- The Constitutional Court rejects a challenge to the use of a random lot to break ties for seats on municipal executive committees.
- The court finds that this method does not undermine the right to vote or the principle of fair representation.
- SADA’s constitutional challenge is dismissed, clarifying the limits of judicial intervention in local government procedures.
In the 2021 local government elections in the Sekhukhune District, the Socialist Agenda of Dispossessed Africans (SADA) and the Democratic Alliance both won two seats on the Fetakgomo Tubatse Local Municipality’s council.
When the time came to allocate seats on the council’s executive committee, the two parties found themselves in a dead heat. South African law, specifically section 43(2)(c) of the Local Government Municipal Structures Act, required the decision to be made by drawing lots.
SADA objected, arguing that this lottery process disregarded the actual votes received and ultimately denied their supporters fair representation. Despite their protest, a lot was drawn, and the seat went to the Democratic Alliance.
SADA took the matter to the High Court, stating that the use of a random lot to break a political tie “disregarded the value of the votes, and the right to vote”. The party insisted the process was unconstitutional, violating both the right to vote and the requirement for fair and democratic representation in council committees.
The High Court agreed with SADA and ruled that the provision was unconstitutional. The matter was then referred to the Constitutional Court for final confirmation.
The meaning of fair representation
Justice Steven Arnold Majiedt, writing for a unanimous bench, identified the heart of the dispute: “Is the practice of sortition by casting lots as a deadlock-breaking mechanism for the establishment of an executive committee of a municipal council constitutionally offensive? That is the crisp question that arises in these confirmation proceedings.”
The judgment clarified that executive committees are internal governance structures, not legislative bodies, and that the right to vote applies to the election of the council itself, not its sub-committees. “The right to vote in elections for the municipality on 3 November 2021 is not in issue here. The votes were cast, counted, and proportionally applied to constitute a municipal council.”
Quoting from earlier jurisprudence, Justice Majiedt stated, “The requirement of fair representation emphasises that the Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered.”
Court affirms legislature’s power to choose the lottery
The judgment highlighted that using a random lot is a common method for resolving electoral deadlocks. “Item 8(2) of Schedule 1 provides that if two or more candidates in an election for ward councillor receive an equal number of votes, the result will be determined by lot.”
Justice Majiedt emphasised that Parliament deliberately selected this mechanism and that the judiciary should defer to such choices in the absence of a clear constitutional violation. “Absent a clear infringement of voters’ ability to exercise their section 19 rights due to a defective process, courts maintain judicial deference in allowing Parliament to regulate voting and electoral processes.”
The court was critical of the Minister of Cooperative Governance and Traditional Affairs for failing to participate in the litigation. Justice Majiedt wrote, “The minister’s inertia is unacceptable and deserving of strong deprecation. The importance of local government has been underscored by this court. And it has been emphasised by this court that the minister responsible for legislation is duty-bound to assist a court which has to determine the constitutionality of that legislation.”
No constitutional violation in drawing lots
Concluding, the Constitutional Court refused to confirm the High Court’s order of invalidity. Justice Majiedt declared, “The impugned provision passes constitutional muster and the High Court’s declaration of invalidity cannot be confirmed.”
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