“Taking disciplinary steps against councillors: What is the problem?”

Conference on Local Government and the LawNelson Mandela Metropolitan UniversityInstitute For Law in Action

5-6 November 2014

Seraj Johaar

INTRODUCTION

• Highlight Problems experienced In Practice

•Consider the Recent Judgments in the Cape High Court

Lili v Independent Electoral Commission: Chief Electoral Officer and Others (3671/2013) [2013] ZAWCHC 196 (28 November 2013)

Kannaland Municipality v Minister for Local Government Environmental Affairs And Development Planning in the Western Cape and Another 20763/13) [2014] ZAWCHC 42 (24 March 2014)

Democratic Alliance and Others v Oudtshoorn Municipality and Others; In Re: Democratic Alliance and Another v Oudtshoorn Municipality and Others (3517/2014 , 8813/2014) [2014] ZAWCHC 132 (27 August 2014)

PROBLEMS

1.Decisions on Party Political Lines / Dictation / Bias / Improper Purpose2.In the main Investigations skewed towards majority over the minority3.DC is a Section 79 Committee but proceedings cannot be conducted in terms of existing rules4.Few examples of co-opting the necessary skills 5.Legal Representation – Do we require it for all matters?6.MEC takes a judicially considered view7.DC = a lay panel but must apply a range of skills that members have not been made aware of and have not practised before 8.Reasons for the finding by the DC are inadequate9.Speakers to authorise investigations but must remain at arms length from all Item 14 processes10.What do we if the Speaker is alleged to have Breached the Code?11.Independent and Professional Investigators and Initiators

Role of the MEC

4 Main Functions under the Code of Conduct

•Receives reports Item 13(3) The chairperson must report the outcome of the investigation to the MEC for local government in the province concerned.

•Appeal Authority Item 14(3)(d) - The MEC for local government may, after having considered the appeal, confirm, set aside or vary the decision of the council and inform the councillor and the council of the outcome of the appeal.

ROLE OF THE MEC

• Investigates Item14 (4) - The MEC for local government may appoint a person or a committee to investigate any alleged breach of a provision of this Code and to make a recommendation as to the appropriate sanction in terms of subitem (2) if a municipal council does not conduct an investigation contemplated in subitem (1) and the MEC for local government considers it necessary. (Item 14(4) of Schedule 1 substituted by section 21 of Act 19 of 2008)

•Suspends and Removes Item14 (6) - If the MEC is of the opinion that the councillor has breached a provision of this Code, and that such contravention warrants a suspension or removal from office, the MEC may – (a) suspend the councillor for a period and on conditions determined by the MEC; or (b) remove the councillor from office.

Relationship between Item 14(2) and Item 14(6)

Van Wyk v Uys N.O. 2002 (5) SA 92 (C)

•MEC cannot act Mero Muto•Council or Committee Investigates alleged breach•Council can impose a fine, warning or reprimand•Serious Breaches – Council can request the MEC to suspend or remove – Rationale is that for the imposition of these far reaching sanctions the decision must be referred to a higher authority•MEC forms an opinion on the papers or can investigate in accordance with Item 14(4)•14(4) Amended – MEC can act if the Council does not conduct an Item 14(1) investigation and the MEC considers it necessary•Jurisdictional Fact for 14(4) – MEC must consider it necessary – no clear guidelines but refer to Item 13(1). MEC should on a reasonable suspicion be of the opinion that the Code has been breached

NATURE OF ITEM 14(6)

•Co-operative Government

•Item 14(6) a culmination of a Multi – Stage Process• Investigation in terms of Item 14(1)• Referral in terms of Item 14(2)• Decision in terms of Item 14(6)

•It is equivalent to an internal appeal process

•Powers granted to the MEC constitute a safeguard and form part of a system of checks and balances applied to disciplinary proceedings against councillors. Andile Lili v. Independent Electoral Commission & Others, (supra) at paras. 39 and 40.)

CAN THE MEC REVISIT THE MERITS?

