Dikoko v Mokhatla

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde-Mono J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 03 August 2006
• Citation: 2006 (6) SA 235 (CC)
• Docket Number: CCT 62/2005
• Hearing Date: 23 March 2006
• Counsel: W L Wepener SC (with him T J Bokaba) for the applicant. Q Pelser SC for the respondent.
• Court: Constitutional Court

Mokgoro J:

Introduction E

[1] This case concerns the ambit of the immunity from civil liability given to municipal councillors in respect of what they say when carrying out their functions as municipal councillors. The immunity from civil liability which protects councillors from defamation actions enables them to speak and express themselves freely and openly. This, in turn, advances democratic government. The ambit of the immunity is F not without limit; for although the immunity constitutes an important bulwark of constitutional democracy, it prevents those that may be defamed from seeking recourse through the courts. Determining its ambit precisely therefore raises important and difficult questions of constitutional principle, as this judgment will illustrate. G

[2] This case comes to this Court as an application for leave to appeal against the judgment and order of the Transvaal High Court. The applicant is Mr David Dikoko, who at the time the cause of action arose, was Executive Mayor of the Southern District Municipality incorporating the Southern District Council (the Council) in the North West Province. The respondent is Mr Thupi Zacharia Mokhatla, who at H the time was Chief Executive Officer (CEO) of the municipality.

[3] Mr Dikoko raises two arguments. First, he asks that this Court interpret ss 161 [1] and 117 [2] of the Constitution, together with I

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s 28 [3] of the Local Government: Municipal Structures Act [4] (Structures Act) and A s 3 [5] of the North West Municipal Structures Act [6] (North West Structures Act) to allow privilege to municipal councillors performing their functions outside of Council. Second, that the Court interpret ss 2, [*] 7

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9, [8] 10 [9] and 35 [10] of the North West Provincial Legislature's Powers, Privileges and Immunities A Act [11] (North West Privileges Act) to provide the privilege and immunity to persons who are not members of a provincial legislature but appear before it to give information. There is no challenge to the constitutional validity of any of the provisions of the relevant legislation. B

Background

[4] The Council has a policy under which a basic amount of R300 is payable by it towards the payment of the cell-phone account of each councillor. Any amount above R300 must be satisfactorily justified else the amount is personally payable by the councillor and deductible from C his or her salary. The Council had submitted its annual financial report to the Auditor-General of the North West Province (Provincial Auditor-General), who voiced his dissatisfaction with it, pointing to the unacceptable excess of R3 200 on Mr Dikoko's cell-phone account, an outstanding amount which had been long overdue. D

[5] Mr Mokhatla had earlier, in his capacity as CEO of the Council, received management letters from the Provincial Auditor-General, questioning Mr Dikoko's overdue indebtedness to the Council. Although Mr Mokhatla had on a number of occasions and over a considerable period brought this matter to Mr Dikoko's attention, he E had failed to settle the debt. Eventually he came to an agreement with the Council to write off all but R3 200 of the debt. This agreement also caused the Provincial Auditor-General dissatisfaction. He then called on Mr Dikoko to appear before the North West Provincial Public Accounts Standing Committee (Standing Committee) to provide an explanation.

[6] During the course of his explanation, Mr Dikoko made the following statement:

'I might say maybe it was politically motivated. That is why I am saying it could have been best if [Mr Mokhatla] was here to G tell why because . . . my personal view might have been he did it deliberately for it to accrue and build a

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big sum, because some of the colleagues in Council, more especially from our other political parties want to A misconstrue when they give information out, whether to the media or so, wanting to make it as if it was R21 000 for one month whilst it was R21 000 for three years.'

[7] The statement was to the effect that his overdue indebtedness was because Mr Mokhatla had changed the accounting procedures of the B Council, providing for periodic as opposed to more frequent monthly payments of cell-phone account excesses; that he did so deliberately, causing his indebtedness to the Council to accumulate, thereby giving political opponents a basis for an attack on his integrity. Mr Mokhatla instituted an action for damages against Mr Dikoko in the High Court, claiming that Mr Dikoko's statement to the Standing Committee was C defamatory. In his defence Mr Dikoko entered a special plea, claiming that the statement enjoyed privilege under the relevant legislation.

