Ingquza Hill Local Municipality & Another v Jongintaba Mdingi

The respondent, Jongintaba Mdingi, was elected as mayor of Ingquza Hill Local Municipality on 3 August 2016. On 14 December 2018, at an emergency council meeting, Councillor Simthembile Mtshazo introduced a motion to remove Mr Mdingi as mayor, allegedly because he failed to implement a council resolution from 14 June 2018 directing him to address allegations of misconduct by the municipal manager. The motion proposed that Mr Mdingi be given notice of the Council's intention to remove him at a future date. On 23 January 2019, the Council convened another emergency meeting where the motion was discussed and a resolution to remove Mr Mdingi was adopted by majority vote (39 in favor, 20 against). Mr Mdingi alleged he was not served with proper notice as required by section 53(1) of the Local Government: Municipal Structures Act 117 of 1998, nor were other councillors given prior notice. Mr Goya was elected as the new mayor. Mr Mdingi brought a review application to set aside both decisions.

• Whether the Municipality complied with the requirements of section 53(1) of the Local Government: Municipal Structures Act 117 of 1998 in removing Mr Mdingi as mayor
• Whether prior notice of an intention to move a motion for removal must be given to all members of the municipal council or only to the affected member
• Whether the notice given at the meeting of 14 December 2018 constituted adequate 'prior notice' as required by section 53(1)
• Whether a mayor can be removed directly or must first be removed as a member of the executive committee in terms of section 53(1)
• Whether the motion to remove Mr Mdingi as 'mayor' rather than as 'member of the executive committee' complied with statutory requirements

The appeal was dismissed with costs, including costs for two counsel. The high court's order setting aside the Municipality's decision to remove Mr Mdingi as mayor and the subsequent election of Mr Goya as his replacement was upheld.

Section 53(1) of the Local Government: Municipal Structures Act 117 of 1998 requires that prior notice of an intention to move a motion for the removal of a member of the executive committee must be given to all members of the municipal council, not only to the affected member(s). This requirement gives effect to section 160(8) of the Constitution which entitles all members of a municipal council to participate in proceedings in a manner consistent with democracy. The notice must be given before the meeting at which the resolution is to be taken, and not merely at the meeting itself. A motion to remove a mayor must be properly framed as a motion to remove the person as a member of the executive committee in terms of section 53(1), as section 48(4) provides that a mayor vacates office upon being removed as a member of the executive committee. Failure to comply with the prior notice requirement renders the removal decision invalid and subject to review and setting aside.

The Court noted that it was not necessary to determine whether the grounds for Mr Mdingi's removal were established or whether a court can interfere with a municipal council's decision on the basis of irrationality, given the finding that proper notice was not given. The Court also observed, without deciding definitively, that the high court's finding that there should have been a fully-fledged inquiry against the respondent does not assist the Municipality in the context of the facts of this case. The Court remarked that it was 'odd' and 'strange' that the minutes signed on 6 February 2019 (after the review proceedings were instituted) differed from the draft minutes attached to the founding affidavit on the important aspect of whether a motion to establish an ad hoc committee had been raised, though the Court stated it would 'take it no higher' than this observation. The Court expressed gratitude to the amici curiae appointed to assist the Court when heads of argument had not been filed on behalf of Mr Mdingi.

This case clarifies the procedural requirements for removing mayors and members of executive committees in municipalities. It establishes that 'prior notice' under section 53(1) of the Municipal Structures Act must be given to all councillors, not just the affected member, in order to facilitate meaningful democratic participation as required by section 160(8) of the Constitution. The judgment reinforces the principle of inclusive deliberation in local government decision-making and emphasizes that even if a single councillor is deprived of notice and opportunity to participate, the constitutional and statutory objectives are frustrated. The case also clarifies the distinction between removing a mayor and removing a member of an executive committee, and confirms that a mayor vacates office upon being removed as a member of the executive committee under section 53(1). The judgment underscores that municipal councils' actions must strictly comply with constitutional and statutory procedures, and that procedural defects in removal processes will lead to invalidation of decisions even where substantive grounds for removal may exist.