THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No: 550/2008

In the matter between:

AFRICAN NATIONAL CONGRESS                                     Appellant

and

THE MUNICIPAL MANAGER, GEORGE LOCAL
MUNICIPALITY                                                       First Respondent
GEORGE LOCAL MUNICIPALITY                    Second Respondent
HENRY JOHANNES JONES                                 Third Respondent
THE DEMOCRATIC ALLIANCE                          Fourth Respondent
THE INDEPENDENT ELECTORAL
COMMISSION                                                         Fifth Respondent
THE MINISTER FOR LOCAL GOVERNMENT
AND HOUSING, WESTERN CAPE                       Sixth Respondent

Neutral citation:
African National Congress v The Municipal Manager,
George Local Municipality (550/08) [2009] ZASCA 139 (17
November 2009)

Coram:
MPATI P, BRAND, MLAMBO, MAYA JJA, and BOSIELO
AJA

Heard:
10 SEPTEMBER 2009

Delivered:
17 NOVEMBER 2009

Summary:             Whether a municipal ward councillor’s letter of resignation from a
municipal council duly delivered to a municipal manager but
subsequently withdrawn by its author and returned to him unread
constitutes a valid resignation under Section 27(a) of the Local
Government: Municipal Structures Act 117 of 1998.

ORDER

On appeal from: Cape High Court (Irish AJ sitting as court of first
instance).

The appeal is dismissed with costs.

JUDGMENT

MAYA JA:  (MPATI P, BRAND, MLAMBO JJA, BOSIELO AJA
concurring)

[1] This appeal turns on whether a municipal councillor’s
resignation letter, which is delivered to a municipal manager but is
subsequently withdrawn by its author and returned to him unread,
constitutes a valid resignation for the purposes of s 27(a) of the
Local Government: Municipal Structures Act 117 of 1998 (‘the
Act’).

[2] The appellant challenges a refusal by the Cape High Court
(Irish AJ) of its application for various forms of relief based on its
contention that the seat occupied by the third respondent, Mr
Jones, as a ward councillor of the fourth respondent, the
Democratic Alliance political party (‘the DA’), in the council of the
second respondent, George Local Municipality (‘the municipality’)
became vacant consequent to his resignation from the municipality

and as a member of the DA. The appeal is with the leave of the
court below.

[3] Despite the substantial conflict which mired the background
facts of the matter especially in relation to Jones’ motives for
resigning and the events surrounding such resignation, those
relevant to the central dispute were not in real contention. On an
application of the principles set out in Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd1 these facts may be summarised as
follows. The case arose in the aftermath of the last parliamentary
floor crossing2 window-period in September 2007. At the time, the
DA controlled the municipality, in alliance with various smaller
political parties, by a slim majority of 18 seats, one which was held
by Jones, whilst the appellant held the remaining 17 seats. It
appears that there were tensions within the DA which resulted in
some of its members resigning and others being suspended or
expelled from the party.

[4] Jones was one of the disenchanted DA members because
promises previously made to him on behalf of the party to advance
his political career had not materialized. He intended leaving the
DA to join the appellant and had submitted the requisite notice to
the appellant for filing with the Electoral Commission.3 His
imminent departure from the DA would obviously upset the

1 1984 (3) 623 (A) 634E-635C.
2 The Constitution of the Republic of South Africa Fourth Amendment Act 18 of 2002, which
was later repealed by the Constitution Fourteenth Amendment Act and Constitution Fifteenth
Amendment Acts of 2008, created the controversial floor crossing system which allowed
members of parliament and provincial legislatures and local government councillors during
certain periods, subject to specific conditions, to switch their allegiance and take their seats
with them from one political party to another.
3 Established by s 181 of the Constitution of the Republic of South Africa, 1996 and the
Electoral Commission Act 51 of 1996.

balance of control in the municipality and was, seemingly, a matter
of great concern to the relevant parties.

