Democratic Alliance and Others v Ethekwini Metropolitan Municipality and Others (D3582/20) [2020] ZAKZDHC 51 (14 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case No: D3582/20

In the matter between:

DEMOCRATIC ALLIANCE

APPLICANT

and

ETHEKWINI METROPOLITAN

FIRST RESPONDENT

MUNICIPALITY

MEC FOR LOCAL GOVERNMENT

SECOND

RESPONDENT

AND TRADITIONAL AFFAIRS, KZN

MXOLISI T. KAUNDA N.O

THIRD RESPONDENT

SIPHO CELE N.O

FOURTH

RESPONDENT

SPEAKER, ETHEKWINI MUNICIPALITY

FIFTH RESPONDENT

ORDER

It is ordered:

The application is dismissed with costs, including the costs of two counsel.

JUDGMENT

D. Pillay J:

Introduction

[1] The Democratic Alliance (‘DA’) seeks a declarator against the eThekwini Metropolitan Municipality (‘eThekwini’), the first respondent. Other respondents joining eThekwini in opposing the application are the MEC for Local Government and Traditional Affairs, KZN; the Executive Mayor of eThekwini, Mxolisi T. Kaunda;

the Acting Municipal Manager of eThekwini, Sipho Cele; and the Speaker, Wesizwe Thusi. The dispute in this matter arose as a result

of a DA councillor’s microphone being muted whilst she addressed the eThekwini Council’s first ever virtual budget

meeting on 29 May 2020.

[2] At the virtual hearing of this application (due to Covid-19), the DA abandoned all but one remedy namely, a declarator in the following terms:

‘[eThekwini’s] failure to adhere to its constitutional and statutory obligations in relation to its consideration and adoption of the 2020/2021 Budget at the Virtual Budget meeting held on 29 May 2020 to be unlawful.’

[3] The abandoned remedies included an interdict preventing eThekwini from implementing the annual budget; a directive to the first respondent to amend and republish guidelines to include a prohibition on muting privileges for non-administrators of virtual meetings; and to hold a new council virtual budget meeting within ten days.

[4] The respondents no longer challenge the non-joinder of other political parties in the Council. There was no evidence that any of the respondents were personally involved in muting Nicole Graham’s microphone.

[5] Anticipating a judgment before 1 July 2020, when the budget was to be implemented, the application was launched on 8 June 2020. Covid-19 and court schedules, however, did not permit the hearing of the application until 17 September 2020. By then the budget had been adopted and implemented. What this application is not, is a review of the budget. Nor are any remedies sought consequent upon the granting of the declarator. All that remains is for the court to decide in terms of s 172(1)(a) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), whether the conduct of eThekwini in approving the budget was inconsistent with the Constitution and if so, whether this court should issue the declarator the DA seeks.

The facts

[6] 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 provided 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. The Speaker chaired the meeting, which was broadcast live on various media platforms.

[7] After the meeting commenced with the usual pleasantries and the Mayor’s address, the leader of the DA, the official opposition in the Council, Ms Graham, started delivering her address. However, within two minutes of her commencing her address, her microphone was muted. She became inaudible to the 400-odd participants and the wider public who accessed the meeting electronically.

[8] Over a period of nine minutes, Ms Graham was interrupted as many times. She identified W.L Mapena, a former speaker of the council who declared, ‘We will make you not to speak’. Several times the Speaker implored the participants not to interrupt Ms Graham. Recognising that members of other political parties might be responsible for muting Ms Graham’s microphone, the Speaker announced that those attending the virtual meeting should not fiddle with the ‘[mute] icons’. Just over nine minutes after she had commenced her address, Ms Graham was informed that her speaking

time was about to expire. Then her microphone was muted. Ms Graham alleged that the Facebook stream was also cut off during her address.

[9] The Speaker stood down the proceedings. When the meeting resumed, she called upon Councillor Nkosi of the Inkatha Freedom Party (‘IFP’) to address the Council. Ms Graham and Councillor Mthethwa of the DA requested that other speakers should wait their turn until Ms Graham had completed her address, but the Speaker prevented them from interrupting the meeting again. When the Speaker recalled Ms Graham, the DA councillors had left the meeting, without Ms Graham completing her presentation. In the DA’s absence, the budget was approved.

