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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 91569/19

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

27/12/19

In the matter between:

DEMOCRATIC ALLIANCE                                                                                      Applicant

and

CITY OF TSHWANE METROPOLITAN MUNICIPALITY                            First Respondent

SPEAKER OF TSHWANE

METROPOLITAN MUNICIPALITY                                                        Second Respondent

EXECUTIVE MAYOR OF CITY OF TSHWANE

METROPOLITAN MUNICIPALITY                                                            Third Respondent

AFRICAN NATIONAL CONGRESS                                                        Fourth Respondent

ECONOMIC FREEDOM FIGHTERS                                                          Fifth Respondent

CONGRESS OF THE PEOPLE                                                                 Sixth Respondent

AFRICAN CHRISTIAN DEMOCRATIC PARTY                                   Seventh Respondent

PAN AFRICANIST CONGRESS OF AZANIA                                         Eighth Respondent

FREEDOM FRONT PLUS                                                                         Ninth Respondent

OBAKENG RAMABODU                                                                          Tenth Respondent

 

CASE NO; 92212/2019

 

In the matter between:

COUNCILLOR ZWELIBANZI CHARLES KHUMALO                                    First Applicant

COUNCILLOR KATLEGO RACHEL MATHEBE                                       Second Applicant

COUNCILLOR STEVENS MOKGALAPA                                                      Third Applicant

COUNCILLOR ABEL MATSHIDISO TAU                                                    Fourth Applicant

and

COUNCIL OF THE CITY OF TSHWANE

METROPOLITAN MUNICIPALITY                                                             First Respondent

COUNCILLOR OBAKENG RAMABODU                                             Second Respondent

MEMBER OF THE EXECUTIVE COUNCIL;

GAUTENG PROVINCIAL DEPARTMENT FOR

LOCAL GOVERNMENT AND HOUSING                                                  Third Respondent

WILLY SHILA: DEPUTY DIRECTOR GENERAL

DEVELOPMENT AND PLANNING: GAUTENG

PROVINCIAL DEPARTMENT FOR LOCAL

GOVERNMENT AND HOUSING                                                             Fourth Respondent

ECONOMIC FREEDOM FIGHTERS                                                          Fifth Respondent

AFRICAN NATIONAL CONGRESS                                                          Sixth Respondent

CONGRESS OF THE PEOPLE                                                            Seventh Respondent

AFRICAN CHRISTIAN DEMOCRATIC PARTY                                      Eighth Respondent

DEMOCRATIC ALLIANCE                                                                        Ninth Respondent

FREEDOM FRONT PLUS                                                                        Tenth Respondent

PAN AFRICANlST CONGRESS                                                          Eleventh Respondent

 

JUDGMENT

 

Tuchten J·

1 These two cases came before me as matters of urgency on 6 December 2019. They concern precisely the same events and the relief sought and legal issues involved in the two cases are similar. I proposed that they be argued together and the parties represented before me agreed that this was the right way to deal with them.

2 Toe litigation arises because of what happened in the council chamber of the municipality of Tshwane {the City). Three of the litigants which were represented before me, the Democratic Alliance (the DA). the African National Congress (the ANC) and the Economic Freedom Fighters (the EFF), are political parties which are locked in conflict for political control of the City. These three parties are the largest political parties in the Tshwane City Council (the Council)

3 The four DA councillors in the Council who are the applicants in case no 92212/19 were represented separately from their party, the DA. Councillor Obakeng Ramabodu, the second respondent in that case and the tenth respondent 1n case no 91569/19, whose role in the litigation I shall later explain and who is also a City councillor, was represented by counsel who also appeared for the EFF. The ANC was represented by two counsel, both of whom addressed me. None of the other respondents appeared or participated in the applications. For convenience I shall call case no. 9156/19 the DA application I shall call case no. 92212/19 the councillors' application. I shall refer to the opposing respondents collectively as the respondents.

4 The relief sought In the DA application is for the suspension of all resolutions passed by the City Council on 5 December 2019. The relief sought by the councillors is the suspension of certain specified actions in the Council. In both applications, the relief is sought pending the determination of proceedings to set the resolutions aside Counsel were agreed that the relief sought was in the nature of temporary interdicts. I do not think that in substance the two forms of relief are materially different

5 On 6 December 2019, only the EFF appeared through counsel to oppose the relief sought. I granted an order temporarily suspending the resolutions until17 December 2019, the day I designated for the hearing of the applications. On 17 December 2019, the EFF, the ANC and Councillor Ramabodu appeared through counsel to oppose. On 17 December 2019, the ANC asked for more time to respond to the DA application, I extended the suspension order until I handed down judgment in the applications without objection from the respondents and the proceedings were adjourned to 19 December 201.9 On that day the EFF tendered further affidavits, which I allowed, the two cases were argued and the proceedings adjourned for judgment.

