By Hans-Jurie Moolman, On behalf of opposition parties, Tlokwe:
Following the recent judgement of the Constitutional Court, the joint opposition councillors of the Tlokwe Municipality petitioned the Speaker of the Tlokwe Local Municipality to convene a special council meeting in terms of Section 29 of the Local Government: Municipal Structures Act.
In terms of the provision the majority of councillors of a municipal council may request the Speaker to convene a council meeting. The provision also stipulates that the Speaker must adhere to such request.
The issue of what would constitute a majority after the Constitutional Judgement of Kham and others v the IEC and others on 30 November, was clarified by Justice Wallis with the ten other judges concurring in the following passage of the judgement:
“Section 1 of the Structures Act defines “councillor” as being a “member of a municipal council”. The applicants correctly point out that the determination of a quorum is thus dependent on the number of elected councillors not the total number of wards and proportional representation seats on the council. This is reflected in the council’s standing rules of order. The effect of declaring the seven seats involved in these by-elections vacant would be to reduce the number of elected councillors to 45. A majority would then be 23 councillors.”
The abovementioned petition was duly signed by 23 councillors.
The onus will now rest on the notorious Speaker of Tlokwe to choose between her statutory duties and adhering to her oath as a councillor and to become obstructive by refusing to adhere to the request. If the latter option is exercised she will also display a blatant disregard for the following sentiments expressed by the Constitutional Court in the case above, on such disruptive behaviour:
- But if either major party in the council were to boycott its proceedings in order to prevent it from operating that would be gravely irresponsible. We should not assume that the governing party and the official opposition at national and most other levels of government in this country would behave in such a fashion in Tlokwe. Councillors are elected to undertake the work of the council on behalf of the whole citizenry. Sometimes the tides of politics will place one party in the majority and sometimes another. But it remains the duty of all councillors to facilitate and not obstruct the workings of the council. For councillors to continue to draw their salaries, while refusing to attend meetings and seeking thereby to stultify the working of a council would be a breach of their obligations as councillors. It is a breach of the Code of Conduct that binds all councillors and obliges them to attend all meetings of the council and of committees of which they are members. But the possibility that a political party would behave in that way in response to an order by this Court cannot be a reason for this Court not to make an order that it regards as just and equitable. The MEC’s suggestion that the operation of the order should be suspended, to enable councillors elected in by-elections that were not free and fair to retain their seats pending fresh by-elections, would undermine the principle on which this judgment is based.
It is encouraging that the Speaker, herself a member of the ANC, ascribes the problems at the end of 2012 and 2013 to “in-fighting amongst the ANC Councillors”. .It indicates that wiser heads now prevail. She says that the municipality is now functioning successfully. I assume that the progress made in the interim would not be thrown overboard for short term political purposes. Her suggestion that “Council meetings will not sit . . . and thereby resulting in no resolution being taken” ascribes to her colleagues an approach that is contrary to their statutory duties and irresponsible. This cannot be a legitimate reason for refusing to make the just and equitable order that we are required to make. The Speaker, of course, cannot lawfully be a party to such conduct or take any steps to prevent the lawful meetings of the council from taking place, as it is her duty to convene and chair those meetings
How the petition is to be treated will also expose the ANC to display to what extend it regards the Rule of Law, when it has to hand over power.
 Code of Conduct for Councillors, items 3 and 4 contained in Schedule 1 to the Local Government: Municipal Systems Act 32 of 2000
 Code of Conduct for Councillors, items 3 and 4 contained in Schedule 1 to the Local Government: Municipal Systems Act 32 of 2000.