Justin Pearce
A last-minute submission by the Western Cape provincial government has delayed an application by the province to the Constitutional Court which will have far- reaching consequences for local elections in the province. The two-week delay has ruled out the chance of a November 1 election in Cape Town.
The Western Cape government has brought the court application against central government. At issue is the appointment by Marais of two members to the provincial committee, which is ultimately responsible for the demarcation of local boundaries — and their subsequent removal from the committee in terms of two amendments to the Local Government Act proclaimed by President Nelson Mandela in June.
The amendments give central and not provincial government the final say over who is on the provincial committee, and are retroactive, hence annulling Marais’ appointments.
The applicants submit that the amendments were made with the specific intention of outmanoeuvering the Western Cape government.
The applicants brought the case to the Constitutional Court after the Cape Supreme Court dismissed an application which challenged Mandela’s competency to amend the Act.
Fresh arguments submitted the day before the hearing caused the case to be postponed for two weeks.
Article 16A of the Act gives the president certain powers to amend other sections of the Act. In the Supreme Court, the applicants argued that the powers conferred on Mandela by Article 16A did not extend as far as altering the compostion of the provincial
When the Supreme Court dismissed this application, the Western Cape government went to the Constitutional Court, submitting that Mandela’s proclamations run foul of the Constitution.
The additional arguments submitted by the Western Cape government reached the court late on Tuesday afternoon. When proceedings began on Wednesday, several judges raised concerns about the ability of the respondents and the judges themselves to do justice to the new arguments at such short notice. During a recess Jeremy Gauntlett, counsel for the respondents, took instructions from Mandela and Constitutional Affairs Minister Roelf Meyer and told the court that it would be ill-advised to “press ahead with a matter which has profound implications throughout the country” without the opportunity to study the new arguments in greater
A representative of Marais’ office, Fritz Marx, said the postponement of the Consitutional Court case “will delay the election even further, and November 1 is now definitely out of the question.
“At this stage, every day that is lost makes a difference,” he said.
Until the Constitutional Court rules on the matter, the provincial committee is paralysed, preventing the demarcation of substructure and ward boundaries. Only when these boundaries are finalised can political parties start drawing up lists of candidates, a task likely to take several months.
Quite apart from delaying the local elections in the Western Cape, the case before the Constitutional Court is a graphic illustration of the disunity in the National Party, leaving GNU-dove Meyer on one side of the argument, and the hawks of the Western Cape government on the other.
The case will now be heard on August 30.
* The Constitutional Court has a new acting judge, Judge Bernard Ngoebe, who was sworn in on Wednesday. Ngoebe is standing in for Judge Richard Goldstone, who has been occupied with war crimes tribunals in Rwanda and the Balkans ever since the Constitutional Court was established in February.
Ngoebe will serve for the Court’s third term, until the end of September. William Kentridge and Wim Trengove stood in for Goldstone during the Court’s first and second terms respectively.