The Municipal Manager of the Umdoni Local Municipality and Others v Shamila Sookhraj and Another

Following the November 2021 municipal elections, the Umdoni Local Municipality Council comprised 37 councillors: the ANC held 17 seats, the Democratic Alliance (DA) held seven, and other parties and independents held 13. Within 14 days, the Council determined the composition of its Executive Committee (Exco) in terms of s 45 of the Local Government: Municipal Structures Act 117 of 1998. Seats were proportionally allocated: ANC three, DA two, and others two. The DA appointed Councillor Edwin Baptie to one of its Exco seats. On 26 November 2021, a DA councillor resigned. A subsequent by-election on 2 July 2022 for ward 13 (previously held by the DA) was won by the ANC, altering the Council composition to ANC 18 and DA 6. On 29 August 2022, Councillor Baptie resigned as a councillor and vacated his Exco seat in terms of s 47(1)(c) of the Structures Act. On 9 November 2022, the DA's Chief Whip advised the Municipal Manager that the DA had appointed Councillor Shamila Sookhraj to fill the vacancy pursuant to s 43(2)(e). Instead of implement the appointment, the Municipal Manager prepared a report recommending that the Council re-determine the Exco composition in light of the by-election results. On 22 February 2023, the Council passed a motion appointing ANC member Councillor Ravinand Maharaj to the vacancy. Sookhraj and the DA launched an urgent application. By consent, the high court declared Maharaj's election unlawful. Nkosi ADJP subsequently held that s 43(2) fixed Exco seat allocations for the Council term, declared Sookhraj's appointment valid, and granted a punitive costs order against the Municipal Manager for egregious conduct. The appellants' application for leave to appeal was dismissed but later granted on petition to the Supreme Court of Appeal.

• Whether, on a proper interpretation of s 43 read with ss 45, 46 and 47 of the Local Government: Municipal Structures Act 117 of 1998, the composition of a municipal executive committee is fixed for the duration of a Council's five-year term, or whether it must be recalculated whenever by-elections alter the composition of the Council.
• Whether s 43(2)(e) entitles the political party to which an executive committee seat was originally allocated to appoint a councillor to fill a vacancy, irrespective of subsequent by-elections that change Council representation.
• Whether fixing executive committee seat allocations for the Council term is consistent with s 160(8) of the Constitution, which requires fair representation in council proceedings and committees.

The appeal is dismissed with costs, including the costs of two counsel. The order of the high court declaring the Municipal Manager's decision unlawful, declaring Councillor Sookhraj's appointment to the executive committee valid, and the costs order granted in the high court stand.

The allocation of seats on a municipal executive committee under s 43(2) of the Local Government: Municipal Structures Act 117 of 1998 is fixed for the duration of the Council's five-year term and is not recalculated whenever by-elections alter the composition of the Council. Section 43(2)(e) entitles the political party or political interest to which a seat was originally allocated to appoint a councillor to fill a vacancy in that seat, and this right persists notwithstanding subsequent changes in council composition through by-elections. Fair representation under s 160(8)(a) of the Constitution does not require proportional representation on executive committees.

The court noted that the issue of the punitive costs order against the Municipal Manager for her alleged breach of s 55 of the Local Government: Municipal Systems Act 32 of 2000 did not form part of the appeal because the appellants were bound to the issues as set out in terms of rule 8(8)(a) of the Supreme Court of Appeal Rules, a concession the court described as properly made. The court also made observations regarding the policy rationale underpinning the legislative scheme: that frequent executive committee recomposition triggered by minor seat shifts in hung councils would paralyse service delivery and undermine effective governance, and that ward by-elections are localised events that do not provide a fresh municipal-wide mandate for the Council or executive committee as a whole. Additionally, the court's reference to s 43(2)(f) permitting a party to nominate a councillor from another political party to one of its allocated seats was noted as supporting the constitutionality of preserving original seat allocations through s 43(2)(e).

This judgment is significant in South African local government jurisprudence because it definitively interprets the 2021 amendment to s 43(2) of the Structures Act, holding that executive committee seat allocations are fixed for the five-year term of a municipal council and are not altered by by-elections that change council composition. It confirms that fair representation under s 160(8)(a) of the Constitution does not require strict mathematical proportionality on executive committees, but rather meaningful participation. The decision promotes governance stability in municipalities, particularly hung councils, by preventing chronic instability and administrative disruption that would flow from repeated Exco recomposition after every ward by-election.