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24 March 2017 10:06 (South Africa)
Opinionista Pierre de Vos

You Get a Coalition! The new dolus eventualis

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

It feels a bit like Oprah Winfrey has been dishing out presents to South Africans: “You get a coalition! And you get a coalition! And you get a coalition!” But because most South Africans outside of the Western Cape are not used to coalition governments, I have been asked many questions about how such coalitions will be established, and what happens if no coalition can be agreed on. As is often the case, understanding the applicable legal provisions will be crucial when governments are formed in hung councils. Let’s have a closer look.

In the coming weeks, provisions of the Local Government: Municipal Structures Act which govern the formation of governments at municipal level may become the new dolus eventualis, with members of the public poring over previously obscure legislative rules to determine whether party A, B and C will be able to form a coalition government in a specific municipality or metro council or whether party D, E and F has the power to block them from forming a government.

I have no knowledge of the nature of the negotiations taking place between different political parties in the various municipalities and metro councils where no party has obtained an outright majority of seats. In any case, if the forming of a coalition government in the City of Cape Town in 2006 is anything to go by, we should take everything political parties say in public about coalition-making in the next two weeks with a pinch of salt. (You can read Gareth van Onselen’s long but fascinating article on the Cape Town process in an article published earlier this year in Business Day.)

But, whatever is happening behind the scenes, parties will have to get good legal advice about the options open to them at the first meeting of the newly elected councillors.

As I explained last week, parties have 14 days from the final announcement of the election results to try to cobble together a coalition government. Even if parties cannot agree on who will form a coalition and even when no party can muster an outright majority, the council must meet within 14 days and at this meeting it must attempt to elect a speaker and a mayor.

If the metro or municipality is governed by an executive mayor system, then the election of a speaker and an executive mayor is all important in forming a government as the executive mayor chooses an executive mayoral committee (much like the President chooses a Cabinet).

Section 30(1) of the Local Government: Municipal Systems Act requires that a “majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter”. This means unless a majority of the total number of elected councillors are present at the first meeting, no vote can be taken on who to elect as speaker and executive mayor.

While this means that while a large party (like the DA or the ANC) that did not obtain a majority of seats on a council will not be able to stop the election of a speaker and a mayor by boycotting the first council sitting, a coalition of parties that obtained more than 50% plus one of the seats could do so.

However, voters may punish such obstructionist behaviour by parties that choose to destabilise the municipal government rather than allow for some or other government to be formed that is not to their liking. I therefore suspect that it is probably not in the interest of a group of parties who hold a majority of seats on a council to prevent the election of a speaker and an executive mayor from happening by boycotting its sittings.

In terms of section 35(1) of the act, if a municipal council does not “have enough members to form a quorum for a meeting, the MEC for local government in the province must appoint one or more administrators to ensure the continued functioning of the municipality”. As I read this section, it does not apply when councillors have been elected but do not attend some meetings. It only applies when, objectively speaking, more than half the seats on the council are vacant because of resignations or deaths.

If more than half the councillors attend the first meeting (thus forming a quorum) the election of the speaker and then the executive mayor will proceed. To elect a speaker and a mayor a majority of the councillors present must vote for the winning candidate. Section 30 of the act makes clear that you do not need the support of the majority of all councillors to get elected. You only need the support of a majority of the councillors present at the meeting where the speaker and mayor are to be elected.

This means if a quorum is achieved and more than 50% of the councillors attend the first meeting, the council will in normal circumstances be able to elect a speaker and a mayor – even if one of the large parties boycotts the first meeting and even if no coalition agreement was reached before the meeting.

Once the speaker is elected, it basically gives the coalition of whom the speaker is part an extra vote as section 30(4) of the act states that “[i]f on any question there is an equality of votes, the councillor presiding must exercise a casting vote in addition to that councillor’s vote as a councillor.

However, this provision does not apply to the election of the executive mayor and, as I explained last week, if after the second meeting the most popular two remaining candidates for mayor obtain the same number of votes, a coin toss will determine who becomes the executive mayor.

All these provisions are aimed at ensuring that in almost all cases a government will be formed at the first meeting after the election. As long as a majority of councillors attend that meeting, somebody will be elected as speaker and mayor – unless so many councillors abstain from voting for any of the two candidates that no candidate obtains a majority of votes of those present at the meeting.

A party that holds the balance of power in a hung council could in certain circumstances therefore prevent the formation of any government if it attended the meeting but its councillors voted but spoiled their ballots – unless, say, the second largest party decides to support the candidate of the largest party for mayor (without agreeing to a coalition with the largest party) in order to allow a minority government to be formed.

This means that it may be counterproductive for any party that may wish to thwart the election of a mayor or speaker to boycott the first meeting as this would make it easier for a large party to obtain a majority of votes of those present for its candidate for speaker and mayor.

If a group of parties form a coalition, they will agree on who to elect as speaker and executive mayor and how many seats each party in the coalition will have on the mayoral committee. If this happens, the council will then be able to govern that municipality or metro accordingly and hopefully in a relatively stable manner.

