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[2011] ZAWCHC 385
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Brummer NO v Mvimbi and Others (13535/2011) [2011] ZAWCHC 385 (28 September 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Case
no: 13535/2011
JOHAN
WICHARDT GREYLING BRUMMER N.O.
Applicant
v
LULAMA
LENNOX MVIMBI
First
Respondent
LUNGISWA
MONICA SEYISI
Second
Respondent
LENHARD
RICHARD JONAS
Third
Respondent
MPAKAMISI
MAC MBALI
Fourth
Respondent
SANDISO
ENOCH
GCABAYI
Fifth
Respondent
JAN
JACOBUS NOLAN STUURMAN
Sixth
Respondent
ADAM
BRENDON VAN RHYNER
Seventh
Respondent
MEMORY
BOOYSEN
Eighth
Respondent
ELAINE
ELIZABETH PAULSE
Ninth
Respondent
ANNELISE
RENATA
OLIVIER
Tenth
Respondent
NEVELLE
MARTHINUS DE WAAL
Eleventh
Respondent
CHARLES
LEON DREYER
Twelfth
Respondent
HEAD
OF THE LAW ENFORCEMENT UNIT,
Thirteenth
Respondent
BITOU
MUNICIPALITY
PROVINCIAL
COMMISSIONER OF THE SAPS,
Fourteenth
Respondent
WESTERN
CAPE
Coram
:
J
I CLOETE AJ
For
the Applicant
:
Adv
J
de
Waal
–
(021)
4248319
Instructed
by
: John Gillespie – Plett, c/o Vanderspuy Cape Town –
(021) 4193622
For
1
st
–
6
th
respondents
: Adv I
Jamie
–
(021)
4234395, Adv L
Ferreira
–
(021)
4225296
Instructed by
: Mills & Lombard Attorneys – Hardy Mills (Plett) c/o
Nongogo Nuku
For 7
th
–
12
th
respondents
: not represented
For 13
th
respondent
: Adv T
Masuku
–
(021)
4245215
Instructed by
: Mills & Lombard Attorneys – Hardy Mills (Plett) c/o
Nongogo Nuku
For 14
th
respondent
: not
represented
Date(s)
of Hearing
: 7 and 8 September
2011
Judgment
delivered on
:
28 September 2011
IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case no: 13535/2011
JOHAN WICHARDT GREYLING BRUMMER
N.O.
….......................................
Applicant
v
LULAMA LENNOX MVIMBI
…..............................................................
First
Respondent
LUNGISWA MONICA SEYISI
…......................................................
Second
Respondent
LENHARD RICHARD JONAS
….........................................................
Third
Respondent
MPAKAMISI MAC MBALI
….............................................................
Fourth
Respondent
SANDISO ENOCH GCABAYI
…............................................................
Fifth
Respondent
JAN JACOBUS NOLAN STUURMAN
…..............................................
Sixth
Respondent
ADAM BRENDON VAN RHYNER
…...............................................
Seventh
Respondent
MEMORY BOOYSEN
….....................................................................
Eighth
Respondent
ELAINE ELIZABETH PAULSE
…........................................................
Ninth
Respondent
ANNELISE RENATA OLIVIER
….......................................................
Tenth
Respondent
NEVELLE MARTHINUS DE WAAL
…...........................................
Eleventh
Respondent
CHARLES LEON DREYER
…...........................................................
Twelfth
Respondent
HEAD OF THE LAW ENFORCEMENT UNIT,
BITOU MUNICIPALITY
…...........................................................
Thirteenth
Respondent
PROVINCIAL COMMISSIONER OF THE
SAPS,
WESTERN CAPE
….....................................................................
Fourteenth
Respondent
Heard: 7 and 8 September 2011
Court: Acting Judge J I Cloete
Delivered:28 September 2011
_____________________________________________________________________
JUDGMENT
CLOETEAJ:
Introduction
[1] There are two matters before me.
The first is the extended return date of a rule
nisi
issued in
favour of the applicant in which he seeks amended final relief
against the 1
st
to 13
th
respondents (the
applicant no longer seeks relief against the 14
th
respondent). The second is a counter-application by the 1
st
to 6
th
respondents for certain declaratory relief.
[2] It should be mentioned that
despite the issue of a rule
nisi
against the 1
st
to
13
th
respondents, it was only the relief sought in respect
of the 1
st
to 12
th
respondents that was ordered
to operate as an interiminterdict. The 1
st
to 6
th
and 13
th
respondents oppose the final relief sought
against them by the applicant. The 7
th
to 12
th
respondents abide the decision of this court. The counter-application
by the 1
st
to 6
th
respondents is opposed by the
applicant.
Background
[3] The Council of the Bitou
Municipality has a history of being wracked by dissent. Since the
Democratic Alliance (‘
DA’
) assumed power in that
municipal area after the local government elections of May 2011 this
dissent has continued unabated.This
reflects in part longstanding
political animosity between various of the key players in the Council
which until May 2011 had been
controlled by the African National
Congress (‘
ANC’
). The Council is presently
comprised of 6 DA members (being the applicant and the 8
th
to 12
th
respondents), 6 ANC members (being the 1
st
to 6
th
respondents) and 1 member of the Congress of the
People (‘
COPE’
) being the 7
th
respondent.
COPE has formed a coalition with the DA to form a ruling majority in
the local government of the Bitou municipal area.
[4] The applicant, a longstanding
member of the DA who was elected Speaker at the meeting of the
reconvened Council on 6 June 2011,
blames the trouble on the 6 ANC
members of the Council. He seeks a final order directing them,
together with the 7
th
to 12
th
respondents, to
adhere, subject to certain provisos, to directions given by him in
terms of rule 24 of the Rules of Order Regulating
the Conduct of
Meetings of the Council of the Municipality of Bitou, published in
Western Cape Gazette No. 6689 of 22 January 2010(the
‘
Rules
of Order’
). The applicant also seeks a final order against
the 13
th
respondent (the Law Enforcement Unit of the Bitou
Municipality) directing it to enforce rule 24(2) of the Rules of
Order by removing
any member of the Council from a meeting if
requested to do so by the applicant.
[5] The 1
st
to 6
th
respondents blame the trouble squarely on the applicant and it is for
this reason that they seek certain declaratory relief in
respect of
his conduct at two meetings of the Council held respectively on 29
June 2011 and 8 July 2011.
[6] Although the two main protagonists
in the dispute are the applicant (‘
Brummer’
) and
the first respondent (‘
Mvimbi’
), Brummer also
seeks relief against the 2
nd
to 12
th
respondents by adopting a ‘
scatter shot’
approach.
He maintains that although the disruption was instigated by Mvimbi,
and indeed virtually all of the conduct complained
of is attributed
to Mvimbi, because ‘
some of the other Councillors have at
times reacted thereto’
final relief should be granted
against
all
of them. The ‘
other Councillors’
to whom Brummer refers are the ANC Councillors. He makes no complaint
against the DA or COPE Councillors. Brummer contends that
by
interdicting all of the Councillors, this will ‘
dispose of
the need to determine who exactly was the cause of the disruption’
at future meetings of the Council.
[7] The unfortunate events which gave
rise to this litigation are summarised below. At the outset it should
be mentioned that there
are a number of other allegations and
counter-allegations in the papers but for purposes of this judgment
the following appear
to be the main areas of dispute.
[8] The inaugural meeting of the new
Council was called for 1 June 2011. Just hours before the meeting was
to take place the Municipal
Manager received a telefax from an
attorney representing the ANC attaching a document which purported to
be a copy of an unsigned
notice of motion challenging the outcome of
the local government election in Bitou. This missive caused the
Municipal Manager to
form the view that he had received a High Court
interdict and led him to unilaterally postpone the inaugural meeting
until 6 June
2011.
