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[2013] ZAWCHC 196
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Lili v Independent Electoral Commission: Chief Electoral Officer and Others (3671/2013) [2013] ZAWCHC 196 (28 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 3671/2013
In
the matter between:
ANDILE
LILI Applicant
And
INDEPENDENT
ELECTORAL COMMISSION: CHIEF
ELECTORAL
OFFICER First
Respondent
MEC
FOR LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENTAL PLANNING Second
Respondent
SPEAKER:
COUNCIL OF THE CITY OF COUNCIL
Third Respondent
COUNCIL
OF THE CITY OF CAPE TOWN
Fourth Respondent
CHAIRPERSON:
DISCIPLINARY COMMITTEE OF THE
COUNCIL
OF THE CITY OF CAPE
TOWN Fifth
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVLOPMENT
Sixth Respondent
THE
MINISTER OF COOPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS Seventh
Respondent
JUDGMENT: 28 NOVEMBER 2013
LE
GRANGE, J
Introduction:
[1]
The Applicant, a former proportionate representative councillor of
the Fourth Respondent (the Council)
has initially, on an urgent
basis, only sought to review and set aside the decision to expel him
as member from the Council. Further
relief, in the form of a
prohibitory interdict, was also sought against the First Respondent.
The Applicant thereafter amended
his notice of motion.
[2]
In the Amended Notice of Motion, the Applicant is also now
challenging the constitutionality of certain
provisions of Item 14 of
Schedule 1 to the
Local Government: Municipal Systems Act 32 of 2000
,
which deals with breaches of the Code of Conduct. The relief sought
in the Amended Notice of Motion was framed as follows:
“
That
the Chief Electoral Officer of the Independent Electoral Commission
be interdicted from acting as contemplated in Item 18 of
part 3
,
Schedule 1 of the
Local Government: Municipal Structures Act,
117 of 1998
Structures Act, 117 of 1998;
That
the decision of the MEC purportedly taken in terms of Item 14(6) in
Schedule 2 of the
Local Government: Municipal Systems Act, 2000
to remove the Applicant from office, be reviewed and set aside on the
grounds that it is inconsistent with procedural and substantive
fairness;
That
the decision of the Council of the City of Cape Town purportedly
taken in terms of Item 14(2)(e) in Schedule 1 of the
Local
Government: Municipal Systems Act, 2000
to request the MEC to remove
the Applicant from office, be reviewed and set aside on the grounds
that it is unlawful and inconsistent
with procedural and substantive
fairness;
Declaring
the conduct of the Speaker to be unlawful in that it is in
contravention of Item 13(1) in Schedule 1 of the Local Government:
Municipal System Act, 2000;
Declaring
the disciplinary proceedings of the Disciplinary Committee to be
irregular and in conflict with procedural fairness;
Declaring
that the following Items of Schedule 1 of the
Local Government
Municipal Systems Act, 32 of 2000
are inconsistent with the
Constitution of the Republic of South Africa, Act 108 of 1996, (the
Constitution):
a)
Item 14 (2) (c)
b)
Item 14 (2) (e)
c)
Item 14 (3) (a)
d)
Item 14 (3) (b)
e)
Item 14 (3) (c)
f)
Item 14 (3) (d)
g)
Item 14 (4) and (5)
h)
Item 14 (6) (a)
i)
Item 14 (6) (b)
Parties
[3]
Mr. T Masuko assisted by Mr. Sidaki appeared for the Applicant. Mr P
Hathorn assisted by Ms N Mayosi
appeared for the Second Respondent
(the MEC). Mr PBJ Farlam assisted by Ms N Mangcu-Lockwood appeared
for the Third-Fifth Respondents
and Ms N Cassim SC, appeared for the
Seventh Respondent. Extensive heads of argument were filed by counsel
and it was of great
assistance in preparing this judgment.
[4]
The First and Sixth Respondents abide the decision of this Court. The
Second, Third – Fifth and
Seventh Respondents (the Respondents)
oppose the application to the extent that the relief sought in the
Amended Notice of motion
is applicable to them. The prohibitory
relief sought against the First Respondent in the course of events
has dissipated
and the Applicant is no longer persisting with it.
Background:
[5]
The events which triggered the launch of these proceedings by the
Applicant can, in brief, be summarised
as follows: In May 2012 the
Applicant was charged by the City with contravening Items 2 and 11 of
Schedule 1 (the Code of Conduct)
of the
Local Government: Municipal
Systems Act No 32 of 2000
. The charges included the unlawful
intervening in the City’s housing allocation process by
instructing a resident to move
out of her home, participating in the
unlawful demolition of another resident’s home and making
offensive comments to two
community members.
[6]
The Applicant’s initial hearing was held before a multi-party
Disciplinary Committee, consisting
of councillors from the Democratic
Alliance (“DA”), the African National Congress (“ANC”)
and Cope, assisted
by a number of Council officials. The hearing
began on 13 June 2012 and continued over several days in August and
September 2012.
[7]
In the course of the proceedings in September 2012 the Applicant was
required to leave the hearing.
He then instructed his attorney to
abandon the proceedings and to take the matter on review. There
appears to be some dispute of
fact surrounding the circumstances
under which the Applicant left the hearing. What is common cause is
the hearing continued and
concluded in the absence of the Applicant
and his representative.
[8]
The Disciplinary Committee found the Applicant guilty and recommended
that the MEC remove him from office
in terms of Item 14(2)(e) of the
Code of Conduct.
[9]
The Council at its meeting on 27 September 2012 adopted the
resolutions, firstly, noting that the Applicant
had been found guilty
of the charges brought against him; and, secondly, requesting the MEC
to remove him from office in terms
of Item 14(2)(e) of the code of
Conduct.
[10]
On 15 January 2013 the MEC addressed a letter to the Applicant
advising him of the Council’s recommendation.
