|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
Last Updated: 8 June 2005
REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case number 90/2004
Reportable
In the matter between:
NORTHERN FREE STATE
DISTRICT
MUNICIPALITY APPELLANT
and
VG
MATSHAI RESPONDENT
CORAM: SCOTT, FARLAM, CLOETE, LEWIS JJA et MAYA
AJA
HEARD: 3 MARCH 2005
DELIVERED: 30 MARCH
2005
SUMMARY: Local Government – meetings – power of speaker of
district municipal council to adjourn
meeting.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
[1] The appellant in this matter, the Northern Free State District
Municipality, appeals against a decision delivered on 25 September
2003 in the
Free State High Court by Van der Merwe J, with whom Hattingh J concurred,
setting aside a decision taken by the appellant’s
council on 20 May 2003
to remove the respondent from her position as the speaker of the council,
confirming that the respondent retained
her position and status as speaker in
all respects as from 20 May 2003 and ordering the appellant to pay the costs of
the application.
[2] A special meeting of the appellant’s
council was held on 20 May 2003. Item 6 on the agenda was a motion for the
removal of the
respondent as speaker of the council. According to the motion it
was submitted in terms of s 40 of the Local Government: Municipal
Structures Act
117 of 1998, read with Rule 87 of the Standard Rules and
Orders.
[3] At a stage of the meeting when only items 6 and 7 had not
been dealt with, the respondent, as it is put in the
minutes,
‘suggested and ruled that item 6 which is the first item on
the agenda be delayed and discussed at the end’.
It appears further
from the minutes that one of the councillors, Councillor JETR Ramokhoase
‘challenged [this] ruling and proposed
that the sequence of the items on
the agenda be maintained’ and that another councillor, Councillor GP
Mandelstam, ‘advised
the Speaker that it is not within her powers to rule
over the changes in the sequence of the items on the agenda but it is the
Council
that has to decide’.
[4] The respondent, who, as has
been seen, had ruled that item 6 be discussed after item 7 and at the end of the
meeting, then ruled that
item 6 not be discussed at the meeting at all. The
reasons she advanced are set out as follows in the minutes:
‘1. Minutes of special council meeting held on 17 April 2003 were corrected; as a result item 6 should have not formed part of the agenda dated 20 May 2003.
2. The Special Council Meeting (no 5 of 2002/2003) was specifically convened to discuss item 7 and further that she, cllr Matshai, was not consulted about the inclusion of item 6 on this agenda.
3. She did not receive any correspondence from the initiator of the motion, cllr Ramokhoase, with regard to the discussion of this item.
4. She was not given sufficient notice to structure her defence and further that councillors were not given 7 days notice.
5. Since 21 days have passed, she was under the impression that the motion has lapsed.’
(The correction to which she referred in the first
of her reasons read as follows:
‘The resolution [on item 6] should read
... thus:
“That the item on the motion for the removal of speaker in
terms of rule 87 of the Standard Rules and Orders be postponed to
the special
meeting that will be announced in due course.”’)
[5] The
executive mayor replied to the reasons advanced by the respondent for her
ruling, saying that at a meeting held on 13 May 2003
between the respondent, the
municipal manager and himself it was agreed that item 6 should form part of the
agenda for the council
meeting to be held on 20 May 2003.
[6] After
further discussion the council resolved that item 7 be discussed first and that,
despite the respondent’s ruling on item
6, it also be discussed. Item 7
was then postponed to the next special council meeting to be held two days
later. After item 7 was
discussed the respondent left the council chamber after
purporting to adjourn the meeting.
[7] The meeting continued in the
absence of the respondent. Councillor Ramokhoase, accompanied by two other
councillors, was sent to inform
the respondent that the council intended to
continue with the discussion of the motion and to give her the opportunity to
respond
appropriately, whereupon the meeting was adjourned to await the
respondent’s response. After some time Councillor Ramokhoase
returned and
reported that the respondent refused to participate in the proceedings and to
respond to the motion. The meeting then
continued and item 6 was discussed. In
terms of Rule 87(9) of the Standard Rules the municipal manager presided as
non-voting chairperson.
[8] The motion for the removal of the
respondent from her office as speaker was carried unanimously and Councillor GT
Hadebe was elected
as speaker for the remainder of the council’s term of
office.
