Democratic Alliance and Another v Masondo NO and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan JA, Sachs J and Yacoob J
• Judgment Date: 12 December 2002
• Citation: 2003 (2) SA 413 (CC)
• Docket Number: 8590/2002
• Hearing Date: 14 November 2002
• Counsel: E Dunn SC (with him S Barua) for the appellants. G J Marcus SC (with him A Cockrell) for the respondents.
• Court: Constitutional Court

Langa DCJ:

[1] The issue in this matter is whether minority political parties in a municipal council are entitled to representation on a mayoral committee established under the provisions of the Local Government: Municipal Structures Act 117 of 1998 (the Structures Act). E The appellants are respectively the main opposition party in the Johannesburg metropolitan council and the leader of its caucus in the council. The first respondent is the executive mayor of that council and the second respondent is the national minister responsible for the administration of the Structures Act. F

[2] The appellants contend that the current mayoral committee appointed by the first respondent is unconstitutional because minority parties are not represented on it. Only members of the African National Congress, the majority party in the council, have been appointed to the mayoral committee. G

[3] The proceedings were initiated by the appellants in the High Court in Johannesburg. The Court held that the composition of the mayoral committee was neither in conflict with the relevant provisions of the Structures Act, nor with the Constitution. The application was dismissed with costs. What is before us is an appeal against that H decision.

[4] The contention by the appellants that minority parties must be represented on the mayoral committee is based on their interpretation of s 60 of the Structures Act, read with the provisions of s 160(8) of the Constitution. Section 60 of the Structures Act provides: I

'(1) If a municipal council has more than nine members, its executive mayor -

(a)

must appoint a mayoral committee from among the councillors to assist the executive mayor;

(b)

may delegate specific responsibilities to each member of the committee; J

Langa DCJ

(c)

may delegate any of the executive mayor's powers to the respective members; and A

(d)

may dismiss a member of the mayoral committee.

(2) The mayoral committee must consist of the deputy executive mayor (if any) and as many councillors as may be necessary for effective and efficient government, provided that no more than 20 per cent of the councillors or 10 councillors, whichever is the least, are appointed.' B

Section 160(8) of the Constitution provides:

'Members of a Municipal Council are entitled to participate in its proceedings and those of its committees in a manner that -

(a)

allows parties and interests reflected within the Council to be fairly represented; C

(b)

is consistent with democracy; and

(c)

may be regulated by national legislation.'

[5] The appellants argued that on a proper construction of s 60(1)(a) of the Structures Act, read with the Constitution, the representation of minority parties is a requirement even though the subsection does not expressly say so. They contended further that if the provision is not capable of bearing such a meaning, D it is inconsistent with s 160(8) of the Constitution, which requires the fair representation of minority parties and interests in the committees of a municipal council. It is relevant to mention that the appellants did not challenge the constitutional validity of the executive mayor exercising executive authority within the local government structures. E

[6] The respondents, on the other hand, argued that neither the Constitution nor the Structures Act requires a mayoral committee to have minority party representation. They contended that a mayoral committee is not a committee of the municipal council within the meaning of s 160(8) and the section accordingly has no application to it. F

The constitutional and legislative scheme

[7] The framework for local government is contained in chap 7 [1] of the Constitution and it is clear that, in this scheme, municipal councils occupy a central position. The chapter provides, among other things, for the establishment of municipalities G for the whole territory of the Republic; [2] sets out the relationship of local government with the national and provincial spheres of government and defines the internal powers and functions of municipal councils. [3] In the national and provincial spheres of government, there is a distinct separation between the executive and legislative authority; in local H government, the Constitution vests both the executive and legislative authority of a municipality in its municipal council. [4]

[8] The Constitution reserves a significant role for national legislation. A I

Langa DCJ

municipal council may elect an executive committee and other committees subject to national A legislation. [5] Such legislation may provide criteria for determining whether municipal councils may elect an executive committee or other committees as well as the size of such committees. [6]

[9] There is no express mention of the institution of the mayor or a mayoral committee in chap 7, but the Constitution clearly envisages the enactment of legislation to elaborate on and regulate the B powers and functions of a municipal council and its organs. In particular, s 164 of the Constitution provides for national and provincial legislation to govern any area not dealt with by the Constitution. [7] One of the areas specifically designated by the Constitution to be dealt with by national legislation is to define the 'types' of municipality. [8] C The executive mayoral system is one of the types determined by the Structures Act. [9]

[10] The Constitution also envisages the delegation of certain functions of a municipal council to its various organs. Section 160(2), however, prescribes that certain important powers and functions of the municipal council may not be delegated. [10]

[11] In terms of s 160(6)(c) the municipal council D 'may make by-laws which prescribe rules and orders for the establishment, composition, procedures, powers and functions of its committees'. Finally, s 160(8) provides for committees of a municipal council to be fairly representative. It is this provision which is in E issue in this case.

[12] The Structures Act and the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) were enacted to give effect to the provisions of chap 7 of the Constitution. The Structures Act provides for three types of executive systems in municipal F governance: a plenary executive system, an executive committee (or collective executive) system and the executive mayoral system. In the plenary system, all

Langa DCJ

executive and legislative decisions are taken by the whole council. [11] In the executive committee A system, the municipal council elects an executive committee to which the executive functions of the municipal council are delegated subject to the Constitution and other legislation. [12] The Structures Act expressly requires that the executive committee

'must be composed in such a way that parties and interests represented in the municipal council are represented in the executive B committee in substantially the same proportion they are represented in the council'. [13]

In an executive mayoral system, executive power is delegated to the executive mayor. [14] The delegation is, however, also regulated by the Constitution and relevant national legislation. The Johannesburg municipal council has an executive mayoral system. Since the council has more than nine members, the executive mayor is C obliged to appoint a mayoral committee from among the members of the council.

[13] Section 60(1) gives the power to the executive mayor to appoint members of the mayoral committee and to dismiss them. The function of the mayoral committee is to assist the executive mayor. The D executive mayor also has the power to delegate specific responsibilities, executive powers and functions to members of the mayoral committee. The mayor's power to delegate is, however, not completely unfettered. In terms of s 60(3) the municipal council may designate certain of the executive mayor's powers and functions to be '. . . exercised and performed by the executive mayor together with E the other members of the mayoral committee'. [15]

[14] Section 79 of the Structures Act governs the establishment of committees 'necessary for the effective and efficient performance of any of its functions or the exercise of any of its powers' by a municipal council. Section 80 is concerned with the appointment of F committees of councillors by a municipal council to assist the executive mayor. It provides, in relevant part, as follows:

'80. Committees to assist . . . executive mayor -

(1) If a municipal council has an . . . executive mayor, it may appoint in terms of s 79, committees of councillors to assist the G . . . executive mayor.

(2) Such committees may not in number exceed the number of members of the. . . mayoral committee.

(3) The . . . executive mayor -

(a)

appoints a chairperson for each committee from the . . . mayoral committee;

(b)

may delegate any powers and duties of the . . . executive mayor to the committee; H

(c)

is not divested of the responsibility concerning the exercise of the power or the performance of the duty; and

Langa DCJ

(d)

may vary or revoke any decision taken by a committee, subject to any vested rights. A

(4) Such a committee must report to the . . . executive mayor in accordance with the directions of the . . . executive mayor.'

Is the mayoral committee a committee of the municipal council?

[15] The appellants contend that since executive authority is vested in the municipal council, any committee that exercises that authority B is a committee of the council within the meaning of s 160(8) of the Constitution. If the submission is correct, it would follow that the mayoral committee is a committee of the municipal council to which the requirement of minority party representation is applicable. In order to establish the validity of the submission, it is...