What happens if the GNU falls apart – what the law says

South Africa’s legal framework allows a provincial government to dissolve a local government council if it fails to deliver on its mandate, but things get far more tricky when the same happens at the provincial level.

According to an analysis done by Thandiwe Seboletswe and Cohen Grootboom from legal firm Adams & Adams, the national government is empowered by law to intervene where provincial coalitions fall apart, but it has no power to dissolve provincial governments and call for new elections.

The question of what can be done in hung or dysfunctional provinces in South Africa is quickly becoming a pertinent one in a post-2024-election South Africa.

The political landscape in the country hit a turning point after the ANC failed to secure a 50%+ majority following the election, and no single party won a majority share of the vote in key provinces like Gauteng and KwaZulu Natal.

This has presented a new era of governance in South Africa, with the ANC-led ‘Government of National Unity’ (GNU) emerging as the structure of choice.

While the GNU is not being sold to the nation as a coalition, its formation follows many of the same principles, including having a ‘founding document’ which all parties sign and subscribe to. In the case of the GNU, one of the key foundations in upholding the Constitution and the rule of law.

The GNU has already come together to elect a national leader in Cyril Ramaphosa, and has started filtering through to the provinces, with the so-called founding members establishing the agreed-upon provincial leadership.

However, it has not been smooth sailing, with the parties involved reportedly hitting a rut in negotiating for cabinet positions nationally and executive positions in the provinces. This raises questions about what happens if these agreements and coalitions fall through.

The legal experts warned that “should these coalitions collapse, the economic and governance consequences could be disastrous, particularly impacting the impoverished groups of society.”

Seboletswe and Grootboom outlined the legal standpoint below:

Coalition Breakdown at the local level

If parties to a coalition agreement fail to honour their commitments, the repercussions are typically political rather than legal, the experts said.

However, in South Africa, there have been times when breakdowns have led to legal wrangling.

Local government coalitions since 2021 have varied in stability in South Africa, with the City of Tshwane providing a notable case study of legal consequences when ‘coalitions’ collapse.

The case involved a dispute over the dissolution of the City of Tshwane Metropolitan Municipal Council after an informal coalition between the Democratic Alliance and the Economic Freedom Fighters fell apart in the metro.

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.

In the Tshwane case, the provincial executive dissolved the council, citing a failure to meet executive obligations.

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.

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.

Breakdown at the provincial level

The judgment in the Tshwane case 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 that the former (dealing with provincial interventions) does not have a dissolution clause.

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 fulfil 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 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.

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 stressed that all government coalition agreements and contracts should be made public for public scrutiny. This sentiment was echoed by Pranish Desai from Good Governance Africa, who argued that formal coalition arrangements must be made public to allow citizens to hold elected officials accountable.

Commentary by Thandiwe Seboletswe and Cohen Grootboom, Associate and Senior Associate at Adams & Adams. Read the original here.

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