As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In South Africa’s constitutional system, in which political parties play such a dominant role and in which voters vote for political parties and not individuals (except for ward councillors at local government level), the danger of conflating party and state looms large. The recent move by Democratic Alliance (DA) leader, Mmusi Maimane, to take “political control of each respective government’s response” to the water crisis, is a textbook illustration of this conflation of party and state. This undermines democracy.
On Tuesday I received yet another spam text message from DA leader Mmusi Maimane about the Cape Town water crisis (all attempts to stop this spamming has so far been in vain), in which Mr Maimane invites me to “see my plan” to deal with the water crisis. Mr Maimane is a member of the National Assembly (NA), and leader of the official opposition, but he does not serve in any capacity in either the national, or in any of the provincial or local governments in South Africa.
The plan informs me that all “DA-led governments are accountable” to Mr Maimane and that he has thus taken “political control of each respective government’s response to the situation”. He also states that he has “instructed that the management of the drought crisis at the City be transferred to the Executive Deputy mayor”. The DA leader, I am informed, will also lead a “Drought Crisis Team” who will be directing and implementing the strategy of this team.
If you are a DA supporter untroubled by constitutional principle, or if you do not mind much that fundamental constitutional principles are breached for what you perceive to be a good cause, you might welcome this intervention by the DA leader in the democratic governance of the city of Cape Town and the Western Cape Province.
However, if – like me – you believe that respecting the Rule of Law matters; that democracy should not be subverted, even in a crisis; and, thus, that a political party in government (at either national, provincial or local government) should not be allowed to conflate the party with the state, you will be troubled by the intervention of a political party leader in the functions of the city and the province.
One of the advantages of a constitutional democracy is that it regulates the exercise of power and subjects the exercise of that power to very specific democratic controls and accountability. In South Africa, the ultimate accountability occurs every five years when voters decide which party to vote for, leading to the majority party (or a coalition of parties) forming a government who normally governs until the next election.
But a constitutional democracy also requires other forms of accountability in-between elections. In South Africa, the executive of a city, province, or national government is accountable to the democratically elected city council, provincial legislature, or national parliament. All political parties who obtained a minimum number of votes take part in these structures, and play a role in holding the executive accountable and overseeing its decisions.
In this way, not only the votes of those voters who cast a vote for the governing party count. The votes for minority parties also count, because the elected representatives of minority parties can take part in the democratic process (structured by the Constitution and the relevant legislation), can hold the executive accountable, and can serve as an important democratic check on the exercise of power by the majority party. In this form of democracy, all voters are indirectly given a say in how they are governed. One is not left without any voice just because you voted for a party who did not win the election.
Political parties (and especially the leadership of political parties) remain extremely important in our political system. Party bosses (elected by a handful of voters) have an outsize say in how elected representatives behave, as they have a decisive say in who is selected to represent the party in various democratic bodies and can also block recalcitrant members from being re-elected in future elections. Party bosses also have a decisive say in the policies adopted by their party and, if their party is in government, the policies of the government the party leads.
But party bosses do not have absolute power over elected representatives and may not subvert constitutional institutions (with its democratic checks and balances) by interfering in the day to day governing of the country, a province or a local authority. This is important to ensure that democracy is not subverted.
Where party bosses circumvent constitutional institutions and structures with its checks and balances and its provision for participation by all elected representatives, power is in effect placed in the hands of a few people elected by (at best) a few thousand party members at an elective conference. This robs most voters of any democratic say and is profoundly undemocratic.
It is for this reason that a conflation of party and state is intensely undemocratic.
In terms of the Constitution and the relevant legislation, the mayor of Cape Town and her mayoral committee is tasked with the management of water use in the city. They must ensure that water is used in such a way that the available water does not run out. They are held accountable by the elected members of the city council (most importantly, by members of opposition parties represented in it). After five years, they will also be held accountable directly by the voters.
When Mmusi Maimane in his capacity as leader of the DA takes over political control of the water crisis and instructs the city council on how to manage the crisis, the accountability shifts from the democratically elected representatives in the city council (including opposition members) to the undemocratic leadership of the political party who happens to be in government.
In effect, Capetonians are suddenly governed (or at least important government decisions affecting them are taken by) a party leader or leadership not directly elected by the voters of the city. And the votes of all the voters who voted for opposition parties in Cape Town are completely negated, robbing them even of the indirect say they had through their elected representatives.
This principle was affirmed by the Eastern Cape High Court in the case of Mlokoti v Amathole District Municipality and Another in a case that dealt with so called cadre deployment. In that case the court invalidated the appointment of the city manager by the Amathole District Municipality because the decision was tainted, amongst other reasons, by an instruction of the ANC Regional Secretary and the ANC Regional Executive Committee to appoint a candidate who was not the most suitable candidate for the post.
In that case the Regional Executive Committee of the ANC instructed the ANC caucus in the municipal council to appoint a candidate (who was not the best candidate) and the caucus carried out this instruction and voted in council for the candidate they were instructed to vote for. As the High Court noted: “This is not an example of democracy in action… certainly not of constitutional democracy”. The Court concluded that:
In the circumstances it is clear that the councillors comprising the ANC caucus failed to exercise the discretion vested in them at all. That abdication of their discretionary powers must result in the decision to appoint second respondent being declared unlawful and being set aside.
By imposing a “plan” on how to deal with the crisis on the Cape Town, by instructing that the management of the drought crisis at the city be transferred to the Executive Deputy mayor, and by purporting to oversee the city’s response to the crisis, the DA and its leader have robbed the elected government of the city of its ability to exercise its own discretion (one potentially tempered by the checks and balances built into the system, checks and balances in which the elected representatives of opposition parties play a decisive role).
Nothing stops Mmusi Maimane or anyone else from providing assistance to Cape Town to help with the water crisis – as long as he does not interfere with the constitutional powers of the city. If he had organised a few water trucks to provide water to the city, if he had merely added his voice to the many others calling on Capetonians to use water sparingly, or if he had quietly and without publicity (if that is not too much to ask) assisted the Gift of the Givers to provide disaster relief, he would have been perfectly within his rights. But purporting to take over the management of the water crisis when he was not elected to do so, is a classic example of the conflation of party and state.
Of course, the city is not the only structure tasked with ensuring a smooth water supply for the residents of Cape Town. The national government is tasked with the provision of bulk water to a city. It must build and maintain dams and plan ahead to ensure that the demand for water does not outstrip the supply. This it did not do either.
In terms of chapter 3 of the Constitution the city, the province and the national government must co-operate to ensure effective government in each sphere and thus must work together to ensure that Cape Town does not run out of water. Section 41(1(h) specifically states that:
All spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by fostering friendly relations; assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; co-ordinating their actions and legislation with one another; adhering to agreed procedures; and avoiding legal proceedings against one another.
There is little evidence that the city of Cape Town and the national government have complied with their constitutional duties in this regard. Instead of working together, they have been squabbling, pointing fingers and passing the buck. Just the kind of thing that you would expect of cynical politicians trying to exploit a potential humanitarian disaster.
So, what can be done? First, the governing party must ensure that its representatives in the city council (including its mayor) does its job (it cannot do the job for them as that would conflate party and state). If the mayor is not up to the task, she can be fired with a vote of no confidence. Second, the city must reach out to the national government and the national government, in turn, must reach out to the city, to work together to avert a disaster.
In short, what is needed is for the politicians to stop playing politics and to start governing. Which means, if you are that way inclined, it may be time to start praying, because the chances of the politicians actually doing their job instead of scoring cheap political points is not particularly good.BACK TO TOP