Virtual budget adoption by eThekwini Municipal Council challenged in Court

The rapid spread of the Covid-19 virus is wreaking havoc on human lives and government processes. Like any other government institutions, municipal councils under the lockdown regulations first introduced on 25 March 2020 were initially prohibited from hosting council meetings in person to reduce the spread of the virus. They were instead directed to identify creative ways of undertaking their legislative obligations, such as hosting council sessions virtually in order to adopt municipal budgets.

This article examines the Democratic Alliance and Others v eThekwini Metropolitan Municipality case, in which the rules and processes for virtual council meetings came under scrutiny, after a Democratic Alliance (DA) councillor, Councillor Graham, had her microphone muted while speaking at the eThekwini Council's first-ever virtual budget meeting on May 29, 2020.

The DA applied to the KwaZulu-Natal High Court for a declaratory order, claiming that the virtual budget adoption meeting was illegal. After the cause of action – muting of microphones – was corrected at the outset of the proceedings, the High Court dismissed the case with costs due to it being moot (i.e. the issue that sparked the dispute had been resolved by events.)

On 29 May 2020, eThekwini published and adopted the Guidelines Regulating the eThekwini Municipal Council and Committee Meetings (‘Guidelines’) to supplement its Rules of Order By-law, 2014 (‘the By-law’). The Guidelines provide for council meetings to be held virtually under Covid-19 conditions.

On the same day, eThekwini held its first-ever virtual budget meeting to debate and adopt its 2020/2021 budget. Following the Mayor's opening address, the official opposition leader in the Council, Councillor Graham (leader of the DA), started her address, however, her microphone was muted numerous times. Recognising that members of other political parties could be responsible for muting Councillor Graham's microphone, the Speaker instructed those in attendance at the virtual meeting not to meddle with the '[mute] icons.'

The Speaker stood down the proceedings to investigate whether the muting problem was specific to Councillor Graham or all the speakers. To this end, the Speaker changed the order of speakers calling upon a councillor of the Inkatha Freedom Party (IFP) to address the Council. The DA opposed this and requested that other speakers should wait their turn until Councillor Graham had completed her address. However, the Speaker informed Councillor Graham that she would be able to speak after the other speakers. When the Speaker called on Councillor Graham to address the Council, the Speaker discovered that Councillor Graham had left the meeting along with other councillors aligned to the DA, resulting in the budget being adopted in the absence of the DA.

None of the material facts outlined above were in dispute. The parties also agreed substantially on the constitutional framework and ethos in which local government meetings should be held. These include decision-making is a deliberative process, of which freedom of speech to debate is key, including the views of opposition parties.

Despite this, the DA argued that the prerequisites of representative democracy had not been followed, claiming that the DA had been prevented from presenting its views on the budget. The DA further claimed that the requirements of participatory democracy were not met owing to the public being denied access with the shutting down of the Facebook live feed.  It went on to argue that the Speaker failed to conduct the business of the council transparently, particularly dealing with the opposition's muting. The DA argued that the Speaker's alteration of the order of speakers during the council meeting was an unlawful exercise of discretion by the Speaker. It said that calling on speakers was a regular procedure, with the ruling party speaking first, followed by the opposition. According to the DA, these infractions made the budget meeting and its consequences incompatible with the Constitution and the Municipal Systems Act.

The respondents, on the other hand, argued and requested the court to recognise that the DA's constitutional rights and dignity had not been violated, that enough public engagement in the budgetary process had occurred, and that the Speaker had conducted the meeting legitimately. Furthermore, the separation of powers principle precluded the court from providing any remedy in the circumstances. The court should determine that a declaration of unconstitutionality under section 172(1)(a) of the Constitution is unjustified based on these findings.

Legal issues
The Court had to determine whether the conduct of the Council of eThekwini in approving the budget was inconsistent with the Constitution and if so, whether it should issue the declarator the DA sought. More precisely, it had to determine whether the DA was deprived of an opportunity to make submissions on the budgets. The Court also had to determine whether the Speaker conducted the business of the council in compliance with the By-law which regulates how council meetings are conducted. Last, the Court had to determine whether the requirements of participatory democracy were met.

