IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 9164/09
In the matter between:

and

			JUDGMENT 17 JUNE 2009

OWEN ROGERS AJ

[2] One of the local municipalities (as defined in the Structures Act) within the EDM's area is the Kannaland Municipality ("the KM"). The EDM and two members of the KM's council are the counter-applicants. They cite as respondents in the counter-application all the councillors of the EDM and all the remaining councillors of the KM, as well as the Independent Electoral Commission ("the IEC").

[3] Pursuant to s20 of the Structures Act, the number of councillors of the EDM's council has been determined as 30. The current proceedings have their source in the fact that this number is equally divided between the ANC coalition and the DA coalition. On 12 March 2009 the executive mayor of the council (one Laws) ceased to hold office upon resigning from the DA and joining the ANC. At a meeting of the council on 31 March 2009 two candidates for mayor were proposed. The votes were equally divided and no decision was reached. A further proposed meeting on 7 April 2009 had to be abandoned because the members of the ANC coalition did not enter the meeting, thus frustrating the quorum requirement. Thereafter, and on 11 April 2009, a councillor Andrew Baartman was expelled from his party (a minority member of the ANC coalition), leading to a vacancy in the EDM's council. Baartman had been a representative of the KM on the EDM's council (as contemplated in s23(2)(b) of the Structures Act), and his replacement thus needed to be filled by appointment by the KM in accordance with item 16 of Schedule 2 to the Structures Act.

[6] There is a factual dispute as to when the EDM received the IEC's declaration of Ewarts' appointment. The IEC's notification was faxed to the KM's municipal manager at 09h05 on 30 April 2009. The same letter was faxed to the EDM and it seems that the letter arrived while the council meeting was in progress, though the precise time of receipt is unclear. (Due to a malfunctioning of the EDM's fax machine, the date and time recorded on the incoming fax are plainly erroneous.) The EDM's municipal manager was in attendance at the meeting. Applying the well-known rules applicable to factual disputes in motion proceedings, I must accept the respondents' version that the municipal manager only saw the faxed letter in his in-tray after returning to his office immediately at the end of the meeting, and that neither he nor the speaker was aware during the course of the meeting that a fax from the IEC had arrived. The applicants' version is that the fax arrived sometime between 09h10 and 09h20. The respondents assert that the election of the mayor was disposed of well before 09h20 and again I cannot reject that assertion on the papers.

[7] After some interaction between the parties' attorneys, the main application was launched as one of urgency on 7 May 2009. The applicants ask the court to declare unlawful and invalid (a) the rejection of the motion to adjourn the meeting (b) the election of Stemmet as mayor (c) the rejection of the motions to remove the executive deputy mayor and the speaker.

[8] The EDM and its council oppose the main application (though the applicants complain that the real opponents are the members of the DA coalition). In the counter-application the EDM and two councillors of the KM ask the court (a) to declare unlawful the election of Ewarts by the KM's council on 28 April 2009 as the KM's representative on the EDM's council (b) to set aside the IEC's decision to declare Ewarts duly elected.

[10] The applicants put their case on three broad grounds. Firstly, the refusal of the majority at the meeting of 30 April 2009 to reject the requested adjournment was undemocratic and unlawful. Secondly, and even if the refusal was not unlawful, there were only 15 councillors present when the business of the meeting was transacted. Since Ewarts had been validly appointed by the time the meeting started, the required quorum for the meeting in terms of s30(1) of the Structures Act was 16 (being a majority of the 30 incumbent councillors). The 15 members in the meeting could thus not lawfully take decisions. Thirdly, and even if Ewarts had not been validly appointed, the quorum required by s30(1) was nevertheless 16, since (so it is contended) the majority referred to in s30(1) must be assessed with reference to the total number of councillors which the council is required to have (here, 30), not the number of incumbent councillors (here, 29).

[16] Section 157 of the Constitution leaves the detail of the composition of municipal councils to national legislation. The Structures Act is that legislation. Although the Constitution is supreme, one should not be astute to find irreconcilable conflicts between the Constitution and the Structures Act where their terms can be reconciled in a manner consistent with constitutional values.