6 The requirements for an interim interdict are too well known to require the recitation of authority. An applicant for an interim interdict must show a prima facie right, even if it is subject to some doubt; a reasonable apprehension of irreparable and imminent harm to the right if an Interdict is not granted; that the balance of convenience favours the granting of the interdict: and that the applicant does not have another remedy. And even if an applicant establishes all this, an interdict remains a discretionary remedy and the court retains a judicial discretion to refuse to grant the interdict.

7 The litigation was Immediately precipitated by motions of no confidence, firstly, in the executive mayor of the City, Councillor Mokgalapa, submitted by the EFF; and secondly, in the executive mayor and the speaker, Councillor Mathebe, submitted by the ANC. Speaker Mathebe rejected the ANC's motion of no confidence on a procedural ground. The meeting to consider these resolutions was adjourned on 29 November 2019.

8 The Local Government Municipal Structures Act[1] (the Structures Act) largely governs the legal position relevant to this litigation. Each municipal council must have a speaker[2] who must be a councillor[3]. One of a speaker's functions is to preside at council meetings[4]. Such a speaker Is elected for a term and vacates office during such a term when he or she resigns, is removed from office or ceases to be a councillor.

9 The rejection of the ANC's motion prompted a petition to Speaker Mathebe by the ANC and the EFF on 2 December 2019 for special council meetings to be held very shortly thereafter. Section 29(1) of the Structures Act requires a speaker lo convene a council meeting if a majority of councillors request it. Of significance to the present litigation, any two of the three major parties in the City Council, acting together, constitute a majority of councillors.

10 After correspondence, Speaker Mathebe convened two special council meetings. The purpose of the first such meeting (the earlier meeting) was to consider a motion to remove Speaker Mathebe from office. The purpose of the second such meeting (the later meeting) was to continue the council meeting of 29 November 2019, which included a consideration of the motion of no confidence in Mayor Mokgalapa.

11 The two special council meetings were ultimately scheduled to take place on 5 December 2019.

12 The earlier meeting, which it is accepted was quorate, began with an opening prayer or meditation, followed by applications for leave of absence, The next two items on the agenda of the earlier meeting were for unopposed proposals by Speaker Mathebe and other proposals allowed by her if acceptable.

13 But before the third agenda item could be dealt with, Speaker Mathebe recused herself on the basis that the fourth agenda item, the motion of no confidence in her, placed her in a conflicted position. The Chief Whip of the ANC objected to Speaker Mathebe's recusal before the fourth agenda item was reached but Speaker Mathebe stood by her decision.

14 Councillor Khumalo, the first applicant in the councillors' application, then proceeded to take the place of Speaker Mathebe as Acting Speaker.

15 I have the benefit of video evidence in this case. I have had regard especially to the video submitted in evidence by the EFF without objection from any of the other litigants. This video, in length a little short of 15 minutes (the long video). was shot by a news crew of the TV channel eNCA and broadcast live to the nation. with commentary from an eNCA anchor and reporter or reporters. The long video was made available by eNCA to the EFF. The long video and other video materials were downloaded to a flash drive which constituted exh 1 before me.

16 The video evidence shows that the speaker in the Council chamber presides ln the true sense of the word. The-speaker's chair is on a raised podium similar to that in the court in which this litigation was heard. The podium is raised above the floor of the Council chamber, which is provided with seating for councillors and, I assume other officials in the City. The Speaker's chair has in front of it a small desk, no doubt for documents. In front of the Speaker's chair and desk is seating for ten or so officials. At the time with which we are dealing, the long video shows that there were six officials seated there.

17 The long video begins with what appears to have been robust argument between EFF members and other persons at the foot and to the immediate left of the podium, as one faces the podium[5]. I am unable to identify from the video the identities of the other participants, except that Speaker Mathebe was one of the group present at or engaged in the robust argument. The camera then tracks Speaker Mathebe, who appears to have been indignant, moving toward the exit from the Council chamber.

18 But Speaker Mathebe did not leave the Council chamber. She sat down on a seat towards the back of the chamber.

19 A number of EFF members, at my estimate about four or five, then gestured toward Acting Speaker Khumalo from immediately in front of the podium Their gestures were in the form of waving away, body language to express the wish of the individuals that Acting Speaker Khumalo should vacate his position.

20 First one, then a total of three, EFF members strode onto the podium and placed themselves right next to Acting Speaker Khumalo, within his personal space. They addressed words to Acting Speaker Khumalo which were not captured on the long video. But their gestures and what went before demonstrate beyond doubt that they were demanding that Acting Speaker Khumalo vacate his chair of office.

