In the past fortnight, two meetings of the Johannesburg metropolitan council have ‘descended into chaos’, in the graphic words of Democratic Alliance (DA) leader John Steenhuisen.

This is largely because of repeated disruptions by councillors from the African National Congress (ANC) and the Economic Freedom Fighters (EFF).

Background to the stand-off

In the November 2021 local government election, ANC support across the country dropped below 50% and the ruling party lost control of Johannesburg and many other local councils. A DA-led coalition involving Action SA, the African Christian Democratic Party, the Congress of the People (Cope), the Inkatha Freedom Party, and various other opposition entities then came together to take control of some of the 66 ‘hung’ councils in which no party had managed to obtain a majority.

However, this coalition was unable to secure a majority in the Johannesburg council. The DA and its allies nevertheless won a nominal control over Johannesburg three weeks after the election, when EFF councillors unexpectedly helped vote in a DA speaker and mayor. The EFF vote was in keeping with EFF leader Julius Malema’s determination to keep the ANC out of power in Gauteng’s major metros. Now, however, the EFF seems to be working together with the ANC to paralyse the Joburg council.

Two disrupted meetings

At the council’s first meeting on 13th January 2022, the DA-led coalition planned to elect the chairpersons of various portfolio committees, along with the ‘chair of chairs’. (These positions provide incumbents with significant influence over budgets and accountability measures, while the ‘chair of chairs’ largely determines the council’s programme.)

The coalition expected the chair of chairs to be elected by a show of hands, as on previous occasions, but ANC and EFF councillors demanded that a secret ballot should instead be held. When this demand was rebuffed, the ANC resorted to what it euphemistically called ‘singing and pushing’ and brought proceedings to a halt. Its ‘pushing’ was powerful enough to hurt some councillors, prompting DA mayor Mpho Phalatse to lay charges of assault.

A second meeting was held on Tuesday 18th January, but this too was repeatedly disrupted by councillors raising frivolous objections and demanding caucus breaks. In the afternoon, ANC and other councillors (as Business Day reported) ‘stormed the council floor, raising clenched fists and singing struggle songs’, while EFF councillors taunted the DA speaker and proclaimed themselves ‘combat ready’.

Later in the day, the DA-led coalition, with the support of the Patriotic Alliance, secured the election of Cope’s Colleen Makhubele as ‘chair of chairs’. But ANC and EFF councillors then left the chamber, depriving the council of a quorum and preventing voting on the other posts.

An unrepentant ANC

ANC chief whip Eunice Mgcina, along with ANC caucus leader and earlier mayoral candidate Mpho Moerane, have denied that any violence took place. ‘No one was beaten there,’ Ms Mgcina told Newzroom Afrika. ‘I didn’t see blood on the floor’, added Mr Moerane on SAfm. There was only ‘singing and pushing’ and ‘the pushing was during the singing period’, he said.

Mr Moerane has also been quick to call the council ‘dysfunctional’ and to blame the DA for this. ‘The DA is not in control of their coalition’, he says. Despite the evidence to the contrary, he insists that the ANC is ‘committed to making the council work’ and ‘will do everything to make the council work’. He further claims that the ANC is entitled to prevail because it ‘has more councillors than any other party’. That Joburg voters decisively rejected the ANC in 2021 seems to pass him by.

What underpins the disruptions?

The ANC and EFF seem intent on preventing the DA-led coalition from making decisions, delivering services, or approving a new budget to replace the current one, which exceeds R73bn. But this paralysis will hurt residents and hamper Joburg’s capacity to keep contributing some 20% to national GDP.

The ANC and EFF are also well aware that the ANC provincial administration in Gauteng could use Section 139 of the Constitution to dissolve a dysfunctional municipal council and appoint an ANC administrator to run the city until new elections have been held.

According to Section 139, ‘when a municipality cannot or does not fulfil an executive obligation,…the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including…dissolving the municipal council and appointing an administrator until a newly elected municipal council has been declared elected, if exceptional circumstances warrant such a step’.  

This is also what senior SACP/ANC leader Jeff Radebe seemed to have in mind after the November local polls, when the ANC often found itself excluded from negotiations for coalitions to run the 66 hung councils. According to Mr Radebe, the ANC would rather wait for reruns of municipal elections in such councils than take part in coalitions.

Added Mr Radebe: ‘Legislation is very clear. If it’s impossible to have the council meeting, then the provincial government will take over that municipality…and within 90 days they will be forced to have a rerun of the elections in those municipalities.’

Staggered local elections to end dysfunctionality would greatly help the ruling party, if only because it could focus its resources on one municipal poll after another, whereas smaller political parties with more limited funding might soon run out of money. This would help the ANC regain the hegemonic control it sees as vital to the advancement of the National Democratic Revolution (NDR).

The Section 139 option has already been used in other municipal councils – and perhaps most notably in the DA-run Tshwane metro. Here, disruptions of council meetings began in 2018 but worsened sharply in late 2019 and early 2020.

In this latter period, ANC and EFF councillors repeatedly refused to attend council meetings. This left the council without a quorum and unable to function. In March 2020 the ANC-controlled Gauteng administration then used Section 139 to dissolve the council and appoint an administrator to run the Tshwane metro until new elections could be held.

