Phalatse and Another v Speaker of the City of Johannesburg and Others (2022/26790) [2022] ZAGPJHC 1054 (25 October 2022)

Phalatse and Another v Speaker of the City of Johannesburg and Others (2022/26790) [2022] ZAGPJHC 1054 (25 October 2022)

The court found that the Programming Committee was inquorate when it placed the motion of no confidence on the agenda, rendering the decision unlawful. The Speaker's notice for the extraordinary meeting was unreasonably short and failed to comply with statutory and constitutional requirements, depriving councillors of meaningful participation and debate. The Speaker unlawfully excluded DA councillors from debate and voting based on their refusal to sign the attendance register, which did not justify depriving them of their constitutional rights. The Council's adoption of the motion of no confidence and the subsequent election of a new Executive Mayor were tainted by illegality and...

Citation
[2022] ZAGPJHC 1054
Parties
Applicant: Mpho Phalatse; Applicant: Democratic Alliance; Respondent: Speaker of the City of Johannesburg; Respondent: Colleen Makhubele; Respondent: Executive Mayor of the City of Johannesburg; Respondent: Dada Morero; Respondent: City Manager of the City of Johannesburg; Respondent: Council of City of Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 October 2022
Case Number
2022/26790
Procedural Posture
Urgent Application / Final Judgment on Urgent Review Application
Outcome
Application granted. All impugned decisions declared unlawful, unconstitutional and invalid; Ms Phalatse reinstated as Executive Mayor; costs awarded against the Speaker in her official capacity.
Judges
Keightley
Legal Topics
Principle of Legality, Motions of No Confidence, Municipal Structures Act, Procedural Fairness, Ulterior Purpose, Democratic Participation
Constitutional Law Administrative Law Civil Procedure Principle of Legality Motions of No Confidence Municipal Structures Act Procedural Fairness Ulterior Purpose +1 more

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Parties

Mpho Phalatse

Applicant

Democratic Alliance

Applicant

Speaker of the City of Johannesburg

Respondent

Colleen Makhubele

Respondent

Executive Mayor of the City of Johannesburg

Respondent

Dada Morero

Respondent

City Manager of the City of Johannesburg

Respondent

Council of City of Johannesburg

Respondent

Procedural Posture

Urgent Application / Final Judgment on Urgent Review Application

Legal Issues

  1. 1 Whether the Programming Committee's decision to place the motion of no confidence on the agenda was lawful.
  2. 2 Whether the Speaker's decision to call the extraordinary council meeting on short notice was lawful.
  3. 3 Whether the Council's adoption of the motion of no confidence was procedurally and constitutionally valid.

Ratio Decidendi

The court found that the Programming Committee was inquorate when it placed the motion of no confidence on the agenda, rendering the decision unlawful. The Speaker's notice for the extraordinary meeting was unreasonably short and failed to comply with statutory and constitutional requirements, depriving councillors of meaningful participation and debate. The Speaker unlawfully excluded DA councillors from debate and voting based on their refusal to sign the attendance register, which did not justify depriving them of their constitutional rights. The Council's adoption of the motion of no confidence and the subsequent election of a new Executive Mayor were tainted by illegality and...

Court Disposition

Application granted. All impugned decisions declared unlawful, unconstitutional and invalid; Ms Phalatse reinstated as Executive Mayor; costs awarded against the Speaker in her official capacity.

Orders

  • The application is declared urgent and usual forms and time periods are dispensed with.
  • The decision of the Speaker on 29 September 2022 to schedule an extraordinary council meeting for 30 September 2022 is declared unlawful, unconstitutional and invalid.