In Kannaland Municipality v Electoral Commission of South Africa and Others, the Western Cape High Court dismissed an application of Kannaland Municipality to interdict the Independent Electoral Commission (IEC) from declaring the name of the Karoo Independent Party (KIP) councillor at the top of the party list, to fill a vacancy on the council. The Court held that the Municipality had not established that it had legal standing to apply for the interdict or that the acting municipal manager was authorised to act on behalf of Kannaland Municipality against the IEC. This article argues that the decision to seek an interdict against the IEC may have been motivated by the political interests of the African National Congress (ANC)-Albertus informal coalition in the council. The article provides an overview of the local political landscape in Kannaland Municipality and concludes with recommendations.

Coalition formation in Kannaland Municipality

The 2021 Local Government Elections again produced a hung council in Kannaland Municipality, prompting the Independent Civic Organisation of South Africa (ICOSA) and the ANC to form a grand coalition (collectively controlling five of the seven seats in the council) led by ICOSA. The DA and the Karoo Independent Party (KIP) each held one seat in the council. Shortly thereafter, news surfaced of a previous conviction and sentencing of ICOSA President, Jeffrey Donson. The pressure on parties in the council to unseat ICOSA prompted the ANC to formally withdraw from the ICOSA-ANC-coalition on 2 December 2021. The ANC’s affiliation with the ICOSA President did not show that it is serious about tackling corruption, unethical leadership and gender-based violence (GBV). The ANC thus moved to remove ICOSA as the leading party in the council.

Striking a bargain with the kingmaker of Kannaland Municipality

ICOSA leaders were not willing to step down voluntarily, despite being the cause of the political scandal that put the Municipality in the news for all the wrong reasons. Invoking the motion of no confidence to unseat its coalition partner thus became an obvious solution to contain public outrage. For the motion to succeed, the ANC required support from two other parties in the council, the KIP and the DA. Even if the ANC had the support of the DA, which it did, it still needed another yay to unseat the ICOSA councillors. This afforded the KIP councillor, Rodge Albertus, a kingmaker status. Kingmakers often use their positional advantage in council to advance either their personal or party interests (or both).  At what "cost" was the ANC able to secure the support of the KIP councillor?

KIP councillor becomes Speaker of ANC-led municipality

The majority successfully unseated ICOSA councillors, Jeffrey Donson and Werner Meshoa as executive mayor and deputy mayor, respectively. With the support of the KIP, the ANC was able to contain the public outrage that ensued in Kannaland. The ANC took control over the Municipality with two ANC councillors being elected as the executive mayor and deputy mayor. This change left the office of the Speaker vacant, and Albertus was subsequently elected as the new Speaker. This suggests that the KIP councillor effectively became an informal partner of the ANC minority government in Kannaland Municipality. Did this reward for the KIP councillor come subject to further conditions? If so, were these conditions agreed to by the KIP party or by Albertus only?

Albertus cooperates with the ANC coalition causing KIP to terminate his party membership

Councillor Albertus’ appointment as Speaker cemented his support for the ANC. However, his cooperation seemingly came at the expense of his loyalty to the KIP. The KIP’s Secretary-General (SG) accused Albertus of lacking ethical leadership for, amongst other things, failing to honour the KIP’s instructions in council on three successive occasions, and for failing to submit to the directions of the  Regional General Council of the KIP. Consequently, the KIP stripped Albertus of his presidential title and no longer publicly recognised him as the party president. The SG of the KIP also confirmed that he no longer represents the KIP in the council. His termination as a member of the KIP resulted in a vacancy arising in the council in terms of section 27(1)(c) of the Municipal Structures Act of 1998 (the Structures Act).

What happens when a councillor ceases to hold office?

In terms of section 18(1)(b) of Schedule 1 of the Structures  Act, if a councillor ceases to hold office, the municipal manager (MM) must inform the IEC of this within 14 days after the councillor ceased to hold office. In this case, the acting MM, Mr Ian Avontuur, refused to inform the IEC that Albertus had ceased to hold office in the KIP. This prompted the MEC for local government in the Western Cape, Anton Bredell, to make the call in his place, in terms of Item 18(1)(c) of Schedule 1 of the Structures Act. Thereafter, the IEC had to declare the name of the person at the top of the proportional representation list to fill the vacant seat, namely Mr Peter-George Rooi.