[9] On that date, again just hours
before the meeting was due to take place, the Municipal Manager
received another telefax, purportedly
from COPE, claiming that the
7
th
respondent had been expelled from that party. This
caused another delay and the meeting could only proceed after the
Independent
Electoral Commission had confirmed that the 7
th
respondent was indeed the elected COPE Councillor. The meeting
proceeded and amongst other office bearers Brummer was elected as
the
Council’s Speaker.
[10] The next meeting was scheduled
for 29 June 2011. This meeting concerned the powers of the elected
office bearers. The system
of delegations had to be revisited for
this purpose and committees had to be established. After an initial
verbal tussle between
Brummer and Mvimbi as to how the COPE letter
should be referred in the minutes of the previous meeting and whether
Mvimbi was entitled
to raise this issue as a point of order, Brummer
proceeded to address what he regarded to be the inappropriate attire
of certain
Councillors. He complained that it had been a longstanding
practice for male Councillors attending Council meetings to wear both
jackets and ties and that some of them were not wearing ties. Another
verbal tussle ensued when Mvimbi objected, claiming that
Brummer was
wrong and that there had been no such longstanding practice. It
related only to the wearing of jackets, not ties (it
subsequently
transpired that Brummer was wrong and that Mvimbi was right).
[11] After the Executive Mayor’s
address (in which ironically he expressed concern that the business
of the Council which,
in his words, had in the past been run as a
‘
circus’
seemed at risk of following the same
trend), the Municipal Manager raised the issue of yet another letter
purportedly received
from COPE a few hours before. This letter
claimed that the 7
th
respondent was not the legitimate
COPE representative on the Council.
[12] Brummer’s reaction was to
view that letter (and the previous communications) as a deliberate
attempt by an unidentified
force or forces to ‘
continuously’
disrupt Council meetings. He was not going to stand for it any
further. He would request the Municipal Manager to determine its
true
source and to institute whatever legal action was necessary ‘
against
these people’.
[13] Mvimbi indicated that he wished
to speak and said ‘
Thank you very much Mr Speaker. I hope
you are not going to regard my statement as trying to make a circus
of
(sic)
a mockery of this Council…’.
Brummer
took umbrage and immediately interrupted Mvimbi, informing him that
‘
You don’t have space on this agenda to make
statements. Can you be seated please?’.
Mvimbi refused,
stating that he wanted to ‘
report on the letter’.
[14] Brummer responded by asking him
for the second time to be seated and when Mvimbi again stated that he
wished to report on the
letter, Brummer instructed him to leave the
Council Chamber. When Mvimbi refused, Brummer informed him that if he
did not leave
he (i.e. Brummer) would have Mvimbi removed.
[15] The meeting quickly descended
into mayhem with both Brummer and Mvimbi becoming increasingly
intractable. Brummer adjourned
the meeting a few times to have Mvimbi
removed, without success, since Brummer could not secure the
assistance of either the 13
th
respondent or the police. At
one point Brummer expressed that he was ‘
seriously pissed
off. I expected the moment I saw that there were no ties on I
expected problems. I knew it was coming.’
Eventually the
meeting had to be adjourned to 1 July 2011, with Brummer’s
direction that Mvimbi be barred from the meeting
still in place.
[16] On 1 July 2011 the meeting again
descended into chaos. Brummer alleges that Mvimbi and the other ANC
Councillors walked in
late and immediately started shouting at him.
Mvimbi denies this, claiming that Brummer has given a selective and
inaccurate account,
and that it was Brummer who wrongly accused the
ANC Councillors of making it impossible for the Council to continue
its business.
When Mvimbi and his fellow ANC Councillors voiced their
objection to this accusation, calling on Brummer not to lie, he
announced
that he would be adjourning the meeting. When Mvimbi and
his fellow Councillors again voiced their objection, Brummer ignored
their
protestations and told them to be quiet. He then adjourned the
meeting until 4 July 2011. His direction barring Mvimbi from the
Council Chamber had still not been revoked.
[17] It seems that over the weekend of
2 and 3 July 2011 Brummer enlisted the assistance of senior DA local
government members to
approach senior ANC local government members to
try to resolve the impasse. It also seems that the DA members were
unsuccessful
in making contact with the ANC members concerned.
[18] At the commencement of the
meeting on 4 July 2011 Brummer read out a letter from Mvimbi’s
attorneys in which they demanded
an undertaking that Mvimbi would be
allowed to take up his seat in the Council Chamber under threat of
court action. It appears
that Brummer had in any event given
consideration to the matter since the meeting of 1 July 2011 as he
proceeded to inform Mvimbi
that ‘…
.I am going to make
a deal with you. I will give you five minutes to speak on the COPE
issue and then you will also undertake at
the same time that you will
now behave yourself, and stick to the rules like everybody else…Do
you find that acceptable?’
This stance accords with an
email sent by Brummer to Mvimbi’s attorneys only one minute
before the meeting commenced in which
he made a proposal in virtually
identical terms.
[19] Brummer now contends that his
proposal to Mvimbi was an agreement already reached before the
meeting commenced. This is plainly
wrong. Not only was Brummer’s
email only dispatched to Mvimbi’s attorneys a single minute
before the start of the meeting,
but its opening paragraph contains
the words ‘
I suggest as follows…’
and
Brummer’s very words to Mvimbi in the meeting were ‘
I
am going to make a deal with you…’
. If an agreement
was already in place, Brummer would have used different language.
[20] In response to Brummer’s
proposal Mvimbi requested time to caucus with his fellow ANC
Councillors, to which Brummer agreed.
It seems that Mvimbi took a
while longer than the stipulated period of 5 minutes which irritated
the other Council members, including
Brummer. On their return Mvimbi
addressed the meeting. An exchange of words ensued between him and
Brummer as to their respective
perceptions of the other’s
threats of legal action. Brummer then repeated that Mvimbi would be
allowed to speak on the COPE
issue if he undertook to ‘
stick
to the rules from now on’
. He insisted that Mvimbi furnish
that undertaking on the record.
[21] Without doing so, Mvimbi briefly
addressed the COPE issue. Brummer then again asked for the
undertaking sought by him. Mvimbi
replied that he had never promised
to give such an undertaking, which in his view was in any event
irrelevant since it went without
saying that Councillors had to
subject themselves to the Rules of Order. He said that he did not
know why Brummer was harassing
him. Brummer then accused him of
reneging on the so-called agreement and adjourned the meeting to take
advice.
[22] Upon his return Brummer appeared
satisfied that Mvimbi no longer needed to provide the undertaking
upon which he had previously
insisted. He appealed to Mvimbi and the
other ANC Councillors ‘
to behave’
and to work
according to the Rules of Order.
[23] Regrettably the matter did not
end there. When the 4
th
respondent (‘
Mbali’
,
a fellow ANC Councillor) wished to speak on the issue, asking from
whom Brummer had taken advice and what that advice had been,
the
latter instructed him to be silent. Further words were exchanged
between Brummer, Mvimbi, Mbali and other Councillors whose
identity
is unclear, culminating in Brummer saying ‘
Sorry, gentlemen,
let me explain to you how, and I’ll speak slowly so that you
understand. If you will just be quiet so that
you can hear what I say
then maybe you will not get so confused.’
[24] This somewhat offensive and
patronising remark predictably resulted in vigorous objection from
various ANC Councillors. It
is not possible to determine all of their
identities from the papers, although it seems that it was Mvimbi who
told Brummer that
‘
You must teach yourself to listen and
allow the people to speak so that you can understand what is…’.