The Applicant was
furnished with copies of all the documents provided to the MEC,
including the transcript of the hearing before
the Disciplinary
Committee, and invited to make representations to him. The Applicant,
in the papers filed, denied receiving all
the documents in the
possession of the MEC, in particular he denied receiving the
transcript of the disciplinary hearing. In his
answering papers, the
MEC was adamant that all relevant documentations were handed to the
Applicant. Counsel for the Applicant
during argument conceded that
the relevant documents were indeed forwarded to the Applicant
[11]
On 1 March 2013 the MEC advised the Applicant that after considering
his representations and all the relevant
information provided to him,
he was of the opinion that:
11.1
The investigation was in accordance with the rules of natural
justice; and
11.2
His conduct warranted his removal from office.
The
Review and Constitutional Challenge:
[12]
The Applicant has raised a raft of complaints regarding the conduct
and procedure of the disciplinary proceedings
against him. The nub of
these complaints centres around what the Applicant alleges to be
irregular, procedurally unfair and irrational
disciplinary
proceedings against him. The Applicant in his replying affidavit has
further challenged the constitutional validity
of certain provisions
of Item 14 of Schedule 1 (“the Code of Conduct”)
of the Local Government: Municipal
Systems Act 32 of 2000 (“the
Systems Act”) on two grounds. The first is Municipal
legislatures enjoy constitutional
autonomy which, so the argument
goes, may not be surrendered and cannot go beyond the constitutional
parameters as set out in s
139 of the Constitution. In the
alternative the argument advanced was, even if assuming the inherent
power of the Municipal legislatures
to regulate their internal
arrangements can lawfully be exercised by a member of the provincial
executive, the impugned provisions
of Clause 14 of the Code violates
the principles of intergovernmental relations as set out in s
41(1)(e) to 41(1)(h) of the Constitution.
The second ground was that
the Systems Act undermines the role of the Speaker of Council and is
inconsistent with s 160 of the
Constitution. A third ground was also
raised in the heads of argument of the Applicant to the extent that
the Code of Conduct is
inconsistent with the ss 16, 17 and 19 of the
Constitution.
[13]
Mr. Hathorn and Mr Farlam raised two complaints regarding the manner
in which the Applicant raised its constitutional
challenge in this
case. The first complaint relates to the issue that the Applicant in
his replying affidavit for the first time
sought to challenge the
constitutional validity of the provisions in Item 14 of Schedule 1 of
the Code of Conduct. The second relates
to the manner in which the
Applicant in his heads of argument attempted to introduce further
causes of action, which were not foreshadowed
in his founding or
replying affidavits, in particular the claims that the impugned
provisions of the Code are inconsistent with
ss 16, 18 and 19 of the
Constitution.
[14]
It is now well-established in our law that parties who wish to
challenge the constitutionality of a provision
in a statute must
raise the constitutionality of the provisions sought to be challenged
at the time they institute legal proceedings.
This is clearly
necessary to alert the other party of the case it has to meet. In
this regard see Prince v President, Cape Law
Society and Others
[2000] ZACC 28
;
2001
(2) SA 388
(CC) at paragraph 22.
[15]
In the present instance Applicant did indeed failed to raise the
constitutional challenge regarding the provisions
in Item 14 of the
Code of Conduct in his founding papers and only did so in his
replying papers. The further complaint that new
causes of action, in
particular the challenge that the Code of Conduct is inconsistent
with the ss 16,
17 and 19 of the
Constitution, were introduced for the first time in the Applicant’s
heads of argument, is also not without
merit. The Applicant’s
claims based upon ss 16, 18 and 19 of the Constitution were however
not significantly persisted with
during argument and perhaps
correctly so as the Respondents were not properly alerted to it in
the Applicant’s papers. The
Respondents did also not deal with
this particular challenge in their papers. Legal argument was however
presented by the Respondents
on the Constitutional challenge which is
premised on the provisions of Item 14 of the Code and the role of the
Speaker of Council
in terms of the Systems Act. I now turn to deal
with it.
The
Constitutionality of the relevant provisions of Item 14 of Schedule 1
of the Systems Act:
[16]
The powers of municipalities are primarily dealt with in Chapter 7 of
the Constitution. In terms of s 41
of the Constitution the three
spheres of government being National, Provincial and Local/Municipal,
are enjoined to nurture the
principle of co-operative government, to
assist and support each other, to consult on matters of common
interest and to co-ordinate
their actions.
[17]
The Respondents are all contending that the Applicant’s
constitutional attack based on the principle
of municipal autonomy is
fundamentally flawed. In fact the 7
th
Respondent, who is
the National Minister of Corporate Governance and Traditional Affairs
and a member of the same political party
as the Applicant, contends
that the Applicant’s constitutional challenge based on the
principle of municipal autonomy is
misguided and unjustified.
[18]
In respect of the first ground of the constitutional attack, the
argument advanced was that the National,
Provincial and Municipal
spheres of government must respect the status, powers and functions
of each other and “
not
assume any power or function except those conferred on [it] in terms
of the Constitution
”
.
To that extent, so the argument goes, in the present instance there
exist no jurisdictional facts that allow the provincial
executive to
intervene in terms of 139(1), which is the only permissible basis on
which intervention in the local government matters
may be justified.
Moreover, the removal of a councillor should be deemed an exercise of
municipal legislative remedial powers by
a Municipal Council in terms
of s 43(c) of the Constitution to regulate itself and that such
powers cannot be taken away by a member
of the provincial executive,
as s 160(1)(a) of the Constitution provides that the Municipal
Council “
makes
decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality
.”
Furthermore, according to Mr Masuko, the highly circumscribed nature
of the scope of intervention by national and provincial
spheres of
government into local government affairs under sections 139 of the
Constitution all ineluctably lead to the conclusion
that the MEC has
no power to remove an elected municipal councillor from his office.
According to him this remains a legislative
function of an autonomous
municipal body and it is unconstitutional to grant an MEC a veto
power over an essentially legislative
function of an autonomous body.
