Controversial Durban ‘gagging’ by-law put on hold...for now

123RF Stock Photo
123RF Stock Photo

Amid controversy and claims that it was unconstitutional‚ the eThekwini municipality’s full council decided on Thursday not to approve a controversial set of rules that will effectively ban the public and the media from attending certain meetings and accessing certain information.

The decision to defer the adoption of the proposed Rules of Order Amendment By-law was taken at a full council meeting at the Durban city hall after a recommendation by ANC councillor Mondli Mthembu.

This comes after opposition parties had voiced their concern about some aspects of the proposal‚ and also contended that the by-law was unconstitutional‚ impractical and unfair.

During a heated full council meeting‚ the DA threatened to take legal action against the city if the contentious by-law was adopted. The DA also claimed that some councillors had been given the amended document on Wednesday and others on Thursday — which meant not every councillor had enough time to peruse it.

DA caucus leader Zwakele Mncwango said the country’s constitution guaranteed everyone a right to freedom of expression‚ including the freedom of the press and the public. He accused the ANC of trying to deny the public access to information through the media with the proposed by-law.

“The media is here to inform the stakeholders of the municipality and the public is the main stakeholder. We can’t sit here and deny the public the right to know‚” he said.

IFP councillor Mdu Nkosi accused council speaker William Mapena of being selective in quoting the constitution‚ saying he had not quoted a section which allows “a meeting to be conducted in an open and transparent manner‚ so that as IFP we can’t support this by-law in this current form“.

According to the by-law‚ the council may close its meetings to the public and the media if:

- There may be disclosure of confidential information regarding any person to the public;

- Any investigation‚ report or internal audit report which in the course of consideration could be compromised by its public disclosure; and

- There may be disclosure of trade secrets of the municipality or financial‚ business‚ scientific or technical information which is likely to cause prejudice to the business or interests of the municipality.

But in a statement issued by the municipality after Thursday’s meeting‚ it said the proposed by-law does not ban the public and the media from attending any of its meetings. The municipality‚ however‚ said the by-law was aimed at ensuring that the council’s rules and orders are kept updated and relevant to its business and proceedings.

“It in no way intends to discourage the public or media from attending and reporting on meetings‚” said the municipality’s head of communications‚ Tozi Mthethwa.

She said the by-law has also been amended to provide for the order of business for a special meeting‚ to allow the speaker to make a ruling in the event of an unseen eventuality and to provide a structure for the removal of a person from a meeting where such a person is directed by the speaker to leave.

It also extends the types of conduct which are not permitted by councillors‚ officials and the public at meetings and to provide the speaker with guidance when considering an application for an urgent motion.

But the DA said the amendments seek to allow increased power to the speaker and committee chairs‚ shut down debate and create broad and confusing provisions.

Said Mncwango: “The proposed amendments themselves are not in accordance with the constitution. They would violate Section 16‚ which protects freedom of the press‚ Section 32 which relates to access of information‚ Section 152 which provides for democratic and accountable local government‚ and Section 15 which allows for freedom of opinion. This is accordingly a very serious matter that deserves due regard and attention.”

He said the DA will stand up for Durban residents and the constitution and “will not allow the law to be ignored“.

The council is expected to meet again in the last week of November.

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