ConCourt says Gauteng government dissolution of Tshwane council was ‘unlawful’

The Constitutional Court has ruled that the dissolution of the Tshwane council by the Gauteng government in March 2020, which left 214 councillors out of jobs for seven months, was unlawful. Justice Steven Majiedt delivered the long-awaited judgement on the matter, which was heard in September 2020, on Monday morning.

The Gauteng government approached the court to overturn a decision by the Gauteng High Court in Pretoria in June 2020 in which it ruled that the dissolution of councillors was unlawful.

The apex court carried the responsibility to determine whether the decision was warranted and an order, which stipulated that ANC and EFF councillors would have to attend meetings unless they had substantial lawful reasons to do otherwise granted by the Gauteng High Court, was an appropriate remedy. In the majority judgement by five of the ten justices and penned by Justice Mathopo, Majiedt said although there were exceptional circumstances in the case of Tshwane, these did not warrant the provincial government to dissolve the council.

The judgement read: “The court identified four jurisdictional facts, in terms of section 139 (1) (c) of the Constitution that had to be established for the dissolution decision to be unlawful.

– The first was the establishment of a failure to fulfil an executive obligation.

– The second was the taking of an ‘appropriate step’.

– The third was the existence of exceptional circumstances,

and the fourth was that the exceptional facts had to warrant dissolution. “The court found that three of the jurisdictional facts had been established, but the dissolution was not warranted in the circumstances. Thus, the dissolution was found to be unlawful.”

As for the order by the High Court compelling councillors to attend council, the court set that aside. It substituted this with an order compelling MEC Gauteng Lebogang Maile to appoint a person or a committee to investigate the cause of the political instability in the Tshwane metro during November 2019 and March 2020.

Furthermore, the court ordered the Gauteng provincial government to pay for the DA’s legal costs. As of November 2019 due to political instability, the Tshwane council failed to hold meetings resulting in them being unable to appoint a city manager and a mayor in March after DA mayor Stevens Mokgalapa resigned in February 2020 following a sex scandal. The court noted that the High Court also found that Maile did not prioritise or address disruptions of council meetings caused by ANC and EFF staging walkouts.

“The premier [David Makhura] also did not, in his answering affidavit, address the failure to act against the errant ANC and EFF councillors at all,” the majority judgement read. While the court ruled that the dissolution was unlawful, it also emphasised in the judgment that councillors by walking out of council meetings they failed to serve their communities.

“The people of Tshwane come first. We are dealing with a very difficult situation and are tasked with finding a remedy that will result in the strengthening of the Municipal Council to manage its own affairs and functions. Importantly, it must be a remedy that will stabilize the Municipal Council and enable it to continue to fulfil its executive obligations.”

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This was the third court where the Gauteng provincial government has lost. In July 2020, the Gauteng High Court ruled the dissolution was unlawful In October 2020, the Supreme Court of Appeal (SCA) dismissed an appeal lodged by the provincial government not to have councillors reinstated at the Tshwane metro. The councillors were reinstated by the court In October 2020, the Constitutional Court ruled Tshwane dissolution was unlawful.

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