Case CCT82/20 & CCT91/20
[2021] ZACC 34
Hearing Date: 10 September 2020
Judgement Date: 04 October 2021
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Monday, 4 October 2021 at 10h00, the Constitutional Court handed down judgment in three applications for direct leave to appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria. The High Court reviewed and set aside the decision taken by the Gauteng Executive Council (Gauteng EC) on 4 March 2020 to dissolve the City of Tshwane Metropolitan Municipal Council (Municipal Council) in terms of section 139(1)(c) of the Constitution. The High Court also ordered council members of the African National Congress (ANC) and Economic Freedom Fighters (EFF) to attend and remain in attendance of the Municipal Council meetings.
The Municipal Council had been unable to convene and retain the necessary quorum since 27 September 2018 due to walkouts by ANC and EFF councillors. On 6 December 2019, the Gauteng EC resolved to invoke section 139(1) read with section 154 of the Constitution. It conveyed this decision to the acting Speaker of the Municipal Council through the Member of the Executive Council for Co-operative Governance and Traditional Affairs (MEC). The Gauteng EC stated that it took this decision upon consideration of a detailed report on the state of affairs in the Municipal Council, with reference to its finance management, service delivery, issues of maladministration and corruption and institutional capacity.
On 18 December 2019, the Speaker of the Municipal Council responded to the MEC’s letter pointing out, amongst others, that the letter of 6 December 2019 failed to identify the executive obligations that the Municipal Council had allegedly failed to fulfil, which was a necessary requirement for the imposition of a section 139(1) intervention. She also pointed out that no engagement took place with the Municipal Council prior to the decision being taken.
On 14 January 2020, the MEC responded to the Speaker’s letter disputing her competence to provide such a response and annexed a document containing directives, in terms of section 139(1)(a) of the Constitution, that contained plans developed by the Department of Co-operative Governance and Traditional Affairs (COGTA). The directives set out the Municipal Council’s failures to provide services for communities, and adequately address water and electricity losses. It also identified the Municipal Council’s inadequate revenue collection, debtor management, and weaknesses in governance and accountability as being problematic.
On 7 February 2020, the Speaker responded to the directives with a document spanning more than several pages. In this document, she detailed action plans and programmes undertaken by the Municipal Council to address the directives issued by the Gauteng EC through the office of the MEC.
On 4 March 2020, the MEC wrote to the Speaker enquiring whether the section 139(1)(a) directives, dated 14 January 2020, had been served before the Municipal Council. He provided her with three days within which to respond. On the same day the Gauteng EC resolved to dissolve the Council (dissolution decision). This was attributed to the fact that the Municipal Council had reached a deadlock with councillors walking out of meetings leaving it inquorate, and rendering it paralysed.
The effect of the dissolution decision was that the Municipal Council was immediately dissolved. An administrator was appointed to take over its functions, and new elections were required to be held in the Municipality, within 90 days, in terms of the Constitution. On 10 March 2020, the DA and the Municipal Council, for the first time, were presented with the Dissolution Notice, dated 6 March 2020, setting out nine key observations for the dissolution of the Municipal Council.
On 13 March 2020, the DA launched an urgent application seeking to review and set aside the dissolution decision, as well as to compel the attendance of the ANC and EFF councillors. The Premier of Gauteng (the Premier) and the ANC opposed the application, while the EFF – against whose councillors, along with the ANC’s, a mandamus was sought – did not. The High Court was required to consider whether the dissolution decision was substantively invalid and whether the jurisdictional facts necessary to invoke section 139(1)(c) were established. The Court conducted a detailed examination to determine whether the nine key observations provided in the Dissolution Notice disclosed executive obligations that were unfulfilled; and whether they constituted exceptional circumstances warranting the dissolution of the Municipal Council. The High Court rejected all of them, save for one which, it found, should have been the subject of targeted intervention by the provincial government, and was insufficient to justify dissolution. The Court held that the most direct cause of the Municipal Council’s inability to conduct its business was the continued disruptions of meetings by ANC and EFF councillors staging walkouts. The Court held that provincial government had an obligation to apply less intrusive means in resolving the Municipal Council’s dysfunctionality, and that a decision in terms of section 139(1)(c) would only be appropriate if it was likely to ensure the relevant obligation would be fulfilled. The Court held further that there was no guarantee that the appointment of an administrator, and fresh municipal elections would resolve the problem at hand. The application was therefore successful and the dissolution decision was set aside.
Aggrieved by the outcome of the High Court, the Premier, the EFF and the ANC each brought separate applications before the Constitutional Court directly appealing the order and judgment of the High Court. The DA opposed the Premier and the EFF’s applications. The Premier and the EFF argued that the High Court failed to apply the rationality test correctly when coming to its decision that the provincial government did not substantively comply with the jurisdictional requirements of section 139(1)(c) in dissolving the Municipal Council. They submitted that a rationality review asked if there was a rational connection between the government’s objectives and the means chosen to achieve them, and that such a decision should not be set aside because it was ineffective. This was because, their argument continued, courts could not interfere with the means selected because they did not like them, or because there were other more appropriate means that could have been selected. They further submitted that the true reason for the dysfunctionality of the Municipal Council was the break down in the coalition agreement between the DA and the EFF. Once a municipality was dysfunctional, deadlocked, and paralysed it amounted to exceptional circumstances, with dissolution being a rational way to break the deadlock. Lastly, they argued that the mandamus granted by the High Court amounted to judicial overreach and that councillors could, in any event, not be compelled to vote. Such an order, they argued, would place the councillors who failed to attend without a lawful cause in contempt of court, with imprisonment as an alternative, when there already was a sanction available in the Local Government: Municipal Systems Act 32 of 2000 (Systems Act).
