Tlokwe and the Rule of Law

Background

On 29 July 2013, Judge Neil Tuchten (Tuchten J) of the North Gauteng High Court delivered a seminal judgment for the rule of law.

The judgment is as a result of the following events having occurred in Tlokwe (Potchefstroom):

• On 2 July 2013, the Tlokwe City Council convened and passed a motion of no confidence against the Mayor, Maphethle Maphethle of the ANC. Maphethle was replaced with the DA’s Professor Annette Combrink;
• Prior to the meeting (1 July), the Speaker of Tlokwe, Councillor Barei Mosiane-Sogetso (also of the ANC), purported to have (unilaterally) cancelled the meeting;
• The ANC in the Tlokwe brought an application before the court to have the meeting at which Maphethle was removed from office declared illegal;
• This was challenged by the DA and others who further brought a counter application to evict Maphethle and his appointees to the Mayoral Committee evicted from the offices which they continued to occupy.

These events transpired despite the ANC being the majority party in Tlokwe. Through a DA-led coalition of opposition parties and ANC dissidents, this is the second time that the ANC has been unseated (the previous occasion being earlier this year). However, Maphethle was reinstated three months after originally being removed from office.
As distasteful as voters may find these incidences of political musical chairs, Tuchten J makes it abundantly clear that the manoeuvres of the ANC (loyalists and dissidents alike) and the opposition parties is an essential part of our democracy.

The threat of being removed from office in between elections through a motion of no confidence is a useful way to keep the government’s mind focused. Most would agree that representatives should be entitled to bring down a sitting political leader and install a new one where their conscience or circumstance warrants it.

Legality

The primary issue of legality that Tuchten J pronounced upon was the powers of the speaker in relation to convening and cancelling Council Meetings.

The court made significant reference to three documents which guided its decisions: the Municipal Structures Act (117/1998), the Municipal Systems Act (32/2000) and the Rules of Order of the Tlokwe City Council.

With respect to the powers of the Speaker, much as in De Lille v The Speaker of the National Assembly [1], Tuchten J held that the Speaker does have the right to convene Council meetings. However, the Speaker’s rights to cancel or postpone the meetings would be limited to specific circumstances (such as emergencies) and, additionally, this right itself, when exercised, would be constrained by the principle of legality. The question of whether the Speaker’s decision constituted administrative action, and was thus subject to a judicial review, was left open. 

Tuchten J rejected the Speaker’s evidence as to why she cancelled the meeting. The alleged reason was that the majority of ANC Councillors would be involved in a disciplinary hearing scheduled to happen at the same time as the Council meeting. Tuchten J rejected this as a partisan manoeuvre: the meeting was scheduled deliberately to frustrate the well-publicized motion from occurring. Given that the ANC had lost in this way before, this intervention by the Speaker was aimed to prevent ANC dissidents and opposition Councillors from removing Maphethle. 

The Speaker’s argument that the meeting would not be quorate because all the ANC Councillors would be at a disciplinary hearing did not find favour either. Tuchten J rejected this as placing party political interests above the duties the Councillors owed to the citizens of Tlokwe. He stated that this decision was motivated by the desire to drive a factional fight in which the Speaker was involved. This is especially in light of the insufficient notice given.

Tuchten J noted that while the rules did, technically, allow the Speaker to cancel the meeting, his was only in the case of a bona fide emergency. Internal disciplinary processes of the ANC did not constitute such a pressing circumstance. Citing Masethla v President of the Republic of South Africa [2], Tuchten J found that no express power was given to the Speaker to cancel meetings unilaterally and that where she chose to, she could only do so where an “essential corollary” (i.e. an emergency or similar) existed. Tuchten J characterised untrammelled power for the Speaker to cancel meetings, as capriciously as it was suggested, as being “subversive.”

Tuchten J also rejected the ANC’s other arguments. He found that:

• a strict interpretation of the rules with regards to the time allowed to extend a meeting was unfounded as the action taken by the Tlokwe Councillors, to continue the “cancelled” meeting after allowing 30 minutes to elapse, rather than 15, was reasonable.
• the election of an acting Speaker to replace Maosiane-Sogetso was warranted as “she was absent” from the meeting and that her inability to perform her functions was “of her own volition.”

Eviction

With respect to the DA’s counter-application, the position of the court is clear. The counter-application’s success was contingent upon a finding that the meeting at which Maphethle was removed was legal and, the decision it took to replace him with Combrink, was valid. Having found accordingly, Maphethle and his appointees were ordered to vacate the offices they had continued to occupy since 2 July.

