Court encroached on separation of powers in Tshwane ruling: ANC asks Concourt to overturn decision

Tshwane council chamber.
Tshwane council chamber.
Deaan Vivier, Gallo Images, Netwerk24

The ANC in Tshwane has filed an application with the Constitutional Court to set aside a decision by the Gauteng High Court in Pretoria which dissolved the provincial executive council's decision to place the City under administration. 

In court papers filed on Wednesday, ANC regional chairperson Dr Kgosi Maepa argued the court had encroached on the principle of separation of powers. 

He argued its decision directing all councillors to attend council meetings unless they have lawful reasons had a "chilling effect", adding the ruling had the potential to impede the attainment of the goals of local government. 

In March, the province invoked Section 1(c) of the Constitution, which meant the municipality was placed under administration, dissolved, and an election for new leadership had to be held within 90 days.

The court found the move to be unlawful. It also gave the administrators five days, after the lockdown regulations were eased from Level 5 to 4, to vacate the City's offices.

Maepa application is in support of Cogta MEC Lebohang Maile's initial application which challenged the apex court to clear up the confusion about the powers of the provincial government to intervene in municipal affairs.

READ | DA in Tshwane calls on Cogta MEC Lebogang Maile to stop the 'big lies'

The EFF has also filed its own court papers with the High Court of Pretoria appealing the judgment.

The EFF and DA's unofficial partnership ended when the DA refused to vote with the EFF in Parliament to amend the Constitution on the matter of land expropriation without compensation. This led to devastating consequences for the DA, which resulted in the party losing control of Nelson Mandela Bay and Johannesburg. 

"This order when properly construed amounts to judicial interference. The high court was quick to pronounce a drastic order without examining the real reasons why the councillors staged a walkout and without examining whether or not its order would amount to improved service delivery, efficient governance, improved accountability," Maepa said. 

He added the provincial government's decision to place the City under administration was one of the measures put in place by the Constitution to resolve an impasse. 

"On evidence as a whole, the Tshwane Municipality has not only failed in its executive obligations, but it has violated the Constitution in many respects. There is thus no justification for a narrow interpretation of section 139(1)(c). " 

Maepa said on several occasions the ANC had left the council as a form of protest because the DA refused to improve on service delivery, adding service delivery had deteriorated in wards won by the ANC in the metro. 

He added the ANC had left the council because it discovered corruption, and the irregular appointments of staff in the mayor's office. 

ALSO READ | Tshwane administrators rope in SARS in bid to clean up capital city

Maepa said the court had failed to consider a report by the Auditor-General which found the metro needed intervention. 

Maepa added the City had extended an irregular contract with a service provider at Wonderboom Airport worth R828 000 per month against the advice of its finance and supply chain management. 

The ANC said the DA had breached its constitutional duty to provide water to the community of Hammanskraal. 

"The DA government has allowed the existing Themba and Rooivaal waste water treatment plant to deteriorate. The community of several occasions protested, barricaded roads, submitted petitions and memorandum to the City, to no avail," it told the court. 

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