THE legal battle for an executive committee seat won by the DA at the Fetakgomo Tubatse local municipality in Limpopo is heading to the Constitutional Court next week.
The Socialist Agenda of Dispossessed Africans (Sada) wants the apex court to confirm a North Gauteng High Court ruling handed down by Judge Elmarie van der Schyff in October, declaring parts of the Municipal Systems Act unconstitutional and invalid.
Judge van der Schyff gave Parliament 18 months from the hearing date to amend the Municipal Structures Act.
She said that, pending the amendment, the act should state that awarding seats on the executive committee to political parties or political interests must be determined if there is an equality of surpluses based on the highest number of votes obtained during the elections.
In the 77-member council, the ANC obtained 54 seats; the EFF has 14, Sada and the DA each have two, while Power of Africans Unity, Azanian People's Organisation, Pan Africanist Congress, Bolsheviks Party of SA, and Freedom Front Plus all have a single seat.
During the inaugural council meeting following the 2021 local government elections, it became apparent that Sada and the DA won two seats each, creating what the act describes as an equality of surpluses.
After winning a lot due to the equality of surpluses, the DA received a seat in the municipality’s executive committee, which forced Sada to approach the high court.
The act currently allows the award of seats on the executive committee to political parties or political interests to be determined, if there is an equality of the surpluses, by lot.
An executive committee must be composed in such a way that parties and interests represented in the municipal council are represented in the executive committee in substantially the same proportion they are represented in the council, according to the act.
It also makes the provision that if the surplus for two or more parties is equal, the speaker of a municipality must determine by lot which of those parties is entitled to the seat.
According to Sada, in the 2021 local government elections, the party obtained 2.25%, with a total number of votes of about 3 667 and, followed by the DA with 2.04%.
In terms of the rankings, Sada became the third biggest party in the Fetakgomo Tubatse local municipality.
Sada believes that although two political parties may obtain equal seats in the municipal council, they may not have obtained equal votes during the elections.
”Sada with two seats and obtained 2.25% (3 667 votes). (The) DA with two seats and obtained 2.04% (3321 votes),” the party explained in its Concourt submission.
The party continued: “It is with respect submitted that in a democratic society based on equality and freedom, the wishes of the voters to have their political parties of choice represented in the executive committee through casting votes to their political parties cannot be replaced by 'lot'.”
Sada said that doing so amounts to violating the right to vote because the voters' ballots are not counted when determining which political party should get a seat in the executive committee.
Cooperative Governance and Traditional Affairs Minister Thembi Nkadimeng did not file heads of argument on or before the set deadline of March 18.
Her predecessor Dr Nkosazana Dlamini Zuma, initially filed a notice of intention to oppose the high court case but later withdrew her opposition and subsequently filed a notice to abide.
Arguments will be heard on Thursday, May 23.