When the turkey snubs Christmas: The MEC’s power to convene council meetings instead of the speaker
The law instructs municipal councils to meet at least quarterly. The speaker calls council meetings and decides on their time and venue. In practice, municipal councils adopt a schedule of regular meetings (which could be monthly) and provision is made for special or urgent council meetings in addition to this schedule of meetings.
If a majority of the councillors request a meeting the speaker must convene that meeting accordingly. However, this mechanism to “force” a council meeting is not a carte blanche: the speaker must still comply with the municipality’s rules of order. For example, the rules of order will stipulate a minimum notice period that applies, to enable all councillors to be aware of, and prepare for the meeting.
The convening of council meetings which should be a routine and straightforward matter is a bone of contention if there is a governance crisis. Almost always, this is because of what appears on the agenda of the meeting that is to be convened. If the agenda contains a motion of no-confidence in one or more office-bearers (such as the speaker, (executive) mayor, or chief whip) the incumbent speaker may pull out all the stops, sometimes against the law, to prevent that meeting from happening. In that scenario, asking the speaker to convene a council meeting is similar to inviting the turkey for christmas: well aware of what is about to happen, the turkey may be reluctant to oblige.
On the other hand, the “incoming” coalition or faction, convinced they have secured the numbers to remove the incumbent leadership, are often “triggerhappy” and insist on a meeting, sometimes also against the law.
This is an area where provincial oversight is necessary. In particular, the question is: who may convene a council meeting when both the speaker and the municipal manager are unable to do so, or refuse to do so even when petitioned by a majority of councillors?
For many years, the legal position was uncertain, with paralysis, disputes and litigation as a result.
The legal uncertainty ended with the Municipal Structures Amendment Act of 2021. A new section 29(1A) was inserted which provides that the municipal manager may call and chair the council meeting if the speaker or acting speaker refuses to call a meeting when requested to do so by the majority of councillors. If the municipal manager refuses, a person designated by the MEC for local government may do so.
This provision has already been tested in the courts a number of times. This article summaries the most important observations by the courts in two judgments of the KwaZulu-Natal High Court, in which municipalities challenged the provincial government for invoking this provision. They concern the judgments in Nongoma Local Municipality v MEC for Cooperative Governance and Traditional Affairs (KwaZulu-Natal) (3 July 2023) (Nongoma) and Alfred Duma Local Municipality v Member for the Executive Council: Cooperative Governance and Traditional Affairs, KwaZulu-Natal (22 May 2023) (Alfred Duma).
In Nongoma, the KZN High Court rejected the argument that section 29(1A) of the Structures Act is unconstitutional for infringing on municipal autonomy. The Court pointed at the supervisory role of the province: “The notion of intergovernmental supervision is necessary for the purposes of enabling the spheres of government not only to intrude into one another’s autonomy but to support and assist one another. Intergovernmental supervision ought to sustain coherence in government and to prevent a collapse of government in one sphere.” (para 19).
The rest of the judgments focused on whether the situation in the two municipalities was "ripe" for the KwaZulu-Natal MEC for Cooperative Governance and Traditional Affairs to invoke section 29(1A) of the Municipal Structures Act. In Alfred Duma, the Court held in favour of the MEC but in Nongoma, the Court held in favour of the municipality.
In Alfred Duma, the speaker was petitioned by a majority of councillors to convene an urgent meeting. On the agenda was the ubiquitous issue of motions of no-confidence in the political leadership of the municipal council. The speaker suspected that not all the signatures on the petition were genuine, and indicated that he needed 14 days to investigate the veracity of the signatures. The petitioners then approached the municipal manager. The municipal manager indicated that he could only convene the meeting once the speaker had refused and that, in his understanding, the speaker had not (yet) refused but merely requested time to investigate the concerns about the signatures. The speaker also wrote to the MEC for local government, explaining that he had requested the petitioners to allow him to authenticate the signatures, and that he was not refusing to convene the meeting. However, the MEC, after having been approached by the petitioners, invoked section 21(1A) and set out to convene the meeting, ostensibly because the speaker and the municipal manager “were unable” to convene the meeting. The Court held that the MEC jumped the gun. It emphasised that the speaker’s concerns with regard to the veracity of the signatures deserved to be investigated, and that the potential harm of a successful vote to oust the leadership far outweighed the harm the petitioners would suffer should the meeting be delayed to address the speaker’s concerns. It also counted against the MEC that, prior to invoking section 21(1A) of the Structures Act, she failed to engage with the speaker and the municipal manager despite the speaker’s letter. Furthermore, the Court pointed to the fact that the petition for the meeting failed to adhere to the municipality’s standing orders in that it did not set out reasons as to why the matter could not be addressed in an ordinary council meeting.
In Nongoma, the facts were similar. However, in this case, the speaker refused the petition for being contrary to the Municipal Structures Act and the municipality’s rules of order, without pointing out how, and without assisting the petitioners to comply with the rules. In the exchange of letters between the councillors and the speaker and the municipal manager, the speaker insisted that the request did not comply with the law without explaining how. In an effort to evade the application of section 21(1A), the speaker insisted that this was not a refusal. The municipal manager followed the same line, and maintained that he was not authorised to convene the meeting.
The Court was not convinced. It concluded that the speaker was simply frustrating the petitioners in having their motions tabled and that the MEC was justified in using section 21(1A) of the Structures Act. Had the speaker pointed out what the problem was with the request, the outcome may have been different.
Assessment
The Alfred Duma matter was an urgent interdict, so the Court did not settle the matter but it closed out with a word of caution that is worth repeating: “Section 29(1A) of the Structures Act is clearly open to abuse by provincial government [sic], especially in a politically charged environment and its potential impact on volatile situations perhaps need careful reconsideration.” (para 65)
It is unfortunate that this provision is needed in those situations when both the speaker and the mayor deliberately frustrate the affairs of the council, often to save their own skins. At the same time, the institutional integrity of a municipality demands that the MEC for local government only invokes this provision after a careful consideration of the facts, consultation with the municipality (where this is appropriate) and an assessment that the facts that justify its application, are indeed present.