THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 590/2009

In the matter between:

THE MEMBER OF THE KWAZULU-NATAL
EXECUTIVE COUNCIL FOR LOCAL
GOVERNMENT, HOUSING AND
TRADITIONAL AFFAIRS

Appellant

and

AMAJUBA DISTRICT MUNICIPALITY

First Respondent
INKATHA FREEDOM PARTY

Second Respondent
AFRICAN NATIONAL CONGRESS                                       Third Respondent
DEMOCRATIC ALLIANCE

Fourth Respondent
THE FEDERAL CONGRESS (FEDCON)

Fifth Respondent
ROYAL LOYAL PROGRESS PARTY

Sixth Respondent
THE ELECTORAL COMMISSION OF
SOUTH AFRICA

Seventh Respondent

Neutral citation: The Member of the KwaZulu-Natal Executive Council for
Local Government, Housing and Traditional Affairs v Amajuba District
Municipality (590/2009) [2010] ZASCA 111 (20 September 2010).
Coram:
Mpati P, Cloete, Heher, Ponnan and Leach JJA
Heard:
26 August 2010
Delivered:
20 September 2010

Summary: Local authorities – election of members to the executive
committee of a district municipality in terms of s 43(1) of the Local
Government: Municipal Structures Act 117 of 1998 – election to be decided by
way of a majority vote of the members of the municipal council.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from:  KwaZulu-Natal High Court, Pietermaritzburg (Hollis AJ
sitting as court of first instance):

The appeal is dismissed with costs.

______________________________________________________________

JUDGMENT
______________________________________________________________

LEACH JA (Mpati P, Cloete, Heher, Ponnan JJA concurring):

[1] This appeal arises from a political squabble in the council of the first
respondent, the Amajuba District Municipality, a ‘district municipality’ as
defined in s 1 of the Local Government: Municipal Structures Act 117 of 1998
(‘the Act’) surrounding the removal of two councillors from its executive
committee and the council’s refusal to re-elect the same two councillors to the
executive committee to fill the vacancies caused by their removal. This led to
the MEC for Local Government, Housing and Traditional Affairs (at the time
Mr M Mabuyakhulu, the brother to one of the removed councillors) applying to
the High Court, Pietermaritzburg for a declaratory order which, if granted,
would oblige the council to accept the two councillors back onto the executive
committee. Any inference of nepotism on his part caused by his action has
been dissipated by the problem in this case not being unique to the first
respondent and his successors in office having persisted with the proceedings
in order to obtain guidance from the court. In any event, the application was
dismissed and, with the leave of the court a quo, the appellant (the current
MEC) appeals now to this court against that decision.

[2] Every municipality must have a council1 that is obliged, inter alia, to
strive to achieve the objectives detailed in s 152 of the Constitution, and to
review the needs of the community it serves, its priorities to meet those needs
and its mechanisms for doing so.2 There are 25 councillors in the first
respondent’s council, 15 appointed by local municipalities and ten elected by
voters. The councillors are members of different political parties, namely, the
second, third, fourth, fifth and sixth respondents in this appeal, although at all
material times, most were either members of the second respondent, the
Inkatha Freedom Party (‘the IFP’) or the African National Congress (‘the
ANC’), the third respondent. Every municipality must also have a chairperson,
called ‘the speaker’, elected from among the municipal councillors, either at
the council’s first sitting after an election or when necessary to fill a vacancy.3

[3] The first respondent operates under a ‘collective executive system’ as
envisaged by the Act and as mandated by the Determination of Types of
Municipality Act 7 of 2000 (KZN). This entails it having an executive
committee with various functions and powers.4 Section 43 of the Act further
provides:
‘(1)
If the council of a municipality establishes an executive committee, it must
elect a number of councillors necessary for effective and efficient government,
provided that no more than 20 per cent of the councillors or 10 councillors, whichever
is the least, are elected. An executive committee may not have less than three
members.
(2)
An executive committee must be composed in such a way that parties and
interests represented in the municipal council are represented in the executive
committee in substantially the same proportion they are represented in the council.
(3)
A municipal council may determine any alternative mechanism for the election
of an executive committee, provided it complies with section 160(8) of the
Constitution.’5

1 Section 18(1) of the Act.
2 Section 19 of the Act.
3 Section 36(1) and (2) of the Act.
4 Set out in s 44 of the Act.
5 Section 43(3) ensures compliance with s 160(8)(a) of the Constitution which provides that
members of a municipal council are entitled to participate in the proceedings its committees in
a manner that ‘allows parties and interests reflected within the Council to be fairly
represented’.

