Democratic Alliance and Others v Oudtshoorn Municipality and Others; In Re: Democratic Alliance and Another v Oudtshoorn Municipality and Others (3517/2014 , 8813/2014) [2014] ZAWCHC 132 (27 August 2014)

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[2014] ZAWCHC 132
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Democratic Alliance and Others v Oudtshoorn Municipality and Others; In Re: Democratic Alliance and Another v Oudtshoorn Municipality and Others (3517/2014 , 8813/2014) [2014] ZAWCHC 132 (27 August 2014)

THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 3517/2014
In
the matter between:
THE
DEMOCRATIC
ALLIANCE
.......................................................................
FIRST
APPLICANT
CONGRESS
OF THE
PEOPLE
......................................................................
SECOND
APPLICANT
JULIA
LE
ROUX
..................................................................................................
THIRD
APPLICANT
PIERRE
NEL
....................................................................................................
FOURTH
APPLICANT
DIANE
DE
JAGER
...............................................................................................
FIFTH
APPLICANT
RYK
RAYMOND
WILDSCHUT
.........................................................................
SIXTH
APPLICANT
DANIE
JOHAN
FOURIE
...........................................................................
SEVENTH
APPPLICANT
EWA
FORTUIN
.................................................................................................
EIGHTH
APPLICANT
CHRISTIAAN
DANIEL
MACPHERSON
.........................................................
NINTH
APPLICANT
FELICITY
MAGXAKA
......................................................................................
TENTH
APPLICANT
VERNATTI
VAN DER
WESTHUIZEN
....................................................
ELEVENTH
APPLICANT
BERNADUS
VAN
WYK
...............................................................................
TWELFTH
APPLICANT
JOHN
MAXIM
........................................................................................
THIRTEENTH
APPLICANT
and
OUDTSHOORN
MUNICIPALITY
..................................................................
FIRST
RESPONDENT
VLANCIO MARDEOK
DONSON N.O.
…................................................
SECOND
RESPONDENT
NONDUMISA
GUNGULUZA N.O.
…...........................................................
THIRD
RESPONDENT
CHARLES
WAGENAAR N.O.
…..............................................................
FOURTH
RESPONDENT
THE
ACTING MUNICIPAL MANAGER,
OUDTSHOORN
MUNICIPALITY
.................................................................
FIFTH
RESPONDENT
THE
MINISTER FOR LOCAL
GOVERNMENT,
ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT
PLANNING,
WESTERN
CAPE
.....................................................................
SIXTH
RESPONDENT
THE
INDEPENDENT ELECTORAL
COMMISSION
..............................................................................................
EIGHTH
RESPONDENT
THE
MINISTER FOR CO-OPERATIVE
GOVERNANCE
& TRADITIONAL
AFFAIRS
............................................
NINTH
RESPONDENT
And
in the matter between
Case
NO: 8813/2014
THE
DEMOCRATIC
ALLIANCE
.......................................................................
FIRST
APPLICANT
JURIE
HARMSE
..............................................................................................
SECOND
APPLICANT
and
OUDTSHOORN
MUNICIPALITY
..................................................................
FIRST
RESPONDENT
VLANCIO
MARDEOK DONSON
N.O
.....................................................
SECOND
RESPONDENT
NONDUMISA
GUNGULUZA N.O.
…...........................................................
THIRD
RESPONDENT
CHARLES
WAGENAAR N.O.
…..............................................................
FOURTH
RESPONDENT
THE
ACTING MUNICIPAL MANAGER,
OUDTSHOORN
LOCAL
MUNICIPALITY
................................................
FIFTH
RESPPONDENT
THE
SPEAKER OF THE COUNCIL OF THE
OUDTSHOORN
MUNICIPALITY
.................................................................
SIXTH
RESPONDENT
THE
MINISTER FOR LOCAL
GOVERNMENT,
ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT
PLANNING,
WESTERN
CAPE
...............................................................
SEVENTH
RESPONDENT
THE
INDEPENDENT ELECTORAL
COMMISSION
..............................................................................................
EIGHTH
RESPONDENT
THE
MINISTER FOR CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
..........................................................................................................
NINTH
RESPONDENT
Coram:
ROGERS J
Heard:
4 & 5 AUGUST 2014
Delivered:
27 AUGUST 2014
JUDGMENT
ROGERS
J:
Introduction
[1]
These two applications, which were by
agreement heard together, concern the removal of councillors of the
Oudtshoorn Municipality
for alleged absence from meetings on three
successive occasions. The political context is a delicate balance of
power between coalitions
led by the African National Congress (‘the
ANC’) and the Democratic Alliance (‘the DA’)
respectively. The
removed councillors are from the DA coalition. For
the sake of brevity I shall on occasion refer to these coalitions
simply as
the ANC and the DA.
[2]
In the first case the applicants are the
DA, its coalition partner the Congress of the People (‘COPE’)
and 11 ‘removed’
DA coalition councillors. In the second
case the applicants are the DA and a 12
th
‘removed’ DA councillor. The first to sixth respondents
in each case are the Oudtshoorn Municipality (the first respondent),

three of its councillors, all being members of the ANC coalition, in
their capacities as the members of the disciplinary committee
to be
mentioned hereunder (the second to fourth respondents), the Acting
Municipal Manager (the fifth respondent) and the council’s

speaker, also an ANC coalition councillor (the sixth respondent). For
convenience I shall refer to them collectively as ‘the

respondents’. The seventh respondent in each case is the
Minister for Local Government, Environmental Affairs and Development

Planning, Western Cape (‘the MEC’). The eighth respondent
in each case is the Independent Electoral Commission (‘the

IEC’) and the ninth respondent the national Minister for
Co-operative Governance and Traditional Affairs (‘the
Minister’).
[3]
It is convenient at the outset to make
reference to certain provisions of the Local Government: Municipal
Structures Act 117 of
1998 (‘the Structures Act’), the
Local Government: Municipal Systems Act 32 of 1998 (‘the
Systems Act’)
and certain instruments adopted by the
Municipality.
[4]
Section 27 of the Structures Act provides
that a councillor vacates office during a term of office if he or she
inter alia
contravenes
a provision of the Code of Conduct for Councillors set out in
Schedule 1 of the Systems Act and is removed from office
in terms of
the Code.
[5]
Section 54 of the Systems Act states that
the Code of Conduct for Councillors contained in Schedule 1 applies
to every member of
a municipal council. One of the issues in this
case is the inter-relationship between items 4 and 14 of the Code.
[6]
Item 3 of the Code deals with attendance at
meetings. It provides that a councillor must attend each meeting of
the council and
of a committee of which he or she is a member except
when ‘leave of absence has been granted in terms of an
applicable law
or as determined by the rules and orders of the
council’ or when the councillor is required in terms of the
Code to withdraw
from the meeting.
[7]
Item 4 of the Code, which is headed
‘Sanctions for non-attendance at meetings’, reads thus:
‘
(1)
A municipal council may impose a fine as determined by the standing
rules and orders of the municipal council on a councillor
for:
(a) not attending a
meeting which that councillor is required to attend in terms of item
3; or
(b)failing to remain
in attendance at such meeting.
(2)A councillor who
is absent from three or more consecutive meetings of a municipal
council, or from three or more consecutive
meetings of a committee,
which that councillor is required to attend in terms of item 3, must
be removed from office as a councillor.
(3)Proceedings for
the imposition of a fine or the removal of a councillor must be
conducted in accordance with a uniform standing
procedure which each
municipal council must adopt for the purposes of this item. The
uniform standing procedure must comply with
the rules of natural
justice.’
[8]
Items 13(1) and (3) provide as follows:
‘
(1)
If the chairperson of a municipal council, on reasonable suspicion,
is of the opinion that a provision of this Code has been
breached,
the chairperson must –
(a) authorise an
investigation of the facts and circumstances of the alleged breach;
(b)give the
councillor a reasonable opportunity to reply in writing regarding the
alleged breach; and
(c) report the
matter to a meeting of the municipal council after paragraphs (a) and
(b) have been complied with.
(2)….
(3)The chairperson
must report the outcome of the investigation to the MEC for local
government in the province concerned.
(4)…’
[9]
Item 14 of the Code, which is headed
‘Breaches of Code’, should be quoted in full given its
importance in this matter:
‘
(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 –
(a) issue a formal
warning to the councillor;
(b) reprimand the
councillor;
(c) request the MEC
for local government in the province to suspend the councillor for a
period;
(d)fine the
councillor; and
(e) request the MEC
to remove the councillor from office.
(3)(a)Any councillor
who has been warned, reprimanded or fined in terms of paragraph (a),
(b) or (d) of subitem (2) may within 14
days of having been notified
of the decision of the council appeal to the MEC for local government
in writing setting out the reasons
on which the appeal is based.
(b) A copy of the
appeal must be provided to the council.
(c) The council
may within 14 days of receipt of the appeal referred to in paragraph
(b) make any representation pertaining
to the appeal to the MEC for
local government in writing.
(d) The MEC for
local government may, after having considered the appeal, confirm,
set aside or vary the decision of the council
and inform the
councillor and the council of the outcome of the appeal.
(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 subitem (2)
if a municipal council does not conduct an
investigation contemplated
in subitem (1) and the MEC for local government considers it
necessary.
(5) The Commissions
Act, 1947 (Act No. 8 of 1947), or, where appropriate, applicable
provincial legislation, may be applied to an
investigation in terms
of subitem (4).
(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.’
[10]
The Oudtshoorn Municipality has adopted
‘Rules of Order Regulating the Conduct of Meetings of the
Council’ (‘the
Rules’). Rule 9 deals with
attendance at meetings. Rule 9(1) states that every member attending
a meeting of the council
must sign his or her name in the register
for such purpose. Rule 9(2) requires a member to attend each meeting
except when leave
of absence has been granted in terms of Rule 10 or
the member is required to withdraw in terms of law. Rule 10 states:
‘
A
member who wishes to absent himself or herself from meetings must
before so absenting himself or herself, obtain leave of absence
from
the Council, provided that the speaker, on good cause, may grant
leave of absence to a member who has been prevented by special

circumstances from obtaining leave of absence from the Council.’
[11]
Rule 11 sets out sanctions for
non-attendance. In terms of Rules 11(1) to (4) a member who is absent
without leave may, after investigation
by a committee elected by the
council, be fined 10% of his or her gross monthly remuneration. In
terms of Rule 11(3) the elected
committee must conduct its business
in accordance with ‘the uniform standing procedures determined
by the Council’.
In respect of multiple non-attendance, Rules
11(5) and (6) provide as follows (the references therein to
‘sections’
are to the Rules):
‘
(5)
A member who is absent from three or more consecutive meetings which
he or she is required to attend in terms of section 9,
must be
removed from office.
(6) Proceedings for
the removal of a member in terms of subsection (5) or for the
imposition of a fine in terms of subsection (4),
must be conducted in
accordance with the uniform standing procedure determined by the
Council in terms of subsection (3).’
[12]
Section 30 of the Structures Act deals
with quorums and decisions of a council. Section 30(1) states that a
‘majority
of the councillors’ must be present at a
meeting of the council before a vote may be taken on any matter. In
terms of s 30(2)
read with s 160(3) of the Constitution,
certain matters can be adopted only with a supporting vote of the
majority of the
council’s members. Among these special matters
is the approval of budgets. The expression ‘majority of the
councillors’
in these provisions means a majority of the full
number of councillors, not merely a majority of those present (see
De
Vries v Eden District Municipality & Others
[2009]
ZAWCHC 94).
The full number of councillors in the case of the
Oudtshoorn Municipality is 25, from which it follows that a quorum
requires 13
councillors and that the special matters specified in
s 160(2) of the Constitution require a supporting vote of at
least 13
councillors.
[13]
The quorum issue is also dealt with in Rule
13. Rule 13(3) states that whenever there is no quorum the start of
the meeting must
be delayed for no longer than 30 minutes. If at the
end of that period there is no quorum, ‘the speaker must
adjourn the
meeting to another time, date and venue at his or her
discretion and record the names of those members present’. In
terms
of Rule 13(5) the same applies when an initially quorate
meeting becomes inquorate. Rule 13(7) provides that the speaker must
report
the names of the absentee members to the committee established
in terms of rule 11 ‘for the purposes of an investigation of
a
breach of these rules’.
[14]
Section
59 of the Systems Act requires a municipal council to develop a
system of delegation that will maximise administrative and

operational efficiency and provide for adequate checks and balances.
In terms of s 79 of the Structures Act a municipal council
may
establish one or more committees and may delegate duties and powers
to such a committee. The Oudtshoorn Municipality’s
council has
adopted a system of delegation (‘the Delegations’). Part
4 of the Delegations deals with delegations ‘to
political
structures of council’.
[1]
One of these is a Disciplinary Committee (‘DC’),
described as having been ‘established in terms of the Code’.