Brummer interrupted him, telling Mvimbi that ‘
I think I have
done everything that I can to try and make this work, and it seems
that as long as Councillor Mvimbi is here, we
will not have order in
this Council and I am not going to allow this to carry on any
further.’
He then adjourned the meeting to 8 July 2011.
[25] Brummer launched the application
for an interdict two days later, on 6 July 2011 for hearing on 7 July
2011,and on less than
24 hours’ notice to the respondents. He
submitted that the matter was fit and proper to be heard as one of
urgency because
‘…
.the lawful functioning of the
Council is necessary to ensure that the Bitou Municipality is
properly managed and that Councillors
feel free to do their job
properly and openly. Much of the recent outbursts by Cllr Mvimbi have
been comprehensively covered in
the media, and the reputation of the
Bitou Council as a constitutional body worthy of respect has already
been compromised and
will continue to be so compromised unless this
action is comprehensively dealt with now. As I explained above, the
meeting which
has been adjourned on a number of occasions has now
been scheduled for this Friday, 8 July 2011 on a time to be
announced…There
are a number of reasons why the meeting
scheduled for this Friday cannot be adjourned again. Besides the
issues mentioned in Annexure
“C”, the Council needs to
approve a R5 million overdraft otherwise the Municipality will soon
run out of money to make
payments. The system of delegations needs to
be adopted in terms of section 59(2)(f) of the Systems Act; the
committees need to
be established….Clearly effective relief
cannot be obtained by way of a hearing in the ordinary course.’
[26] After hearing argument Yekiso J
postponed the application to 13 July 2011, but directed the 1
st
to 12
th
respondentsto adhere to directions given by Brummer
in terms of rule 24 of the Rules of Order until that date.
[27] The saga continued at the
reconvened meeting on 8 July 2011. Mvimbi alleges that Brummer
refused a request by an ANC Councillor
for a short adjournment of the
Council so as to allow a caucus during the debate in respect of a
certain resolution. Brummer refused
the ANC Councillor’s
request on the basis that ‘
the relevant Rule applicable
could not be cited’.
Brummer’s response is that he
had previously (on 4 July 2011) granted the ANC Councillors an
opportunity to caucus for an
‘
agreed’
5 minutes.
They remained away for 25 minutes and thus wasted 20 minutes of
Council time. When a request to caucus was made by the
ANC
Councillors on 8 July 2011, Brummer was not going to allow them to
again use ‘
this strategy’
so that they could
prevent him from continuing the meeting ‘
for however long
they felt like’.
As he had apparently ‘
learnt his
lesson’
on 4 July 2011, when the informal request for a
caucus came again on 8 July 2011 he insisted that the request be
formally put as
a motion in compliance with rule 49 of the Rules of
Order. This rule permits the adjournment of Council for a specified
time,upon
the expiration of which the Speaker is compelled under rule
4 thereof to continue with the meeting,irrespective of whether all
members are present,provided thatthere is a quorum. Brummer is clear
that he required the ANC Councillors to adhere strictly to
the letter
of the Rules of Order. He contends that this was not an
overlytechnical approach since in his view they were going to
some
lengths to raise technicalities themselves and ‘
exploiting
loopholes like agreeing to a “brief adjournment” of 5
minutes and then taking 25 minutes in the knowledge
that nothing
could proceed without their presence’.
[28] Yet again the matter did not end
there. Mvimbi claims that notwithstanding that he had duly indicated
opposition to an urgent
motion introduced by Brummer in terms of rule
6 of the Rules of Order, Brummer treated the motion as unopposed in
terms of rule
14 thereof. When Mvimbi objected, Brummer refused to
consider his objection on the basis that he (i.e. Brummer) had
already moved
on to the next item of business and directed Mvimbi to
be quiet.
[29] Brummer claims that he did not
notice Mvimbi’s raised hand and that in the circumstances he
acted correctly by treating
the motion as unopposed and moving on to
the next item of business. (It should be mentioned that the motion in
question related
to the withdrawal of the Municipality’s
petition to the Supreme Court of Appeal against a High Court judgment
in a case between
the Municipality and Memory Booysen, the 8
th
respondent. Brummer now contends that inasmuch as it was subsequently
established that the Municipality’s petition to the
Supreme
Court of Appeal had by that date been dismissed, the manner in which
he dealt with the motion is irrelevant.)
[30] Mvimbi concedes that although he
has ‘
in certain instances’
conducted himself in a
manner inconsistent with the Rules of Order, his interactions cannot
be considered in isolation of the many
instances in which Brummer has
conducted himself in a manner completely inconsistent with the
obligation imposed upon a presiding
officer in a legislative
assembly, namely to be scrupulously impartial. And whilst the 1
st
to 6
th
respondents concede that they have not been
blameless in what they consider to be the cut and thrust of political
manoeuvering,
they contend that it is the conduct of Brummer himself
as Speaker of the Council that has been the source of most of the
disruptions
in its functioning. They say that Brummer has treated the
6 ANC Councillors in general and the leader of the ANC caucus,
Mvimbi,
in particular with a mixture of suspicion and contempt. They
argue that despite an undertaking furnished by Brummer on 7 July 2011
that until 13 July 2011 he would conduct himself in accordance with
the Rules of Order and execute his powers thereunder in a lawful
manner, during that period he declared a resolution to be unopposed
and insisted on moving on to the next agenda item – despite
the
fact that Mvimbi had raised his hand to indicate opposition. In so
doing, Brummer denied the ANC Councillors the right to debate
the
motion. They also say that Brummer’s conduct in the Council
Chamber was exceeded only by his ruthless campaign of vilification
conducted in the media between Council meetings. Whatever vestiges of
impartiality which might have remained were negated by his
press
statements.
[31] It is against this background
that the 1
st
to 6
th
respondents seek orders
declaring that:
[31.1] Brummer’s direction at
the meeting of the Council on 29 June 2011 that Mvimbi did not have
the right to address the
meeting was
ultra vires
the provisions
of rules 27, 30 and 31 of the Rules of Order as read with s 37(f) of
the Local Government: Municipal Structures Act
No 117 of 1998 (‘
the
Structures Act’
) and was accordingly unlawful and of no
effect;
[31.2] Brummer’s direction at
the Council meeting on 29 June 2011 that Mvimbi retire from the
Council Chamber was
ultra vires
rule 24(2) of the Rules of
Order as read with s 37(f) of the Structures Act and was accordingly
unlawful and of no effect;
[31.3] Brummer’s use ofprofanity
when addressing the Councillors at the Council meeting on 29 June
2011 constituted conduct
unbecoming of a member of the Council as
contemplated in rules 24(1)(f) and (g) of the Rules of Order; as also
a failure by Brummer
to maintain order during meetings and to conduct
Council meetings in accordance with the Rules of Order as provided
for inss 37(d)
and (f) of the Structures Act; and
[31.4] Brummer’s determination
at the Council meeting on 8 July 2011 that the urgent motion was an
unopposed matter and his
refusal of Mvimbi’s objection that the
urgent motion was indeed opposed were
ultra vires
the
provisions of rules 14 and 16 of the Rules of Order and s 37(f) of
the Structures Act and accordingly unlawful and of no force
and
effect.
