Local Government: Municipal Structures Amendment Bill, 2024: Written Comment
- Inclusive Society Institute
- Jun 28, 2024
- 6 min read
28 June 2024
Director General
For the attention: Mr Nhlamulo Mathye
Department of Cooperative Governance
Private Bag X804
PRETORIA
0001
Director General,
LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT BILL, 2024: WRITTEN COMMENT
Your invitation for written submissions on the Local Government: Municipal Structures Amendment Bill, 2024, as published in the Government Gazette No. 50682 of 2024, refers. Thank you for the opportunity.
1. Legal and constitutional concerns
1.1. Insertion of section 12A in Act 117 of 1998 – Change of a mayoral executive system to a
collective executive system
This section sets out an amendment that requires a municipality with a mayoral executive system to convert to a collective executive system where no single party has a majority in the council, be it as the result of a declared election or by-election.
In a legal opinion obtained by the Inclusive Society Institute, it is submitted that this section would be in contravention of the prescript in section 155(5) of the Constitution that provincial legislation must determine for each category of municipality the different types of municipalities that may be established in that category in the province.
The more detailed argument is included in the legal opinion, which we attach hereto for your insight.
Whilst the Institute has a further concern with regard to the policy rationality of this clause as set out in point 2 below, a remedy is proposed in the attached legal opinion, namely (insertions underlined):
“8. Types of category A municipalities.—There are the following types of category A municipalities:
(a) a municipality with a collective executive system;
(b) a municipality with a collective executive system combined with a subcouncil
participatory system;
(c) a municipality with a collective executive system combined with a ward
participatory system;
(d) a municipality with a collective executive system combined with both a subcouncil
and a ward participatory system;
(e) a municipality with a mayoral executive system where one political party holds a
majority of seats;
(f) a municipality with a mayoral executive system combined with a subcouncil
participatory system where one political party holds a majority of seats;
(g) a municipality with a mayoral executive system combined with a ward participatory
system where one political party holds a majority of seats; and
(h) a municipality with a mayoral executive system combined with both a subcouncil
and a ward participatory system where one political party holds a majority of seats”.
A further amendment to section 16 would be required to facilitate changes in the municipality type following elections (whether general or by-elections). Such an amendment to section 16 could take the form of adding a new subsection, namely (insertions underlined):
“16. Amendment of section 12 notices —
(4) Following an election or by-election, the MEC for local government in a province must,
(a) determine whether each municipality in the province still meets the conditions for the existing type of that municipality; and
(b) if the MEC finds that a municipality no longer meets the conditions for the existing type of municipality, commence the process to amend the section 12 notice in respect of that municipality in terms of subsection (1)(a)”.
1.2. Amendment of item 13 of Schedule 1 to Act 117 of 1998 - The 1% threshold introduced for
allocation of seats
Once again, in line with the legal opinion obtained by the Institute, it is highly questionable as to whether the amendment would pass constitutional muster, since:
1.2.1. It flies in the face of the right to free political choice as set out in section 19 of the
Constitution;
1.2.2. It is also likely in conflict with the constitutional requirement in section 157 in that
the outcome of the election cannot be viewed as resulting in proportional
representation; and
1.2.3. The rationality of the proposed 1% threshold can be questioned on the basis of the
lack of rational connection between the proposed rule and the reason given for it.
The legal arguments for the aforementioned assertions is set out in the legal opinion, which has been attached for your insight.
2. Policy concerns
2.1. Change of mayoral executive system to a collective executive system
The Bill, in the proposed amendment of section 43 of Act 117 of 1998, envisages the establishment of coalition governments in municipalities in which no party has a majority of seats on the council. But at the same time the Bill, through the insertion of section 12A in Act 117 of 1998, councils in which no party holds a majority, are automatically converted into a collective executive system.
It is the Institute’s assertion that under an arrangement whereby municipalities are automatically converted into collective executive systems, the need for coalition agreements fall away.
