Brummer NO v Mvimbi and Others (13535/2011) [2011] ZAWCHC 385 (28 September 2011)

Brummer NO v Mvimbi and Others (13535/2011) [2011] ZAWCHC 385 (28 September 2011)

The court found that the applicant, as Speaker, fundamentally misconceived his role by acting in an autocratic and partisan manner, contrary to constitutional and common law requirements of impartiality and fairness. His directions at Council meetings, including expulsion of members and refusal to allow debate, were ultra vires the Rules of Order and the Municipal Structures Act. The Law Enforcement Unit was not obliged to enforce the Speaker's directions without exercising discretion under the Constitution and Police Act. The applicant failed to establish a clear right for final interdictory relief. Declaratory relief was warranted as the Speaker's conduct presented a live controversy...

Citation
[2011] ZAWCHC 385
Parties
Applicant: Johan Wichardt Greyling Brummer N.O.; Respondent: Lulama Lennox Mvimbi; Respondent: Lungiswa Monica Seyisi; Respondent: Lenhard Richard Jonas; Respondent: Mpakamisi Mac Mbali; Respondent: Sandiso Enoch Gcabayi; Respondent: Jan Jacobus Nolan Stuurman; Respondent: Adam Brendon Van Rhyner; Respondent: Memory Booysen; Respondent: Elaine Elizabeth Paulse; Respondent: Annelise Renata Olivier; Respondent: Nevelle Marthinus De Waal; Respondent: Charles Leon Dreyer; Respondent: Head of the Law Enforcement Unit, Bitou Municipality; Respondent: Provincial Commissioner of the SAPS, Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 September 2011
Case Number
13535/2011
Procedural Posture
Urgent Application / Final Determination of Rule Nisi and Counter Application
Outcome
The application for final interdictory relief by the applicant was dismissed. Declaratory relief was granted in favour of the 1st to 6th respondents regarding the unlawfulness of the Speaker's conduct. No order as to costs was made in respect of the counter-application.
Judges
J I Cloete
Legal Topics
Municipal Council Governance, Speaker Impartiality, Ultra Vires, Code of Conduct for Councillors, Interdict Requirements, Constitutional Right to Political Expression
Administrative Law Constitutional Law Civil Procedure Municipal Council Governance Speaker Impartiality Ultra Vires Code of Conduct for Councillors Interdict Requirements +1 more

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Parties

Johan Wichardt Greyling Brummer N.O.

Applicant

Lulama Lennox Mvimbi

Respondent

Lungiswa Monica Seyisi

Respondent

Lenhard Richard Jonas

Respondent

Mpakamisi Mac Mbali

Respondent

Sandiso Enoch Gcabayi

Respondent

Jan Jacobus Nolan Stuurman

Respondent

Adam Brendon Van Rhyner

Respondent

Memory Booysen

Respondent

Elaine Elizabeth Paulse

Respondent

Annelise Renata Olivier

Respondent

Nevelle Marthinus De Waal

Respondent

Charles Leon Dreyer

Respondent

Head of the Law Enforcement Unit, Bitou Municipality

Respondent

Provincial Commissioner of the SAPS, Western Cape

Respondent

Procedural Posture

Urgent Application / Final Determination of Rule Nisi and Counter Application

Legal Issues

  1. 1 Whether the applicant, as Speaker, was entitled to final interdictory relief against the respondents under rule 24 of the Rules of Order.
  2. 2 Whether the Speaker's conduct at Council meetings was ultra vires the Rules of Order and the Municipal Structures Act.
  3. 3 Whether the Law Enforcement Unit is obliged to enforce the Speaker's directions to remove Council members.

Ratio Decidendi

The court found that the applicant, as Speaker, fundamentally misconceived his role by acting in an autocratic and partisan manner, contrary to constitutional and common law requirements of impartiality and fairness. His directions at Council meetings, including expulsion of members and refusal to allow debate, were ultra vires the Rules of Order and the Municipal Structures Act. The Law Enforcement Unit was not obliged to enforce the Speaker's directions without exercising discretion under the Constitution and Police Act. The applicant failed to establish a clear right for final interdictory relief. Declaratory relief was warranted as the Speaker's conduct presented a live controversy...

Court Disposition

The application for final interdictory relief by the applicant was dismissed. Declaratory relief was granted in favour of the 1st to 6th respondents regarding the unlawfulness of the Speaker's conduct. No order as to costs was made in respect of the counter-application.

Orders

  • The rule nisi issued on 13 July 2011 against the 1st to 13th respondents is discharged with costs, including costs of two counsel for the 1st to 6th respondents and counsel for the 13th respondent.
  • It is declared that the applicant's direction at the Council meeting on 29 June 2011 that the 1st respondent did not have the right to address the meeting was ultra vires rule 30(1) of the Rules of Order and s 37(f) of the Municipal Structures Act and unlawful and of no effect.