[10] On 1 June 2020, Ms Graham wrote to the Speaker to record the DA’s objection to the manner in which the budget meeting was conducted. Objecting to the ‘unlawful violation of Councillor Graham and the DA’s right to equitable and fair participation in the budget meeting’, the DA gave notice of its intention to take legal advice. In the meantime, it enquired how eThekwini planned to manage digital meetings in future.

[11] On 5 June 2020, the Speaker emailed a letter to Ms Graham. On 8 June 2020, the DA launched this application, allegedly before Ms Graham received the Speaker’s letter. The DA delivered a supplementary affidavit to explain that the letter had been emailed to an address that Ms Graham did not use. She received the letter at about 15h00 on 8 June 2020 through her secretary, who had been copied, after she had already launched the application.

[12] I quote the Speaker’s letter fully below, to speak for itself, text, tone and all.

‘ETHEKWINI COUNCIL BUDGET MEETING

Your letter dated 1 June 2020 and received by my office on 02 June refers, and the contents thereof have been noted.

In terms of the raised concerns on your letter, kindly note:

Interruption of Speaking Time

I confirm that there were numerous interruptions during your speaking time, which rendered your speech inaudible. I cannot comment on whether the interruptions were deliberate or not because I have not received any technical report about what took place. I deny that my only response was to ask councillors to stop muting each other. In fact, I stood the meeting down and requested the sound technicians to investigate the source of the problem and while waiting, there was a proposal that I proceed with other speakers in order to assess whether the technical problem was only isolated to you or affected other councillors as well.

While Cllr Nkosi was speaking, you and Cllr T Mthethwa were disruptive, insisting that the other speakers should wait for their turn. After Cllr Nkosi, I gave you another opportunity to speak, only to find that you were no longer in attendance, albeit without leave. You left the meeting without ascertaining that the problem would continue to persist or not. Therefore, I cannot agree with you in that the DA’s rights to equitable and fair participation were unlawfully violated.

Live Streaming

I deny that I indicated that the live stream was stopped purposefully. In fact, I instructed the technicians look into the matter and ensure that the live feed was restored. I cannot comment on your assertion to the effect that the live feed was deliberately stopped because I have no knowledge of such and your basis for saying so.

I deny that I acted unlawfully or that the DA and/or you were subjected to any unfair and/or unlawful conduct attributable to me. The meeting complied with all the applicable prescripts and it was valid and lawful.

Remedial Steps

It must be noted that since it was the first time the Municipal Council was using MS Teams programme to hold the Council meeting, and the shortcomings such as the muting/unmuting of speakers were unforeseeable. Other virtual meeting programmes have been sought, and please note that in the next Council meeting, scheduled for 04 June 2020, the programme that will be used is Zoom. This programme will be used instead of Microsoft Teams because, with Zoom, I will retain the control of who speaks, and no one will be able to disturb another speaker while still on the floor. I could not have such control with Microsoft Teams and we relied on councillors being on their best behaviour.

Recording of the meeting

The recording of the meeting will be made available to you as soon as its ready, and you’ll be advised to come and collect from the Office of the speaker.’

[13] Treating the Speaker’s response as concessions and admissions, the DA invited the respondents to consent to the relief sought, whereupon it offered to forgo its claim for costs of this application. On 12 June 2020, the respondents rebuffed the offer by delivering their answering affidavits.

[14] None of the material facts outlined above were in dispute. The Plascon Evans[1] test applied; the final relief claimed had to be decided on the facts as stated by the respondents, together with the admitted facts in the DA's affidavit, unless the respondents’ allegations were improbable. The parties also agreed substantially on the constitutional framework and ethos in which local government meetings should be held. These included the following:

(a) All organs of State are enjoined to establish a democratic government under the supremacy of the Constitution and the rule of law, to ensure transparency, accountability and responsiveness.[2]

(b) Pluralism and the dialogical nature of deliberative democracy is entrenched in international best practice and indigenous African tradition.[3]

(c) As a representative democracy, decision-making is a deliberative process for which freedom of speech to debate is key.[4]

(d) Opposition political parties, like judicial dissents, are valuable voices informing legal and political consciousness, public discourse and choice. Better outcomes emerge from processing issues through the cut and thrust of dialogical constitutional debate.[5]

(e) The media in its various forms is indispensable for communicating all voices engaged in deliberative democracy.[6]

(f) Deliberately jamming telecommunication signals to prevent the public from having visual and audible access to parliamentary and other public processes, like council meetings, is unlawful and unconstitutional.[7]

(g) The Speaker has a duty to maintain order at council and committee meetings,[8] by ensuring compliance with the Code of Conduct;[9] that councillors conduct themselves in a dignified and orderly manner,[10] and that the Chief Whip and other whips maintain discipline amongst their party members during meetings.[11]

(h) The Speaker must conduct meetings impartially and fairly.[12]

(i) The Speaker must make rulings for eventualities not provided for in the By-law.[13]

(j) ‘An order of constitutional invalidity is not discretionary. Once the court has concluded that any law or conduct is inconsistent with the Constitution, it must declare it invalid.’[14] (Footnote omitted).

