Authored By: Michaele Kemp
University of the Free State (Graduate)
Michaele Kemp | Record of Law Internship Programme
Neutral Citation: Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs [2025] ZACC 26
Court: Constitutional Court of South Africa
Judgment delivered by: Majiedt J (unanimous decision of the court)
Coram: Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Rogers J, Savage AJ, Theron J and Tshiqi J
Delivered/Decided on: 20 November 2025
1. Parties
1.1 Applicant: Socialist Agenda of Dispossessed Africans (SADA)
The applicant is a political party registered in terms of the Electoral Commission Act 51 of 1996, to whom the Local Government: Municipal Structures Act 117 of 1998 (“the Act”) applies. It was affected by the application of section 43 of the Act and therefore has standing to approach the court in terms of section 38 of the Constitution of the Republic of South Africa 1996, acting in its own interest and in the public interest.1
1.2 Respondent: Minister of Cooperative Governance and Traditional Affairs (COGTA)
The Respondent is cited in his official capacity as the relevant member of the cabinet responsible for the implementation of the Local Government: Municipal Structures Act 117 of 1998.2 Section 92(2) of the Constitution holds the minister accountable for his functions and powers assigned by the President as the head of the cabinet and to the legislature for the exercise of these powers.3 The minister is therefore endowed with a constitutional obligation to appear in matters in which there is a question as to the constitutionality or implementation of legislation which he oversees. The minister, however, withdrew his notice to oppose, filing a notice to abide by the High Court’s judgment in its place, and was thus represented by the Pan African Bar Association.4
2. Background Facts
The Applicant contested the results of the Fetakgomo Tubatse Local Municipality and Sekukhune District (Limpopo Province) elections. The applicant and the Democratic Alliance party (DA) had both won 2 seats in the municipal council.5 An executive committee of 10 members was established during the newly elected council’s first meeting held in November 2021.6 The equal number of council seats between the parties created a stalemate when it was to be determined to which party the remaining executive committee seat would be assigned by application of section 43 of the Local Government: Municipal Structures Act 117 of 1998 (“LGMSA” or “the Act”).7 Section 43(2)(c) provides that in such a case where an “equality of surplus” is reached, the outcome is to be decided by sortition, or the casting of lots; the DA had won, despite the Applicant’s objection to this practice and request for abeyance to obtain the council’s legal opinion.8
3. Litigation History
SADA asserted that its marginally higher number of votes in the municipal election, despite equating to the same number of seats as the DA, should have been considered.9 Arguing that sortition in terms of section 43(2)(c) infringes upon electoral rights, it challenged the provision’s constitutionality in the High Court (Gauteng Division, Pretoria).10 The Respondent filed a notice to abide by the court’s decision and hence did not submit counterarguments.11
The High Court took a purposive reading of the section as a whole,12 reasoning that the election processes were intended to produce equally proportionally representative councils and executive committees; therefore, when the variables (votes and seats) are equal, it is logical to break a deadlock with a lot.13 However, it was held that no tie existed due to the marginal difference in votes and that sortition, in this case, undermined the political value of and right to these votes.14 Drawing on fair representation as a democratic principle,15 it reasoned that the number of votes could have been adequately decisive, nonetheless, because the decision directly influences which minority political party would have a voice on the committee.16
The High Court upheld the argument in declaring the provision constitutionally invalid.17 It applied section 19(3)(a) of the Constitution, which extends the suffrage right to voting in any legislative body elections, and section 160(8), which enshrines the right of municipal councillors to participate in council or its committee proceedings, in a way that is democratic, fairly representative of party interests, and as national statute may regulate. It then referred the matter to the Constitutional Court to confirm the declaration.18
4. Arguments in Final Litigation
The Applicant’s arguments in the current court remain largely the same, save the additional submission that it is unfair and undemocratic to equalise parties, who have not won the same number of votes, through the casting of lots rather than deferring to the electively earned difference when allotting executive committee seats.19
Court-requested counsel opposed the Applicant’s argument in the Respondent’s stead.20 It invoked the general statutory interpretation principle that a statutory provision must be interpreted in a manner preserving its constitutionality where reasonably possible,21 relying on Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd [2000] ZACC 12 [26]. Counsel argued that an executive committee did not constitute a “legislative body,” and section 19(3)(a) of the Constitution could thus not apply; the provision can therefore not be constitutionally invalid as it did not infringe on the right conferred by this section.22 It also contended that section 157(2) of the Constitution requires the legislature to ensure municipal council elections are representatively proportionate by means of national legislation,23 thereby enforcing the separation of powers principle and placing the power of intervention in the matter out of the court’s ambit.24
5. Legal Issues
The issues before the court were:
The main legal question:
- Whether the Constitutional Court ought to confirm the High Court’s declaration of invalidity of section 43(2)(c) of the Local Government: Municipal Structures Act 117 of 1998, based on its inconsistency with sections 19(3)(a) and 160(8) of the Constitution;
