Jaap de Visser | May 25, 2020

Gauteng High Court deals decisively with councillor-walk-outs

Perhaps the most important aspect of the job of a councillor is to attend council and committee meetings. Item 3 of the Code of Conduct for Councillors provides that every councillor must attend these meetings and the municipality’s rules of order contain more detailed rules on this. Failing to attend, or to remain in attendance, without having obtained leave of absence, is a violation of the Code of Conduct (item 4(1)). If a councillor fails to attend three or more meetings in a row, the councillor must be removed from office (item 4(2)).

So far, there is nothing new and every councillor knows this. However, how does it work with so-called ‘walk-outs’? This is when a councillor, or a group of councillors, disagree so vehemently with what is happening in the meeting, that they decide to ‘walk out’. It usually happens when councillors have run out of ‘normal’ instruments in the council’s rules of order, such as motions or points of order. For example, the Speaker insists that the election of a Mayor must be put to a vote and refuses any further debate on the issue. A contingent of councillors disagrees with that procedure (the reason doesn’t matter) and they all walk out, making a powerful political statement. In the process, they may have ‘collapsed the meeting’ because the quorum for a valid council meeting is a majority of the councillors. If the group of councillors that walk out is big enough, there may no longer be a quorum and the meeting must therefore end. A variation to this scenario is when a group of councillors deliberately fails to arrive for a meeting because they disagree with the agenda. Is this a violation of the Code of Conduct for Councillors? What if the councillors have a genuine legal problem with the proceedings, or with the agenda? Why must they be forced to attend a meeting if they genuinely believe the meeting, or the behaviour of the presiding officer is unlawful?

This came up in a 2015 Constitutional Court judgment, Kham v Electoral Commission. In dealing with a dispute about elections, the Court was confronted with the argument that councillors could possibly refuse to attend council meetings in order to boycott its proceedings. This is what the Court had to say:

“… that would be gravely irresponsible … Councillors are elected to undertake the work of the council on behalf of the whole citizenry. Sometimes the tides of politics will place one party in the majority and sometimes another. But it remains the duty of all councillors to facilitate and not obstruct the workings of the council. For councillors to continue to draw their salaries, while refusing to attend meetings and seeking thereby to stultify the working of a council would be a breach of their obligations as councillors. It is a breach of the Code of Conduct that binds all councillors and obliges them to attend all meetings of the council and of committees of which they are members.”

The words of the Constitutional Court were clear and unforgiving. However, they did not have much impact because walk-outs still happened regularly after 2015. This is perhaps because the issue of councillor attendance was not essential to that particular judgment (which was essentially about the voters’ roll). So the walk-outs continued.

Five years later, the issue came up again, in Democratic Alliance and Others v Premier for the Province of Gauteng and Others, also discussed elsewhere in this Bulletin. This time, councillor attendance was at the heart of the dispute. The Municipal Council of the Tshwane Metropolitan Municipality was unable to meet and elect an Executive Mayor. This was because a group of councillors refused to come to meetings, or would walk out of the meeting shortly after it had started. Judge President Mlambo of the Gauteng High Court had this to say about that:

“… the importance of serving in a municipal council is that party political affiliation and agendas are eschewed for the greater good of the communities served by those councils. … [E]very municipal councillor must comply with the Constitutional injunction to municipalities, to prioritise the basic needs of local communities and to provide the basic minimum services to all members of such local communities. The uncontested evidence in this case is that the overarching injunction was lost to the councillors who instead prioritized their own party political agendas and brought the council to its knees. Walking out of council meetings and disrupting such meetings in a concerted manner could never have been in the interests of the Tshwane local community.”

While the councillors may have thought that, by walking out, they were challenging the Speaker’s decisions, which they thought were unlawful, the Judge President had no sympathy. In fact, the Judge President berated the MEC for Local Government of Gauteng for not using the Code of Conduct to deal with them decisively. In other words, the Judge President was of the view that these councillors ought to have been charged, disciplined and (if they missed three consecutive meetings) possibly even removed from office, in terms of the Code of Conduct.

These strong words of the Judge President, together with the earlier strong remarks by the Constitutional Court put to rest any debate about this issue. Walk-outs are illegal.

·       No matter how strongly a councillor disagrees with the proceedings in a meeting, there is no ‘right to walk out’. Councillors are expected (and paid) to attend council and committee meetings.

·       If a councillor, or a group of councillors, walk out of a meeting, they expose themselves to disciplinary action. The law is clear: not attending a meeting without leave of absence is a violation of the Code of Conduct and the speaker “must” investigate violations of the Code of Conduct.

·       If a councillor, or a group of councillors, walk out of a meeting, they also expose themselves to individual liability. This will be the case when a walk-out ‘collapses’ the meeting. Such a walk-out forces the municipality to convene another meeting. The municipality thus incurs fruitless and wasteful expenditure on a meeting that was entirely avoidable if everyone had simply obeyed the law. The municipal manager will be forced by law to recover these costs from the councillors that walked out and caused the meeting to collapse. The new powers of the Auditor-General have made this threat even more real than it was before. If the municipal manager does not make an effort to recover these costs from the councillors, the Auditor-General may come for the municipal manager, and issue a certificate of debt to the municipal manager him- or herself. So a diligent and careful municipal manager will not hesitate to recover the costs from the councillors, even if only to protect him- or herself from individual liability.

·       There could also be individual liability for the councillors who walked out, if they are cited in a court action (for example by a community grouping) related to that ‘fateful’ meeting and the damage caused by the walk-out. If they lose the case, the court may issue individual cost orders to those councillors and they would then be compelled to pay the cost of litigation of the opposing party.

This does not mean that a councillor must accept every decision taken by the presiding officer. This would be undemocratic, because a presiding officer may indeed be wrong. If a councillor disagrees with a proposed decision or procedure, he or she can ensure that his or her disagreement is properly recorded in the minutes. A further solution is to approach a court, possibly on an urgent basis, and request the court to set aside the presiding officer’s decision. This is fundamentally different from a ‘walk-out’. A ‘walk-out’ is tantamount to self-help, where individual councillors take it upon themselves to dispense justice during the meeting. This is not permitted under the rule of law.

 

By Jaap de Visser

 

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