The Gauteng Playbook on subverting the Constitution and winning back lost ANC ground
23 March 2020
Section 139 of the Constitution is meant to be fail-safe mechanism for local democracy. It allows provincial and national government to rescue communities from dysfunctional municipalities.
The provision is rooted in the idea of “co-operative governance”, which requires different spheres of government to support each other in fulfilling their functions. But sometimes support alone is not enough.
So section 139 sets out different kinds of intervention escalating in degrees of severity - from the issuing of a directive to a recalcitrant council to get its house in order; to placing it under provincial administration; to dissolving it and calling fresh elections.
This last and most radical of remedies, reserved for “exceptional circumstances”, was recently invoked by Gauteng’s provincial government in the Tshwane metro. The speaker of Tshwane’s municipal council had to learn about the decision in the media.
And within days, as if it had been planned weeks in advance, Premier David Makhura and his MECs were addressing public meetings across the city to explain to residents just how badly Tshwane had been governed, and how the province was coming to their rescue.
Tshwane has had significant challenges. But, unlike the ANC-governed Emfuleni and Merafong municipalities in the same province, Tshwane has:
No arrear Eskom debt
No (unlawful and lost) deposits in VBS Mutual Bank
Enough cash-on-hand to fund operations for a month-and-a-half
A respectable credit rating from Moody’s (upgraded two notches in 2017)
Three consecutive budget surpluses and unqualified audit opinions
A functional fire-brigade
A steady stream of development especially in the booming Centurion and Pretoria East
Some Tshwane residents will complain that power outages are too frequent, that the last round of pre-paid electricity tariffs was bungled badly, and that too many of the tender and disciplinary scandals that typified 16 years of local ANC rule still recur at Tshwane House. The DA-led coalition, holding together a tenuous minority government, have certainly made numerous mistakes. We have also learnt that turning around a failing municipal administration and breaking-up corruption networks, whether in Joburg, Tshwane, or Nelson Mandela Bay, is no short-term project.
But what really makes Tshwane exceptional in the eyes of the Gauteng provincial government is that the ANC is no longer in charge of the nation’s Administrative Capital. No other fact can account for its failure to also disband ANC-controlled Emfuleni and Merafong municipal councils. As an aside: in Emfuleni even the army has given up on saving the Vaal’s water infrastructure from collapsing under the weight of years of municipal neglect and ineptitude.
The ANC never accepted its Tshwane defeat at the 2016 local government elections. So it set out to make the metro ungovernable in the hands of the DA-led coalition government - from the violent disruption of council meetings, to blocking disciplinary action against a compromised city manager, to frivolous lawsuits (which they lost with costs).
While the EFF (which holds the balance of power in Tshwane) supported DA mayors and budgets, the ANC’s rapacity was checked. But when the EFF turned its coat, the balance of forces were finally propitious for an ANC Gauteng government takeover of Tshwane. Or so the ANC thought. By walking out of meetings, and breaking the council quorum, ANC and EFF councillors ensured that Tshwane's last four council meetings could not proceed, and provided the pretext for provincial intervention.
The mastermind behind the Tshwane takeover is the Gauteng MEC for local government, Lebogang Maile. He will no doubt claim that before he took the most drastic of steps to dissolve Tshwane’s council, he first fired off a number of letters of “intervention” to various Tshwane officials. But none of these letters were addressed to councillors of his own party, or indeed those of the EFF.
Yet if MEC Maile was genuinely concerned about the welfare of the residents of Tshwane, he would at the very least have admonished the metro’s ANC caucus about being in breach of the statutory code of conduct for councillor. The code, a schedule to the Municipal Systems Act, stipulates that a councillor is liable to be fired if he or she is absent from three consecutive meetings. The self-same MEC Maile is responsible for enforcing this code, but he clearly had more pressing political priorities.
If the ANC’s genuine intention was to break a political deadlock in Tshwane, it could dissolve the Council quite legally by joining forces with the EFF and using their combined numbers to pass a resolution to do so. Then their real agenda of regaining power would be clear for all to see. Of course, they prefer to disguise this agenda and they do this by peddling a narrative that the DA has failed.
By using the most extreme form of intervention contemplated in section 139, the ANC can also marshal state resources – including tax-funded roadshows and advertisements – ostensibly to explain what is happening to the public, but in reality to start driving the ANC’s 2021 local election campaign.
What happens if fresh elections are held in Tshwane, less than a year before the 2021 poll, and again no party emerges with an absolute majority? Will MEC Maile keep dissolving the council until the ANC wins? A ridiculous prospect, you might think. But, once it becomes accepted practice, Maile’s playbook on subverting the Constitution to win back lost ANC ground will surely be applied in other communities.
Simply put: if we allow the ANC and EFF to deliberately make a city “ungovernable” by preventing a council from holding quorate meetings, as a cynical ploy to enable a power grab by the ANC in another sphere of government, it could lead to the death of local democracy where coalitions are needed to govern.
City dwellers have led the way in South Africa by voting out corrupt and inept ANC governments. The ANC, which still has command of considerable state power, has shown that it will do almost anything to reverse such a result. That is why the DA is so determined to rip Maile’s playbook to shreds, in a court of law and in the court of opinion.
The future of local democracy depends on it.
By Cilliers Brink, DA Deputy Shadow Minister of Cooperative Governance & Traditional Affairs