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ADVOCATES GROUP TWENTY ONE OPINION INRE: - ‘THE MEANING OF “A MAJORITY OF THE VOTES” (ITEM 7 OF SCHEDULE 3 TO THE MUNICIPAL STRUCTURES ACT) COMPILED FoR: COMPILED BY: MADHLOPA & THENGA INCORPORATED R STOCKWELL SC TCLITHOLE [1] Our consultant, the Speaker of the City of Johannesburg, seeks an urgent pinion on what meaning is to be ascribed to the words “a majority of the votes”, where same appears in item 7 of schedule 3 to the Local Government: Municipal Structures Act.* [2] When interpreting a document itis imperative for the document to be read in its proper context. For this reason we commence our opinion by quoting both the provisions of tems 6 and 7:- 6. ELECTION PROCEDURE ‘more than one candidate is nominated (0) vote must be taken atthe meeting by secret ballot (0). each couneillor present atthe meeting may cast one vote; and (©) the person presiding must declare elected the candidate who receives @ majority of the votes. ELIMINATION PROCEDURE (1). Ino candidate receives a majority of the votes, the candidate who receives the lowest number of votes must be eliminated ond a further vote taken on the remaining candidates in accordance with item 6. This procedure must be repeated until a candidate receives a majority of the votes. (2) When applying subitem (1), if two or more candidates each have 1 nat 17 of 1990, the lowest number of votes, @ separate vote must be taken on those candidates, and repeated as often as may be necessary fo determine which candidate isto be eliminated.” [3] Before we proceed to deal with the meaning of the words “a majonty of voles’, we believe it is ecessary to remind the reader of the process, which is, applied, when interpreting a statutory instrument. His Lordship Mr Justice Wallis, in Natal Joint Municipal Pension Fund v Endumeni Municipality? explained it as follows: - “interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory Insttument, or contract, having regard to tne context provided by reading the particular provision or provisions in tho Aght of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision ‘appears; the apparent purpose to which itis directed and the material known 0 those responsitle for its production. Where more than one meaning is possible each possibilty must be weighed in the ight of ail these factors. The process is objective, not subjective, A sensible meaning is to be preferred to one that leads to insensible or unbusinessiike resuits or undermines the ‘apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible lr businesslike for he words actually used. To do so in regard to @ statute or Statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties 72072 (a sasea scx) ‘ther than the one they infact made. The Tnevitabe point of departure isthe language of the provision ise, read jn context and having regard to the purpose of the provision and the background to the preparation and production ofthe document. [4] Following the ateve approach it is necessary, when interpreting the provisions of schedule 3 and when ascribing a meaning to the words “a majorly of votes’, to give a purposive meaning to the words used. An interpretation which renders the provisions impossible of implementation or which leads to an absurdity, ‘should be avoided. {5] Albett that the reader's immediate reaction could conceivably be that “a _mejorty of the votes” means that its the candidate who obtains the most votes, ‘such conclusion is courtered and nullified by the remainder of the provisions of item 7. The remainder ofitem 7 provides fora process of elimination to be followed. “This process must be followed untl one candidate is able to achieve the majoniy of the voles. This ineluctaby leads one tothe conclusion that ‘a majoniy ofthe votes” can only mean more than half of the votes, ie. fity percent ofthe votes plus one. [6] The above was also the meaning ascribed to the words ‘majority of the votes” in Cape Bar v Judicial Services Commission,‘ and accepted to be correct, by both parties. We however hasten to add that each legislative or other document needs to 3 Pavagraph [16] at 6OGF - 6040. S00 also Bothma-Botho Transport v S Bothms & Seun Transport 2014 (2) SA s04 SCA) paragraph [12] a 429" —H. + (2o1B}2 A SA 649 (WO) paragrapne [02] fo [104] a 471.0 £72c, see also MEC K2N for Local Governmant v Amuse Dishct Monipalty [2011] + AISA 401 (SCA) pargraph [21] at sitasa be read and interpreted on its own and in its proper context. One must be cautious to ascribe a meaning, ascribed to words in one context, to the same words used in a different context or different legistation. [7] The next question to be addressed is whether “a majority of votes" means fity percent plus one of the voles cast or whether itis fily percent plus one of the available votes. To bette explain tis question; let's say for instance there are three ‘or more candidates and none of them manages to achieve a majority of the votes. Following the elimination process, one of the candidates will then fall away - being the candidate who obtained the least voles. However and when following the next round of secret ballot votng, the party, whose candidate had been eliminated, may decide not to cast thelr votes or even ruin their votes. In such an instance the remaining candidates are likely to achieve the exact same number of votes, which they had achieved inthe previous round of voting. Ifthe majority of votes means the mejority ofthe available votes, none of the candidates will receive a majorty of the votes of the councillors in attendance. On such an interpretation minority party could conceivably hamsting and kaep the City ransom in its quest to appoint a new Mayor In our opinion such an interpretation would undoubtedly lead to an abeurd result [8] Accordingly, and in our opinion, the votes referred to in item 6(c) and 7(1) ‘must and can only mean votes validly cast° Should any party or one or more of its councillors thus attend council meetings, but refrain from voting, their attendance ‘would be rendered irelevant when calculating the majority or total ofthe votes. [8] In conclusion, we are therefore of the opinion that a majority of votes is, dependent upon the total number of valid votes cast. Accordingly, consultant must first establish the total number of valid votes cast. By dividing the total by two and then adding one, a number will be obiained, which will then constitute the majority of the votes. Such interpretation is not only pragmatic but also accords with what is required in section 160(3}(c) of the Consttution.® R STOCKWELL SC TC LITHOLE ADVOCATES’ CHAMBERS ‘SANDTON DECEMBER 2019 7 See also secon 30 of he tunipal Structures Act, which dal vith qurums and dcisions. in ubesston (Is pode for questions before a courcl to be deaded by 8 arty of me ote cae: Seton 160) - und chaptr 7 wich dels wih Local Goverment - povies thet ‘al other fusstins (baring tat prone for h sector 160(2) of fah Const) bafor 3 Municipal Gouna are dected ty manly voles eae” See in ths Togas Mikob v Armathole Dstct uniopeity 2000 (6) SA 4 (ECD) at S74E — 975B; Provincia Miser or Loe! Goverment v uatshoom Munispal Counc and Others 2015 (6) SA 115 (CC) paragraphs (22 and (23) at 20E = 1238.