The
submission by the appellants is that the council can, by ordinary council
resolution, remove an elected Mayor from office for any reason. In support of
this submission, they rely on the provisions of section 84 of the Urban
Councils Act [Chapter 29:15] and section 89 of the Urban Councils Act [Chapter
29:15]. Section
84 ...
The
submission by the appellants is that the council can, by ordinary council
resolution, remove an elected Mayor from office for any reason. In support of
this submission, they rely on the provisions of section 84 of the Urban
Councils Act [Chapter 29:15] and section 89 of the Urban Councils Act [Chapter
29:15].
Section
84 of the Urban Councils Act [Chapter 29:15] provides:
“84 Meetings and special meetings of council
(1)
A council shall hold its first meeting on such date and at such place as the
Minister may fix and thereafter the council shall, subject to this Act, meet
for the dispatch of business and adjourn, close and otherwise regulate its
meetings and proceedings as it thinks fit:
Provided
that the council shall hold an ordinary meeting –
(a) As
soon as is practicable after each general election; and
(b) At
least once in each month.
(2) Save
as otherwise provided in this Act, at any meeting of a council –
(a)
All the councillors present at that meeting shall vote on every matter which is
put to the vote;
(b)
Voting shall be by show of hands or by any mechanical means approved by the
council;
(c)
All the questions coming or arising before that meeting shall be decided by a
resolution passed by a majority of the votes cast, and, in the event of an
equality of votes, the mayor shall have a casting vote in addition to a
deliberative vote.
(3)
The mayor may, at any time, and at the request in writing of not less than
one-third of the total membership of the council or of six councillors,
whichever is the less, shall, within fourteen days of such request, call a
special meeting of the council.
(4)
Written notice of any special meeting called in terms of subsection (3) shall
be sent to each councillor at least twenty-four hours before the meeting and
shall specify the object of the meeting, and no matters, other than those
specified in that notice, shall be discussed at that special meeting.
(5) …,.
(6) …,.”
And section
89 of the Urban Councils Act [Chapter 29:15] provides:
“89 Rescission or alteration of resolutions
of council and committees
(1)
A resolution passed at a meeting of a council shall not be rescinded or altered
at a subsequent meeting of the council –
(a)
Unless –
(i) A
committee has recommended that the resolution be rescinded or altered; or
(ii)
A notice of motion to rescind or alter that resolution has been given at least
seven days before the subsequent meeting to the chamber secretary and the
notice of motion has been signed by not less than one-third of the membership
of the council; and
(b)
If the rescission or alteration occurs within six months from the date of the
passing of the original resolution and the number of councillors present at
such subsequent meeting does not exceed the number of councillors present when
the original resolution was passed, unless at least two-thirds of the
councillors or members, as the case may be, present at the subsequent meeting
vote in favour of that rescission or alteration.
(2)
The chamber secretary to whom any notice of motion has been given in terms of
subsection (1) shall send a copy of the notice to each councillor at least two
days before the subsequent meeting at which the motion is to be moved.
(3)
Nothing in subsection (1) shall be construed as precluding a council from
rescinding or altering a resolution passed at a previous meeting in a manner
other than that recommended by the committee or specified in a notice of
motion, as the case may be.
(4)
A resolution passed at a meeting of a committee of a council may be rescinded
or altered at any subsequent meeting of that committee.”
The
respondent, on the other hand, submitted that section 89 of the Urban Councils
Act [Chapter 29:15] is a general provision which relates to meetings of council
and does not empower the removal of a sitting Mayor. The respondent further
argued that it is section103 of the Urban Councils Act [Chapter 29:15] which
provides for the vacation of office of Mayor and that that section does not
provide for such removal to be done through resolutions passed by council.
Instead, a successor can only be appointed where the seat of the councillor who
is a Mayor or Deputy Mayor becomes vacant by virtue of the provisions of section
103 of the Urban Councils Act [Chapter 29:15] as read with the provisions of section
78(2) of the Urban Councils Act [Chapter 29:15].
Section
78(2) of the Urban Councils Act [Chapter 29:15], in relevant part, provides;
“Subject to subsection (3), if a councillor –
(a)
Dies; or
(b)
Resigns his office; or
(d)
Ceases to be qualified for election as a councillor or becomes disqualified for
such election in terms of section 119 of the Electoral Act [Chapter 2:13] (No.