21 The three EFF members were Joined after a few seconds by other persons to the right as one faces the podium, some of whom were in civilian clothes. at least one of whom was an EFF member and some of whom were dressed in a paramilitary style uniform. An EFF member and a person in paramilitary uniform both laid a hand on Acting Speaker Khumalo. One of the persons on the podium (not in any uniform) then wrested Acting Speaker Khumalo's chair away from him and tilted it. making it impossible for Acting Speaker Khumalo to continue sitting.

22 Up to this stage, Acting Speaker Khumalo remained seated, quite passive and silent, without provoking those who had intruded onto his podium. But when his chair was wrested away from him, Acting Speaker Khumalo stood up. The Speaker's chair was entirely removed from behind the desk and the persons there present continued to gesture to Acting Speaker Khumalo to vacate his post.

23 At this stage there appeared to be some ten persons, none of whom had been invited by Acting Speaker Khumalo, on the Speaker's podium. The Speaker's chair had been drawn away to the right as one faces the podium.

24 Acting Speaker Khumalo remained standing at his post on the podium and behind his desk, for the most part surrounded by persons gesticulating at him to leave his post, for almost three minutes. During this time, he stood for the most part silent and with his eyes cast down. Towards the end of this period, he appears to have addressed a few words to someone.

25 The camera then moved to cover the rear of the chamber. But less than four minutes after the Acting Speaker had been removed from his chair, an eNCA reporter stated that "it looked like the Acting Speaker had been removed by the masses of the EFF...”.

26 The camera then moved to cover the events taking place at the front of the chamber. An eNCA anchor or reporter described "masses of applause as the Acting Speaker was ejected. The video shows Acting Speaker Khumalo standing on the floor of the chamber, surrounded by more than ten persons, immediately below and to the left of the podium as one faces it. An EFF member replaced the Speaker's chair in its proper place behind the desk. That ended the relevant events depicted on the long video.

27 Acting Speaker Khumalo then remained in the Council chamber throughout the remainder of the events I shall proceed to describe.

28 It appears that instead of urging Acting Speaker Khumalo to take up his post again (and, perhaps. apologising to him for what had happened) member of the Council then approached the City Manager to preside over the earlier meeting in the absence of the Speaker. This was done ostensibly because 9f the provisions of s.36(3) of the Structures Act. which provides:

The municipal manager of the municipality or, if the municipal manager is not available. a person designated by the MEC for local government in the province, presides over the election of a speaker.

29 There was considerable debate before me about the meaning of the word "available". But it will be recalled that the earlier meeting was not called to elect a speaker but to consider a motion of no confidence in the then existing speaker, Councillor Mathebe. This debate is more appropriately conducted against a consideration of s 41 of the Structures Act, which reads:

If the speaker of a municipal council is absent or not available to perform the functions of speaker, or during a vacancy, the council must elect another councillor to act as speaker.

30 It is for the purpose of electing a new speaker that a municipal manager presides, not for the purpose of considering a motion of no confidence in a speaker. It seems to me that the recourse to the Municipal Manager for the purpose of presiding over the earlier meeting was futile because the earlier meeting was not called for the purpose of electing a new speaker. But I shall nevertheless consider the question of availability of the speaker under s 41.

31 I accept that Speaker Mathebe became unavailable on her recusal Acting Speaker Khumalo replaced Speaker Mathebe, upon her recusal, because of a resolution of the Council taken on 26 January 2017, pursuant to which Councillor Khumalo was appointed Acting Speaker if the Speaker was unavailable to preside over meetings. It was common cause between counsel before me that the resolution of 26 January 2017 was valid. It was equally common cause that when Speaker Mathebe recused herself, the earlier meeting of 5 December 2019 resumed under the speakership of Acting Speaker Khumalo.

32 The question of availability was considered by the Supreme Court of Appeal in Judicial Service Commission and Another v Cape Bar Council and Another[6] in relation to ss 2(1) and 2(2) of the Judicial Service Commission Act[7]. Th e SCA held[8] a person who ought to have been invited to a meeting of the JSC but was not, and then did not attend the meeting merely because he was not invited, was not "unavailable" in terms of the sections.

33 This is an Indication that the term "unavailable" would exclude certain situations in which the person In question was not present to participate for reasons other than that such a person had· taken a decision not to be present or, in cases like the present, was not willing to perform the functions entrusted to that person.

34 The question of the proper meaning of "unavailable" must be determined according to the by now well known principles of interpretation of documents, of which statutory interpretation is a species. As was so trenchantly observed in Potgieler v Olivier and Another,[9] In Natal Joint Municipal Pension Fund v Endumeni Municipality[10] the Supreme Court of Appeal has provided an exposition of the principles of Interpretation. It is a unitary exercise that requires the consideration of text context and purpose.