[19]
Mr Masuko also contended that the powers granted to the MEC by the
Systems Act are expansive and amount to
usurping the functions of a
legislative body in violation of the Constitution. For this
proposition he relied on 151(4) of the
Constitution which provides
the national or provincial government may not “
compromise
or impede a municipality’s ability or right to exercise its
powers or perform its functions
.”
To this end the argument advanced was that the clauses complained of
in Item 14 of the Systems Act intrude upon the
power of a legislative
body to regulate its own constitution and composition for the purpose
of preserving its dignity and efficiency,
as well as to preserve
public confidence in the institution of local government.
Furthermore, the powers conferred upon the MEC
by the Systems Act,
for all practical purposes, ‘eviscerate’ the provisions
of s 40 and 41 of the Constitution. The
contention further was that
the removal of a member of the local government by the MEC
constitutes an unlawful interference with
the powers of a local
municipality and in direct violation of section 151(4) of the
Constitution. Moreover, the argument was that
the impugned provisions
of the Systems Act are a further violation of s 160(1)(a) of the
Constitution which provides the Municipal
Council makes decision
concerning the exercise of all powers and the performance of all the
functions of the municipality.
[20]
In terms of the second ground it was argued that the Systems Act
undermines the role of the Speaker. It was
contended that the
traditional common law powers of the Speaker are eviscerated and the
Speaker’s discretion in disciplinary
matters is taken away.
Moreover, the suspension or removal of the elected representative by
the MEC for Local Government, is in
circumvention of the
constitutional constraints enshrined in sections 139 and 151 –
156 of the Constitution as it gives the
MEC untamed powers.
Furthermore, the MEC’s supervisory powers under the Act
impermissibly encroach on legislative powers
of councillors and the
MEC may use this vast power to pressurise municipal councillors and
speakers into recommending removal of
persons against whom the MEC
has an axe to grind. According to Mr Masuko in the present instance
there is credible evidence that
the removal of the Applicant was
based on the on-going public spats he has had and continues to have
with the Premier of the Province
and the Democratic Alliance, which
is the governing party of the Province.
[21]
Counsel for the Respondents were all
ad idem
that National,
Provincial and Municipal spheres of government, whom they represent,
do not take issue with the powers accorded
to the MEC in this
particular instance or the restrictions placed on the Municipalities.
In the arguments advanced on behalf the
Respondents it was contended
that all three spheres of government are satisfied that there had
been no breach of the co-operative
government principles and no undue
interference into the municipal sphere.
[22]
The answer to the constitutional attack as raised by the Applicant
must undoubtedly be found within the framework
of the Constitution
itself. The powers and duties of a provincial executive in respect of
Provincial intervention in local government
are dealt with in Chapter
6 of the Constitution (s 139). However, in my view Chapter 7 (s
151 -164) is also important. It
deals with the core constitutional
framework for Local Government and these provisions are also relevant
within the context of
this case. The Applicant’s contention
that the
“
basic
constitutional premise”
on
which the constitutional challenge is brought is that: “
s
139
of the Constitution is the
only
(my underlining) permissible basis on which intervention in the local
government matters may be justified
”
needs closer
scrutiny.
[23]
The provisions in Chapter 7 of the Constitution deal with the status
of municipalities, and make it rather
clear that the right of a
municipality to govern is far from unqualified: In fact, s 151(3) of
the Constitution provides as follows:
“
151
(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.
[24]
In the present circumstances s 164 in the Constitution is of equal
importance. It is now well-established
that the Constitution was
drafted in accordance with 34 constitutional principles. In this
regard see
Ex Parte Chairperson of the Constitutional Assembly: In
re Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744
(10) BCLR 1253 CC. The constitutional principle XXIV
is of relevance in this instance which provided that:
“
A
framework for local government powers, functions and structures shall
be set out in the Constitution. The comprehensive
powers,
functions and other features of local government shall be set out in
parliamentary statutes or in provincial legislation
or in both”.
[25]
This constitutional principle was reinforced in s 164 of the
Constitution which provides that:
“
Any
matter concerning local government not dealt with in the Constitution
may be prescribed by national legislation or by provincial
legislation within the framework of national legislation.”
[26]
In lieu of the aforementioned, it is safe to conclude that the
Constitution itself only provides a broad
framework for the powers of
local government. It follows that the detail, the comprehensive
powers and functions of municipalities,
are entrusted by the
Constitutional Assembly to national and provincial legislatures. In
Premier,
Western Cape v President of the Republic of South Africa
1999(3) SA 657 CC at 677 C, the Constitutional Court expressed the
following view that
“
Local
governments have legislative and executive authority in respect of
certain matters but national and provincial legislatures
both have
competences in respect of the structuring of local government, and
for overseeing its functioning.”
The
powers and functions of municipalities must therefore be read
together with those of provinces. See also (First Certification
Judgment at paragraph [252].
[27]
The contention by the Applicant that s 139 of the Constitution is the
‘
only’
permissible basis for provincial
government intervention in local government matters and that the
impugned provisions of Item 14
of the Systems Act exceed the
boundaries’ established by s 139 is with all respect
unsustainable. It is also inconsistent
with the findings of the
Constitutional Court in the
First Certification Judgment
. In
my view the Constitution provides no more than a broad framework for
local government powers and functions. While the
broad framework of
the Constitution granted municipalities the power to govern local
government affairs, this power is however
explicitly subordinated to
national and provincial legislation. It is in this
constitutional context that the Systems Act
must be viewed and in
particular the constitutional attack on the provisions of Item 14 as
the removal of councillors from a Municipal
Council is not expressly
addressed in the Constitution.
[28]
The Applicant’s attack on the provisions of Item 14 of the Code
of the Systems Act is essentially premised
on the contention that the
Constitution has established “
three
coequal branches of government
”
which
enjoy “
constitutional
autonomy which may not be surrendered to other branches of
government
.”