Para 30 of the Delegations creates the DC with the following terms of
reference:
‘
(A)
To investigate and make a finding on any alleged breach of the Code
and to make appropriate recommendations to Council.
(B)To
investigate and make a finding of non-attendance at meetings and to
impose a fine as determined by the Standing Rules and
Orders of
Council.’
[15]
These terms of reference are followed by a
statement that the council delegates to the DC the following powers,
functions and duties:
‘
(1)
To co-opt advisory members who are not members of Council provided
that such members may not vote on any matter.
(2) To instruct any
councillor(s) and request official(s) or other affected parties to
appear before the Committee to give evidence.
(3) To appoint a
legal adviser to assist the Committee including the obtaining of
internal or external legal opinions.
(4) To make written
representations to the MEC for local government pertaining to an
appeal to the MEC by a councillor who has been
warned, reprimanded or
fined in terms of item 14(2)(a), (b) or (d) of the Code of Conduct
for Councillors.
(5)
In appropriate circumstances to impose a fine in respect of
contraventions of item 4 of the Code.’
[16]
Item 4(3) of the Code, which I have quoted,
refers to the conduct of proceedings ‘in accordance with a
uniform standing procedure
which each municipal council must adopt
for the purposes of this item’. The Oudtshoorn Municipality has
not specifically
adopted a ‘uniform standing procedure’
for purposes of item 4(3) though the respondents contend that the
provisions
of the Rules and Delegations to which I have referred
constitute such a procedure.
The
facts
[17]
The Oudtshoorn Municipality’s
council, as mentioned, comprises 25 members. Pursuant to the local
government elections conducted
in May 2011, the balance of power was
13/12 in favour of the ANC coalition. One of the ANC councillors was
Mr Jurie Harmse (‘Harmse’).
The ANC coalition, by virtue
of its majority, was able to appoint the speaker and form the
Municipality’s executive committee.
[18]
Harmse says that during May 2013 he and
four other ANC councillors became disillusioned with the ANC
executive. At a council meeting
held on 31 May 2013 it became
apparent that they would support a vote of no-confidence. The
speaker, Mr Johannes Stoffels (‘Stoffels’),
adjourned the
meeting and the ANC coalition members (apart from the five defectors)
left. The remaining councillors (the members
of the DA coalition
together with the five defectors) purported to continue with the
meeting and voted to remove the municipal’s
executive. After
the meeting Harmse and the other four defectors resigned from the
ANC. (The respondents describe this as the ‘DA
putsch
’.)
[19]
The speaker, who (together with the
remaining ANC coalition councillors) said that the floor-crossing by
the five defectors had
been unlawful, instituted legal proceedings
under Case 8616/2013 for the setting aside of the resolutions passed
on 31 May 2013.
On 10 September 2013 Le Grange J upheld this
challenge and ordered the DA and its coalition councillors to pay the
costs.
[20]
Two of the five ANC defectors were
party-list representatives (or proportional representation
councillors) so that, upon their resignation,
they were replaced by
other ANC-list members. In respect of Harmse and the remaining two
defectors, their resignations from the
ANC required by-elections to
be held. These took place during August 2013. Harmse, now a member of
the DA, defended his ward but
the other two ANC defectors, now also
members of the DA, were defeated and new ANC councillors were
elected. The upshot was that
the balance of power shifted 13/12 in
favour of the DA coalition.
[21]
By virtue of the order granted by Le Grange
J on 10 September 2013, the ANC-appointed speaker and executive
remained in place but,
following the defections and results of the
by-elections in August 2013, they were vulnerable to a vote of
no-confidence by the
DA coalition. This is the course which the DA
coalition took. In terms of s 29(1) of the Structures Act the
speaker of a council
is obliged to convene a meeting upon written
request by a majority of the councillors.
[22]
As a result of what the DA coalition
alleged to be prevarication, their initial attempts to have the
matter brought to a vote did
not succeed. This led, on 23 August
2013, to the launch by the DA coalition of an urgent application
under Case 13789/13, proceedings
in which the MEC intervened. The
initial complaints were resolved by an order I made by agreement on
28 August 2013. Further complaints
arising from new developments were
again resolved by an agreed order granted by Henney J.
[23]
Then,
at a council meeting on 20 September 2013, the speaker, Stoffels,
purported to suspend the voting rights of two of the DA
councillors,
Messrs Pierre Nel (‘Nel’) and Bernadus Van Wyk (‘Van
Wyk’), something he had done before but
withdrawn. The ANC
coalition says it regarded the suspension as justified because there
was
prima
facie
evidence that Nel and Van Wyk had defrauded the Municipality and that
Van Wyk had caused the Municipality, in terms of a settlement

agreement, to abandon a costs order it had against Nel. (The costs
order had been made in an unsuccessful application by Nel in
Case
18083/2010 to set aside the reinstatement of a Rev Petersen as the
Municipal Manager.
[2]
) The
Municipality had obtained a report from two forensic advocates
regarding the conduct of Nel, Van Wyk and their attorney.  Be

that as it may, the effect of the purported suspension was that the
DA coalition was no longer recognised by the ANC-appointed
speaker as
commanding a majority. At the same meeting the motions of
no-confidence were (on the basis of the exclusion of the votes
of Nel
and Van Wyk) rejected.
[24]
As
a result, the relief claimed by the MEC in Case 13789/13 was amended
to incorporate
inter
alia
a
prayer for the setting aside of the suspension of Nel and Van Wyk’s
voting rights. Schippers J handed down judgment on 12
November
2013.
[3]
Although he dismissed
claims for certain other relief (on the basis that the MEC lacked
locus
standi
to
claim that particular relief), he granted an order declaring the
suspension of Nel and Van Wyk’s voting rights invalid.
This was
on the basis that neither the speaker nor the council had the right
to suspend a councillor or to suspend his voting rights;
in terms of
Item 14 of the Code, only the MEC could do so. He dismissed a
counter-application by the ANC coalition. He ordered
Stoffels
de
bonis propriis
to
pay the costs relating to the proceedings which gave rise to the
orders on 28 August 2013 and 13 September 2013 because of what
he
found to be the
mala
fide
‘stratagems’
Stoffels had employed to prevent the motions of no-confidence being
put to the vote. He made no order in
respect of the proceedings
giving rise to his judgment of 12 November 2013 because the MEC had
only succeeded in part.
[25]
An application by Stoffels and the
Municipality for leave to appeal was refused by Schippers J. A
petition to the Supreme Court
of Appeal (‘SCA’) was
dismissed by that court on 10 February 2014 and an application for
leave to appeal to the Constitutional
Court was rejected on 16 May
2014. In the meanwhile, however, the application for leave to appeal
and the petition to the SCA were
said by the ANC coalition to suspend
Schippers J’s order, so that the suspension of Nel and Van
Wyk’s voting rights
supposedly remained in force. The effect
was that, at least until 10 February 2014, the incumbent ANC
coalition did not recognise
the DA coalition as having a majority on
the council.
[26]
This was the position in which Stoffels
persisted at the council meeting which he chaired as speaker on 31
January 2014. The 13
members of the DA coalition, who signed the
attendance register and were present at the beginning of the meeting,
announced that
they could not in good conscience remain at the
meeting in the light of Stoffels’ ruling. They departed after
registering
their protest. This left the council inquorate. The
minutes reflect that the meeting started at 10h00, that the DA
coalition councillors
left at 10h05 and that the speaker closed the
meeting after waiting half an hour. (This is the first of three
successive meetings
at which 11 of the 13 DA councillors were alleged
to have been absent in violation of the Code.)
[27]
Although in terms of Rule 13(3) the
inquorate meeting of 31 January 2014 could (and perhaps should), at
the close thereof, have
been adjourned to a new time and date, the
speaker did not follow this course, either on this occasion or in
respect of the further
meetings mentioned below. Instead, Stoffels
later  convened a fresh special council meeting for 4 February
2014. The 13 DA
coalition councillors, who signed the attendance
register and were present at the beginning of the meeting, departed
after Stoffels
ruled that Nel and Wyk could not vote. Again the
meeting was left inquorate. The minutes reflect that the meeting
started at 14h05,
that the DA coalition councillors left at 14h10 and
that the speaker closed the meeting after waiting half an hour. The
DA coalition’s
chief whip, Mr J Maxim, delivered a notice to
the speaker saying that the coalition was not willing, following the
result of the
elections in August 2013, to attend meetings simply for
the purpose of lending a quorum to the ‘minority’. (This
is
the second of three successive meetings at which 11 of the 13 DA
councillors were alleged to have been absent in violation of the

