In the application of –
SOUTH AFRICAN LOCAL
GOVERNMENT ASSOCIATION Applicant for leave to intervene
In the matter between –
UNITED DEMOCRATIC MOVEMENT Applicant (in the main application) and
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent THE MINISTER OF PROVINCIAL AND
LOCAL GOVERNMENT Third Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
THABO OWEN MOKWENA state under oath as follows –
1. I am the Chief Executive Officer of the South African Local Government Association (“SALGA”), which is the applicant for leave to intervene in the above matter. I am duly authorized to make this affidavit on its behalf.
2. Save where otherwise stated or indicated by the context, the contents of this affidavit fall within my personal knowledge and they are to the best of my belief true and correct.
3. SALGA is an association not for gain with capacity to sue and be sued and having its principal place of office at 6th Floor, HSRC Building, 134 Pretorius Street, Pretoria.
4. SALGA has been given exclusive recognition as the national organization representing the majority of the provincial local government associations. In fact SALGA represents all nine provincial local government associations which in turn represent the majority of municipalities in each province.
5. This is in terms of a gazetted Ministerial notice under s. 2(1)(b) of the Organized Local Government Act No. 52 of 1997, read with s. 163 of the Constitution of the Republic of South Africa Act No. 106 of 1996 SALGA nominates representatives to participate in proceedings of the National Council of Provinces in terms of s. 67 read with s. 163 of the Constitution as well as the Organized Local Government Act. It also engages in the process of consultation with national (and provincial) government and nominates persons to the Financial and Fiscal Commission.
6. SALGA’s objectives are inter alia to –
6.2. transform local government to enable it to fulfil its developmental role;
6.3. enhance the role and status of its members as provincial representatives and consultative bodies of local government;
6.4. enhance the role and status of municipalities;
6.5. be recognized by national and provincial government to be the representative and consultative body in respect of all matters concerning local government and to make representations to both provincial and national government (including the making of representations in the legislative process) in respect of any matter concerning local government; and
6.6. generally to do things in the interests of the organization and its members.
7. SALGA works to promote orderly local government in South Africa as a whole. It acts as an umbrella organization through which provincial local government associations and the municipalities can act in order best to bring about efficient local government and sustainable development at the local level on a coordinated basis. SALGA acts also as an important resource centre for municipalities. It deals on an ongoing basis with countless queries from municipalities around the country, particularly regarding the implementation of the constitutional provisions dealing with local government and the legislation which has been enacted pursuant to the Constitution in relation to local government.
8. In this capacity as an umbrella organization as aforesaid, SALGA, the provincial local government associations and ultimately the various municipalities whose interests SALGA represents, are directly affected by certain of the legislation which forms the subject matter of the main application before this honourable Court, and which concerns municipal council, in particular the Constitution of the Republic of South Africa Amendment Act No. 18 of 2002 and the Local Government: Municipal Structures Amendment Act No. 20 of 2002 (“the relevant legislation”). In bringing the present application for leave to intervene in these proceedings, SALGA acts on its own behalf and in the interests of the provincial local government associations as well as municipal councils generally.
9. SALGA, the provincial local government associations and municipalities generally have an interest in the constitutional validity of the relevant legislation inter alia because -
9.1. they have a self-evident interest in any change to the system under which members of municipal council come to be elected or to cease holding office;
9.2. the relevant legislation and the uncertainty relating to its constitutional validity, and the crossing of the floor by councillors will affect the stability of those councils particularly where there is internal political conflict;
9.3. the prevailing climate of internal political conflict seriously hampers service delivery at local government level to the South African population as a whole;
9.4. the democratic decision making processes within municipal councils are affected by shifts of opinion within political parties
office.
10. It is therefore of considerable concern to SALGA and those whose interests it represents that there should be certainty as soon as reasonably possible regarding the status of the relevant legislation. The effect of the current climate of uncertainty is seriously to aggravate the problems pertaining to internal political conflict, with resultant negative impacts on decision making and service delivery.
11. SALGA has adopted the attitude that it will abide the decision of this honourable Court regarding the issue of the constitutionality or otherwise of the relevant legislation (“the constitutionality issue”).
12. SALGA’s concern – and the reason for it seeking leave to intervene for the limited purposes referred to below – is that if there is to be any further delay in the determination of the constitutionality issue, pending the resolution thereof, there should as far as reasonably possible be certainty regarding membership of municipal councils and minimal disruption in their functioning.
13. The impact of the orders of the Cape High Court suspending the implementation of the relevant legislation has led to a state of great uncertainty. There is already separate litigation under way before the Cape High Court under case number 3738/2002 – in which an interim order has been issued – pertaining to decisions to expel members of a political party – who were or are members of a municipal council under the proportional representation system – pursuant to their having communicated their intention to make use of the floor-crossing provisions of the relevant legislation. I attach as annexure “A” hereto a copy of the order granted in that case.
