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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIV8SJON, CAPE TOWN)

CASE NUMBER:18014/2014

DATE: 1 DECEMBER 2014

REPORTABLE

In the matter between:

PROVINCIAL MINISTER FOR LOCAL GOVERNMENT , ENVIRONMENTAL AFFAIRS

AND DEVELOPMENT PLANNING, WESTERN CAPE …..............................................Applikant

And

MUNICIPAL COUNCIL OF THE OUDTSHOORN MUNICIPALITY & 3 OTHERS

JUDGMENT

DAVIS, J:

Can a Speaker of a Municipal Council exercise a casting vote in circumstances where the Council is deadlocked in order to pass a budget of that Council? This is the crisp question which confronts this Court. In turn, this question has to be unlocked by the examination of section 160 of the Constitution of the Republic of South Africa Act 108 of 1996 (‘the

Constitution’) and section 30 of the Local Government Municipal Structures Act 117 of 1998 (“the Structures Act”).

Before engaging with the answer to this question, I should, albeit briefly, set out the background to this application. It appears that there was a dispute between the applicant and the second respondent over whether the second respondent’s budget for the 2014/15 financial year had been validly approved. This budget had been passed after the Speaker of the second respondent’s Council, who I might add had already voted in favour of the budget, broke the deadlock at the Council by exercising a casting vote in order to ensure that the budget was approved.

Applicant contended that this was impermissible, relying on the provisions of section 16Q(3)(b), read with section 160(2) of the Constitution. By contrast, the second respondent initially disputed this approach, contending that the approval of a budget by way of the exercise of a casting vote was in accordance with section 30(4) of the Structures Act. It was this dispute which gave rise to the question as to whether section 30(4) of the Structures Act permits a Speaker of a municipal council to exercise a casting vote or whether section 30(4) was incongruent with section 160 of the Constitution and is accordingly unconstitutional.

For whatever reason, it appears that the first and second respondents, which had initially opposed the application, have now taken a different position. An agreement has been reached that the only issue in dispute turns on this interpretive question which I described in the introduction. The agreement that has been reached accepts that it would not be feasible or practical to attempt to set aside the 2014/15 budget cf the second respondent at this stage. Accordingly the applicant does not persist with relief which would have had the effect, had it been successful, of so setting aside the budget.

The question as to the constitutionality of section 30(4) of the Structures Act, however, is important because the parties, with commendable prudence, have take the view that they wish for the second respondent to act lawfully with regard to next year’s annual budget, together with any adjustment budgets which might be made. This dispute, of course, aiso affects all municipalities within the Western Cape in which similar issues may arise with regard to budgets. For this reason, the only issue before this Court concerns the constitutionality of section 30(4) of the Structures Act.

To return therefore to the applicable legislation, section 160(2) of the Constitution provides: “The following functions may not

be delegated by a municipal council:

(a) The passing of by-law;

(b) The approval of budgets;

(c) The imposition of rates and other taxes, levies and duties; and

(d) The raising of loans.

3. (a) The majority of the members of a Municipal Council must be present before a vote can be taken on any matter.(b) Al! questions concerning matters mentioned in sub-section (2) are determined by a decision taken by a Municipal Council with the supporting vote of a majority of its members, (c) Al! other questions before a Municipal Council are decided by a majority of the votes cast/’

Section 30 of the Structures Act, to the extent that it is relevant, provides thus:

(1) A majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter.

(2) All questions concerning matters mentioned in section 160(2) of the Constitution are determined by a decision taken by a Municipal Council with the supporting vote of a majority of the councillors.

(3) All other questions before a Municipal Council are decided by a majority of the votes cast (subject to section 34);

(4) If on any question there is an equality of votes, the councillor presiding must exercise a casting vote in addition to that council’s vote as a councillor.

Section 160 of the Constitution envisages a bifurcated process in respect of approval of motions which are brought before a Council. If the motion concerns, inter alia, the approval of budgets, that decision must be taken with a supporting vote of a majority of its members. Take the present dispute. There are 24 councillors. Thus 13 councillors are required to vote in favour of the budget in order for it to be approved. If the motion does not concern any of the functions which are set out in section 160(2) of the Constitution, a decision can be taken by a majority of the votes cast. This would mean that a majority of the quorum required in order for legal proceedings to take place would be all that would be necessary in order for such a motion to pass.

Section 30(4) fits within this voting structure. The voting structure read as a whole, dictates that, unless in the case of the approval of a budget, a vote of a majority of the members is cast in favour of the budget cannot then be approved. A casting vote can surely not be counted as a vote of the majority of members. The majority of members must mean in the present case: that 13 members out of the complement of 24members in the Council must vote in favour of the budget. But that is not what section 30(4), at least, on a literal reading, appears to indicate. !t provides that all questions concerning matters which are mentioned in section 160(2) of the Constitution are to be determined by a decision which is taken by a majority of the councillors who are in favour of such a motion.

Freezing the interpretative frame and thus focusing only on section 30(2) of the Structures Act, the result would be that 13 of the 24 councillors are required to vote in favour of a motion. Section 30(3) which follows the constitutional architecture provides that, for all other issues, a majority of the votes cast is sufficient. But that brings a reader of the provision to the key problem: the wording of section 30(4) If, on any question and I should add the section is not qualified, there is an equality of votes, the Speaker enjoys a casting vote.

