Local government, as the coal face of service delivery, is the level at which the public most tangibly feels the effects of political decision-making. It’s also a level of government that’s increasingly been the focus of litigation over the years.
Litigation involving municipalities is widespread. Consider, for example, the cases brought by nonprofit business chamber Sakeliga, whose 12,000 members are mostly small-business owners. It alone has launched dozens of legal challenges over municipal failings on their behalf.
Things "started skyrocketing" when local chambers of commerce began to join Sakeliga’s cases, says CEO Piet le Roux. "Things scaled up to the point where we were getting interdicts against power failures, water interruptions, and we actively have to design litigation to cover for multiple cases."
Now, after the latest elections, the judiciary is set for a busy season: disputes about poll results, tussles over who remains on party lists and even criminal cases for politically motivated killings are among the types of cases analysts expect in the months ahead.
In the past three years, high court judges have had to referee a full gamut of cases related to local government. In 2019, for example, an assault on Tshwane’s speaker in a council meeting became a matter on the roll of the Pretoria high court. In 2020, the DA took Ethekwini metro to court over the handling of a virtual meeting during lockdown. The Free State High Court has had to deliberate over a breakaway group of ANC councillors who held an offshoot "council" meeting in Metsimaholo local municipality. And when two ANC politicians came to loggerheads over who was the rightful speaker in the Northern Cape municipality of Phokwane — bringing the work of council to a halt — the judiciary was tasked with solving the problem.
Beyond politicians themselves, litigants against municipalities include current and former employees, business chambers, ratepayers’ associations and NGOs. Sakeliga, for example, took two ministers and the Ditsobotla council in North West to task in June so a special master could manage funds for power and water. A month earlier, it obtained interdicts to avert power and water cuts in 10 North West towns following nonpayment by municipalities.
In the aftermath of an election characterised by poor turnout and a shift of support to smaller parties and independents, analysts are looking out for an uptick in politically charged cases.
Tessa Dooms, political commentator and director of Jasoro Consulting, predicts that a rise in coalitions will see newer and smaller parties using the law as a "big hammer" until such time as they are able to "manoeuvre politically in the space in ways that don’t require the law or onerous intervention".
But it’s not just the little guys who are likely to make legal waves; it’s often those on the margins of power more generally. Nelson Mandela University politics lecturer and researcher Ongama Mtimka says: "It tends to be opposition parties who take legal recourse when they feel that power is being abused by the dominant [party], whether it’s a coalition government, or it’s a governing party … I think that can be expected to continue, especially in a political environment where there is the decline of the dominant party."
Jaap de Visser, a professor of public law at the University of the Western Cape, has studied legal disputes at local government level for more than a decade. A trend he’s noticed over the years is that political infighting has flowed into the courts — ironically, to the detriment of service delivery.
"Where the rubber hits the road is how the factionalism within the ANC has spilled over into council governance," he says. "In other words, how council meetings are run, how office bearers are elected. We’ve seen a lot of mayhem."
De Visser expects disputes to arise over who will remain on the ANC’s party lists after this week’s elections. It’s a possible legal outcome, given that acting secretary-general Jessie Duarte has already said the party will consider as many as 250 complaints about representative selection.
With a number of coalitions on the cards, smaller "kingmaker" parties are also set to drive hard bargains by, for example, promising support in return for having their representative elected mayor or speaker. But that can lead to further trouble, De Visser cautions.
"Before you know it, you have someone with no political legitimacy to speak of running a municipality as an executive mayor, and that’s bizarre."
If political allegiances subsequently take strain, it’s not inconceivable that such matters will end up in the courts.
Dooms, however, believes the "weaponising" of law in local government is a "phenomenon we can ill afford".
"The law is there to act as a check and a balance for the democratic process … rather than as a tool for meting out political justice or shifting political factions," she says. She’s concerned that public representatives and parties will use the law to settle their internal scores — including within coalitions — rather than tackling issues that directly affect service delivery, such as corruption.
