It has taken 23 years for section 139 intervention related questions to be brought before the highest court in the land, the Constitutional Court, on a substantive basis. During this period, lower courts dealt with intervention powers provided under section 139 of the Constitution. Their judgments clarified some of the grey areas but also confused many. In Premier, Gauteng and Others v Democratic Alliance and Others, the Constitutional Court had the opportunity to finally set the record straight regarding the parameters of intervention powers provided for under section 139 of the Constitution. In a split judgment, five judges of the Constitutional Court upheld the decision of the High Court to invalidate the decision of the Gauteng Provincial Executive to dissolve the Council of Tshwane. The other five, although in two separate judgments, would have upheld the appeal of the Gauteng Provincial Executive.

Background

It is no secret that the Council of Tshwane was dysfunctional ever since the ‘soft’ coalition between the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) formed after the 2016 local government elections broke down in late 2019.  In 2020, councillors aligned to the EFF and the African National Congress (ANC) either failed to attend council meetings or walked out of council meetings consistently. As a result, there was no quorum at many successive meetings for the Council to make decisions, such as appointing a mayor and municipal manager, as covered previously in the Bulletin. In response to the dysfunctionality, the Gauteng Provincial Executive dissolved the Council of Tshwane citing a number of issues, which according to the Province, amounted to a failure to fulfil an executive obligation. Aggrieved, the DA challenged the dissolution at the High Court, which declared the dissolution invalid. The High Court further directed councillors aligned to the EFF and ANC to attend council meetings and remain in attendance to enable the Council to conduct its business. It is this decision of the High Court that the Gauteng Provincial Executive sought the Constitutional Court to overturn on appeal.

Arguments of the Gauteng Provincial Executive and the DA

The Gauteng Provincial Executive argued that the Council of Tshwane had failed to fulfil its executive obligations in a number of areas. Hence, the jurisdictional facts for a dissolution of the council, in terms of section 139(1)(c) of the Constitution, were present. The Province further argued that this provision does not require a provincial government to explore less intrusive measures of intervention before dissolving a council. Moreover, the Province argued that the Council of Tshwane was so dysfunctional to the extent that no other intervention measure would have resulted in the Council fulfilling its executive obligation other than a dissolution.

On the other hand, the DA submitted, as it did in the High Court, that the Province had failed to identify a clear and verifiable executive obligation which the City had failed to fulfil. Thus, the dissolution was unlawful. The DA also submitted that the Gauteng Provincial Executive did not adequately and, in good faith, engage the City before taking the decision to dissolve the Council. Thus, it argued that the Province failed to comply with the constitutional principles of cooperative and intergovernmental relations set out in chapter three of the Constitution. As such, the dissolution ought to be nullified on this basis as well.

Legal issue

The Constitutional Court had to determine whether the decision of the Gauteng Provincial Executive to dissolve the Municipal Council of Tshwane was constitutional. The judges of the Constitutional Court differed on whether the dissolution of the council was constitutional and justifiable under the circumstances. The article will deal with the main judgment before providing a brief overview of one of the dissenting judgments.

The main judgment

In examining the legality of the Gauteng Provincial Executive to dissolve the council, the Court identified four jurisdictional requirements of section 139(1)(c):

“First, a failure to fulfil an executive obligation; second, the taking of appropriate steps including the issuing of directives describing the extent of the failure and stating the steps required to meet the obligations, the assumption of responsibility for the relevant obligation to the extent necessary, or the dissolution of the municipal council; and, in the event of intervention taking the form of dissolution, the third aspect is the existence of exceptional circumstances envisaged in subsection 1(c) [of section 139]. The fourth is that the exceptional circumstances must warrant the dissolution.”

To define what constitutes an executive obligation, the Court relied on the Mnquma Case where the High Court stated ‘“[t]he obligation of local government is to provide government at a local level and to discharge the functions associated therewith”’. The Constitutional Court further examined section 11(3) of the Municipal Systems Act which provides for the exercise of legislative and executive authority by a municipality. The provision provides:

“A municipality exercises its legislative or executive authority by—

a)      developing and adopting policies, plans, strategies and programmes, including setting targets for delivery;

b)      promoting and undertaking development;

c)       establishing and maintaining an administration;

d)      administering and regulating its internal affairs and the local government affairs of the local community;

e)      implementing applicable national and provincial legislation and its by-laws;

f)        providing municipal services to the local community, or appointing appropriate service providers in accordance with the criteria and process set out in section 78;

g)      monitoring and, where appropriate, regulating municipal services where those services are provided by service providers other than the municipality;

h)      preparing, approving and implementing its budgets;

i)        imposing and recovering rates, taxes, levies, duties, service fees and surcharges on fees, including setting and implementing tariff, rates and tax and debt collection policies;

j)        monitoring the impact and effectiveness of any services, policies, programmes or plans;

k)      establishing and implementing performance management systems;

l)        promoting a safe and healthy environment;

m)    passing by-laws and taking decisions on any of the above-mentioned matters; and

n)      doing anything else within its legislative and executive competence.”

According to the Constitutional Court ‘[t]hese are what are considered to be executive obligations – particularly when applied to the functional areas listed in Part B of Schedules 4 and 5 of the Constitution’ – which list the competences of local government. The Court, however, cautioned that it is important “to guard against unduly straining the text of section 139(1)” and relied on the simplified definition provided by Steytler and De Visser (Local Government Law of South Africa). They define executive obligations as:

‘“legal provisions that instruct (most often with the word ‘must’) the municipality to perform a certain task. They are instructions, located in a law, to do something (e.g. to meet, produce monthly budget statements) or to put something in place (e.g. a system of delegations, a policy). These include instructions that the municipality has given itself in a bylaw (a bylaw constitutes ‘legislation’). For example, a municipality’s failure to adhere to its own rules of order bylaw can constitute the failure to fulfil an executive obligation. . . . Inherent to the obligation to do something or to put something in place is that the law pertaining to that activity or instrument is adhered to.”’

