ANC hints at Tshwane court ruling appeal, despite NCOP failing in their constitutional role

6 May 2020

During the National Council of Province’s (NCOP) programming meeting on Tuesday, I queried on whether the NCOP will receive the Gauteng High Court ruling on the Tshwane intervention and ensure the Select Committee on Co-Operative Governance and Traditional Affairs engages it.

Several of the ANC members in the meeting pushed back and rejected the suggestion, with one Provincial Whip going so far as to hint that there could be an appeal in the works.

This once again demonstrates the ANC’s determination for political expediency, at the cost of understanding and appreciating the NCOP’s key role in the intervention process.

In both sections 100 and 139 of the constitution, the NCOP has the power to approve interventions in provincial and municipal governments and measure whether they are constitutionally justified and in accordance with the spirit of co-operative governance.

In the case of Tshwane, the NCOP should have noted and rejected the Gauteng Provincial Government’s decision to enact a section 139(1)(c) in Tshwane as it was premature and a disregard for the intended purpose of section 139 interventions.

During the Select Committee deliberations on the Tshwane intervention, the DA made it clear that governance in the municipality was hampering due to opposition councillors boycotting council meetings.  The South African Local Government Association (SALGA) noted they were afforded no opportunity for engagement before the intervention was issued.

Further to this, the Gauteng Provincial Government justified the dissolution of the Tshwane council due to the Municipality failing to fulfill financial and executive obligations.

Sections 139(1)(a) or (b) concern municipal executive obligations and what provincial governments can do to assist without dissolving the council.

Section 139(5)(a) dictates the necessity for the Provincial Government to impose a recovery plan should the municipality fail to meet their financial commitments that compromise service delivery, such as the ones that were listed in the notice of intervention.  

In short, during the NCOP’s deliberations on the intervention, the DA noted that one of the above interventions could have been more appropriate but the ANC refused to engage critically.  They instead chose to fall behind party lines and ram through what has now been declared an illegal municipal intervention. 

The DA in the NCOP will now use this landmark court ruling to justify that the NCOP engages interventions with the intended purpose as set out in the constitution and ensure correct section 139 interventions are applied where appropriate, especially on current interventions before the Select Committee that concern financial and executive obligations.

Issued by Cathy Labuschagne, DA Leader in the National Council of Provinces, 6 May 2020