[29]
The pre-amble to the Systems Act which inter alia provides
“
Whereas
the Constitution establishes local government as a distinctive sphere
of government, interdependent, and interrelated with
national and
provincial spheres of government..,”
clearly recognised
the fundamental principal that the Constitution provides for a
hierarchy of spheres of government in terms of
which local government
is subject to the supervision, monitoring, support and, in certain
instances, intervention, of the provincial
government.
[30]
The Constitution further provides that the right of a municipality to
govern the local government affairs
of its community is “
subject
to”
national and provincial legislation (s151(3)). The
particular wording “
subject”
was discussed in
S
v Marwane
1982(3) SA 717 (A) and the Appellate Division, as it
then was, interpreted it as follows at 747 H – 748 A:-
“
The
purpose of the phrase ‘subject to’ in such a context is
to establish what is dominant and what subordinate or subservient;
that to which a provision is ‘subject”, is dominant –
in case of conflict it prevails over that which is subject
to it.
Certainly, in the field of legislation, the phrase has this clear and
accepted connotation. When the legislator wishes
to convey that that
which is now being enacted is not to prevail in circumstances where
it conflicts, or is inconsistent or incompatible,
with a specified
other enactment, it very frequently, if not almost invariably,
qualifies such enactment by the method of declaring
it to be ‘subject
to’ the other specified one.”
[31]
The above interpretation has been endorsed by the Constitutional
Court. In this regard see
Zantsi v Council of State, Ciskei and
Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC) at paragraph
[27]
. The Constitution
thus explicitly subordinates the right of municipalities to govern in
local government affairs to national and
provincial legislation,
which in the present instance includes the Systems Act. The
Applicant’s reliance on an unrestricted
right to municipal
autonomy is therefore misguided. The Constitution clearly confers the
powers on provincial governments to supervise,
monitor and support
local government.
[32]
To sum up, whilst it is correct that one sphere of government or one
organ of state may not use its powers
in such a way as to undermine
the effective functioning of another sphere or organ of state, the
actual integrity of each sphere
of government and organ of state must
be understood in light of the powers and the purpose of that entity.
Moreover, while the
political framework created by the Final
Constitution demands that mutual respect must be paid, all the
spheres are interdependent
and interrelated in the sense that the
functional areas allocated to each sphere cannot be seen in isolation
of each other.
They are all interrelated. These spheres
of government do not have total independence from each other. Their
interrelatedness
and interdependence is such that they must ensure
that, while they do not tread on each other’s toes, they
understand that
‘all of them perform governmental functions for
the benefit of the people of the country as a whole. Therefore,
National
and Provincial governments have responsibility to ensure
that Municipalities function effectively and to intervene in their
affairs
if necessary’. In this regard
Constitutional Law in
South Africa
2
nd
Ed. Vol 1, 14-9 and the cases
referred to therein.
[33]
Item 14 of the Code of Conduct essentially deals with breaches of the
Code whilst Item 13 deals with the
duties of the chairperson of
municipal councils. The relevant parts of Item 14 of the Code read as
follows:
“
(1)
A municipal council may –
(a)
Investigate and make a finding on any alleged breach of a provision
of this Code; or
(b)
Establish a special committee -
(i)
To investigate and make a finding on any alleged breach of this
Code: and
(ii)
To make appropriate recommendations to the council.
(2)
If the council or a special committee finds that a councillor has
breached a provision of this Code,
the council may –
……
…
..
(e)
Request the MEC to remove the councillor form office.
(3)
…..
(4)
The MEC for local government may appoint a person or a committee to
investigate any alleged breach of
a provision of this Code and to
make a recommendation as to the appropriate sanction in terms of
sub-item (2) if a municipal council
does not conduct an investigation
contemplated in sub-item (1) and the MEC for local government
considers it necessary.
(5)
…..
(6)
If the MEC is of the opinion that the councillor has breached a
provision of this Code, and that such
contravention warrants a
suspension or removal from office, the MEC may –
(a)
Suspend the councillor for a period and on conditions determined by
the MEC; or
(b)
Remove the councillor from office.
(7)
Any investigation in terms of this item must be in accordance with
the rules of natural justice.”
[34]
In
Van
Wyk v Uys NO
2002 (5) SA 92
(C), the legal construction of Item 13 and 14 were
considered. The Court at p 99 E – F held that whilst Item 14
“
does
not present a glittering example of the quality of legislative
drafting to which the country is entitled…. It unquestionably
fits within the principle of co-operative governance
”
.
I agree with this conclusion. Furthermore, the provisions of Item 14
do confer discretionary powers on a municipal council to
investigate
and make a finding on an alleged breach of the Code or to establish a
special committee for this purpose. In
the event the council or
committee finds that the Code has been breached, the council itself
may issue a formal warning, reprimand
or fine the councillor, or,
alternatively, it may request the MEC for local government to suspend
the councillor or remove the
councillor from office.
[35]
The underlying reasoning behind all of this seems to be that when the
municipality seeks to impose the more
stringent sanctions of
suspension or removal from office in terms of Items 14(2)(c) or (e),
it is required to refer the matter
to a higher authority, namely the
MEC.
[36]
The MEC is then entitled either to form an opinion on the papers in
terms of Item 14(6), which would represent
a judicially considered
view, or he or she can appoint a committee or person in terms of Item
14(4) to investigate the matter and
make appropriate recommendations.
[37]
It is apparent from the above analysis that where an MEC makes a
decision in terms of Item 14(6), the decision
is the culmination of a
multi-stage process. In the present matter, the Item 14 process
consisted of three stages:
37.1
The Disciplinary Committee’s investigation and recommendations
to the City in terms of Item 14(1);
37.2
The City’s finding and request to the MEC in terms of Item
14(2)(e); and
37.3
The MEC’s decision in terms of Item 14(6).
[38]
The contention on behalf of the Applicant that Item 14 confers
“
unbridled
powers of intervention
”
upon
the MEC is in my view flawed. On a proper reading of the provisions
of Item 14 there is no unrestrained power that the MEC
wields in the
affairs of the local municipality. The powers granted to the MEC can
only be regarded to constitute a safeguard and
that form part of a
system of checks and balances applied to disciplinary proceedings
against councillors. The MEC has in fact
no self-standing
disciplinary powers over local councillors which can be exercised
mero
motu
.