The DA successfully challenged the validity of the dissolution before both the Pretoria high court and the Constitutional Court. But the latter ruling is a weak one, which will in practice help the ANC to deploy Section 139 against the failing Joburg council and other councils too.

Court rulings on the dissolution in Tshwane

The DA applied to the Pretoria high court to set aside the dissolution decision, which it agreed to do. According to the high court, ‘the most direct cause’ of the council’s inability to conduct its business was ‘the continued disruption of municipal council meetings by the ANC and EFF councillors staging walk-outs’.  

The ‘most effective’ way to overcome this paralysis was not to dissolve the council, the high court went on, but rather to ‘enforce the councillors’ statutory duty to attend meetings and to stay in attendance’ at them. The high court therefore issued an instruction (mandamus) ordering ANC and EFF councillors to do just that.

On appeal to the Constitutional Court, a majority judgment handed down by Acting Justice Rammaka Mathopo ruled that the high court had been ‘correct in finding that…the walkouts had led to the municipal council’s failure to fulfil its executive obligations’.   

Judge Mathopo also agreed with the high court that the council’s dissolution had been unlawful. This was largely because the premier’s dissolution decision had been ‘a foregone conclusion’ which ‘no amount of engagement or meaningful persuasion’ could change. In addition, the province had made no attempt to invoke the Local Government: Municipal Systems Act of 2000, under which ‘the truancy and deviant conduct of municipal councillors which hamstrung the Council could be addressed’.

The majority judgment thus set aside the dissolution of the Council. But it also set aside the high court order instructing ANC and EFF councillors to attend council meetings on pain of punishment for contempt of court. This order, said Judge Mathopo – without explaining why – could not stand as it ‘encroached on the separation of powers’.

Instead, the Constitutional Court ordered the ANC MEC for cooperative governance and traditional affairs in Gauteng to ‘appoint a person or committee to investigate the cause of the deadlock of the municipal council and to make a recommendation as to an appropriate sanction’.

The high court order had gone to the heart of the problem by setting aside the flawed dissolution order and issuing a mandamus aimed at ensuring that the Tshwane council would in future be quorate and able to make decisions.

The Constitutional Court’s ruling also set aside the dissolution order – but it virtually guaranteed the continuation of the walkouts by allowing a partisan ANC MEC to deploy a loyal cadre to investigate the conduct of ANC and EFF councillors and ‘recommend’ a solution.

The recommended remedy could, of course, be the dissolution of the council under Section 139 as the only effective way to end a political impasse. This is also what the minority judgment handed down by Judge Chris Jafta seemed to foreshadow.

In upholding the premier’s decision to dissolve the Tshwane council, Judge Jafta and two other Constitutional Court judges ruled that the ANC and EFF walkouts from council meetings were ‘a political problem that required a political solution’.  

Moreover, ‘in a multiparty system, if the ruling party is no longer able to rule effectively, a fresh election is held. A fresh mandate is sought from the voters, [as] it is their government which has lost the ability to rule. Under Section 139(1), the only pathway that leads to fresh elections is dissolution.’  

That ANC and EFF councillors might be ignoring their statutory obligations and deliberately sabotaging the Tshwane council’s operations against the wishes of most voters did not seem to figure in this judgment.  

Applying the Constitutional Court rulings

What would the ANC need to do if it wanted to act on Mr Radebe’s proposal that dysfunctional councils be dissolved and run by administrators, pending successive fresh elections in different municipal areas?

The ruling party would need to ensure dysfunctionality for a start, perhaps along the lines of what has happened in Joburg. It would also need to avoid over-hasty dissolution decisions, of the kind taken by the Gauteng premier in Tshwane, and appear more willing to solve underlying problems. Which may be why Mr Moerane is so adamant that the ANC ‘will do everything to make the [Joburg] council work’.

The ANC would also have to get the relevant provincial MEC for cooperative governance and traditional affairs to appoint a cadre to probe the cause of the council deadlock and recommend an appropriate response. That response could be dissolution, as the only effective ‘political solution [to] a political problem’, as earlier outlined.

Even if dissolution cannot be achieved, the ANC will gain considerably from any dysfunctionality in the councils now run by DA-led coalitions. Opposition parties have their best ever chance of bringing the ANC’s share of the national vote below 50% in the 2024 election. But if the councils they administer are unable to pass budgets or provide important municipal services, their credibility among voters will wither at a crucial juncture.

This makes it all more unfortunate that the sound high court ruling in the Tshwane case was set aside by the Constitutional Court and replaced by a judgment that – whether wittingly or otherwise – throws open the door to further abuses by the ANC and its EFF offshoot.

[Image: Sharon McCutcheon on Unsplash]

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Dr Anthea Jeffery holds law degrees from Wits, Cambridge and London universities, and is the Head of Policy Research at the IRR. She has authored 11 books, including People’s War: New Light on the Struggle for South Africa and BEE: Helping or Hurting? She has also written extensively on property rights, land reform, the mining sector, the proposed National Health Insurance (NHI) system, and a growth-focused alternative to BEE.