Code.)
[28]
Stoffels convened a further special council
meeting for 14h00 on 6 February 2014. Harmse applied in writing to be
excused and his
excuse was accepted.
[29]
It appears from an affidavit to which
Roberts deposed as part of the respondents’ answering papers in
the first case that,
although he is a DA councillor, he has crossed
swords with the DA coalition caucus and with senior members of the DA
leadership
over various matters, including the Nel settlement. He
says he abided by the caucus’ decisions to walk out of the
meetings
of 31 January 2014 and 4 February 2014, decisions taken,
according to him, to prevent a quorum. He alleges, further, that
during
the morning of 6 February 2014 the DA coalition caucus held a
telephonic conference with the DA’s attorney, Ms Jonker, and

the DA’s Federal Council Chairperson, Mr Selfe, regarding the
meeting scheduled for that afternoon. He says that Jonker and
Selfe
advised them to attend the meeting or risk removal as councillors in
terms of item 4 of the Code. Roberts regarded this advice
as correct.
[30]
In reply Jonker confirms having advised the
caucus members to attend the meeting but denies that she expressed
the view that non-attendance
would violate item 4. She says her
advice was expressed out of caution, because in view of the
acrimonious history she thought
it likely that the incumbent
executive would ‘use any opening’ to exclude DA
councillors.
[31]
At any rate, there were influential voices
within the caucus against the advice to attend and, after further
telephonic communication
with the MEC himself (who was also the DA’s
Provincial Chairperson), the caucus decided not to attend the
meeting. Roberts,
who considered Selfe’s view to be the
official one, told the caucus that he would be attending the meeting,
upon which he
was suspended as a member of the caucus.
[32]
The DA coalition’s whip notified the
speaker that the DA coalition councillors would not attend in the
light of the ruling
that Nel and Van Wyk would not be permitted to
vote. (Stoffels says that this notification was only received after
the meeting.)
However, with Roberts’ attendance the council was
quorate. According to the minutes the meeting lasted about half an
hour.
[33]
This was the third of three successive
meetings at which the 11 DA coalition councillors (ie those apart
from Harmse and Roberts)
were alleged to have been absent in
violation of the Code. The council, being quorate, proceeded to
resolve
inter alia
that a Disciplinary Committee (‘DC’) be appointed
comprising Mr V Donson (‘Donson’ - the Deputy Mayor and
a
member of ICOSA, which belonged to the ANC coalition), Mr C Wagenaar
and Ms N Gunguluza (both ANC councillors). The minutes do
not state
that this was an
ad hoc
committee
constituted specifically to consider the successive absences of the
11 councillors. The minutes record no terms of reference
and are more
consistent with a decision to constitute (or reconstitute) the
council’s standing DC established in terms of
para 30 of the
Delegations, though in that case the alleged successive absences of
the 11 councillors would have been very much
in mind as the new DC’s
first order of business. I observe, in this regard, that the question
of leave of absence was the
second item on the agenda. Thereafter
five unrelated agenda items were discussed. The seventh agenda item
appointed the council’s
Disciplinary Committee without
reference to the second agenda item.
[34]
The respondents state, however, that the DC
was in fact appointed as an
ad hoc
committee, its terms of reference being
the alleged non-attendances. Because Harmse had been excused, he had
not missed three successive
meetings and his earlier absences were
not the subject of the DC’s initial investigations arising from
this meeting.
[35]
At the meeting the council also approved
the Municipality’s 2013/2014 budget. Roberts initially
proposed, without support,
that the recommendation to adopt the
budget not be accepted. The minutes record that in the event the
budget was adopted unanimously.
Without Roberts’ support, the
budget could not lawfully have been adopted, having regard to
s 160(3) of the Constitution
read with s 30(2) of the
Structures Act.
[36]
The council also adopted a report of the
speaker on an investigation he had conducted in terms of item 13 of
the Code. I was told
from the bar that this involved the alleged
misconduct of the same 11 councillors in relation to the Nel
settlement though the
report is not part of the record.
[37]
After the meeting the speaker notified the
11 councillors of their alleged successive absences and invited them
to give reasons
why they should not be removed as councillors in
terms of Item 4(2) of the Code read with Rule 11(5). They were
required to respond
by the following day. They were informed that the
DC would, after considering the matter, make recommendations to the
council.
[38]
The speaker also wrote to the MEC stating
that the council, having considered his investigation report (ie
regarding the Nel settlement),
had resolved at its meeting on 6
February 2014 to request the MEC to remove the 11 councillors in
terms of item 14(2)(e) of the
Code. He requested, in order to bring
about stability, that the MEC make his decision by 13 February 2014
failing which he would
be compelled to launch High Court proceedings.
(The 11 councillors were thus subject to two separate proceedings for
their removal,
one relating to successive absences, the other to the
Nel settlement.)
[39]
I pause here to mention that, although the
applicants in the first case contended that their words and conduct
at the meetings of
31 January and 4 February 2014 and their whip’s
notification in respect of the meeting of 6 February 2014 amounted to
requests
for leave of absence from those meetings which the speaker
unjustifiably refused, I do not think the contention is sustainable.
[40]
On 7 February 2014 attorneys acting for the
DA Alliance, Minde Schapiro and Smith (‘MSS’), wrote to
the speaker denying
that the 11 councillors had absented themselves
from the meetings of 31 January and 4 February 2014 and in any event
challenging
the procedure which the speaker was following. Legal
proceedings were threatened.
[41]
As noted, on 10 February 2014 the Supreme
Court of Appeal dismissed the ANC coalition’s petition for
leave to appeal against
the order of Schippers J. This meant that the
suspension of Nel and Van Wyk’s voting rights fell away and the
DA coalition
would again be able to exercise a slender majority. The
DA coalition immediately took steps to requisition a meeting for the
consideration
of motions of no-confidence. In order to requisition
the meeting, the DA coalition required the cooperation of Roberts,
whom they
had suspended from their caucus. After approaches from high
places, Roberts was eventually prevailed upon to co-sign the
requisition.
[42]
Before the DA coalition’s motions of
no-confidence could be considered, the DC on 17 February 2014 found
that the 11 councillors
had violated item 4(2) of the Code. Before
the DC was a report dated 11 February 2014 (with corroborating
attachments) by the speaker,
Stoffels, stating that the 11
councillors had indeed breached the Code and should therefore be
removed, and a lengthy response
from MSS dated 17 February 2014. The
DC’s minutes record a resolution that the 11 councillors ‘be
removed’ as
councillors of the Municipality. The minutes
concluded with a statement by Donson that the matter would be
‘reported’
to the council.
[43]
The meeting at which the DA coalition’s
motions were to be considered was initially scheduled for 18 February
2014. However,
the speaker postponed the meeting first to 19 February
2014 and then to 24 February 2014. The agenda for 24 February 2014
included
the motions of no-confidence but made no reference to the
decision of the DC. In the meanwhile the speaker on 20 February 2014
met with the Municipality’s attorneys. Late on Friday 21
February 2014 Adv F Human (‘Human’), the Director:
Corporate
Services who was temporarily acting as the Municipal
Manager, sent a letter to the 11 councillors notifying them of the
outcome
of the DC’s deliberations. Presumably acting on legal
advice, Human said that as a result of the peremptory wording of item

4(2) the 11 councillors had to be removed:
‘
The
removal from office is a direct consequence subsequent to the finding
that you failed to attend three consecutive Council Meetings
and
neither the disciplinary committee, the Council, nor the MEC has any
power to impose any sanction.
You are therefore
herewith advised that, following the finding of the disciplinary
committee, that you absented yourself from three
consecutive Council
Meetings, that by due operation of law following the provisions of
item 4(2) of Schedule 1, the Code of Conduct
for Councillors, your
membership of this Counsel has terminated
ex lege
.’
[44]
The position set out in this letter was
thus that a councillor’s office terminated by operation of law
once a factual finding
had been made that the councillor had absented
himself or herself from three consecutive meetings and that the
factual finding
had permissibly been made by the DC. This was the
position adopted in argument by the respondents. The applicants, by
contrast,
argued that the removal of a councillor for non-attendance
required a decision by the MEC in terms of item 14 of the Code, and
this position was supported by the MEC.
[45]
Of the 11 removed councillors, five were
ward councillors whose positions, if they were validly removed, had
to be filled pursuant
to by-elections. The other six were party-list
councillors whose positions could be filled by appointment from the
DA list.
[46]
To return to the chronology, the DA
coalition’s motions were due to be considered at a meeting on
Monday 24 February 2014.
But, with the purported removal of the 11
councillors, the motions would inevitably be defeated. It is common
cause that the 13
members of the DA coalition arrived for the
meeting. It is also common cause that the 11 removed councillors were
prevented by
security from entering the council chamber. The
applicants allege that Harmse and Roberts were also prevented from
entering. The
respondents dispute this, saying that Harmse and
Roberts chose to leave in solidarity with their 11 colleagues. (This
is the first
of three successive meetings at which Harmse was alleged
to have been absent in violation of the Code.)
[47]
The applicants’ counsel submitted
that the respondents’ version, that Harmse and Roberts were not
barred from entering
the council chamber, is based on hearsay. In
particular, he submitted that the person on whose supposed direct
evidence the respondents
relied, Ms Jantjies, employed by the
Municipality in its Traffic and Law Enforcement Department, did not
on careful analysis claim
to have been present. I disagree. She
states in her affidavit that she has personal knowledge of the
matters contained therein.
On a fair reading of her substantive
allegations, she was present in the foyer when the security
contingent prevented the 11 councillors
from entering. In accordance
with the
Plascon-Evans
rule, I must thus decide the case on the basis that Harmse and
Roberts were not prevented from entering the chamber.
[48]
Although there was no quorum for the
meeting of 24 February 2014, the ANC coalition says that the motions
of no-confidence lapsed
on this date because the mover and seconder
of the motions were not present.
[49]
The speaker, Stoffels, gave notice of a
further council meeting to be held the following day, Tuesday 25
February 2014. The agenda
no longer included the motions of
no-confidence but did include the removal of the 11 councillors. It
is common cause that notice
of the meeting was not given to the 11
‘removed’ councillors, given the speaker’s view
that they no longer held
office. There is a factual dispute as to
whether due notice of the meeting was given to Harmse and Roberts. Be
that as it may,
they learnt of the meeting (whether through due
notice or otherwise), and on the morning of 25 February 2014 Harmse
and Roberts
together with their 11 removed colleagues presented
themselves at the municipal offices. The 11 councillors were again
barred from
entering the council chamber. Harmse and Roberts were
allowed inside. They signed the attendance register and then departed
in
protest. Roberts does not say why he cooperated with the DA
coalition caucus at this meeting. Be that as it may, the meeting was

again left inquorate. (This is the second of three successive
meetings at which Harmse was alleged to have been absent in violation

of the Code.)
[50]
The speaker proceeded to give notice of
another meeting for Friday 28 February 2014. Again, the agenda
included the removal of the
11 councillors and did not include
motions of no-confidence. The 11 removed councillors were not on the
notification distribution
list.  All 13 members of the DA
coalition arrived at the meeting. The 11 removed councillors were
again barred. Harmse and
Roberts entered and signed the attendance
register. On this occasion, however, only Harmse departed after
registering his protest.
Roberts remained. The result was that there
was a quorum for the meeting, which comprised 12 members of the ANC
coalition plus
Roberts. The minutes in regard to the removal of the
11 councillors record the following under the heading ‘Resolved’:

‘The councillors present unanimously indicated that they noted
the report on the removal of the municipal councillors for

non-attendance of three (3) consecutive council meetings.’
[51]
At the same meeting the council approved a
draft IDP/Budget/Performance Management Process Plan for the
2014/2015 financial year.
The Municipality says that this was
something that had to be done by the end of February 2014 and that
for this reason the meeting
was urgent.
[52]
The meeting of 28 February 2014 was the
third of three successive meetings at which Harmse was alleged to
have been absent in violation
of the Code.
[53]
On 3 March 2014 DA, COPE and the 11 removed
councillors launched the first of the applications that served before
me (Case 3517/14).
The notice of motion stated that the application
would be moved on 6 March 2014. Various orders were sought, all aimed
effectively
at setting aside the purported removal of the 11
councillors. In the alternative, and if it were found that item 4(2)
had the effect
of automatically disqualifying the 11 councillors, an
order was sought declaring that item to be unconstitutional. It was
in respect
of this alternative relief that the Minister was joined.
[54]
On 6 March 2014 the application was by
agreement postponed for hearing on the semi-urgent roll on 21 May
2014 with a timetable.
In the meanwhile, the respondents and IEC were
not to take any action to prevent the 11 councillors from performing
their functions
as such, were to ensure that the 11 councillors were
paid their salaries and were not to take any action to fill the
purported
vacancies through appointment or by-elections as the case
might be.
[55]
Subject to Roberts’ allegiance, the
interim agreement reflected in this order restored the 13/12 balance
of power in favour
of the DA coalition. But in the absence of further
action, the speaker and executive committee remained ANC-coalition
appointees.
[56]
On 18 March 2014 the respondents filed
their answering papers in the first case. Attached to the main
answering affidavit was the
application by Stoffels and the
Municipality to the Constitutional Court for leave to appeal against
Schippers J’s judgment.
The respondents stated that there was
no finality regarding the suspension of Nel and Van Wyk’s
voting right pending the
decision of the Constitutional Court. (In
the event, the Constitutional Court dismissed the application on 16
May 2014.)
[57]
Also filed as part of the respondents’
answering papers was Roberts’ affidavit which I have previously
mentioned. It
appears from this affidavit that on 13 March 2014 Mr
Bredell, who apart from being the MEC was the DA’s Provincial
Chairperson,
notified Roberts that he was being suspended pending an
investigation into his alleged gross misconduct in acting in a manner
which
impacted negatively on the DA, bringing its name into
disrepute, disregarding caucus decisions, breaching confidentiality
and the
like.
[58]
On 20 March 2014 the Acting Municipal
Manager, Mr RP Lottering (‘Lottering’), wrote to the
speaker (Stoffels) attaching
the documents relating to the meetings
of 24, 25 and 28 February 2014. He noted that Harmse ‘did not
attend three consecutive
meetings’. Lottering said that
Stoffels’ ‘further instruction to the Disciplinary
Committee is awaited’.
[59]
On 27 March 2014 Donson on behalf of the DC
addressed a letter to Harmse, informing him that his successive
absences could lead
to his removal and requesting him to respond ‘in
recognition of the severity of the charges’. When Harmse did
not give
a response, Donson sent a further request on 8 April 2014.
Harmse still did not respond.
[60]
The DC met on 11 April 2014 and concluded
that Harmse had violated item 4(2) of the Code. The minutes record,
under the heading
‘Recommended’: ‘That Alderman
Harmse be removed as a councillor of the Oudtshoorn Municipality.’
[61]
In a letter dated 17 April 2014, Human (now
as Director Corporate Services) reported the DC’s decision to
the Acting Municipal
Manager. The opening paragraph of the letter
stated that its purpose was to inform the Acting Municipal Manager
‘of the finding
and recommendation’ of the DC. He
concluded his letter by stating the legal position in the same way as
in his letter of
21 February 2014, namely that Harmse’s removal
had taken place by operation of law.
[62]
On the same day Lottering notified Harmse
of his removal, expressing the legal position as contained in Human’s
letter.
[63]
The DA and Harmse say that the latter’s
removal was contrived so as to deprive the DA coalition of their
narrow majority pursuant
to the order granted in the first case on 6
March 2014. In the absence of any similar temporary arrangement in
respect of Harmse,
there would be a 12/12 split between the ANC
coalition and the DA coalition, meaning that the
status
quo
would remain
.
[64]
On 20 May 2014, by which date the parties
in the first application were agreed that the first case was not ripe
for hearing on the
following day,  the DA and Harmse launched
the second application that served before me (Case 8813/14). The
institution of
the application was preceded by correspondence in
which the applicants’ attorneys unsuccessfully sought agreement
that Harmse’s
proposed application be joined with that of the
11 councillors and that a similar temporary agreement be reached
regarding his
position. The notice of motion in the second
application stated that the application would be moved on 3 June
2014. On that date
the applicants would seek interim interdictory
relief together with an order that the two cases be consolidated for
hearing.
[65]
On 26 May 2014 Traverso DJP made an order
by agreement in the first application, postponing it for hearing on 4
August 2014 with
a revised timetable. The order repeated the
status
quo
arrangement which was to prevail
pending the finalisation of the proceedings.
[66]
In the second application, the respondents
maintained that it should not be consolidated with the first
application and they refused
to agree to a similar
status
quo
arrangement. This was the state of
play when the matter came before me on 3 June 2014 in the urgent
court. It became apparent that
due to other urgent matters the case
would not be able to be heard that week. Eventually, and on 5 June
2014, an order was granted
by agreement that the second case would be
consolidated with the first and that Harmse would benefit from the
same
status quo
arrangement. There was added a further stipulation that the DA
coalition would not take any action to prevent the other members
of
the council from performing their functions and would not bring any
motions of no-confidence or initiate disciplinary proceedings
against
any employee. The order in the first case was similarly amplified.
[67]
The applicants were represented at the
hearing by Mr SP Rosenberg SC leading Mr D Borgström. The MEC,
represented by Mr I Jamie
SC leading Ms M Adhikari, made submissions
regarding the interpretation of the Code broadly in line with the
applicants’
contentions (though the MEC abided the court’s
decision on the relief claimed). The respondents (ie the Municipality
and
the cited members of the ANC coalition) were represented in the
two cases by Mr WJ Vermeulen SC and Mr H van der Linde SC
respectively,
in each case leading Mr Snijders. The Minister,
represented by Mr AT Ncongwane SC leading Mr K Ramaimela, opposed
only the alternative
constitutional relief. The IEC has given notice
to abide.
[68]
At the commencement of argument on 4 August
2014 Mr Ncongwane for the Minister said that, although heads of
argument had been filed
on behalf of the Minister, the latter had not
filed an affidavit and wished to do so. Since a postponement of the
case would have
caused considerable wasted costs and since the
constitutional issue might not be reached, I ordered that the
alternative relief
for an order that item 4(2) of the Code be
declared unconstitutional stand over for later determination. This
approach was supported
by counsel for the applicants and the MEC and
by Mr Vermeulen for the respondents in Case 3517/14 though curiously
enough not by
Mr van der Linde who appeared for the same respondents
in Case 8813/14. The Minister’s counsel initially indicated
that they
would remain present on a watching brief but excused
themselves after the tea adjournment on the first day.
[69]
Immediately after the consolidation order,
an attorney, Mr Antonio McKenzie, arose and said that he had
instructions on behalf of
the third and fourth respondents, namely
Gunguluza and Wagenaar in their capacities as co-members of the DC.
He requested a postponement
of the case so that he could consult more
fully. In response to a question from the court, he indicated that
they might wish to
file affidavits distancing themselves from the
respondents’ opposition to the applications. Counsel for the
other parties
(including Messrs Vermeulen and Van der Linde, who had
hitherto understood themselves to be acting for, among others, the
two councillors
now represented by Mr McKenzie) opposed a
postponement. Since there was no substantive application for a
postponement, I refused
to delay the commencement of argument.
The
relief claimed
[70]
After conclusion of argument the
applicants’ counsel submitted draft orders setting out the
relief claimed (somewhat simplified
in comparison to the notices of
motion). In the first case the applicants seek orders (a) reviewing
and setting aside the
decision of the DC on 17 February 2014 that the
11 councillors be removed; (b) declaring the 11 councillors to
have remained
at all times members of the council; (c) setting
aside all resolutions taken at the council meeting of 28 February
2014; (d) interdicting
the Acting Municipal Manager or any other
person employed by the Municipality or the IEC from taking any action
to hold by-elections
as a result of the purported removal of those of
the 11 councillors who are ward councillors; (e) interdicting
the IEC from
taking action to fill the seats of those of the 11
councillors who are party-list councillors; (f) directing the
respondents
to pay the costs of the application.
[71]
In the second case the applicants seek
orders (a) reviewing and setting aside the decision of the DC on
11 April 2014 that
Harmse had absented himself from the council
meetings held on 24, 25 and 28 February 2014 in contravention of item
4(2) of the
Code; (b) declaring that Harmse has at all times
remained a member of the council; (c) declaring that the
meetings of
the council on 24, 25 and 28 February 2014 (i) were
invalidly called and convened in the absence of a notice to all the
members
of the council and (ii) were a nullity, and reviewing
and setting aside all decisions and resolutions taken at those
meetings;
(d) interdicting the Acting Municipal Manager or any
other person employed by the Municipality or the IEC from taking any
further action to hold by-elections in respect of Harmse’s
seat; (e) directing the respondents to pay the costs of the

application.
[72]
The first question is whether item 14
applies to the removal of a councillor for successive absences. If
so, the power of removal
vests in the MEC. Since the matter has not
been referred to the MEC for decision, the affected councillors have
not as yet been
lawfully removed and remain in their seats.
[73]
The second set of questions concerns the
lawfulness of the establishment and proceedings of the DC.
[74]
The third set of questions have to do with
whether, on the facts and on the proper interpretation of the Code,
the decisions of
the DC (that the 11 DA coalition councillors and
later Harmse were guilty of three successive absences) were correct.
[75]
If the first question were answered in
favour of the applicants, any purported decision by the DC (or the
council) to remove the
affected councillors would on that account
alone be invalid. It might nevertheless be necessary to determine one
or more of the
further attacks on the decisions of the DC, since a
valid decision by the DC might be a prerequisite for a removal
recommendation
to the MEC.
The
first question: Who has the removal power?
[76]
The applicants submitted that item 14 of
the Code applies to all breaches of the Code and that a councillor
can thus only be suspended
or removed by the MEC. The respondents
submitted that item 4 was self-contained and that the power of
removal thus vested in the
council or an authorised committee.
[77]
As to the general approach to the
interpretation of statutes, I was referred to and have endeavoured to
follow the approach summarised
by the Supreme Court of Appeal in
Natal Joint Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA)
paras 17-26.
[78]
There was certain common ground. All
counsel were agreed that removal did not occur
ex
lege
once, objectively speaking, a
councillor had been absent from three consecutive meetings. The body
or person with statutory authority
must first determine whether there
have been three or more successive absences. The debate was whether
the statutory authority
lay with the council (or a committee thereof)
or with the MEC. I agree with counsel’s view on this point.
Apart from other
indications in the language of the Code, it would
not make sense to talk of absence from ‘three
or
more
consecutive meetings’ if
removal were an automatic consequence after three successive
absences.
[79]
The fact that removal only occurs on due
decision of a breach distinguishes removal for a breach of item 4(2)
of the Code from the
type of automatic or deemed termination
considered in cases such as
Frans v
Groot Brakrivierse Munisipaliteit & Andere
1998
(2) SA 770
(C) at 778I-779D and
Phenithi
v Minister of Education & Others
2008
(1) SA 422
(SCA) paras 9-10. In the latter class of case there is no
administrative action at which a review can be directed. In the case
of removal for a breach of item 4(2), by contrast, there is a
decision which can be the subject of a review (cf
Armbruster
& Another v Minister of Finance & Others
[2007] ZACC 17
;
2007
(6) SA 550
(CC) paras 38-46, where the court rejected an argument
that forfeiture of foreign currency in terms of regulation 3(5) of
the Exchange
Control Regulations occurred
ex
lege
on seizure). Although the
respondents’ counsel referred to
Phenithi
and similar cases and appeared to place
reliance thereon in written argument, it became apparent during oral
presentation that their
contention was a narrower one, namely that
removal followed
ex lege
once
the duly authorised functionary had determined that the councillor
had been guilty of three or more successive absences. The

respondents’ counsel did not say that the removal thereupon
became retrospectively effective from the date of the third absence.