[9] The respondent then instituted proceedings in the Free
State High Court for an order (a) declaring that portion of the meeting which
took place after she adjourned it to be null and void, alternatively setting
aside the decision to remove her from her position as
speaker; (b) confirming
her position and status as speaker in all respects, including her salary, powers
and benefits; and (c) that
the respondents in the court a quo, that is to
say the present appellant, the municipal manager and the councillors who voted
for the resolution removing the respondent
as speaker, pay the
costs.
[10] In her founding affidavit the respondent stated that she
was only notified on 19 May 2003 that the motion for her removal as speaker
was
to be considered at a special meeting of the council to be held the next day.
She denied that a meeting between herself, the
executive mayor and the municipal
manager took place on 13 May 2003 at which it was decided that item 6 should
form part of the agenda
of the meeting to be held on 20 May 2003. She indicated
that her counsel would address the court on the question as to whether she
received the fair hearing to which she was entitled before the decision was
taken to remove her as speaker, her attitude being that
she had not been given
proper notice of allegations against her. She also indicated that it was her
contention that she had validly
adjourned the meeting before item 6 was
discussed and that the proceedings thereafter were irregular, with the result
that the decision
then taken was invalid.
[11] All the respondents in
the court a quo, with one exception, opposed the application. The main
affidavit filed in opposition to the application was deposed to by Mr B Molotsi,
the municipal manager. In his affidavit the deponent denied that the respondent
only received notice of the agenda of the special
meeting on 19 May 2003. He
confirmed the accuracy of the statement made at the meeting on 20 May by the
executive mayor which has
been referred to in para 5 above. As the respondent
sought an order in the application without resort to oral evidence, the
application
had to be determined on the basis of the facts set out in Mr
Molotsi’s affidavit (see Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A) at 634E to 635C).
[12] The court
a quo held that the respondent’s ruling that item 6 could not be
discussed at the meeting and her action in adjourning the meeting
‘even if
made ultra vires or without good cause’ (matters on which Van der
Merwe J said that he expressed no opinion) ‘could simply not be
ignored.’
The learned judge continued:
‘It is a fundamental
principle of our law that no one may take the law in his or her own hands. This
is in my view part and
parcel of the rule of law, the supremacy of which is
reaffirmed in Section 1(c) of the Constitution. To ignore such a ruling and
adjournment, amounts in my view to taking the law in own hands. The ruling and
the adjournment stand as official acts until overturned
or set aside by a court
on review. This is the procedure that could have been taken by anyone aggrieved
by the ruling and the adjournment,
which was not done.
What in fact happened
was that the aforesaid ruling was simply ignored by the decision to nevertheless
discuss the matter. The argument
that the resolution to continue was taken
before adjournment loses sight hereof. Similarly the adjournment was ignored by
the continuation
of the meeting thereafter. It is rightly not suggested that a
new meeting was convened. The respondents therefore, in my view, misconceived
their remedy. Whatever the view was of the respondents as I have indicated, the
ruling and the adjournment stood as official acts
that could not be
ignored.
It follows that the decision on 20 May 2003 to remove the applicant
on the basis that it took place as I have quoted was invalid and
must be set
aside.’
[13] I cannot agree that in acting as they did after the
respondent purported to adjourn the meeting the members of the council took the
law into their own hands. They did nothing of the kind. In ignoring the ruling
and adjournment by the respondent and proceeding with
the meeting and a
consideration of item 6 they undoubtedly acted at their peril, as it were, in
that if it were subsequently held
that the ruling and adjournment were valid
then the decision they took would ex hypothesi be
invalid.
[14] Mr Edeling, who appeared for the respondent,
submitted that the respondent’s ruling and her action in adjourning the
meeting stood and had
legal consequences until set aside by a court of law. In
support of this proposition he relied on the recent decision of this Court
in
Oudekraal Estates Pty Ltd v City of Cape Town 2004 (6) SA 222 (SCA), in
which it was held (para 26 at 242A-C) that until invalid administrative action
is set aside by a court in
proceedings for judicial review it exists in fact and
has legal consequences that cannot simply be overlooked.
[15] I do not
think that the principle upheld in the Oudekraal case can be applied in
this matter. One of the issues in that case was whether the first respondent,
the City Council, was entitled
to justify its refusal to approve an engineering
services plan for a township by relying on what was described as a collateral
challenge
to the validity of the earlier decision by the Administrator to
approve the township. This Court held the council was not entitled
to justify
its refusal to approve the plan by raising a collateral challenge to the
Administrator’s approval of the township.