- Whether the practice of sortition (the casting of lots) legislated in section 43(2)(c) of the LGMSA is appropriately democratic as a decision-making mechanism for determining fair representation on the executive committee;25
- Whether an executive committee qualifies as a legislative body in terms of section 19(3)(a) of the Constitution;
- Whether the electorate’s will was undermined by not deferring to the respective parties’ tallied vote count as a tie-breaking mechanism to ensure proportional representation;26
- Whether in terms of section 160(8) of the Constitution, SADA’s rights as municipal council members to have their party or interests fairly represented in the proceedings of the council, which includes the established executive committee, were infringed upon;27
- Whether the court(s) are acting ultra vires by interfering with the legislature’s duty to regulate electoral processes through ruling on the mechanism legislated in section 43(2)(c).28
6. Ratio Decidendi
The present court ascertained that the Fetakgomo Tubatse Local Municipality falls under the type of municipal council that permits the establishment of an executive committee by virtue of section 43(1) of the LGMSA.29 It thereby examined the nature of the powers conferred to such an executive committee and determined that it bears no original legislative powers and,30 as such, is not a legislative body in terms of section 19(3)(a) of the Constitution.31
The court examined the amendments made to the LGMSA in 2021 at length,32 noting that section 43(3) had been entirely repealed and that section 43(2) had been amended with a thorough statutory determination scheme for forming executive committees.33 This scheme displaced the requirement for proportional representation of the municipal council on its committee.34 The amendments replaced subsection 3’s proviso for “any alternative mechanism” as decided by a municipal council in line with section 160 of the Constitution,35 with a specified mechanism — sortition.36
Since an executive committee is not a legislative body to be elected,37 and a determinative system has replaced the elective diction of the pre-amendment provision, no electoral right has been infringed upon by application of section 43(2).38 The Applicant’s contentions relating to the proportional representation of the voters’ will are assuaged by accompanying provisions requiring council oversight:39
- Committee recommendations are circulated back to the municipal council,40 which is fairly and proportionally representative as determined by a democratic election that is uncontested in the present matter.41
- Section 160(8) of the Constitution entitles (and tacitly requires) councillors to act consonantly with democratic principles when participating in committees in such a way that political parties and interests from within the council are fairly represented.42
To this point, the court distinguished between fair representation and proportional representation, relying on the Masondo judgment as interpretive aid for the application of section 160(8).43 Fair representation was clarified as the manner in which the rights to have all views considered are honoured in the spirit of a pluralistic democracy, and should not be reduced to a mechanical democratic practice.44 In the context of the constitutional provision, it is emphasised that the right to fair representation belongs to elected councillors participating in the scope of their activities within the council, including any committees formed;45 it does not contemplate the rights of the electorate to be proportionally represented in these spaces.46
The court repeatedly underscored this by noting that the challenged decision concerned the determination of seat allocations in the committee, not votes for the municipal election.47 Hence, the court held that sortition does not infringe on suffrage rights, nor does it preclude fairly representative and democratic participation in the internal functioning of the executive committee, and is therefore not misaligned with democratic principles.48
The argument around fair representation was the chief point of divergence from the High Court’s decision,49 as the lower court did not accurately interpret the nature of the council as an elected legislative body and the established, mechanically appointed executive committee.
In respect of the Respondent counsel’s separation of powers argument, the court upheld judicial deference.50 As there had been no violation of constitutional rights attributable to a defective process,51 it held with reference to Democratic Party v Brakpan Transitional Local Council 1999 (4) SA 339 (W) that it is not within its functions to instruct the municipal council on the composition of its executive committee or how it should ensure proportional representation in its allotments.52 The court conceded that, though deferring to votes could be a fairer mechanism than sortition to overcome a stalemate,53 it respectfully accepts it as a reasoned but unexplained legislative choice, without any comment or submission by the Respondent minister as to rationale.54 In its final commentary, the court lamented the Respondent’s reluctance to assist the court as the relevant legislature representative, despite the duty to do so.55
7. Judgment
The Constitutional Court did not confirm the High Court’s order of invalidity;56 section 43(2)(c) of the Local Government: Municipal Structures Act 117 of 1998 was not held as unconstitutional on the basis of inconsistency with sections 19(3)(a) and 160(8) of the Constitution.57 The Court also awarded no costs against the Applicant.58
Author’s Notes
While the Constitutional Court correctly distinguishes between fair representation and proportional representation, indicating that it is the former that is constitutionally implicated in this matter, it is notable that the pre-amendment legislative scheme made provision for both. Proportional representation, though not mandated beyond the electoral process,59 nevertheless functioned as a guiding mechanism within the internal organisation of municipal governance under the previous iteration of section 43 of the Local Government: Municipal Structures Act 117 of 1998.
