Democratic Alliance and Michael Sean Moriarty v Amos Masondo N.O. and Minister of Provincial and Local Government

The appellants are the Democratic Alliance (the main opposition party in the Johannesburg metropolitan council) and its caucus leader. The first respondent is the executive mayor of Johannesburg, who appointed a mayoral committee consisting only of members of the African National Congress (the majority party). The appellants challenged this composition, arguing that minority political parties must be represented on the mayoral committee. The High Court dismissed the application, holding that the composition was consistent with both the Local Government: Municipal Structures Act 117 of 1998 (Structures Act) and the Constitution.

• Whether minority political parties in a municipal council are entitled to representation on a mayoral committee established under section 60 of the Structures Act
• Whether the mayoral committee is a 'committee of the municipal council' as contemplated in section 160(8) of the Constitution
• Whether section 60 of the Structures Act, if interpreted not to require minority representation, is inconsistent with section 160(8) of the Constitution
• Whether the principle of fair representation in section 160(8) applies to executive committees exercising executive authority or only to deliberative/legislative committees

The appeal was dismissed. Each party was ordered to pay its own costs. The Constitutional Court confirmed that the composition of the mayoral committee consisting only of members of the majority party was constitutional.

A mayoral committee appointed by an executive mayor under section 60 of the Local Government: Municipal Structures Act 117 of 1998 is not a committee of the municipal council within the meaning of section 160(8) of the Constitution, and therefore is not subject to the constitutional requirement that committees allow parties and interests to be fairly represented. The mayoral committee is distinguished from committees of the council by: (a) being appointed by and accountable to the mayor rather than elected by the council; (b) serving primarily an executive function of assisting the mayor rather than a deliberative function; (c) dissolving when the mayor leaves office; and (d) being subject to the mayor's power of dismissal. Section 60 of the Structures Act is therefore not inconsistent with section 160(8) of the Constitution.

Langa DCJ noted that the two core purposes of local government - promoting democracy and ensuring efficient service delivery - are mutually reinforcing and must be balanced. He observed that the Structures Act provides alternative mechanisms for minority party participation through committees established under sections 79 and 80. He also noted that if mayoral committees were used in practice to circumvent the proper functioning of council committees, appropriate constitutional remedies could be sought on a case-by-case basis. Sachs J, in a separate concurring judgment, emphasized the importance of inclusivity, democracy and efficacy as mutually reinforcing values in local government, but agreed that the mayoral committee serves as an executive team analogous to Cabinet. He noted that forced multiparty representation on the mayoral committee could undermine rather than enhance fair representation if the mayor could unilaterally choose favorites from minority parties. O'Regan J in dissent provided extensive historical context regarding the legacy of apartheid in South African towns and cities, emphasizing that the spatial divisions and service delivery inequalities of the past remain visible and that local government has a transformative role in healing these divisions. She argued that the collegial decision-making required by section 160(8) serves this transformative purpose by requiring different communities within the same town to deliberate together.

This case is significant for establishing the constitutional framework for executive mayoral systems in South African local government. It clarifies that: (1) Not all committees involved in municipal governance are subject to the fair representation requirement in section 160(8); (2) The mayoral committee functions as an executive team directly accountable to the mayor, analogous to national and provincial cabinets; (3) The legislature has flexibility under Chapter 7 of the Constitution to create different executive systems at local government level, including systems that concentrate executive authority in an elected mayor; (4) The constitutional objectives of democratic participation and efficient service delivery must be balanced, and the Constitution permits different institutional mechanisms to achieve this balance; (5) Minority party participation in local government is protected through their representation on committees of the council elected under sections 79 and 80, and through their participation in council deliberations, but not necessarily through representation on the mayoral committee. The case demonstrates judicial deference to legislative policy choices within the constitutional framework for local government.