The position is analogous to the one Cabinet Ministers find themselves in: they serve at the behest of the incumbent President. When the President (or Mayor in the case of Tlokwe) leaves office, voluntarily or otherwise, so must they. 

Costs

Both parties agreed to a special costs order. Typically, when a government official is involved in a legal dispute pertaining to their office, their legal costs are met by the government structure in which they serve. Tuchten J ordered that no costs arising out of this matter would be covered by the city. He opined that this was a political dispute and that the already under-pressure city could better spend the money on service delivery.

The contribution of this novel aspect of the judgment to the development of future jurisprudence cannot be underestimated. The rule of law is paramount to democracy and where politicians use their office for personal gain, it is now clear that they may personally have to bear the costs for it, not taxpayers. The HSF will be interested to observe whether these kinds of cost orders become more prevalent in the future. 

Reaction

The ANC’s reaction to the judgment was originally respectful. On the same day that the judgment was given, the ANC (North West) issued a statement indicating that they would abide by the court’s ruling. Citing its “respect for the judiciary and the ability of our courts to dispense justice without fear or favour,” the party gave an undertaking to vacate the offices as instructed [3]. The DA welcomed the judgment as a vindication [4].

However, on 30 July, it was reported that Maphethle and his Mayoral Committee members, refused to vacate, despite the court order. The reason given was that the ANC intended to appeal and until that appeal was finalised, they would remain in office [5].

The DA deplored this as a “desperate” attempt to cling to power and indicated that if the ANC refused to comply with the court order, the party would contact the sheriff of the court to give effect to the judgment and/or seek to charge the ANC with contempt of court [6].

By 31 July, the ANC did another about turn and publically withdrew its intended appeal. The ANC thus agreed to vacate and allowed the DA to take over [7] [8].

Whilst the eventual vacation by the ANC must be applauded, it should not have stalled in the first place. The ANC publicly commits itself to the Constitution and the rule of law and should thus have immediately complied. Their failure to do, and allowing the situation to escalate as it did, not only damages their own credibility, it also undermines the standing of the judiciary and undercuts the respect it should be afforded.

By-elections

The political drama in Tlokwe continues. Following the expulsion of the ANC dissident councillors, several by-elections needed to be held, of which one has occurred (the ANC won the ward but with a significantly reduced majority). The outcome will not immediately change the balance of power in the city, but in time may again give rise to bitter factional fighting. The HSF remains hopeful that in light of this judgment the rule of law and the citizens of Tlokwe will be the politicians’ foremost concern.

Conclusion

The copy of the judgment in our possession is marked, presumably by law report editors, as being “reportable” but “not of interest to other judges.” The HSF respectfully disagrees.

This is an important judgment which speaks crisply to the rule of law by properly defining and contextualizing the rules of legislatures and the powers of its office bearers.

As the HSF has consistently argued the rule of law must be supreme. Legitimately enacted laws must be interpreted and applied by judges with the spirit of our Constitution in mind.  The rule of law must not be sacrificed for political convenience and judges, like Tuchten J has done, must not shrink from what may be politically unpopular.

Tuchten J’s findings may only provide immediate relief to the 162 762 [9] people of Tlokwe, as they now have a stable city administration, at least for the next three months. However, the wider ramifications of the finding bring significant benefit to us all: the rule of law remains supreme and judges have an increasing body of precedent with which to ensure that politicians ultimately serve the people, rather than themselves.

References

[1] http://www.saflii.org/za/cases/ZASCA/1999/50.html
[2] http://www.saflii.org.za/za/cases/ZACC/2007/20.html
[3] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=394704&sn=Detail&pid=71619
[4] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71616/page71654?oid=394696&sn=Detail&pid=71654
[5] http://mg.co.za/article/2013-07-30-tlokwe-ex-mayor-wont-vacate-office-as-anc-to-appeal
[6] http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=395063&sn=Marketingweb+detail
[7] http://www.news24.com/SouthAfrica/News/ANC-agrees-to-vacate-Tlokwe-office-20130731
[8] http://mg.co.za/article/2013-07-31-anc-to-give-up-tlokwe-mayor-seat-for-now
[9] http://beta2.statssa.gov.za/?page_id=993&id=tlokwe-city-council-municipality

16 August 2013

Kameel Premhid – kameel@hsf.org.za
Intern
Helen Suzman Foundation