Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs (CCT 279/23) [2025] ZACC 26 (20 November 2025)

Case Note

Case Name: Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs
Citation: [2025] ZACC 26
Date: 20 November 2025

Reportability

This case is reportable due to its significant implications for local governance in South Africa, particularly concerning the constitutionality of electoral processes and mechanisms used to form municipal executive committees. The judgment addresses the intersection of democratic representation and the actions deemed necessary to resolve electoral deadlocks, ultimately affirming the validity of the legislative provisions under scrutiny. The significance of the ruling lies in its reinforcement of the legal framework surrounding local governance, particularly regarding how minor parties are treated in the context of representation, and underscores the court’s role in adjudicating constitutional challenges against legislative frameworks.

The decision contributes to South Africa's evolving constitutional jurisprudence by clarifying the scope of fair representation in municipal contexts. Responding to an earlier High Court ruling that declared part of the Local Government: Municipal Structures Act unconstitutional, the Constitutional Court's unanimous ruling affirms the integrity of the legislative process and its inherent mechanisms for resolving contested political outcomes.

The ruling establishes a precedent for how electoral law is interpreted in terms of municipal function, specifically concerning the use of sortition or lot-drawing as a means of resolving tie situations. Furthermore, it highlights the responsibility of legislative bodies to determine governing methods while ensuring they remain consistent with constitutional principles.

Cases Cited

• Democratic Party v Brakpan Transitional Local Council 1999 (4) SA 339 (W)
• Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd [2000] ZACC 12; 2000 (10) BCLR 1079 (CC)
• Phillips v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC)
• Democratic Alliance v Masondo N.O. [2002] ZACC 28; 2003 (2) BCLR 128 (CC); 2003 (2) SA 413 (CC)
• Masondo above n 13 at para 42

Legislation Cited

• Local Government: Municipal Structures Act 117 of 1998
• Constitution of the Republic of South Africa, 1996, specifically sections 19(3)(a) and 160(8)
• Local Government: Municipal Systems Act 32 of 2000

Rules of Court Cited

• Constitutional Court Rules

HEADNOTE

Summary

The Constitutional Court considered the constitutionality of section 43(2)(c) of the Local Government: Municipal Structures Act, which permits the resolution of ties in the allocation of seats on a municipal executive committee through the casting of lots (sortition). The case arose after the High Court declared the provision invalid, contending that it violated constitutional rights to fair representation and the electoral voice of citizens. The Constitutional Court upheld the validity of the provision, finding that it does not breach constitutional principles, and emphasized the importance of respecting legislative mechanisms designed to address electoral disputes.

Key Issues

The court addressed several pivotal legal issues, including:

1. Constitutionality of sortition: Whether using sortition to resolve electoral tie situations in municipal contexts violates the rights of voters and undermines the principle of fair representation.
2. Interpretation of legislative intent: The extent to which the provisions of the Municipal Structures Act align with constitutional mandates regarding representation.
3. Separation of powers: The court evaluated whether it had the authority to intervene in legislative choices relating to the governance framework established by Parliament.

Held

The court held that the High Court's declaration of invalidity regarding section 43(2)(c) of the Act could not be confirmed. The provision does not infringe upon sections 19(3)(a) and 160(8) of the Constitution, and Parliament's choice of employing sortition to resolve electoral deadlocks is constitutionally valid and respects the separation of powers.

THE FACTS

The applicant, the Socialist Agenda of Dispossessed Africans (SADA), challenged the constitutional validity of a provision in the Local Government: Municipal Structures Act following local government elections where they received a share of the votes similar to the Democratic Alliance (DA), but were subsequently excluded from the executive committee upon the application of section 43(2)(c), which mandates that equal surpluses be resolved by casting lots.

The High Court ruled in favor of SADA, declaring the provision unconstitutional because it allegedly undermined the rights of electorates by disregarding the number of valid votes cast. However, the Minister of Cooperative Governance and Traditional Affairs defaulted in actively participating in the proceedings, allowing the Pan African Bar Association to represent the respondent during these hearings. The issue escalated to the Constitutional Court for confirmation of the High Court’s ruling.

THE ISSUES

The central legal questions addressed by the court included:

1. Is the use of sortition for resolving electoral ties constitutionally permissible?
2. Does section 43(2)(c) of the Local Government: Municipal Structures Act infringe upon the right to fair representation as established under the Constitution?
3. To what extent does the separation of powers doctrine restrict judicial intervention in legislative processes concerning electoral mechanisms?

ANALYSIS

The court engaged in a comprehensive analysis of the relevant provisions of the Constitution and the Local Government: Municipal Structures Act. It determined that the establishment of an executive committee is an internal functionary mechanism arising from municipal governance structures rather than a direct exercise of electoral power. The court highlighted that the mechanism to draw lots becomes relevant only when other democratic processes yield a tie, thereby acknowledging that a legislative choice has been made in response to practical governance needs.

The decision drew a critical distinction between the role of the municipal council, which encompasses elected legislative powers, and the executive committee, which operates under specific delegated powers without original authority. The emphasis was placed on interpreting the law as not necessarily requiring strict proportionality in the executive committee settings, arguing that fair representation within local government contexts can be maintained even through mechanisms such as sortition.

Additionally, the court addressed concerns about the absence of participation from the Minister throughout the proceedings, which hindered the depth of legal scrutiny and understanding surrounding the legislative intent behind the provision. Despite these shortcomings, the court reiterated the need to respect the legislative prerogative and implement mechanisms designed by Parliament.

REMEDY

The court’s remedy was a clear dismissal of the High Court’s declaration of unconstitutionality, thereby validating section 43(2)(c) of the Local Government: Municipal Structures Act as constitutionally acceptable. The refusal to confirm the earlier order illustrates the court’s broader commitment to uphold the integrity of legislative frameworks, even those that may yield contentious outcomes during governance processes.

LEGAL PRINCIPLES

Key legal principles established by the court’s ruling include:

1. Respect for Legislative Choices: Courts should defer to legislative frameworks that afford mechanisms for addressing electoral disputes, acknowledging the complex demands of representative governance.
2. Differentiating Roles: The distinction between the roles and powers of municipal councils and their executive committees is paramount, especially concerning constitutional representation and electoral participation.
3. Sortition as a Valid Mechanism: The use of sortition as a tie-breaking mechanism is not inherently unconstitutional and can coexist within the broader principles of democratic representation and fair electoral practices.

This ruling thus affirms the necessity of a comprehensive understanding of electoral law in South Africa, particularly in the context of local governance and the constitutional imperatives that govern it.