They accepted that there had to be a decision by a duly authorised
functionary on the breach and the decision had to be communicated
to
the delinquent councillor.
[80]
Counsel for the applicants and the
respondents were also agreed that, once the statutorily authorised
decision-maker concluded that
the councillor had been absent from
three or more successive meetings, removal was a mandatory sanction,
though doubt was expressed
by the applicants’ counsel regarding
the wisdom of a mandatory sanction. Mr Jamie for the MEC contended
that mandatory removal
was a blunt instrument which the lawmaker
could not have intended, though the route by which he ameliorated
what he regarded as
the harshness of the mandatory sanction was to
circumscribe the absences which would give rise to removal. He
submitted that removal
is only prescribed where the successive
absences were ‘not justifiable on the objective facts’.
[81]
Since item 4(2) states that a councillor
who is absent from three or more consecutive meetings ‘must’
be removed from
office as a councillor, there is no escaping the
conclusion, in my view, that removal is mandatory. (Whether such a
provision is
constitutional is the subject of alternative relief
which will be determined in later proceedings, if necessary.)
However, the
fact that removal is mandatory may have a bearing on the
interpretation of the breach contemplated in item 4(2). Two aspects
of
the defined breach received attention in argument, namely the word
‘absent’ and the phrase ‘required to attend’.

Once the proper interpretation of these parts of item 4(2) has been
determined and applied to the particular facts of the case,
I do not
think there is scope for an unstated qualification that removal
follows only if the absence was ‘not justifiable
on the
objective facts’.
[82]
Although removal is mandatory in the
prescribed circumstances, I nevertheless consider that the duly
empowered functionary is required
to make a removal decision and not
merely a finding that item 4(2) has been breached. However, if the
functionary makes a proper
finding that there have been three
successive absences and thereupon communicates (or causes to be
communicated) to the affected
councillor that his or her removal has
followed as a matter of law upon such finding, it would be unduly
technical to complain
that there was no actual decision to remove the
councillor. The decision-maker in the posited case would have made
the necessary
factual finding and communicated what he or she
regarded as the peremptory statutory outcome.
[83]
I
also did not understand it to be in dispute that, in cases of
recommended suspension or removal properly falling under item 14,
the
MEC is not bound by the factual and legal findings of the council or
the council’s committee in regard to the breach.
It is for the
MEC to determine what further investigation if any he or she should
undertake in order to form the opinion that the
Code has been
breached (see
Van
Wyk v Uys NO
2002
(5) SA 92
(C) at 99G-H;
Lili
v Independent Electoral Commission: Chief Electoral Officer &
Others
[2013]
ZAWCHC 196
paras 35-40;
Kannaland
Municipality v MEC for Local Government, Environmental Affairs and
Development Planning & Another
[2014]
ZAWCHC paras 22-39).
[4]
This
might be affected by the attitude of the councillor in respect of
whom suspension or removal is recommended.
[84]
In support of their clients’
respective positions on the interpretation of items 4 and 14 of the
Code, the applicants’
counsel referred to the support and
monitoring role of provincial government in relation to
municipalities while the respondents’
counsel referred to the
principle of municipal autonomy. While both sides were able to cite
provisions of the Constitution and
other national legislation in
support of these broad notions, I do not think they shed light on the
present problem. We are concerned
here with the removal of
councillors. That is not a functional area of provincial or municipal
competence in terms of Schedule
4 or 5 of the Constitution so there
is no ‘default position’ (as Mr Vermeulen put it) in
favour of removal being in
the hands of the council rather than in
the hands of the MEC. Nor does it seem to me a natural consequence of
provincial government’s
support and monitoring role that the
MEC rather than the council should have the power to suspend or
remove a councillor.
[85]
What is beyond doubt, however, is that
Parliament, by way of a national law (the Systems Act), has decreed
that, at least for all
breaches of the Code apart from item 4(2), a
council or a special committee has the power to make findings of a
breach and to issue
a formal warning, reprimand or fine whereas
suspension and removal are the exclusive domain of the MEC.
Parliament has also clearly
laid down that, even where a council or
special committee has issued a warning, reprimand or fine, the
aggrieved councillor may
appeal to the MEC. This indicates that the
imposition of the more serious sanctions of suspension and removal
should be in the
hands of a higher level of government (see the cases
cited in para 83
supra
).
Whether in general or in any particular case that is likely to give
rise to a ‘better’ decision is not for me to
judge.
[86]
It would thus accord with the scheme of the
Code that only the MEC should be empowered to remove a councillor for
three successive
absences. This conclusion would also not offend the
overarching constitutional vision for the three spheres of government
in South
Africa, part of which is that, while local authorities have
legislative and executive authority in respect of certain matters,
national and provincial legislatures have competence in respect of
the structuring of local government and for overseeing its
functioning
(see, eg,
Premier, Western
Cape v President of the Republic of South Africa
[1999] ZACC 2
;
1999
(3) SA 657
(CC) para 51). I do not say that, based on the notion of
municipal autonomy (which is necessarily a relative concept), the
national
lawmaker might not rationally have adopted a different model
and entrusted the suspension and removal of councillors to a proper

decision of the council itself. What I do say, though, is that the
model of entrusting the final decision on the suspension and
removal
of councillors to a higher level of government cannot be regarded as
inconsistent with broader constitutional principles
of the
inter-relationship between local and provincial government.
[87]
Item 14(1) empowers a council or a duly
established special committee to investigate and make a finding ‘on
any alleged breach
of a provision of this Code’. On the face of
it, the ‘Code’ means the whole Code, a view enforced by
the all-embracing
phrase ‘any alleged breach’.
[88]
The respondents submitted that there were
nevertheless indications that item 4 was self-contained and that item
14 had no part to
play in the breaches contemplated therein. The
consequences of this argument, as Mr Vermeulen acknowledged, are not
confined to
the proposition that the council rather than the MEC is
vested with the power of removal for three or more successive
absences.
A further consequence is that, where the council has fined
a member for absence in terms of item 4(1), there is no right of
appeal
to the MEC in terms of item 14(3). And, of course, there would
be no right to appeal to the MEC against removal.
[89]
Mr Vermeulen countered these considerations
by pointing to the more general remedies of an aggrieved person in
terms of s 59(3)(a)
and s 62 of the Systems Act. The first
of these provisions empowers a municipal council in certain
circumstances to review
a decision taken under delegated authority
while the second gives a right to appeal against an exercise of
delegated power, such
appeal lying to the council or to a special
committee thereof, depending on the size of the council. However, and
assuming that
these remedies would notionally be available to a
removed councillor, they are not a substitute for a decision by or
appeal to
the MEC. Indeed, it is clear that in the circumstances of
the present case both remedies mentioned by Mr Vermeulen would have
been
hollow and futile.
[90]
The main textual considerations which might
be thought to support the respondents’ interpretation are the
following. Firstly,
item 4 (which must be read with item 3 dealing
with attendance at meetings) is the only breach item in the Code
which mentions
sanctions and thus does not have to depend on item 14.
Second, item 4(3) envisages the adoption by a council of a particular
procedure
by which to deal with absences, a procedure which would (or
at least might) be different from the general disciplinary procedure

in item 14(1). And third, item 4(2) makes removal mandatory in the
case of three or more successive absences, which reduces the
scope
for decision by the MEC and removes the discretion envisaged by item
14(6).
[91]
While these considerations have some force,
I do not think they are sufficient to remove breaches in the form of
non-attendance
of meetings from the scope of item 14. The fact that
item 4 contains its own sanctions is not inconsistent with the
operation of
item 14. Indeed, since the only sanctions mentioned in
item 4 are fines and removal, an acceptance of the respondents’
argument
would require one to conclude that a council is not
permitted, in the case of non-attendance of or failure to remain in
attendance
at a single meeting, to issue a warning or reprimand; it
would be a case of a fine or nothing. One would also have to conclude
that, despite serial non-attendance by a councillor (but not three
successive absences), the council would be limited to imposing
a
fine; it could not recommend to the MEC in terms of item 14(2)(c) or
(e) that the delinquent councillor be suspended or removed.
[92]
A more sensible construction is that item
4(1)’s purpose is specifically to authorise a council to adopt
standing rules and
orders making provision for fines, as a means of
encouraging diligent involvement by all councillors in the affairs of
the municipality.
The fact that standing rules and orders might
provide for a fine is not inconsistent with a discretion to issue
formal warnings
or reprimands (ie in terms of item 14(2)) in cases
where a fine is considered not to be justified. Standing rules making
provision
for fines for non-attendance would simply indicate the
penalty which delinquent councillors should generally expect to be
imposed
in relation to a particular type of breach (non-attendance),
ie advance guidelines for the exercise of the fining power conferred

more generally by item 14(2)(e). In the absence of item 4(1), there
might have been a complaint that standing rules laying down
fines for
non-attendance were an undue fetter on the council’s power to
impose sanctions.
[93]
It is also not inconsistent with item 14
that item 4(2) should prescribe, in relation to three or more
successive absences, a peremptory
sanction of removal. The general
power of removal is contained in item 14. Item 4(2) merely provides
that, in the particular circumstances
there mentioned, removal is
mandatory and not discretionary. As I have said, there may be serial
non-attendance without three successive
absences and in such
circumstances one would expect the sanctions of suspension and
removal in item 14 to remain of potential application,
except not on
a mandatory basis.
[94]
It is so that item 4(2) reduces the scope
of the MEC’s decision-making in cases of successive absence but
the same would be
true if the power were vested in the council. It is
common ground that there needs to be a proper decision as to whether
the councillor
was absent for three or more successive meetings. In
cases of alleged breaches other than item 4(2), the MEC (where
suspension
or removal is under consideration) must consider two
matters: (a) what breach, if any, was committed; and (b) the
appropriate sanction
for the established breach. Depending on the
particular circumstances, the one or other leg might assume greater
importance. In
the case of item 4(2), by contrast, the question for
the MEC’s decision is confined to the first leg, namely whether
in his
opinion the councillor was absent from three or more
successive meetings. Sometimes the conclusion of three successive
absences
will be self-evident but that will also sometimes be so for
other types of breaches. There will be cases where the conclusion is

more controversial. The conclusion may depend not  only on the
particular facts of the case but on a proper interpretation
of the
words ‘absent’ and ‘required to attend’,
which is a question of law. Nonetheless, even on the respondents’