[15] Notwithstanding such a high level of consensus, the dispute persisted on narrow questions of both law and fact.

Submissions

[16] Counsel for the DA, Ms Pudifin-Jones submitted that granting a declarator under s 172(1)(a) of the Constitution is non-discretionary. On the common cause facts, it would be justified for three reasons:

(a) First, the requirements of representative democracy had not been met; the DA was prevented from submitting its views on the budget.

(b) Second, the requirements of participatory democracy were not met. At least 15 000 members of the public were denied access once the Facebook live stream was shut down after Ms Graham objected to the conduct of the meeting.

(c) Third, the Speaker failed to conduct the business of the council transparently. She failed to rule under item 15(l) of the By-law and to deal with the muting of the opposition.

Cumulatively, these violations rendered the meeting of 29 May 2020 and its outcomes inconsistent with the Constitution, the Local Government: Municipal Systems Act 32 of 2000, the By-law and the Guidelines.

[17] To support an order under s 172(1)(a) of the Constitution, Ms Pudifin-Jones referred to the judgments in Borbet South Africa (Pty) Ltd & others v Nelson Mandela Bay Municipality;[15] Mazibuko v Sisulu & another;[16] Kham & others v Electoral Commission & another[17] and Economic Freedom Fighters v Speaker of National Assembly & others; Democratic Alliance v Speaker of the National Assembly & others.[18] Her submissions in support of the discretionary remedies in paragraph 3 fell away once she abandoned the relief claimed under s 172(1)(b).

[18] Counsel for the respondents, Mr Madonsela SC identified three material disputes of fact or inferences from facts:

(a) Was the DA deprived of an opportunity to make submissions on the budget?

(b) Did the Speaker fail to make any ruling regarding interruptions of Ms Graham?

(c) Did the Speaker make any ruling regarding the order of speakers or the reshuffling of speakers on the draft budget?

[19] Applying the Plascon Evans test, he urged the court to accept the evidence of the respondents and find that the DA’s constitutional rights and its dignity had not been impaired, that there had been adequate public participation in the budgetary process, and that the Speaker had conducted the meeting lawfully. Additionally, as a matter of law, the separation of powers principle barred the court from granting any remedy in the circumstances. Based on these findings, the court should conclude that a declaration of unconstitutionality under s 172(1)(a) is unjustified.

[20] Furthermore, the DA’s ‘shot gun’ style of litigating put the respondents to the costs and inconvenience of garnering evidence to refute the wide-ranging allegations in its founding affidavit. eThekwini, as an organ of State, was bound to justify its conduct in the face of the challenges the DA mounted.[19] The respondents had to prepare answering affidavits in defence of all the allegations, within a short space of about four days, only to learn at the hearing that the DA was abandoning its discretionary remedies. Additionally, the DA’s case morphed as the proceedings unfolded. New matter was pleaded in its replying affidavit. In the circumstances, the DA was not litigating in the public’s interest but in furtherance of its own party-political interests. Consequently, Lawyers for Human Rights v Minister in the Presidency & others[20] as opposed to Biowatch Trust v Registrar Genetic Resources & others[21] should apply in awarding costs against the DA.

Findings

Was the DA deprived of an opportunity to make submissions on the budget?

[21] eThekwini posted an audio-visual recording of the virtual budget meeting on its Facebook page. A copy or link was meant to form part of the record of this application but it does not. The Speaker claims that the recording captures what transpired when Ms Graham’s microphone was muted and supports the respondents’ account of the proceedings fully. Ms Graham refuted neither the recording of the meeting nor these claims of the Speaker. Significantly, it was not her evidence that she viewed the recording before she delivered her replying affidavit. Accordingly, the respondents’ evidence as to what transpired at the Council’s budget meeting is fortified.

