The African National Congress won resoundingly in the Tshwane Metropolitan Council election last month, getting 48 of the 76 ward seats and 38 of the 76 party list seats, with 55,4% of the total vote. The Democratic Alliance came in a distant second, with 27 wards, 27 list seats and 34,4% of the total vote.
Was the ANC’s win gained constitutionally? If not, was the win the result of a deliberate political decision by the ANC (as party or government)? Or, as seems more likely, was it due to a combination of factors: a projection of socio-economic priorities, a misreading of the constitutional repercussions, bureaucratic inertia, and an ANC political consensus? Tshwane, one of three Gauteng metropolitan councils (Johannesburg and East Rand are the others) is a vital focus for ANC service-delivery intentions in the five years before the next local government elections.
It is an amalgamation of the Pretoria transitional metropolitan council with Centurion and a number of smaller councils from adjacent portions of Gauteng. To this has been added five North West communities (in whole or part): Winterveld, Mabopane, and Ga-Rankuwa (intended at first as a cross-boundary district council); Temba and Hammanskraal. All had been part of Lucas Mangope’s autocratic, corrupt and repressive Bophuthatswana homeland.
These five communities make up the bulk of registered voters in 21 of Tshwane’s 76 wards. The ANC won all 21 wards, fighting off a serious DA challenge only in ward 49, which combines a portion of Hammanskraal with a substantial white community. In the other 20 wards the ANC vote was about 90% to 95% of the total cast. It seems probable that the Constitution was breached in the placement of these communities. Two linked points support this view.
The first lies in the Constitution itself. Chapter six (Provinces) establishes in Section 103(2) that: “The boundaries of the provinces are those that existed when the Constitution took effect.” Chapter three (Cooperative Government), in a discussion of “Bills Amending the Constitution” includes (Section 74 (3)(b)(ii)) the provision that among them would be any one “that alters provincial boundaries, powers, functions or institutions …” and spells out the complex amendment process for such Bills: public input, legislativelll hearings, two-thirds votes in both houses of Parliament.
The second comes from the requirement that all prospective voters in the recent local government elections had to prove residence in the voting district (the ward sub-unit) in which they intended to vote. (Municipal Electoral Act, 2000, Section 6). If a registered person lives in what has become in some alchemical manner a Tshwane ward, that person must have become a Tshwane resident. If that person has not moved physically, then the provincial boundary between Gauteng and North West provinces must have moved. The prospect of provincial boundary changes came up relatively early in the Municipal Demarcation Board’s work.
Michael Sutcliffe, the board’s chair, recognised that in some instances developmental prospects over-rode provincial boundaries and might require the setting up of cross-boundary districts. These would enhance economic links, while leaving communities involved politically in their respective provinces. The two provinces involved would have to sort out the provision of services, staffing and money. National legislation was a prerequisite. Changes in provincial boundaries might come in time, but were not immediately necessary.
Three of the five North West communities absorbed into Tshwane were among those recognised by the board as candidates for cross-boundary district status “[to] enhance the delivery of urban services and (improved) urban management practices”. Mabopane and Winterveld, with contiguous Ga-Rankuwa, were at first brought together in Cross-Boundary District Council 6 (CBDC 6). The board’s maps released that same month showed CBDC 6 in the North West province, adjacent to the north-western boundary of the proposed Pretoria metro. At best, it would have become a Tshwane administrative satellite, without any vote affecting the Tshwane Council.
By March last year, when the draft version of the Cross-Boundary Municipality Bill was made available for public comment, its schedule of proposed CBDCs made no reference to CBDC 6. Instead, it described an enlarged Pretoria metropolitan municipality into which the three CBDC communities were to be incorporated. The Act itself, No 9 of 2000, which became law on July 7 last year, followed this pattern.
Political absorption was made final two months before the election, by a Gauteng provincial gazette extraordinary which established new municipalities within the province. It was clear from the gazette that the five North West communities involved had been included with the agreement of that province’s government. A revised board map showed them as part of Tshwane.
The final decision involved the two provincial local government MECs, with the approval of the two premiers. Before the agreement was reached there were divergent views among officials and consultants about possible constitutional problems. For example, the Department of Provincial and Local Government stressed in an unusual gloss to its March 2000 release of the Cross-Boundary Municipality Bill that there were no constitutional issues involved, even in the instance of the proposed Tshwane metropolitan council, because “municipal demarcation is not a subject matter” for which the provinces have any constitutional role.
In July, at about the same time that the Act was nearing finalisation, a technical committee working on cross-boundary district governance pointed out that exclusive authority by one of two provinces involved had the disadvantage of raising constitutional issues about provincial and municipal borders.
What about a constitutional challenge? In principle a vital step, in practice it would almost inevitably reflect partisan interests and add to the ill-will between the ANC and the DA. On balance, at this time, the risk to political stability would be great. That does not excuse the failure of the political leadership involved in Gauteng and the North West, as well as the national government to take into account the constitutional implications of their action in setting up cross-border districts.
The absorption of these five communities into Tshwane will give them a voice in the allocation of the metro’s resources. It also makes political sense for the ANC by strengthening its control of the Tshwane metro council. Nonetheless, adherence to constitutionality remains the basic issue. No matter how the inclusion of the five North West communities works out in practice, it would have been better done if the pertinent constitutional prerequisites had been met.
This is a portion of an essay that will be published by the Electoral Institute of Southern Africa in its Electoral Update No 9 to appear on the institute’s website in early February: www.eisa.org.za. Dr John Seiler is editor and principal author of Transforming Mangope’s Bophuthatswana, which can be found on the Daily Mail & Guardian website at: www.mg.co.za/mg/ projects/bop/index.html