However, if no agreement can be reached between parties to form a coalition government, this may lead to the forming of a minority government. In such a case the speaker and mayor will be elected by a majority of those present at the first meeting, with some of the parties who voted for the speaker and mayor doing so without agreeing to go into a coalition with the party of the executive mayor.

Such minority governments can be tricky to manage and governing the municipality will become very difficult to do.

This is because decisions about the passing of by-laws, approval of budgets, imposition of rates and taxes and the raising of loans can only be taken by the majority of the total number of councillors. A simple majority of councillors present at a quorate meeting will not suffice to pass any of these measures.

The minority government would therefore have to negotiate with all parties each time it wishes to pass any of these measures. Smaller parties would then be able to hold a metaphoric gun to the head of the governing party to force it to change the budget or by-laws.

For example, if the EFF (along with other smaller parties) decided to support the DA candidate for mayor of Johannesburg, but refused to go into a coalition with the DA in Johannesburg, the EFF could force the DA government to make the budget more pro-poor in return for supporting the budget vote. This would have to happen each year when the budget is passed.

If the council is unable to form even a minority government (for example, because a majority of councillors present continue to refuse to vote for any candidate for speaker and executive mayor, and rather abstain), then the MEC for local government is empowered to intervene in terms of section 139 of the Constitution. Section 139 allows such an intervention if the municipality “cannot or does not fulfil an executive obligation in terms of the Constitution”.

The council cannot dissolve itself within the first two years after an election has been held. However, in “exceptional circumstances” (for example, where a majority of councillors present at consecutive meetings refuse to vote for candidates for mayor or speaker and the local government cannot be formed) the MEC may, in terms of section 139(1)(c) of the Local Government: Municipal Systems Act, dissolve the council in certain narrow circumstances.

This can only occur after any other intervention taken in terms of section 139 of the Constitution “has not resulted in the council being able to fulfil its obligations in terms of legislation” and after the MEC has obtained the permission of the Minister of Local Government (Des Van Rooyen) and after notice of that dissolution has been tabled in the National Council of Provinces and that council has approved the dissolution.

The MEC at first will issue a directive to the municipal council, describing the extent of the failure (in this case, a failure to form either a coalition government or minority government) and stating the steps to be taken to rectify it (for example, instructing the council to hold another meeting to try to elect a speaker and a mayor).

Once these steps have been concluded, it may become necessary for the MEC to dissolve the council because it is unable to form either a coalition or minority government through the election of a speaker and an executive mayor.

The MEC will then have to appoint an administrator to govern the municipality, and then a new election will have to be held within 90 days from the day the council was dissolved. To stress the point: this could only occur in exceptional circumstances, which would be when a majority of those present at the first and subsequent council meetings fail to vote for one or other candidate as mayor and speaker.

Another wild-card option is that the MEC in a province is permitted by section 16 of the act to change the executive mayoral system to an executive committee system.

This would require the MEC for local government first at the commencement of the process to amend the system, to give written notice of the proposed amendment to organised local government in the province and any existing municipalities that may be affected by the amendment. The MEC would also have to consult organised local government in the province; and the existing municipalities affected by the amendment, before doing so.

A change to an executive committee system is significant as it provides for a forced power sharing agreement between all parties represented in a municipal council in an executive committee in proportion to the seats held by each party in the council. To simplify slightly, this executive committee, comprising the parties in council in proportion to the number of seats they hold in council, will wield power in a similar manner than an executive mayor would otherwise wield power in an executive mayoral system.

If the party in power at provincial level approves such a change to ensure forced power sharing between the parties in order to prevent being entirely excluded from government, it may rob a potential coalition government of the power to govern in terms of a mayoral system. This might be seen by voters as a power grab and as anti-democratic and may well lead to the party governing the province being punished at the next election for being power hungry.

It nevertheless remains an option. But even an executive committee will cause problems, because the council will still have to elect a mayor from among the members of the executive committee – although the mayor will have far fewer powers than the executive mayor in terms of the executive mayoral system.

As this article makes clear, there are many permutations for political parties in hung councils to take into account as they prepare for the first meeting of the municipal council. Should it try to form a coalition government with other parties? If not, should it attend the council meetings to ensure a quorum for the election of a speaker and mayor, and if it does, should it vote for the speaker and mayoral candidate of party X or Y or should it abstain from voting?

If councillors are present at the council meeting and they abstain from voting it may lead to none of the two remaining candidates for speaker or mayor obtaining a majority of votes of those present, which would make it impossible to form a government. If they are not present at the meeting, it may make it easier for one or more of the other parties to form a minority government.

When deciding what to do, any rational political party will take into account two distinct considerations. First, they must decide what course of action will bring them the most influence in the municipal government. Second, they must ask what their voters would want them to do and whether they will be punished for taking a specific course of action.

In the next two weeks we will see which, if any, of the political parties involved in hung councils are capable of weighing up these interests in a rational manner. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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