[22] When the Speaker called on the DA to address the Council, Ms Graham’s address was interrupted repeatedly. As mentioned previously, none of the respondents has been identified as the persons who muted her microphone. The Speaker tried to stop the muting and take control of the meeting. While she tried to investigate the muting, she called on IFP and African National Congress (‘ANC’) councillors to address the Council. She informed Ms Graham that she would have an opportunity to speak after the IFP and ANC councillors had completed their addresses. When the Speaker recalled the DA to address the Council, Ms Graham had left the meeting, without permission from the Speaker. Leaving the meeting shortly after the interruptions commenced did not allow for sufficient time for the Speaker to investigate and fix the problems, which she duly did.

[23] Ms Graham claimed that the ‘Constitution demands more from a Speaker than simply relying on councillors to be on their best behaviour’. She criticised the Speaker for not taking any steps other than repeatedly requesting that ‘Councillor Graham should not be muted’. In her view, the Speaker should have stopped the meeting and identified who was responsible for the muting. Contradicting herself subsequently in her replying affidavit, she asserted:

‘It is not clear or explained on what basis the DA and its members interest and entitlement to “floor-time” are the appropriate moments to embark on an investigation to determine the source of the suppression of my Council members’ voices.’[22]

[24] The evidence shows that the Speaker did stand the meeting down to investigate whether the problem was specific to Ms Graham or all speakers. She did ask for and received help from the technical team to identify the source of the problem. To this end, the Speaker subsequently also obtained a report from Microsoft. Interpreting the report was not possible in the time available to deliver the answering affidavit. The issue remains under investigation.

[25] The Speaker was entitled to expect councillors to behave not only because the Code of Conduct compelled them to do so but also because they have a duty to govern. Not only the Speaker, but also all of society should be able to rely on councillors being on their best behaviour.

[26] Paragraph 9 of the Guidelines as well as the By-law required all councillors to remain in attendance at a virtual meeting of the Council, unless leave of absence was granted. Such applications had to be submitted to the Office of the Speaker within specified timeframes. A councillor was deemed absent without leave if he/she failed to remain in attendance at a virtual meeting.

[27] In her replying affidavit, Ms Graham explained, ‘I did not accept that the Speaker denied the applicant the right to participate in adopting the budget’. She claimed that by remaining in attendance she was tacitly ratifying the meeting.

[28] Ironically, it was Ms Graham who broke the By-law. Interrupting the Speaker to insist on speaking before the other political parties and leaving the meeting without permission violated provisions of the By-law. Leaving was her choice. She could have remained in attendance and insisted on being heard. Having exercised her choice, precipitously and impermissibly, she 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.

Did the Speaker conduct the business of the council in compliance with the By-law?

[29] The challenge that it was impermissible for the Speaker to change the order of speakers at the council meeting was not made in the founding affidavit but in the replying affidavit.[23]

[30] The DA contended that calling on speakers in order was standard practice. The governing party spoke before the opposition, followed by other parties. Ms Graham however, offered no authority for this practice. If it was a practice, nothing suggests that it was immutable. Provision is made in the By-law for the Speaker to make rulings in unforeseen circumstances for which the By-law does not provide. Calling on the other parties to speak before the DA was a ruling made in response to an unforeseen circumstance. In the circumstances, the DA’s claim that this was an unlawful exercise of discretion by the Speaker and an affront to the dignity of its councillors, is utterly unfounded.

[31] Manifestly, the problems were not merely ‘technical teething problems associated with the use of a new system for virtual meetings’, as the Speaker claimed. Ill-disciplined councillors flagrantly breached the conduct rules. The DA may well have been targeted for heckling and muting during the meeting. Unacceptable as such conduct was, it did not justify DA councillors leaving the meeting without the Speaker’s permission.

[32] Ms Graham’s real complaint appears to be that the Speaker chose to address the problem her way and not Ms Graham’s way. Her assumption that her ideas for solving the problem were somehow superior to the Speaker’s is seriously flawed. Stopping the meeting to identify the culprits responsible for muting her microphone was one of her suggestions listed in her founding affidavit. After the Speaker pointed out in her answering affidavit that she did stand the meeting down, Ms Graham disingenuously changed tack in her replying affidavit. For the Speaker, getting the meeting underway without delay was urgent. Ms Graham’s ideas for fixing the problem are an afterthought, submitted in her founding affidavit, embellished and contradicted in her replying affidavit. The Speaker had to think on her feet and do her best as quickly as possible. She managed to fix the problem and the meeting proceeded to conclusion. The Speaker was rational or reasonable in the way she managed an unforeseen situation. Consequently, interference by the court is unwarranted.