[32] On 13 July 2011 Brummer withdrew
the relief sought against the 14
th
respondent. It was also
agreed between Brummer and the 1
st
to 6
th
respondents that the relief granted by Yekiso J on 7 July 2011 would
continue to operate as an interim interdict against the 1
st
to 12
th
respondents pending the return date, which was
scheduled for 8 August 2011 for hearing together with the relief
sought by Brummer
against the 13
th
respondent. In the
intervening period the 1
st
to 6
th
respondents
launched their counter-application, resulting in the matter being
further postponed to 7 September 2011.
[33] In an affidavit deposed to by
Brummer on the day before the hearing (in response to a notice served
on behalf of the 1
st
to 6
th
respondents in
terms of rule 35(12) of the rules of court) he annexed copies of his
requests to the MEC, Local Government dated
15 July 2011 and 3 August
2011 to investigate the conduct of the Councillors, as also the MEC’s
response dated 5 September
2011 which confirmed that an investigation
would be conducted. The requests were made by Brummer in terms of
item 14(4) of the
Code of Conduct for Councillors contained in
Schedule 1 to the Local Government: Municipal Systems Act No 32 of
2000 (“
the Systems Act”
) and was responded to by
the MEC on that basis.
[34] The MEC’s letter refers to
an investigation into the conduct of ‘
Councillors’
.
A ‘
Councillor’
is defined in the Systems Act as a
member of a municipal council. ‘
Speaker’
is not
defined, but s 54 of the Systems Act provides that the Code of
Conduct contained in Schedule 1 thereto applies to every
member of a
municipal council. And ‘
Speaker’
is defined in
rule 1 of the Rules of Order as the
member
elected as
chairperson of the Council or any other member acting as chairperson
of the Council.
[35] AlthoughBrummer’s requests
to the MEC pertain only to the conduct of Council members other than
himself it is unclear
from the MEC’s reply whether the
investigation will be limited to these Councillors or whether it will
also include Brummer.
[36] Brummer howeversubmitted in that
affidavit that in light of this development (i.e. the investigation)
it might be appropriate
for this court to grant the relief sought
against the 1
st
to 13
th
respondents‘
at
the very least until this investigation is completed’.
[37] Brummer changed his stance on the
second day of the hearing, during reply to argument presented on
behalf of the 1
st
to 6
th
and 13
th
respondents. Although persisting with his claims for costs and the
dismissal of the counter-application,Brummer sought amended
relief in
the following terms:
‘
1.
Subject
to the right to raise a point or points of order in terms of rule 41,
including that the chairperson of a Council meeting
departed from any
rule, including rule 24(1)(a) to (g) of the Rules of Order….
First
to Twelfth Respondents are directed to adhere to directions given by
the Applicant in terms of Rule 24
[until
the completion of the investigation instituted by the Western Cape
Minister of Local Government, Environment Affairs &
Development
Planning in terms of Item 14 (4) of Schedule 1 of the
Local
Government: Municipal Systems Act 32 of 2000
].
2.
Subject to sections
199(6) and (7) of the Constitution
, Thirteenth Respondent
is directed to assist the applicant or any other elected Chairperson
of the Council to enforce rule 24(2)
of the Rules of Order by
removing any member of the Council of the Municipality of Bitou from
a meeting if requested to do so by
the applicant or such
Chairperson.’
(emphasis supplied)
[38] Although the amendments
themselveswere not opposed by the 1
st
to 6
th
and
13
th
respondents, the amended relief itself was indeed
opposed by them, and they were thus given an opportunity to address
me thereon.
The arguments of the parties are considered below.
The relief sought by Brummer
against the 1
st
–
12
th
respondents
[39] Section 37 of the Structures Act
sets out the functions of a Speaker of a municipal council. The
Speaker
inter alia
presides at meetings of the Council and is
obligated to ensure that order is maintained during meetings. This
obligation includes
ensuring that there is compliance with the Code
of Conduct set out in Schedule 1 to the Systems Act and that council
meetings are
conducted in accordance with the Council’s Rules
of Order.
[40] Rule 24 of the Rules of Order
provides that:
‘
24.
Conduct
of members
If a member –
misbehaves, or
behaves in an unseemly manner, or
obstructs the business of a
meeting, or
challenges the ruling of the
chairperson on any point of order or ruling in terms of section
3(1), or
declines to withdraw any
expression when required to do so by the chairperson, or
indulges in tedious repetition or
unbecoming language, or
commits any breach of these rules,
the chairperson shall direct such
member to conduct himself or herself properly and, if speaking, to
discontinue his or her speech.
In the event of a persistent
disregard of the directions of the chairperson, the chairperson
shall direct such member to retire
from the place of meeting for the
remainder of the meeting and may, if necessary, cause him to be
removed therefrom.’
[41] Rule 41 of the Rules of Order
provides that:
‘
41.
Points
of order
A member may raise a point of order
to call attention to a departure from these rules by stating the
particular rule such member
relies on, whereupon such member shall
immediately be heard.’
[42] Rule 24 thus confers far-reaching
powers upon the chairperson of Council meetings (i.e. the Speaker) to
control the conduct
of Councillors at meetings and to have them
removed from meetings if they disregard his directions. The 1
st
to 6
th
respondents do not challenge the constitutional
validity of rule 24. The Rules of Order were in fact proposed by
Mvimbi on 31 July
2009 and the Council thereafter approved them as
being constitutionally compliant.
[43] However the 1
st
to 6
th
respondents contend that Brummer misconceives his powers as Speaker
and insists that he is entitled to conduct meetings in an
authoritarian and overly mechanical manner. They believe that this
approach is driven by his lack of impartiality towards them.
[44] Whilst Brummer concedes that the
Rules of Order must be interpreted in light of the Constitution of
South Africa, he submits
that ‘…
chairpersons or
persons placed in positions where they have to maintain the order in
an assembly do have autocratic rights and must
perforce act
accordingly to maintain order, especially in circumstances such as
arose between 29 June 2011, 1 July, 4 July and
8 July 2011 in our
council… I submit that in the same vein, being peremptory and
expecting prompt and unquestioning obedience
to directions is
acceptable behaviour for a person chairing a formal meeting and even
more so when faced with unruliness and disorderliness.’
[45] The 1
st
to 6
th
respondents argue that this attitude reflects a fundamental
misunderstanding of the role of Speaker. In the prevailing
constitutional
order which entrenches the right of free political
expression,elected representatives in Council are entitled to engage
in vigorous
legislative debate. The inevitable consequence will often
be a robust ‘
cut and thrust’
style which is starkly
contrasted by the mechanistic and authoritarian style championed by
Brummer. He himself concedes that the
Rules of Order are in various
respects open-ended and ambiguous and call for a purposive
interpretation, although he interprets
this to mean that his
directions under the Rules of Order must therefore be accepted
without argument, since he is the Speaker.
The 1
st
to 6
th
respondents say that this approach has resulted in Brummer behaving
in the manner complained of, employing vulgar language and
summarily
cutting deliberations short. And whilst the Speaker may exercise his
function
qua
presiding officer with a firm hand, his legal,
moral and political authority to do so is premised upon him remaining
scrupulously
impartial and non-partisan, which Brummer simply has not
been.
[46] It is trite that a final
interdict is granted in order to secure a permanent cessation of an
unlawful course of conduct or
state of affairs. For the grant of such
an order there are three requirements, all of which must be present:
[46.1] A clear right, which the
applicant has to prove on a balance of probabilities;
[46.2] An injury actually committed or
reasonably apprehended; and
[46.3] That there is no other
satisfactory remedy available to the applicant.
See:
Setlogelo v Setlogelo
1914
AD 221
at 227.
