HIGH COURT JUDGE RULES THAT BRUMMER ACTED UNCONSTITUTIONALLY AND QUESTIONS HIS IMPARTIALITY; RATEPAYERS FORCED TO FUND BRUMMER'S FOLLY

The Cape Town High Court has questioned the impartiality of Bitou Speaker Mr. Brummer in a historic decision, dismissing his application against six ANC Councillors. The Court also held that his swearing in the Council Chamber was unbecoming of a Speaker.

In a judgment handed down on Wednesday, 28 September 2011, the Honourable Ms. Acting Justice Cloete of the Cape High Court dismissed with costs the urgent application launched by Mr. Brummer, a longstanding member of the DA, in his official capacity as Speaker of the Bitou Municipal Council against, amongst others, the six ANC councillors. Moreover, Cloete AJ granted the ANC councillors' counter-application, declaring certain conduct of Brummer as unconstitutional (see here).

The ANC councillors and, specifically, councillor Lulama Mvimbi, the former executive mayor, have been vindicated by Cloete AJ's judgment. Cloete AJ held that Brummer misconstrued his powers as Speaker when he refused Mvimbi an opportunity to address the Council at the meeting on 29 June.

What is more, Cloete AJ held that Brummer acted unlawfully when he directed Mvimbi to leave the Council chamber after Mvimbi objected to Brummer's aforesaid ruling. Significantly, Cloete AJ held that Brummer's conduct raised "serious questions about his impartiality in his role as Speaker". Cloete AJ was particularly concerned about a series of official press statements issued by Brummer, which gave a "one-sided and partisan account of events" and were contradicted by the transcription of the recordings of the meetings.

The dispute arose at a meeting of Council on 28 June, when Brummer called on Mvimbi to speak, only to order him to sit almost immediately after he began speaking and, within seconds thereafter, summarily directed Mvimbi to leave the Council chamber. Following this ruling, Brummer repeatedly adjourned the Council meeting over the course of a week. Initially, Brummer sought to justify these adjournments on the basis that Mvimbi was not entitled to be present at the meeting of Council; Later, Brummer alleged that Mvimbi and the ANC councillors were deliberately disrupting the meeting.

Brummer's application for interdictory relief

Brummer approached the Court for an order directing the ANC councillors to adhere to his directions under the Rules of Order, governing meetings of Council. Yekiso J granted an interim interdict in these terms on 7 July.

Notably, Brummer also cited the DA councillors and the COPE councillor as parties to the litigation. However, as noted by Cloete AJ, Brummer alleged that while Mvimbi instigated the disruption, he was entitled to relief against all the ANC councillors, because they "have at times reacted [to Mvimbi's disruption]". Brummer did not complain of any conduct by the DA or COPE councillors.

But in her judgment, Cloete AJ dismissed with costs Brummer's application for final interdictory relief on the basis that he had "fundamentally misconceived his role as Speaker". Cloete AJ's finding is premised on two bases.

First, Brummer maintained that as Speaker, he has "autocratic rights and that...[he is entitled] to expect prompt and unquestioning obedience to his directions". But Cloete AJ held that Brummer's attitude "is fundamentally at odds with the constitutional entitlement of members of a Council set out in section 160(8) of the Constitution [viz., to participate in Council proceedings in a manner that is consistent with democracy]". Moreover, according to Cloete AJ, Brummer lost sight of the fact that his directions must be lawful.

Second, Cloete AJ held that Brummer's conduct at the meetings "raises serious concerns regarding his impartiality in the role of Speaker". Cloete AJ went on to hold that this concern "is deepened by a series of press statements released by Brummer to regional and national media outlets, setting out what he considered to be the chronology of events". Cloete AJ remarked that certain material allegations in Brummer's press statements conflicted with the recorded transcriptions of the Council meetings.

In particular, Cloete AJ referred to Brummer's allegation that when he directed Mvimbi to be seated at the 29 June meeting, Mvimbi "proceeded to shout [him] down, became abusive and threatened a member of the community". In another press statement, Brummer alleged that he was compelled to expel Mvimbi from the meeting in light of his "persistent bad behaviour". But, Cloete AJ rejected Brummer's misleading and inaccurate characterisation of Mvimbi's conduct after Brummer directed him to take his seat, holding that "Mvimbi's reaction to Brummer's instruction...can hardly be regarded as behaviour which constituted ‘a persistent disregard of the directions of the chairperson'" as contemplated in the Rules of Order. The exchange between Brummer and Mvimbi that resulted in the latter's expulsion lasted a mere 27 seconds, and the recording of that exchange reveals that Mvimbi addressed Brummer in a respectful and restrained manner.