Were the requirements of a participatory democracy met?

[33] eThekwini undertook two dry runs prior to the first virtual meeting to test the technology, without glitches. In furtherance of free speech and debate amongst public representatives, eThekwini provided a link to all invitees so that they could participate fully during the virtual meeting. This rendered eThekwini vulnerable to abuse by undisciplined council members.

[34] As for the DA’s complaint that the Facebook live stream had been cut off, the Speaker obtained confirmation from the acting head of communications at eThekwini, that the live feed had been broadcast on eThekwini’s Facebook page during the meeting. Facebook was not the only medium of broadcasting the meeting to the public. It was also broadcast live on television, radio and various community stations via radio presenters attending the budget meeting.

[35] The respondents produced evidence of eThekwini’s efforts to inform and invite public participation in the budgetary process prior to the budget meeting. These efforts included publication of a draft budget on 26 March 2020; press releases on 9 April 2020; social media publication of the press release on 14 April 2020; print media advertisements inviting comment on the draft budget in the week of 16-20 April 2020; road shows undertaken by the Mayor and municipal officials, which included interviews in English and isiZulu with various radio stations. Public notices appeared in the Mercury and Daily News on 27 May 2020 concerning the tabling of the budget. Notices in local newspapers called for comments on the draft budget. Other notices containing the highlights of the draft budget appeared in the Mercury on 30 April 2020. A ‘budget supplement’ was distributed through local newspapers namely, the Highway Mail and Berea Mail on 8 May 2020.

[36] Consequently, eThekwini received 322 written comments or objections to tariff and rate increases. These responses from the public were compiled into a report and presented to eThekwini’s Executive Committee for consideration.

[37] In Borbet, Goosen J found that the conduct of the Nelson Mandela Bay Municipality was inconsistent with the constitutional obligation to

ensure public participation in its processes and granted a declaration of invalidity. On the facts, Borbet does not apply. More so, since the DA, in its replying affidavit, disavowed launching any general public participation challenge.[24] If impeding public participation had ceased to be a complaint by the time the DA delivered its reply, it should not have resurrected it in its heads of argument. This is another example of the mercurial nature of the DA’s case as it evolved.

The legal question

[38] Must the court grant the declarator? ‘An order of constitutional invalidity is not discretionary. … [Once the Court] finds ‘law or conduct is inconsistent with the Constitution, it must declare it invalid’[25] Similarly, ‘there must be a declaratory order’ in every case in which unconstitutionality is established.[26] The DA relied on this ratio to press for a declarator.

[39] Mootness poses a countervailing consideration to the seeming non-discretionary application of s 172(1)(a) imported from the word ‘must’. In cases that were ‘wholly academic. . .exciting no interest but an historical one’, and presenting no ‘existing or live controversy which should exist’, the Constitutional Court has refrained from intervening.[27] The doctrine of mootness arises when a case is launched or reaches the hearing stage too late.[28] Even if a matter is moot as between the parties, that does not necessarily constitute an absolute bar to its justiciability. The

court has a discretion to decide cases on appeal even if they no longer present existing live controversies. That discretion must be exercised in the interests of justice. Any order, which the court may make, should have some practical effect either on the parties or on others.[29]

[40] In Mazibuko, the leader of the DA, as the official opposition in the National Assembly, failed in the high court to secure a mandamus against the Speaker ‘to take whatever steps necessary to ensure that the motion of no confidence was scheduled for a debate and a vote in the assembly before 22 November 2012’.[30] The similarity between Mazibuko and this case is that the remedies sought in both cases had become moot. Much more distinguishes Mazibuko from this case.