•In Kannaland v MEC The Municipality argued that the MEC was not authorised to revisit the merits

•Wording of Item 14(6) requires that the MEC must first form the opinion that the Code has been breached. •Systems Act granted the MEC the “sole and exclusive” function of determining whether a councillor has breached the Code or not •If the MEC determines that the Code has been breached (jurisdictional fact) he can suspend or remove [Kannaland v MEC at par 35 and par 39]

•Cited with approval in Democratic Alliance v Oudtshoorn Municipality, Owen Rogers J. states at par 83 that the MEC is not bound by the factual and legal findings of the Council or the Committee under Item 14. The MEC may determine what further investigation if needs be is required to form opinion that the Code has been breached

•Therefore the MEC must (is obliged to) consider the merits

WHEN CAN THE MUNICIPALITY CHALLENGE THE MEC’S DECISION

•Distinction between Appeal and Review

•Appeal is whether the decision is right or wrong

•Review by a court of the exercise of power by a government functionary - cognisance must be taken of the separation of powers – court will not easily interfere with a decision

•Review of the MEC’s decision by a court is constrained by the following principles:

• The court cannot usurp the statutory responsibility of the MEC;• Court must ensure that branches of government exercise power within

the limits of the Constitution;• If the MEC acts in good faith, reasonably and rationally and deciding the

relevant factors and the weight thereof, a court should not interfere

•Municipality can challenge but must be able to show on the facts that the MEC failed to apply his/her mind or that the MEC acted Mala Fide or with Ulterior Motive

REMOVAL FOR NON-ATTENDANCE OF THREE CONSECUTIVE MEETINGS

Democratic Alliance v Oudtshoorn Municipality

•Item 4(2) (1) A municipal council may impose a fine as determined by the standing rules and orders of the municipal council on a councillor for: (a) not attending a meeting which that councillor is required to attend in terms of item 3; or (b) failing to remain in attendance at such a meeting. (2) A councillor who is absent from three or more consecutive meetings of a municipal council, or from three or more consecutive meetings of a committee, which that councillor is required to attend in terms of item 3, must be removed from office as a councillor.

REMOVAL FOR NON-ATTENDANCE OF THREE CONSECUTIVE MEETINGS

Democratic Alliance v Oudtshoorn Municipality

Facts•Councillors signed in at two Council Meetings and left after five minutes•Third Meeting Councillors did not attend at all•Speaker invited Councillors to state why they should not be removed •Disciplinary committee found that three consecutive meetings were missed, councillors should be removed, matter must be reported to Council • Acting MM notifies Councillors that they have been removed ex lege

REMOVAL FOR NON-ATTENDANCE OF THREE CONSECUTIVE MEETINGS

Democratic Alliance v Oudtshoorn Municipality

•Municipality argued that Item 4(2) is a stand alone provision - no relationship with Item 14•Court had to decide whether Item 14 applies to a removal of a Councillor for three successive absences

•Court found that:

• First take a decision under Item 4(2) that the Code has been breached – the decision is reviewable therefore no removal ex lege

• Scheme of the legislation reserves the removal of councillors for a higher authority

• Language in Item 4(1) and 4(2) different – legislature does not say who must remove, just that councillor must be removed

• All removals should be done in in terms of Item 14• If MEC finds 4(2) has been breached the removal is mandatory

REMOVAL FOR NON-ATTENDANCE OF THREE CONSECUTIVE MEETINGS

Democratic Alliance v Oudtshoorn Municipality

•Court had to further decide whether the DC was properly constituted

•Court found that:

• Item 4(3) requires the imposition of a fine and removal of councillors to be done in terms of a USP

• Delegations for DC with a TOR does not amount to a USP• Item 4(3) peremptory – if no USP cannot lawfully act under Item 4(2)

Leave to Appeal to the SCA granted on 3 October 2014

Municipalities therefore must adopt USP’s that set out the procedures relating to the non-attendance of meetings.

CONCLUSION

“Tell me, I'll forget. Show me, I'll remember. Involve me, I'll learn (understand)”

Benjamin Franklin

•Do not tell Councillors what Item 13 and Item 14 of the Code of Conduct says•Show and Involve Councillors in the practical implementation of the Code through targeted capacity building and awareness•Co-opt non-voting advisory Members onto panels•Speakers to remain at arms length – especially in serious breaches•Professional and independent support to the Committee through in house advisory services or outsourcing (serious breaches)•REASONABLENESS , RATIONALITY, PROFESSIONALSM , IMPARTIALITY, INDEPENDENCE – Must be maintained each stage of the Disciplinary Process