Courts as a check on provincial interventions: the Makana and Tshwane interventions

Provincial intervention under section 139 of the Constitution is one of the many mechanisms available to provinces to rectify problems at municipal level. This provision provides a menu of different interventions which are of a discretionary, mandatory, budget or financial nature. Provinces have conducted many interventions but the record of these interventions is not very good. Many of these interventions actually fail to bring municipalities back on their feet. Choosing the correct intervention without falling foul of the law also seems to be a problem.

What warrants a provincial intervention in terms of section 139 of the Constitution? Which form of intervention is appropriate in a particular situation? Increasingly, the courts are called upon to check the provincial exercise of intervention powers. This article looks at two recent judgements, namely Unemployed Peoples Movement v The Premier for the Province of the Eastern Cape and Democratic Alliance v the Premier for the Province of Gauteng.

Makana: how not to supervise a municipality

In Unemployed Peoples Movement v The Premier for the Province of the Eastern Cape, the Eastern Cape High Court castigated the Eastern Cape provincial government for failing to properly exercise its supervision powers in Makana Municipality. The provincial government did not dissolve the council despite the presence of the relevant jurisdictional facts. The High Court judgment was dealt with in the previous issue of the Local Government Bulletin. The Court ordered the dissolution of the council in terms of section 139(5) of the Constitution. The province sought to challenge this decision on appeal. The leave to appeal this judgment was, however, denied. In the appeal judgment, Justice Stretch had this to say:

 “Indeed, Makana’s particular situation and the way in which it has been handled thus far is so embarrassing at so many different levels that, had National intervention been called for (as provided for in section 139(7) of the Constitution) this court would have been constrained to have given serious consideration to granting such relief. …[the provincial authorities]  have egg on their face. They ought to be hanging their hands in shame” (at para 32)

In dismissing the appeal the Court took into account the historical governance, financial and service delivery problems in Makana Municipality, and the failure of provincial supervision to address these problems since 2015. It also took note of the Municipal Council of Makana’s repeated failure to implement a Financial Recovery Plan imposed by the Province to bring the Municipality back on its feet. The Court reasoned that because of this history of failure there was no reasonable prospect of the case succeeding on appeal. Thus, the appeal was denied, paving the way for the immediate dissolution of the Municipal Council of Makana. The Court, however, cautioned that its judgment does not set a precedence for the dissolution of municipal councils. It emphasised that its judgement was based on the circumstances that prevailed in Makhanda (area governed by Makana Municipality), in particular the non-compliance and rampant failures. The Court argued that in other situations involving municipalities, the courts may give varying judgments and orders.

More community-driven court challenges on section 139?

Both the main judgment and the judgment refusing leave to appeal provide significant lessons. They demonstrate provinces do not have unrestricted discretion when it comes to the use of intervention powers. The courts may very well direct provinces to exercise their intervention powers. This judgement is likely to encourage more community-based organised groups to approach the courts when they believe that a province is failing to supervise a municipality that is letting communities down in terms of service delivery. The Court hinted that it would even consider serious pleas for a national government intervention when there is clear evidence that a province is failing or unwilling to undertake its constitutional duty.

Making the right intervention call

In Democratic Alliance v the Premier for the Province of Gauteng the Gauteng High Court continued the practice of courts checking provincial interventions into municipalities. The Court declared the dissolution of the Municipal Council of the City of Tshwane by the Gauteng Provincial Government unlawful and invalid, in favour of an application by the Democratic Alliance (DA). The background to the intervention was that the Municipal Council was failing to convene and retain the necessary quorum for the Council to make decisions, such as, the election of a mayor and the appointment of a Municipal Manager. Councillors from the African National Congress (ANC) and Economic Freedom Fighters (EFF) either failed to arrive for council meetings or walked out of such meetings, thereby collapsing the meeting and paralysing the City, as discussed elsewhere in this edition of the Bulletin. The fact that the City required the involvement of the province to fix the problem was clear. But what kind of provincial involvement was appropriate under the circumstance?

When can a province dissolve a council?

A province is only permitted to invoke section 139(1) of the Constitution when certain jurisdictional facts are in place. These are: the failure or unwillingness of a municipality to fulfil an executive obligation. The additional jurisdictional fact with respect to the dissolution of a council is that there must be exceptional circumstances that warrant such a dissolution. The Court stated that ‘determining and identifying an executive obligation is not a mere formalistic requirement. The particular executive obligation must be substantively identified as an objective fact which can be independently assessed by a Court’ (para 38). It, therefore, follows that if these jurisdictional facts are not in place the relevant intervention runs the risk of being invalided by a Court. The provinces bear the burden of proving that the necessary jurisdictional facts have been met. The province should equally prove how the adopted intervention will remedy the executive obligation which was not fulfilled or undertaken. In the Tshwane case, the Court established that a summary of grounds for dissolution of the municipal council provided by the province could not be objectively verified to determine if an executive obligation was not fulfilled by the City of Tshwane (see para 43).  Thus, the Gauteng Provincial Government failed to prove that the City had failed to fulfil an executive obligation, which would have warranted an intervention. Even the failure of the Council to meet and to take decisions was not sufficient for the Court to conclude that is was an exceptional circumstance necessitating dissolution. In short, the Court found that the decision taken by the Gauteng Executive Council to dissolve the Council of Tshwane was not ‘rationally related to the fulfilment of the City’s executive obligations sought to be achieved through the decision’ (para 35). The intervention was, thus, declared unlawful and invalidated.