[4] The first respondent’s executive committee was established on 3 April
2006 at the municipal council’s inaugural meeting. To give effect to the
imperative contained in s 43(2) of the Act, it comprised five members: two
from the ANC, two from the IFP and one representing a minority party.
Councillors DB Mabuyakhulu and JCN Khumalo of the ANC were elected both
to the committee and as mayor and deputy-mayor,6 respectively, while
councillor AT Zwane, another ANC member, was elected speaker of the
council.7

[5] At the time of this meeting, and for some time thereafter, the ANC,
together with the support of a minority party with whom it formed a coalition,
held a majority in the council. However, in the fickleness of politics the
minority party later left the ANC in the lurch and allied itself to the IFP which,
with its support, then held a majority in the council. The majority promptly
called for a council meeting with the view of removing the ANC councillors
from the posts of mayor, deputy-mayor and speaker. Presumably in an
attempt to retain those posts in ANC hands, the speaker turned a deaf ear to
this request and, eventually, an application to compel the holding of a council
meeting was brought in the Pietermaritzburg High Court. In a vain attempt to
delay the inevitable, the executive committee opposed the application. It is
undisputed that councillors Mabuyakhulu and Khumalo (the mayor and his
deputy) were the guiding hands behind this opposition which was funded from
the municipality’s coffers. Unfortunately for them, the application succeeded, a
council meeting was held and, in due course, both they and the speaker were
removed from office and replaced.

[6] The council then proceeded to hold an investigation into the possible
waste of municipal funds by the council’s opposition to the application and, on
13 February 2008, acting under s 53(1) of the Act,8 it removed councillors

6 Section 48(1) of the Act requires the municipal council to elect a member of its executive
committee as the mayor and, if the MEC for local government of the province so approves,
another member of the executive committee as the deputy mayor.
7 Section 36 of the Act obliges every municipal council to have a chairperson, to be called ‘the
speaker’. It is not a requirement that the speaker be a member of the executive committee.
8 ‘A municipal council may, by resolution remove from office one or more or all of the

Mabuyakhulu and Khumalo from the executive committee. Although they
remained members of the council, they were neither disciplined nor
sanctioned (under item 14(2) of schedule 1 to the Local Government:
Municipal Systems Act 32 of 2000 steps may be taken against councillors
who breach the code of conduct which, inter alia, may result in their
suspension or removal from office – although the council may not suspend or
remove them: that may only be done by the MEC9). Moreover, no steps were
taken to recover the wasteful expenditure from them under the Municipal
Finance Management Act 56 of 2003.

[7] Section 53(3) of the Act provides for members of an executive
committee who are removed from office to be replaced by way of an election
‘subject to section 43’. The effect of this is that the ANC was entitled to have
two councillors elected to fill the vacancies created by the removal of
councillors Mabuyakhulu and Khumalo in order to reflect the proportional
representation of the parties in the council. Obdurately, the ANC caucus in the
council nominated councillors Mabuyakhulu and Khumalo once again for
election to fill those vacancies. The majority of the council refused to elect
them and the ANC councillors, in turn, refused to put up any other candidates
for election. This resulted in a state of deadlock but, as the three remaining
members of the executive committee constituted a quorum, the executive
committee continued about its work – albeit without ANC representation.

[8] Faced with this situation, the MEC adopted the position that the council
had enjoyed no right to refuse to approve whoever the ANC nominated to the
executive committee. When the council refused to back down the MEC,
relying upon s 139(1) of the Constitution which authorises a provincial
executive to intervene when a municipality ‘cannot or does not fulfil an
executive obligation in terms of the Constitution or legislation’, proposed a
resolution to the provincial executive council of KwaZulu-Natal that either an
administrator be appointed to run an election aimed at the installation of the

members of its executive committee. Prior notice of an intention to move a motion for the
removal of members must be given.’
9 Item 14(6) of schedule 1 to Act 32 of 2000.

ANC’s nominees as members of the executive committee of the first
respondent’s council or, alternatively, that the first respondent’s council be
dissolved and fresh elections held with the first respondent’s functions being
performed by the administrator until a new council was established.