Was the DA deprived of an opportunity to make submissions on the budget?
The Court found that the Speaker did not prevent the DA from making submissions on the 2020/21 budget. In fact, the Speaker advised Councillor Graham that she would be able to speak after the other councillors. Instead of remaining in attendance and insisting on being heard, Ms Graham decided to leave without the permission of the Speaker, clearly violating the By-law. Having exercised her choice to leave ‘precipitously and impermissibly’, the Court concluded that Ms Graham:

‘cannot complain that the DA was deprived of an opportunity to make submissions on the budget. Breaking a rule of law in protest against alleged non-compliance with another rule of law remains just that: self-help in violation of a rule of law. Ms Graham had an opportunity to participate but elected to leave the meeting while it was still under way’.

Ironically, the Court found that Ms Graham was the one who broke the By-law, which required all councillors to remain in attendance at a virtual meeting of the Council unless leave of absence was granted.

Did the Speaker conduct the business of the council in compliance with the law?
On the question of whether the Speaker's alteration of the order of speakers during the council meeting was unconstitutional, the court found that no authority for this practice was offered, thus nothing suggested that it is immutable. In fact, the Court noted that the Speaker is empowered under the By-law to make decisions in unforeseeable circumstances for which the By-law does not provide. The decision to allow the other parties to speak before the DA was made in response to an unexpected event, so the Court ruled.

In the circumstances, the Court found that the DA's assertion that the Speaker acted in an unconstitutional manner and insulted the dignity of its councillors is completely unjustified. Consequently, the Court ruled that the Speaker acted rationally to manage this unforeseen situation, thus interference by the Court was not warranted.

Were the requirements of a participatory democracy met?
As for the DA’s complaint that the Facebook live stream had been cut off, the Court accepted that Facebook was not the only medium of broadcasting the meeting to the public. The virtual budget meeting was also broadcast live on television, radio and various community stations via radio presenters attending the budget meeting. Accordingly, the requirements of representative democracy were met, as public participation was enabled.

Was there a factual or legal foundation for the Court to grant the declarator?
In South Africa, a court must declare legislation or action unconstitutional if it is found to be in violation of the Constitution. In other words, an order of constitutional invalidity is not discretionary, meaning a declaratory order must be given in every case where unconstitutionality is established. However, the doctrine of mootness is an exception to this rule in certain circumstances. For example, the doctrine of mootness arises when a case is launched or reaches the hearing stage too late, resulting in it being wholly academic. In the current matter, the Court ruled that the matter became moot at the time when it was brought before the Court, because eThekwini had already fixed the ‘muting problem’ for future meetings as soon as possible by switching online meeting platforms to one that gave the Speaker more control over the mute function, for example. In addition, the DA failed to point out any of the respondents as culprits or prove that they were responsible for muting Councilllor Graham’s microphone. As a result, it was determined that there was neither a factual nor legal foundation for the Court to give the declaratory order against the respondents.

The findings above led to the Court concluding that the virtual budget meeting on May 29, 2020, was constitutionally compliant.

The Democratic Alliance and Others v eThekwini Metropolitan Municipality matter establishes and reconfirms a number of constitutional principles. To begin, it confirms the power of municipal councils to prescribe rules and orders for its internal arrangements, as prescribed in section 160(6) Constitution. For example, municipal councils are allowed to adapt and refine their rules governing municipal council meetings to allow for virtual meetings. However, a new system for virtual meetings does not come without technical glitches. The Court noted that often, the problems associated with virtual meetings are not merely ‘technical teething problems associated with the use of a new system for virtual meetings’. Ill-disciplined councillors flagrantly breached the conduct rules. As seen in the current matter, the DA may well have been targeted for heckling and muting during the meeting. Even while such behaviour was unacceptable, it did not warrant DA councillors leaving the meeting without the Speaker's permission in violation of the By-law (Rules of Order). The decision further confirms that breaking one law in protest of suspected non-compliance with another constitutes illegal self-help.

Finally, the judgment shows that not all disputes must be handled through litigation. Other methods, such as negotiation and meaningful discourse, had a better chance of uncovering the causes of the issue that prompted the litigation. For example, when the Council switched to Zoom, muting as a manifestation of the conflict was overcomed. Yet despite this, the DA pursued the matter through the courts even though the problem giving rise to the dispute had already been remedied.


By Curtly Stevens, Doctoral Researcher