Law must evolve as politics changes

Governance and politics often go hand in hand in a delicate balancing act. Governance in its most basic form is about the allocation of resources; it’s the process of deciding who gets what, when and where. Politics is largely about who is responsible for these decisions.

Democracy is one way to optimise the latter, because it allows citizens a voice in choosing who can make those decisions about resource allocation. It may be less efficient than other systems, but it is the only method we know of that renders governance more inclusive.

For centuries, different variations of this system have emerged on what would be the most effective way to bridge these two ideas, governance and politics.

Much like anything else, political systems are not stagnant, they progress as a country or society requires. This means that alongside the political progression (also called maturity), legislation sometimes needs to adapt to facilitate the changing political attitudes of that society.

South Africa is a prime example of how a maturing political system requires robust legislation to maintain the balance between governance and politics.

Since the 2021 local elections, the number of hung councils has more than doubled. Research at Good Governance Africa into local government in South Africa, principally through its Governance Performance Index (GPI), has shown that governance problems in hung councils stem from political instability within the political council, which ultimately affects the administrative arm of the municipality.

This is something that has also been seen in some of South Africa’s metropolitan municipalities. For example, the City of Johannesburg has had five executive mayors since the 2021 local election. This high turnover prevented decisions from being made regarding budgets and developmental programmes.

In turn, it meant it was more difficult for the administrative arm to implement these decisions, leading to difficulties in addressing poor service delivery such as not being able to fix water leakages in a timely manner. A further issue with such instability is that it makes it hard for people to hold members of the political arm accountable.

To avoid and mitigate the risk of political instability, support through legislative frameworks is essential. In light of the need to provide legislative support, a bill was proposed and gazetted to amend the Municipal Structures Act of 1998, entitled: Local Government: Municipal Structures Amendment Bill, 2024. This bill aims to directly address the instability in local municipalities that has come from having hung councils, including provisions for coalition agreements.

These amendments are welcome because the bill is a step towards achieving long-term political stability in this vital sphere of the state.

As part of the legislative process, the department of cooperative governance and traditional affairs issued a call for public comments on this bill.

After reviewing the bill, some elements should be clarified or expanded upon to ensure that this key piece of legislation is comprehensive and effective. These concerns have been submitted to the call for comments.

The amendment bill contains 10 main clauses, and overall the changes are good, especially the amendment to section 43, which mandates that coalition agreements “must be made public”.

But there are two caveats that require further consideration or clarification.

The first caveat concerns clause 2, which proposes replacing the mayoral executive system with a collective executive system in hung municipalities. The amended clause suggests that such a system should be established by the MEC of local government within 30 days after the election.

But this clause is vague about how it affects Act No 117 of 1998, sections 29, 45 and 55. These sections stipulate that the first council meeting and subsequent election for the various executive positions of the municipality take place within 14 days.

There is, therefore, a lack of clarity about how to change the mayoral executive system to the collective executive system within 30 days without contradicting sections 29, 45 and 55 of the principal Act. This is something that will have to be clarified.

The second caveat relates to the vote of no confidence as discussed in clauses 3, 4, 6 and 7. The clauses amend the process of removing the speaker (clause 3), whip (clause 4), executive committee (clause 6) or executive mayor or deputy mayor (clause 7) from office by an open vote as opposed to a secret ballot.

We support the idea of a vote taken by a show of hands, as well as the proposal to include a two-year “grace period” on tabling a motion of no confidence against elected officeholders.

But this is not sufficient to prevent political parties from misusing a vote of no confidence once the “grace period” has expired and further limits should be considered.

To address this there should be a threshold on the number of votes of no confidence that can be tabled within a single calendar year, in addition to the two-year “grace period”.

This would ensure that, after the grace period, political stability will be sustained and votes of no confidence will be used more sparingly.

Additionally the proposal by Professor Jaap de Visser, of the Dullah Omar Institute, to revise the system of no confidence as a whole by implementing a “constructive vote of no confidence” is useful.

This variation requires a council to secure majority support for a prospective replacement before removing an office holder. This changes the dynamics of the political game away from a zero-sum calculus and towards attaining mutual benefit.

Together, these recommendations will help ensure continuity and political stability in the municipality.

The legislation sets the rules of the game, maintaining the delicate balance between governance and politics for the benefit of the citizens. With the rise in hung local councils and political instability in South Africa, there is a pressing need for laws to ensure this vital arm of government remains effective in delivering critical services.

The Coalition Amendment Bill is an important first step in this new era. This bill will help protect municipalities from the instability that can arise from coalition arrangements.

However, while legislation is essential, it is important to recognise that improved governance requires more than legislation. Particularly, it requires leaders that step up to the plate and act in a manner that ensures municipalities are able to fulfil their constitutional mandate.

Otherwise we may just end up with a mature political system with some immature leaders.