It is, however, the Institute’s considered view that the democratic system should be flexible enough to allow for mayoral executive systems through coalitions in instances where no party obtains an outright majority. To this end it is suggested that the Department further amend section 12A as set out hereunder (insertions underlined):
“12A. A municipality with a mayoral executive system, in which no political party obtains a majority of seats when the municipal council is declared elected or after a by-election contemplated in section 25, and where two or more parties fail to within 30 days from when the elections have been declared, form a coalition in which the parties in the coalition hold a majority of the seats in the council, must, in accordance with section 16, be changed to a type of municipality with a collective executive system by the MEC for local government within 30 days after the municipal council was declared elected or after a by-election contemplated in section 25”.
The abovementioned amendment would obviously require a revision of our proposed amendment contained in point 1.1. above.
2.2. The 1 percent threshold
In reading the memorandum on the objects of the Bill, it appears that the Department’s motive for the introduction of the 1 percent threshold is twofold. Firstly, to reduce the number of political parties in the system, and secondly, to ensure more stable coalitions.
2.2.1. Reducing the number of small parties
On the issue of eliminating parties that receive less than one percent of the vote, it is the Institute’s assertion that it results in a re-engineering of the will of the people. As voting patterns in previous South African elections have shown, a substantial percentage of votes are cast for parties that receive less than one percentage of the vote. For example, in the last national election, the combined vote of parties in parliament that received less than one percent of the total vote, amounted to 3,42 percent.
Under the system proposed in this Bill, that would have disenfranchised 3,42 percent of the electorate, which would fly in the face of all votes being equal.
Secondly, apart from deviating from the constitutional principle of general proportionality raised earlier in this submission, the electoral system should enable the empowerment of citizen’s political rights as espoused in section 19 of the Bill of Rights. This was again confirmed by the Constitutional Court in their ruling on the Electoral Amendment Act (Case CCT 158/23).
The following points were made in the ruling, amongst others:
The principle of one person one vote is foundational to our representative and participatory democracy. It is an inherent component of the right to free and fair elections.
It is important in a democracy that equality of the vote is complemented with equality of voice.
Any limitation of a right must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
The electoral scheme must not infringe any of the fundamental rights enshrined in Chapter 2 of the Constitution.
The one percent threshold is inconsistent with the aforementioned.
South Africa’s history has shown us that one cannot assert that small parties are disposable. Under apartheid, the lone anti-apartheid voice of the PFP’s Helen Suzman would have been silenced under the scheme being proposed in the Bill, as would the ability of the Good party to participate in the Executive’s 6th administration. The simple point made here is that small does not mean that the party doesn’t have the capacity to make a valuable contribution in the body politic of the nation.
2.2.2. Stable coalitions
There is no evidence to substantiate the claim that by limiting the number of parties in municipal councils, more stable coalitions will be promoted. Coalitions comprising only larger parties can also be unstable, and coalitions comprising a number of smaller parties can be stable. There are many examples in history where coalitions comprising only larger parties have collapsed. And, in any event, it is absurd to assert that a one percent party will ensure greater stability in a coalition than a 0,99 percent party?
Coalition stability has little to do with the number of parties participating. It has much more to do with the political maturity of the leaders.
Once again, thank you for the opportunity to make our submission to you.
Sincerely yours,
DW SWANEPOEL
CHIEF EXECUTIVE OFFICER
________________________________________________________________________
PO Box 12609, Mill Street, Cape Town, South Africa, 8010 Spaces ▪ 1006 One Thibault, 1 Thibault Square, Cape Town, South Africa, 8001
Tel: +27 (0) 21 201 1589, Email: admin@inclusivesociety.org.za, Website: www.inclusivesociety.org.za, 235-515 NPO PBO 930069173
VP Khanyile (Chairperson), Z Ndevu (Deputy Chairperson), K Millard, K Khoza, S Muller, D Swanepoel (CEO)
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