- Breede Valley Onafhanklik declined to put forward councillors for committees set up by the Breede Valley Municipality.
- Despite the party’s refusal, the council appointed four BVO councillors, sparking a dispute over its legal authority to do so.
- The Supreme Court of Appeal ruled that these appointments were both lawful and reasonable, dismissing the appeal and ordering costs against the party.
The Supreme Court of Appeal has made it clear that a municipal council has the power to appoint elected councillors to Section 80 committees, even if a political party chooses not to nominate anyone.
This judgment followed a disagreement between Breede Valley Onafhanklik (BVO) and the Breede Valley Municipality about appointing BVO councillors to committees intended to support the Executive Committee and Executive Mayor.
When BVO refused to nominate anyone, the municipality appointed four of its councillors to committees responsible for Finance Services, Engineering Services, Public and Community Services, and Strategic Services.
BVO contested these appointments, claiming that the municipality had exceeded its powers by appointing councillors without the party’s nominations and arguing that councillors should not be forced to serve on these committees.
BVO refused to nominate councillors
The conflict started at a special council meeting on 1 December 2021. The municipality decided to create Section 80 committees, appoint their members, and allow the Executive Mayor to choose a chairperson for each committee.
Resolution C114/2021 asked every political party on the council to nominate one councillor and submit their details to the Speaker’s office by 10 December 2021. BVO, however, chose not to make any nominations.
As a result, the council nominated Councillor CF Wilskut for the Public and Community Services Committee, Councillor M Swartz for Strategic Services, Councillor NJ Wullschleger for Finance Services, and Councillor C Ismail for Engineering Services.
On 22 August 2022, BVO objected, saying the municipality was interfering in its internal affairs and claiming the 2021 resolution did not allow the council to nominate councillors on the party’s behalf. Despite this, the council unanimously passed resolution C100/2022 the following day and appointed the four BVO councillors.
BVO took the appointments to the High Court
The disagreement continued when Wullschleger, who had been appointed to the Finance Services Committee, was invited to a meeting on 10 October 2022. BVO replied that he would not attend, as the party was contesting the appointments.
On 14 February 2023, BVO started legal proceedings for a judicial review. The party argued the council had gone beyond its legal powers, broken its own 2021 resolution, acted unfairly, and made an irrational decision. BVO based its challenge mainly on the Promotion of Administrative Justice Act and, alternatively, the constitutional principle of legality.
The High Court in Cape Town dismissed the case and ordered BVO to pay costs. The court found that the appointment was part of the council’s internal political process and should be reviewed according to the principle of legality. It also found that Sections 79 and 80 of the Structures Act allowed the council to appoint councillors to Section 80 committees.
Council’s statutory power could not be restricted
When the case went to appeal, BVO said the council had overstepped by ignoring the nomination process set in 2021. The party also argued that forcing councillors to serve against their will was undemocratic and that the decision made no sense.
Judge PA Meyer ruled that the authority to appoint committee members comes straight from Section 80(1), read with Section 79(1)(b), of the Structures Act. The law lets a municipal council appoint committee members from its own ranks and does not require party nominations as a condition.
The judge dismissed BVO’s claim that the 2021 resolution stopped the council from using its legal powers. “This argument is untenable for several reasons,” Judge Meyer explained.
He found that a municipal council’s resolution could not “circumscribe, override, or fetter” a legal power given by an Act of Parliament. After the nomination deadline passed and BVO had not put forward any names, the council was still entitled to set up its committees.
Councillors have public duties to serve
The court rejected BVO’s claim that the constitutional right to take part in committee meetings meant councillors could decide whether or not to do committee work.
Judge Meyer found that Section 160(8) of the Constitution supports fair political representation and inclusive decision-making at the municipal level, and that elected councillors take on public responsibilities when they enter office.
“Councillors are elected to undertake the work of the council on behalf of the whole citizenry,” the judge said, referring to how the Constitutional Court has previously described the duties of councillors.
The judgment also pointed out that councillors “do not hold office as mere private individuals; rather, they are public functionaries funded by the public purse”.
The court referred to the municipality’s Section 53 Manual, which requires councillors to take part in council business and the structures on which they serve. It found that letting councillors or minority parties refuse committee work would undermine the governance system created by the Structures Act.
Court rejects irrationality challenge
BVO argued that making councillors serve when they did not want to was irrational. The Supreme Court of Appeal found that the council had a legitimate reason to make sure all five section 80 committees were fully set up, working, and reflected the political parties on the council.
These committees are responsible for Finance, Engineering, Public Services, Strategic Support, and Community Services. The court said that appointing elected BVO councillors was directly linked to making sure their party was represented in the municipality’s executive advisory bodies.
BVO did not show that the councillors were unqualified or lacked necessary skills, nor did it point out any procedural errors in how the council made the appointments.
The court concluded that the council had stayed within its legal limits and that elected councillors have public duties to serve on municipal bodies. The appeal was dismissed with costs, including the costs for two counsel.
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