[9] The MEC’s proposal was accepted by the provincial executive council
on 26 June 2008. Faced with this, the first respondent launched an application
in the Pietermaritzburg High Court challenging the provincial executive’s
power to intervene in its affairs. As a result, on 14 July 2008 a rule nisi
returnable on 15 August 2008 was issued calling upon the premier of the
province of KwaZulu-Natal and certain other parties to show cause why the
resolution of the executive council should not be declared invalid and why the
provincial executive should not be interdicted from intervening in the council’s
affairs as it had resolved to do.

[10] Section 139(2) of the Constitution provides that if a provincial executive
intervenes in a municipality’s affairs, it is to give written notice of the
intervention to the national minister responsible for local government affairs.
The national executive disapproved of the provincial executive’s intervention
which thus came to naught and the interdict was never argued to finality.
Presumably, the rule nisi lapsed with the effluxion of time.

[11] Notwithstanding this, the ANC councillors in the first respondent’s
council persisted in their refusal to nominate anyone except councillors
Mabuyakhulu and Khumalo to fill the two vacancies on the executive
committee. At a council meeting on 23 March 2009, a secret ballot was held in
respect of the seat on the executive committee reserved for a minority party
which was to be filled by a councillor from either the Democratic Alliance (the
fourth respondent) or the Federated Congress (the fifth respondent) who had
an equal entitlement to it. After this election had been held, the ANC was
again afforded the opportunity to nominate two of its councillors to sit on the
executive committee. Once more, an ANC councillor submitted the names of
councillors Mabuyakhulu and Khumalo, this time subject to a condition that

they be appointed with effect from 1 May 2008. Whether this condition vitiated
the validity of the nomination is not necessary to consider for purposes of this
judgment. What is of importance is that once the nomination had been made,
a councillor representing the Democratic Alliance stated that the council’s
resolution on the removal of those councillors from the executive committee
still stood and that, in those circumstances, the nomination was not
acceptable. Although it is not disputed that the majority of the full council
voted in favour of this view, it has never been contended by any party to these
proceedings that the ANC was not entitled to nominate the two councillors
concerned and, in truth, the events of this meeting amount to no more than a
refusal to elect those whom the ANC had nominated (as was correctly
accepted by counsel for the appellant).

[12] It was in these circumstances that the MEC again decided to intervene.
This he did on 7 April 2009 by launching the proceedings presently on appeal
by way of a notice of motion seeking, inter alia, the following relief:
‘2.1
THAT it be and is hereby declared that in terms of Section 43 of the Local
Government: Municipal Structures Act No. 117 of 1998 read with Section 160 of the
Constitution:-
2.1.1 each party or interest to be represented on the Executive Committee of a
Municipal Council is entitled to be represented pro rata to its representation in the
Municipal Council;
2.1.2 each party or interest aforesaid is entitled to choose and nominate any sitting
Municipal Councillor to be elected to the Executive Committee;
2.1.3 a Municipal Council is obliged to accept and elect those sitting Municipal
Councillors chosen and nominated by the party or interest as aforesaid.
2.2
THAT the refusal by the Municipal Council of First Respondent to accept the
two nominated candidates from Third Respondent for election to the Executive
Committee of First Respondent at its meeting held at Madadeni on Monday 23rd
March 2009 be and is hereby declared to be unlawful.
2.3
THAT Third Respondent is entitled to nominate for election any two sitting
Municipal Councillors of First Respondent of its choice to the two positions reserved
for Third Respondent on the Executive Committee and the Municipal Council is
thereupon obliged to elect them to the Executive Committee.’

[13] Paragraph 2.1.1 of the notice of motion is, effectively, a restatement of
the provisions of s 43(2) of the Act and relates to an issue about which there
has never been a dispute. In these circumstances declaratory relief in those
terms in unnecessary and was not sought by appellant’s counsel. Similarly,
the relief set out in paragraph 2.1.2 of the notice of motion is also
unnecessary as there has never been a dispute as to the entitlement of any
party or interest represented in the municipal council to nominate a councillor
for election to the executive committee. Paragraph 2.2, which was formulated
in the light of what occurred at the meeting of 23 March 2009, is also
unnecessary as essentially all that occurred at that meeting was a refusal to
elect. Counsel for the appellant therefore correctly confined his argument to
the relief set out in paragraphs 2.1.3 and 2.3 in the notice of motion which,
essentially, amounts to the same thing viz that the ANC was entitled to
nominate any two of its municipal councillors in the first respondent for the two
vacancies on the executive committee, including those councillors whose
removal had caused the vacancies in the first place, and that the council was
thereupon obliged to accept such persons onto that committee.