35 In the present case, I am guided to a large extent by the purpose for which the measure was enacted: to promote the orderly disposal by a city council of its business in ifs council meetings, presided over by a person exercising the functions of the speaker identified ins 37 of the Structures Act.[11]

36 The present factual situation is far removed from that considered by the SCA. In the present case, the question seems to me whether Acting Speaker Khumalo vacated his post because he was coerced into doing so by unlawful means within the Council chamber or whether he did so of his own volition.

37 This is not a case in which a speaker decided of his ·or her own volition to leave the council chamber and abandon the performance of the speaker’s functions under s 37. On the contrary, the evidence shows that Acting Speaker Khumalo remained in the Council chamber throughout, ready and able to resume his duties.

38 I debated with counsel what the position would be if a speaker were prevented by forces beyond his control from actually reaching the council chamber to perform his duties. I think the answer would turn on whether such a speaker were able to perform his functions. But fortunately I am not required to decide that question. That is because, as I have said, Acting Speaker Khumalo remained in the Council chamber throughout, ready and able to resume his duties. He was therefor neither absent nor unavailable.

39 It would entirely defeat the purpose of the measure if a speaker were held in the present circumstances to be unavailable. A speaker is elected by the members of a municipal council who are themselves elected by the voters. lt would be subversive of the scheme of regulation of democracy at a local government level, of which the Structures Act forms an "integral part, if a grouping could engineer the incapacity of a speaker in such circumstances.

40 I must therefore categorise the conduct of those persons who mounted the podium, laid hands on Acting Speaker Khumalo and quite literally and by physical actions, deprived him of his seat.

41 Presiding officers generally must act impartially and Without fear or favour.[12] Presiding officers cannot perform their functions if they are subjected to coercion by members of the public or members of the bodies over which they preside Presiding officers generally preside from a sitting position. That is why presiding officers are quite often described as the Chair or, in the modern idiom, Chairperson The chair from which a presiding officer performs his or her duties is a symbol of the authority vested in him or her. More often than not the podium from which a presiding officer provides is elevated above the body over which he or she presides.

42 In a court; counsel does not even come close to the bench from which the judicial officer presiding performs his or her duties without first asking permission to do so. Toe notion of a legal representative manhandling a judicial officer or wresting away the chair provided for a judicial officer is so far removed from our practice that I have never heard or read of a case in which that has happened.

43 Can that principle be applied to a speaker in a municipal council? With due regard to the different codes of conduct which govern behaviour in courts and municipal councils respectively, I believe it can.

44 Counsel for the ANC reminded me of the dictum in Democratic Alliance v African National Congress and Another[13]. At paras 133- 135[14] the majority held:

Political life in democratic South Africa has seldom been polite, orderly and restrained, It has always been loud, rowdy and fractious That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

During an election this open and vigorous debate is given another, more immediate, dimension. Assertions, claims. statements and comments by one political party may be countered most effectively and quickly by refuting them in public meetings, on the internet; on radio and television and in the newspapers. An election provides greater opportunity for intensive and immediate public debate to refute possible inaccuracies and misconceptions aired by one's political opponents.

So freedom of expression to its fullest extent during elections. enhances, and does not diminish, the right to free and fair elections.

The right individuals enjoy to make political choices is made more meaningful by challenging, vigorous and fractious debate.

45 I accept unreservedly that this applies to debate within the council chamber, subject of course to the rules applicable to such debates. But what was not in any way covered or countenanced by the dictum I have quoted was a situation in which council members or members of the public leave their seats and invade the personal space of the officer presiding in the council chamber. In the present case this was aggravated by the fact that the very persons who had invaded Acting Speaker Khumalo's personal space laid hands on him and physically forced him to vacate the symbol of the office he held, namely his chair.

46 It follows that I reject the submission of counsel for the several respondents that what was demonstrated was merely loud, rowdy and fractious politics. It was not. It was violence directed at the officer lawfully presiding at the earlier meeting on 5 December 2019.

47 Counsel for the EFF submitted that Acting Speaker Khumalo was the author of his own misfortune: he ought, counsel submitted, to have been bolder in the assertion of his authority. I disagree. Acting Speaker Khumalo was alone on the podium. He might have been joined there for a while after the invasion of his personal space by members of his own party but efforts to resist the invaders might well have led to more serious violence. That is not a choice with which a presiding officer ought to be confronted and his acquiescence in the demands of the invaders cannot be equated with a voluntary decision to stand down. To add to all this, no member of the duly constituted protection services such as the SAPS came- to his assistance. The only people on the podium in uniform were invaders.

