Intervention in South African municipalities: Dangers and remedies

• Citation: (2023) 140 SALJ 95
• DOI: https://doi.org/10.47348/SALJ/v140/i1a5
• Published date: 17 February 2023
• Pages: 95-125
• Author: Bronstein, V.
• Date: 17 February 2023

95

https://doi.org/10.47348/SALJ/v140/i1a5

INTERVENTION IN SOUTH AFRICAN

MUNICIPALITIES: DANGERS AND R EMEDIES

VICTORIA BRONSTEI N†

Associate Profe ssor of Law, University of the Witwa tersrand

DARY L GLA SER‡

Professor of Political St udies, University of the Witwate rsrand

South Afric a’s Constitution guarantees mun icipal autonomy; at the sam e time it enjoins

the dierent el ements of the state t o co-ordinate th eir eorts th rough ‘co-ope rative

government ’ and, in conjunction with legi slation, it under some circumstan ces permits

(or even requires) provin cial and national gover nment to intervene in local g overnment

aairs to secure e ective gover nment and overs ight. These powe rs of intervent ion,

justied by refe rence to s 139 of the Constitution , range from disciplini ng errant

councillors to t he forced dissolution of n on-perfor ming municipalit ies. Some welcome

such interve ntion as a counter weight to local- level corru ption and inec iency, but in

a partisan env ironment, especi ally where diere nt spheres are cont rolled by dierent

parties or coal itions account able to distinctive el ectorates, these po wers of inter vention

are, we argue, open to p olitical abuse. Th is abuse is likely to bec ome more prevalent

as unstable loc al coalition governments be come more common, providing mo re pretexts

for interventi on and opportunit ies for councillo rs in political minor ities to subver t

their own coun cils in the hope of inviting inter vention by higher-tier actors a ssociated

with their own p arty. In line with the 2021 Constitu tional Court ca se censuring

the dissolution of Tshwane Mun icipality by the Ga uteng governm ent, we argue for

restricting g rounds for interve ntion, especia lly more radical forms of i ntervention.

As far as possible, the t ask of removing co rrupt and ine cient local c ouncils and

councillors sho uld be left to loca l voters.

Local demo cracy – loca l government – pr ovincia l intervent ion – s 139 of

the Constit ution – coal ition governme nt – service del ivery – co- operative

government

I IN TRO DUC TION

According to st andard concepts of democracy and the Constitut ion of

the Republic of South Af rica, 1996, elect ive government should preva il

over non-elective power in the operation of collective self-government.

However, s 139 of the Constitution al lows provincia l executives to

disband elected local govern ments in cert ain exceptiona l circum stances.

The underlyi ng rationale for th is provision is to ensure acce ptable standard s

of local service delivery. However, the question as t o when dissolution can

occur is highly contested and at the heart of a cont roversy which came to

† BA (Hons) LLB (Witwa tersrand ) LLM (London). Member o f the Johan nes -

burg Bar. https://orcid.org/0000-0002-5542-5466.

‡ BA (Hons) (Witwate rsrand) M A (Witwatersra nd) PhD (Manche ster).

(2023) 140 SALJ 95

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96 (2023) 140 THE SOU TH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v140/i1a5

a head in the recent Constitutiona l Court decision concerning the fate of

Tshwane, the municipal ity encompassing South Af rica’s executive capital.

The claim that elective govern ment should norma lly prevai l and be

entitled to govern may seem obvious, measured by common int uitions

about democracy’s mean ing. But it is not always obvious in South Africa.

Indeed, there a re moments in South Afric a when the opposite seems just as

obviously tr ue: that a badly performi ng government — one th at is failing

a people mired in poverty and inequality and demanding better — shou ld

be deposed and replaced by more competent politicians or by technocrats.

South Afr ica, after a ll, has constitutionally specied social r ights that

governments a re obliged to seek to realize within ava ilable resources. And

in South Af rica, the government s liable to do the inter fering in, or de posing

of, poorly-perfor ming elective bodies are, after al l, not militar y juntas but

themselves higher elective branches carrying democr atic mandates.

The tension between t hese imperat ives was recently a nd importa ntly

addressed by the Constitut ional Court in Premier, Gauteng & oth ers v

Democratic Allian ce & others; All Tshwane Councillors who are M embers of the

Economic Freedom Fight ers & another v Demo cratic Alliance & others; Afr ican

National Congress v D emocratic Alliance & othe rs1 (‘the Premi er Gauteng

(Ts hwa ne) case’), which cla ried a previously contested jur isprudence

around the inter pretation of s 139 of the Constitution. We welcome

the main judgment, which came down against the Gauteng Prov incial

Executive’s disband ing of Tshwane’s elected council, and wish to support

and reinforce it in certain aspects.

In line wit h the main judgment, we make point s in favour of view ing

local govern ment in the context of larger const itutional imperatives of co-

operative govern ment, representat ive and participatory democracy, and

constitut ional coherence.2 However, there is more to be said in favour of

mini mising provincia l executive intrusion into elect ive local government,

especial ly given grow ing local gover nment coalition instabi lity and the

opportun ities or pretext s it is likely to create for excessive, arbit rary a nd

politicised provincial i ntervention.

The current g overnment intend s to pass legislation in order to a ssist

with the regulation of interventions. When this ar ticle was wr itten the

Intergovernmental, Monitor ing, Support a nd Intervention Bi ll had not

1 2022 (1) SA 16 (CC).

2 I ntervention i n local govern ment in term s of s 139 of the Constit ution is

always a hi ghly polit icised proce ss. Hence, it is neces sary for it to b e regulat ed

by a strong ru les-based system backe d by the courts (se e Jaap de Visser & Je rome

November ‘Overseei ng the overseer s: Assessi ng the compli ance with mun icipal

intervent ion rules i n South Afr ica’ (2017) 9 Hague Journal o f the Rule of Law 10 9

at 110).

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