[14] In advancing this contention, the appellant placed particular emphasis
on s 160(8) of the Constitution which provides both that parties and interests
reflected within the municipal council are to be ‘fairly represented’10 and that
members of a municipal council ‘are entitled to participate in its proceedings
and those of its committees in a manner that . . . is consistent with
democracy’.11 As was stressed in Democratic Alliance & another v Masondo
NO & another,12 these provisions are designed to ensure that minority parties
can meaningfully participate in the deliberative processes of municipal
councils and its committees. This objective the legislature clearly sought to
achieve in s 43(2) of the Act by providing for proportional representation in the
executive committee of the parties and interests represented in the council.

10 Section 160(8)(a) of the Constitution.
11 Section 160(8)(b) of the Constitution.
12 2003 (2) SA 413 (CC) para [18].

[15] The appellant argued that s 43(1) of the Act, which requires a
municipal council to ‘elect’ councillors onto its executive committee, is to be
interpreted in the light of these constitutional values and that, in doing so,
democracy can only be given its full voice if the word ‘elect’ in that section is
not given the narrow sense of a decision taken by way of a majority vote, as
to do so could result in a majority of the council, in effect, deciding for a
minority party who was to represent it in the committee and denying it its
representative of choice. This, so the argument went, was anti-democratic
and led to unfair representation in the executive committee – and could, for
example, lead to a minority party’s most competent councillors being excluded
from participation in a council’s executive processes. Consequently, the word
‘elect’ should be interpreted widely to connote ‘select’ in the sense that the
council is obliged to accept the councillor put forward by a party entitled to
have a councillor in the executive committee. Accordingly, so the argument
continued, as the two councillors concerned had not been sanctioned by
removal from the municipal council, they were in the same position as all
other sitting councillors and were to be ‘elected’ in the wide sense if
nominated by the ANC for the two vacant posts.

[16] The immediate difficulty that I have with this argument is that it appears
to fly in the face of the Constitution itself, s 160(1)(c) of which provides for a
municipal council to ‘elect an executive committee’ subject to national
legislation (which in the present case is clearly the Act). All questions
concerning the passing of by-laws, the approval of budgets, the imposition of
rates and other taxes, levies and duties, and the raising of loans, are to be
determined by a decision taken by a municipal council with the supporting
vote of the majority of its members.13 Section 160(3)(c) goes on to provide
that al other questions before a municipal council – which includes the
election of an executive committee – are to be ‘decided by a majority of the
votes cast’. The appellant’s suggestion that the Act should be interpreted to
mean that a municipal council was obliged to accept a decision taken by

13 Section 160(2) as read with s 160(3)(a) of the Constitution.

another on who should be a member of its executive committee, is wholly
inconsistent with this constitutional requirement.

[17] Moreover, in my view, a requirement that the members of the executive
committee of a municipal council be elected by a majority of the members of
that council does not do violence to democracy or the underlying values of the
Constitution. An essential element of democracy is that effect be given to the
will of the majority. This was emphasised by the Constitutional Court in
Masondo. The issue in that case was whether mayoral committees
established under s 60 of the Act are ‘committees of municipal councils’ as
contemplated by s 160(8) of the Constitution. The majority concluded that
they were not whereas O’Regan J in a minority judgment concluded
otherwise. Writing for the majority, Langa DCJ stated that democratic and
accountable government for local communities14 ‘involves ensuring that the
will of the majority prevails and also that the views of the minority are
considered’15 – the latter being achieved by members of the executive
committee being ‘representative of minority parties and interests’.16 O’Regan J
expressed a similar view. Although differing from the majority in regard to its
applicability to mayoral committees, she observed that s 160(8) of the
Constitution entitled councillors in municipal councils to participate in the
proceedings of the council and its committees subject to parties and interests
being fairly represented therein and that the principle of fair representation
‘remains subject to democracy (which implies that the majority must always
be able to determine decisions)’.17 She continued:18
‘Moreover, s 160(8)(b) is clear that the principle of fair representation is always
subject to democracy and the will of the majority. Members of the mayoral committee
must therefore submit to that principle, as must all councillors. The principle
established by s 160(8) is a principle which requires inclusive deliberation prior to
decision-making to enrich the qualities of our democracy. It does not subvert the
principle of democracy itself’ (emphasis added).