25 of 2004); or
(c1) Ceases
to be a councillor in terms of subsection (7) of section forty- one; or
(d) Is
absent without leave of the council -
(i)
From the ordinary meetings of the council during a period of two consecutive
calendar months; or
(ii)
From the meetings of any committee of the council to which he has been
appointed during a period of two consecutive calendar months, if the committee
has held at least one meeting in each of those calendar months or from two
consecutive meetings of the committee which are not held in the same calendar
month or consecutive calendar months; or
(e)
Is absent from the ordinary meetings of the council during a period of six
consecutive calendar months, whether or not leave of the council has been obtained;
or
(f)
Ceases, in terms of paragraph (b) subsection (1) of section 22 of the
Provincial Councils and Administration Act [Chapter 29:11], to be a councillor;
or
(g)
Has been suspended in terms of section one hundred and fourteen for a period
longer than thirty days;
his seat
shall become vacant and such vacancy shall be deemed to be a special vacancy.”
An
urban council is a creature of statute. It therefore derives its authority from
the Urban Councils Act [Chapter 29:15] and other legislative provisions. As a
corollary, an urban council, therefore, can only do that which the law has
specifically or impliedly authorised. It has no power to do anything that the
law has not authorised.
Having
carefully considered the provisions of the Urban Councils Act [Chapter 29:15],
and the submissions made by both parties to this appeal, I am satisfied, on a
correct reading of the Urban Councils Act [Chapter 29:15], that there is no law
that allows a council to remove a sitting Mayor on the basis of a mere council
resolution. It is clear that section 89 of the Urban Councils Act [Chapter
29:15] refers to rescission or alterations of council resolutions. The section
cannot possibly apply to the removal of a Mayor.
The
appellants have argued that at the end of the day, a Mayor is put into office
through such a resolution, and, consequently, that resolution can be rescinded
in terms of the Urban Councils Act [Chapter 29:15].
I find
myself unable to accept this submission.
It
is clear that it is the electoral process involving the councillors which
results in one of them being elected Mayor and another as Deputy Mayor. Such
process is chaired by the District Administrator as provided in the Urban
Councils Act [Chapter 29:15]. The suggestion that this was an ordinary meeting
which ended in a resolution is, in my view, untenable. The law requires that
there be an election and that the person so elected enters office forthwith.
There is no legal requirement for the passing of a resolution before the
incumbent assumes the position.
The
above interpretation is re-inforced by the provisions of section 103(3) of the Urban
Councils Act [Chapter 29:15] which prescribe how a person who has been elected Mayor
or Deputy Mayor shall cease to hold office. In particular, if the seat of the
councillor, who is a Mayor or Deputy Mayor, becomes vacant by virtue of any of
the provisions of section 78(2)(b)-(g) of the Urban Councils Act [Chapter
29:15], he shall cease to hold office as such with effect from the date that
seat becomes vacant. If the intention of Parliament was simply that a sitting Mayor
could be removed pursuant to an ordinary council resolution, the Urban Councils
Act [Chapter 29:15] would not only have said so but would not have gone further
to make provision on how a person ceases to be Mayor. To read the Urban
Councils Act [Chapter 29:15] as making provision for the removal of a person as
Mayor through a resolution would render the provisions of section 103(3) of
the Urban Councils Act [Chapter 29:15] superfluous.
Regard
should also be had to the fact that prior to the amendment of the Urban
Councils Act by Act 1/08, the Minister was empowered, by section 54, to suspend
a Mayor, and the President to dismiss him. Act 1/08 repealed section 54 and
substituted it with section 103. It is section 103 that prescribes how a person
elected as Mayor ceases to hold such office. In doing so, the intention must
have been that a Mayor would only cease to hold office when his successor is
elected or if the seat of a councillor, who is a Mayor, falls vacant.
In
any event, the suggestion that a sitting Mayor can be removed from office
through a mere resolution can result in an absurdity. In this particular case,
it is clear that the councillor who moved the motion did so, on the basis that
the Mayor had misconducted himself. A list of the grounds of misconduct were
cited in the motion. The respondent, who was Mayor, was not asked to
respond. Neither was there any inquiry.
All that happened was that the councillors who remained behind voted to remove
the Mayor from office without any inquiry at all and without affording him the
opportunity to be heard. If the appellants' submission that a mere council
resolution would suffice to remove a Mayor from office were to be taken to its
logical conclusion, a situation could arise where there could be a motion by
one councillor removing a Mayor and another motion re-electing the same Mayor
by another councillor. This, surely, could not have been the intention of the
legislature….,.
Having
come to the conclusion that a duly elected Mayor cannot be removed from office
by ordinary council resolution, this Court was of the unanimous view that there
was no merit in the appeal and for that reason dismissed the appeal with costs.
