Will a recent SCA judgment help to fix the political dysfunction in Tshwane?

Earlier this week the Supreme Court of Appeal (SCA) confirmed that the Tshwane City Council should resume its work, allowing it to elect a new speaker and mayor. (Tshwane has been without a mayor since February this year when Democratic Alliance (DA) mayor, Stevens Mokgalapa, stepped down in the midst of a scandal.) But because no political party enjoys a majority in the Council (either on their own or in coalition with other parties), it is unclear who will be elected as the new mayor and how stable the new city government will be, suggesting that court judgments cannot usually, on their own, fix political disfunction.

If, as reported in the media, the Tshwane City Council will meet on Friday to elect a new mayor, it is possible (but not guaranteed) that the capital city will have a new mayor by the weekend. For the past several months Tshwane has been governed by an Administrator appointed by the Gauteng Provincial Government. The appointment of an Administrator was necessitated by the March 2020 decision of the Gauteng government to dissolved the Tshwane Council.

This means that there has not been a democratically elected government in Tshwane since April. The SCA interpreted the Constitution as only allowing governance by an Administrator for a period of 90 days. During this 90 days a new council is supposed to be elected. However, because of the State of Disaster, all by-elections were suspended, so no election has been held. This resulted in the extraordinary situation in which an unelected official was set to govern a major city for an indeterminate amount of time.

From this perspective, it looks as if the High Court and SCA judgments struck a blow for democracy – despite any criticism one might have about the reasoning of the two courts. But we do not yet know what the outcome of these judicial interventions will be. I would guess that in the absence of a change of attitude by the councillors from the three largest parties in the Council, or at least some kind of agreement between the ANC and the EFF, the Council will continue to be dysfunctional and the government unstable. This is because constitutional arrangements or legislation cannot fix fundamental political dysfunction or the unwillingness or inability of political parties to reach agreement for the benefit of those who voted for them.

To understand this, we have to go back to the events that led to the dissolution of the Council. The Council was dissolved in terms of section 139(1)(c) of the South African Constitution, which provides as follows:

When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including: (c) Dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared, if exceptional circumstances warrant such a step.

Earlier this year, in Democratic Alliance and Others v Premier for the Province of Gauteng and Others, the High Court pointed out that the Council had failed to elect a new mayor  (despite several attempts) because of the inability of the municipal council “to convene and run council meetings to transact and take necessary decisions in line with its responsibilities”. The court nevertheless held that this was not sufficient reason for the Gauteng government to dissolve the Council. It thus declared the decision to dissolve the Council unlawful and ordered the Council to resume its business. The High Court squarely blamed the ANC and the EFF for the dysfunction of the Council, stating that:

This situation exists as a direct consequence of the disruption of its meetings due to the walkout from council meetings by ANC and EFF councillors thus depriving the Municipal Council of the necessary quorum. Whether done for good or bad reasons does not alter the fact that the walkouts have rendered the City powerless.

The High Court also ordered an immediate implementation of the judgment, regardless of any appeal launched by the Gauteng government against the decision. It was this order to implement the High Court judgment that the SCA confirmed this week. The SCA did not consider the merits of the case – these have been argued in a separate appeal to the Constitutional Court, who will deliver judgment in a few months. But the effect of the judgment is that the Council is resurrected and that it must new elect a new mayor.

The immediate question is, of course, whether the Council will indeed be able to go ahead with the election of a new mayor on Friday or early next week. As the High Court had based its decision to invalidate the dissolution of the Council on the fact that there was another, less drastic, way to solve the problem, namely for all councillors to attend council meetings and elect a new mayor, one would think that this forces the hand of the ANC and the EFF.

Moreover, the High Court specifically ordered all councillors from the ANC and the EFF to attend and remain in attendance at all meetings of the City of Tshwane Metropolitan Municipality Council unless they have a lawful reason to be absent (as they are required to do by the relevant code of conduct). (One of the stronger grounds of appeal against the High Court judgment is that the High Court went too far when it made this order, trenching on the separation of powers in the process.)

This means the councillors will have no choice but to attend and participate in the meeting convened to elect a new mayor. (If they do not, they will be guilty of contempt of court.) But as anyone who has ever watched Parliamentary proceedings know, this does not guarantee that the election will proceed as planned. There are many procedural manoeuvres available to parties who would like to avoid the election of a mayor.

At the time of writing it is unclear what the attitude of the ANC and the EFF will be towards the election of a new mayor. After the resignation of the DA mayor in February, the two parties were very firmly opposed to the election of a new mayor, probably because they had not reached an agreement on who the candidate for mayor should be or what the terms of any co-operation (if any) between the parties should be. The parties presumable calculated that the political cost of thwarting the election of a new mayor was not as high as the political (or financial) cost of voting for a new mayor without some formal or informal agreement in place.

In the absence of agreement on a unitary candidate for the mayorship, the parties had to disrupt the mayoral election, otherwise the DA candidate could have been elected as mayor. This is because the electoral system requires the election of the candidate with a majority of the votes cast (after eliminating candidates with the fewest votes), which means a sizeable minority party cannot block the election of a mayor, even in a hung council, by abstaining from the vote. This system is thus aimed at ensuring that somebody is eventually elected mayor, even if smaller parties abstain from voting or do not attend the vote.

Assuming that the vote goes ahead on Friday, much will depend on whether the ANC and the EFF (or the DA and either the ANC and the EFF) come to an agreement to support a selected mayoral candidate. One option would be for the EFF to prop up the ANC government in the same manner that it did with the DA government after the 2016 election. Another for the DA to form a grand coalition with the ANC in the interest of stability – but pigs are going to fly before that happens. If two of the three largest parties come to some sort of agreement, their candidate will be elected as new mayor. But if the EFF abstains from voting (and the ANC and DA do not team up), the DA candidate will be elected. (The EFF could also vote for the ANC candidate without any agreement in place, but the political – and financial – cost might be high.)

Given the fact that it seems more likely that a ANC/EFF candidate will be elected mayor than that the DA candidate will be elected, the claim by interim Democratic Alliance (DA) leader John Steenhuisen in a recent press statement “that the [SCA] judgment has now given the DA the green light to immediately reinstate our government in Tshwane” seems at best disingenuous.

The SCA judgment has not given the DA the green light to “reinstate” the DA government in Tshwane. This is because there is no government in Tshwane (let alone a DA government), so there is no government that can be reinstated. What the court judgment means is that the City Council will have to elect a new mayor who will form a new government. The outcome of this election depends on which party or parties can muster a majority of votes for their candidate. Given the political lay of the land the DA looks like the least likely party to be part of the new Tshwane government.

But where does that leave us? The High Court and SCA judgments were both indirectly framed as judgments aimed at protecting the democratic choices of voters. But it remains to be seen what the effect of the judgments will be over the medium term, and whether it will help to stabilise governance in Tshwane. I am not that hopeful.

The Constitutional Court may overturn the High Court judgment in the coming months, which would automatically re-instate the Administrator and undo any mayoral election that may have occurred. But more importantly, unless there is a political agreement between two of the three largest parties to ensure the establishment of a relatively stable government, the dysfunction in Tshwane is likely to continue.

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