Acting Municipal Manager applies to the High Court to interdict the IEC

The filling of the vacant KIP seat was halted when the acting MM approached the High Court to interdict the IEC from declaring Mr Rooi elected. The acting MM claimed to be authorised by the executive mayor to initiate these court proceedings against the IEC. In terms of the Municipality’s Systems of Delegations, the executive mayor was authorised by the council to institute legal proceedings. Although being similarly authorised to initiate legal proceedings, the acting MM was expressly prohibited in terms of the delegations from instituting legal proceedings against organs of state such as the IEC. The Court held that the executive mayor unlawfully sub-delegated his authority to institute legal proceedings against the IEC to the acting MM. This raises the question of why the acting MM, on behalf of Kannaland Municipality, sought to interdict the IEC.

The executive mayor and acting MM abuse power to advance ANC’s political interests in Kannaland Municipality

Councillors and municipal staff are required by their respective Codes of Conduct in the Structures Act and the Municipal Systems Act of 2000, respectively, to always act in the best interest of the municipality and, in such a way, to ensure that the integrity and credibility of the municipality are not compromised. The "best interest" requirement includes the public good which must be placed at the centre of governance before individual or party interests.  

In paragraph 12 of the judgment, the Court held that the Municipality did not show any right or interest that will be directly affected if the IEC fills the vacant post. It is surely of no consequence to the Municipality which individual represents the KIP on the council. Accordingly, the Municipality failed to persuade the Court that it is in the interest of justice to grant the interdict. This begs the question of whose interest would really have been served if the Court proceeded to grant the interdict. It is argued that it was in the interest of the ANC government as a new KIP incumbent could weaken the ANC’s stronghold in the council.  This indeed happened on 21 October 2022, following this court order, when two ANC councillors were ousted as the mayor and deputy mayor.

A new informal coalition arrangement between ICOSA and KIP

The new KIP councillor, Mr Rooi, appears to have entered into an informal coalition arrangement with ICOSA. Jeffrey Donson and Werner Meshoa were again elected as Executive Mayor and Deputy Mayor, respectively. Mr Rooi was elected to serve as the new Speaker of the council. With the support of the new KIP representative, ICOSA has again converted its four of the seven council seats to take the leadership of the Municipality.

Political maturity is essential to improve governance in Kannaland Municipality

Talks around coalitions will always include the discussion about the need for political maturity for stable coalitions. Beukes and De Visser, authors of the Framework for Coalitions in Local Government, are yet to proffer recommendations on political maturity in coalitions. It is not clear what political maturity means. Even more uncertain is determining what is needed to achieve political maturity. What is clear, however, is that political maturity signals a request for political parties to develop and transform. This largely has to do with the conduct of individuals in political parties, which in turn suggests that political maturity has to do with ethical and professional leadership. 

The case of Kannaland Municipality v Electoral Commission of South Africa and Others suggests that there is a leadership crisis in Kannaland Municipality. It shows how the powers of the Municipality (which ultimately resides in the council) have been abused to advance the interests of political parties in the Municipality. What does political maturity then dictate in the context of Kannaland Municipality? The following recommendations are made—

• The Code of Conduct for Councillors promotes and expects political maturity to the extent that it values ethical leadership and professionalism in municipalities. However, it is not enough that councillors (and staff) are seen to be ethical and professional. Ethics and professionalism require that councillors consistently act in the best interest of the municipality, especially the local community.
• The local community, as opposed to party and personal interests, must always be a key, if not the main, factor in justifying why a municipality must allocate resources to initiate court proceedings and/or bring motions of no confidence to unseat a councillor from his or her political office.   
• Coalitions, whether formal or informal, cannot be held together at all costs. Coalitions cannot be held together at the expense of upholding the rule of law.
• Motions of no confidence are not weapons for political rivals. Such motions ought to be invoked in circumstances when the majority of councillors have genuinely lost confidence in the incumbent to effectively perform his or her functions in the respective office. They are not an instrument to settle political scores.
• Councillors who are deployed by political parties should not operate as independent councillors in the council. They are expected to adhere to the principle of party loyalty and must execute the instructions of their respective political parties.
• Finally, councillors must put the people first which is given practical meaning through effective and efficient service delivery.

By Adv Jennica Beukes, Legal practitioner and Doctoral Researcher