Moreover, a council itself must in all cases investigate and
initiate disciplinary proceedings against its own councillors.
In
less serious matters, where the sanction imposed is no more than a
warning, reprimand or fine, the MEC’s role is confined
to
acting as an appeal forum.
[39]
When a municipality wishes to take more stringent action and suspend
or remove a councillor from office,
as in the present instance, it is
required to refer the matter to a higher authority, to decide whether
the imposition of potentially
far-reaching sanctions is justified.
The purpose of the provision cannot be regarded as “
unbridled
powers of intervention
”
by
an MEC as contended by the Applicant, but must be seen rather to
provide oversight and ensure restraint in council disciplinary
proceedings.
[40]
I am in agreement with the Respondents’ view that the Item
14(6) procedure applicable in more serious
cases is broadly
equivalent to an administrative appeal process, in that the person
charged has the benefit of the matter being
re-considered by a higher
authority before far-reaching sanctions can be implemented.
Furthermore, the Item 14(6) process shares
many of the beneficial
qualities of an internal appeal, by providing an immediate and
cost-effective forum for disciplinary proceedings
to be re-considered
without having to resort to litigation, thereby enhancing the
constitutional values of accountability, responsiveness
and openness.
[41]
The Applicant also advanced the argument that even if the MEC may
lawfully exercise disciplinary powers over
a municipal councillor,
this power may not be exercised in a manner inconsistent with the
principles of intergovernmental relations
in ss 41(1)(e) – (h)
of the Constitution. The Respondents did not take issue with the
Applicant’s argument that the
MEC may not exercise his powers
in terms of Item 14
“
in
a manner that violates the principles of intergovernmental
relations
”.
The question
remains whether the Applicant has established that the impugned
provisions are unconstitutional. In my view this question
must be
answered in the negative.
[42]
The national, provincial and local spheres of government are
distinctive, interdependent and interrelated
(Constitution 40(1)).
All spheres are obliged to respect the constitutional status,
institutions, powers and functions of government
in the other spheres
(
41(1)(e))
; not assume any power or function except those
conferred on them in terms of the Constitution (
41(1)(f)
) and
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 (
41(1)(g)
).
[43]
The powers of the MEC under Item 14, when performed as in the present
instance, can therefore not be regarded
as constitutionally
objectionable as they fall squarely within the principal of
co-operative governance. The role and functions
of the Speaker of the
local municipality within the constitutional framework is also not
“eviscerated” or undermined
as suggested by the
Applicant. In fact in the present instance the council was unanimous
in its recommendation as to the guilt
and sanction of the Applicant.
It follows that the challenge by the Applicant on the ground that the
MEC’s power derived
from Item 14 of the Systems Act is
overbroad and constitutionally impermissible because it unnecessary
interferes with essentially
legislative function of an autonomous
body, cannot survive.
[44]
In respect of the challenges raised by the Applicant based on s 16,
18 and 19 of the Constitution, even though
they were not dealt with
by the Respondents, they are, in my view in any event, manifestly
incapable of sustaining a challenge
to the Code of Conduct. A
provision which permits a councillor to be removed after there has
been a finding that the councillor
has breached the Code of Conduct
in a particularly egregious way is hardly inconsistent with section
19 of the Constitution, or
the right of every adult citizen “
to
stand for public office and, if elected, to hold office
”
.
The Code of Conduct is clearly a law of general application, as is
apparent from its preamble, and it is aimed at ensuring the
accountability of councillors and the proper performance of their
obligations. That can hardly be said to be an unreasonable
or
unjustifiable infringement on the rights of persons who serve as
councillors.
The
Review:
[45]
Returning to the grounds of review. The Applicant seeks to review and
set aside not only the decision of
the MEC, but also the decisions
made by the City and the Speaker. The Applicant in his Amended Notice
of Motion also seeks a declaratory
order in respect of the
proceedings before the Disciplinary Committee. It is evident from the
papers filed that the decision to
remove the Applicant from office
was however not taken by the Speaker, the Disciplinary Committee or
the City, but by the MEC.
It is therefore the MEC’s decision
that requires to be reviewed.
[46]
According to the MEC, he formed the opinion that the three primary
issues he was required to decide were:
46.1
whether it had been established, on a balance of probabilities, that
the Applicant had breached the Code in respect
of the relevant
charges;
46.2
whether the proceedings had been conducted in accordance with the
requirements of natural justice; and
46.3
if the Applicant had been found guilty in accordance with the
principles of natural justice, what the appropriate
sanction should
be.
[47]
The thrust of the Applicant’s attack on the MEC’s
decision, as set out in his founding affidavit,
is focussed on the
procedural fairness of the Disciplinary Committee hearing.
[48]
The Applicant contends that the hearing conducted by the Disciplinary
Committee failed to comply with the
“
elementary
requirements of procedural fairness
.”
[49]
The main attack on the procedural fairness of the Disciplinary
Committee hearing by the Applicant was whether
it was fair for the
hearing to be concluded in his absence. The Applicant’s
complaint is that:
49.1
He was unfairly ejected from the proceedings, with the result that he
was denied the right to cross-examine witnesses,
lead evidence in his
defence and make legal submissions;
49.2
On 14 June he was denied a postponement, denying his legal
representative a fair opportunity to consider the evidence
presented
in her absence and prepare cross-examination;
49.3
His attorney was subject to unfair objections from members of the
Disciplinary Committee, leading to her being
unable to conduct her
cross-examination properly;
49.4
The chairperson of the Disciplinary Committee failed to fulfil her
function of properly regulating the proceedings;
and
49.5
He was denied adequate legal representation (as he was obliged to pay
for the services of his attorney).
[50]
In the present instance, it is perhaps necessary to
distinguish between the decision to exclude the Applicant
from the
hearing and his subsequent instruction to his attorney to withdraw
from the proceedings. The former issue is somewhat
clouded by factual
disputes.
