Have you registered to vote in the 4 November municipal elections? I hope so, and I hope that we can avoid protracted litigation delaying results, such as in the 2024 national and provincial elections, which left behind 88 court challenges. Although most such issues were eventually resolved then, one would hope that the 2026 municipal elections will mainly be decided politically, rather than in courts.
Illustration: © GDJ, published on 5 April 2023 (Pixabay.com)
Of course, sometimes local issues might indeed require legal attention to enforce constitutional rights and allow communities to challenge planning decisions and procedures. South African courts have repeatedly demonstrated their willingness and ability to uphold constitutional principles when other institutions fail to do so. For example, a recent Constitutional Court judgment overruled a decision by the Cape Town municipality and the Western Cape provincial government on the sale of a Sea Point property in Cape Town, setting an important precedent for equitable access to land and spatial justice1.
The problem is not courts interfering, but rather that municipal legitimacy and capacity seem so fragile that courts are often required to resolve conflicts and uncertainties. Increasingly, political disputes become subjected to legal processes. For example, coalition disagreements often end up in courts, procurement controversies get subjected to judicial reviews, and candidate selection is litigated. While legally this might be legitimate, each successful court application is a reminder that councils themselves often struggle to resolve disputes politically.
These patterns appear in all categories of municipalities. Beyond metropolitan areas, in many district and rural municipalities litigation is increasingly being called on to resolve procurement issues, service delivery failures, irregular expenditure and administrative breakdowns. While these cases do not always attract national attention, they often have substantial consequences for residents.
Often the municipalities with the weakest political institutions depend most heavily on legal action, indicating that they are failing to deliberate about priorities effectively, and that political parties and local interest groups are failing to manage internal conflict. Provincial oversight sometimes arrives too late, leaving municipalities unable to implement lawful decisions.
As the municipal elections come into focus over the next three months, election commentary will rightly focus on coalitions, personalities, polling and service delivery. This might leave key governance questions unresolved, such as:
- Why are coalition agreements increasingly being interpreted and resolved by judges, rather than through political exchange and resolutions?
- Why do procurement decisions often end in court, rather than in securing better services as part of sound local governance?
- Why do many municipalities appear trapped in recurring cycles of external intervention, litigation and enforced administrative recovery?
- And why do rural communities, far from the political theatre of the metros, often bear the greatest cost when governance becomes a prolonged legal contest?
The problem is not that South African courts might occasionally intervene in political governance, but rather that they must do so often because political disputes remain unresolved and are usurped in legal dispute. As a result, coalition disagreements too often lead to court applications, mitigating procurement failures escalate into protracted judicial reviews, candidate selection disputes become litigations, and council procedures become constitutional arguments. Quite frankly, instead of political closure, municipalities often experience legal continuation and paralysis.
As indicated above, nowhere is this more evident than in municipal coalitions, and not only in the more complex metros, but across district and rural municipalities where issues are often legally challenged. This leaves municipalities with slow and contestable procurement, protracted disputes over water and sanitation and other functional responsibilities, interventions by provincial government, irregular expenditure and administrative breakdowns. For a community waiting years for a water scheme or for roads to be built or repaired, the distinctions between political and legal disputes are often largely academic. Both frequently result in delay, and alarmingly the municipalities with the weakest political institutions often become most dependent on costly legal processes and external support.
Coalition agreements increasingly require legal interpretation, and their procurement decisions often end in court rather than in better services. Some municipalities appear trapped in recurring cycles of intervention, litigation and administrative recovery when governance becomes a prolonged legal contest.
These questions point to a deeper challenge than the outcome of any single court case or election. South Africa does not need fewer independent judges, but stronger political institutions. The system works best when every institution performs its assigned constitutional role, but when one institution begins performing worse, systemic redress becomes necessary. A healthy constitutional democracy is one in which courts intervene rarely, not because they are weak, but rather because the institutions of democratic government are capable, accountable and trusted to perform their constitutional and practical assignments in the first place.
Chris Heymans is an independent governance and political economy advisor, based in Cape Town.
1 The Constitutional Court ruled that since the state is obliged to secure equitable access to land as outlined in Section 25(5) of the Constitution, all spheres of government need to use their property in a manner that redresses spatial apartheid. This, it ruled, entails that social housing must be well located.