Judge Dawie Fourie also declared Tshwane’s ward committees, published in an extraordinary provincial gazette in February 2012, unconstitutional and invalid. The judge refused to suspend the order, which would have left the 2012 elections intact until the next elections between 2015 and 2016.
He said the city would be able to function effectively without properly constituted ward committees and there was no evidence to suggest that a temporary lacuna would create administrative confusion or potential hardship.
The Tshwane municipality comprises 105 municipal wards, each represented by an elected ward councillor and ward committee.
The municipality approved the new by-law, which regulates elections, for immediate implementation in June 2011 but it was only promulgated in Februry 2012.
The DA took the matter to court contending the adoption process was invalid, as there was no public participation process. The municipality thereafter conceded that the by-law had not properly enacted.
Judge Fourie said it was common cause that city officials had initially laboured under the misapprehension that the ward elections would be regulated by the disputed by-law. When they realized their mistake the municipal manager attempted to address the dilemma, saying the elections would be held in terms of “an existing council approved policy”. The existing policy referred to was a ward committee document adopted in 2001 but never published in the provincial gazette and which never came into operation.
“… The object of a ward committee is to enhance participatory democracy in local government … It is therefore to be expected that the procedure to implement these values should be duly promulgated,” the judge said.
He said the 2012 ward committee elections had been conducted in the absence of any valid regulatory framework and should therefore be declared unconstitutional.
Although the DA wanted the city ordered to promulgate a new ward committees by-law and arrange new elections, Judge Fourie said the municipality should first decide whether to further comply with its statutory obligations or not.