48 I therefore conclude that Acting Speaker Khumalo was not unavailable to continue the earlier meeting on 5 December 2019. Neither was he absent. The attempted institution oi a person other than Acting Speaker Khumalo to continue the meeting was therefore unlawful.

49 I must mention that the initial position of the several applicants was that there was a dispute of fact in regard to what happened in the Council chamber. These arguments were made before the long video was put up by the EFF. The denials of unlawful violence by the respondents simply cannot stand in the light of this evidence.

50 As s 36 of the Systems Act makes clear, a municipal council must have a speaker and under s 37 the speaker must, subject to availability, preside at council meetings. In the present circumstances the-fact that the available speaker did not preside at earlier meeting of5 December 201.9 rendered the proceedings after Acting Speaker Khumalo was coerced into leaving the podium unlawful.

51 I have described how the City's Municipal Manager was approached by councillors from the ANC to preside over the continued earlier meeting on 5 December 2019. He declined to do so. I shall assume that this rendered the City Manager unavailable.

52 Differing versions are given regarding what happened next. The ANC says[15] that the City Manager “handed over" his authority to the MEC under s 36 (3) of the Structures Act. But this measure does not empower the City Manager to delegate his authority to the MEC.[16]

53 According to the EFF,[17] the (Acting) Municipal Manager was apparently present in the Council chamber during the earlier meeting. But the EFF says, the Municipal Manager was unable to undertake the functions of a speaker as he was threatened by legal action by the DA The Municipal Manager made an affidavit in support of the EFF's case.

54 According to the EFF, the ANC then called the fourth respondent in the councillors' application, the MEC, and asked him to designate a person to act in accordance with s 36(3) of the Structures Act and preside over the election of a speaker.

55 But the ANC does not say that it asked the MEC to send a representative to act as required. Moreover there are no affidavits or indeed any documents at all, demonstrating that the MEC designated any person to act

56 Be that as it may, the fourth respondent in the councillors' application, Mr Willy Bhila, an official in the Gauteng Provincial Government, proceeded to act Apparently Mr Bhila presided at the earlier meeting called for the purpose of considering the motion of no confidence in the Speaker.

57 It then seems that Mr Shila purported to preside at a meeting at which a new acting speaker was appointed. However, as Acting Speaker Khumalo was not unavailable and even if it were established (which it was not) that the MEC had designated Mr Shila to act, this action was unlawful and consequently of no force. Moreover the resolution to appoint an acting speaker was not preceded by any documentation or notice to members.

58 Under the purported authority of Mr Bhila, Councillor Ramabodu was ostensibly appointed as acting speaker. Under Councillor Ramabodu's ostensible speakership, the Council purportedly approved the motions of no confidence in Speaker Mathebe and Mayor Mokgalapa.

59 Council for the ANC submitted that even if I held that the earlier meeting was invalidly held after the Violence towards Acting Speaker Khumalo, none of this impugned the validity of the later meeting. This cannot be correct. Speaker Mathebe was only unavailable for the earlier meeting. Once the earlier meeting did not result in her vacating her office under s 39(b) of the Structures Act, she remained in office and was thus available to preside over the later meeting. If for any reason she was unavailable, Acting Speaker Khumalo was available for this purpose.

60 I shall now consider several special matters raised by counsel for the ANC, described as points in limine, which I ruled I should most conveniently consider in the context of the cases as a whole. I must mention that the points made in oral argument were quite significantly different from those foreshadowed in the answering affidavit and heads of argument I shall respond to the oral arguments.

61 There was an attack on urgency and on what was described as the jurisdiction of this court to entertain the applications. The argument was in essence that the applicants ought to have availed themselves of the relief afforded them by rule 14(1) of the Rules and Orders By­laws.[18] Rule 14(1) reads:

A request by a member for the review of a resolution in terms of section 59(3) of the Municipal Systems Act may be submitted during the course of a meeting, and the request must state the reasons for the review.

62 Section 59 of the Municipal Systems Act[19] deals with delegations and s 59(3) reads:

The municipal council-

(a)  In accordance with procedures in its rules and orders, may, or at the request in writing of at least one quarter of the councillors, must. review any decision taken by such a political structure, political office bearer, councillor or staff member in consequence of a delegation or instruction, and either confirm, vary or revoke the decision subject to any rights that may have accrued to a person; and

(b)  may require its executive committee or executive mayor to review any decision taken by such a political structure, political office bearer, councillor or staff member in consequence of a delegation or instruction.

63 Rule 14 is of no assistance to the ANC for two reasons. Firstly, it is applicable only to reviews of decisions taken by delegates exercising powers delegated to them by the City Council. The present cases do not fall within the scope of rule 14. Secondly, the present are applications for urgent interim relief pending reviews. Neither rule 14 nor the Municipal Systems Act provides for interim relief.

