zolani mzulwini

Zolani Mzulwini

Director

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We are often approached by our clients to provide legal advice on a very pertinent yet very complex legal aspect of local government, that is whether a political party has the authority or power to remove its member as a municipal councillor.

In order to understand this question fully, it is necessary to have an understanding of the various types of councillors that exist within a municipal council.

The various types of councillors

There are essentially three types of councillors:

(1) Proportional Representation councillors

Proportional Representation councillors (“PR councillors”) are members of a political party and are elected onto the municipal council because of their position on the party list. The party list is basically a list that each political party contesting the election submits to the Independent Electoral Commission (the IEC) listing their candidates for the proportional representation seats within the municipal council with the most preferred candidate being first on the list. PR councillors are not elected directly by members of the public, they are chosen by the party.

(2) Ward councillors (nominated by a political party)

 

Ward councillors that are nominated by political parties are generally referred to as “ward councillors”. A municipality is demarcated into various wards by the municipal demarcation board in consultation with the IEC. Each ward within a municipality is entitled to be represented by a ward councillor in the municipal council. Ward councillors are elected directly by the residents of ward in which they reside. A ward councillor nominated by a political party must be a member of the political party that nominated him or her. The difference between PR councillors and ward councillors nominated by a political party is that although ward councillors nominated by a political party are members of that party, they elected directly the residents of the ward and are not chosen by the party.

(3) Independent ward councillors

Independent ward councillors are ward councillors that are elected into the municipal council without membership of a political party. Independent ward councillors, just like ward councillors nominated by political parties, are elected directly by the residents of a particular ward. The further requirement for independent ward councillors is that they must not be members of any political party.

Can a political party remove its member as municipal councillor?

In most cases that we deal with the facts before us are generally as follows:

A municipal councillor either, a PR councillor or ward councillor nominated by a political party, is charged with misconduct by his her or political party or is subjected to some form of disciplinary procedure. The party, being of the view that the seat occupied by the member within the municipal council belongs to it by virtue of the fact that the member came to occupy the seat either through his or her position on the party list or because he or she was the party’s nominated candidate in a particular ward, generally deems it politically prudent in those circumstances to “remove” the member as a councillor within that municipality. In most instances the party will then write a letter to the municipal manager of that particular municipality informing him or her that the party has decided to remove that particular member as a councillor.

From these facts, the issue that we are often requested to advise on is whether or not a political party has the power to remove its member as a municipal councillor.

In order to understand the complexity of this issue one must understand the core arguments that are often made by, on one hand the political party in justifying its authority or power to remove its member as a councillor and on the other hand, the party member who is a municipal councillor.

The case for the political party

Generally the core argument put forward by political parties in justifying their authority or power to remove their member as a municipal councillor is as follows:

The member was elected to the municipal council by virtue of his membership of the party. In relation to PR representation councillors, the party will generally argue that the citizens did not vote for the individual member but voted for the party therefore the seat in the municipal council belongs to the party not the individual. It therefore follows, so the argument goes, that the party through its internal mechanisms (which ultimately in the case of PR councillors manifest themselves as the party list) has the authority to determine which of its members becomes a municipal councillor. The political party will also argue that it also follows that if a party has the authority and power to choose, through its internal processes, which of its members becomes a municipal councillor, the party must have the authority and power to remove that member as a municipal councillor at a later stage if it is not satisfied with that person.

The case for the party member

Against the argument of the political party, the member will often argue that the political party does not have the authority or power to remove him or her as a municipal councillor because the municipal council is a separate and independent body over which a political party does not exercise authority. The core of the argument by the member is that once a municipal council is duly formed, it is the municipal council itself that has the authority and power to determine whether or not a person ought to be removed as a councillor.

The issue therefore has to be determined taking into account the arguments made by both parties.

The legislative framework

The issue of vacancies within a municipal council is regulated by section 27 of the Local Government: Municipal Structures Act (“the Structures Act”). The Structures Act provides that a councillor vacates office if one of the following occurs:

(a) he or she resigns in writing;

(b) he or she is no longer qualified to be a councillor;

(c) he or she was elected from a party list and ceases to be a member of the relevant party;

(d) he or she contravenes a provision of the Code of Conduct for Councillors and is removed from office in terms of the Code;

(e) …

(f) he or she was elected to represent a ward and –

(i) was nominated by a party as a candidate in the ward election and ceases to be a member of that party; or

(ii) was not nominated by a party as a candidate in the ward election and becomes a member of a party

In most cases that we are requested to advise on, the circumstances are such that the member refuses to resign from his position; still qualifies to be a councillor; and has not contravened a provision of the Code of Conduct for Councillors.

