Powers of the Provincial Executive arm of government to intervene and dissolve a municipality

The South African Constitutional Court dealt with a dispute between organs of state in the provincial and local government spheres, where it considered the powers of a provincial executive to intervene and dissolve a municipality in terms of section 139(1)(c) of the Constitution. Specifically, the matter involved the decision that the City of Tshwane Metropolitan Municipal Council failed or was unable to fulfil its executive obligations in terms of the Constitution and related legislation.

At the heart of this dispute was the breakdown of the cooperation agreement between the Democratic Alliance (“DA”) and the Economic Freedom Fighters (“EFF”) relating to the Municipal Council. ANC and EFF members were walking out of council meetings, rendering the meetings invalid as a result of a loss of quorum. No decisions could therefore validly be made and/or implemented by the Council. In addition, the Municipal Council had no Mayor, Mayoral Committee and no Municipal Manager.

On 4 March 2020, the Gauteng Executive Council resolved to dissolve the Municipal Council as it had reached a deadlock.

The DA contested the exercise of power by the Premier of Gauteng, the Provincial Executive authority responsible for the dissolution of the Municipal Council. The Premier argued that he validly exercised his power to dissolve the Municipal Council in terms of section 139(1)(c) of the Constitution, which states:

“When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including—
. . .

(c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.”

The result of the dissolution was that the Municipal Council was immediately dissolved and an administrator had to be appointed. Fresh elections were meant to take place within three months of the dissolution.

History of the litigation

The DA launched an urgent application in the High Court seeking an order reversing the decision of the Gauteng Executive Council to dissolve the Municipal Council on the basis that the action taken by the Premier was irrational for the following reasons:

The decision was drastic and failed to have regard to other less restrictive means;
The Premier failed to identify executive obligations that the Municipal Council had failed to fulfil;
The dissolution was not an appropriate step in the circumstances, and there were no exceptional circumstances warranting it; and

There were a number of textual and contextual indicators in section 139(1)(c), which showed that the power of the Premier to dissolve the Municipal Council had to be preceded by engagement or consultation.

The Premier opposed the application and argued, amongst others, that section 139(1)(c) gives the Premier the power to dissolve the Municipal Council if exceptional circumstances exist warranting such a step. It was also argued that the section did not require that less restrictive means be considered before dissolving the Municipal Council.

The High Court held that for the provincial government to dissolve the Municipal Council, it had to satisfy three requirements, namely:

a failure by the Municipal Council to fulfil an executive obligation;
the dissolution must be likely to ensure the relevant executive obligation will be fulfilled; and
that the provincial government considered less restrictive means.

The High Court reviewed and set aside the decision of the Gauteng Executive Council to dissolve the Municipal Council. Following the decision of the High Court, an appeal was instituted directly to the Constitutional Court.

Constitutional Court

The Constitutional Court (“CC”) held that section 139 of the Constitution is to be interpreted against the background of the constitutional imperatives of the rule of law, principles of cooperative governance, and inter-governmental relations.

The CC approached section 139(1) as having four distinctive jurisdictional facts (jurisdictional facts are preconditions that must exist, or procedures that must be followed, prior to the exercise of public power). These are:

Failure to fulfil an executive obligation: The term “executive obligations” is not defined in the Constitution, however, the CC held that “the word ‘executive’ in section 139(1) is used in the context of an obligation that is imposed on a municipality ‘in terms of the Constitution or legislation’”. Section 11(3) of the Systems Act explains the manner in which a municipality, through its municipal council, exercises its executive and legislative authority and these are what are considered to be executive obligations. The CC did, however, warn against an unduly strained reading of the term and stated that the allegedly unfulfilled executive obligation ought to be set out unambiguously by the provincial executive.
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: The list of options for appropriate steps is non-exhaustive. It is incumbent upon the Premier, acting in accordance with the Constitution and related legislation, to decide which step is appropriate in each case to ensure that the obligations are fulfilled by a municipal council. The primary purpose of the intervention by the provincial government is to assist the local government, in the spirit of co-operative governance, to fulfil its executive obligations. In considering whether section 139(1)(c) is fitting and suitable, one must consider the resultant calling of fresh elections and whether this will result in the municipal council fulfilling its obligations. When determining appropriateness in the context of section 139(1)(c), courts are not required to look into a crystal ball and determine what is likely to happen if dissolution takes place. Instead, they must assess whether dissolution is reasonably capable of addressing the municipal council’s failure. While there is nothing in the language of the section to suggest that the power to dissolve is subject to a less restrictive means requirement, that does not mean that the existence of less intrusive means is irrelevant to the determination of appropriateness. The requirement of appropriateness plainly calls for a contextual assessment of what is fitting and suitable in the circumstances.
In the event of intervention taking the form of dissolution, the third aspect is the existence of exceptional circumstances envisaged in subsection 1(c): The decision to dissolve a municipality relies on two factors; namely a failure, on the part of the municipality, to fulfil an executive obligation and the existence of “exceptional circumstances”. It is a combination of these grounds that warrant the dissolution of a municipal council. Exceptional circumstances must be determined on a case-by-case basis in terms of section 139(1)(c) of the Constitution. This exercise demands that exceptional circumstances must be interpreted in the light of the constitutional scheme set out above; and the gradation of the forms of intervention in section 139(1), which are set out from the least to most intrusive.
The exceptional circumstances must warrant the dissolution: the DA argued that, on a purposive interpretation of section 139(1)(c), exceptional circumstances must not only exist, but must necessitate or justify the dissolution of the Council. The CC held that even if exceptional circumstances are found to exist it does not automatically warrant dissolution. There is a balancing exercise that is involved when determining whether dissolution is warranted.

In determining whether the dissolution was lawful, the CC stated that section 139(1)(a) obliges the provincial executive to intervene by issuing directives to the Municipal Council “describing the extent of the failure to fulfil its executive obligations and stating any steps required to meet its obligations”. The issuing of a directive in terms of section 139(1)(a) has no consequences in itself; it only has relevance as part of a process which requires a directive to be issued to ensure the fulfilment of an executive obligation. If the directive is issued in terms of section 139(1)(a), these have to be complied with.

The CC also found that if a municipal council is persistently unable to convene meetings and conduct its business, section 139(1) will be undeniably triggered as this may prevent the municipal council from fulfilling its day-to-day obligations and subsequently lead to a failure to fulfil executive obligations which the Constitution and Systems Act expect Council to perform.

However, while the CC agreed that the High Court was correct in finding that the political crisis and the walkouts led to the Municipal Council’s failure to fulfil its executive obligations, the High Court ought to have gone further to determine whether these circumstances, as exceptional as they were, warranted the dissolution. The CC held that they were not.

The CC stated that corruption is not the prerogative of the Municipal Council. It is a matter for the South African Police Service to deal with, not the provincial government. If the provincial executive is of the opinion that there is a financial crisis in the municipality, its recourse is in sections 139(4) or (5) and not 139(1).

The CC also stated that in line with the reading of the relevant provisions of the Constitution as a whole, before the provincial executive dissolves a municipality it must notify the municipal council in writing of its intention to dissolve the council in terms of section 139(1)(c). Once the dissolution has taken place, the provincial government will also have to notify the Cabinet member responsible for local government, and the relevant provincial legislature and the National Council of Provinces. The dissolution will then take effect 14 days from the date of receipt of the notice by the Council unless set aside by the relevant Cabinet member or the Council before the expiry of the 14 days.

Aslam Moosajee

Dispute Resolution | Executive

amoosajee@ENSafrica.com

Vishana Makan

Dispute Resolution | Associate

vmakan@ENSafrica.com