Council gag order fight off to court

photo : iol


Court papers challenging eThekwini Municipality’s amended rule of order have been drafted and are waiting to be filed in the Durban High Court.

The amended rule of order allows the Speaker, as well as the chairperson of eThekwini’s executive council (exco), to exclude the public and the media from some exco meetings.

Earlier this month, 23 civil society organisations picketed outside Durban City Hall on a Wednesday against the amended rule of order as part of a Black Wednesday campaign. It was launched to enlighten the public about the dangers of this amended rule of order.

The Active Citizens Movement (ACM) said the papers challenging the amended by-law were ready for court. The movement’s Ben Madokwe said they had hoped to get a response from the municipality at a picket earlier this month, after a memorandum had been handed to the city in December at the International Convention Centre when a full council meeting regarding the amendment was being held there.

“They still, today, have not responded to our memorandum. This just shows that they don’t care. Instead they issued a statement saying that we (civil society) don’t understand the amendment that had been made,” said Madokwe on Thursday.

He explained that while they understood that the amendment made for a provision for an application to be made by the public to gain access to some information, “our argument is that the amendment is unconstitutional”.


In an e-mailed document, the ACM said the preamble to the amended by-law states that a municipal council must strive within its capacity to achieve the objectives set out in the constitution, which are to provide: “Democratic and accountable government to local communities to ensure the provision of services to communities in a sustainable manner, and to promote social and economic development, to promote a safe and healthy environment and to encourage the involvement of communities in the affairs of local government.”

The amended rule of order also gives power to the Speaker and exco chair to ban the recording of proceedings in meetings, as well as to punish councillors and the media who disclose the contents of closed meetings.

Madokwe said he was concerned that committee meetings, especially those that had to do with service delivery, could not be accessible to the public and the media.

Also of concern was that reports submitted to exco, which often implicated some of those in high-ranking positions, could be discussed during these “closed meetings”.

“As the public, we have a right to know what is happening in the municipality. The municipality has an obligation to be transparent and we’re going to challenge them in court over this.

“Let’s go and test this in court and see how constitutional this amendment is.”

Municipal spokesperson Tozi Mthethwa, who has maintained that there is nothing unconstitutional about the amendment, said section 160 of the constitution, as well as section 20 of the Municipal Systems Act, provided clear guidelines for holding municipal meetings.

“Both legislation state that a municipal committee or council must open their meetings to the public. However, the legislation further provides for certain meetings to be closed to the public subject to the nature of the issues being discussed.”

She said the Rules of Order Amendment By-law had been amended to insert certain definitions.

“It’s also been amended to provide clarity in respect of the dissolution of the council and to provide for circumstances in terms of which the exco may close its meeting to the public and media, as well as to provide clarity on matters pertaining to the attendance of councillors at meetings.”

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