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88 Chapter 6
Another case in which the principle of democracy appears at first
blush to have given way to the principle of judicial deference in
politically sensitive cases is Democratic Alliance v ANC & Others. 15 In
that case, the Cape High Court was asked to decide whether FC
section 160(8) meant that the party-political composition of a
municipal council’s committees, including the executive committee,
had to be proportional to the parties’ support in the council. The High
Court decided that it did not, holding that FC section 160(8) primarily
conferred on minority parties a right to participate in the proceedings
of a municipal council and its committees, and that the composition
of the committees need not exactly reflect the composition of the
municipal council itself. This decision appears to have been strongly
influenced by the decision in UDM, which had been handed down
shortly before, and indeed gave rise to the dispute in Democratic
Alliance. As in UDM, the High Court in Democratic Alliance held that,
due to the political sensitivity of the case, a high degree of judicial
deference was in order. 16 To this extent, the decision in Democratic
Alliance may be insulated from the principle of democracy on the
same basis as UDM. However, before this stage of the decision had
been reached, the Court in Democratic Alliance made a finding that
is potentially more damaging to the deep principle of democracy. I am
referring here to the Court’s unquestioning acceptance of a
concession by counsel that, read on its own, the requirement imposed
by FC section 160(8)(b) would be satisfied by a first-past-the-post
system in which all the members of a municipal council’s executive
and other committees came from the majority party. FC section
160(8)(b), it will be recalled, provides that the manner in which
members of a municipal council are entitled to participate in the
proceedings of the municipal council and its committees must be
‘consistent with democracy’. The construction placed by the High
Court in Democratic Alliance on this provision evinces a very shallow
conception of democracy indeed. Read on its own, the High Court
held, the requirement that municipal councillors’ participatory rights
be consistent with democracy imposes an imprecise standard that
would be satisfied by any number of arrangements, including a
winner-takes-all system. The principle of democracy in FC section
160(8)(b), the High Court thereby implied, though not equivalent to
the principle of majority rule, is insufficiently determinate as to be
clearly incompatible with it. 17
15 2003 1 BCLR 25 (C).
16 15 n 2003 15 above, 1 BCLR 41B-F. 25 (C).
17 16 See n 15 also above, MEC 41B-F. for Development Planning and Local Government in the Provincial
17 Government municipal council of Gauteng be approved v Democratic by a Party majority 1998 of 4 SA members, 1157 (CC), whereas 1998 7 the BCLR LGTA 855
(CC). provided This for case approval concerned by a two-thirds challenge to majority, sec 16(5) with of the a Local deadlock-breaking
Government
Transition mechanism Act allowing 209 of the 1993 MEC (LGTA) to approve in terms the of budget. FC sec One 160(3)(b) of the read questions with FC raised sec
160(2)(b). in this case The was constitutional whether the provisions LGTA framework require offended that the budget a range of of a principles, municipal
council including be the approved principle by of a democratic majority of government. members, whereas The Court the LGTA held that, provided even for if
approval there was by such two-thirds a principle, majority, ‘a deadlock-breaking with a deadlock-breaking mechanism mechanism to avoid impasse allowing [in
the approving MEC to a municipal approve the budget] budget. would One not of be the in breach questions of [it]’ raised (para in this 56). case was