Councillor Shamila Sookhraj
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THE Supreme Court of Appeal (SCA) of South Africa has delivered a landmark judgment affirming the rights of political parties in the appointment of members to municipal executive committees.
This decision emerged from the contentious case involving the Umdoni Local Municipality (the municipality), where the SCA upheld the legal standing of Democratic Alliance (DA) Councillor Shamila Sookhraj’s appointment, amidst challenges from the municipality's leadership.
Councillor Sookhraj and the DA are the respondents.
The appellants in the matter included the municipality, the municipal manager, Speaker of the Council, the municipality’s Council (the Council), Councillor Ravinand Maharaj, and the executive committee of the Council(Exco), among others.
According to the judgment, the municipality and the Council elected 37 councillors to serve in the Council.
The ANC held 17 seats, the DA occupied seven, and the other parties and independents held 13.
According to the court papers, within 14 days of its election, the Council determined the composition of the Exco in accordance with Section 45 of the Structures Act.
The ANC occupied three seats, the DA occupied two, and the other parties and independents occupied two. The DA appointed Councillor Edwin Baptie to one of its two allocated Exco seats.
According to the court papers, on or about November 26, 2021, a councillor resigned from the DA.
“A by-election was held for ward 13, a ward previously won by and represented by the DA. The ANC won the by-election, causing the ANC Council seats to increase to 18. By losing the by-election, the DA’s Council seats decreased to six. Representation on the Council was appropriately amended.”
According to the court papers, on August 29, 2022, Councillor Baptie resigned as a councillor and also vacated his office as a member of Exco.
This created a vacancy in one of the two Exco seats allocated to the DA.
According to the court papers, on November 9, 2022, the DA’s authorised representative, the Chief Whip, advised the municipal manager and the Speaker of the Council that the DA had appointed Councillor Sookhraj to fill the vacancy that arose on the Exco.
However, instead of implementing the DA’s appointment of Councillor Sookhraj, the municipal manager prepared a report dated January 25, 2023, recommending that the Council either re-determine the composition of the Exco in light of the by-election results, or ‘simply effect the changes occasioned by the changes in Council’.
At an ordinary Council meeting held on January 25, 2023, the municipal manager tabled a report recommending the re-determination of the Exco composition.
According to the court papers, on February 22, 2023, following a presentation by Ms Zamisa from COGTA, an ANC councillor moved a motion that Councillor Maharaj be appointed to fill the vacancy created by Councillor Baptie.
The motion was passed by Council vote and Councillor Maharaj, an ANC member, was appointed to the Exco.
According to the court papers, Councillor Sookhraj and the DA thereafter instituted an urgent application in the high court to have the election of Councillor Maharaj to Exco to fill the vacancy declared unlawful.
On March 24, 2023, the high court declared the election of Councillor Maharaj unlawful, and his appointment was nullified.
According to the court papers, the issue that remained to be adjudicated by the high court was who had the right to appoint a councillor to fill an Exco vacancy.
The high court favoured Councillor Sookhraj and the DA’s interpretation and held that the 2021 amendment to Section 43(2) of the Structures Act introduced an intention on the part of the legislature to reserve, to a political party, a seat allocated to it on the Exco for the term of the Municipal Council.
The political party to which a seat had been allocated, in this instance the DA, was empowered to appoint a councillor to fill the vacancy. This resulted in it declaring the appointment of Councillor Sookhraj valid.
According to the court paper, the high court further found the conduct of the municipal manager to be “blatant and egregious”, and a punitive costs order was made against her.
Aggrieved by the high court’s decision, the appellants applied for leave to appeal, which was dismissed. On petition, leave to appeal was granted to the SCA.
In handing down a ruling, Justice Daisy Sekao Molefe, a judge of appeal, said she agreed with the high court that the allocation of seats on a municipal executive committee under Section 43(2) of the Structures Act is fixed for the duration of the Council’s five-year term.
“It is not re-calculated whenever by-elections alter the composition of the Council. By-elections are not a termination event. The interpretation is consistent with the Constitution. The DA’s appointment of Councillor Sookhraj on 9 November 2022 was therefore lawful.”
Justice Molefe said in her view, the appellants’ argument ignores the changes brought about by the amendment of the Structures Act.
“It further ignores and strains the wording of the text and distorts the context and purpose of the relevant provisions. The right of political parties or political interests under the Structures Act to appoint members to an executive committee is fixed within 14 days of the Council’s election. Such a right would only terminate when the municipality has changed, or the next Council is declared elected. It follows that the appeal must fail.”
Justice Molefe dismissed the appeal with costs.