South Africa: Constitutional Court judgment – Provincial Minister v Municipal Council, Oudtshoorn Municipality

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18 August 2015 – This morning the Constitutional Court of South Africa handed down judgment in Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape v Municipal Council, Oudtshoorn Municipality and Others CCT 05/15, which we previewed here. The Court upheld the order granted by the Western Cape High Court declaring invalid section 30(4) of the Local Government: Municipal Structures Act. The provision grants the Speaker of a municipal council a deciding vote, in addition to his or her vote as a councillor, where there is an equal number of votes by council members.

The Court’s media summary is as follows:

On 28 May 2014, the Oudtshoorn Municipal Council (Council) voted on its 2014/15 budget. The vote resulted in a deadlock with an equal number of votes for and against the budget. The Speaker of the Council, who had already voted in favour of the budget, then cast an additional vote to break the deadlock, as purportedly allowed under the Structures Act. On 9 June 2014, the applicant, the Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape (Provincial Minister), wrote to the Council stating that the Speaker’s actions were prohibited, as the Structures Act did not give the Speaker a deciding vote for matters listed in section 160(2) of the Constitution, which includes the approval of budgets. The Provincial Minister claimed that, consequently, the budget was not lawfully approved and the Speaker’s actions were constitutionally invalid. After several unsuccessful attempts to resolve the dispute through mediation, the Provincial Minister launched an application in the Western Cape Division of the High Court, Cape Town (High Court) to have the relevant section declared constitutionally invalid.

The High Court held that the provision was unconstitutional insofar as it allowed the Speaker to cast two votes to break a tie on issues listed in section 160(2) of the Constitution. The Constitution provides that when voting on these issues, a supporting vote of the majority of all council members is required to pass the motion. The Court further held that the wording of the provision in question is very wide and that the inconsistency could not be cured by interpreting the provision in a manner which is consistent with the Constitution. The Court therefore declared the provision invalid and “read-in” words which would cure this invalidity.

Before this Court, the Provincial Minister sought an order confirming the High Court’s order of invalidity and the “reading-in” remedy granted by that Court. The Minister of Co-operative Governance and Traditional Affairs, the third respondent, supported this relief, but emphasised that it is crucial that this Court limit the retrospective effect of the declaration of invalidity. This is so as not to invalidate all previous municipal decisions, and particularly budgets, adopted using this tie-breaking system.

In a unanimous judgment penned by Molemela AJ, this Court found the provision of the Structures Act concerned to be inconsistent with the Constitution to the extent that it empowered a Speaker to have a casting vote on matters listed in section 160(2) of the Constitution. The Court found that the inescapable conclusion when interpreting the provision is that it covers matters referred in section 160(2) of the Constitution. The Court concluded that the wide language in the provision made it impossible for it to be interpreted in a manner consistent with the Constitution. The Court held that the constitutional invalidity was due to the omission of a few words that can be “read-in” to render the provision constitutionally complaint. The Court endorsed the “reading-in” remedy ordered by the High Court. The Court confirmed the High Court order and further ordered that the declaration of invalidity operate prospectively.

You can read the full judgment here.