argument there may be questions of degree. For example, Mr Vermeulen
conceded that on the
de minimis
principle a councillor who was present
for most but not the whole of a meeting might be said not to have
been absent from it. Whether
a councillor was ‘required’
to attend a particular meeting might require an investigation as to
whether the councillor
received due and adequate notice of the
meeting.
[95]
The respondents point out that item 14(6)
is framed on the supposition that the MEC has a discretion (or
exercises a value judgment)
in regard to sanction. That generally
will be the case. However, the Code must be read as a whole. If that
is done, I see no difficulty
in reading item 14(6) as being subject
to peremptory removal where the case falls within item 4(2). Having
regard to scope and
objects of the Code, the word ‘may’
in item 14(6) confers a power together with a duty to exercise it
where, in the
opinion of the MEC, suspension or removal is warranted
(see, eg,
Noble & Barbour v South
African Railways and Harbours
1922 AD
527
at 440;
SAR&H v New Silverton
Estate Ltd
1946 AD 830
at 842-843;
Schwartz v Schwartz
[1984] ZASCA 79
;
1984
(4) SA 467
(A) at 472E-475D;
Weissglass
NO v Savonnerie Establishment
[1992] ZASCA 95
;
1992 (3)
SA 928
(A) at 937B-F;
Dlisani v Minister
of Correctional Services & Another, Mathwetha v Minister of
Safety and Security & Another
1999
(1) SA 1020
(TkHC) at 1024F-1026D; Baxter
Administrative
Law
1984 at 412-414). Where the MEC
concludes that item 4(2) has been breached, he could not properly
reach a conclusion other than
that removal is ‘warranted’
and that he is bound to exercise his sanction-imposing power
accordingly.
[96]
As to the provision in item 4(3) for a
‘uniform standing procedure’ (‘USP’) which
the council must adopt
for the purposes of item 4, the Code must,
once again, be read as a whole. Item 14(1) empowers a council in
general to investigate
and make findings on any alleged breach or to
establish a special committee to make such investigations and
findings with a view
to making recommendations to the council. Item
4(3) merely regulates this power by requiring that its exercise
should, where one
is dealing with non-attendance at meetings, be
conducted in accordance with a USP adopted for that purpose. Where
one is dealing
with alleged non-attendance but not for three or more
successive absences, the USP would cover the determination of the
facts and
the imposition of the fine. Where one is dealing with three
or more alleged successive absences, the USP would cover the
investigation
and determination of the facts with a view to making a
request to the MEC in terms of item 14(2)(e). In both cases, the
proceedings
followed at council level could aptly be described,
within the meaning of item 4(3), as ‘proceedings for the
imposition of
a fine or the removal of a councillor’.
[97]
As against the textual matters raised by
the respondents, there is the consideration that, whereas item 4(1)
is framed in the active
voice and empowers a ‘council’ to
impose a fine, item 4(2) is framed in the passive voice, stating that
a councillor
guilty of three or more successive absences ‘must
be removed from office as a councillor’. If what was meant is
that
a council has the power to remove the councillor, one would have
expected item 4(2) to follow the phraseology of item 4(1) and to
say
that a council must remove from office a councillor who has been
absent from three or more consecutive meetings.
[98]
I thus conclude that none of the 12
purportedly removed councillors has as yet been validly removed. It
follows that  in both
cases the applicants are entitled to an
order declaring that the councillors in question have at all times
remained members of
the Municipality’s council (prayer (ii)
summarised earlier).
The
second set of questions
[99]
I shall consider, under separate headings,
the various points which I loosely group under the second set of
questions (paras 100
to 119 below). These are concerned with the
lawfulness of the establishment and proceedings of the DC as distinct
from the correctness,
on the merits, of its decisions that the 11
councillors and Harmse were guilty of three successive absences.
No
uniform standing procedure?
[100]
The first issue under the second set of
questions is whether it was competent for the council or a committee
thereof to investigate
and make a recommendation regarding the
removal of the DA coalition councillors, given the alleged absence of
a USP as contemplated
in item 4(3). This is one of the grounds on
which the applicants seek to have the DC’s decisions reviewed
and set aside.
[101]
Section 37(f) of the Structures Act
envisages that a council will have ‘rules and orders’,
one of the speaker’s
functions being to ensure that council
meetings are conducted in accordance with such rules and orders. In
the present case, the
Rules I mentioned earlier are the council’s
said rules and orders. Rules 10 and 11 deal with absence and
non-attendance.
Item 4(1) of the Code authorises a council to impose
a fine for non-attendance as determined by its standing rules and
orders,
and the Municipality here has done that by way of Rule 11(4).
[102]
However, item 4(3) requires that
‘proceedings for the imposition of a fine or the removal of a
councillor’ must be conducted
in accordance with a USP which
each council ‘must adopt for the purposes of this item’.
It is further stated that the
USP must comply with the rules of
natural justice. So whereas fines for non-attendance would be found
in the Rules, the procedure
for the imposition of a fine or removal
should be contained in another instrument, namely the USP. In the
present case, Rules 11(3)
and 11(6) themselves recognise this,
because they require proceedings for the imposition of a fine or for
removal to be conducted
in accordance with a USP adopted by the
council. While notionally a USP could be incorporated into the same
document as the one
containing the standing rules and orders, that
was not done in the present case. Apart from the fact that Rule 11
expressly contemplates
a USP
dehors
the
Rules, neither Rule 11 nor any other of the Rules as a fact contains
a procedure for the committee contemplated by Rules 11(3)
and (6).
[103]
The respondents argued that the USP was to
be found in para 30 of the Delegations. I do not think those
provisions are sufficient
to constitute a USP. The mere establishment
of a DC with delegated authority to determine certain matters cannot
by any stretch
be regarded as a USP. What is contemplated in item
4(3) is a procedure (whether one to be followed by the council itself
or by
a committee). That procedure must be a uniform one adopted
specifically for purposes of item 4 breaches. The statutory purpose
is evidently that all councillors should be subject to the same
even-handed processes in respect of alleged non-attendance. Although

the Delegations authorise the DC to co-opt advisory members, to
instruct councillors and officials to appear to give evidence and
to
appoint a legal adviser, these are permissive powers. Nothing is laid
down as to the procedure which the DC must follow in the
case of
non-attendance. Furthermore, the DC created by para 30 of the
Delegations is a general disciplinary committee, not one
set up
exclusively to deal with non-attendance.
[104]
Item 4(3) is expressed in peremptory terms.
In the absence of a duly adopted USP, a council is not in the
position lawfully to conduct
proceedings for the imposition of a fine
or for the removal of a councillor. In this regard, I respectfully
disagree with the
obiter dictum
of
Mamosebo AJ to the contrary in
The Nama
Khoi Municipality & Others v MEC for Local Government: Northern
Cape Provincial Government & Others
Case
[2013] ZANCHC 28
para 24.
On the evidence
before me, the Municipality’s council has not adopted a USP.
That does not mean that, in respect of past absences,
the council is
precluded from taking action, but before it does so it will need to
adopt a USP and deal with those absences in
accordance with such USP.
[105]
For this reason, the DC’s decisions
were unlawful and must be set aside.
Validity
of appointing resolution?
[106]
The DC was appointed by a resolution of the
council on 6 February 2014. It might be said that this meeting as a
whole was unlawful
because the speaker had made it clear for some
time, including at the immediately preceding meetings of 31 January
and 4 February
2014, that he would not recognise the votes of Nel and
Van Wyk. This ruling by the speaker was unlawful. In convening the
meeting
of 6 February 2014, the speaker did not communicate any
change of heart and it is clear from the answering papers that as at
6
February 2014 there had been no change of heart. (The respondents
were still contending, when they filed their initial answering
papers
in the first case, that the position as determined by Schippers J was
suspended in view of the appeals to the Supreme Court
of Appeal and
the Constitutional Court. It was only after the filing of such papers
that the Constitutional Court on 16 May 2014
dismissed the
application for leave to appeal, signalling the end of the road.)
[107]
Whether, despite the speaker’s
unlawful position, the DA coalition councillors were required to
attend the meeting of 6 February
2014 is something more appropriately
dealt with under the third set of questions. As will appear
hereunder, the resolutions passed
at this and other meetings would
not necessarily fall to be set aside even if the meetings were
unlawful. In regard to the resolution
of 6 February 2014, it is
obvious that the 11 councillors (including Nel and Van Wyk) would not
have been entitled to vote on the
appointment of the DC, even if they
had been present and allowed to vote on other business. Harmse was
granted leave of absence
for reasons apparently unrelated to the
speaker’s unlawful ruling. Roberts was present on 6 February
2014 and apparently
supported the appointment of the DC (the
resolution having been unanimous).
[108]
I thus do not intend to base my decision on
the contention that the resolution appointing the DC was invalid
because the meeting
itself was unlawful.
Extent
of DC’s power under para 30 of Delegations?
[109]
A
further question arises as to whether the DC was entitled, in terms
of para 30 of the Delegations, to decide, as it purported
to do on 17
February 2014, that the 11 councillors be removed. In deciding that
the 11 councillors be removed, the DC could not
have been acting in
terms of item B of its terms of reference (the power to fine for
non-attendance).
[5]
In terms of
item A of its terms of reference, the DC may investigate and make a
finding on any alleged breach of the Code and make
an appropriate
recommendation to the council.
[110]
The respondents’ argument is that,
since removal was peremptory, there was nothing on which to make a
recommendation; removal
followed as a matter of law upon a finding of
three or more successive absences. I have already concluded that the
final decision
as to whether there has been a breach in the form of
three or more successive absences, and thus whether removal must
follow, is
a decision for the MEC. What the council can do is make a
recommendation to the MEC in terms of item 14(2)(e) of the Code. In
terms
of item 14(1) a factual investigation and finding may be
conducted and made either by the council or by a special committee,
subject
(in the case of breach in the form of three or more
successive absences) to compliance with a duly adopted USP. However,
item 14(2)
of the Code provides that only the council itself may
recommend to the MEC that the delinquent councillor be removed.
[111]
Consistently with this scheme, item A of
the DC’s terms of reference in the Delegations needs to be
interpreted as requiring
the DC, where it has found that a councillor
has been guilty of three or more successive absences, to recommend to
the council
that it recommend to the MEC that the councillor be
removed. (That is certainly what the DC would have to do in any other
case
of serious breach which in its view warranted removal because it
is common cause that, in cases falling outside item 4(2) of the
Code,
only the MEC may decide on removal.)
[112]
The DC did not, in the case of the 11
councillors, make such a recommendation. It purported itself to
decide upon their removal.
On 28 February 2014 the council merely
‘noted’ the DC’s decision (by which stage the 11
councillors had already
been notified of their purported removal).
The DC’s conduct was on this account unlawful.
[113]
In the case of Harmse, the DC on 11 April
2014 resolved to recommend that Harmse be removed. The difficulty for
the respondents
is that the council did not thereafter consider and
act upon the recommendation. Harmse was notified of his removal
without further
consideration of the matter by the council. That too
was unlawful.
[114]
I
have thus far assessed the legality of the DC’s process on the
assumption that the DC which made the decisions in the present
case
was the DC envisaged in para 30 of the Delegations. That seems to me
the most favourable assumption to the respondents. Their
own
version
[6]
is that the DC which
acted in this case was an
ad
hoc
committee
appointed by the council on 6 February 2014, its terms of reference
being the alleged absences of the 11 councillors (though
the minutes
do not record any terms of reference). If that is so, the complaint
that no USP was followed is an
a
fortiori
one,
since the respondents could then not even rely on the Delegations as
supposedly supplying the USP. The council did not lay
down any
procedure for the supposedly
ad
hoc
DC
to follow. The council did not even decide that the
ad
hoc
DC
would have delegated power  finally to determine any question.
Furthermore, there does not appear to have been any further
decision
by the council expanding the terms of reference of the
ad
hoc
committee
so as to include Harmse’s three alleged absences.
Representivity
of DC?
[115]
The
applicants alleged that the DC was not validly constituted because it
lacked the representivity required by s 160(8)(a)
of the
Constitution. Whatever merit a contention of that kind might have in
other contexts,
[7]
it seems to
me to be unrealistic to contend, on the facts of the present case,
that the DC in this case should have included members
of the DA
coalition. In regard to the 11 removed councillors, they themselves
could obviously not have served on the DC. The only
other members of
the DA coalition were Harmse and Roberts but both of them had been
absent from two of the three meetings for the
same reasons as their
colleagues. If their colleagues were in breach, so were they, even
though they did not face the mandatory
sanction of removal if found
guilty of the breach. A further consideration is that, of the 13 DA
coalition councillors, only Roberts
was present at the meeting of 6
February 2014. Apart from the fact that by 6 February 2014 Roberts
was at loggerheads with the
DA coalition caucus and thus unlikely to
have been for them an acceptable member of the DC, the minutes
reflect that Roberts supported
the appointment and composition of the
DC (the resolution having been unanimous).
[116]
In regard to Harmse’s removal,
Roberts, the only remaining member of the coalition, had by then
broken ranks with the DA coalition.
He had been expelled from the
caucus on 6 February 2014 and was suspended from the DA on 13 March
2014. I hardly think the applicants
would have found it satisfactory
if Roberts had served on the DC which was to consider Harmse’s
removal. The applicants’
counsel pointed out that, by the time
Harmse’s three absences were under consideration, the 11
councillors had been temporarily
restored to their positions by the
order granted by agreement on 6 March 2014. Whether the temporary
order went quite that far
is unclear. (In relevant part, the order
stated that the respondents were not to take any action to prevent
the 11 councillors
from performing their functions as councillors in
terms of the Structures Act, Rules or any other applicable
legislation.) Be that
as it may, the 11 councillors were still
involved in their contested removal on grounds similar to those
levelled against Harmse.
They could hardly have served in a
disinterested fashion on the DC investigating Harmse’s removal.
[117]
Accordingly, if the DC had otherwise been
duly established and empowered to investigate the successive
absences, I would not have
upheld a challenge to its representivity,
though the circumstance that the DC was drawn only from members of
the ANC coalition
may have imposed upon the DC members a heightened
duty to perform their functions with scrupulous fairness and
objectivity.
Bias
and ulterior motive?
[118]
There is little doubt in my mind that
Stoffels and the ANC coalition anticipated that, in view of the
ruling suspending the voting
rights of Nel and Van Wyk, the DA
coalition councillors might refuse to attend or remain in attendance
at council meetings and
that they (Stoffels and the ANC coalition)
found congenial the prospect that the DA coalition councillors could
as a result be
removed for three successive absences. The same is
true in regard to the meetings from which Harmse was allegedly absent
–
the ANC coalition would have realised that Harmse would feel
compromised in attending the meetings in the absence of his 11
purportedly
removed colleagues.
[119]
However, Mr Rosenberg in oral argument
acknowledged that, if the DA coalition councillors had indeed
absented themselves on three
successive occasions as contemplated in
item 4(2), disciplinary action, otherwise lawful, could not be
impugned merely because
Stoffels and the ANC coalition councillors
relished, for unworthy political motives, the mandatory removal of
the DA coalition
councillors. (The same applies
mutatis
mutandis
in the Harmse case.)
The
third set of questions: Were the DC’s decisions correct?
[120]
If, as I have found, the MEC is the person
with the authority finally to determine whether any of the
councillors in question breached
item 4(2) and with the power to
impose the sanction of removal, the function of the council or a
committee is to investigate the
matter and make a recommendation to
the MEC. The circumstances in which review in terms of the Promotion
of Administrative Justice
Act 3 of 2000 (‘PAJA’) and in
terms of the legality principle is available to impeach preliminary
investigations and
recommendations is not altogether clear. There is
authority that a preliminary investigation by a statutory functionary
culminating
in a recommendation that action be taken by another
statutory functionary may in appropriate circumstances be subject to
review,
at least where the preliminary process did not comply with
the principles of natural justice (see, for example,
Oosthuizen’s
Transport (Pty) Ltd & Others v MEC, Road Traffic Matters,
Mpumalanga, & Others
2008 (2) SA
570
(T) and cases there discussed; see also Hoexter
Administrative
Law in South Africa
2
nd
Ed at 436-443).
[121]
In so far as natural justice is concerned,
I do not think the process followed by the DC was deficient, though
in the case of the
11 councillors it was somewhat hurried. In both
cases the affected councillors were invited to make representations.
The 11 councillors
did so through their attorneys. Harmse decided not
to make representations.
[122]
Insofar as the correctness of the DC’s
decisions is concerned, several questions of fact and law arise and
were the subject
of argument before me. In the first case, I can
summarise the questions as follows:
(a) In view of the
speaker’s unlawful insistence, at the meetings of 31 January
and 4 February 2014, that the voting rights
of Nel and Van Wyk were
suspended, were Nel and Van Wyk ‘required to attend’
those meetings within the meaning of item
4(2)?
(b) If Nel and Van
Wyk were not required to attend those meetings because of the
speaker’s unlawful ruling, were any of the
other councillors
(and in particular the other nine councillors who feature in the
first case) ‘required to attend’
them, given the unlawful
exclusion of two of the councillors? (Another way of putting this and
the preceding question might be
whether, more fundamentally, the said
meetings were lawful meetings in the light of the unlawful ruling.)
(c) If the DA
coalition councillors were required to attend the meetings of 31
January and 4 February 2014, were they ‘absent’
from
those meetings within the meaning of item 4(2), given that they
signed the attendance register and were present at the commencement

