Removing the Mayor

In Ingquza Hill Local Municipality and Another v Mdingi [2021] 3 All SA 332 (SCA), Section 53 requires prior notice of an intention to move a motion for the removal of a member to be given to all members in terms of the Local Government: Municipal Structures Act.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Local government - Decision of council to remove member of executive committee, holding position of mayor, from office: The respondent in Ingquza Hill Local Municipality and Another v Mdingi [2021] 3 All SA 332 (SCA) was a member of the executive committee of the first appellant (the municipality) and was elected as mayor on 3 August 2016. On 23 January 2019, he was removed from his position following a resolution taken by the municipal council ostensibly acting in terms of s 53(1) of the Local Government: Municipal Structures Act 117 of 1998 (the Act). The respondent took the municipality’s decision on review to the High Court, which set aside the council’s decision on the ground of non-compliance with s 53 of the Act.

A member of the executive committee vacates office, in terms of s 47 of the Act, if, inter alia, removed from office as a member of the executive committee in terms of s 53. Section 53 requires prior notice of an intention to move a motion for the removal of a member. A mayor is –

• elected from members of the executive committee and vacates office when he resigns;
• removed from office as a member of the executive committee in terms of s 53; or
• ceases to be a member of the executive committee.

The court stated that on a proper reading of s 53, prior notice is to be given to all members of the municipal council. The purpose is to afford the affected member an opportunity to be aware and to consider the motion before it is tabled for discussion. Additionally, it is to provide council members similarly with an opportunity to engage meaningfully in the ensuing debate before a resolution is taken.

The respondent’s removal from office was preceded by alleged acts of misconduct involving maladministration by the municipal manager. At a council meeting on 23 January 2019, a motion for his removal was brought by a council member. A resolution to remove the respondent from the position of mayor was taken by a majority vote. The issue of the motion regarding the respondent’s intended removal was not on the agenda for that meeting. Nobody, including those councillors who voted in favour of the motion against the respondent had the benefit of prior notice.

The High Court was correct in making the order it did, and the appeal was accordingly dismissed.

Merilyn Rowena Kader
Legal Editor at LexisNexis