Who Will Guard the Guardians?
The political landscape in our country has reached somewhat of a turning point following the national elections which saw the ANC falling below 50% nationally, and no single party winning more than 50% of the vote in provinces like Gauteng and Kwa-Zulu Natal.
Coalition governments and the so-called ‘Government of National Unity' have sparked much debate. Should these coalitions collapse, the economic and governance consequences could be disastrous, particularly impacting the impoverished groups of society.
Coalition agreements serve as a roadmap for coalition governance and often rely on political rather than legal mechanisms to ensure adherence. If parties to a coalition agreement fail to honour their commitments, the repercussions are typically political rather than legal.
Countries like Germany, Cape Verde, and Switzerland have had some success with coalition governments. In our country, local sphere coalitions have varied in stability, with the City of Tshwane providing a notable case study of legal consequences when coalitions collapse.
Legal Implications of Coalition Breakdown: Premier, Gauteng, and Others v Democratic Alliance and Others
The case involved a dispute over the dissolution of the City of Tshwane Metropolitan Municipal Council. The Constitutional Court assessed whether the provincial executive's decision to dissolve the council under section 139(1)(c) of the Constitution was justified. This section allows for intervention, including dissolution, if a municipality fails to fulfil its executive obligations.
Background
The coalition between the Democratic Alliance and the Economic Freedom Fighters in Tshwane broke down, leading to a dysfunctional council. The provincial executive dissolved the council, citing a failure to meet executive obligations.
Legal Framework
The intervention that a provincial executive can take to ensure that a municipality fulfils its executive obligations in terms of section 139(1) can include issuing directives, assuming responsibility, or dissolving the council under exceptional circumstances. The court examined the applicability and appropriateness of these interventions, especially focusing on the criteria for dissolution.
Court's Findings
The majority judgment concluded that the jurisdictional facts required for dissolution did not exist and that the council's dissolution was not warranted. The court emphasized the importance of cooperative governance and the necessity for interventions to be appropriate and proportional to the situation.
The High Court's order was modified to require the provincial executive to investigate the cause of the deadlock within the council and recommend appropriate actions.
Legal Remedies and Lessons for National Intervention in Provincial Administration
The Premier judgment provides a useful stencil for guiding national intervention in provincial administration in terms of section 100 of the Constitution, which has similar wording to section 139(1). It underscores the importance of proportionality, cooperative governance, and the necessity for a clear legal framework to address coalition breakdowns.
One critical distinction between Section 100 and Section 139 of the Constitution is the presence of a dissolution clause in Section 139, which is absent in Section 100. Section 139 specifically provides for the dissolution of a municipal council under exceptional circumstances, allowing a provincial executive to intervene directly when a municipality fails to fulfill its constitutional or legislative obligations. This clause is pivotal because it provides a clear and drastic measure that can be taken to address governance failure at the municipal level.
Section 100: Intervention in Provincial Administration
Section 100 allows national intervention in provincial administration but lacks a dissolution clause.
The absence of a dissolution clause in Section 100 means that while the national government can take various steps to ensure that provincial governments fulfil their duties, such as issuing directives or assuming responsibility for certain functions, it does not have the power to dissolve the provincial legislature and call for new elections.
This framework respects the autonomy of provincial governments and underscores the principle of cooperative governance, which is foundational to our constitutional democracy. It ensures that interventions are aimed at support and correction rather than control or replacement, which aligns with the constitutional mandate to strengthen the effectiveness of government across all levels while preserving the democratic process.
The Impact of National and Provincial Coalitions on Local Governance
The co-governing agreements forged at the national and provincial levels, especially in provinces where no single party secured a clear majority, are poised to influence the makeup of existing coalitions in numerous municipal councils. This is the view of Professor Jannie Rossouw, an expert in political economics from the Wits Business School, who notes that the forthcoming cooperative governance deals, particularly in provinces with hung assemblies, will very likely have a trickle-down effect.
This could impact the composition of many similarly hung local councils often entangled in precarious coalition arrangements.
Enhancing Transparency and Accountability
For coalitions to be effective, parties need to drastically increase transparency in coalition negotiations and deals, subjecting them to public scrutiny to hold elected representatives accountable. Rossouw stresses that all government coalition agreements and contracts should be made public for public scrutiny. This sentiment is echoed by Pranish Desai from Good Governance Africa, who argues that formal coalition arrangements must be made public to allow citizens to hold elected officials accountable.
Constitutional Framework for Coalition Governance
The Constitution promotes the rule of law, transparency, and accountability, forming the basis for coalition agreements. By adhering to these principles, South Africa can navigate coalition governance complexities, ensuring stability and effective service delivery for all citizens.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.