64 The present cases demand urgent resolution. Matters of great public importance regarding the governance of the City have been raised. There is at present uncertainty as to which persons, representing which political parties, should exercise certain very important governance functions within the City. It is of great importance that the court cases to determine the outcome of the legal challenges which have been raised should be heard and dealt with as soon as possible.

65 I hold that the matters are urgent and that rule 14 in the City by-laws is of no application in the present context. There should be no procedural impediment to the due consideration of the Issues raised by the present applications.

66 The ANC submitted that the DA application was flawed by the non­joinder of Speaker Mathebe. This point strikes me as highly artificial because Speaker Mathebe was an applicant in the councillors' application although not cited as a respondent in the DA application. The point can have no effect on the order sought by the councillors.

67 Be that as it may, the test for mandatory joinder is not merely whether the party in question has an interest in the outcome of the litigation but whether that party has a direct or substantial interest which may be affected prejudicially by the judgment of the court in the proceedings in question.[20]

68 In my view Speaker Mathebe has no interest which might be prejudicially affected by the Judgment of this court in the present litigation. There is a strong probability amounting very nearly to a certainty that if cited in the DA application, she would have supported it.

69 The ANC argues that some of the allegations in the founding affidavit made by Ms Bosch in the DA application must have been hearsay because she conceded that she had not been present at all times in the Council chamber during the events I have described.

70 In urgent applications, a court is permitted to receive hearsay evidence. In the present case, the ANC has answered each of the allegations made by Ms Bosch. Where her allegations are admitted, it would be technical in the extreme to refuse to have regard to them. In reply, the DA put up an affidavit by a deponent who was present throughout the events I have described.

71 There is no indication on the papers as to exactly which of the allegations of Ms Bosen the ANC asserts constitute hearsay. It is therefore not possible to identify precisely what is said to be unproven. And finally, it is unnecessary to have much regard to the impressions of the various deponents about what happened in the chamber; the long video shows what happened.

72 The ANC argues that the relief which I granted on 6 December 2019 was granted erroneously. It suggests that the ANC did not get notice of the hearing on that date and that the interim order printed by the registrar of this court is somehow suspect because It bears two case numbers and does not have the rather long citations of the names of the applicants and the respondents.

73 The electronic recording of the proceedings on 6 December 2019 will show that I was at pains to ensure that all parties cited received notice of the proceedings. I was informed from the bar that pursuant to my remarks in this regard on 6 December 2019, one of the attorneys for the applicants telephoned the chief whip of the ANC who is !raid to have confirmed to the attorney that the ANC was aware of the proceedings but would not attend court to oppose. This statement from the bar was not contradicted by counsel for the ANC.

74 The form of the court order printed and issued by the registrar could not have caused the ANC any substantial confusion. There are two case numbers on that order because the order was made pursuant to the two applications which are presently before me. The omission of the names of the parties could similarly not have caused the ANC con fusion. If it had examined the court files, listened to the electronic recording or asked the EFF, its ally for the purpose of the no confidence motions, or the attorneys for the applicants for clarification, the ANC would swiftly been disabused of its alleged confusion. The ANC did none of these things because. in my view, it was factually under no misapprehension about what had happened during the proceedings in question.

75 The EFF was represented on 6 December 2019. The EFF does not suggest that the proceedings on that date were in any way improper. And, in any event, all the parties represented before me consented to the extension on the suspension order made on 6 December 2019up to the moment of final judgment in the present applications for interim interdicts. So what transpired on 6 December 2019 is of only historical relevance to the present enquiry.

76 There Is therefore no substance in the ANC's objections to the procedure followed and the order made on 8 December 2019.

77 This brings me to the argument of the ANC that the present is a political and not a legal matter and that the courts should therefore not trespass into the area of competence reserved for political activity.

78 In a speech made at a conference at the University of Cape Town on 26 January 2012, the late Chief Justice Arthur Chaskalson made the point in relation to court challenges to state policies that

It is correct therefore to say that the executive decides policy. But that is only half the story. The other half is that policy must be consistent with the Constitution, and If it is not, it is the duty of a court to say so and to declare it to be invalid to the extent of its inconsistency.

…

Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself.[21]

79 The same applies, in my view, when a litigant approaches the court complaining of an illegality in the exercise of public power. As the court in Judicial Service Commission v Cape Bar Council, supra observed:[22] the exercise of public power is only legitimate when lawful. Furthermore, s 172(1) of the Constitution is peremptory and uncompromising in its terms: when deciding a constitutional matter, as each of the cases is, the court must declare that any conduct which is inconsistent with the Constitution is invalid to the extent of its inconsistency.