[41] In Mazibuko, the Constitutional Court was faced with an interpretation of a constitutional provision relating to the Assembly. The dispute would

have and did end up in the Constitutional Court. It was not in the interests of justice to allow uncertainty over the proper interpretation of the constitutional provisions in issue to persist for long. Furthermore, Ms Mazibuko, the Speaker and the Chief Whip wanted the Constitutional Court to hear the appeal.[31] None of the parties opposed the Constitutional Court hearing the constitutional challenge to the rules. [32]

[42] The Chief Whip was satisfied that the rules were adequate.[33] Ms Mazibuko and the Speaker, agreed that there was a lacuna in the rules, which did not provide for breaking a deadlock when the

political parties in the programme committee failed to reach consensus. The rules regulating the business of the programme committee were inconsistent with s 102(2) of the Constitution and invalid to the extent that they did not protect or advance but frustrated the rights of members of minority parties in the Assembly in relation to the scheduling, debating and voting on a motion of no confidence.[34]

[43] Importantly, the court had called on the Speaker, more than three months before the hearing, to deliver progress reports on amending the rules. Unsurprisingly, given their ‘fundamental differences’, the reports showed that the parties could not agree on the possible content of revised rules.[35] Although the parties were in the process of remedying the lacuna in the rules, it was ‘most improbable’ that the lacuna would have been corrected.

[44] It was in this context that the court declared that ‘once we have found, as we have, that the rules regulating the business of the programme committee are unconstitutional, we must so declare’.[36] Consequences flowed from the declaration.

[45] In this case, the application became moot, if not by 4 June 2020 when the next council meeting was held using Zoom, then decisively by the time the digitally recorded evidence of what transpired at the budget meeting of the council became available.

[46] This court was not asked to investigate to establish the unconstitutionality of a law or conduct; it was common cause even before the litigation commenced that muting Ms Graham’s microphone was prohibited. Furthermore, the DA fingered none of the respondents as being the culprits. It has not been proven that they acted unconstitutionally. Instead, the respondents have joined the DA in endorsing the constitutional principles governing local government in paragraph 14 above. Not only did the parties acknowledge that the cause of the dispute was the unauthorised meddling with the technology used to host the virtual meeting, but eThekwini also fixed the problem during the meeting and for future meetings as soon as possible.

[47] Unlike Mazibuko, there was no cause of action remaining when the application was launched to justify the court’s intervention. No legal consequences followed upon granting the declaration. In these circumstances, no factual or legal basis exited for the court to grant the declarator against the respondents.

Does every instance of unconstitutionality have to be litigated?

[48] In Mazibuko,[37] the minority began its judgment with the following observation:

‘Political issues must be resolved at a political level. Our courts should not be drawn into political disputes. . . .’

It also endorsed the observation of Davis J that:[38]

‘“There is a danger in South Africa, however, of the politicisation of the judiciary, drawing the judiciary into every political dispute as if there is no other forum to deal with a political impasse relating to policy or disputes which clearly carry polycentric consequences

beyond the scope of adjudication.”’[39]

The DA disavows politics and politicking as motives for this application.

[49] Litigation is one of at least ten processes for resolving disputes and managing conflict. Each process serves a distinct strategic purpose. What purpose was litigation intended to serve in this case? Did this litigation serve that purpose? These questions reach into deeper layers, into the sources of the conflict, which are not pleaded. Characteristically, the form of litigation is adversarial. Litigation is a manifestation of conflict. The issues in dispute define the causes of conflict, which have underlying, unarticulated sources. The court is not invited to reach into the sources of conflict.[40] Without diagnosing what the sources of conflict are, and designing remedies to eliminate them, the court’s work is limited to its mandate in s 34 of the Constitution. That is, to determine the dispute, which may or may not solve the problem and resolve the conflict.

[50] Not every violation of the Constitution has to be resolved through litigation. Litigation will determine the dispute with the issuance of this judgment. But it may not necessarily reach into the sources of conflict to solve the problem and manage the conflict. Muting as a manifestation of the conflict was resolved once the Council switched to using Zoom. Other processes, such as negotiation and meaningful dialogue, held better prospects for excavating sources that ignited the conflict that induced this litigation. As an adversarial process, this litigation does not contribute towards advancing co-operation and dialogical constitutionalism amongst political office bearers in the greater interests of the public they serve.

Costs

[51] The application was launched on short notice for urgent relief after the cause of action had been remedied. Ms Graham did not remain in attendance at the budget meeting long enough to know that the technological hurdles had been resolved. Furthermore, when the next meeting was held on 4 June 2020, four days before this application was launched, the Speaker had replaced MS Teams with Zoom. Ms Graham knew before she launched this application that the council had subsequently held meetings using Zoom as the virtual platform. Furthermore, some of her suggested controls had been implemented. Notwithstanding, the DA persisted in seeking remedies in its notice of motion, only to abandon them at the hearing of this application.