How litigious do constituents want their representatives to be, she asks. "Do they want them to use the law to mete out justice or to change the status quo? Yes. But it must be in service of people — not in service of their own political careers, their factional battles, or the fortunes of the political party."
Factionalism within the ANC has spilled over into council governance. In other words, how council meetings are run, how office bearers are elected. We’ve seen a lot of mayhem
— Jaap de Visser
In the near term, University of Pretoria political sciences lecturer Sithembile Mbete expects legal disputes to arise over the election results, and she doesn’t rule out an increase in criminal cases over politically motivated violence.
"You may see elected ward councillors, particularly from the ANC, being killed even after the election if somebody wants to take their positions," says Mbete.
But she predicts that cases related specifically to local-level service delivery will follow in time.
"We need to look out for what’s going to happen with the first council meetings … and whether there are any incidents of assault or of parties deciding not to pitch so that they don’t have to vote for the speaker or mayor," she says.
If, say, a council choosing a speaker or mayor is not lawfully constituted, its choice will be open to challenge.
The issue, says De Visser, is that chaos in council chambers has a very real cost — and one that’s very quickly felt. For instance, if a rural municipal council does not meet, or meets only to then collapse, the impact is immediate.
"It’s an unforgiving environment," he says. "Officials depend on councils to take decisions." But if councils can’t reach an accord, "stuff just doesn’t get done". And it is residents who then suffer as service delivery stalls.
De Visser says court cases at local government level can lead to statutory changes that have far-reaching consequences. He cites amendments made this year to the Municipal Structures Act of 1998. These saw the introduction of provisions for there to be at least 10 councillors per municipality, a two-year ban on councillors expelled for violating their code of conduct and clarity on when councillors’ terms begin, among other things.
De Visser refers to one of the original provisions in particular — about who decides where and when a council meets — that "turned out to be the Achilles heel" of local governance.
"It seems like such a trivial thing to administer," he says. In reality, it’s not so simple. Though it typically falls on the speaker to decide on council meetings, if councillors want to vote the speaker out, then issues can arise.
"It’s like inviting the turkey for Christmas," he explains. If a majority of councillors want to convene a meeting, they may petition the speaker to do so. Previously, if the speaker refused, there was a deadlock.
The 2021 change allows the provincial MEC of local government to designate someone to call and chair a municipal council meeting when the speaker, acting speaker or municipal manager won’t do so.
"If it’s all driven by self-interest, the rules get abused, and then you need a layer of rules for each and every possible eventuality. That’s what we ended up with now: all these tiny rules, which are essentially aimed at solving political problems."
The politicisation of local government extends to the appointment of municipal managers, who are selected by politicians in council and hired on fixed-term contracts. The managers who perform best, in De Visser’s view, are apolitical. "They can work with any political ‘flavour’ in the council," he says. "But you also have municipalities where they are appointed because of their political allegiance."
In recent weeks, says De Visser, a court set aside the appointment of a municipal manager as other candidates scored better in terms of the job requirements. "Clearly, there were other interests at play. And we still see too much of that."
Bearing in mind the proximity of local government and clearly shifting political dynamics, Dooms says communities may organise to litigate against neglectful local officials and guarantee service delivery. She cautions, however, that this is feasible only to the extent that bringing cases is affordable for those not organised in civil groups or represented by NGOs.
"I think it’s going to be as legitimate a form of accountability and engagement as something like protest is, or as community engagement," she says.
Meanwhile, a concern for De Visser relates to representatives’ private interests. While the rules demand councillors, like MPs, declare their interests — property ownership and stakes in business, for example — "hardly any" municipality actually does so.
So while the rules provide for transparency, he says an application under the Promotion of Access to Information Act is usually needed to actually obtain it — a process that often demands energy, time and resources.
Even members of the public wanting to know such basic information — what their duly elected officials own — may have to resort to litigation to get a response.
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