From the interpretation that I have given to section 160(2) of the Constitution, this result cannot be legally permissible in the case of a decision, for example, regarding the budget because a majority of the Council must vote for the approval of the budget. The deadlock cannot be broken by a casting vote; in short, 13 out of 24 votes are required. The Structures Act provides however that, if there is an equality of votes, a casting vote can break the deadlock. There are therefore only two solutions which are open to this Court. The first is to adopt the view that section 30(4), in the unqualified form that it appears in the Act, is unconstitutional, for it is incongruent with the structure of voting as set out carefully in section 160(2) of the Constitution.

In this regard Mr Farlam, who appeared together with Ms Adhikari on behalf of the applicants (and for whose meticulous heads I am hugely indebted), drew my attention to section 160 of the Constitution as it appears in its current form. Mr Farlam noted that the original text which had been adopted by the Constitutional Assembly was held by the Constitutional Court to be in breach of the Constitutional Principles. In ex parte Chairperson of the Constitutional Assembly in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) at para 301 the Court held the sectin to be incongruent with Constitutional Principles XXIV and Xs which demanded a framework for local government powers and functions and which required that “formal legislative procedures shall be adhered to by legislative organs at all levels of government”.

According to the finding of the Constitutional Court, this meant that the Constitution should indicate how the executive of a local government is to be appointed as well as how local governments are to take decisions. It should also stipulate the formal legislative procedures demanded by Constitutional Principle XX that have to be followed. This concern was duly addressed in the revised text of section 160, which is the one which confronts this Court. It is clear that if secticn 160 is analysed, the purpose behind this section was that in matters of great weight, such as the passing of bylaws, the approval of budgets, imposition of rates and other taxes and the raising of loans, a majority of the Council is required to approve these motions.

When bylaws, which are the essential core of the regulatory framework of a municipal council, or the approval of a budget and the consequent imposition of rates and taxes which, arguably, affect the ratepayers, being the citizenry, more than anything else that a Council might do, a majority vote is required. These matters go to the heart of the decision making power of a Council. To permit a casting vote to determine these weighty matters was deemed to be inappropriate. Casting votes cannot be employed in this fashion. This was the manifest purpose of the provision.

The only issue that remains for consideration is the one which Mr Farlam drew to my attention: whether the Court can interpret section 30(4) to be congruent with this constitutional scheme. Manifestly, if a Court is confronted with a constitutional dispute which turns on an interpretation of a statute, a Court should endeavour to interpret the statute in a manner which is constitutional rather than seeking to strike it down. The default position should not be an automatic declaration of invalidity where the words can be read sensibly and plausibly to be constitutional. But, in this case, can the words be read plausibly and sensibly to justify a constitutionally congruent result? ! was indebted to the debate with Mr Farlam in this regard because, as I understood it, neither he nor i was able, jurisprudentsally 'hand on heart’ to contend that such a possible interpretation was available to a court.

Consider the section: One would have to argue that somehow section 30(2) of the Structures Act, which refers to a majority of the councillors, is not linked to section 30(4) which refers to equality of votes as opposed to an equality of councillors; that is, section 30(4) would then be read only to apply to section 30(3) where the words ‘a majority oj: the votes cast’ are employed. But how could this meaning sensibly be considered to be a viable interpretation? After all, section 30(2) refers to “a supporting vote of the majority of the councillors”. The literal, plausible and, in my view, inevitable reading cf section 30(4) is that an equality of votes applies to both scenarios, that is where votes are cast and there is an equality of votes. There is absolutely no qualification which is employed in section 30(4) to justify any other conclusion, nor, in my view, do the words chosen admit of any other interpretation, however desirable that might appear to be.

There is one further issue. This Court is called upon to make a decision which will most certainly govern the conduct of all municipalities in this Province, but it would also have persuasive authority in other provinces where a similar issue might arise. It does not seem to me to be desirable for a Court of first instance such as this one, to engage in. hermeneutic gymnastics in order to justify an interpretation which would obviate a declaration of constitutional invalidity.

It may be that the Constitutional Court adopts a different view regarding the meaning of the section, but such an interpretation will be binding on all municipalities and would not create the level of uncertainty which such an imaginative reading by a High Court, in my view, would create.

Accordingly, I find that section 30(4) of the Constitution is manifestly in conflict with the structure of voting as set out in section 160(2) of the Constitution.

For these reasons therefore:

(1) It is ordered that section 30(4) of the Local Government Municipal Structures Act 117 of 1998 (“Structures Act”) is unconstitutional and invalid to the extent that it allows a councillor, presiding over a meeting of a municipal council, to exercise a casting vote in addition to his or her deliberate to the vote as a councillor, also in respect of matters referred to in section 160(2) of the Constitution of the Republic of South Africa, Act 1 of 1996 (“the Constitution”).

(2) It is declared that the following words be read into section 30(4): “other than a matter mentioned in section 160(2) of the Constitution” after the word “question” in the first line of that section.

(3) It is declared that the orders made in paragraphs (1) and (2) shall have no bearing on passed decisions in respect of matters referred in section 160(2) of the

Constitution that have already been adopted as at the date of this order, including the first respondent’s decision to approve the second respondent’s budget on 28 may 2014

DAVIS, J

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