[5] On 26 March 2008, the municipal manager, Mr Africa, found
a sealed letter on his desk which his receptionist said she had
been told, presumably by its courier, was Jones’ resignation as the
DA’s ward councillor from the municipality’s council. According to
the municipal manager, he did not read the letter because he had
to attend an imminent council budget meeting. He further believed,
admittedly erroneously, that the Act entitled him to a seven-day
period within which to process the resignation and that the matter
was therefore not urgent. Thus, the letter remained unattended
until noon on the following day when he received a telephone call
from another DA ward councillor, Mr Londt, informing him that
Jones had changed his mind about the resignation and would fetch
his resignation letter shortly. Indeed, Jones arrived at his office
soon thereafter, in Londt’s company. He then gave Jones his
letter, unopened and unread, in the belief that he was entitled to
withdraw his resignation as the resignation had not yet been
declared to the Electoral Commission in terms of the relevant law.
Jones opened the envelope in his and Londt’s presence, identified
its contents as his resignation letter and left with it without showing
it to him.

[6] At a DA meeting held later that day which the municipal
manager attended, Jones produced the letter and informed those
present that he had resigned impulsively, actuated by emotional
pressure, and regretted the act. In the letter, which according to
Jones was prepared for him by Pastor Smart and Inspector Ryk

but was signed by him, he resigned from both the DA as its
member and as a municipal council member with immediate
effect.4 The letter indicated that its copies would be sent to a Mr de
Swart, the municipality’s executive mayor and the Electoral
Commission but, as it turned out, no such copies were sent.

[7] In view of Jones’ explanation and express wish to remain a
member of the DA, the party meeting resolved not to take the
matter further. The manner in which the municipal manager had
dealt with the issue drew the ire of the appellant’s Southern Cape
branch and the provincial minister for Local Government and
Housing. On 31 March 2008 Jones wrote another letter to the
municipal manager, formally withdrawing his resignation from the
municipal council.

[8] In the court below and before us, the appellant contended,
principally, that in terms of s 27(a) of the Act Jones’ seat became
vacant as a matter of law once his letter of resignation was
delivered to the municipal manager who was, in any event, aware
of the letter’s content. It was argued that to deny a resignation by
reason of the municipal manager’s failure, whether deliberate5 or
negligent, to read the resignation letter would jeopardise certainty
of practice in municipalities. Further, this could expose municipal
managers to the risk of political interference to protect an

4 The original text was in Afrikaans and read:
‘Geagte Heer
Re: BEDANKING AS RAADSLID
Hiermee dien ek my bedanking in as raadslid van die George Stadsraad en Demokratiese
Alliansie met onmiddelike effek.’
5 The bona fides of the municipal manager, a high-ranking DA member, in failing to read the
letter, allowing Jones to retrieve it and subsequently joining forces with Jones in defending the
application, was a matter of great contention for the appellant.  So was Jones’ sudden
appointment to the mayoral committee on 31 March 2008.

incumbent majority which might have appointed them to the
position as in the present case, so the argument went. Another
contention advanced on the appellant’s behalf was that Jones’
membership of the DA simultaneously ceased with the delivery of
the resignation letter by virtue of clause 3.5.1.3 of its federal
constitution which proclaims cessation of membership when ‘a
member declares his or her resignation or intention to resign from
the party or intention to join another party’.6

[9] The relief sought by the appellant was thus aimed at
compelling the municipal manager to acknowledge that Jones had
resigned from the municipal council and to declare a by-election to
fill the council seat supposedly left vacant by such resignation in
accordance with s 25(1)(d) and (3) of the Act.7 Its basis was that
the municipal manager’s acquiescence in Jones’ withdrawal of his
resignation by returning his resignation letter to him and his failure
to declare a vacancy so that a by-election to fill Jones’ seat could
be called, conduct which the appellant contended was unlawful,
constituted administrative actions reviewable under s 33 of the
Constitution and the Promotion of Administrative Justice Act 3 of
2000.