It was required to perform its
public duty in relation to the proposed plan and could only rely on the alleged
invalidity of the
township approval once it had succeeded in a direct challenge
to set it aside. In paras 29 to 31 (at 243A-244A) reference was made
to cases
where a prior administrative act forms the basis for a subsequent administrative
act. In such a case the subsequent act
will be valid, even if the prior act was
invalid, unless the legal, as opposed to the factual, existence of the prior act
is a precondition
to the subsequent act. Considerations of this kind do not
arise in the present case. This case does not concern an attempt to justify
a
refusal to take action which depends for its validity on the validity of an
earlier act which it is now said was invalid.
[16] This is really a
converse case: subsequent action was taken and its validity depends not on the
validity of the previous action but
its invalidity. In such a case, in my view,
there is no legal basis for holding that it was not competent for the
councillors who
believed the adjournment to be invalid, to proceed as if it
were; this must obviously be subject to the qualification that if they
were
wrong, and the adjournment were valid, then their proceedings thereafter would
be invalid.
The Oudekraal case can also be distinguished from the
present case on the basis that the ruling presently under attack is not
administrative action
such as was under consideration therein. In view of the
fact that the point was not fully canvassed in argument before us I shall
refrain from elaborating on this aspect of the case.
[17] It follows
from what I have said that the court a quo erred in granting the order
sought by the respondent without deciding on the validity of the purported
adjournment by the respondent.
To this question I now
turn.
[18] The usual place to look in order to ascertain whether and,
if so, in what circumstances the person presiding over a meeting is empowered
to
adjourn the meeting is the constitution of the body which is holding the meeting
or, if they exist, its standing rules. It is
common cause in this case that
although the appellant’s council informally accepted the Standard Rules
and Orders published,
in terms of section 148A of the Local Government Ordinance
8 of 1962 of the Province of the Free State, in Provincial Gazette no
140A of 1
December 2000, it did not adopt them as regulations made by it in terms of s
148A(2). It follows that they cannot be regarded
as the source of the power
which a person presiding over the appellant’s council had to adjourn the
proceedings. Such adoption
is necessary for the rules and orders to acquire
legal force in the appellant’s area of jurisdiction.
[19] There
is also, as far as I am aware, no provision in the Constitution or any national
or provincial legislation which deals with the
powers of a speaker of a local
authority such as the appellant’s council to adjourn the proceedings of
the council. It follows
that the answer to the question as to whether the
respondent had the power to adjourn the proceedings of the appellant’s
council
as she purported to do before it began discussing item 6 has to be found
in the common law.
[20] The common law on the topic was discussed by
Lichtenberg AJ in Jonker v Ackerman 1979 (3) 575 (O) in which it was
pointed out (at 583A) that such South African decisions as there are rely on
English authority. This
is not surprising because the English case law contains
a number of decisions in which the law on the point is expounded in a systematic
manner which appears to be in accordance with both common sense and
justice.
[21] The effect of the English decisions is summarised as follows in
Halsbury’s Laws of England 4 ed (2003 reissue), vol 6, para 148 as
follows:
‘It is the duty of the chairman of a meeting to preserve order
and to ensure that the proceedings are properly conducted, so
that the sense of
the meeting regarding any relevant question is duly ascertained. He has no
authority to terminate the meeting at
his own will and pleasure but has an
inherent power to adjourn the proceedings in the event of disorder. This power
to adjourn must
be exercised bona fide for the purpose of facilitating
and forwarding the business and not for the purpose of procrastination. Such
adjournment should be
for no longer than is required in the circumstances for
the restoration of order.’
[22] The case relied on for the
proposition that a chairperson has no authority to terminate the meeting
‘at his own will and pleasure’
is National Dwellings Society v
Sykes [1894] 3 Ch 159, which was cited with approval by Gane J in Neale v
Mayor, East London 1935 EDL 225 at 235 and in Jonker v Ackerman, supra,
at 583A–H. The National Dwellings case, supra, concerned
an ordinary general meeting of a company at which a resolution was moved that
the reports and accounts be received. A counter-resolution
was then moved for
the substitution of the main resolution of a resolution that a committee of
investigation be appointed to ascertain
the position of the company. The
chairman, Sykes, ruled this resolution out of order, whereupon the original
resolution was put and
lost. The chairman then declared the resolution to be
lost and said that he dissolved the meeting. He then vacated the chair and
left
the room, being accompanied by a few shareholders. The shareholders left in the
room unanimously elected another chairman and
proceeded to pass resolutions.
Chitty J held that the meeting had validly continued despite Sykes’s
attempt to adjourn it.
