Law’s limits in resolving divisions in the ANC exposed

Contrary to depictions of local government as sites of lawlessness, the law imposes real limits on the range of strategies available to actors in municipalities. But the law, in adept hands, can also be a powerful weapon in attempting to remove political opponents and extend partisan control over a state institution.

The rise of political conflict in the Mogalakwena local municipality, for instance, was not simply a descent into lawlessness. In fact, it was accompanied by a proliferation of legal action launched by opposing groups of the local ANC.

Distinct factions of ANC councillors emerged – centred around the municipal manager on the one hand, and consecutive mayors on the other. Each sought to have the other removed from their positions, largely through legal avenues.

A series of disciplinary hearings, forensic investigations, rapid assessment teams, provincial interventions and ongoing and unresolved court battles shaped the deepening political crisis – and resulted in a legal deadlock. Amid this paralysis, rivals increasingly turned to violent means to retain or regain control over the municipality.

In December 2014, the mayor, who had been ousted by 23 ANC councillors supportive of the municipal manager, returned to the municipal building. He forcibly entered the premises alongside a host of bodyguards and police officers. Municipal personnel were evicted with teargas and rubber bullets.

The long-standing disputes that gripped Mogalakwena, and which culminated in the shutdown of the municipality, demonstrated the limits of the law in resolving deep-seated and recurring political divisions. Indeed, throughout these years, the use of legal mechanisms by competing factions only deepened the divisions.

Under the courts’ gaze, opposing actors in Mogalakwena’s factional dramas justified their actions in the name of good governance, transparency, accountability or fighting corruption. Official documents served to propagate these narratives.

Mogalakwena’s record-keeping division staff complained of lawyers’ intrusions.

Auditing firms provide the legal ammunition for far-reaching political action. Whether or not the provincial government responded to the findings of a forensic audit appeared to depend on the political allegiances of the provincial ANC. Where some reports were immediately acted upon, others were met with silence and inertia.

While it is clear that the courts regard forensic reports with authority, there is a sense that judges could only see a segment of a larger, more complicated picture – with, perhaps, too little scrutiny of the political dimensions of report creation.

Mogalakwena’s legal fees grew rapidly as court battles continued. The municipal budget was drawn on by competing factions to advance or defend legal action, advance disciplinary hearings or fund investigations and legal opinions.

Providing legal services to a local municipality can prove extremely lucrative, despite producing work of dubious accuracy that furthers a particular faction’s agenda. In Mogalakwena, legal costs ballooned from R3.8-million for the 2011/2012 financial year, to R7.9-million the following year, remaining above R6-million in consecutive years.

The real cost of a highly litigious environment is a climate of fear in state institutions, and greater division in the majority party.

The law can provide little relief to state institutions afflicted by the governing party’s haemorrhaging divisions. Rather, the escalation of ‘lawfare’ has splintered the party further.

‘ ‘ The escalation of ‘lawfare’ has splintered the party further

The Mogalakwena Local Municipality in South Africa