Waters v Khayalami Metropolitan Council

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 476 (W)

Waters v Khayalami Metropolitan Council
1997 (3) SA 476 (W)

1997 (3) SA p476

Citation	1997 (3) SA 476 (W)
Case No	2204/97
Court	Witwatersrand Local Division
Judge	Navsa J
Heard	February 6, 1997
Judgment	February 11, 1997
Counsel	J J Reyneke for the applicant; D J Hancock for the respondent

Flynote : Sleutelwoorde F

Local authority — Council — Powers of — Councillor labelling information supplied by chief executive officer (CEO) of council as 'incorrect' — Such councillor refusing to apologise to CEO after having been instructed to do so by mayor — Councillor excluded from council's meetings for period of 36 days — G Council purporting to have acted in terms of powers set out in s 35(2) of standing orders — In terms of s 34(2) councillor can only be asked to apologise or withdraw an allegation if unbecoming or injuring or impairing honour or dignity of member or officer of council — Information supplied by CEO incorrect — Councillor in refusing to apologise disregarding improper H instruction — Cannot be censured in such circumstances — Even if councillor wrong in labelling information supplied by CEO as incorrect, such utterance or description not falling within ambit of unbecoming or injurious allegation nor impairing dignity or honour of CEO — Section 34(2) inapplicable — Sanction imposed by council in terms of s 35(2) unwarranted and beyond its power. I

Local authority — Council — Duties of — Accountability — Council and its councillors accountable to citizenry — Those holding power in local authorities to recognise that they ought to be open to criticism, such being cornerstone of democracy — Applicability of values reflected in Constitution of the Republic of South Africa Act 200 of 1993 and in Constitution of the Republic of South Africa Act 108 of 1996 — Matters to be dealt with J

1997 (3) SA p477

in open and democratic fashion — Failure to do so resulting in failure to foster A culture of openness and democracy in local authorities as first tier of government.

Headnote : Kopnota

The applicant was an elected member of the respondent council and the sole representative of his political party, the Democratic Party ('DP'), in the respondent. On 16 February 1996 the applicant submitted written questions to the respondent B regarding the identity of councillors who were in arrears in respect of rates and services, the amounts they owed, how long they had been outstanding and whether such councillors were paying their current accounts. The respondent replied that there were councillors in arrears but declined to disclose their identities due to the fact that 'an account is a private matter between debtor and supplier'. Subsequent to the replies C the applicant questioned whether the public did not have a right to be informed which councillors were in arrears for longer than three months since councillors were public representatives elected by the public. He also requested the respondent to supply details in respect of the amounts owed by the councillors and enquired about the number of councillors who were in arrears in each of the respondent's associated D substructures for specific periods. The chief executive officer ('CEO') of the respondent replied 'no' to the first question; that only one councillor from the Midrand substructure had been in arrears; and that no councillors were in arrears in other substructures. The applicant had obtained information that one of the councillors who represented the African National Congress ('ANC'), the majority party in the respondent, was in arrears for more than three months. These arrears would have had E to be paid to the Kempton Park/Tembisa substructure. In consequence of his discovery the applicant tabled a proposal that it be recorded that councillor S's account had been more than three months in arrears on the day after her election on 1 November 1995 and had remained in arrears up to and including the month of July 1996. It was to be recorded further that the CEO had given false information (this was F later changed to 'incorrect' information) and that an enquiry be set up to investigate why the relevant regulations had not been enforced in accordance with the Local Government Ordinance at the time of councillor S's election or thereafter. The regulations (Proc 48 of December 1994) disqualified a person from nomination or election to a local authority if by 15:00 on the day immediately preceding nomination G day he or she was indebted to the local authority concerned in respect of any assessment for rates, rents, service charges for a period of longer than three months. Section 82(1) of the regulations further provided that a councillor elected according to a party list would cease to hold office when he or she ceased to hold the qualifications required for nomination or election. The applicant's proposal in the form of a motion was defeated at a meeting of the respondent on 22 August 1996. At the same meeting H the ANC councillors introduced a motion which stated that an investigation by them had found that councillor S was not in arrears; that the applicant be requested to withdraw his allegations against the councillor; and that he should disclose his source within the respondent for the information supplied to him. The ANC proposed further that the applicant be suspended for a period of 60 days for his 'bad' conduct. The I applicant had refused to apologise and the matter was referred to the executive committee of the respondent. The executive committee's recommendation was that 'the legal premise upon which some of the arguments are raised by the DP is incorrect'. On 24 October 1996 the ANC introduced a new motion in terms of which it proposed that because councillor S was not in arrears with her payments, J

1997 (3) SA p478

'as there is no contractual relationship between S and the respondent in respect of rates payments', the applicant should be required to apologise, failing which he should be suspended for 60 days. The applicant refused to apologise after being directed to do so by the mayor and was subsequently escorted from the council chambers after refusing to leave when the mayor instructed him to do so. The motion to exclude the applicant from meetings of the respondent was postponed and on 23 January 1997 the mayor ruled and directed the applicant to apologise to the CEO, which the applicant had refused to do, and was consequently asked by the mayor to 'recuse' himself. In the applicant's absence the respondent entertained two proposals, purportedly in terms of ss 35(2) and 35(3) of the standing orders, which called for the applicant's exclusion from meetings of the respondent. The basis for the exclusion was that the applicant had ignored the authority of the chairperson. The applicant was called back into the council chamber, where he was informed that it had been resolved that the respondent 'intended' to exclude him from council meetings for 36 days and was asked whether there were any reasons why he should not be excluded. The applicant repeated that he had nothing to apologise about and was again instructed to leave the council chamber. A motion to exclude him for a period of 36 days was adopted in his absence. The applicant consequently brought an urgent application in a Provincial Division for an order setting aside the respondent's decision. The respondent contended that in requesting and obtaining information from substructures the respondent was entirely reliant on information supplied by officials of substructures and that the local councils were not accountable to the respondent or its CEO. It contended that councillor S lived in Tembisa and therefore was indebted to the Kempton Park/Tembisa Local Council in respect of services and rates. The local council had resolved in April 1996 that the arrears owed by all households within its area would be transferred to a suspense account and that these arrears would have to be paid by the consumers concerned in 60 equal monthly instalments from July 1996. The arrears owing by councillor S at 30 April 1996 had thus been transferred to the suspense account. The respondent contended consequently that the CEO had supplied a correct answer when stating that no councillors had been in arrears and that the applicant had impugned the CEO's honour by stating that he had supplied an incorrect answer. It was submitted that the mayor had acted appropriately when he had directed the applicant to apologise to the CEO and that the applicant's failure to do so had rendered him liable to exclusion from the respondent's meetings.

Held, that the primary question was whether the information supplied by the CEO was correct: if the answer was in the negative then the action by the mayor and the respondent was unwarranted and the decision to exclude the applicant had to be set aside. (At 488E.) H

Held, further, that there could be no doubt that councillor S had at material times been indebted to the Kempton Park/Tembisa substructure: the history of the matter, the nature of the questions asked by the applicant, the unqualified initial responses, the later reliance by the respondent on the lack of a contractual nexus between councillor S and the respondent, and the absence of the explanation proffered at the hearing, up I until the applicant's exclusion, led to the conclusion that the respondent was being disingenuous when it had resorted to the accommodation by the Kempton Park/Tembisa substructure to support its contention that the CEO's information was correct. (At 489I/J–490B/C.)

Held, further, that the assertion by the respondent that it had relied on the substructure's officials for the information did not detract from the fact that J

1997 (3) SA p479

the information as supplied by the CEO was incorrect and that the lack of a A contract...