Judicial Interpretation of the legislative provisions

The jurisprudence that has developed through our courts strongly suggests that a political party does not have the power to remove its member as a municipal councillor. Furthermore, the jurisprudence suggests that the only way in which a political party can remove its member as a councillor is by expelling the member thereby terminating his or her membership. One of the earliest court cases in which this issue had to be decided was the case of De Villiers v Munisipaliteit van Beaufort-Wes en Andere 1998 (9) BCLR 1060 (C). In this case Mr De Villiers had been elected as PR councillor in the Beaufort West Municipal Council. The party on whose list he had appeared and which he was a member of instituted disciplinary proceedings against him on the basis that he had failed to adhere to certain caucus decisions and had publicly adopted a position contrary to the manifesto of the party. Ultimately the sanction imposed on De Villiers was suspension as a councillor for a period of five years. This decision was then communicated by the party to the Town clerk who then declared a vacancy in the municipal council and that the person whose name appeared next on the party list submitted by the party would fill that vacancy.

Mr De Villiers approached the Court seeking an order declaring that he was still a member of the party and that as such he was entitled to all the rights and privileges of a councillor. It was argued on behalf of the party that the phrase ‘ceases to be a member of the party’ should be interpreted to mean that the political party may remove a PR councillor by a resolution of the party and that it must not be interpreted to mean that a political party may only remove a PR councillor by expelling him or her from the party. The court in this case rejected that argument on the basis that the word “cease” means “a discontinuance of something already in operation”. The court held that this plain and unambiguous meaning need not be extended. The court concluded that the phrase “ceases to be a member of the party” means a discontinuance of membership of the party.

The next case in which the issue was raised was the case of Marais v Democratic Alliance 2002 (2) BCLR 171 (C). In this case Mr Marais was a member of the Democratic Alliance and was the Mayor of the Cape Town. Mr Marais received a letter from Tony Leon who at the time was the leader of the party asking him to resign as the Mayor failing which the National Management Committee (the NMC) of the party would pass a motion requiring him to resign as Mayor. Upon his refusal to resign, Mr Marais received another letter informing him that should he not comply with the resolution of the NMC he would lose his membership. Ultimately Mr Marais didn’t comply with these requests and as a consequence was stripped of his membership of the political party. In terms of section 27 (c) Mr Marais had to vacate his office as the Mayor because he had been elected from the party list and was no longer a member of the party.

The court in this case found that the constitution of the Democratic Alliance did not provide for the power to compel a mayor of a council to resign. The court held that even if the constitution of the Democratic Alliance contained such a power, in terms of section 58 of the Structures Act, only the municipal council has the power to remove an executive mayor from office. The court went on to state that although Mr Marais was elected Mayor because of his membership of the party, “once he was elected he was a duly elected municipal official whose powers and functions and his retention of office, are subject to the provisions of the [Structures] Act”.

In the case of Ngqwebo v Mhana & Others[1] the applicant was a member of Bedford Residents Association (Bera) and was appointed as a PR councillor. He received a letter from the municipal manager informing him that his name had been withdrawn as a councillor by his party. The court in this case held that the withdrawal of Applicant’s name by his party cannot be a ground for his removal from the council. The Court in this case expressly stated that once appointed as a councillor, the Applicant’s party (Bera) ceased to have control over him. It could not recall or remove him as a councillor and that he could only be removed in terms of section 26 and section 27 of the Structures Act. The court was of the view that allowing councillors to be removed or recalled as councillors by their party would “open a can of worms” because PR councillors would be recalled at the whim of the party and that the legislature was trying to avoid that situation by enacting section 26 and 27 of the Structures Act.

Conclusion

In conclusion the principle to be derived from the jurisprudence that has developed through the case law is that a political party does not have the power or authority to remove or recall a PR councillor or nominated ward councillor from their position as a councillor. Once a member of a party is elected as a PR councillor or a nominated ward councillor, he or she may only vacate office in terms of section 27 which lists amongst others the termination of membership of the party on whose list the person appeared. It is important for all municipal managers to ensure that they obtain professional legal advice if they receive a letter from a political party purporting to remove one of its members as a councillor.

Should you require any assistance or advice regarding any aspect of this issue, do not hesitate to call our offices.

 

* Disclaimer: the contents of this article/newsletter do not constitute legal advice and must not be construed as such. Legal advice should be sought before any action or decision is taken based on the contents of this article/newsletter. BMM Inc is not responsible for any action or decision taken based on the contents of this article/newsletter without prior consultation with our attorneys. No person shall have any claim of any nature arising out of or in connection with the contents of this article/newsletter, against BMM Inc and/or any of its directors and/or employees

[1] Case No: 3277/09 Eastern Cape High Court, Grahamstown, unreported.