of the meetings, thereafter leaving in protest?
(d) Were there three
separate meetings of 31 January, 4 February and 6 February 2014
within the meaning of item 4(2) or, as the
applicants claim, was a
single meeting which started on 31 January 2014 simply resumed on 4
and 6 February 2014 due to the absence
of a quorum, so that the
councillors were only absent from one meeting?
[123]
In the second case, the correctness of the
DC’s decision involves a consideration of the following
questions:
(a) If the
purported removal of the 11 councillors was unlawful, was Harmse
‘required to attend’ any of the three
meetings from which
he was allegedly absent, given the unlawful exclusion of his
colleagues?  (Again, another way of putting
this question might
be whether, more fundamentally, the said meetings were lawful
meetings in the light of the unlawful ruling.)
(b) Was the
convening of the meeting on 24 February 2014 defective because of an
alleged failure to give notice to Harmse and
Roberts and because of
the admitted absence of publication in a local newspaper? And if so,
was Harmse (who as a fact became aware
that a meeting was to be held)
‘required to attend’ the meeting?
(c) If Harmse was
required to attend the three meetings, was he prevented by the
security guards from attending the meeting of 24
February 2014 (in
which event it is common cause, I think, that he could not be said to
have been absent from it within the meaning
of item 4(2))?
(d) Was Harmse
‘absent’ from the meetings of 25 and 28 February 2014,
given that he signed the attendance register
and was present at the
commencement of the meetings, leaving in protest thereafter?
(e)  Were
there three separate meetings of 24, 25 and 28 February within the
meaning of item 4(2) or, as the applicants
claim, was a single
meeting which started on 31 January 2014 simply resumed on 4 and 6
February 2014 due to the absence of a quorum,
so that the councillors
were only absent from one meeting?
[124]
If the DC or the council had the power to
make a final determination and to impose the sanction of removal, a
determination of one
or more of these questions in favour of the
applicants would or might constitute a ground for reviewing and
setting aside the removal
decisions, on the basis that the decisions
were not authorised by the empowering legislation and were materially
influenced by
errors of law.
[125]
However, and for reasons I have explained,
the final determination and imposition of sanction is in the hands of
the MEC and he
has yet to make a decision. If I were to answer the
questions I have summarised, I would in effect be making the
determination
which the MEC must make and my decision on those
matters would be
res judicata
,
meaning that all that would remain for the MEC would be to impose the
mandatory sanction of removal. It is for the MEC, at least
in the
first instance, to determine the facts and to apply the law as he
understands it to those facts. Although Mr Jamie for the
MEC made
general submissions regarding the interpretation of the Code, the MEC
in his affidavits and Mr Jamie in argument specifically
refrained
from expressing a view as to whether in the present case the DA
coalition councillors had been absent from three successive
meetings
which they were required to attend. That would be a question for the
MEC to determine if the court decided that the final
decision rested
with him and not with the council.
[126]
Another way of putting the same conclusion
is that the decisions of a disciplinary committee or of a council on
these matters do
not adversely affect the rights of the councillor or
have direct, external legal effect, within the meaning of those
concepts in
the definition of ‘administrative action’ in
s 1 of PAJA. The functionary with the right finally to decide
them
is the MEC. The conclusions and recommendations of a
disciplinary committee or council do not have interim effect;
councillors
may not lawfully be suspended by a committee or council
pending the MEC’s decision. Review on the ‘merits’
of
the decision should thus await the MEC’s decision, if
necessary. (Procedural fairness may stand on a different footing,
because,
even though the final decision lies with the MEC, the
investigation and recommendation by a disciplinary committee or
council are
part of a procedure to the benefit of which the
councillor is entitled in the reaching of the final decision on
suspension or removal.
And, of course, if – as in this case –
the disciplinary committee or council has purported to exercise a
power of final
decision-making which in law it does not have, its
decision can on that account be set aside.)
[127]
I thus consider that I should refrain from
determining these further questions. This may seem unfortunate, since
I heard argument
on them and since they may well arise if and when
the MEC makes his decision. However, this does not justify my
usurping the function
of the MEC. The council may or may not refer
the matter to him. If it does, he may decide it one way or the other.
Once he has
applied his mind to the particular circumstances of these
councillors and made his decision, he would be entitled – if
the
decision were taken on review – to defend the decision.
[128]
I may add, on this aspect, that my reasons
for leaving these questions undecided apply
mutatis
mutandis
if I am wrong on the first
question (ie in holding that the MEC is the official power to make
the decision) but right on the second
set of questions (ie that the
DC could not operate in the absence of a USP and was in any event
confined to making a recommendation
to the council). If I am right on
these latter questions, it will be for a disciplinary committee or
the council in due course,
after a USP has been adopted, to determine
the merits of the matter. The questions I defer may arise upon a
review of any decision
by the disciplinary committee or council.
The
validity of meetings and resolutions of 24, 25 and 28 February 2014
[129]
In addition to the three sets of questions
dealt with above, the applicants in the first case seek an order
declaring that the meeting
of 28 February 2014 was a nullity and an
order setting aside all resolutions taken at that meeting. In the
second case, the applicants
seek similar relief not only in relation
to the meeting of 28 February 2014 but also in relation to the two
preceding meetings
of 24 and 25 February 2014.
[130]
Since I have found that the 11 councillors
were not lawfully removed, their exclusion from the council meetings
on and after 24
February 2014 was unlawful. The same is true for
Harmse’s exclusion from meetings subsequent to his purported
removal on
17 April 2014. At least in the case of the meeting of 24
February 2014, the meeting may also have been defective because
notice
thereof was not published in a local newspaper.
[131]
The unlawful exclusion of these councillors
may, depending on the circumstances, justify setting aside one or
more of the resolutions
passed by the council on 28 February 2014.
However, in terms of the principle laid down in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004
(6) SA 222
(SCA) the decisions taken at the meeting stand unless set
aside, even though in law the meeting may have been unlawful. Insofar

