Legal opinion favours stability
ANC leaders in Gauteng walked into the party’s national executive committee meeting armed with a legal opinion supporting their plan to form coalition governments in municipalities where the party does not have enough seats to go it alone.
The legal opinion, which the Sunday Times has seen, says coalitions are a better option than minority administrations.
Constitutional experts have warned that while minority governments are permissible under law, they could be detrimental to service delivery as parties in such governments would struggle to pass budgets and bylaws.
The ANC Gauteng legal opinion states that coalition governments would allow parties to pass budgets and policies regardless of political affiliation as long as more than half the members of the council took part in the voting.
“Once half of the council seats have been filled, decisions of the council are taken by a weighted majority vote of the elected incumbents, regardless of their affiliation or party membership, as long as the total number of incumbents exceeds one half of the total council seats.”
It says “the quorums and decisions of the municipal council become important especially in hung councils, where a single political party has not gained an outright majority in the local government elections”.
University of Cape Town constitutional law expert Pierre de Vos said while minority governments were an option, they GO-TO GUY: UDM leader Bantu Holomisa is helping negotiations were simply untenable and detrimental to service delivery.
“Minority governments, by their nature, are very unstable. When they want to pass bylaws, pass the budget, all hell breaks loose because they would need to obtain the vote of the majority of the council. So if they want stable governance then they must go into coalitions. The minority government is a possibility but it could easily collapse,” he said.
In terms of the Municipal Systems Act, councils have 14 days from the date of promulgation of poll results to convene a sitting to elect a mayor and speaker.
De Vos said should parties fail to agree on coalition governments, and minority governments proved unworkable, the Independent Electoral Commission would have to rerun elections in affected areas. But there would have to be evidence that even an executive unity government based on proportional representation could not be formed.
“All the parties who want to govern, their first prize would be a coalition because then you work out who gets what positions, what the emphasis on policy will be,” said De Vos. “The other option is to have a unity government where you don’t have an executive mayor but the executive committee, where all parties are proportionally represented.”
IEC deputy chairman Terry Tselane said the commission was not expecting any reruns. “Coalitions have nothing to do with us . . . we will just wait to see what by-elections need to take place.”
UDM leader Bantu Holomisa, the go-to guy between the ANC and small parties in the negotiations, said they were involved in a complex process that required all groups to put citizens first. He said he was also not expecting an election rerun.
“There is a lot one would have to consider before it can get to any rerun . . . This now is taking us back to what Mandela did with De Klerk with the government of unity; they clearly saw something then and it proves that party dominance doesn’t matter, we have to consider that we are a diverse country with different interests which must all be accommodated.”