The DA argued that the wording of section 139(1), and 139(1)(c), of the Constitution required more than just a rationality test, and that a test of lawfulness, because of the use of words such as “appropriate step”, is more apt. Furthermore, every exercise of public power should be rational, and that appropriateness should be given a meaning which contained something beyond rationality. Even the Premier conceded in argument that appropriateness required that the steps, referred to in section 139(1) of the Constitution, be “proper, fitting, suitable and effective” for purposes of fulfilling the executive obligations of a municipal council. The DA also urged the Court to accept the inclusion of less restrictive means. It argued that the threshold for the lawful dissolution of a municipal council was high because it was a drastic step that could only be undertaken in exceptional circumstances. Finally, the DA argued that the Court was empowered to make an order that is just and equitable. To that end, it argued that the Court should order the ANC and EFF councillors to attend council meetings as, absent an order compelling same, the cause of the problem in Municipal Council would not be resolved. It argued that such an order would ensure the day to day running of the Municipal Council, even if the ANC and EFF councillors refused to vote. If the mandamus was not confirmed, the DA invited the Court to fashion an appropriate remedy, as in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), to secure the protection and enforcement of the rights of the Municipal Council to hold meetings
The ANC did not make representations before the Court and therefore, effectively, elected to abide the Court’s decision.
In the majority judgment penned by Mathopo AJ (with Khampepe J, Majiedt J, Theron J and Victor AJ concurring), the Constitutional Court had to determine whether the dissolution decision was lawful and whether the mandamus granted by the High Court was an appropriate remedy. The Court identified four jurisdictional facts, in terms of section 139(1)(c) of the Constitution, that had to be established for the dissolution decision to be lawful. The first was the establishment of a failure to fulfil an executive obligation. The second was the taking of an “appropriate step”. The third was the existence of exceptional circumstances, and the fourth was that the exceptional circumstances had to warrant the dissolution. The Court found that three of the jurisdictional facts had been established, but that the dissolution was not warranted in the circumstances. Thus the dissolution decision was found to be unlawful. As for remedy, the Constitutional Court set aside the High Court’s mandamus and substituted it with an order compelling the MEC to invoke his powers in terms of item 14(4) of Schedule 1 of the Systems Act, appointing a person or a committee to investigate the cause of the deadlock of the Municipal Council.
The second judgment penned by Jafta J (with Mhlantla J and Tshiqi J concurring) identified that the collapse of council meetings revealed a deep-rooted inability to address political issues within the Council, leading to its dysfunctionality. As from November 2019, the Council was unable to take any decision for months, including those necessary for the fulfilment of executive obligations, until the provincial executive of Gauteng intervened pursuant to section 139(1) of the Constitution and dissolved the Council in March 2020.
The second judgment held that the discretion conferred upon a provincial executive by section 139(1) was wide. The section required that “any appropriate” steps were to be taken. A dissolution of the Council would have been an appropriate step if it was likely to fulfil the executive obligation and exceptional circumstances warranted the dissolution. The second judgment therefore disagreed with the finding made by the High Court and the majority judgment that the dissolution was not appropriate because there were other steps which the Province could have taken to address the issue of non-fulfilment of executive obligations. The second judgment held that once the conditions for dissolution were met, there can be no sound basis to hold that the exercise of the power to dissolve the Council was unlawful or inappropriate.
The second judgment further addressed the High Court’s failure to determine the remaining grounds of review, namely that the dissolution was procedurally unfair and irrational, and that the Gauteng Province was actuated by an ulterior motive in taking the decision to dissolve the Council. On the basis of the rule that our courts decline to decide on appeal issues not determined by the court of first instance, the second judgment considered it fair to limit the reversal of the High Court’s order to the extent of its decision, and remit the remainder of the matter to the High Court.
In the result, the second judgment would have granted an order granting leave to appeal, upholding the appeal, setting aside the order of the High Court, and remitting the matter back to the High Court for determination of the other grounds of review.
In a dissenting judgment, Mogoeng CJ (with Madlanga J concurring) said that while he agrees that a failure to fulfil an executive obligation and the existence of exceptional circumstance are preconditions for a proper or appropriate dissolution in terms of section 139(1)(c), he disagrees that section 139(1)(a) and (b) are indispensable preconditions to dissolution. He held that there are cases where (a) and (b) must first be explored and section 139(1)(c) resorted to only if (a) and (b) fail to yield the desired result. The correct approach is in his view the adoption of an option that would realistically result in the executive obligation being fulfilled.
He agrees that the dissolution of the Municipal Council was extraordinary, but contends that it was the only appropriate and effective remedial step to take in view of the Municipality’s undisputed dysfunctionality. He held that time simply does not permit the luxury of overly protracted litigation that could otherwise have been effectively ended by this Court’s just and equitable order. In his view both the High Court order and that proposed by the main judgment constitute a constitutionally impermissible encroachment into the terrain exclusively reserved for the Executive.
He held that he would accordingly grant leave, uphold the appeal and set aside the order of the High Court with no order as to costs, but order the DA to pay the EFF’s costs, including costs occasioned by the employment of two counsel..
The Full judgment here