The announcement by Gauteng Premier David Makhura that he intends to place the City of Tshwane under administration goes too far in terms of South Africa’s Constitution and is likely to see him burn his fingers in the country’s courts. It is not a decision based on rationality and he has failed to allow for the due processes that are required in terms of the law.

The background to this decision is as follows: the Tshwane Municipal Council has not been functioning properly since December. The primary and core reason for this is because councillors from both the African National Congress (ANC) and the Economic Freedom Fighters (EFF) have continually collapsed the meetings either by walking out at the start of the meeting or totally absconding from attending the meeting in the first place. To be quorate, the Tshwane Council requires 108 members to be seated in the chambers — the Democratic Alliance and its coalition partners are only able to garner about 99 of these seats between them.

It is important to note that an illegal attempt to remove the speaker and take over the council took place in December. The ANC and EFF essentially hijacked a council meeting by forcibly preventing Acting Speaker Zweli Khumalo from presiding over a motion of no-confidence against Speaker Katlego Mathebe. The ANC and EFF installed their own acting speaker to deal with the motion and then removed Mathebe from her role.

The Democratic Alliance approached the courts, which subsequently set aside the outcome of the hijacked meeting pending a later court decision. The judge even expressed disdain in his comments at the fact that Khumalo was forcibly stopped from presiding over the meeting.

DA 1: ANC 0

The Gauteng MEC for Co-operative Governance and Traditional Affairs, Lebogang Maile, then attempted to place the City under administration in December as well. The reasons behind this were frivolous and after sending a formal directive to the City, the City responded, indicating why there was no basis to be placed under administration. In the end, no administrator was appointed and no further intervention was enacted upon by the provincial government.

DA 2: ANC 0

Then, in an outrageous and constitutionally flawed decision, the MEC decided that the most appropriate action would be to suspend Speaker Katlego Mathebe. He did this in terms of the Code of Conduct for Councillors, Schedule 1 of the Municipal Systems Act 32 of 2000.

In this decision against the Speaker, the MEC did not even bother to conduct an investigation and merely attempted to suspend her, illegally and without any form of evidence that she had breached the code. Meanwhile, she has conscientiously called council meetings in an effort to resolve the deadlock in council and has continually presided over these meetings with decorum. The MEC very quickly backed off from implementing this suspension after receiving legal correspondence from the Democratic Alliance indicating that he would be taken to court and that a personal cost order would be pursued against him.

DA 3: ANC 0

However, it is now worth highlighting a particular provision embedded in the Code of Conduct for Councillors.

Section 14 of this code reads as follows:

(4) The MEC for local government may appoint a person or a committee to investigate any alleged breach of a provision of this Code and to make a recommendation as to the appropriate sanction in terms of sub-item (2) if a municipal council does not conduct an investigation contemplated in sub-item (1) and the MEC for local government considers it necessary.

(5) The Commissions Act, 1947 (Act 8 of 1947), or, where appropriate, applicable provincial legislation, may be applied to an investigation in terms of sub item (4).

(6) If the MEC is of the opinion that the councillor has breached a provision of this Code, and that such contravention warrants a suspension or removal from office, the MEC may

(a) suspend the councillor for a period and on conditions determined by the MEC; or

(b) remove the councillor from office.

Why is this code important? Well, because it is clear to all who are paying attention who is responsible for the continued collapse of the council. The MEC knows who these councillors are, it has been raised with him formally via the speaker’s office and surely he has seen the chaotic scenes that have played out in council and reported in the media.

There is a video of councillors physically preventing Acting Speaker Zweli Khumalo from taking his seat during the meeting in December. There is extensive documented evidence of how the ANC Tshwane caucus leadership has deliberately undermined the work of council, collapsed council or actively abstained from attending council.

Section 3 of the Code of Conduct for Councillors is clear:

A councillor must attend each meeting of the municipal council and of a committee of which that councillor is a member, except when (a) Leave or absence is granted in terms of an applicable law or as determined by the rules and orders of the council.

So why then, has the MEC not acted against the councillors who have deliberately collapsed the Tshwane Council? Well, the answer to that is self-evident — those councillors are part of the same political organisation from which the MEC hails, the ANC.

Now the premier, alongside the MEC, has moved to dissolve the entire council. However, section 139(1)c of the Constitution is clear in describing how a provincial intervention in local government can take place:

139. (1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including… (c) dissolving a Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.

The key phrase in this provision is, exceptional circumstances: in his press briefing, the premier did not argue for such exceptional circumstances. In fact, the reasons that he gave were largely responded to by the City of Tshwane in December during the first ill-thought-out attempt by the MEC to place the City under administration through a poorly conceived directive.

How exactly are you going to argue that the municipality should be placed under administration when you have not as of yet made an attempt to discipline the councillors who have been collapsing council through the Code of Conduct for Councillors?

The premier is playing a dangerous game and he should take note of what happened in the Eastern Cape in the municipality of Makana. The state of administrative collapse in Makana was so endemic and systemic that it was placed under administration multiple times by the provincial government. However, at no point did it dissolve the municipal council.

The situation at the municipality became catastrophic, so much so that the Unemployed People’s Movement (UPM) went to court and had the court rule that the municipal council must be dissolved. The court did this because the provincial government’s repeated attempts at placing the municipality under administration had failed dismally.

Here’s the kicker though: the provincial government in the Eastern Cape is appealing against this decision as it doesn’t want the municipal council dissolved. The reason for this, as filed in an affidavit by the provincial co-operative government and traditional affairs department head, Gabisile Gumbi-Masilela, is because collapsed municipalities around the country are “the norm”.

For context, at Makana the financial recovery plans were not being implemented, the finances were a mess, garbage was piling up in the streets, the water supply was haphazard, sewage was running through the streets and many more basic service services were failing. The Eastern Cape government feels that this systemic failure over a series of years doesn’t warrant exceptional circumstances to dissolve the council. It would be laughable if it wasn’t so pathetic and sad. The state of Makana municipality most certainly warrants the dissolution of its council, but of course, its council is led by the ANC.

However, no such failures are present in the City of Tshwane, none that would support the drastic action of dissolving the municipal council. Further to that, the province has no historical record of service delivery failures that it has been tracking in the city. To the contrary, when the DA administration took over in 2016 it inherited a financial mess which through the correct implementation of a financial recovery plan resulted in an operating surplus in just a few years of good governance.

Weird how the premier of Gauteng is moving to dissolve the municipal council in Tshwane when there are other municipalities in desperate need of his attention. Emfuleni owes creditors R1.9-billion and Sedibeng District Municipality owes service providers R200-million. They are in a state of total collapse, but this doesn’t seem important right now.

The premier and MEC should tread carefully. The courts may well rule that the basis for the dissolution of the Tshwane council is unlawful. The courts may even go a step further and question why the MEC has not actively disciplined the councillors who are disrupting the sittings in terms of the Code of Conduct for Councillors. In fact, the courts might even mandate that the MEC should suspend or fire his own ANC councillors. DM