[8] It is convenient to discuss, at this stage, the relevant provisions of the Constitution and the legislative framework within which the privilege operates. D

Constitutional and legislative framework

(a) Privilege afforded to Municipal Councils

[9] Section 161 of the Constitution provides:

'Provincial legislation within the framework of national legislation may provide for privileges and immunities of Municipal E Councils and their members.'

The Constitution therefore permits Parliament to pass framework legislation providing and regulating the privilege afforded to municipal councils and their members.

[10] Parliament proceeded to pass the Structures Act aimed at F providing the national legislative framework referred to in s 161 of the Constitution. Section 28 of this Act provides:

'(1) Provincial legislation in terms of s 161 of the Constitution must provide at least -

(a)

that councillors have freedom of speech in a G municipal council and in its committees, subject to the relevant council's rules and orders as envisaged in s 160(6) of the Constitution; and

(b)

that councillors are not liable to civil or criminal proceedings, arrest, imprisonment or damages for -

(i)

anything that they have said in, produced before or submitted to the council or any of its committees; or H

(ii)

anything revealed as a result of anything that they have said in, produced before or submitted to the Council or any of its committees.

(2) Until provincial legislation contemplated in ss (1) has been enacted the privileges referred to in paras (a) and (b) of ss (1) will apply to all municipal councils in the province concerned.' I

[11] In response to s 28(1) of the Structures Act, the North West Structures Act was passed by the provincial legislature providing among other things, for the freedom of speech and immunity of municipal councillors against criminal or civil liability for statements made in Council or any of its committees. Section 28(2) made provision for the application of s 28(1) to municipal councils until the provinces enacted J

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their own legislation, making provision for privilege in their provinces. The North West Municipal Structures Act was therefore A enacted, providing in s 3 for privilege in the precise terms provided by s 28 of the Structures Act. Section 28(1) and s 3 therefore both make provision for freedom of speech and immunity from civil or criminal liability for anything said in council or in one of its committees. B

(b) Privilege accorded to provincial legislature

[12] Section 117 of the Constitution accords privilege to members of provincial legislatures. This section provides in relevant part:

'(1) Members of a provincial legislature . . .

(a)

have freedom of speech in the legislature and in C its committees, subject to its rules and orders; and

(b)

are not liable to civil or criminal proceedings, arrest, imprisonment or damages for -

(i)

anything that they have said in, produced before or submitted to the legislature or any of its committees; or

(ii)

anything revealed as a result of anything that they have D said in, produced before or submitted to the legislature or any of its committees.'

[13] Responding to the constitutional imperative in s 117, the North West Privileges Act was passed to provide for privilege for members of the North West Provincial Legislature. Section 2 provides: E

'(1) Subject to the standing orders there shall be freedom of speech and debate in or before the Provincial Legislature and any committee, and such freedom shall not be impeached or questioned in any court.

(2) Anything said by any member in or before the Provincial Legislature or a committee, whether as a member or a witness, shall be deemed to be a matter of privilege as contemplated in s 7. F

(3) The provisions of ss (1) shall not apply to any person other than a member, giving evidence before the Provincial Legislature or any committee.'

[14] The section therefore immunises a member for anything said in or before the provincial legislature or any of its committees against civil or criminal liability, regardless of whether he or she appeared as a member or as a witness. On its plain G meaning, s 2 provides this protection for members of the provincial legislature only. It does not give protection to any other person who might appear as a witness before the provincial legislature or any of its committees.

[15] Section 9 of the North West Privileges Act protects H members against liability for civil and criminal proceedings, and provides:

'Notwithstanding the provisions of this or any other Act, no member shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of anything that he or she has said, produced or submitted in or before or to the Provincial Legislature or I any committee thereof or by reason of anything that may have been revealed as a result of what he or she has said, or produced or submitted in or before or to the Provincial Legislature or any committee thereof.'

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