[20] The first pointer is s35(1) of the Structures Act, which reads (my emphasis):

[21] The words I have emphasised would only be needed and would only serve a purpose if the requirement for a quorum were based on the number of allocated councillors pursuant to s20(1). If the quorum requirement in s30(1) referred to incumbents, a council would never not have enough members to form a quorum - if, for example, the allocated number of councillors were 30 but there were only 10 incumbents, six councillors would (on that view) be a quorum.

[22] The second pointer is of a similar kind. Item 10 of Schedule 2 of the Structures Act deals with the case where a party list contains fewer candidates than seats to which the party is entitled. The first three sub-items set out how this problem is in the first instance to be addressed, concluding with item 10(3)(b), which reads thus (again my emphasis):

"What is the object of fixing a quorum? Is it enabling, by allowing a statutory body which could otherwise act only by an actual majority to carry out its powers and duties by a majority of a lesser number than its whole members; or is it restrictive, by constituting a fixed minimum of its members as necessary to constitute a valid meeting? If enabling, then it would, in the absence of a fixed quorum, require at least a majority of the whole members to give validity to any action; if restrictive, then, until a quorum was fixed, the business of such statutory body could be done by any two or more members attending a properly convened meeting."

[25]   After quoting this passage, Bertelsmann J continued:
"It follows that a municipal council must have at least one half plus one of the number of potential council seats, allocated to the particular council by the MEC for local government, to be filled by incumbents before the council can function. Had the intention been to determine a specific number or minimum number, the Act would have provided the number or formula according to which the number had to be calculated. It is clear that the quorum required by section 35 is an enabling quorum. Loughlin's case is therefore directly in point."

[27] In the present case, the quorum provision (presence at the meeting) is s30(1): in order for a vote to be taken there must be present a majority of the councillors. The voting aspect is covered by ss 30(2), (3) and (4): certain matters require a special majority (s30(2)), while other matters require only a simple majority of those present (s30(3)).

[28] For the rest, the New Zealand case does not bear on the essential problem which arises in a case such as the present, namely whether the formulation of the quorum requirement is a reference to the full number of allocated councillors or the number of incumbent councillors.

"Section 4(1) read with s4(3) provides that the membership of the council shall consist of at least a chairperson and six additional councillors. It follows that in the event of the appointment of a co-chairperson in terms of s4(3) the council shall consist of eight councillors. Having provided that the council 'shall' consist of seven or eight councillors, depending on whether or not a co-chairperson is appointed, it is highly unlikely that the Legislature could, in s10(4), have had anything but that number in mind when referring to 'the total number of councillors'.
If the respondent's construction of s 10(4) were correct, there would have been no need for the Legislature to have provided, as it did in s12, that a vacancy in the council would not affect the validity of the decision of the council provided such decision was taken by a majority of the councillors present at the time and entitled so to sit, and the said councillors at the time constituted a quorum. On the fourth respondent's construction of those sections, all of that would already have been provided for in s10(4) and (5). Contrary to the fourth respondent's argument, the provisions in s12 relating to a vacancy were necessary if the applicant's construction of s 10 were correct and if the Legislature did not want a vacancy to affect a decision of the council which was otherwise in order.

Section 4(2)(a) and (c) places great emphasis on the attributes of the councillors when viewed collectively. When viewed collectively they, inter alia, have to represent a broad cross-section of the population of the Republic. In these circumstances it is likely that the Legislature had a minimum number in mind as a quorum and not a number that would be determined by the number of vacancies in the council and that could have gone down to as few as two councillors.

[38] Democracy and universal suffrage are foundational values of our country (s1 of the Constitution). The objects of a municipality include the provision of democratic and accountable government to local communities (s152(1)(a); see also s41(1)(c) and s195). It seems to me that these values are better served by a quorum requirement that has regard to the majority of the full number of allocated councillors than one which is limited to incumbent councillors. On the respondents' argument, important decisions of the council to which (say) 30 seats had been allocated could be taken at a meeting attended by only 30% of the number of councillors intended for that council and with the support of only 16% of the said intended number. And if one accepts the respondents' construction of s30(1) while rejecting the attempt to explain s35(1), one would have an ever-reducing quorum where two out of three incumbent councillors could constitute a valid meeting. In this way the democratic voice of the community might, even if only temporarily, be stifled through a quirk of circumstance.