[47] An act of interference implies an
injury actually committed or reasonably apprehended. A reasonable
apprehension of injury
is one which a reasonable personmight
entertain on being faced with certain facts. An applicant for an
interdict is not required
to establish that, on a balance of
probabilities flowing from the undisputed facts, injury
will
follow; he only has to show that it is reasonable to apprehend that
injury will result. The test for apprehension is an objective
one.
This means that on the facts presented to the court it must decide
whether there is any basis for the entertainment of a reasonable
apprehension by the applicant: see
Minister of Law and Order v
Nordien
1987 (2) SA 894
(AD) and 896F-H.
[48] In my view Brummer has failed to
meet the test of establishing a clear right. He has fundamentally
misconceived his role as
Speaker in two important respects. The first
is that he is constitutionally bound to allow the members of the
Council to participate
in its proceedings in a manner that not only
allows parties and interests reflected within the Council to be
fairly represented,
but is one which is consistent with democracy:
see s 160(8) of the Constitution of the Republic of South Africa Act
108 of 1996
(‘
the Constitution’
). The second is
that core aspects of the Speaker’s functioning are regulated by
the common law which demands that the Speaker
be completely impartial
and non-partisan, both inside and outside the Council Chamber.
[49] Brummer’s first
misconception is self-evident. He has said in terms that he believes
that as Speaker he has autocratic
rights and that it is acceptable
behaviour for him to be peremptory and to expect prompt and
unquestioning obedience to his directions.
This attitude is
fundamentally at odds with the constitutional entitlement of members
of a Council meeting set out in s 160 (8)
of the Constitution. Simply
put, Brummer’s ‘
clear right’
cannot be
founded on autocracy but must be based on democracy and
constitutionality.This also clearly implies that any directions
given
by him must be lawful. To require that any direction given by the
Speaker must be slavishly adhered to by the member concerned
addresses neither the democratic constitutional entitlement of such
member nor the underlying principles of lawfulness and natural
justice. And the amended relief belatedly sought by Brummer is belied
by his interpretation of what he considers to be his ‘
clear
right’
as set out in the papers.
[50] As to the second misconception
the following is apposite. The institution of Speaker in South Africa
finds its origin at the
Parliament of Westminster, as to which the
leading authority is Erskine May:
Parliamentary Practice
(2004).
At page 6 May outlines the very broad powers of the Speaker in the
House of Commons, but emphasises that these powers carry
with them
distinctive and onerous responsibilities. He stresses that a Speaker
is required to be an impartial moderator and that
‘
Confidence
in the impartiality of the Speaker is an indispensible condition of
the successful working of procedure…’
.
[51] A recently retired Speaker of the
House of Commons echoes May when she writes:
‘
For the
past two centuries the House has expected the Speaker to abandon all
party loyalties and to be outside the battle in the
Chamber. If he is
to bring complete impartiality and fairness to his work, this
requirement is an absolute necessity … Our
democracy owes more
than words can say to the clash of ideas and the rough and tumble of
party political debate, but it also owes
an enormous amount to the
fact that the Speaker is completely impartial in the political
controversies.’
(Boothroyd,
The Role of the Speaker
in the 20
th
Century
Speech 1, The Role
of Government: a Liberal Approach - The Menzies Research Centre 1995
national lecture series, 6 June 1995.)
[52] In a similar vein another
authority writes:
‘
The
essential element of chairing any meeting is that the person in the
role of chair must ensure that the rules governing the conduct
of the
meeting are applied fairly to all participants. If a Presiding
Officer fails to do this, he or she cannot be regarded as
impartial –
even if his or her other dealings with members are exemplary.
Presiding Officers must apply the standing orders
fairly and equally
at all times.’
(Harris ‘
Question
time; impartial Speakers and dissent from rulings - some comments on
the House of Representatives’ experience’
, Democratic
Audit of Australia (2006).)
[53] In
Gauteng Provincial
Legislature v Kilianand Others
2001 (2) SA 68
(SCA) at 79D the
Supreme Court of Appeal has held that the Speaker ‘…
is
required by the duties of his office to exercise, and display, the
impartiality of a Judge’.
And the requirement that the
Speaker conduct himself fairly also flows from the rights of
political expression entrenched in the
Constitution.
[54] Brummer’s conduct during
the various meetings of the Council as outlined above raises serious
concern about his impartiality
in the role of Speaker. And this
concern is deepened by a series of press statements released
byBrummer to regional and national
media outlets, setting out what he
considered to be the chronology of events. Without going into detail,
certain material allegations
made by Brummer therein conflict with
the recorded transcriptions of the Council meetings which were
subsequently filed of record.
[55] Notably, one of Brummer’s
press statements contained the allegation that when he directed
Mvimbi to be seated at the
meeting on 29 June 2011 the latter
‘
proceeded to shout
[him]
down, became abusive and
threatened a member of the community’
. Further, according
to one press statement, Brummer was bound to direct Mvimbi’s
expulsion from the meeting in light of his
apparently
persistent
‘
bad
behaviour’
. Brummer then went even further and
characterised Mvimbi’s alleged conduct as ‘
an attack
on the Constitution’
. In my view Mvimbi’s reaction to
Brummer’s instruction for him to be seated can hardly be
regarded as behaviour which
constituted ‘
a persistent
disregard of the directions of the chairperson’
as referred
to in rule 24(2) of the Rules of Order.
[56] Brummer’s response is
simply to take issue with Mvimbi’s allegations as to when
exactly and why the press statementswere
released. He also claims
thatone statement given to the media was merely‘
a narrative
which I prepared, which I had made available to a journalist who
wanted more detailed information’.
[57] What Brummer pertinently fails to
address is whether his conduct was consistent with his common law
obligations as Speaker.
It is difficult to conclude from the media
statements that Brummer was behaving in a manner consistent with that
of an impartial
moderator, that the object of his media statementswas
to conveyhis impartiality and that such impartiality would be
recognised
by the readers of those statements as such.
[58] Whilst he attempts to excuse his
behaviour during the Council meetings by placing the blame on Mvimbi
and his fellow ANC councillors,
Brummer himself fails to take any
responsibility for that behaviour, asserting rather that he was
entitled to act in the autocratic
manner in which he did. It is of
concern that in a Council wracked historically by dissent Brummer as
the Speaker seems to lack
insight for the necessity to tread
particularly carefully in discharging his powers and functions,
irrespective of whether he considers
that he was treated poorly by
the ANC councillors prior to the elections of May 2011. And whilst
Brummer believes that his use
of profanity during a Council meeting
is excusable because it was used in an in-committee meeting where the
public was not present
and apparently cannot be regarded as
unbecoming language in this day and age, the fact of the matter is
that he did not conduct
himself in a manner befitting that of a
member, let alone the Speaker. His profanity was clearly directed at
Mvimbi and his fellow
ANC Councillors. It does not constitute conduct
which lends itself to the conclusion that Brummer was behaving in an
impartial
manner.
[59] It is for these reasons that I
find that Brummer has failed to overcome the hurdle of establishing a
clear right. And since
this is my finding it must follow that it is
not necessary to consider the remaining two prerequisites, since all
three must be
present for final relief to be granted.
The relief sought by Brummer
against the 13
th
respondent
[60] Initially Brummer sought a
blanket order against the 13
th
respondent, directing it to
assist him in enforcing rule 24(2) of the Rules of Order by removing
any member of the Council from
a meeting if requested to do so by
him. The amended relief belatedly sought by Brummer against the 13
th
respondent now includes the proviso that the latter shall only be
obliged to adhere to such direction(s) if they do not offend
against
ss 199(6) and (7) of the Constitution.
[61] Section 199(6) provides that no
member of any security service may obey a manifestly illegal order.
