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The high court in Pretoria has ordered the immediate reinstatement of Tshwane city manager Johann Mettler after finding that the decision to suspend him was tainted by an unlawful ruling that stripped 13 councillors of their votes, changing the outcome of one of the city’s most contentious council meetings.In a judgment handed down on Friday, acting judge Karin Pillay found that the speaker of the City of Tshwane council, Mncedi Ndzwanana, acted outside the scope of his powers when he deducted votes cast by councillors who had initially been granted leave of absence but later attended the meeting and voted. The ruling effectively rendered Mettler’s three-month precautionary suspension unlawful pending a review application challenging resolutions adopted by the council.The decision hands a significant victory to Mettler, the DA and Solidarity, while placing renewed scrutiny on the legality of decisions taken by the city since his suspension on July 9.The dispute emanates from a special council meeting convened to consider allegations of misconduct against Mettler. The council ultimately adopted a resolution suspending him pending an investigation, while also passing a separate resolution relating to disciplinary proceedings against the city’s CFO, Gareth Mnisi. Both resolutions were subsequently challenged in court.The applicants argued that the resolution suspending Mettler was fundamentally flawed because the speaker unlawfully excluded votes cast by councillors who had withdrawn previously approved leave of absence and attended the meeting. They contended there was no legal authority permitting the speaker to disregard votes cast by elected representatives who were physically present in the council chamber.Court papers showed that 13 DA councillors had initially applied for leave of absence before later withdrawing those requests and participating in the meeting. Another councillor from a different political party also returned to attend and vote.Despite their participation, the speaker ruled that councillors who had been granted leave could not vote and deducted their votes before announcing the outcome.The judgment reveals that the vote initially stood at 92 councillors in favour of suspending Mettler and 95 against. Before announcing the final result, however, the speaker subtracted 13 votes cast against the suspension, leaving the tally short at 82 against. Had those votes remained part of the official tally, Mettler would not have been suspended.Pillay found that while the speaker has authority to preside over council meetings and regulate proceedings, those powers do not extend to deciding whether an elected councillor who is physically present may cast a vote.“The speaker did not have the authority to determine a councillor’s eligibility to vote or to subtract the votes that were indeed cast in the execution of those affected councillors’ mandates and duties.”The judge continued: “His powers to preside over and make rulings in respect of the business of council meetings do not, and cannot, include the power to exclude a clear constitutional mandate ... In this instance, he acted outside the scope of his powers.”The speaker did not have the authority to determine a councillor’s eligibility to vote or to subtract the votes that were indeed cast in the execution of those affected councillors’ mandates and duties.— Aacting judge Karin PillayPillay said the constitution places voting at the heart of municipal democracy and that elected councillors cannot be stripped of that right unless legislation expressly authorises it.The judgment found that neither the constitution, the Municipal Structures Act, nor the City of Tshwane’s own by-laws empower a speaker to invalidate votes cast by councillors who are physically present at a council meeting.Instead, the court concluded that the speaker had effectively created a legal requirement that does not exist by treating councillors who had previously been granted leave of absence as automatically ineligible to vote despite their attendance.“Permission granted to a councillor to be excused from the obligation to attend and the constitutional entitlement to partake can never become a bar to compliance with the obligation and to exercise the entitlement. Mere presence of a councillor at a council meeting suffices for the councillor to partake in the meeting, including the ability to vote,” Pillay held. The court therefore concluded that the speaker’s subtraction of the disputed votes was unlawful.“It is found that, prima facie, the speaker’s subtraction of the disputed votes was unlawful,” Pillay stated.Mettler welcomed the ruling, describing it as a victory for the rule of law rather than a personal triumph.“It is the most difficult thing to sit at home knowing that you belong at work — the past three weeks were something no competent and willing city manager must go through when you know that there is no reason for you to be at home,” he said. Mettler added that he is grateful for the judgment, saying that people had shown their support throughout the legal process.“I look forward to going back,” he said. “I want to take this council to the end of its term, and I want to continue the work we have started and make sure that Tshwane is a well-run metro. We have achieved significant milestones across the board.” However, Ndzwanana argued that the suspension was merely precautionary, lasting three months, and that any challenge should instead be determined during the ordinary review proceedings.The speaker further argued that acting city manager Musa Khumalo was lawfully exercising the powers of the office and that there was no evidence the city’s administration had suffered prejudice during Mettler’s absence.However, Pillay also found that because Mettler’s suspension flowed directly from an unlawful council resolution, the appointment of the acting city manager was likewise vulnerable, creating uncertainty around decisions taken during the period of suspension.The judge warned that tenders, contracts and other administrative decisions flowing from the acting appointment “could, simply by virtue of [his] appointment being the fruit of a poisonous tree, be attacked in various ways”.Pillay found that allowing the suspension to remain in place while awaiting the outcome of a review application risked creating legal uncertainty across the municipality’s procurement and governance processes.The ruling means Mettler must return to office pending the determination of the review application, which seeks to have the July 9 council resolutions reviewed and set aside.TimesLIVE
