Intervention in Cape Town’s affairs by the African National Congress-led Western Cape government would trigger a constitutional crisis, lawyers have advised the city’s Democratic Alliance mayor, Helen Zille.
Zille sought legal advice in the wake of ANC councillors’ plea to the province to appoint an administrator on the grounds that the acrimonious wrangle over Zille’s dismissal of city manager Wallace Mgoqi had crippled the council.
Western Cape local government mini-ster Richard Dyantyi is continuing his own investigation into the imbroglio. Two officials from Dyantyi’s office have interviewed council speaker Dirk Smith and other officials.
The Mail & Guardian has learnt that the minister asked ANC councillors this week to further substantiate why he should intervene as requested in their letter of two weeks ago.
On April 11 ANC council chief whip Peter Gabriel told Dyantyi that because of the ongoing dispute over the extension of Mgoqi’s contract as city manager there could be “no certainty about the election and appointment of any of the current office bearers”. Mgoqi presided over the election of the speaker who then oversaw Zille’s election at the inaugural council meeting on March 15.
The letter implicitly asks for provincial intervention in terms of Section 139 of the Constitution. This allows provinces to dissolve a council and appoint an administrator when the council cannot perform its obligations of service delivery and “maintenance of essential national standards”, or acts in a way prejudicial to another council or the province.
But Zille’s lawyers warn that provincial intervention and the dissolution of the council “would … be a decision with an unprecedented and far-reaching effect on the constitutional functioning of government in South Africa …”
They say there are no valid grounds for intervention, even in the letter sent to Dyantyi. An urgent application to the Constitutional Court was appropriate if this happened, the 30-page opinion states.
Last Wednesday Zille met Dyantyi’s deadline for submitting her official report, which is understood to contain a similar legal argument. The report followed a meeting between the mayor and the minister on April 11, at which Zille rejected the call for dissolution as baseless.
Zille’s spokesperson, Robert McDonald, on Wednesday reite-rated: “The city is functioning. Every meeting has been held. This month the city has collected 110% of its outstanding debt.”
But Cape Town’s high political tensions turned violent last Saturday when chairs were thrown at Zille at a meeting in Crossroads and shots were fired. They have now drawn the close attention of the national government.
It is known that the Department of Provincial and Local Government is regularly briefed on developments. And on Monday, national government spokesperson Joel Netshitenzhe condemned the violence against the mayor, as an institution of governance, saying it was contrary to the constitutional right to free political activity. “Our major concern is that if such incidents become trends in our political life, it will distract from the vibrancy of our democracy,” he said.
Following the national outcry, the Western Cape ANC has backtracked from its earlier claim that Zille was partly to blame for “provoking” people. On Tuesday it condemned the violence, but declined to investigate the involvement of members — several of those who wielded chairs were dressed in ANC T-shirts — saying it would talk to its branches.
Police confirmed they are investigating charges of attempted murder — a police car as hit by three bullets — public violence, malicious damage to property and theft. In addition, Zille has laid an assault charge.
But after eight weeks of controversial tactics to try to reverse its defeat at the polls — which targeted Zille and labelled her as “provocative”, “a bull in a china shop” and “paranoid” — there are signs that the ANC’s strategy is shifting.
Last Saturday’s party provincial executive meeting considered changing the focus to delivery, in a move possibly linked to lobbying by its alliance partners. The issue is expected to be discussed at next week’s ANC provincial general council meeting.
Western Cape party chairperson James Ngculu indicated it was time to focus on the budget, which must be adopted by June 1, and on ensuring that Zille’s administration delivers to the ANC’s poor constituency.
As part of the war with Zille, the ANC has devoted much time trying to persuade smaller parties to abandon the ruling coalition. While the Africa Muslim Party, United Democratic Movement and United Independent Front all had to deal with maverick members, usually by expelling them, they have so far resisted inducements.
Meanwhile, an ANC councillor in Cape Town quit this week, apparently out of frustration with the council stalemate. David Erleigh, a veteran of municipal politics, had previously represented the Democratic Alliance and the New National Party.