Section 199(7) provides
that neither the security services nor any of
their members in the performance of their functions shall: (a)
prejudice a political
party interest that is legitimate in terms of
the Constitution; or (b) further any interest of a political party in
a partisan
manner.
[62] Save for the security services
established in terms of s 199(1) of the Constitution such services
may only be established in
terms of national legislation and must be
structured and regulated in terms thereof. The 13
th
respondent has been established unders 64A of the South African
Police Service Act 68 of 1995 (‘
the Police Act’)
.
In
South African Municipal Workers Union v City of Cape Town and
Others
2004 (1) SA 548
(SCA) at 556E-F the Supreme Court of
Appeal found that ‘
There is in law only one way in which a
municipal police service can be established …: that is by
following the procedure
set out in s 64A of the Police Act.’
The
13
th
respondent is thus a security service for purposes of
ss 199(6) and (7) of the Constitution.
[63] Brummer argues that he has a
‘
clear right’
to insist that the 13
th
respondent comes to his aid when he instructs it to remove a member
of the Council from the Chamber. Although conceding that rule
24(2)
of the Rules of Order is silent on how a Speaker may cause a member
to be removed from the Chamber, he contends that by virtue
of the
employment relationship which apparently exists between the
municipality and its law enforcement unit, the 13
th
respondent has no discretion to decide whether a direction from the
Speaker is lawful or not.
[64] It is the Council which appoints
the executive head of the law enforcement unit. The executive head is
responsible to that
Council for the functioning of the unit: see ss
64B, 64C(1) and 64D of the Police Act. Section 64C(2)(a) provides
that the executive
head shall be responsible for maintaining an
impartial, accountable, transparent and efficient municipal police
service. Section
64F(1) specifically provides that ‘
Subject
to the Constitution of the Republic of South Africa…and with
due regard to the fundamental rights of every person,
a member of a
municipal police service may exercise such powers and shall perform
such duties as are by law conferred upon or assigned
to a member of a
municipal police service’.
[65] Brummer has not alleged that the
13
th
respondent violated any legislative requirement in
failing to come to his assistance in removing Mvimbi from the Council
Chamber.
He appears to be of the view however that it is
he
who shall decide whether any instruction issued by him to the 13
th
respondent for this purpose is lawful. This approach not only
conflicts with ss 64C(2)(a) and 64F(1) of the Police Act but also
with ss 199(6) and (7) of the Constitution.
[66] The 13
th
respondent
contends that it would simply have been illegal for it to have
removed on Brummer’s instruction a member who was
legally
entitled to participate in a meeting of Council. If the 13
th
respondent were ordered by this court to act merely on the
instruction of the Speaker it would reduce the former to a personal
law enforcement unit. This in turn would not only frustrate the very
purpose of ss 199(6) and (7) of the Constitution, but would
also
curtail legitimate democratic debate within Council.
[67] The 13
th
respondent
also argues that the relief sought by Brummer would essentially
violate its legal duty to conduct law enforcement without
fear,
favour or prejudice to any person or political party. It would render
the 13
th
respondent a tool at Brummer’s disposal to
utilise in regulating meetings. Accordingly the relief, if granted,
would essentially
replace the statutory basis upon which the 13
th
respondent carries out its duties.It would result in this court
conferring upon Brummer, in his sole discretion, the right to invoke
the most invasive manner of enforcing a perceived transgression by a
Council member. And if this is not Brummer’s intention
then
there is no need for this court to order the 13
th
respondent to comply with its legal obligations in circumstances in
which it cannot validly be accused of having acted unlawfully
in the
past.
[68] In my view, the 13
th
respondent is both legally obliged and duty bound to properly
exercise its discretion before simply carrying out any instruction
given by the Speaker. This discretion involves the consideration of
whether the instruction so issued is manifestly illegal, may
prejudice a political party interest that is legitimate in terms of
the Constitution, might further any interest of a political
party in
a partisan manner, or might result in a failure by it to maintain an
impartial, accountable, transparent and efficient
law enforcement
unit. And set against a backdrop where Brummer already believes that
not only is he entitled to act in an autocratic
manner and require
prompt and unquestioning obedience from Council members, but that it
is he who is entitled to decide whether
an instruction so issued is
lawful, to arm him with an order in the terms sought would simply
have the effect of undermining the
very Constitutional imperatives to
which the 13
th
respondent is obliged to adhere. Brummer
simply does not have such a right.
[69] I thus similarly find that
Brummer has not established a ‘
clear right’
for
purposes of final relief against the 13
th
respondent.
Again therefore it is thus not necessary to consider the other two
prerequisites for the grant of a final interdict.
The declaratory relief sought by
the 1
st
to 6
th
respondents
[70] The relief sought by the 1
st
to 6
th
respondents is to have this court declare that
Brummer’s conduct in four specific instances fell foul of the
relevant legislative
provisions and/or the Rules of Order. The four
instances of conduct complained of are: (a) Brummer’s
determination at the
Council meeting on 29 June 2011 that Mvimbi did
not have the right to address the meeting; (b) Brummer’s
direction thereafter
(but during the same meeting)that Mvimbi be
expelled from the Council Chamber; (c) Brummer’s use of
profanity when addressing
the councillors at the Council meeting on
29 June 2011; and (d) Brummer’s determination at the Council
meeting on 8 July
2011 that an urgent motion was unopposed coupled
with his refusal of Mvimbi’s objection that it was indeed
opposed.
[71] It is trite that a court has a
discretion in applications for declaratory relief. In
J T
Publishing (Pty) Ltd v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) at 525A-B the Constitutional Court dealt with
this discretion as follows:
‘…
Adeclaratory
order is a discretionary remedy, in the sense that the claim lodged
by an interested party for such an order does not
in itself oblige
the Court handling the matter to respond to the question which it
poses, even when that looks like being capable
of a ready answer. A
corollary is the judicial policy governing the discretion thus vested
in the Courts, a well-established and
uniformly observed policy which
directs them not to exercise it in favour of deciding points that are
merely abstract, academic
or hypothetical ones.’
[72] Brummer submits that this court
should exercise its discretion against the granting of the orders
sought because (in the words
of the Constitutional Court in the
J T
Publishing
case at 526E-F): ‘
There can hardly be a
clearer instance of issues that are wholly academic, of issues
exciting no interest but a historical one…’.
Certain
directions made by Brummer are attacked but no consequential relief
is sought. More particularly, no resolutions or decisions
of the
Council taken at any meeting are challenged. The setting aside of the
directions and determinations complained of can have
no practical
effect.
[73] Brummer contends that two of the
directions were given at a meeting (on 29 June 2011) which was
disrupted and had to be
adjourned. One was given at a meeting (on 8
July 2011) where decisions were taken by the Council but none of
these decisions are
challenged. Put differently, it is not contended
that Brummer’s determinations and directions‘
poisoned’
any of the decisions taken. The invalidation of the directions and
determinations would be a ‘
thunderless bolt’
or
‘
brutem fulmen’
.
[74] Brummer submits that one cannot
attack a ruling which forms part of a decision making process without
contending that it had
a bearing on the result and without
challenging the decision taken. In any event Brummer has explained
that he has no intention
of enforcing the past directions complained
of. Those directions were given in a particular set of circumstances
and cannot be
‘
repeated’
at another meeting.
[75] The first complaint is that
Brummer did not allow Mvimbi to speak on the COPE letter on 29 June
2011. Brummer contends that
this is a ‘
ridiculous attack’
given that Mvimbi was later (on 4 July 2011) given the opportunity to
speak on the issue. Further, the agenda did not allow an
ordinary
councillor to make a ‘
statement’.
