The Court was asked to confirm whether section 43(3)(c) of the Local Government: Municipal Structures Act 117 of 1998, which permits the use of sortition (the casting of lots) to break deadlocks when establishing a municipal executive committee, is constitutionally permissible. The challenge was framed primarily through sections 19(3) and 160(8) of the Constitution, which gives every adult citizen the right to vote for any legislative body established by the Constitution and to stand for public office; and councillors the right to partake in committees in a way that is consistent with democracy, in accordance with national legislation and lets interests be fairly represented. This raised concerns about democratic representation and decision-making.

Yet beyond the primary legal question, the judgment exposes a deeper and more troubling governance failure. Not one rooted in legislative design, but in institutional silence. The Constitutional Court’s repeated expressions of disappointment with the Minister of Cooperative Governance’s failure to participate meaningfully in the proceedings reveal an under-examined dimension of cooperative governance: the obligation of national (and provincial) government not merely to intervene in, or provide financial assistance in local government, but to support it through constitutional engagement, including before the courts.

The case in brief

One seat on the executive committee of a municipal council was contested by the Democratic Alliance (DA) and the Socialist Agenda of Dispossessed Africans (SADA). The DA was awarded the seat on the executive committee. SADA approached the High Court for an urgent order to declare section 43(2)(c) invalid and unconstitutional. The dispute arose from establishing an executive committee where equal surpluses are present as per section 43(2)(c) of the Structures Act. This section provides that, where equal surpluses exist, the remaining seat to the executive committee must be determined by the casting of lots. The High Court held that this mechanism was unconstitutional, reasoning that where electoral support could be used to distinguish between parties, democracy required that votes and not chance determine the outcome. Section 43(2)(c) was declared invalid and unconstitutional, and the High Court order gave Parliament 18 months from the order’s date to amend the Municipal Structures Act accordingly. SADA therefore approached the Constitutional Court to confirm the High Court’s order.

On appeal, the Constitutional Court disagreed. Section 43 did not impact the right to vote for a legislative body because the executive committee in a municipality does not have original executive or legislative power. The Structures Act only required fair representation and not proportional representation for an executive committee. And, most importantly, executive committees only had those powers which were delegated to them and even then, recommendations of the committee serve before the municipal council before being adopted. This means that the councillors who the community voted into power remain in control of making decisions.

The Constitutional Court stated that the conclusion it reached, however, was done in with limited information and evidence before it.

The absence of submissions from the Minister

From the outset, the Constitutional Court indicated explicitly that the Minister did not take part in the proceedings. Despite being urged by the Court more than once to assist, the Minister withdrew his opposition and elected merely to abide by the High Court’s decision. This left the Court without the benefit of any executive explanation for the legislative choice it was being asked to scrutinise.

The absence was not confined to national government. The High Court had expressly invited interested and affected parties to join the proceedings, either as litigants or amici curiae. No municipality, provincial department, or organised local government structure responded. As the Constitutional Court later observed, the High Court was left to “play devil’s advocate”, advancing and testing counterarguments on its own in order to assess the constitutional challenge before it.

Support beyond bailouts and interventions

Section 154(1) of the Constitution requires national and provincial governments to support and strengthen the capacity of municipalities to manage their own affairs, exercise their powers, and perform their functions. In practice, this obligation is most often associated with fiscal transfers, technical assistance, or provincial interventions under section 139.

The SADA judgment illustrates another mode of support: assisting courts to understand the legislative and practical context in which local government operates.

Electoral systems, governance structures, and deadlock-breaking mechanisms do not exist in the abstract. They are designed against the backdrop of coalition politics, fragile councils, service delivery pressures, and the realities of municipal administration. When legislation governing these systems is challenged, courts are constitutionally dependent on the executive to explain not only what the law does, but why it does so, and how it operates in practice.

The Constitutional Court made this clear in unusually strong terms. The Minister’s inertia, it held, was “unacceptable and deserving of strong deprecation”. The Court reiterated that a Minister responsible for the implementation of legislation is duty-bound to assist courts in constitutional litigation concerning that legislation. The outcome in the High Court, the Constitutional Court noted, demonstrated how invaluable such assistance is: deprived of executive input, the Court was forced to speculate in a domain where policy expertise and institutional knowledge properly reside with the executive.

Cooperative governance and judicial restraint

Ironically, the Minister’s failure to engage risks reinforcing the very critique often levelled against the judiciary — that courts do not adequately respect the separation of powers. The SADA judgment shows the opposite dynamic at work. The Constitutional Court was at pains to emphasise judicial deference, underscoring that courts should not interfere with Parliament’s regulation of electoral processes unless a clear constitutional infringement is established.

But judicial restraint presupposes executive participation. Courts cannot defer meaningfully to legislative choices if those choices are left unexplained. Silence does not protect separation of powers; it erodes it. When the executive abdicates its role in constitutional litigation, courts are placed in an untenable position: either to strike down legislation on an incomplete record, or to uphold it without the benefit of contextual justification. Neither outcome serves cooperative governance, nor does it strengthen local government.

What this judgment says about local government distress

The absence of national and provincial voices in SADA is telling. It mirrors a broader pattern in which local government is left unsupported except at moments of acute failure. Support, oversight, and monitoring are too often understood as reactive and coercive, rather than preventative and collaborative.

Had the Minister, or the provincial departments responsible for local government placed evidence before the courts explaining how municipal councils and executive committees function in practice, why sortition exists to determine seats where there is an equality of surpluses, and what the consequences of its removal might be, the High Court may have been spared constitutional error altogether. More importantly, the judiciary would have been better equipped to assess the democratic implications of the impugned provision within the lived reality of municipal governance.

Conclusion

SADA v Minister of Cooperative Governance is not merely a case about casting lots. It is a cautionary tale about what happens when constitutional actors and stakeholders in local government fail to come to the table. The judgment reminds us that cooperative governance is not exhausted by bailouts, interventions, or directives. It also requires institutional engagement, particularly where the constitutional architecture of local government is under scrutiny.

If national and provincial governments are serious about supporting local government, that support must extend to the courtroom to ensure that courts decide with full knowledge of the systems they are asked to judge. Silence, as this case demonstrates, is not neutrality. It is a failure of constitutional responsibility. In the SAMWU judgement on the ban on all municipal officials from holding political office, the Court criticised the Minister of Cooperative Governance for relying on untested and generalised assumptions as evidence of common sense. Thus, when the executive participates, they must also do so meaningfully and produce credible and objective evidence in support of their arguments.

By Johandri Wright