Issued by Lusanda Mahkuntsu on behalf of the FW de Klerk Foundation on 12/12/2025

Introduction

This case concerned whether the tie-breaking mechanism in the Local Government: Municipal Structures Act, 1998 is constitutional (section 43(2)(c) of the Act). The provision requires sortition when parties have equal surplus votes for a seat on a municipal executive committee. (Sortition is where the seat allocation is decided by drawing lots. And municipal executive committees are where the municipality’s executive authority is collectively vested in an executive committee as opposed to only in the mayor.) The High Court found this unconstitutional. It referred the order to the Constitutional Court for confirmation. The Constitutional Court, however, refused to confirm the order and upheld the validity of the provision. This case note explains why the Court did so.

Facts

After the November 2021 local government elections, the Fetakgomo Tubatse Local Municipality elected members to its municipal executive committee. The Socialist Agenda of Dispossessed Africans (“SADA”) and the Democratic Alliance (“DA”) each obtained two council seats. When surplus-vote calculations were applied to allocate executive committee seats, both parties obtained the same number of surplus votes. As required by the Act when a tie occurs, lots were drawn to allocate the seat. The DA won the draw.

SADA took the matter to court and argued in front of the High Court that allocating a seat by sortition disregarded votes cast for political parties. SADA also said this violated the right to vote (section 19(3)(a) of the Constitution) and the Constitution’s requirement for fair representation in municipal councils (section 160(8)). It claimed that this requirement cannot be achieved through random selection. The High Court agreed and declared the provision invalid. The declaration of invalidity was suspended pending confirmation by the Constitutional Court as required by the Constitution (section 172(2)(a)).

Issues

The Court had to determine whether the tie-breaking mechanism of sortition (in section 43(2)(c) of the Act) was inconsistent with the Constitution. It had to decide if the:

• Use of drawing lots infringes the right to vote (section 19(3)(a) of the Constitution);
• Use of drawing lots breaches the requirement of fair representation (section 160(8) of the Constitution); and
• High Court had correctly interpreted the constitutional rights relied on by SADA.

Before addressing the High Court’s reasoning, the Court also considered the nature of municipal executive committees and the purpose of the tie-breaking mechanism.

Law

The Constitution gives every citizen the right to vote in elections for any legislative body (section 19(3)(a)). The Constitution further provides for members of the municipal council to participate in meetings. Section 160(8) requires municipal councils to apply democratic values when they elect members to committees. It also requires fair representation. Councils must follow national legislation that regulates these processes.

The Municipal Structures Act regulates the composition of municipal executive committees. Section 43(2) requires proportional representation when allocating seats. Section 43(2)(c) resolves a tie in surplus votes by drawing lots.

The Court had to interpret these constitutional and statutory provisions together. It drew on its earlier decision in Democratic Alliance v Masondo, where it held that the Constitution requires fairness in representation, but does not demand exact mathematical proportionality in internal municipal structures.

Application

The Court held that SADA’s arguments did not justify striking down section 43(2)(c).

Fair representation (paragraphs 35 through 37)

The Court explained that the Constitution requires fair representation, but does not require strict proportionality. The proportional representation system is applied at the municipal council. Executive committees, however, are permitted to operate under rules that do not mirror the exact proportions of council seats. The use of a tie-breaker is necessary to ensure that the committee can be formed. Drawing lots is a neutral and procedurally fair method for resolving deadlocks. It does not undermine the principle of fair representation.

Conduct of the Minister (paragraphs 50 through 53)

The Court noted with concern that the Minister and the Department of Cooperative Governance and Traditional Affairs did not participate meaningfully in the litigation. It stressed that when the constitutionality of legislation is challenged, the relevant Minister must assist the Court.

Right to vote

The Court found that municipal executive committees are not legislative bodies (i.e. they do not make laws). They are executive bodies (i.e. they exercise delegated executive functions under the authority of the municipal council). Since the right to vote protects elections to legislative bodies, and the executive committee is not such a body, the right to vote was not implicated. The Court, therefore, held that drawing lots does not infringe the right to vote.

Separation of powers (paragraphs 41 through 44)

The Court emphasised that the design of internal municipal structures is a legislative choice. Courts should be slow to interfere unless the legislative scheme clearly violates the Constitution.

Conclusion

As the constitutional rights relied on by SADA were not infringed, the Court did not confirm the High Court’s declaration of invalidity. Specifically, the Constitutional Court held that section 43(2)(c) of the Municipal Structures Act is constitutional (see paragraph 50). The use of drawing lots to resolve a tie in surplus-vote calculations for seats on a municipal executive committee does not breach the right to vote or the requirement of fair representation.