He said (at 162):
‘A question of some importance
has been mooted in this case, with regard to the powers of the chairman over a
meeting. Unquestionably
it is the duty of the chairman, and his function, to
preserve order, and to take care that the proceedings are conducted in a proper
manner, and that the sense of the meeting is properly ascertained with regard to
any question which is properly before the meeting.
But, in my opinion, the power
which has been contended for is not within the scope of the authority of the
chairman – namely
to stop the meeting at his own will and pleasure. The
meeting is called for the particular purposes of the company. According to
the
constitution of the company, a certain officer has to preside. He presides with
reference to the business which is there to be
transacted. In my opinion, he
cannot say, after that business has been opened, “I will have no more to
do with it; I will not
let this meeting proceed; I will stop it; I declare the
meeting dissolved, and I leave the chair.” In my opinion, that is not
within his power. The meeting by itself (and these articles certainly apply to
what I have said) can resolve to go on with the business
for which it has been
convened, and appoint a chairman to conduct the business which the other
chairman, forgetful of his duty or
violating his duty, has tried to stop because
the proceedings have taken a turn which he himself does not
like.’
[23] An earlier case on the point, mentioned in
Shackleton on The Law and Practice of Meetings 8 ed by I Shearman at p
72, is Stoughton v Reynolds (1736) Fort 168; 92 ER 804, a decision of the
Court of King’s Bench. In this case a vestry meeting was held for the
election
of churchwardens. Before the election was completed the vicar, who was
in the chair, adjourned the meeting to the next morning against
the wish of many
present. Stoughton’s supporters stayed behind and elected him. The next
morning the vicar and his supporters
sat and elected another person as
churchwarden whereafter Reynolds, the chancellor of the diocese, declined to
admit Stoughton to
his office as churchwarden on the ground that another person
had been chosen churchwarden. The issue debated at the bar was whether
the right
to adjourn was vested in the meeting or in the vicar. Lord Hardwicke CJ said (at
170):
‘The whole of this case will turn upon the adjournment. At the
trial no precedent could be found to satisfy me; and I do not
believe any can be
found. ... I do not find any such opinion [i.e at common law] to vest a power in
the person .... If therefore
it is not in the vicar, it is said it must be in
the church-wardens, but I cannot find it is; and I do not think it can be said
to
be in any one of them. In whom then can it be, but in the assembly itself?
And the right must be in the body ....’
Page J said (at 172):
‘Lord Holt was of opinion, that tho’ the mayor left the
assembly, yet the burgesses must proceed. ...’
Lee J said (also at
172):
‘the parson perhaps has a right of sitting from his freehold in
the church. But I do not think that can any ways give him greater
right or
authority than any of the other members of the assembly ...’
In the
latest English case on the point that I could find, Byng v London Life
Association and Another [1990] Ch 170 (C.A.), the National Dwellings
case was cited by Sir Nicolas Browne-Wilkinson VC (at 186B-C) as authority
for the proposition that ‘[a] chairman has no general
right to adjourn a
meeting at his own will and pleasure, there being no circumstance preventing the
effective continuation of the
proceedings’.
[24] I am satisfied
that the common law is as set out in the cases I have cited. Its application to
the present case leads to the conclusion
that the issue the court a quo
declined to consider has to be decided in favour of the appellant. The
decision by the respondent to adjourn the meeting after the
council had already
decided that it would discuss item 6 and in the absence of circumstances
preventing the effective continuation
of business was clearly invalid. The
action of the council in proceeding with the meeting, in going on with the
business for which
it had been convened and in appointing a chairman to conduct
the business the respondent attempted to prevent was clearly valid as
was the
decision to remove the respondent from her position as
speaker.
[25] Although the respondent purported to bring these
proceedings in her capacity as speaker it is clear that the interest she had was
personal to her. It follows, as her counsel was obliged to concede, that the
costs order consequent upon the success of the appeal
must be made against her
in her personal capacity. The same applies to the costs in the court a
quo.
[26] The following order is made:
The appeal is allowed
with costs, to be paid by the respondent in her personal capacity.
The order
granted in the court below is set aside and the following order is substituted
therefor:
‘The application is dismissed with costs, such costs to be
paid by the applicant in her personal capacity.’
.................
IG FARLAM
JUDGE OF APPEAL
CONCUR
SCOTT JA
CLOETE JA
LEWIS JA
MAYA AJA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2005/30.html
.RTF of original document