Only the
Speaker, the Executive Mayor and the Municipal Manager could make
statements and the agenda item concerned did not permit
debate. It
merely provided room for the officials concerned to communicate
matters of interest to the councillors. Brummer points
out that it
was almost a month prior to the launching of the counter-application
that he retracted his direction and allowed Mvimbi
to speak. Brummer
advances the same argument on the second act complained of, namely
his direction expelling Mvimbi from the Council
Chamber.
[76] In answer the 1
st
to
6
th
respondents contend that it is self-serving of Brummer
to artificially characterise the introduction of the COPE letter by
the
Municipal Manager as a ‘
statement’
in order to
justify his preclusion of debate in that regard. The COPE letter
raised a contentious matter,
viz
. whether the purported COPE
councillor was entitled to take up a seat in Council. The matter
raised by the COPE letter cannot be
classified as raising a purely
procedural issue or being of a purely informal nature.
[77] Rule 5 of the Rules of Order
deals with the Order of Business of meetings of the Council and sets
out the agenda to be followed.
The 1
st
to 6
th
respondents point out that this rule does not allow for ‘
statements
and communications’
by the Municipal Manager, but only by
the Executive Mayor, his Deputy and the Speaker. They contend that
under ‘
statements and communications’
one may
include the welcome by the Speaker to any person invited to address
the meeting, the making of brief preparatory remarks,
expressions of
congratulations or condolence, the conveying of other matters of
personal or general interest not forming part of
the regular business
of the meeting, and the communication of purely formal matters: see
Lewin
The Law, Procedure and Conduct of Meetings in South Africa
(1966) at pages 36-37 and Kilpin
Parliamentary Procedure in South
Africa
(2
nd
Ed) at page 107.
[78] These respondents argue that this
interpretation of ‘
statements and communications’
is underscored by rule 5(1)(i) which makes express provision for the
submission of ‘
urgent matters’
by the Municipal
Manager. Given the latter’s status as head of municipal
administration it is understandable that the Rules
of Order would
allow him/her to submit to Council matters requiring its immediate
attention. They contend that Brummer not only
failed to ascertain the
sense of the meeting on the matter presented in the COPE letter, but
unilaterally resolved how the issue
concerning the COPE councillor’s
election should be dealt with. The COPE letter raised a matter of
substance, not a matter
of procedure, and Brummer should have dealt
with it in accordance with rules 27 and 30-31 of the Rules of Order.
In my view the
provisions of rule 30(1) are of special application
and are as follows:
‘
30.
Right to Speak
A member may only speak once---
to the matter before the council;
to any amendments to the matter
before council;
to a matter or an amendment
proposed or to be proposed by himself or herself;
to a point of order or a question
of privilege;
unless authorised by the Speaker or
as provided for in terms of these rules.’
[79] It is the duty of a Speaker to
take care that proceedings are conducted in a proper manner and that
the sense of the meeting
is properly ascertained regarding any issue
properly before the meeting: see Lewin (
supra
) at page 52. The
Speaker must exercise special caution in the case of new and
unexpected subjects,
viz.
matters that were not included in
the agenda, since members would not have received advance notice
thereof. According to Lewin at
page 48:
‘
If the
new issue is relevant and of obvious interest, it would be unwise of
[the
Speaker]
to
prohibit discussion unless he has a very special reason for doing so,
and he should explain his reasons… If the presiding
officer is
in any doubt about the propriety or advisability of allowing debate
of a subject that has been unexpectedly introduced,
he should ask if
any members are opposed to the discussion proceeding, not whether the
meeting as a whole approves. On the response
to his question, he must
decide whether to allow, disallow or defer.’
[80] It is accordingly submitted by
the 1
st
to 6
th
respondents that Brummer
exceeded his powers as Speaker by unilaterally determining the issue
placed before Council by the Municipal
Manager. His determination as
to how the Council should deal with the issues raised in the COPE
letter went beyond the regulation
and control of the proceedings of
the meeting. Further, Brummer allowed petty party politics to cloud
his judgment when he prematurely
directed Mvimbi to take his seat
which was compounded by his arbitrary decision to expel Mvimbi from
the Chamber under rule 24(2)
of the Rules of Order when Mvimbi had
not, objectively, displayed a
persistent
disregard of his
(i.e. Brummer’s) directions.
[81] As to the third act complained
of, namely Brummer’s use of profanity in the meeting of 29 June
2011, the latter submits
that when viewed in its proper context, the
complaint is so trivial that it should be dismissed as
de minimis
non curat lex
. Brummer also contends that rule 24 of the Rules of
Order confers certain powers on the Speaker to make rulings. It does
not
allow a court to find that a member (or the Speaker) has
contravened the rule.
[82] In my view Brummer overlooks the
fact that, as indicated above, s 54 of the Systems Act provides that
the Code of Conduct contained
in Schedule 1 thereto applies to every
member of a municipal council. And ‘
Speaker’
is
defined in rule 1 of the Rules of Order as the
member
elected
as chairperson of the Council (or any other member acting as
chairperson thereof). Item 2(b) of Schedule 1 imposes an obligation
on a Council member to act at all times in the best interests of the
municipality ‘
and in such a way that the credibility and
integrity of the municipality are not compromised’
. By
parity of reasoning rule 24 of the Rules of Order, which is
specifically directed at the conduct of members of a Council, must
surely apply to the Speaker as well. To contend otherwise would be to
place the Speaker in a position in which he or she is not
accountable
at all for his/her conduct. And there can be little doubt that by
using the term ‘
pissed off’
Brummer used
unbecoming language as envisaged in rule 24(1)(b) of the Rules of
Order.
[83] As to the fourth complaint,
namely Brummer’s determination at the Council meeting on 8 July
2011 that an urgent motion
was unopposed, Brummer’s answer is
that he did not see Mvimbi indicating his opposition. When it was
brought to his attention
he had already moved on to the next agenda
item and there was nothing he could do about it. The matter can be
corrected at the
next Council meeting by amending the minutes to
reflect that the motion in question was indeed opposed.
[84] But the 1
st
to 6
th
respondents argue that this is not good enough. They say that not
only do Brummer’s contentions exhibit an overly-mechanical
application of the Rules of Order, they also show that he fails to
appreciate the real prejudice
viz
his prohibition of debate on
the motion. In effect, he made it impossible for the minority to
engage in debate with the coalition
councillors and to express a
different viewpoint and he should have acted in accordance with the
provisions of rules 14 and 16
of the Rules of Order. Rule 14 provides
that whenever Council is called upon to consider a matter before it
and there is no opposition
from any member, a unanimous vote shall be
recorded in the minutes. Rule 16 sets out the manner of voting and
includes that the
Speaker must put every opposed motion to the vote
by calling upon the members to indicate by a show of hands whether
they are for
such motion or against it, whereupon the Speaker must
declare the result of the vote.
[85] Brummer characterises the relief
sought in the counter-application as moot. However, the 1
st
to 6
th
respondents say that there is ample authority that
declaratory ‘
forward looking’
relief is
appropriate where the conduct complained of gives rise to a
reasonable apprehension of repetition. They contend that
in any event
the relief sought is not moot. The papers show that Brummer believes
that he has licence to behave in an autocratic
fashion and to ride
roughshod over their right of political expression. By his own
account he will continue to conduct himself
in an imperious and
partisan fashion.