[51]
According to the record of proceedings of the disciplinary committee,
on 12 September 2012 the Chairperson
of the Disciplinary Committee
requested the Applicant to leave the room. The Applicant then
instructed his attorney to
“
abandon
the proceedings as they are
”
and to take the
matter on review.
[52]
The fairness of the decision to exclude the Applicant depends
primarily on the resolution of the factual
disputes concerning the
events leading up to the decision. Two conflicting versions of
the events have been presented. The
Applicant states that the
Chairperson of the Disciplinary Committee ejected him because he had
raised objections to the fairness
of the process.
[53]
The Disciplinary Committee in its findings, which were accepted by
the MEC, stated that the Applicant had
been disruptive and after
having been given three prior warnings for disruptive behaviour, he
had a fourth outburst and alleged
that the hearing was biased against
him. It was this fourth outburst that led to the Applicant being
requested to leave the hearing.
The MEC accepted the Disciplinary
Committee’s version of events and found that the hearing was
procedurally fair as the Applicant’s
repeated outbursts and
disruptive behaviour made it impractical for the proceedings to
continue with him present. The MEC
noted the following:-
“
The
Applicant, who behaved in an increasingly volatile fashion throughout
the course of the proceedings – he at one point
furiously
accused a witness of being “a liar”. This is a
criminal, the person who stole somebody’s plot!”
–
was given three warnings with regard to his outbursts, on the third
occasion a five minute adjournment was ordered to enable
him to calm
down, and only after his fourth outburst was he instructed to leave
the proceedings. These are not the hallmark of
a body that was intent
on convicting the Applicant without regard for his right to a fair
hearing.”
[54]
The Applicant, however, denies that he was rowdy or that he failed to
restrain himself. He states that
he was not removed from the
hearing on account of disruptive behaviour, but because the DA
councillors on the panel were bent on
finding him guilty in order to
undermine the position of the ANC in the council.
[55]
If the Applicant’s version is correct, counsel for the MEC
conceded it will undoubtedly be difficult
to justify the decision to
exclude him. However, if the Disciplinary Committee findings are
accurate and he was excluded only after
his fourth rowdy outburst,
having already received three warnings for his conduct, counsel for
the MEC argued the decision to exclude
him can hardly be regarded as
unreasonable.
[56]
The age-old saying that ‘politics are not for the faint
hearted’ is perhaps apt in the present
instance. In my view it
is not open for this court to decide what conduct is the most
appropriate for politicians. The relevant
question for determination
is however whether the proceedings in the present circumstances were
procedurally and substantively
fair and in accordance with the rules
of natural justice. A reading of the transcript paints a rather
different picture as to what
the Applicant tries to make out in his
papers. The proceedings were marked by several outbursts by the
Applicant. Some were, to
put it bluntly, outright unruly and
unnecessary. In fact, at one stage the proceedings were adjourned by
the chairperson for five
minutes for the Applicant to calm down. His
own attorney also intervened at one stage to calm him down. She later
offered an apology
for his behaviour. The Chairperson had also warned
the Applicant that if he continues to behave in a similar manner, the
hearing
will proceed in his absence. Despite this warning there were
two further outbursts by the Applicant before he was ordered to leave
the room. On the face of the record it seems rather obvious that the
Applicant’s behaviour was calculated, deliberate and
aimed to
obstruct the disciplinary proceedings to continue in an orderly
fashion. Moreover, the Applicant’s version of political
interference is somewhat irreconcilable with the fact that the
Disciplinary Committee – which consisted of five DA
councillors,
two ANC councillors and one Cope councillor – was
unanimous in its findings, both with regard to guilt and sanction of
him.
[57]
Although the Applicant in his Replying Affidavit denies that the
Disciplinary Committee findings were unanimous.
He further stated
that even if the Disciplinary Committee was unanimous “
that
is in no way an indication that the disciplinary hearing was
conducted in a fair impartial manner
.”
[58]
In my view however the question for consideration in this regard is
whether the fact that the Applicant was
asked by the tribunal to
leave the proceedings resulted in a material mistake. In our law it
is now well –established that
a material mistake of fact can
indeed constitute a potential ground of review. In this regard see
Pepcor Retirement Fund & Another v Financial Services Board &
Another
2003 (6) SA 38
(SCA) [47]-[48]. This review ground is
however limited in order to avoid the blurring between an appeal and
a review. A court is
therefore not entitled to reconsider the matter
afresh. The ground of review is restricted to those situations where
a mistake
of fact is uncontentious and the fact that a mistake has
been made is objectively verifiable.
[59]
In the present instance, the facts alleged by the Applicant with
regard to the circumstances leading to his
ejection from the hearing
are hardly convincing. It is also not
“
uncontentious
and objectively verifiable
”.
To the contrary, a
reading of the transcript of the disciplinary hearing rather supports
the MEC’s conclusion that the Applicant’s
behaviour made
it impractical for the proceedings to continue with him present.
Moreover, the Applicant instructed his attorney
to “
abandon
the proceedings
”
and
to take the matter on review. This decision by the Applicant to
abandon the proceedings was made in the face of the Disciplinary
Committee explicitly requesting his attorney to continue to
participate in the proceedings and to present witnesses for the
Applicant.
[60]
Although the Applicant contends that his exclusion denied him the
right to cross-examine witnesses, lead
evidence in his defence and
present legal submissions, the MEC noted the reason the Applicant’s
version was not heard for
the final part of the proceedings as a
result of the Applicant’s insistence that his attorney should
abandon the hearing.
[61]
Our courts are not unduly unsympathetic to parties who disrupt
judicial or disciplinary proceedings. In the
present instance however
the objective evidence of the transcript clearly establishes that the
Applicant had deliberately engaged
in conduct that squarely falls in
those rare categories where the continuance of the proceedings in his
presence would have been
impracticable and effectively would have
denied the complainants and the City a reasonable opportunity to
proceed with a fair hearing.
