DA loses case to declare budget hearing unlawful after muting claims

23 October 2020 - 13:08 By Tania Broughton
eThekwini DA councillor Nicole Graham was muted during a virtual budget hearing, but the party lost its legal bid to have the May budget hearing declared unlawful.
eThekwini DA councillor Nicole Graham was muted during a virtual budget hearing, but the party lost its legal bid to have the May budget hearing declared unlawful.
Image: 123RF/STOCKSTUDIO44

The DA in eThekwini has failed in its legal bid to have its May budget hearing declared unlawful, and has been ordered to pay the costs of the application.

Durban high court judge Dhaya Pillay has ruled that the requirements of representative democracy had been met,  public participation was enabled and the virtual budget meeting held on May 2 was constitutionally compliant.

The matter came before the court as a complaint by DA leader in the council Nicole Graham that she had been “constantly muted” while attempting to deliver her budget speech.

She said the Facebook feed, which was viewed by 15,000 people, “suddenly turned off” after three hours, and just two minutes into her speech.

She said she was denied the right to participate because she had been repeatedly muted - at least nine times - and no-one could hear her.

The speaker repeatedly asked members not to mute her, “but took no real steps to address the problem or identify who was doing it”.

Graham eventually left the virtual meeting. After a break, the meeting started again and the budget was ultimately approved in the absence of DA members.

The DA initially launched an urgent application in an attempt to stop the implementation of the budget. However, by the time the matter was set down for a hearing, it had already taken place and the issue became moot.

What was ultimately before Pillay was a request for a declarator “that eThekwini’s failure to adhere to its constitutional and statutory obligations in relation to its consideration and adoption of the 2020/2021 budget is unlawful”.

DA 'prevented from submitting views'

Counsel for the DA argued it was common cause that the party had been prevented from submitting its views on the budget, that the live stream was shut down, preventing 15,000 people from participating, and that the speaker had failed to conduct the meeting in a transparent fashion and deal with the muting.

Counsel for the municipality, however, suggested the DA had not been deprived of an opportunity to make submissions, and that the speaker had made rulings regarding the mutings. 

The party was not litigating in public interest’s but in furtherance of its own party-political interests, it was suggested.

Pillay said the speaker had tried to stop the muting “and took control of the meeting”.

“While she tried to investigate, she called on the IFP and ANC councillors to address the council, and informed Ms Graham that she would have an opportunity to speak afterwards. When she recalled Ms Graham, she had left the meeting without permission.

The speaker was rational and reasonable.
Judge Dhaya Pillay

“Leaving the meeting shortly after the interruptions did not allow sufficient time for the speaker to investigate and fix the problems, which she duly did.

“The speaker was rational and reasonable,” the judge ruled.

She said all parties on the council had subsequently joined the DA in endorsing the constitutional principles governing local government. They had acknowledged  he cause of the dispute was the unauthorised meddling with the technology, and that this had been fixed during the meeting and for future meetings.

Pillay cautioned that not every violation of the constitution had to be resolved through litigation, and that negotiation and meaningful dialogue held better prospects for resolving conflict.

“This litigation does not contribute towards advancing cooperation and dialogic constitutionalism among political office bearers in the greater interests of the public they serve,” she said, dismissing the application and ordering the DA to pay the costs.

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