[39] It was argued on behalf of the respondents that the interpretation urged by the applicants would allow the functioning of councils to be frustrated by deliberate absenteeism (as, they would say, happened here). I do not agree. Such a possibility exists on any interpretation of s30(1). In a municipality where the seats are evenly split between two factions, one faction could (on the respondents' argument) frustrate a quorum by absenting itself from the meeting, provided the split of incumbents was equal between the two factions (whether the incumbents represented the full number of allocated seats or some lesser number). Where factions are evenly matched, my interpretation would give increased scope for frustrating a quorum where the number of incumbents was (due to a temporary vacancy) an odd number, but one should not assume that the framers of the Constitution or the Structures Act proceeded on the supposition that vacancies would remain unfulfilled for lengthy periods of time, and if in the meanwhile one faction were precluded from stealing a march on its opponents by pushing through contentious business during a temporary vacancy in opposition ranks, I am far from persuaded that this would be a bad thing.

[43] In the light of my conclusion, the other contentions raised by the applicants become academic. The setting aside of the refusal of the postponement is merely another way of attempting to impeach what followed at the meeting. As relief in its own right, it has no effect - the meeting has come and gone. And if the quorum in s30(1) must be assessed with reference to the full number of councillors allocated to the EDM, it matters not whether Ewarts was a councillor at the time of the meeting.

[45] The relief claimed in the notice of counter-application is a declaration of unlawfulness in respect of Ewarts' election and a setting aside of the IEC's declaration. A point was made by Mr De Waal in passing that a setting aside of Ewarts' election is not claimed as such. However, the clear purpose of the counter-application was to nullify the election (with a view to neutralising one of the applicants' three grounds of attack on the proceedings of 30 April 2009) and no parties would be prejudiced if I were expressly to set aside Ewarts' election. Indeed, I see that the applicants themselves in their notice of motion claim only declarations of invalidity. In their case, too, I propose to make orders setting aside the unlawful decisions.

[46] Mr De Waal submitted that the order on the counter-application would be one in terms of s172(1) of the Constitution and that I could and should limit the retrospective effect of my declaration that Ewarts' election was unlawful. The purpose of this submission was to keep alive the applicants' argument that if the quorum requirement was to be assessed with reference to incumbents rather than allocated seats, Ewarts was already an incumbent by the time of the meeting and that the quorum was for this reason 16, not 15. Given my conclusion on the interpretation of s30(1), it is not necessary to find that Ewarts was an incumbent in order for the applicants to succeed.

[48] As regards costs, Mr De Waal was at first inclined to argue that the costs of the main application should be borne not by the EDM and its council but by the individual respondents (the members of the DA coalition). He agreed, though, that since the notice of motion only sought costs against those who opposed and since the individual respondents did not (at least as a matter of form) oppose, I could not order costs against them. Such a course would only be permissible, I think, if it were clearly established that the individual respondents were truly the parties opposing the application and that they were merely using the EDM and its council as a front. On the information before me, I cannot find that all the individual respondents as a body caused the EDM to oppose and that all of them were in substance the opponents. I also do not think that the costs order should be against the council but only against the EDM.

[49] Concerning the costs of the counter-application, costs were sought only in the event of opposition. Since there was no opposition there can be no order for costs in the counter-application.

[50] I thus make the following orders (references hereunder being to the parties as cited in the main application and counter-application respectively):

Main application

(a) The following decisions taken at the second respondent's meeting held on 30 April 2009 are declared unlawful and invalid and are set aside, namely:

DC29/03/09.

(b)    The first respondent is ordered to pay the applicants' costs of suit.

Counter-application
a)	The election on 28 April 2009 of the fourteenth respondent by the municipal council of the thirty-second respondent as its representative on the municipal council of the first applicant is declared unlawful and set aside.
b)	The decision of the thirty-first respondent, taken on or about 30 April 2009, to declare the fourteenth respondent as the duly elected representative of the thirty-second respondent on the municipal council of the first applicant is set aside.
c)	No order as to costs is made in respect of the counter-application.