Breaching the Constitution not always due to bad faith

What happens when after an election it transpires that no political party has obtained a majority in a particular Municipal Council? In principle this should not be a problem. A hung council can even be said to be good for democracy as different political parties will be forced to work together to form a majority and elect a Speaker as well as a mayor for that council. A multi-party government can sometimes curb the excesses of the strongest party and may ensure some internal accountability which might be lacking where a single party wins a majority of seats.

In Cape Town after the last municipal election this is what happened and a curious coalition of parties which included the ostensible liberal Democratic Alliance (DA), far right wing parties like the Freedom Front Plus (FF+) and African Christian Democratic Party (ACDP), and other parties like the Africa Muslim Party (AMP), United Democratic Movement (UDM) and United Independent Front (UIF) formed a multi-party government. The FF+ representative was elected Speaker of the Council and Helen Zille, leader of the DA was elected mayor with a slim majority. This was before Patricia De Lille had discovered the wonders of the “open opportunity society”, so at first the ID joined forces with the ANC in the council, but to no avail, as the ANC-ID coalition could not muster a majority.

But sometimes things can go badly awry. Where there is a hung council, where there is some infighting in that council and where the provincial government is controlled by a different party than any of the parties who form part of the multi-party government of the council, things can get messy.

This is neatly illustrated by the Supreme Court of Appeal (SCA) judgement of Premier of the Western Cape and Others v Overberg District Municipality and Others. The Overberg District Municipality is a hung council. The 20 member council consist of 9 members of the African National Congress (ANC), two of the National Peoples’ Party (NPP), eight of the Democratic Alliance (DA) and one of the Independent Democrats (ID). The governing majority consisted of a coalition between the nine members of the ANC and the two representing the NPP.

In terms of the Local Government: Municipal Finance Management Act (MFMA), the council must table its budget at least 90 days before it is passed. The budget needs to be passed by 1 July. When the Overberg council met on 13 April 2010, the speaker suddenly resigned. A speaker was appointed, but for that meeting only, and the budget was approved for purposes of comment and publication. This created a problem as only the speaker can call another meeting of the council. But as there was no speaker, such a meeting could not be called and the budget could not be passed.

What to do? Enter the DA MEC for Local Government in the Western Cape. In terms of section 139(4) of the Constitution:

If a municipality cannot or does not fulfil its obligation in terms of the Constitution or legislation to approve a budget or any revenue-raising measures necessary to give effect to the budget, the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the Municipal Council and — (a) appointing an administrator until a newly elected Municipal Council has been declared elected; and (b) approving a temporary budget or revenue-raising measures to provide for the continued functioning of the municipality.

The DA, which control the Western Cape Province, decided to dissolve the Overberg council, relying on this section which the MEC said left him with no other alternative. The MEC argued — based on legal advice — that he had no option but to dissolve the council as this was what section 139(4) required him do. Of course, this also meant that a council controlled by the ANC would now be dissolved for not passing a budget, a publicity coup for the DA, but there is no evidence that this played a role in the decision of the MEC.

The argument by the MEC was rejected by both the High Court and the SCA. In the SCA judgment, Brand J argued that s 139(4) empowered the MEC to take any “appropriate steps” to deal with a budget crisis like this and that such steps could not be limited to dissolving the council. The interpretation contended for by the MEC, said he SCA, would render the reference to “appropriate steps” in s 139(4) superfluous. If the provincial executive is compelled to dissolve the council what other appropriate steps could there be? The MEC therefore had wider powers to make sure that the council passed its budget and need not have rushed to dissolve a council which happened to be controlled by the ANC coalition.

Besides, said the SCA, the MEC’s argument pre-supposes that the council’s failure to approve a budget is invariably attributable to incompetence or recalcitrance.

The invalidity of the assumption is demonstrated by the very facts of this case. In this case the council was both willing and able to approve the budget timeously but it was prevented from doing so by factors beyond its control. . . In these circumstances it seems not only inappropriate but downright absurd not to allow the council to approve the budget, which has already passed through all the preliminary procedures, but to dissolve the council instead. Of course, one can think of examples of even more glaring absurdity, for instance where the budget was in fact approved, but one day late. What the argument amounts to is that, though the extreme measure of dissolution may be nonsensical in a particular case, it is dictated by the necessity to set an example for others who are indeed recalcitrant and incompetent. My short answer is that I cannot ascribe that intention to our Constitution.

Brand J pointed out that the MEC had therefore misconstrued his powers when he dissolved the Overberg council and that the MEC had therefore offended the principle of legality which is an aspect of the Rule of Law. By deciding to dissolve the council without considering a more appropriate remedy, the Western Cape cabinet had offended the provisions of s 41(1) of the Constitution which requires all spheres of Government to respect the constitutional status, powers and functions of Government in other spheres and ‘not [to] assume any power or function except those conferred on them in terms of the Constitution’.

Intriguingly, the SCA did not state explicitly that the MEC could call the council together to force it to elect a new speaker and then to adopt the budget. Our law is silent on what happens if there is no speaker for a council and whom could call a meeting of that council where the council had no speaker. This seems to be a lacuna in our law which needs to be addressed. Meanwhile councils all over South Africa will learn from this case that they cannot elect a speaker for one meeting only as the speaker plays a rather pivotal role in calling meetings of a council.

The case also illustrates that sometimes a government breaches provisions in the Constitution not because it is wilfully disrespectful of the Constitution, but because it received the wrong legal advice. That is exactly why the courts are there to declare such actions invalid. Where this happens it does not necessarily mean that the party in government disrespects the Constitution – it merely reminds us that reasonable people (of whom some might even be lawyers) can sometimes disagree about the correct interpretations of the provisions of the Constitution.

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