The ANC councillors' counter-application for declaratory relief

Cloete AJ granted all of the prayers sought by the ANC councillors.

First, Cloete AJ declared that Brummer's direction at the 29 June meeting that Mvimbi was not entitled to address the meeting, followed by his direction that Mvimbi be expelled from the Council chamber, were unlawful. Cloete AJ accepted the ANC councillors' argument that Brummer was constitutionally obliged to allow Mvimbi to address the matter before Council. Instead, Brummer unilaterally decided the matter. When Mvimbi objected to this violation of his right to speak, Brummer prematurely and arbitrarily decided to expel Mvimbi from the Council chamber.

Second, Cloete AJ declared that Brummer's use of profanity, when he told the councillors that he was "seriously pissed off", constituted language unbecoming of a Speaker. Cloete AJ found that "[Brummer's] profanity was clearly directed at Mvimbi and his fellow ANC councillors". According to Cloete AJ, this conduct underscored her conclusion that Brummer failed to exercise his powers as Speaker in an impartial manner.

Third, Cloete AJ declared unlawful Brummer's failure at a Council meeting of 8 July to treat an urgent motion as opposed and to allow debate on the matter, notwithstanding that Mvimbi expressly brought it to Brummer's attention that the ANC wished to opposed the motion. This urgent motion was tabled by Brummer and proposed that pending litigation between the municipality and the new executive mayor, cllr. Booysen, be withdrawn.

Brummer alleged that he did not notice that Mvimbi had raised his hand to indicate opposition to the motion. Brummer alleged that when Mvimbi brought it to his attention, he had already "moved on to the next agenda item and there was nothing he could do about it". But Cloete AJ rejected Brummer's explanation, holding that by virtue of Brummer's overly mechanical application of the Rules of Order, he had unlawfully prohibited debate on the motion, in violation of the ANC councillors' constitutional right to participate in the business of the Council.

In granting the declaratory relief, Cloete AJ rejected Brummer's argument that the dispute was moot. Cloete AJ held that the dispute was an "existing or live controversy". According to Cloete AJ, Brummer's insistence on his entitlement to apply the rules in a "mechanical and autocratic manner", as well as the release of a series of "one-sided and partisan" press statements, "the probabilities are that he will continue to exercise his powers as Speaker in this manner, thereby infringing the constitutional right of [the ANC councillors] to participate in the business of the Council and to enjoy free political expression at its meetings". 

Conclusion

It is a matter of grave concern that the DA/COPE coalition has allowed Brummer to embark on this frivolous litigation at the taxpayers' expense in an ill-advised effort to justify his authoritarian and unconstitutional conduct. We are reminded that the DA/COPE coalition decided that the municipality would fund Brummer's application. In contrast, the executive mayor refused to authorise funding of the ANC councillors' defence, as provided for in the Municipal Finance Management Act. As a result, the ANC councillors had to fund their defence from their own pockets. Fortunately, the Justice and Equality Fund stepped in to assist the ANC councillors as their funds were drying up.

As a direct result of Brummer's arrogant and self-serving conduct, the ratepayers of Bitou - over and above funding Brummer's legal team to the tune of approximately R 600 000 - now face a cost order, which may be in excess of R 500 000.

Little over a month ago, the executive mayor, cllr. Booysen, assured Bitou ratepayers that the "responsible councillors" would be held liable for the costs of this application.

But, a week has passed since the ruling of Cloete AJ. In stark contrast to the slew of press statements issued by Brummer and Booysen during the court proceedings, we are now met with just a stony silence.

According to the ANC councillors' attorney of record, Mr. Hardy Mills, Brummer rebuffed an approach in July to settle the matter on the basis that each party pays their own costs. In an email addressed to Mr. Mills, Brummer said that he was too busy to meet and insisted on proceeding with the litigation. As Brummer explained: "in for a penny, in for a pound".

We call on the DA/COPE coalition to account to the Bitou ratepayers as to who will foot the bill of Brummer's folly. More importantly, in light of Cloete AJ's ruling, the DA/COPE coalition should relieve Brummer of his duties as Speaker and elect another councillor to this position who will be able to exercise the powers of Speakers in a non-partisan and impartial manner. The community of Bitou has suffered enough divisiveness under the stewardship of Brummer. In the words of Cloete AJ, Bitou needs a Speaker who can lead Council "beyond the in-fighting... and... focus on fulfilling in good faith the mandate conferred [on Council] by their electorate, which is to serve their constituents in a manner befitting our constitutional democracy..." 

Statement issued by cllr. Phakie Mbali, Bitou ANC Chief Whip, October 5 2011

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