[52] From the outset, the DA’s stance was that the contents of the budget were not strictly relevant to the application. In the founding affidavit, the DA stated that it did not seek ‘to change anything other than the process of how the budget was tabled – no substantive changes to the budget’ were required.[41] Notwithstanding, Ms Graham delved into details of the budget, which put the respondents to their defence not only on process but also substance. Further, central to proving the alleged harm and prejudice that the DA would suffer if urgent relief was not granted, was the DA’s concern for ‘the implementation of the municipal budget on 1 July 2020’.

[53] The remedies sought in the DA’s heads of argument (now abandoned) were incoherent. On the one hand, the DA stated that it was not attacking the decision to adopt the budget. On the other hand, it sought an order for a re-run of the meeting. Calling for a re-run when the budget was not impugned was more than putting form over substance. It was political point scoring, especially as the DA claimed no consequential relief following upon a declaration of unconstitutionality.

[54] Ms Graham claimed to have attempted to resolve the matter non-litigiously. This must be a reference to her letter dated 1 June 2020 to the respondents, the first working day after the meeting on Friday, 29 May 2020. Her letter recorded her complaints, which founds this litigation. Without setting a deadline for a response and without securing a response, Ms Graham lodged this application. The respondents had no prior notice of it. Notwithstanding, Ms Graham claimed that this ‘application should not come as a surprise to the Respondents’.

[55] Ms Graham did not explain why the Speaker’s letter emailed to her council account and copied to her secretary on 5 June 2020 at 14h48 only came to her attention three days later. She produced no confirmatory affidavit from her secretary.

[56] In addition to her letter, she issued a press statement, in which she concluded as follows:

‘The DA’s own Live response, which was streamed the following day on Councillor Nicole Graham’s Facebook page, clearly showed a fight back against the undemocratic and unruly behaviour of the ANC. It garnered 21,000 views on Facebook and 2200 on Twitter, whilst the municipality’s broadcast of the council meeting only received 15,000 views.

The DA has also taken legal advice and are actively looking at legal options with regard to this meeting, pending the response from Speaker Thusi. Processes, principles and the law are the bedrock of democracy and will not be discarded on our watch.’(sic)

[57] Her letter and statement can hardly be described as ‘non-litigious’. They were in anticipation of litigation. Posturing not only for legal battle but also for political popularity in contestation with the ANC can hardly amount to ‘non-litigious’ steps to avert litigation.

[58] Furthermore, the legal incoherence of the allegations and the remedies sought, raising new matters in reply and resorting to litigation in a matter after the cause of action had been removed, cumulatively point to the DA using the litigation as a tool to mobilise support for itself. There is no harm in using litigation as a mobilising, organising and conscientising tool, provided it is not also an abuse of court services, which this litigation is.

[59] No punitive cost order is sought. The precedent that fits the circumstances of this case is the cost order in Mazibuko and Lawyers for Human Rights, not Biowatch.

Conclusion

[60] The findings above lead to the conclusion that the DA was not deprived of an opportunity to make submissions on the budget. Accordingly, the requirements of representative democracy were met. Public participation was enabled. The Speaker stopped the muting of the opposition’s microphone and conducted the business of the council lawfully to conclusion. The proceedings of the virtual budget meeting of 29 May 2020 were constitutionally compliant.

[61] In the circumstances, a declarator under s 172(1)(a) of the Constitution that the conduct of eThekwini in approving the budget at its virtual meeting on 29 May 202 was inconsistent with the Constitution and statutes, is unjustified.

Order

[62] It is ordered:

D. Pillay J

Judge of the High Court of KwaZulu-Natal

APPEARANCES

Date of Hearing

: 17 September 2020

Date of Judgment

: 14 October 2020

Counsel for the Applicant

: Ms S.F Pudifin-Jones

Applicant’s Attorneys

: Futcher

& Poppesqou Attorneys

Ref: MF/ap/MAT2196

Tel: (031) 584 7980

Email: admin@fpattorneysinc.co.za

Counsel for the Respondents

: Mr T.G. Madonsela SC,

Mr E.M Nkosi

Respondents’ Attorneys

: Luthuli Sithole Attorneys

Ref: E00544/TS

Tel: (031) 312 2327

Email: siphesihle@luthulisithole.co.za

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623, [1984] 2 All SA 366 (A) 634F-G.

[2] Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa & another (Independent (CCT38/07) [2008] ZACC 6, 2008 (5) SA 31, 2008 (8) BCLR 771 (CC) para 40.