[10]  The court below dismissed the application on the finding that
the resignation letter would have to be read by its intended

6 The appellant’s initial reliance on clause 3.5.1.1 of the DA’s Constitution, which provides for
the termination of membership when the member submits his or her written resignation from
the party, was abandoned in view of the DA’s denial of receiving Jones’ resignation.
7 These provisions of s 25 respectively provide:
‘(1)(d) A by-election must be held if a vacancy in a ward occurs.
…
(3)(d) The municipal manager of the municipality concerned, after consulting the Electoral
Commission, must, by notice in a local newspaper, call and set a date for the by-election,
which must be held within 90 days of the date on which the vacancy occurred.’

recipient to become effective, which did not occur. The appellant’s
reliance on the provisions of the DA’s federal constitution also did
not find favour with the court. In its view, Jones had not declared
his resignation as contemplated by such provisions. Nor could the
appellant seek declaratory relief regarding Jones’ membership of
the DA as it was a private, contractual issue between Jones and
that party.

[11]  Section 27 governs a councillor’s vacation of office and, in
subsec (a), decrees that ‘[a] councillor vacates office during a term
of office if that councillor resigns in writing’. A resignation must be
effective immediately or from a specified date. Being a unilateral
legal act, it does not need to be accepted by the intended recipient
to be so effective.8 But, it must be unequivocally communicated to
the other party to be effective, unless there is a contrary
stipulation.9 The provisions of s 27(a) require more: that the notice
of resignation should be communicated in writing. The reason for
that, in my view, is not far to seek and it is to provide certainty.

[12]  As observed by the court below, a ward councillor’s vacation
of office from a municipal council has serious implications of public
significance for a local authority as it impacts various statutory
provisions relating to quora and composition and requisition of
meetings. For example, s 160(3) of the Constitution (and s 30(1)
and (2) of the Act) requires a majority of municipal council
members to be present at a council meeting before a vote can be

8 Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) 954A-B.
9 Schuurman v Davey 1908 TS 664; Jaffer v Falante 1959 (4) SA 360 (C) at 362F-363E;
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA) paras 28 and
29.

taken on any matter and a determination of questions before such
council by majority vote. In terms of s 160(4), the council may not
pass a by-law without notice to all councillors. Furthermore, a
municipality is bound by strict statutory imperatives when a
vacancy does occur. As indicated above, s 25 of the Act
prescribes that a by-election be held, within strict time frames, and
enjoins the municipal manager, after consultation with the Electoral
Commission, to set that process in motion. Thus, a set
composition of a municipal council’s membership is critical for its
effective and orderly functioning and such composition must be
readily ascertainable at all times.

[13]  The questions which then arise in this matter are whether
Jones resigned as a municipal councillor and, if he did, whether
the municipality was advised of such resignation. That he
expressed the intention to resign was not disputed, correctly so in
my view. What was contested was whether or not such intention
was communicated or conveyed to the mind of the municipality. It
was argued for the appellant that mere delivery of the resignation
letter at the municipal manager’s office sufficed and that in this
case the municipal manager was, moreover, aware of the contents
of the letter. On the other hand, the respondents contended that
the appellant’s first hurdle was that the proper party upon whom
the notice should have been served was the Speaker of the
council as its chairperson, not the municipal manager. It was
argued further that even if the municipal manager was the proper
recipient, he had to read the notice to be informed of the
resignation for purposes of s 27(a).

[14]  Regarding the question of a proper recipient, the legislature
has not identified the party within the municipal council upon whom
the resignation notice must be served to be effective. It seems to
me that there may well be a strong case for the submission that
the municipal manager is such a party considering the functions
and powers of this functionary who is the administrative and
accounting head of a municipality.10 These duties include
managing
communications
between
the
municipality’s
administration and its political structures and political office
bearers. It is the municipal manager who is statutorily tasked to
attend the immediate consequences of a councillor’s vacancy. In
addition, notification of a councillor’s resignation has historically
been given to the municipal manager’s counterpart, the town clerk,
under the Act’s predecessor, the Municipal Ordinance 20 of 1974
(the Ordinance),11 which previously regulated municipalities.
According to the affidavits, this practice seems to have carried
over to the Act’s tenure, to resignations recently preceding Jones’.
But, regardless of these strong indicators, I will assume without
deciding that here the municipal manager upon whom notice of the
resignation was served was indeed the proper recipient of such
notice.