80 This means that the court may not evade the decision of a dispute about whether there has been an unlawful exercise of public power by declining to exercise jurisdiction and leaving it to the parties to sort the matter out. When asked to decide such a case, the court must do so in accordance with law. This applies not only to the review in which the challenge to public power will be determined directly but also to the preliminary stages of the challenge to the allegedly unlawful exercise of public power, during which the court may be asked to maintain the status quo or otherwise level the playing field, as it were, in anticipation of the determination of the main dispute.

81 This is (of course) not to say that the court should not in a proper case exercise its well known common law discretion to intervene or not to intervene in the preliminary stages of the dispute. National Treasury and Others v Opposition to Urban Tolling Alliance and Others[23] is a leading case in this regard. It is often relied upon in this court by counsel for the respondents in cases in which an applicant seeks to interdict what it claims is an abuse of public power as if it were a golden ticket to success. It is nothing of the kind.

82 National Treasury and Others v Opposition to Urban Tolling Alliance and Others, supra, is in the present context no more, and no less, than authority for the proposition that:

.. courts grant temporary restraining orders against the exercise of statutory power only in exceptional cases and when a strong case for that relief has been made out. Beyond the common law, separation of powers is an even more vital tenet of our constitutional democracy. This means that the Constitution requires courts to ensure that all branches of Government act within the law. However, courts in tum must refrain from entering the exclusive terrain of the Executive and the Legislative branch of Government unless the intrusion is mandated by the Constitution itself.[24]

83 As I have tried to show. a strong case for relief has indeed been made out Furthermore, this is indeed an exceptional case. In that context, I wish to say something more about the questions of the right which the applicants seek to protect and the balance of convenience.

84 It was submitted by the respondents that the right which-the applicants seek to protect is nothing more than their right to have their complaints adjudicated in a review in due course.

85 I disagree. The applicants seek to protect the rights of the office bearers of the City in question to serve out their terms of office unless they are otherwise removed from office in accordance with law.

86 The EFF and the ANC argue that the applicants are seeking to interfere with the exercise by the EFF and the ANC of their statutory powers to govern the City pursuant to the resolutions passed and that this may only be done in the clearest of cases and after a careful consideration of separation of powers harm.[25]

87 I doubt whether the present is a case on all fours with National Treasury and Others v Opposition to Urban Tolling Alliance and Others. In that case, the statutory power of the Treasury to act as it did was established. In the present case, the very foundation of the right of the EFF and the ANC to govern pursuant to the resolutions passed is in issue because, it is said, the procedure by which they purported to acquire such rights was not lawful.

88 I shall however assume in favour of the EFF and the ANC that the National Treasury principle is applicable and that a careful separation of powers consideration is warranted.

89 Counsel for the EFF and the ANC made the point, entirely correctly, that the three arms of government, the legislative, the executive and the judicial, should not trespass on the terrains marked out by the Constitution within which each arm should exercise the powers conferred upon it by the Constitution. That, broadly and in the context of the present dispute, is- what 1he doctrine of the separation of powers entails.

90 In particular, It is well established that a court should not interfere with the manner in which one of the other arms of government seeks to exercise its powers because the court believes there is a better way of exercising that power. That choice Is reserved for the voters. If they do not like the way their elected representatives have exercised (or declined to exercise or intend to exercise) such powers the voters may demonstrate that at the ballot box and cast them out of office.

91 A court, may only so interfere if the manner chosen is irrational or illegal. That is because, in such a case, the conduct under consideration is inconsistent with the Constitution itself. I have pointed out that in such a case s 172(1)(a) of the Constitution requires the court to declare that such conduct is invalid to the extent of its inconsistency.

92 Once a court has declared an inconsistency under s 172(1)(a) has very broad powers under s 172(1)(b) to make any order which is just and equitable. The purpose of an order under s 172(1)(o) is to redress any injustice or lack of equity arising from the fact that, by definition, there has been a failure to act in a manner consistent with the Constitution.

93 In the present case, the applicants will seek in their forthcoming review to have the impugned resolutions set aside. Whether the applicants will be successful is a question for the reviewing court to decide. It is intellectually conceivable that the reviewing court will find that the resolutions are invalid because the manner in which they were passed was in consistent with the Constitution but that ft is just and equitable that they be allowed to stand. I am bound to say, though, that applicants' prospects of success in this regard are strong and the respondents' are weak.

