As of next week – 22 June 2020 – the state of local governance in the City of Tshwane is going to reach a constitutional crisis. Currently, the City is being managed by administrators who have been deployed from the ANC provincial government, after the decision was taken to dissolve the municipal council on 5 March. This was later affirmed by the National Council of Provinces (NCOP) on 20 March, the date on which the dissolution then took effect. In terms of the Constitution, an election date must then be set within 90 days of this decision.

As of next week, the 90 days that are allowable for the administrators to stay in office in Tshwane would have expired. Further to that, there is no provision in the Constitution which provides for extending their term in office by more than 90 days. This matter is simply not contestable and was recently affirmed by the North Gauteng High Court in its judgment on the Democratic Alliance’s section 18(3) application.

To understand the implications of this requires reflecting on the series of court cases that have taken place over the last three months.

When the City of Tshwane council was dissolved, the DA took this decision to court and received a judgment in its favour indicating that there was no basis to dissolve the council, that the administrators must vacate office and that councillors in the City must be reinstated. This judgment was issued on 28 April.

The provincial government and the EFF subsequently filed papers to appeal this judgment at the Constitutional Court. In doing so, the judgment requiring the reinstatement of the council was stayed as it cannot be implemented once an appeal is lodged. The appeal dates were set to take place in September 2020. However, the DA then approached the High Court with a section 18(3) application which essentially attempts to argue that the judgment relating to the reinstatement of the council must be implemented pending the appeals. The arguments behind this application will be explained shortly.

However, in summary, the provincial government dissolved the Tshwane Council. The DA took this decision to the High Court and won. The provincial government filed appeals against this judgment which stops it from getting implemented. The DA subsequently filed a section 18(3) application to force the implementation of the judgment as the appeals would only be heard in September.

On 10 June, the North Gauteng High Court ruled in favour of the DA’s Section 18(3) application. This meant that the judgment requiring that the Tshwane council be reinstated must be implemented and the administrators must vacate office. Of course, as one might expect, before the section 18(3) judgement could be implemented, the ANC provincial government had filed papers in the Supreme Court of Appeal, appealing this ruling as well. Thus each time the courts have ruled that the Tshwane council must be reinstated, these decisions have been appealed.

The High Court accepted the DA’s arguments in the Section 18(3) application. In doing so, the court noted that while the ANC provincial government and EFF attempted to argue against the DA’s case, they did not in fact have any legal basis from which to depart. There is no provision in the Constitution which allows one to merely extend the term of the administrators past 90 days.

The crux of the argument that was presented by the DA in its section 18(3) application related to the constitutionally allowable term that administrators are to be in office while a municipal council has been dissolved. Section 159(2) of the Constitution reads as follows:

“(2) if a Municipal Council is dissolved in terms of national legislation… an election must be held within 90 days of the date that Council was dissolved…”

The emphasis here is on the word “must”. It is clear and authoritative as to what is required to ensure that local democracy is protected in the country.

The Electoral Court recently ruled that all by-elections in the country must be postponed until 18 November 2020 due to the Covid-19 pandemic. It is likely that the ANC provincial government assumed that this would merely allow the administrators to stay in office past 90 days, but it does not. While the court’s decision may be relevant to by-elections as a result of individual vacancies due to councillors vacating their seats, it cannot apply to the Tshwane municipality, which had its council dissolved in terms of the Constitution. The Electoral Court’s ruling does not supersede the Constitution. Nor is there any legal precedent in the Disaster Management act to be utilised by the government to attempt to delay the by-elections in Tshwane due to Covid-19.

Elections must be held within 90 days of the date of dissolution.

The High Court accepted the DA’s arguments in the Section 18(3) application. In doing so, the court noted that while the ANC provincial government and EFF attempted to argue against the DA’s case, they did not in fact have any legal basis from which to depart. There is no provision in the Constitution which allows one to merely extend the term of the administrators past 90 days.

This is further complicated by the fact that the appeals on the original judgment have been set down for September in the Constitutional Court. This is another critical matter as, had the DA not filed for a section 18(3), the administrators would likely stay in office until these appeals are heard.

To conclude, it is worth reflecting on a few key statements by the court:

[32] The citizens of the City have a fundamental constitutional right to be governed by those they elected. The denial of this right for longer than the constitutionally permitted 90 days would, in our view, constitute irreparable harm.

[33] If this application is granted, the councillors duly elected by the citizens of Tshwane in 2016 will be allowed to resume their rightful constitutional role, powers, and responsibilities. The rights of the voters and the autonomy of the local government will be preserved.

[34] However, if this application is refused, an unelected administrator will remain in place, accountable only to the Gauteng Executive Committee that appointed him and for a period far beyond that envisaged in the Constitution. It cannot be overlooked that the provincial government is controlled by a party that did not win the city of Tshwane municipal elections in 2016.

[35] We therefore find that irreparable harm has been established by the DA, not only to itself but also to the citizens of the City. – Judgment on Section 18(3) application DA & 3 Others vs Premier of Gauteng – Case No: 18577/20.

The challenge is that now that appeals have been lodged by the ANC provincial government against the DA’s successful section 18(3), a date still needs to be set by the Supreme Court of Appeal to hear the appeals. While the matter is urgent, it is unlikely to be heard and concluded upon before the 90-day term that began on 20 March expires.  

This could well result in the term of the administrators being extended, which would see the city enter a crisis in terms of what is legally permitted by the Constitution. DM