Coalition politics and law: The fight over Tshwane

ANALYSIS

The bunfight over the City of Tshwane Metropolitan Municipality will be back in court tomorrow (Thursday, May 28), with the Democratic Alliance and the Gauteng provincial government each accusing the other of using the courts for political point scoring. 

The metro has been dysfunctional since February, after the relationship between the DA and the Economic Freedom Fighters began to sour in November. The DA is seeking a court order that would force councillors back to work, even while an appeal over putting the city under administration works its way through the courts.

In an exchange of court papers leading up to the hearing on Thursday, the DA blames the ANC and EFF for the mess and the provincial government blames the DA and EFF. With coalition politics on the rise, particularly in local government, this kind of court case will probably become more common, bringing to the surface new questions of law.

After the DA and EFF’s relationship broke down, ANC and EFF councillors simply stopped turning up for meetings. The council was then unable to achieve a quorum, leaving it hamstrung. As the politicians slug it out, residents of Tshwane have borne the brunt, including a crippling water crisis in Hammanskraal that saw residents without drinkable water for months. 

Eventually the Gauteng province stepped in and put the city under administration. But the DA went to court and this was set aside.The high court also ordered councillors back to work and to attend meetings. The order was suspended until five days after the end of the hard lockdown — so would have come into effect on May 8. One day prior, on May 7, the Gauteng government appealed, which had the effect of suspending the high court order, leaving the city under the control of an administrator.

The Constitution allows a province to put a municipality under administration but only in exceptional circumstances and only for 90 days. The DA says the “convoluted” appeal by the province and the realities of appealing to the Constitutional Court means it will take far longer than that. If the province remains under administration, an “extraordinary” amount of power would be in the hands of an unelected administrator and defeat the democratic choices of the people of Tshwane. 

The DA wants the order implemented now. “If this application is not granted, the effect will be that an unelected administrator will be in total control of every function of the municipality, for an indeterminate period of time,” said DA’s Randall Williams. “There is a real risk that he will remain in control of the municipality for the bulk of the remainder of this municipal council’s term, which is due to end when the local government elections are held in 2021.” 

On the other hand, if the councillors were back at work, the democratic choices of the people of Tshwane would be respected. 

But the Gauteng province argues that, in law, an appeal suspends a court order. An order to implement pending appeal is only granted in “truly exceptional circumstance”. There is nothing exceptional about the timeline for the appeal, in this case, says Lebogang Maile, the Gauteng MEC for cooperative government. 

Maile instead accuses the DA of “using these proceedings as a political manoeuvre. The DA is not serious about having the appeal resolved on an urgent basis. It merely uses the argument to score mileage with this court.” 

Maile also said that forcing the councillors back to work will not solve the problem. “The fact that there is a court order preventing councillors from leaving council meetings does not solve the problem of dysfunctionality. Its roots are political. They lie in the collapse of the working-together agreement between the DA and the EFF. This is not a legal problem. It is a political problem.” 

Even if councillors were forced to attend meetings, the order does not require that they vote, said Maile. But attendance is what secured a quorum, not voting, said the DA. 

Williams also said the prospects of a successful appeal are remote. “The Gauteng MEC’s affidavit in the Constitutional Court directs vitriol at the applicants and at the judgment of this court and is full of righteous outrage. But it is notable primarily because of the extent to which it is based upon misrepresentations, omissions and misunderstandings of the facts …. I am advised and submit that once those misunderstandings and misrepresentations are cleared away, very little remains of the proposed appeal.”

Maile rejects the DA’s “descent into accusations of misrepresentations … there is no basis for that serious allegation”. He says this is a novel area of law and the appeal has “excellent prospects of success”. 

The case will be heard in the high court in Pretoria tomorrow.