Image by @Qaqambha / Twitter
Image by @Qaqambha / Twitter
A record number of 66 municipalities had no outright winner after the votes were cast in the 2021 Local Municipal Elections on 1 November. This begs the question, what happens if political parties cannot agree to form a coalition or minority government? In exceptional cases, South Africans would have to head to the voting booth once again.
South Africa’s political parties are locked in negotiations now because the deadline for the municipal council meeting – which must be held within 14 days after the election result was declared – is imminent.
Constitutional Law expert Professor Pierre De Vos explains that political parties must attempt to elect a speaker and a mayor at this meeting even if no coalition agreements have been made in hung councils – councillors can spoil their votes if decide not to elect a candidate. Political parties may also abscond from the meeting if they so choose. However, according to the rules the votes in the meeting are determined by the majority of councillors present and not the total number of council seats.
If parties cannot agree on forming a coalition government there is still the possibility of forming a minority government, which is notoriously tricky to manage.
“In such a case the speaker and mayor will be elected by a majority of those present at the first meeting, with some of the parties who voted for the speaker and mayor doing so without agreeing to go into a coalition with the party of the executive mayor,” said De Vos.
He explained that the country’s laws are geared towards ensuring that a government is formed at the first municipal meeting but if this doesn’t happen there may be at least one more meeting before the provincial government intervenes.
Jeff Radebe, who is leading the ANC’s coalition negotiations, said to News24 on Monday, 8 November, that the party has not ruled out “a rerun of elections” in hung municipalities. The party stressed that it is not desperate to form a coalition government. This comes after the DA, ActionSA and FF+ said they would not collaborate with the ruling party.
“We are not desperate, what is important for us is that we are not just willing to just have coalitions at all cost,” said Radebe.
“Legislation is very clear; if it’s impossible to have the council meeting then the provincial government will take over that municipality through the provincial department of Cogta and within 90 days they will be forced to have a rerun of the elections in those municipalities,” said Radebe.
According to De Vos’ explanation, Radebe is skipping over a few steps. If no government can be formed – coalition or minority – the provincial MEC for local government can intervene in terms of section 139 of the Constitution, which allows intervention from provincial government if the municipality “cannot or does not fulfil an executive obligation in terms of the Constitution.”
Skipping a few steps for brevity’s sake, the MEC can only dissolve the council after issuing the council with a directive that describes its failure and offering it the steps for a way to resolve the issue – having another meeting to elect a mayor or speaker, for example.
Assuming that a government cannot be formed after all of this, the MEC may dissolve the council and appoint an administrator to govern the municipality.
A by-election must be held within 90 days from the day the council was dissolved.
“To stress the point: this could only occur in exceptional circumstances, which would be when a majority of those present at the first and subsequent council meetings fail to vote for one or other candidate as mayor and speaker,” said De Vos.
According to the Electoral Commission of South Africa (IEC), a by-election is an election that takes place in a ward in a municipality between the traditional general Local Government Elections that are held every five years.
As previously mentioned, a by-election must be held if a council is dissolved. Other circumstances that necessitate a by-election, include the IEC not declaring the results of a municipal council or ward election within a specified period; a court ruling setting aside the election and a vacancy because of resignation, death or expulsion of a ward councillor.
All residents that are registered to vote may cast their ballots in the election, which is usually held on a Wednesday.
All registered voters may stand for election as a ward councillor in the municipality that they are registered in. In the case of independent candidates, they must be nominated by a registered voter in the municipality and have their nomination form signed by at least 50 other registered voters in the ward.
“On average, some 150 by-elections are held each year in South Africa,” according to the IEC.