Provincial Minister for Local Government, Environmental Affairs and Development Planning, Western Cape v Municipal Council of the Oudtshoorn Municipality and Others

A dispute arose when the Oudtshoorn Municipality's budget for the 2014/15 financial year was put to a vote on 28 May 2014. The vote resulted in a deadlock with 12 councillors voting in favour and 12 against. The Speaker of the Council, who had already voted in favour, exercised a casting vote pursuant to section 30(4) of the Local Government: Municipal Structures Act 117 of 1998 to break the tie and secure the budget's approval. The Provincial Minister for Local Government challenged this on the basis that section 30(4) was inconsistent with section 160(3)(b) of the Constitution, which requires that decisions on matters listed in section 160(2) (including approval of budgets) must be supported by a majority of the members of the municipal council, not merely a majority of votes cast. The Provincial Minister approached the High Court seeking a declarator on the interpretation of section 30(4) and to set aside the budget. The parties later agreed that the budget would not be set aside due to practical considerations, leaving only the constitutional interpretation issue.

• Whether section 30(4) of the Local Government: Municipal Structures Act 117 of 1998 is inconsistent with section 160(3)(b) of the Constitution
• Whether section 30(4) can be interpreted in a manner consistent with the Constitution
• What is the appropriate remedy if section 30(4) is found to be unconstitutional
• Whether the order of invalidity should operate retrospectively or prospectively

The order granted by the High Court was confirmed. The order declared section 30(4) of the Local Government: Municipal Structures Act 117 of 1998 unconstitutional and invalid to the extent that it allows a presiding councillor to exercise a casting vote on matters referred to in section 160(2) of the Constitution. The words "other than a matter mentioned in section 160(2) of the Constitution" were read into section 30(4) after the word "question". The order operates prospectively only and has no bearing on past decisions adopted before the date of the order, including the Oudtshoorn Municipality's budget of 28 May 2014. No order as to costs was made.

Section 30(4) of the Local Government: Municipal Structures Act 117 of 1998, which provides that a presiding councillor must exercise a casting vote when there is an equality of votes on "any question", is inconsistent with section 160(3)(b) of the Constitution to the extent that it applies to matters listed in section 160(2) of the Constitution. Section 160(3)(b) requires that decisions on matters in section 160(2) (budgets, by-laws, taxes, and loans) must be supported by a majority of the members of a municipal council, not merely a majority of votes cast. Where there is a tie vote on such matters, the constitutional threshold for majority support of council members is not met, and the motion must fail. A casting vote cannot be used to overcome this constitutional requirement. The phrase "any question" in section 30(4) is incapable of interpretation that would limit it to non-section 160(2) matters, and therefore the section must be declared invalid to that extent.

The Court noted that the wide scope of section 30(4) appeared to be an inadvertent legislative error, particularly given its inconsistency with section 30(3) of the same Act. The Court observed that the deliberate change in wording in section 160(3)(b) and (c) following the First Certification judgment reflected a conscious constitutional design to create different thresholds for different types of municipal decisions, with higher thresholds for weighty matters. The Court emphasized that reading-in should be employed sparingly to avoid judicial encroachment on legislative terrain, but noted that in this case the constitutional invalidity was attributable to the omission of very few words that could be easily remedied without impermissibly traversing legislative terrain. The Court confirmed that while the default position for constitutional invalidity orders is immediate retrospective effect, courts have discretion to limit retrospectivity where required by considerations of justice and equity, particularly to avoid adverse effects on third parties and administrative stability.

This case is significant in South African local government law as it clarifies the constitutional limits on municipal decision-making procedures. It establishes that matters of particular importance listed in section 160(2) of the Constitution (budgets, by-laws, taxation, and loans) require genuine majority support of the entire council membership and cannot be passed through the exercise of a casting vote by the Speaker. The judgment reinforces the deliberate constitutional design that creates higher thresholds for weighty municipal decisions following the First Certification case. It demonstrates the Court's approach to remedial reading-in and the circumstances where prospective-only orders are appropriate to avoid disruption to past administrative actions. The case is important for all South African municipalities in understanding the proper procedures for passing budgets and other critical decisions, ensuring democratic legitimacy through genuine majority support rather than procedural mechanisms.