Do provinces have the discretion not to intervene even when jurisdictional facts are in place?

One question that has dominated the debate on provincial interventions is whether provinces have the discretion not to invoke section 139(1) of the Constitution even when the necessary conditions for an intervention are in place. The use of the word “may” in section 139(1) of the Constitution suggests that there is discretion. In Democratic Alliance v the Premier for the Province of Gauteng the Court reasoned that ‘[t]he Provincial Government does not have a discretion but to invoke section 139(1)(c), regarding a clearly identified executive obligation which, on objective facts, remains unfulfilled’ (para 38). The Court thus made it clear that provinces do not have unlimited discretion when it comes to the application of section 139(1) of the Constitution. The argument that the province always has discretion, even when jurisdictional facts are present, was dismissed by the Court.

Section 139 intervention is not a cure of all municipal problems

Too many municipalities fail to fulfil their obligations towards their communities. However, it is not every municipal problem that should be addressed by a section 139 intervention. This provision, particularly the dissolution of a council, is meant to be invoked under very limited circumstances. With regard to the case under discussion, the Court argued that “[n]ot fulfilling one’s duty as an elected councillor cannot be equated to exceptional circumstances as required by section 139(c); it is [a] dereliction of duties” (para86). The limits placed on section 139 are meant to protect the autonomy of local government within the overall scheme of cooperative governance. This is why there are other, less intrusive, mechanisms of looking into, and solving municipal problems. These include provincial monitoring and investigative powers provided under sections 105 and 106 of the Municipal Systems Act. In this particular case, the Court reasoned that the most appropriate intervention to deal with the problem of councillor non-attendance was for the Member of the Executive Council (MEC) to enforce the statutory duty of councillors to attend and remain in meetings. The Court did not clarify though, how exactly the MEC is supposed to do that. There is no power for the MEC to directly instruct a councillor to attend a meeting or even to charge a councillor for not doing so in terms of the Code of Conduct.

Provinces should consult municipalities in good faith prior to making the decision to intervene

The three spheres of government are bound together by the principle of cooperate governance. This principle requires, among other things, that the spheres of government consult one another in good faith with the overall objective of ensuring that government as a whole delivers. Unfortunately, adequate consultations and engagement between spheres of government do not always take place. In this case, the Court was unimpressed by the decision of the MEC to merely focus on disciplining the speaker for alleged misconduct rather than on the “bigger issues at stake” (para 80).  It established that on the same day the MEC gave the Speaker of Tshwane three days to respond to a litany of alleged misdeeds, the provincial executive council took the decision to dissolve the council.  What was the purpose of requesting the Speaker to respond then? The Court stated that the province ought to have engaged the City of Tshwane in good faith with an objective of establishing the facts necessary to inform its involvement or interventions in the municipality.

The link between an intervention and the relevant executive obligation

A form of intervention adopted by a province must be “capable of resolving the relevant executive obligation for the purposes for which it was adopted”.  Thus, in this particular case, the dissolution of the Municipal Council of Tshwane was only necessary if it was going to result in the fulfilment of the relevant executive obligation. The Court reasoned that:

 “[a]ppointing an Administrator [to replace the dissolved council] is a stop gap option that is meant to pave the way for an election. Furthermore, an election as a result of the dissolution decision may in fact result in many of the same councillors returning to their positions again resulting in a hung Municipal Council. There is no guarantee that a fresh election will resolve the relevant obligation. It is an option more reliant on hope than certainty and as such cannot, objectively, be viewed as capable of resolving the problem at hand” (para 89).

Hence, the Court judged that the most viable option was for the Province to ensure that, without a lawful excuse, all the “errant councillors” attend meetings and stay in attendance to enable the Council to conduct its business, as discussed elsewhere in this Bulletin.

Conclusion

Many municipalities continue to face problems that require provincial and national government intervention and support. Provinces, as the primary supervisors of municipalities, must make the right call when it comes to using supervisory powers to bring a municipality back on its feet. The latest court judgments on provincial interventions suggest that (1) provinces often do not intervene when they are supposed to and (2) where they do intervene, they often choose the wrong intervention. It is a sad indictment to the system of intergovernmental supervision and support that some communities were left with no choice but to approach the courts to order the province to do what it is constitutionally required to do.

The Gauteng Provincial Government has requested leave to appeal the decision of the High Court nullifying its dissolution of the Council of Tshwane. The Dullah Omar Institute will continue to follow and report on developments in the local government sector, including court cases on section 139 interventions.

 

by Tinashe Carlton Chigwata

 

The publication of the Bulletin is made possible with the support provided by the Hanns Seidel Foundation and the Bavarian State Chancellery.