[62]
Based on the facts found by the MEC, his finding on the Applicant’s
exclusion from the hearing, in
my view, cannot be criticised.
[63]
The Applicant also complained that the hearing on 14 June 2012 was
unfair as the Disciplinary Committee would
not entertain any
application for a postponement in order to allow him to furnish his
attorney with instructions or to allow her
to listen to the audio
recording of the previous day’s proceedings. According to the
record the Applicant elected to represent
himself at the beginning of
his hearing on 13 June 2012. It is clear from the record he had
difficulties as a lay-person to conduct
his own cross-examination.
The hearing was then postponed to 14 June 2012 in order for the
Applicant to obtain an attorney to represent
him. The Applicant
alleges that the period of 20 minutes which he alleges his attorney
was granted for this purpose was inadequate.
[64]
The following facts however emerge from the record of proceedings.
According to the transcript the hearing
was postponed at 13h02 on 13
June 2012. It commenced shortly before 11h00 on 14 June 2012, in
order to give the Applicant time
to give instructions to his
attorney, to the extent that he may not have done so prior to 13 June
2012. The matter then stood down
from lunch-time 13 June 2012 to the
morning of 14 June 2012 at the explicit request of the Applicant’s
attorney, who requested
that the matter commence at 10h00 on 14 June
2012.
[65]
At the re-commencement of proceedings on 14 June 2012, a limited
further postponement was granted and the
Applicant and his attorney
were afforded the opportunity to consult for an hour from 11h45 to
12h45. The Applicant’s
claim that the Disciplinary
Committee would not entertain any application for a postponement is
therefore contrived. The further
allegation that the Applicant and
his attorney were only granted 20 minutes to consult is also
unfounded. They were granted
an hour and kept on consulting for
a further 30 minutes without any objections from the committee.
[66]
According to the Applicant’s attorney she indeed listened to
the transcript. Moreover, there
were no objections from her
side that the time was inadequate for preparation. In fact she was
able to cross-examine with full
knowledge of what had transpired the
previous day. At no stage after the hearing resumed in the afternoon
of 14 June 2012 did the
Applicant’s attorney complain that she
had had insufficient time to acquaint herself with the evidence of
the previous day
or obtain instructions. To the contrary, at
one point she referred the Committee “
to
the record which I have just listened to right now
”
.
[67]
What is particularly telling with regard to the claim the attorney
had been prejudiced in conducting the
Applicant’s defence is
that in the representations to the MEC, drafted by Applicant’s
attorney, the focus is almost
exclusively on alleged procedural
irregularities in the Disciplinary Committee hearing. No reference
was made by Applicant’s
attorney to any failure to grant a
postponement or to any subsequent prejudice in the conduct of the
case. It is therefore inconceivable
that the failure to grant a
postponement did result in any prejudice. There is also a glaring
absence in the Applicant’s
papers of any affidavit from the
attorney confirming that she had been prejudiced in the conduct of
the case or explaining how
that prejudice had arisen.
[68]
The Applicant further objected to the fairness of the Disciplinary
Committee hearing on the grounds that
there was no chairperson to
regulate the conduct of the proceedings and interruptions in
cross-examination.
[69]
This contention fails to take into account the principle that an
administrative tribunal is entitled, subject
to its own rules, to
determine is own rules of procedure. The Applicant does not
identify any rules setting out how the chairperson
should have
conducted the hearing nor does he explain how these rules were
violated.
[70]
In any event, the claim that there was no chairperson to regulate the
conduct of the proceedings cannot be
sustained on the facts. As
the MEC noted:-
‘
1)
At the outset of the hearing the chairperson of the Disciplinary
Committee identified herself as
such;
2)
The Chairperson took a leading role in the conduct of the
proceedings, particularly in the
critical period leading up to the
Applicant being requested to leave the hearing; and
3)
When the proceedings were disrupted by the Applicant on 12 September
2012, and he enquired
as to whom the presiding officer was, the
chairperson again identified herself as such.’
[71]
A further complaint by the Applicant is that his legal representative
was not treated with respect and was
subjected to constant
interjections, mostly from the DA members of the Committee. He
describes the interjections as “
inordinate,
disparaging and disruptive
”
.
[72]
The Speaker in his answering affidavit avers that there was nothing
untoward about the objections by the
initiators. There were indeed
interjections by members of the committee. For instance members
interjected for the following
reasons:
72.1) The
Attorney misrepresented evidence in putting questions to a witness;
72.2) The
Attorney asked questions of a lay-witness that required specialised
legal knowledge;
72.3) The
Attorney asked irrelevant questions;
72.4) The
Attorney made long argumentative statements to which the witnesses
were somehow expected to respond; and
72.5)
Certain of the interjections were made in response to inadequate
translation.
[73]
A closer scrutiny of the record does not bear out the “
inordinate,
disparaging and disruptive
”
interjections as
alleged by the Applicant. What it does reveal are comments made by a
presiding office in a hearing, in order to
ensure that the hearing
proceeds smoothly and expeditiously and that witnesses are treated
fairly. Viewed as a whole and
in context, the interjections did
not in my view deprive the Applicant of his right to have the
proceedings conducted in accordance
with the principles of the rules
of natural justice. In fact, the record provides rather ample
justification for the MEC’s
conclusions that the interjections
by the various members of the Disciplinary Committee were often
prompted by a desire to focus
the cross-examination conducted by the
Applicant’s attorney on relevant issues and to manage/control
the Applicant’s
volatile behaviour.
[74]
The Applicant further complained that the Disciplinary Committee
failed to provide him with adequate legal
representation in that the
City was obliged to provide and pay for his legal representation.