[15]  What meaning to ascribe to the term ‘communicate’ in the
present context? The Shorter Oxford English Dictionary defines it
to mean ‘the imparting, conveying or exchange of ideas,
knowledge, etc. (whether by speech, writing, or signs)’. Dealing
with a matter involving a legal act analogous to a resignation, a

10 Section 82 of the Act and s 55(1) of the Local Government: Municipal Systems Act 32 of
2000.
11 Section 26(1)(b).

cancellation of a lease agreement, in Swart v Vosloo,12 this court
held that absent an agreement to the contrary, a party to a contract
who exercises his right to cancel must convey his decision to the
mind of the other party to bring such cancellation into effect.13 I see
no reason why this principle should not apply with equal force to a
resignation which is also a cancellation of a contract.

[16]  That said, a written communication can, in my opinion,
effectively be conveyed to its recipient’s mind only by its reading.
Here, the municipal manager did not read the resignation letter.
The fact that he may have been told what it purportedly contained
is completely irrelevant. Furthermore, it must, in my view, be
considered that the Ordinance similarly made provision for the
vacation of a councillor’s office and provided for a vacancy in the
office of a councillor when, inter alia, ‘his written resignation [was]
received in the office of the town clerk’.14  Mere receipt of the
resignation notice therefore sufficed for purposes of these
provisions. Notably, s 27(a) is worded differently and says nothing
at all about receipt. I find this a significant departure which must
have been deliberate on the part of the legislature. In my view, the
legislature would have stated expressly as it did in the Ordinance
that receipt of a resignation notice by a municipal council suffices
for a councillor’s resignation to take effect if that was its intention.

[17]  I conclude, therefore, that it was imperative for the municipal
manager to read Jones’s letter for his resignation to come into

12 1965 (1) SA 100 (A) at 105G.
13 See also Miller and Miller v Dickinson 1971 (3) SA 581(A) at 581H-588A; Noble v
Laubscher 1905 TS 125 at 126.
14 Section 26(1)(b).

effect. Whilst one may have some sympathy with the appellant’s
fears of possible manipulation of such official in the manner
suggested above, there is no indication at all in the papers that the
municipal manager refused or failed to read the letter for any
reason other that the plausible ones he proffered ie that he had
other pressing municipal business to attend and thought he had
ample time within which to process it. This finding, in my opinion,
dispenses with the need to consider whether or not the municipal
manager had the authority to allow the withdrawal of the
resignation letter (as there was no actual resignation from the
municipal council) and whether Jones resigned from the DA. The
appeal must accordingly fail.

[18]  In the result the appeal is dismissed with costs.

______________________
MML MAYA
Judge of Appeal

APPEARANCES:

For appellant:
D Borgström

Instructed by:
Erleigh & Associates, Cape Town

Van der Merwe & Sorour, Bloemfontein

For 1st, 2nd and
3rd respondents:
SP Rosenberg SC

Instructed by:
Nico Smit Attorneys, Cape Town

Honey Attorneys, Bloemfontein

For 6th respondent:
State Attorney, Cape Town

State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
17 November 2009

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed an appeal against the judgment of
the Cape High Court. The SCA held that a resignation letter tendered to a municipal
manager of the George Local Municipality by a Democratic Alliance party ward
councillor did not constitute a valid resignation for the purposes of s 27(a) of the
Local Government: Municipal Structures Act 117 of 1998 because it had been
returned to its author, at his request, before the municipal manager read it and had
thus not been communicated to the municipality.