[3] Democratic Alliance & another v Masondo NO & another [2002] ZACC 28; 2003 (2) SA 413, 2003 (2) BCLR 128 (CC) para 42.

[4] Democratic Alliance v Speaker of National Assembly & others [2016] ZACC 8, 2016 (3) SA 487, 2016 (5) BCLR 577 (CC).

[5] Masondo para 43.

[6] Khumalo & others v Holomisa 2002 (5) SA 401, 2002 (8) BCLR 771 (CC) paras 22-25.

[7] Primedia Broadcasting, a Division of Primedia (Pty) Ltd & others v Speaker of the National Assembly & others (2749/2015) [2015] ZAWCHC 24 (10 March 2015).

[8] Item 15(c) of the By-law.

[9] Item 15(d) of the By-law.

[10] Item 15(f) of the By-law.

[11] Item 15(i) of the By-law.

[12] Item 15(k) of the By-law.

[13] Item 15(l) of the By-law.

[14] Mazibuko v Sisulu & another (CCT115/12) [2013] ZACC 28 (27 August 2013), 2013 (6) SA 249, 2013 (11) BCLR 1297 (CC) para 70.

[15] Borbet South Africa (Pty) Ltd & others v Nelson Mandela Bay Municipality 2014 (5) SA 256 (ECP).

[16] Mazibuko paras 67-71.

[17] Kham & others v Electoral Commission & another [2015] ZACC 37, 2016 (2) SA 338, 2016 (2) BCLR 157 (CC) para 96.

[18] Economic Freedom Fighters v Speaker of National Assembly & others; Democratic Alliance v Speaker of the National Assembly & others [2016] ZACC 11, 2016 (3) SA 580, 2016 (5) BCLR 618 (CC) para 103.

[19] Kalil N.O. v Mangaung Metropolitan Municipality (210/2014) [2014] ZASCA 90 (4 June 2014), 2014 (5) SA 123, [2014] 3 All SA 291 (SCA) para 30; Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T) at 850A-C.

[20] Lawyers for Human Rights v Minister in the Presidency & others [2016] ZACC 45, 2017 (1) SA 645, 2017 (4) BCLR 445 (CC).

[21] Biowatch Trust v Registrar Genetic Resources & others (CCT80/07) [2009] ZACC 14 (3 June 2009), 2009 (6) SA 232, 2009 (10) BCLR 1014 (CC).

[22] Replying affidavit para 33.

[23] Replying affidavit paras 32-34.

[24] Replying affidavit para 37.

[25] Mazibuko para 70.

[26] Kham para 96.

[27] National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others [1999] ZACC 17; 2000 (2) SA 1, 2000 (1) BCLR 39 (CC) fn 18-19; J T Publishing (Pty) Ltd & another v Minister of Safety and Security & others [1996] ZACC 23; 1997 (3) SA 514, 1996 (12) BCLR 1599 (CC) para 17; President, Ordinary Court Martial, & others v Freedom of Expression Institute & others [1999] ZACC 10; 1999 (4) SA 682, 1999 (11) BCLR 1219 (CC) paras 12-16, 18 and 23.

[28] S v Mhlungu & others [1995] ZACC 4; 1995 (3) SA 867, 1995 (7) BCLR 793 (CC) para 59; Zantsi v Council of State, Ciskei, & others [1995] ZACC 9; 1995 (4) SA 615, 1995 (10) BCLR 1424 (CC) paras 2-5; Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996 (1) SA 984, 1996 (1) BCLR 1 (CC) para 199; S v Bequinot [1996] ZACC 21; 1997 (2) SA 887, 1996 (12) BCLR 1588 (CC) paras 12-13.

[29] Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925, 2001 (9) BCLR 883 (CC) paras 9-11.

[30] Mazibuko para 23.

[31] Mazibuko para 22.

[32] Mazibuko para 37.

[33] Mazibuko paras 52-53.

[34] Mazibuko para 61.

[35] Mazibuko paras 68-69.

[36] Mazibuko para 70.

[37] Mazibuko para 83.

[38] Mazibuko para 83.

[39] Mazibuko NO v Sisulu & others NNO 2013 (4) SA 243 (WCC) at 256E-H.

[40] For a discussion of the sources, causes and manifestations of conflict see M Anstey Negotiating Conflict: Insights and Skills for Negotiators and Peacemakers (1991) at 2-7.

[41] Applicant’s heads of argument para 68.