94 In my view the applicants' prospects of success are strong because it is inimical to the very concept of democracy that a state of affairs which a litigant has created by undemocratic and violent means should be permitted to endure for that party's benefit This is not a case in which the Illegality is merely technical or brought about by circumstances beyond the control of the affected respondent.[26]

95 In the consideration of the balance of convenience, this is a case in which rule of law considerations should be given great weight. In addition, the applicants are entitled to have the office bearers in question continue. in office for the balance of their terms unless and until they are lawfully removed. The EFF and the ANC, and indeed many or all their members and supporters, will undoubtedly suffer some prejudice if the resolutions are suspended pending review as the applicants ask. This is because a majority of councillors present and voting in the chamber voted in favour of the resolutions.

96 But it is the manner in which those resolutions were procured that in my view carries the day for1he applicants And I bear in mind that a suspension of the resolutions is not by any means the final political word. As has been shown by the facts of the present case, by the exercise of proper democratic procedures, the EFF and the ANC can in a very short space of time require the Council once again to consider their motions directed at removing the office bearers in whom the EFF and the ANC have no confidence. The orders which I shall make are no bar to further such action in the Council.

97 In short, in my judgment the harm to the applicants if interim relief is refused far outweighs the harm that will ensue if relief is grant ed. The balance of convenience therefore favours the applicants.

98 There is a final matter I must discuss. I allowed the EFF to deliver a further set of affidavits in which it asserted that the DA government of the City was to be criticised for its failure to deal adequately with the very important matter of the water supply to the residents of Hammanskraal. This, the EFF contended, showed that the DA had been a bad government and that there would be prejudice to the citizens of Tshwane if their office bearers were allowed by the court to continue in office.

99 For two reasons, I do not think that this material ought to weigh in the consideration of balance of convenience. Firstly, it came at a late stage and the DA has not had a fair opportunity, or indeed any opportunity, of dealing with it. Secondly, and more fundamentally, this argument would require me to enter into an assessment of the merits and demerits of the manner in which the DA has governed the City, This is a political assessment. The courts should not make such assessments. They are for politicians and the voters to make.

100 A concluding observation: this is, as far as l know, the first time a South African court has been confronted with violence in a deliberative chamber directed at the presiding officer. We have had in stances of members of those bodies attacking each other inside the chamber. That is bad enough. But an attack directed at the presiding officer within the chamber, even when the violence offered toward that officer is as relatively mild (in South African terms) as this was, is an attack on democracy itself. I hope that this judgment goes some way toward deterring any person who was encouraged by the video material I have discussed from imitating the perpetrators I have identified. Such conduct has no place in our democratic life.

101 The parties have accepted that the costs of the applications should be reserved for later consideration. I make the following orders:

1. Case no. 91569/19 and case no 92212/19 will bo1h be enrolled and heard as matters or urgency in terms of rule 6(12) and the non-compliance with all other prescripts relating to time periods is condoned to the extent necessary.

2. In case no 91569/19:

2.1 the effect of the following actions taken by the first respondent, the City of Tshwane Metropolitan Municipal Council (the Council) are suspended pending the final determination of review proceedings to set such actions aside:

2.1.1 The decision to appoint the tenth respondent, Obakeng Ramabudu, as acting speaker of the Council;

2.1.2 The adoption of a motion of no confidence in the second respondent, the speaker of the Council Councillor Katlego Mathebe;

2.1.3 The adoption of a motion of no confidence in the third respondent, the executive mayor of the City of Tshwane Metropolitan Council Councillor Stevens Mokgalapa.

2.2 The applicant's application for review must be Instituted within seven days of the date upon which this order is granted and served promptly thereafter.

3. In case no. 92212/19:

3.1 The following resolutions passed by the first respondent. the City of Tshwane Metropolitan Municipality (the City), are suspended pending the final determination of the relief sought pursuant to Parts of the applicants' amended notice of motion dated 16 December 2019 (pages 113-117of the record):

3.1.1 All resolutions passed by the City at a special council meeting on 5 December 2019;

3.1.2 All resolutions passed by the City at a continuation council meeting on 5 December 2019, continuing an earlier ordinary council meeting of November 2019.

4. In both case no, 91569/19 and case no 92212/19: the costs incurred to date are reserved for later determination.

 

 

 

_____________________

NB Tuchten

Judge of the High Court

27 December 2019

 

 

For the Democratic Alliance

Adv N Ferreira and Adv I Learmonth

Instructed by:

Minde Shapiro Smith Inc Pretoria

 

For the applicants in case no. 92212/19

Adv E Labuschagne SC and Adv S Tisane

Instructed by:

Diale Mogashoa Attorneys

Pretoria

 

For the African National Congress

Adv PJ Ngandwe and Adv M Ramaili

Instructed by:

Makhubela Attorneys

Pretoria

 

For the Economic Freedom Fighters and

Councillor Obakeng Ramabodu

Adv T Ramogale

Instructed by;

Ian Levitt Attorneys

Johannesburg

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