[86] The 1
st
to 6
th
respondents say that more particularly, on Brummer’s own
version, he has allowed his decision making at Council meetings
to be
dictated by his misguided perceptions of
mala fides
on their
part. In other words, because he believed that these respondents had
‘
deliberately sought to disrupt’
previous Council
meetings, he rejected subsequent objections and requests in a
knee-jerk fashion, insisting also on a pedantic
application of the
Rules of Order. In the absence of the declaratory relief sought
Brummer will continue to deny these respondents
a fair and reasonable
opportunity to participate in the business of Council. They also
submit that even if this court finds that
the declaratory relief
sought is moot, it nonetheless has the discretion to grant such
relief in the interests of justice.
[87] In
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1
(CC) at 18H-I the court said that ‘
A case
is moot and therefore not justiciable if it no longer presents an
existing or live controversy which should exist if the
court is to
avoid giving advisory opinions on abstract propositions of law.’
[88] I am satisfied that the
declaratory relief sought by the 1
st
to 6
th
respondents is predicated on an ‘
existing or live
controversy’
. As already noted Brummer maintains that he is
entitled to apply the Rules of Order in a mechanical and autocratic
manner. Moreover
he has descended into the political fray. As Speaker
he has issued a series of press statements that give a one-sided and
partisan
account of events. His
animus
against these
respondents has clouded his judgment and has impaired his
impartiality as Speaker. The probabilities are that he will
continue
to exercise his powers as Speaker in this manner, thereby infringing
the constitutional right of the 1
st
to 6
th
respondents to participate in the business of the Council and to
enjoy free political expression at its meetings.
[89] The Constitutional Court has
repeatedly affirmed that courts have no discretion when a finding is
made that law or conduct
is or has been inconsistent with the
Constitution; they
must
declare it to be invalid in terms of s
172(1)(a) thereof, whereafter they may turn to considering what
relief is ‘
just and equitable’
in terms of
s 172(1)(b).
[90] The decision in
Parents
Committee of Namibia and Others v Nujoma and Others
1990 (1) SA
873
(SWA) underscores that a declarator unaccompanied by any other
relief may serve a purpose that goes to the heart of a court’s
role in a constitutional democracy, even though it is not susceptible
to enforcement. This case concerned an application in which
both a
declarator and an order were sought directing the release of certain
Namibian citizens being held as political prisoners
at SWAPO
detention camps in Angola. The court rejected the argument that no
relief should be granted because it would be powerless
to enforce its
order for the release of the detainees. Although the court was not
prepared to order the release of the detainees
because such an order
would be unenforceable, it held that it did have jurisdiction to
issue ‘
A declaratory order to the effect that the five
detainees are being unlawfully detained and are entitled to be
released’
(at 892G-I).
[91] In
Mohammed and Another v
President of the Republic of South Africa and Others
(
Society
for the Abolition of the Death Penalty in South Africa and Another
intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC) the fact that the declarator sought
might in a literal sense be ‘
futile’
did not stay
the hand of the court from issuing the declarator it deemed necessary
in order to vindicate the rights at issue. In
that case the first
applicant had been illegally removed from South Africa by the FBI
with the collaboration of South African authoritiesto
face trial in
the United States. Rejecting assertions by the government that no
relief was indicated because the first applicant
was already in US
custody, the Constitutional Court issued a declarator affirming that
the conduct of the state in achieving his
de facto
deportation
was contrary to the Constitution: ‘
Quite apart from the
particular interest of the applicants in the case, there are
important issues of legality and policy involved
and it is necessary
that we say plainly what our conclusions as to those issues are’
(at 922B).
[92] In
Rail Commuters Action Group
and Others v Transnet Limited t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA
359
(CC)the Constitutional Court considered declaratory relief in the
following terms:
‘
A
declaratory order is a flexible remedy which can assist in clarifying
legal and constitutional obligations in a manner which promotes
the
protection and enforcement of our Constitution and its values…
It should also be borne in mind that declaratory relief
is of
particular value in a constitutional democracy which enables courts
to declare the law on the one hand, but leave to the
other arms of
government, the executive and legislature, the decision as to how
best the law, once stated, should be observed’
(at 410F).
[93] Having found that the state had
failed to fulfil its constitutional duty to protect individuals using
a commuter train service,
the court in that case preferred to issue a
simple declaration of the state’s obligations and declined to
affirm the interdict
grantedby the court
a quo.
[94] Having given careful
consideration to the instances of conduct complained of, the
conclusion which I have reached is that Brummer’s
directions in
those instances were indeed
ultra vires
the Rules of Order and
s 37(f) of the Structures Act and are accordingly unlawful and of no
effect. I also find that Brummer’s
use of profanity at the
meeting on 29 June 2011 constituted unbecoming language as
contemplated in rule 24(1)(f) of the Rules of
Order. I am thus
obliged to declare that Brummer’s conduct in these instances
was inconsistent with the Constitution as provided
in s 172(1)(a)
thereof.
[95] However, it is my view that it
would not be just and equitable to order that Brummer must bear the
costs of the counter-application.
Mvimbi has himself conceded that he
has in certain instances conducted himself in a manner inconsistent
with the Rules of Order.
It is also apparent from the papers that
Mvimbi has probably, at certain times, himself‘
stoked the
fire’.
It is not possible from the papers to determine
precisely which of the other ANC councillors have themselves played a
role, but
in my view it would be artificial in the particular
circumstances of this matter to completely discount that possibility.
[96] It seems to me that the time has
arrived for all of the Council members to move beyond the in-fighting
which is so clearly
prevalent and to rather focus on fulfilling in
good faith the mandate conferred on them by their electorate, which
is to serve
their constituents in a manner befitting our
constitutional democracy in a spirit of co-operative governance. To
my mind, ordering
Brummer to bear the costs of the
counter-application may well only serve to perpetuate the current
conflict.
Conclusion
[97] In the result I make the
following orders:
(a) The
rule nisi
issued on
13 July 2011 against the 1
st
to 13
th
respondents is discharged with costs, such costs to include the costs
of the two counsel appointed by the 1
st
to 6
th
respondents and counsel appointed by the 13
th
respondent.
(b) It is declared that the
applicant’s direction at the meeting of the Bitou Municipal
Council(‘
the Council’
) on Wednesday, 29 June 2011
that the 1
st
respondent did not have the right to address
the meeting, was
ultra vires
the provisions of rule 30(1) of
the Council’s Rules of Order regulating the conduct of meetings
of the Council published in
Western Cape Provincial Gazette no 6689
of 22 January 2010 (‘
the Rules of Order’
) and
s 37(f) of the Local Government: Municipal Structures Act, 117 of
1998 (‘
the Structures Act’
) and accordingly
unlawful and of no effect.
(c) It is declared that the
applicant’s direction at the Council meeting on Wednesday, 29
June 2011 that the 1
st
respondent retire from the Council
Chamber was
ultra vires
rule 24(2) of the Rules of Order and s
37(f) of the Structures Act and accordingly unlawful and of no
effect.
(d) It is declared that the
applicant’s use of profanity when addressing the Councillors at
the Council meeting on 29 June
2011 constituted unbecoming language
as contemplated in rule 24(1)(f) of the Rules of Order.
(e) It is declared that the
applicant’s determination at the Council meeting on Friday, 8
July 2011 that the urgent motion
regarding Resolution No C/1/04/06/11
(file ref 13/5/49) (‘
the urgent motion’
) was an
unopposed matter coupled with his refusal of 1
st
respondent’s objection that the urgent motion was indeed
opposed were
ultra vires
the provisions of rules 14 and 16 of
the Rules of Order and s 37(f) of the Structures Act and
accordingly unlawful and of
no effect.
(f) In respect of the
counter-application of the 1
st
to 6
th
respondents, there shall be no order as to costs.
J I CLOETE