14. This is not the only instance of such expulsions. SALGA is also aware of other expulsions of council members having taken place in other parts of the country. It is not desirable that these expulsions be dealt with in a flurry of disparate High Court applications which will in any event be affected by and subject to the outcome of the constitutional Court litigation in relation to the constitutionality issue. Such litigation may in any event be beyond the means of individual councillors, political parties and particularly smaller municipalities.
15. Uncertainty has also arisen in the following circumstances –
15.1. There are instances where councillors have communicated their intention of using the floor-crossing provisions of the relevant legislation, but their fate has not yet been decided by the political parties which they intend leaving. This could lead to their expulsion or other action.
15.2. Where a decision is taken by a party purporting to expel a councillor from its party ranks, as a result of floor-crossing activities or intentions, there is uncertainty as to whether that person remains a councillor or whether a vacancy has indeed arisen in the municipal council concerned, and whether the expelling party is lawfully entitled to put forward another of its members on the party list in the place on the council previously held by the expelled member.
15.3. In the latter situation it is uncertain whether the councillor who is seeking to cross the floor to another party would remain a validly elected councillor, now representing the latter party as contemplated by the relevant legislation.
of signalling an intention to cross the floor – it is uncertain whether the continued participation of such councillor in council meetings will give rise to charges that the council is improperly constituted and that the resolutions, decisions and by-laws which it adopts are valid.
15.5. It is uncertain whether the speaker of such a council can lawfully allow such a person to continue to sit and vote as a councillor, or whether the speaker can lawfully request or make a ruling that such an expelled councillor may not participate in council meetings until the constitutionality issue has been resolved.
15.6. Similar considerations apply in respect of executive committees, mayoral committees and other committees of municipal councils.
In particular disputes may arise as to the eligibility of an expelled party member to continue to serve as a councillor on the committees to which he has been previously appointed.
15.7. This will lead inevitably to confusion and delays in the process of decision making. It will also give rise to disputes over the validity and enforceability of resolutions passed by municipal councils and their committees, including approval of municipal budgets and expenditure items, the award of tenders and contracts, etc.
15.8. Where there is a political dispute between parties about whether certain councillors are indeed members of the council or its committees, this may lead to walk-outs which may affect the required quorum.
15.9. Where a councillor is disputing his or her expulsion, uncertainty arises as to whether her or she may receive an allowance or remuneration. Likewise if a political party seeks to put forward a new member of the party list as councillor to replace the expelled councillor, there would be uncertainty as to whether that member is entitled to be remunerated as a councillor.
16. SALGA has received and continues to receive enquiries from municipalities seeking to obtain certainty and guidance about such matters.
17. The lack of certainty creates a risk of seriously hampering the proper conduct of the business of affected municipalities and their municipal councils and committees, and their ability to discharge their constitutional obligations of effective governance and service delivery.
18. If the issue of the constitutional validity of the relevant legislation cannot be decided speedily, the problem would be substantially ameliorated if this honourable Court were to make an appropriate interim order which would have the effect of stabilizing the situation.
In particular, SALGA seeks to make representations to this honourable Court to the effect that an interim order should be made, pending the determination of the constitutionality of the issue, preventing both political parties and municipal councils from making or implementing decisions which would have the effect (or which may purport to have the effect) of terminating councillor’s membership of municipal councils on the grounds of their having communicated (or being suspected of harbouring) an intention to take advantage of the floor- crossing provisions of the relevant legislation.
status of such councillors and allow municipal councils to proceed with their day to day business.
20. To this end, SALGA has drawn the attention of municipal councils countrywide and the political parties represented in such councils, of its intention to make submissions to this honourable Court to the effect that interim relief of this nature should be granted. A copy of the letter sent in this regard is attached as annexure “B” hereto.
21. As will appear more fully from the letter, SALGA intends to make submissions specifically in response to paragraph 1(ii) of the directions of the Chief Justice, and to seek the interim relief referred to in paragraphs 1 to 4 of that letter (and only to the extent that this honourable Court may not be disposed to resolve the constitutionality issue immediately, and pending the outcome thereof).
22. Having regard to the timing of the main application in relation to the constitutional issue, and the need to achieve a proper measure of certainty and stability in the circumstances described above, it is respectfully submitted that this application for leave to intervene and for the interim relief which SALGA seeks is a matter of considerable urgency and that its failure to comply with the procedural requirements relating to notices and other time provisions should be condoned.
23. SALGA respectfully asks that this honourable Court should make an order in terms of the notice of motion to which this affidavit is attached.
_________________________
THABO OWEN MOKWENA
I CERTIFY THAT THE DEPONENT HAS ACKNOWLEDGED THAT HE UNDERSTANDS THE CONTENTS OF THE DECLARATION WHICH WAS SWORN TO/AFFIRMED BEFORE ME ON THIS THE ...DAY OF ...2002.
____________________________
COMMISSIONER OF OATHS