as the council purported on 28 February 2014 to ‘note’
the removal of the 11 councillors, the relief I intend granting
will
make it clear that they were not lawfully removed. For the avoidance
of doubt, the resolution to note the removal should be
set aside,
though the resolution probably has no substantive effect in any
event.
[132]
In regard to the other decisions taken on
28 February 2014 (which was a quorate meeting despite the absence of
12 DA coalition councillors),
I am not satisfied that the papers
sufficiently canvass the prejudice and disruption which may arise if
the decisions are set aside.
Virtually no attention was devoted to
the matter in argument. The applicants will be entitled to approach
the court by way of a
fresh application if they consider that one or
more of those decisions should be set aside.
[133]
In regard to the meetings of 24 and 25
February 2014, they were left inquorate by the absence of the 13 DA
coalition councillors
and no decisions were taken. There are thus no
resolutions that need to be set aside. (The same happens to be true
of the earlier
meetings of 31 January and 4 February 2014.)
[134]
The lawfulness of the meetings of 24, 25
and 28 February 2014 is, of course, a matter relevant to a
determination of the question
whether Harmse was absent from three
meetings which he was ‘required to attend’ within the
meaning of item 4(2). A
similar question arises in relation to the 11
councillors in respect of the meetings of 31 January 2014 and 4 and 6
February 2014.
I have explained, however, that I do not think it
would be right for the court at this stage to decide questions which
the MEC
will need to determine if and when a recommendation is made
to him for the removal of the councillors.
[135]
As I have said, in the first case a
question of law which the MEC will need to consider is whether the 11
councillors were ‘required
to attend’ the meetings of 31
January 2014 and 4 and 6 February 2014, given the unlawful suspension
of Nel and Van Wyk’s
voting rights. In the second case, there
is a similar question of law which the MEC will need to consider,
namely whether Harmse
was ‘required to attend’ the
meetings of 24, 25 and 28 February 2014, given the unlawful exclusion
of the 11 councillors
(and, of course, the fact that they were not
even invited to the meetings).
[136]
In that regard, a distinction may need to
be drawn between the state of affairs which prevailed at the point
the DA coalition councillors
absented themselves and the state of
affairs which prevailed after the remaining councillors purported to
make decisions. The only
relevant meetings which were quorate despite
the absence or departure of DA coalition councillors were the
meetings of 6 and 28
February 2014. On
Oudekraal
principles, the decisions taken at
those meetings might stand. Whether a court would set them aside
would require a consideration
of the prejudice and disruption which
might ensue if such an order were made, having regard to the
circumstances obtaining at the
time the court is called upon to
exercise its review power. Notionally certain resolutions might be
set aside and others not. On
the other hand, an obligation to attend
a meeting (as connoted by the phrase ‘required to attend’)
may require an assessment
of the circumstances prevailing at the time
the councillor decides not to attend or decides to leave. The fact
that, looking back
after the lapse of some time, a court decides that
resolutions should be allowed to stand does not mean that,
retrospectively as
it were, a councillor can be found to have acted
in breach of his obligations by not attending the meetings.
[137]
I have said on more than one occasion in
this judgment that the speaker unlawfully suspended Nel and Van Wyk’s
voting rights
at the meetings of 31 January and 4 and 6 February
2014. That has been finally determined in the judgment of Schippers
J, all avenues
of appeal having failed. A misconception in the
respondents’ answering papers and written submissions is that
the suspending
effect of the applications for leave to appeal to the
Supreme Court of Appeal and Constitutional Court meant that the
refusal to
allow Nel and Van Wyk to exercise their voting rights at
these meetings was not unlawful. That is obviously not so. Schippers
J
gave a declaration as to the legal position. The fact that the
Municipality and Stoffels applied for leave to appeal does not mean

that Stoffels’ conduct was temporarily lawful. A person who in
the meanwhile acted on the view that Schippers J’s declaration

was correct may have been at risk if on appeal the legal position was
found to have been different from his declaration, but that
did not
occur.
[138]
However, the question whether, despite the
unlawful suspension of Nel and Van Wyk’s voting rights, they
and the other DA coalition
councillors were nevertheless ‘required
to attend’ the three meetings which they allegedly failed to
attend is something
in the first instance for the MEC to decide if
the matter is ever referred to him. The same applies to the question
whether, in
turn, the unlawful removal of the 11 councillors had a
‘domino effect’ which freed Harmse from the obligation of
attending
the three meetings which he allegedly failed to attend.
Conclusion
[139]
The applicants are thus entitled to the
orders which are set out below.
[140]
In regard to costs, the applicants in each
case seek costs effectively only against the Municipality. The office
bearers joined
as respondents were cited
nomine
officii
and Mr Rosenberg stated in
argument that the applicants did not seek costs against them in their
personal capacities. I confess
to a considerable measure of unease at
this state of affairs. It appears to me that, once again, the
ratepayers are being asked
to foot the bill for ongoing battles
between political factions. Given the stance adopted by the parties
on costs and the limited
argument on the matter, I do not think it
would be fair for me to deprive the applicants of their costs or to
order that the costs
be paid personally by any of the individual
respondents. However, all councillors and the parties to which they
belong should be
warned that in future litigation the court may wish
to be more fully addressed on why they, rather than the ratepayers,
should
not be ordered to pay or bear the costs of this type of
litigation.
[141]
I
am aware of the protection against civil liability accorded to
councillors by  s 28 of the Structures Act,
[8]
the provisions of which were considered in
Swartbooi
& Others v Brink & Others
2006
(1) SA 203
(CC). While the scope of the protection afforded by s 28
as interpreted in
Swartbooi
is
wide, it may not be limitless. In para 22 Yacoob J, writing for a
unanimous court, said the following:
‘
Interesting
hypothetical questions were raised during argument concerning the
outer limits of this protection. For example, whether
members of a
council would be protected from criminal liability if they admitted
in the course of legitimate council proceedings
that they had
committed a serious criminal offence, or whether councillors would
attract personal liability if they utilise the
processes of the
council for a party political or some other ulterior purpose. None of
these issues arises in this case. There
may be conduct that is so at
odds with the values mandated by our Constitution that neither the
Constitution nor the National Legislature
could conceivably have
contemplated its protection. It is unnecessary to decide these issues
here…’
[142]
Councillors in general should also bear in
mind that, if they cause a municipality to raise meritless claims or
put up meritless
defences and if as a result their municipality is
ordered to pay costs to the other litigant, they may, in terms of
s 32
of the
Local Government: Municipal Finance Management Act
56 of 2003
, become personally liable for deliberately or negligently
making or authorising ‘fruitless and wasteful expenditure’

(defined in
s 1
of that Act as meaning ‘expenditure that
was made in vain and would have been avoided had reasonable care have
been exercised’).
[143]
I cannot but think that, over the past
several years, the political factions in this Municipality have
allowed their unseemly jockeying
for power to distract them from the
mandate laid down in s 152 of the Constitution, s 19(2) of
the Structures Act and
s 6(2) of the Systems Act. They exist for
the community, not the other way round.
[144]
Despite contrary argument, I do not think
there is any basis for depriving the applicants of any of the
reserved costs. The cases
were urgent. In each case interim
arrangements for the protection of the removed councillors were
reached and in the event the
applicants have been vindicated. It is
also clear to me that the cases were eminently suitable for
consolidation and that the opposition
to consolidation was
ill-founded.
[145]
In Case 3517/2014 I make the following
orders:
(a) The decision of
a disciplinary committee comprising the second to fourth respondents,
made on or about 17 February 2014, that
the third to thirteenth
applicants were removed from their seats on the first respondent’s
council (‘the council’),
is reviewed and set aside.
(b) It is declared
that the third to thirteenth applicants have at all material times
remained members of the council.
(c) The council’s
purported noting, at a meeting on 28 February 2014, of the third to
thirteenth applicants’ removal
is set aside.
(d) The first
respondent and its officials and the eighth respondent (‘the
IEC’) are interdicted from taking any action
to call for or
hold by-elections in respect of the seats held by the third to
seventh applicants on the council (being the seats
for wards 1, 2, 3,
11 and 12) as a result of the decision in (a).
(e) The IEC is
interdicted from taking any action to fill the seats held by the
eighth to thirteenth applicants as a result of the
decision in (a).
(f) The first
respondent is directed to pay the applicants’ costs, including
the costs of two counsel, such costs to include
those which stood
over for determination on 6 March 2014 and 26 May 2014.
(g) The alternative
prayer for an order of constitutional invalidity, contained in para
10 of the notice of motion, is postponed
sine die
. In the
event that the applicants or the ninth respondent consider that a
costs order should be made in respect of the claiming
of such relief,
the question of costs matter may be set down for hearing on due
notice.
(h) No order is made
on the remaining prayers in the notice of motion.
[146]
In Case 8813/2014 I make the following
orders:
(a) The decision of
a disciplinary committee comprising the second to fourth respondents,
made on or about 11 April 2014, that the
second applicant had
absented himself from three consecutive meetings of the first
respondent’s council (‘the council’)
on 24, 25 and
28 February 2014 in contravention of item 4(2) of Schedule 1 to the
Local Government: Municipal Systems Act 32 of 2000
, is reviewed and
set aside.
(b) It is
declared that the second applicant has at all material times remained
a member of the council.
(c) The first
respondent and its officials and the eighth respondent (‘the
IEC’) are interdicted from taking any action
to call for or
hold by-elections in respect of the seat held by the second applicant
on the council (being the seat for ward 13)
as a result of the
decision in (a).
(d) The first
respondent is directed to pay the applicants’ costs, including
the costs of two counsel, such costs to
include those which stood
over for determination on 5 June 2014.
(e) The
alternative prayer for an order of constitutional invalidity,
contained in para 9 of the notice of motion, is postponed
sine
die
. In the event that the applicants or the ninth respondent
consider that a costs order should be made in respect of the claiming

of such relief, the question of costs matter may be set down for
hearing on due notice.
(f) No order is
made on the remaining prayers in the notice of motion.
______________________
ROGERS
J
APPEARANCES
For Applicants: Mr
SP Rosenberg SC and Mr D Borgström (both cases)
Instructed
(in both cases) by:
Minde
Shapiro Smith Attorneys
Tygervalley
Office Park Building No. 2
Cnr
Willie van Schoor & Old Oak Roads
Bellville
For First to Sixth
Respondents: Mr WJ Vermeulen SC & Mr JP Snijders
(Case 3517/14)
Instructed
by:
Mills Attorneys
Plettenberg Bay
Mr
H van der Linde SC & Mr JP Snijders
(Case
8813/14)
Instructed
by:
Webber Wentzel
15
th
Floor, Convention Tower
Heerengracht,
Foreshore
Cape
Town
For Seventh
Respondent: Mr I Jamie SC & Ms M Adhikari (both cases)
Instructed
(in both cases) by:
State
Attorney (Ms T Gangen)
4
th
Floor, 22 Long Street
Cape
Town
For Ninth
respondent: Mr AT Ncongwane SC & Mr K Ramaimela
(both cases)
Instructed
by:
State
Attorney (Ms T Gangen)
4
th
Floor, 22 Long Street
Cape
Town
[1]
Only
certain pages of the Delegations were annexed to the papers. During
argument, and by agreement, the whole of
Part 4
of the Delegations
(pp 66-86 of that document) was handed up.
[2]
Nel
v Oudtshoorn Municipality
Case
18083/2010 WCHC (judgment delivered 7 June 2011); appeal dismissed
in [2013] ZASCA 37.
[3]
[2013]
ZAWCHC 174; [2014] 1 All SA 221 (WCC).
[4]
The
first of these cases was decided prior to the amendment of item
14(4) of the Code. The other two cases were decided subsequent
to
the amendment.
[5]
Whether,
having regard to the language of item 14(2), it is permissible for a
council to delegate to a disciplinary committee
the power actually
to impose a fine as distinct from making a recommendation in that
regard to the council need not be decided.
[6]
Paras
25-30 record 787-789 (first case).
[7]
Cf
Democratic
Alliance & Another v Masondo NO & Another
[2002] ZACC 28
;
2003
(2) SA 413
(CC) paras 18, 42 and 61.
[8]
Substantially
repeated
in
s 3 of the Western Cape Privileges and Immunities of
Councillors Act 7 of 2011.