The Gauteng High Court on Friday, 31 July, ruled that Tshwane Council Speaker Mncedi Ndzwanana wrongly discarded 13 votes before declaring a council decision to suspend City Manager Johann Mettler.

The court ruled that the Speaker lacked the authority to determine which councillorsâ votes counted. As a result of the ruling, Mettler can return to work while the court evaluates whether the council meeting on 9 July suspending him was lawful.

According to the judgment, 92 councillors voted in favour of suspending Mettler and 82 voted against. But before announcing the result, the Speaker removed 13 votes cast by councillors who had been granted leave of absence. The court found that if those votes had been counted, Mettler would not have been suspended.

The court suspended the councilâs decision to place Mettler on precautionary suspension, ruling that he âis entitled to resume and continue in the office of city managerâ until the review application is decided.

Mettler was removed following a motion by the EFFâs Tshwane leader, Obakeng Ramabodu, who accused him of maladministration, making irregular appointments, and failing to conduct the mandatory vetting of some officials appointed to the Tshwane Metro Police Department.

Mettler was appointed as city manager in 2022 under the then mayor, the DAâs Randall Williams. Before that, he was the city manager of Nelson Mandela Bay.

The 13 excluded votes

The DA went to court last week, arguing that the Speaker acted unlawfully by refusing to count the votes of councillors who had been granted leave of absence but still attended the meeting and voted.

Acting Judge Karin Pillay found that the Speaker had gone beyond his powers.

âThe Speaker did not have the authority to determine a councillorâs eligibility to vote or to subtract the votes that were indeed cast in the execution of those affected councillorsâ mandates and duties,â the judge found.

Pillay said the Speakerâs powers âdo not, and cannot, include the power to exclude a clear constitutional mandate ... [and] the Speakerâs subtraction of the disputed votes was unlawfulâ.

The court rejected the argument that councillors who had been granted leave of absence lost their right to vote:

âPermission granted to a councillor to be excused from the obligation to attend and the constitutional entitlement to partake can never become a bar to compliance with the obligation and to exercise the entitlement.â

The judge ruled that the âmere presence of a councillor at a council meeting suffices for the councillor to partake in the meeting, including [the] ability to voteâ and that the Speaker had no legal power to decide which votes should count:

âThere simply is no means by which it can be concluded that the Speaker had a discretion of any kind to decide upon the eligibility of a councillor to cast a countable vote.â

The court found that the DA had shown enough evidence to justify an interim order. âThat applicant [the DA] has a prima facie clear right has been established in that the Speakerâs subtraction of votes was prima facie unlawful,â Pillay ruled.

She said that implementing the councilâs decisions before the review could cause harm because the city manager has important legal powers.

The court did not make a final decision on whether the 9 July council meeting was lawful. That question will be decided in the review application.

Disciplinary process will continue

In a statement on Saturday, 1 August, Tshwane Executive Mayor Nasiphi Moya (ActionSA) said the City would respect the courtâs decision. ActionSA said it resolved to vote against Mettlerâs suspension, despite the positions of its coalition partners, the ANC and EFF.

âI acknowledge the Courtâs order and respect the role of the judiciary in resolving disputes of this nature. I will comply fully with the order insofar as it directs relief against me,â said Moya.

Moya said the judgment only dealt with the interim application and not the disciplinary process against Mettler.

âThe judgment relates only to the application for interim relief and focuses primarily on the proceedings of the municipal council and decisions taken within the legislative arm of the municipality. Each respondent is entitled to consider the judgment carefully and determine the appropriate course in relation to their respective role.â

She said the disciplinary process would continue.

âThe interim order does not bring the underlying statutory process to an end. The regulations require allegations of misconduct to be investigated, and that process will continue in accordance with the law and in the interests of accountability.

âIn the meantime, the work of the City continues. My priority remains to provide leadership to the administration, ensure the continued delivery of services, and honour the commitments we have made to the residents of Tshwane.â

A âvictoryâ for residents

DA mayoral candidate Cilliers Brink called the judgment a victory for Tshwane residents.

âBy setting aside the unlawful decisions of the ANC-EFF-ActionSA coalition to suspend Tshwane City Manager Johann Mettler, the court has reaffirmed that political majorities cannot ignore the law, manipulate council processes or use municipal institutions to protect politically connected individuals,â he said.

The judgment showed the coalitionâs âreal prioritiesâ, he said.

âThe aim was to install an acting city manager at the start of the municipal financial year, gain control over the Cityâs budget and open the door to looting.â

The DA had also asked the court to overturn the suspension of the Cityâs chief financial officer, Gareth Mnisi, but later withdrew that part of its application.

The review application, which will decide whether the 9 July council meeting and the decisions taken there were lawful, has not yet been heard. DM