state such information as
may be required in the notice, either at regular intervals or within
a period as may be specified.
(3) When exercising
their powers in terms of subsection (1) MECs for local government-
(a) must rely as
far as is possible on annual reports in terms of section 46 and
information submitted by municipalities in terms
of subsection (2);
and
(b) may make
reasonable requests to municipalities for additional information
after taking into account–
(i) the
administrative burden on municipalities to furnish the information;
(ii) the cost
involved; and
existing
performance monitoring mechanisms, systems and processes in the
municipality.”
22
Section
106(1)(a) and (b) of the Systems Act.
23
Section
106(3)(a) and (b) of the Systems Act.
24
Section
36(1) and (2) of the Structures Act.
25
Section
29(1) of the Structures Act. This however is subject to s18(2), in
terms of which a municipal council must meet at least
quarterly.
26
Rules
5(2) and (6) of the Rules of Order.
27
Sections38
and 39 of the Structures Act.
28
Section
40 of the Structures Act.
29
Member
of the Executive Council for Co-Operative Governance and Traditional
Affairs v Imbabazane Municipality and Others
[2013] JOL 30050
(KZP) paras 23-35.
30
Item
14(2)(c) and (e) of the Code of Conduct.
31
Item
13(1)(a) – (c) of the Code of Conduct.
32
Item
13(3) of the Code of Conduct.
33
Item
14(2) of the Code of Conduct.
34
Item
14(2)(c) and (e) of the Code of Conduct.
35
Ibid
.
36
Pharmaceutical
Manufacturers Association of S A: in re: ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 85.
37
SCA
case number 247/2012; WCC case number 18083/2010.
38
Section
106(4) of the Systems Act reads as follows:
(4) (a) The
Minister may request the MEC to investigate maladministration,
fraud, corruption or any other serious malpractice
which, in the
opinion of the Minister, has occurred or is occurring in a
municipality in the province.
(b) The MEC must
table a report detailing the outcome of the investigation in the
relevant provincial legislature within 90 days
from the date on
which the Minister requested the investigation and must
simultaneously send a copy of such report to the Minister,
the
Minister of Finance and the National Council of Provinces.
39
South
African Defence and Aid Fund and Another v Minister of Justice
1967 (1) SA 31
(C) at 34H-35B.
40
CoetzeestroomEstate
and GM Co. v Registrar of Deeds
1902 TS 216.
41
Coetzeestroom
n
40 at 223-224.
42
Potter
and Another v Rand Townships Registrar
1945 AD 277
at 292.
43
Attorney-General,
Eastern Cape v Blom and Others
1988 (4) SA 645
(A) at 670F-G.
44
Swartbooi
and Others v Brink and Others
2006 (1) SA 203
(CC).
45
Swartbooi
n 44para 7.
46
AA
OnderlingeAssuransie-AssosiasieBpk v De Beer
1982 (2) SA 603
(A)
at 614G-615A;
Cooper and Another NNO v Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA) para 7, per Zulman JA.
47
“
28(1)
Provincial legislation in terms of s 161 of the Constitution must
provide at least-
that
councillors have freedom of speech in a municipal council and in
its committees, subject to the relevant council’s
rules and
orders as envisaged in s 160(6) of the Constitution; and
that
councillors are not liable to civil or criminal proceedings,
arrest, imprisonment or damages for-
(i) anything that
they have said in, produced before or submitted to the council or
any of its committees; or
(ii) anything
revealed as a result of anything that they have said in, produced
before or submitted to the council or any of its
committees.
(2) Until
provincial legislation contemplated in ss (1) has been enacted the
privileges referred to in paras (
a
) and (
b
) of ss (1)
will apply to all municipal councils in the province concerned.”
48
See
Erasmus
et al
Superior Court Practice (suppvol) p E12-8 and
the authorities collected at footnote 7.