Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 21/08/2024

Introduction:

Last week the eighth Johannesburg mayor in five (5) years, Kabelo Gwamanda, resigned. The revolving door of mayors (a byproduct of political instability and fragmented governance) has highlighted the urgent need to formalise coalition agreements at a local government level.

Enter the Department of Cooperative Governance and Traditional Affairs (“COGTA”): COGTA has drafted two (2) bills that proffer solutions for how to address the problem of shaky municipal coalitions – the Local Government: Municipal Structures Amendment Bill 2024 (the “Coalition Bill”) and the Local Government: General Laws Amendment Bill, 2024 (the “General Bill”). Both Bills were opened in May for public comment, until 31 August 2024. It is the Coalition Bill that, e.g. GOOD, is asking to be withdrawn and which this article will deal with.

What does the Coalition Bill aim to do?

As the government department responsible for local government, COGTA has drafted the Coalition Bill in an aim to help stabilise hung municipalities. This bill aims to modify the Local Government: Municipal Structures Act, 1998 (the “Act”). This is the law that establishes municipalities (i.e. government at the local level) and regulates them and their office bearers. (See this article for more information on the different types and categories of municipalities.)

The Coalition Bill aims to, amongst other things:

1. Define what a coalition agreement is and make it binding;
2. Require hung municipalities with a mayoral executive system to change to a collective executive system; and
3. Set out the grounds for removal of municipal office-bearers from office.

The Foundation’s views:

The FW de Klerk Foundation has long held the position that formalising coalition agreements between political parties is crucial for ensuring stable and effective administration. The Western Cape Prime Minister, Alan Winde, also recently agreed that such legislation is desperately needed to stabilize coalition agreements.

The Foundation, therefore, welcomes COGTA’s initiative in drafting proposals for what a law could look like. However, the Foundation does not agree with all of COGTA’s proposed solutions to address the problem of a “revolving door of mayors” in a municipality where no party obtains a majority of seats on the municipal council (“a hung municipality”).

Hung municipalities:

The elected municipal council may choose how it exercises its executive power (section 7 of the Act). Amongst the options available to the council, is to do so through a collective executive system (where the municipality’s executive authority is collectively vested in an executive committee), or an executive mayoral system (where that power is vested in the mayor).

It is important to note that if the executive mayor is removed from office by the council, then the entire mayoral committee appointed by that executive mayor also dissolves (section 60(5) of the Act.) Thus, if a coalition government is formed and an executive mayor is elected, only for that coalition to sooner or later dissolve, resulting in the mayor (and his entire committee) being removed from office, the exercise of executive power and functions in that municipality are hamstrung, hindering the council’s most important objective, namely to meet its community’s basic needs (Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC)).

This is not the case with executive committees. Although a municipal council may remove executive committee members from office by resolution, their removal does not automatically trigger the dissolving of the entire executive committee (section 53 of the Act). As such, the exercise of executive power and functions in that municipality can continue.

In its attempt to ensure greater stability in governance for such hung municipalities (see paragraph 2.3. of the Bill’s Memorandum), clause 2 of the Bill suggests that hung municipalities with an executive mayor must change from having an executive mayor to having executive committees. Which, to some extent, might seem like a reasonable solution to propose.

The rub is this: Unlike an executive mayor who is elected by the municipal council (55(1) of the Act), the award of seats on the executive committee to political parties or political interests is determined by law (section 43(2) of the Act). Thus, in hung municipalities, various parties may win a seat on the executive committee. The Bill’s proposal will effectively enforce a “mandatory coalition” in hung municipalities, resulting in those who obstruct the exercise of executive authority they do not agree with, being on the executive committee.

The Foundation believes this will only cause great instability in the governance of those municipalities, not less. This is especially concerning as over 30% of the country’s municipalities were hung municipalities after the last local government elections.

Rather, in its written legal submission to COGTA on the Coalition Bill, the Foundation proposed that the sought after stability could be best achieved by tightening the law surrounding the way and/or circumstances under which an executive mayor and/or deputy executive mayor may be removed from office. Specifically, the Foundation proposed that at least two (2) years must have passed since the executive mayor or deputy executive mayor was elected and that at least two-thirds majority of council members vote in favour of their removal. (However, they can be removed from office at any time if such removal is on the grounds of a serious violation of the Constitution or the law; serious misconduct; or inability to perform the functions of office.)

Next steps:

While COGTA’s first draft of a Coalition Bill is not perfect, it still has a long way to go before it can become law (including being tabled in and making its way through both houses of Parliament) and it is important that South Africans exercise their right to be part of the conversation: COGTA has currently asked for public comment on the Bill until the end of August 2024. This is an ideal time for the public and political parties to stay in the conversation and to come forward with alternative solutions to ensure stability in service delivery in hung municipalities.