14 The first objective of local government laid down by s 152 of the Constitution.
15 At para 17.
16 At para 31.
17 Para 61.
18 Para 78.

[18] Under s 151(2) of the Constitution, the executive authority of the
municipality vests in its council. The first respondent has a ‘collective
executive system’ as referred to in the Act and s 43(2) of the Act, which
mandates the proportional representation of the parties and interests in the
municipal council in the membership of its executive committee which
exercises the council’s executive authority. This advances the values of a
multi-party system of democratic government in accordance with one of the
founding values enshrined in s 1 of the Constitution. But it is the participation
of minority parties in the executive committee which does so, not the
participation of any particular individual. The selection of the persons to act on
that committee has been entrusted to the municipal council, and it is clear
from both the majority and minority judgments in Masondo that a system
whereby a majority vote of councillors is used to determine the members of a
municipal executive committee is in no way undemocratic. It allows a minority
party to put forward its candidates and its views to be heard and considered
as to their suitability to be elected. It also ensures that the will of the majority
shall prevail: and that is the hallmark of democracy. On the other hand, the
same cannot be said of the interpretation put forward by the appellant viz. that
the majority of a municipal council is obliged to accept the views of a minority
on a crucial issue such as the suitability of a person to be entrusted with the
conduct of the executive functions of a municipality.

[19] Another major difficulty I have with the appellant’s argument is that it
does violence to the language used by the legislature. While the ambit of
interpretation is to give effect to the object or purpose of the legislation under
consideration, in doing so the words used must be given their ordinary
grammatical meaning unless to do so would lead to an absurdity that the
legislature could not have contemplated. This court has previously observed
that ‘it is not the function of the court to do violence to the language of a
statute and impose its views on what the policy or object of the measure
should be’.19 And although a court must always be mindful of the values on

19 Per Schutz JA in Standard Bank Investment Corporation Ltd v Competition Commissioner
& others; Liberty Life Association of Africa Ltd v Competition Commissioner & others 2000 (2)
SA 797 (SCA) para 16.

which the Constitution is based and which it seeks to advance, if the language
in a statutory enactment ‘is ignored in favour of a general resort to “values”
the result is not interpretation but divination’.20

[20] The interpretation that the appellant seeks to place upon s 43(1)
cannot be reconciled with the ordinary grammatical meaning of the words
used by the legislature. It provides that ‘. . . if the council of a municipality
establishes an executive committee, it must elect a number of councillors
necessary for effective and efficient government’. Not only do the words ‘elect’
(used in the section) and ‘select’ (advanced by the appellant) both have as
their ordinary accepted meaning a connotation of choice (and in that regard
the appellant’s argument is but a play on words) but, most importantly, the
section vests the choice of members of the executive committee in the
municipal council and not in a party or interest represented in that council.
Furthermore, s 45 of the Act requires this election to take place at a meeting
of the council. The obligatory rubber stamping of an earlier decision taken by
a party as to who should represent it on the executive committee, as the
appellant argued should occur (for which the legislature could simply have
provided if that had been its intention), can hardly be construed as an election
by the council at a council meeting. The interpretation which the appellant
wishes to place on s 43(1) is more than just strained. It simply is not what the
words of the section, given their ordinary grammatical meaning, connote. A
court has no power to legislate, and it would require a rewriting of the section
to convey what, in the appellant’s view, the legislature ought to have provided.

[21] Significantly, appellant’s counsel conceded that at times there might
have to be an election in what he called the ‘narrow sense’, involving a
decision taken by a majority vote of members of the executive committee.
This would of course occur when, for example, two parties in a council had an
equal claim to an available seat on the committee (as indeed occurred on
23 March 2009 when the council voted on whether the fourth or fifth
respondent’s candidate should be elected to the committee, as already

20 Per Kentridge JA in S v Zuma and others 1995 (1) SA 642 (CC) para 18.

mentioned). It would also be necessary if a party nominated more candidates
than the number of seats to which it is entitled; and while that may be unlikely
to occur, it cannot be excluded. Other examples spring readily to mind. The
fact remains that in certain circumstances there clearly will have to be an
election of members of the executive council by way of a majority vote. The
legislature can hardly be presumed to have intended the word ‘elect’ in that
sense to apply only in certain circumstances and not in others, particularly
when it failed to specify in what circumstances there was to be an election or,
as argued by the appellant, a mere nomination of committee members.

