Facts

The events that led to the dissolution of the City of Tshwane municipal council are well-known and dealt with extensively in the High Court judgment. In essence, the City of Tshwane municipal council had reached a deadlock, with no mayor and mayoral committee and municipal manager. The reason was the inability of the council to convene meetings, due to disruptive councillors who staged walkouts from council meetings depriving the municipal council of the necessary quorum.

On 4 March 2020, the Executive Council for the Province of Gauteng decided to dissolve the Council of the City of Tshwane in terms of section 139(1)(c) of the Constitution and to appoint an administrator. Aggrieved by this decision, the Democratic Alliance (DA) challenged this decision in the Gauteng Division of the High Court. The High Court, on 29 April 2020, ruled in favour of the DA by declaring the dissolution decision invalid, and in so doing, reinstated the City of Tshwane’s municipal council, as discussed previously in the Bulletin. It further directed that all councillors must attend and remain in attendance of all council meetings unless they have a lawful reason to be absent, as also discussed previously in the Bulletin.   

The Gauteng Executive Council (Gauteng EC) and the Economic Freedom Fighters (EFF) subsequently challenged the High Court’s decision in the SCA, subject to it obtaining direct access to the Constitutional Court. The appeal against the main judgment was heard virtually on 10 September 2020 in the Constitutional Court, and judgment was reserved. The matter before the SCA concerned the court order putting into operation the judgment, which reinstated the municipal council of Tshwane. Thus, the appeal was not against the main judgment delivered on 29 April 2020 but about this court order.

Normally, a decision of a lower court (in this case, the High Court decision) will be suspended if it is subject to an appeal process. Therefore, the DA approached the same High Court asking for its decision to be implemented pending the appeal process. On 20 June 2020, the High Court again ruled in favour of the DA ordering that the order made on 29 April 2020, which reinstated the municipal council of Tshwane, remained in operation and must be given effect.

Issue

Against this background, the Court had to determine whether the DA met all the requirements for the interim enforcement of a judgment pending an appeal, as set out in section 18 of the Superior Courts Act 10 of 2013.

Court decision

In principle, the execution of a judgment is automatically suspended with the noting of an appeal, meaning if a judgment is subject to an appeal, the judgment cannot be carried out. As stated above, courts may however in terms of section 18 of the Superior Courts Act deviate from this common law principle. In particular, section 18 empowers a court to grant an order to give effect to a judgment pending an appeal under exceptional circumstances. For example, the DA had to establish that in the absence of the interim enforcement order, something out of the ordinary, uncommon and rare would occur. That is, the appointed administrator will be in office longer than the 90-day prescribed period. The DA had to show that it will suffer irreparable harm if the court does not so order. It further had to show that the other party will not suffer irreparable harm if the court granted the interim enforcement order. The DA contended that allowing an administrator to be in office for longer than the 90-day period goes against the constitutional scheme and, as such constituted irreparable harm - referring to an injury that is permanent or irreversible.

The Gauteng EC based its appeal on two grounds. First, it argued that the Court was wrong in finding that the interim enforcement order would not cause the Gauteng EC irreparable harm; and second, by collapsing the requirement of exceptionality with that of irreparable harm.

As regards to exceptional circumstances, the SCA upheld most of the contentions of the DA. Writing for the majority, Justice of Appeal (JA) Zondi dismissed the appeal and arguments of the Gauteng EC. For example, the Court found that the collapse of the exceptionality and irreparable harm requirements is unfounded since there is nothing that says the same facts cannot give rise to irreparable harm and exceptional circumstances. Related to the exceptional requirement, and perhaps more peculiar to municipal governance arrangements under a section 139 intervention, is the 90-day constitutional requirement governing the appointment of an administrator. In this regard, section 159(2) of the Constitution reads that ‘if a Municipal Council is dissolved in terms of national legislation, or when its term expires, an election must be held within 90-days of the date that Council was dissolved or its term expired.’

By not allowing the High Court judgment to be implemented pending the appeal would mean that the appointed administrator would have run the affairs of the municipality beyond the 90-day prescribed period. This according to the Zondi JA would be an ‘anathema to the values upon which a democratic state is founded.’ Indeed, the interim enforcement order was also directed at reinforcing the fundamental right of local citizens to be governed by those whom they had elected.

The Gauteng EC wanted the Court to find that the 90-day period requirement does not apply if a Council is dissolved in terms of section 139(1)(c) of the Constitution. Section 159(2) of the Constitution, so the Gauteng EC argued, does not refer to a dissolution in terms of the Constitution itself, since this is already governed by section 139(1)(c) of the Constitution. Section 159(2) refers to the dissolution of the council in terms of ‘national legislation’, and as such the 90-day period requirement only applies if the intervention is undertaken in terms of national legislation, so it was argued. In developing its argument further, the Gauteng EC argued that there is no national legislation that gives effect to section 139 of the Constitution.

The SCA disagreed and found the argument that the Municipal Structures Act does not apply to the dissolution decision untenable. It held that there ‘is no distinction between the dissolution of a municipal council in terms of the Constitution, and a dissolution under national legislation’. Moreover, section 139(8) of the Constitution expressly provides that national legislation may regulate the implementation of s 139(1). In this regard, sections 25, 34 and 35 of the Municipal Structures Act are legislative provisions that regulate, albeit in part, section 139(1)(c) of the Constitution. Sections 139(1)(c) and 159(2) of the Constitution thus mean that an election must be held within 90 days of the date of the dissolution of a municipal council.

Van der Merwe JA and Matojane AJA disagreed with the majority and wrote a dissenting judgment which found that an administrator’s appointment endures until a newly elected municipal council is elected, irrespective of the expiry of the 90-day period.

Discussion

The Tshwane intervention judgment illustrates that the power of one sphere of government to intervene in the affairs of another, is highly circumscribed. Procedurally, the judgment confirms that a decision to dissolve a municipal council is taken in terms of both s 139(1)(c) of the Constitution and national legislation, namely section 34(4) of the Municipal Structures Act. Simply put, there is no distinction between an intervention in terms of the Constitution and national legislation. The judgment cannot be faulted for giving effect to the fundamental right of local citizens to be governed by duly elected politicians. The Court took into account the fact that an administrator is not directly accountable to voters, thus the administrator’s term must be limited to 90-days. Consequently, an administrator cannot remain in office for any longer than 90 days from the date of dissolution. To conclude, inasmuch as the judgment allows the councillors of Tshwane to resume their rightful constitutional role, it remains to be seen whether councillors will attend and remain in attendance at council meetings.

As previously noted, the SCA judgment was not an appeal against the main judgment. The appeal against the main judgment was heard in the Constitutional Court virtually on 10 September 2020 and judgment was reserved. The Dullah Omar Institute will provide an analysis of this judgment once it is delivered. 

by Curtly Stevens, Doctoral Researcher

The publication of the Bulletin is made possible with the support provided by the Hanns Seidel Foundation and the Bavarian State Chancellery.