Tinashe Carlton Chigwata | Mar 28, 2023

Municipal managers must leave politics to councillors

After the 2021 local government elections, politicians have been fighting to control city councils where there is no outright majority. Mayors and speakers have been elected, and removed, on a regular basis. In this turmoil, municipal managers risk become entangled in politics

The case of Dhlamini and Another v The City Manager of Ekurhuleni Metropolitan Municipality and Others cautions senior municipal officials, particularly municipal managers, against taking sides and bending the law to achieve a favourable political outcome.

Background

On Thursday, 26 January 2023, the Speaker of Ekurhuleni Metropolitan Municipality (the Metro) chaired a council meeting which degenerated into chaos. Acting in terms of the Metro’s Standing Orders, the Speaker adjourned the meeting. After this adjournment, some councillors requested the Speaker to resume the adjourned council meeting. This request was made in terms of section 29(1) of the Municipal Structures Act of 1998, which obliges the speaker to convene a meeting if requested to do so by majority of the councillors. Section 29(1A) of the Act also empowers the municipal manager (MM) or a person designated by the Member of the Executive Council (MEC) for local government in the province to convene a council meeting, if the Speaker refuses to convene the meeting. On Friday, 27 January 2023, the councillors made another request for the Speaker to resume the adjourned meeting, which the Speaker did not accede to. Instead, the Speaker informed the councillors that he was awaiting the outcome of a multi-party meeting aimed at addressing the issues which led to the adjournment of the meeting before communicating a date for the resumption of the council meeting. Later that day, and in response to the Speaker’s communication, the City Manager notified some political parties that she had invoked her powers under section 21(1A) to call and convene a council meeting on Monday 30 January.

A day before the meeting, the Speaker approached the Court to interdict the City Manager and council from proceeding with this council meeting. The Court granted interim relief pending the final review of the City Manager’s decision. Despite the Court order, the City Manager proceeded to convene the council meeting on Monday 30 January. She, however, adjourned the meeting to Tuesday 31 January 2023 before cancelling it all together. On the same day (Monday), the Speaker wrote to all parties informing them that he had decided to call for the council meeting to resume on Thursday, 2 February 2023. The multi-party meeting of council whips was held the following day where a request was made for the Speaker to recuse himself when a motion of no confidence is raised against him at the upcoming council meeting. Once again, the Speaker refused to accede to this request.

The council meeting resumed on Thursday, 2 February 2023, as scheduled. It was proposed that the Speaker hand over his role as presiding officer to the “chair of chairs” on the basis that he “was conflicted in the performance of his duties”. The Speaker rejected the proposal and continued to chair the meeting. Once again, there was chaos which forced the Speaker to adjourn the council meeting.

After the adjournment, councillors from the Democratic Alliance (DA), the Freedom Front Plus, Inkatha Freedom Party and the African Christian Democratic Party walked out of the council chamber. The councillors aligned to other parties remained. Shortly thereafter, the City Manager entered the council chambers and resumed the meeting. The City Manager stated that she had received a second letter from the “majority of political parties” asking her to reconvene the meeting in line with section 29(1A) of the Municipal Structures Act. The council meeting proceeded to take several decisions, including removing the Speaker from office and appointing an Acting-Speaker.

Arguments of the Speaker

The Speaker argued that there was no legal basis for the City Manager to call or chair the council meeting, and that the decision to do so was irrational.  Moreover, only thirteen councillors signed the request for the Speaker to convene meeting while the law requires majority of councillors to do so. Lastly, the Speaker argued that he had lawfully adjourned the meeting and had not refused to call a council meeting. Thus, the City Manager could not lawfully invoke section 29(1A). Regarding the adjournment of the resumed meeting, the Speaker argued that his decision to adjourn this meeting was in line with the law and therefore binding on all parties (council, councillors and city manager). It could only be set aside by a court.

Regarding the City Manager chairing the second meeting held after the adjournment, the Speaker submitted that there was no valid request for him to consider reconvening the meeting in the first place. This is based on the fact that the decision to call a special meeting must be supported by the majority of councillors, which was not the case. Secondly, the Speaker contended that the City Manager could only call and convene a council meeting if he had refused to convene such as meeting despite the presence of a lawful request. The Speaker also submitted that when the City Manager reconvened the meeting, she was fully aware of her lack of authority to do so.

In short, the Speaker submitted that the decision by the City Manager to reconvene the meeting, the removal of the Speaker from office, the election of an acting-speaker and all the decisions that were taken in that council meeting were unlawful and should be declared invalid. Because of the nature of the legislative infringements and the fact that the City Manager did not respect the earlier court order not to convene the meeting, the Speaker asked the Court to make a personal costs order against the City Manager.

On the other hand, the City Manager submitted that this was a political dispute between the Speaker and some councillors. She contended that the Speaker and the DA were merely trying to block a legitimate deliberation by the council of a motion of no confidence against the Speaker. The City Manager initially submitted a counter application, but conceded during the course of the deliberations in court, that she had unlawfully resumed the council meeting and therefore, withdrew the application.

Judgment

After assessing the applicable legal provisions, the Court found the decisions and actions of the City Manager to call and reconvene the council meeting on Thursday 2 February 2023 to be unlawful. It therefore follows that all the decisions and actions taken in pursuant of that meeting were equally unlawful and invalid. Thus, the Court granted the substantive relief sought on a final basis. Coming to the issue of personal costs against the City Manager, the Court was incensed by her conduct:

“There can be no doubt that the city manager’s conduct was, from a constitutional perspective, brazen. This is so in respect of her conduct, even if she has an innocent explanation for her comments. The political role played by her when she in fact forms part of the administration of the Municipality, is problematic to say the least” [para 37].

The Court, however, reasoned that because the City Manager acted on unlawful instructions from many political parties represented in the council it would be “disproportionate to the circumstances” to issue a personal costs order. Hence, the Court decided against issuing such an order.

Commentary

This judgment raises three issues. First, it emphasises the importance of the rule of law in municipal governance, and in particular the need for municipal council meetings to be conducted in line with the law. If the law is not complied with, all decisions taken in the relevant meetings are unlawful.

Second, the judgment serves as a reminder to politicians and officials that the courts will make personal costs orders against officials “guilty of repeat unconstitutional conduct, particularly where it involves disregard for court orders”. The message is clear: respect the courts.

Lastly, this judgment cautions municipal managers to stay in their lane, by not getting involved in political tussles between political parties seeking to take control of the council. Politics is for councillors and not for managers.

 

By Tinashe Carlton Chigwata

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