On appropriate steps, the Court stated that the ‘requirement of appropriateness plainly calls for a contextual assessment of what is fitting and suitable in the circumstances’. This means that what is appropriate in situation A may be different in situation B. Turning to dissolution as an intervention measure, the Court stated the ‘dissolution must be justified by the municipal council’s conduct which caused the failure and as a corrective measure, it must ensure the fulfilment of those executive obligations’. In other words, the dissolution must reasonably be capable of addressing the municipal council’s failure to undertake an identified executive obligation.

Having assessed the jurisdictional facts for section 139(1)(c) of the Constitution, what happened in Tshwane and the conduct of the Gauteng Provincial Executive as well as its decision, the Constitutional Court agreed with the High Court that the decision of the Province to dissolve the Council of Tshwane was unwarranted. The Constitutional Court was not convinced by the Province’s argument that the situation in Tshwane, while exceptional, warranted a dissolution.

The Constitutional Court reasoned that the Gauteng Provincial Executive did not adequately engage or consult the City of Tshwane before dissolving its council. According to the Court ‘[i]f the decision to dissolve [the Municipality] was taken in the absence of engagement, and without considering the prevailing circumstances, it is impossible to see how its appropriateness and lawfulness were evaluated at the time of the decision being taken’. The Court, thus, found the conduct of the Gauteng Provincial Executive to be inconsistent with the Constitution in this respect.

The Court concluded that ‘the [Gauteng] provincial government misconstrued its powers and failed to apply itself to the issues faced by the municipality’. The Court ruled that by choosing the most drastic measure (dissolution) in a circumstance which did not warrant it and failing to sufficiently engage the Municipality before the dissolution, the Gauteng executive violated local autonomy and the principle of cooperation, respectively. Hence, the Court upheld the decision of the High Court to nullify the dissolution.

The Constitutional Court, however, substituted the order of the High Court regarding the instruction for councillors aligned to the EFF and ANC to attend council meetings and stay in attendance. According to the Court, this order is ‘far reaching and encroaches on separation of powers’. In its place, the Court ordered the MEC for local government to institute an investigation and act in terms of the Code of Conduct for Councillors.

Dissenting judgments

On the other hand, there were two minority dissenting judgments, including that penned by the former Chief Justice, Justice Mogoeng, which would have ratified the decision to dissolve the Council of Tshwane and therefore upheld the appeal. In his judgment, Justice Mogoeng disagreed with the reasoning of the majority of judges of the Constitutional Court that less intrusive intervention measures - the issuing of a directive and the assumption of responsibility - are preconditions to a more intrusive measure - dissolution.  He argued that given the ‘extraordinary’ nature of the situation in Tshwane the dissolution of its Council was the ‘only appropriate and effective remedial step to take under the circumstances’. In other words, it was the only solution that could have resulted in the Municipality fulfilling its executive obligations, which it was failing to undertake.

Justice Mogoeng was concerned that both the judgments of the High Court and the main judgment of the Constitutional Court, discussed above, ‘constitute a constitutionally impermissible encroachment into the terrain exclusively reserved for the [provincial] Executive’. In other words, by the High Court ordering EFF and ANC councillors to attend council meetings and remain in attendance; and by the Constitutional Court ordering the MEC for local government to act in terms of the Code of Conduct for Councillors, the courts breached the principle of separation of powers – and this is not constitutionally permissible.

Commentary

Provincial interventions into municipalities remain a contested terrain and as a result, the courts are now frequently asked to adjudicate on them. With the Tshwane dissolution case, the Constitutional Court was for the first time since the adoption of the 1996 Constitution called upon to provide guidance on interventions on substantive grounds.  

The main judgment of the Constitutional Court upheld the High Court decision and confirmed that provincial intervention powers provided for under section 139(1) are not absolute. Therefore, the powers ought to be exercised only when the relevant jurisdictional facts are in place. The onus is on the relevant provincial executive to prove that a municipality has failed to undertake a clearly identifiable executive obligation which a court can objectively verify.

The identification of an appropriate way of intervening in a municipality is another important issue coming out of this judgment. The message is clear that provinces should not rush to dissolve a municipal council without having explored other less intrusive measures of solving the problem which is preventing a municipality from fulfilling its executive obligations. Thus, an intervention measure which could potentially solve the problem but is not ‘appropriate’ or proportionate to the circumstance risks being invalidated by the court.

It is also clear from this case that section 139(1) should not be interpreted in isolation but in tandem with chapter 3 and section 154 of the Constitution, providing for cooperative governance and intergovernmental relations. Cooperative governance requires, for instance, that a province consults the relevant municipality in good faith before taking the decision to intervene in any form.

In a nutshell, section 139(1) of the Constitution confers not only a discretion but also a duty to exercise intervention powers when jurisdictional facts are present. Provinces have to exercise this discretion and undertake this duty in line with the law. While intervention powers may be invoked whenever necessary the selection of an appropriate intervention measure is also very important.

On the other hand, the minority judgments also raise pertinent issues or questions relating to the appropriateness of intervention steps, separation of powers, service delivery, etc. Justice Mogoeng stated that when courts are faced with cases similar to the one which unfolded in Tshwane they ought to be decisive and not delay service delivery further. He reasoned that putting the people of Tshwane first would have required that the Court validate the dissolution to enable an administrator to fix unfulfilled executive obligations until a new council is elected.

By Tinashe Carlton Chigwata