The high court in KwaZulu-Natal, sitting in Pietermaritzburg, has decided in a precedent-setting ruling that municipal councils possess the arbitrary authority to increase or decrease the number of members on their executive committees as they see fit.
This week’s ruling is the result of a legal battle that two municipalities in northern KwaZulu-Natal, Nongoma and Zululand, waged against the then-MEC for cooperative governance and traditional affairs, Sipho Hlomuka.
Interpreting the provisions of Municipal Structures Act Sections 43, 45, 46, 47, and 53 pertaining to the creation of municipal committees was at the centre of the dispute.
Heads of judgment
Read the heads of judgment interpreted by acting judge Mvuzo Notyesi: “The MEC alleges that he received complaints from the NFP [National Freedom Front] that the council had reduced the number of members of the executive committee in Nongoma local municipality.
“He also received a similar complaint from the ANC that Zululand district municipality had reduced the number of members of the executive committee.
“There is no confirmatory affidavit from the alleged complaining parties.
“The MEC obtained legal advice and, based on that legal advice, contended that the conduct of the two municipalities was contrary to the provisions of the Structures Act and, accordingly, unconstitutional.”
Hlomuka is now the MEC for education in KwaZulu-Natal.
Following the 2021 local government elections, the IFP used its majority in the Nongoma local municipality to pass a resolution for the reduction of the number of executive committee members from nine to seven.
Legal relief
This meant two members of the executive committee had to be removed, with the IFP gaining four seats, the NFP two seats, and the ANC a solitary seat.
The reduction in the number of members of the executive committee resulted in the IFP becoming a majority party in the executive committee.
The NFP and the ANC were aggrieved and subsequently wrote to Hlomuka for his intervention, who advised the aggrieved parties to seek legal relief.
The MEC also sought a declaratory order that municipal councils may not reduce or increase the number of members of their executive committees once it has been determined at an inaugural council meeting held after elections, unless all the members of the executive committee are removed in accordance with the provisions of Section 53(2) of the Structures Act.
He wanted the resolutions to be set aside.