[22] It is also not without significance that the legislature used the word
‘elect’ in the sense of a decision by a majority vote elsewhere in the Act. Thus
a municipal council is required by s 36 to elect its speaker and by s 48 to elect
its mayor and deputy by way of a majority vote in the manner set out in
schedule 3. It may reasonably be inferred that the legislature used the same
word in the same sense throughout the same enactment, particularly in
relation to similar matters. There is no reason to think that, in using the word
‘elect’ in relation to the election of members of the executive committee in
s 43(1), it intended it to bear another, wholly different meaning in relation to
the election of other municipal office bearers.

[23] Finally, that the ultimate choice of who should be on the executive
committee vests in the council, and not in a party or interest represented in
the council, is reinforced by s 53(1) of the Act which provides for the removal
of a member of the executive committee by way of council resolution after
notice of such a resolution has been given. This provides a clear indication
that the legislature intended the council to determine whether any particular
person should be on its executive committee. If a minority party could merely
override the majority of a municipal council by re-nominating a councillor
removed from the executive committee, not only would it have the absurd
result of negating the power extended to the council under s 53(1) of the Act
but it would nullify the council’s constitutional and democratic right to
determine who should be on that committee.

[24] In the light of all these considerations, it is clear that the council was
vested with the choice to determine who should be on its executive
committee, and that the members of that committee are to be appointed by
way of a majority vote. The word ‘elect’ in s 43(1) of the Act is to be ascribed
that meaning rather than that which the appellant puts forward. The court a
quo correctly determined the issue against the appellant, and the appeal must
fail.

[25] The appeal is dismissed with costs.

_________________
L E LEACH
JUDGE OF APPEAL

APPEARANCES

APPELLANTS:

A J Dickson SC; A A Gabriel
Instructed by PKX Attorneys, Pietermaritzburg
McIntyre and Van der Post, Bloemfontein

RESPONDENT:

P J Olsen SC
Instructed by De Jager Baqwa Maritz Inc
c/o Tatham Wilkes, Pietermaritzburg
Symington and De Kok, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:
20 September 2010
Status:  Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

MEC OF KWAZULU-NATAL EXECUTIVE COUNCIL FOR LOCAL
GOVERNMENT, HOUSING AND TRADITIONAL AFFAIRS
V
AMAJUBA DISTRICT MUNICIPALITY & OTHERS

The Supreme Court of Appeal today dismissed an appeal by the MEC for Local
Government, Housing and Traditional Affairs (KwaZulu-Natal) against an order
dismissing an application he had brought in the High Court, Pietermaritzburg
seeking an order directing the council of the Amajuba District Municipality to
elect onto its executive committee two ANC councillors who had earlier been
removed by the council from that committee.

The case flows from a decision taken by the Amajuba District Municipality to
remove the two ANC councillors from its executive committee for having
incurred wasteful expenditure of public funds. This led to two vacancies on the
executive committee, both of which the ANC was entitled to have filled by ANC
councillors. However, the ANC caucus in the council nominated the same two
councillors whose removal had led to the vacancies in the first place, and the
council refused to elect them. This led to the MEC instituting legal proceedings
for an order declaring, inter alia, that the refusal by the Amajuba District
Municipality’s council to elect the two councillors was unlawful and that the
council was obliged to do so. The high court, Pietermaritzburg, dismissed this
application which led to the appeal before the Supreme Court of Appeal.

It was argued that s 43(1) of the Local Government: Municipal Structures Act
117 of 1998 which requires a municipal council to ‘elect’ councillors onto its
executive committee is not to be interpreted as meaning a decision taken by a
majority vote. Instead it was argued that as the ANC was entitled to have two of

its councillors on the executive committee, it could select any two of its sitting
councillors it chose and that the municipal council was obliged to accept them
onto the executive committee.

This argument was rejected, the Supreme Court of Appeal holding that s 43(1)
empowered the council by a majority vote to determine who was to be on its
executive committee, and that this process was in accordance with the
Constitution and not undemocratic. The appeal was therefore dismissed with
costs.