[75]
According to the record, the Applicant initially elected to represent
himself, but when it became apparent
that he had some difficulty in
conducting his own defence, the Disciplinary Committee encouraged him
to obtain legal representation,
which he eventually did. In my view,
the complaint that the City’s failure to pay for the
Applicant’s legal representations
rendered the disciplinary
hearing procedural unfair, is simply misguided. The rules of natural
justice, in this instance, simply
do not require that the party
instituting the proceedings should pay for the Respondent’s
legal representation. Moreover,
the Applicant has failed to
demonstrate that he was in any way prejudiced by the alleged
allegation that the City should have funded
his legal fees.
[76]
The MEC in assessing whether the disciplinary hearing had taken place
in accordance with the principles of
the rules of natural justice
stated that his point of departure was, evaluating the conduct of an
administrative body, chaired
by a non-lawyer, not a court of law. It
is trite that the rules of natural justice do not require a tribunal
to apply the technical
rule of evidence observed in a court of law.
In this regard see
Davies v Chairman, Committee of the
Johannesburg Stock Exchange
1991(4) SA 43 W at 48 C.
[77]
It follows that the MEC was entitled to assess the hearing in terms
of basic principles of fairness, rather
than the procedural and
evidential standard observed in a court of law.
[78]
The Applicant further alleges that the Disciplinary Committee was
“
clearly
infected with vindictiveness
”
and
that the outcome of the DA dominated disciplinary process was a
foregone conclusion. In the present instance the Disciplinary
Committee consisted of eight elected political representatives
assisted by three City officials (including two legal advisors).
The Committee was chaired by a non-lawyer and was required to hear
oral evidence including cross-examination and make findings
in
respect of that evidence.
[79]
On a proper reading of the record the allegations made by the
Applicant are in my view contrived. The Disciplinary
Committee in
this instance included members of the Applicant’s own party.
The facts overwhelmingly suggest that the Committee’s
findings
were unanimous. The record also reveals that the Disciplinary
Committee went to considerable lengths to protect
the Applicant’s
rights and as the MEC correctly noted, these are not the hallmark of
a body that was intent on convicting
the Applicant without regard for
his right to a fair hearing.
[80]
What remains to be considered is whether in these circumstances an
appropriate sanction against the Applicant
warrants a removal from
office.
[81]
Item 14(6) of the code provides that the MEC, if he “
is
of the opinion that the councillor has breached a provision
”
of the Code, may,
if the sanction is warranted:
“
(a)
Suspend the councillor for a period and on condition determined by
the MEC; or
(b)
Remove the councillor from office.”
[82]
In the present instance the Systems Act granted the MEC the “
sole
and exclusive
”
function
of determining whether the Applicant breached the Code, and, if so,
whether his removal from office was warranted.
Once he had
determined these jurisdictional facts, he was entitled to exercise
his powers accordingly. The grounds upon which
this Court can
intervene are limited. It can only interfere on grounds such as
mala
fides
,
ulterior motive, a failure to apply one’s mind and in light of
the constitutional right to just administrative action, these
requirements would now also include rationality and reasonableness.
[83]
In my view the MEC’s findings that the required jurisdictional
facts were present were fully justified
on the evidence before him.
He noted that a striking aspect of the representations made to him on
behalf of the Applicant
in annexure “AL20” was their
failure to engage with the substance of the charges brought against
him. This was
despite detailed evidence of misconduct having
been presented at the hearing by six different witnesses. This
evidence had been
carefully evaluated by the Disciplinary Committee,
which had concluded that he was guilty on both charges brought
against him.
The Applicant in his representations had not
denied, attempted to explain or in any way deal with the far-reaching
evidence of
misconduct. The Applicant had simply contended that
the disciplinary hearing was procedurally unfair “
without
getting into the merits of the matter
”
.
No explanation or motivation was provided for the failure to deal
with the substance of the charges.
[84]
The MEC viewed the charges on which the Applicant had been found
guilty in an extremely serious light.
The preamble to the Code
of Conduct states,
inter alia
, that councillors’ are
elected to represent local communities, to ensure that municipalities
have structured mechanisms of
accountability to communities, and to
meet the priority needs of communities by providing services
equitably, effectively and sustainably.
[85]
The MEC also took into account that housing is amongst the most
complex of service delivery challenges and
that in housing matters it
is the responsibility of elected representatives to represent their
councils in a manner that does not
negatively affect their integrity
and credibility.
[86]
The MEC stated that the actions of the Applicant and the manner in
which he treated citizens who are vulnerable
members of society were
unacceptable. The potential consequences of such action, if
unchecked, would be far-reaching both
for the municipality and the
community which it serves.
[87]
In my view having regard to the above considerations, the conclusion
by the MEC was in fact justified.
There was nothing in the
Applicant’s representations to persuade the MEC that any other
sanction was appropriate. Moreover,
the Applicant does not contest
the validity of the sanction imposed by the MEC in his Heads of
Argument. In fact the 7
th
Respondent, being the
National Minister of Cooperative Governance and Traditional Affairs
and a member of the same political party
as the Applicant, went so
far as to state in his affidavit that the Applicant was properly
removed from office as a result of the
transgressions he was found
guilty of.
[88]
For these reasons, the Review Application cannot succeed. It follows
that the relief
sought
by the Applicant cannot be successful.
[89]
In the result, the following order is made:
The Application is
dismissed with costs, including the costs occasioned by the
employment of two counsel.
____________________________
LE
GRANGE, J
For Applicant
:
Adv. T
Masuku
Adv. T S Sidaki
Adv. S Gcelu
For 2
nd
Respondent
:
Adv. P Hathorn
Adv. N Mayosi
For 3
rd
, 4
th
and 5
th
Respondents :
Adv. P B J Farlam
Adv.
Mangu-Lockwood
For 7
th
Respondent
: Adv.
N Cassim SC
Attorney for Applicant
:
Xulu Attorneys Inc.
Attorneys for 1
st
Respondent
:
A Parker & Associates
Attorneys for 2
nd
Respondent
:
State Attorneys
Attorneys for 3
rd
to 5th Respondents
:
Fairbridges Attorneys
Attorneys for 6
th
& 7
th
Respondents :
State Attorneys
Heard on
:
12, 13 & 14 AUGUST 2013