The Applicant’s line of argument reveals a reflexive return to the validity test implied in the pre-amendment version of section 43.60 Former subsection 2 (now amended) expressly required executive committees to be constituted in a manner that preserved proportional representation, while subsection 3 (now repealed) conferred a discretionary power on municipal councils to adopt an alternative deadlock-breaking mechanism, subject to the proviso that it is concordant with section 160(8) of the Constitution.61 The test would roughly be constructed as such: the mechanism must either support or empower municipal councillors in their functions and activities within the council or its committees, and must align their conduct so that it is not inconsistent with democracy and does not impede the parties and internal interests of the council from being fairly represented. Read together, the earlier scheme permitted flexibility while retaining proportionality as a normative reference point.
By contrast, the amended legislation entrenches a determinative and seats-based representational pathway. The legislature removes electoral language and any implication of elective choice in the appointment of the executive committee. Under the revised scheme, vote counts are translated into percentages, percentages to seats, and thereafter, seats function as the sole metric for internal decision-making. As the logic proceeds, in this case, the converted numerical standings of the parties are equal, regardless of the difference in their original vote counts (SADA: 3667 votes = 2.25% = 2 seats; DA: 3321 votes = 2.04% = 2 seats), resulting in a deadlock to be resolved by alternative means when forming the committee.
The Constitutional Court refers to another provision, section 43(2)(f), as an illustration of this legislative approach. This provision empowers a political party with an allotted seat or seats on the executive committee to nominate another representative from a different political party to replace itself and occupy its seat.62 By equating these provisions, the court demonstrates that neither provision refers to an election nor defers to the number of votes received, instead using seats as an operative metric.63 It therefore concludes that neither provision promotes direct proportional representation; if one of these provisions should be impugned on this basis, then both would be susceptible to unconstitutionality by virtue of the same alleged flaw.64
In respect of sortition as the legislature’s chosen method, the court refers to two other instances in the Act where it is applied, both in the context of elections — of ward councillors and officebearers — where candidates receive an equal number of votes.65 This further emphasises the distinction between the nominal use of seats over votes in contexts that do not bear on elective choice, and demonstrates the consistent use of casting lots as a means to overcome stalemate throughout the legislative scheme. Sortition is not an unconstitutional method, although, by the court’s own admission, it may not be the fairest. With no disclosed legislative rationale, however, such concerns remain theoretical.66
This “pathway” or system assumes and implies that, in the absence of “election-language,” the vote tallies have no further bearing on the council’s appointments of “internal functional and organisational structures.”67 Instead, the number of seats allocated in the municipal council is used to formulaically determine the composition of the executive committee.68 In paragraph 30, the court explicitly acknowledges this deliberate shift from the previous position, which expressly heeded proportional representation. This raises a question as to the appropriate placement of proportional representation within the process — namely, whether it truly ends with election.
The revised legislation simply entrenches a specific alternative mechanism (sortition) in section 43(2)(c), as opposed to the open-ended discretion previously created by section 43(3). In effect, section 43(3) was repealed and replaced by the amendments to section 43(2) as a whole. The High Court’s reasoning reflects this understanding, interpreting the amended legislation as having embedded a mechanism for establishing proportionality within the new system.69 While it is not necessary to engage critically with the High Court’s interpretive approach here, it is worth noting that its reasoning appears consonant with democratic principles in a way that does not dispose of the constitutional standard set in section 160(8), notwithstanding the absence of an express proviso in the amended section 43 of the Local Government: Municipal Structures Act 117 of 1998. The constitutional standard continues to bear on the process by virtue of constitutional supremacy and the interpretive command of section 39(2) of the Constitution to promote the “spirit, purport and objects of the Bill of Rights.”
On a purposive reading, it follows that although fair representation as a broad normative standard does not always require precise proportional outcomes, it nonetheless contributes to the coherence of the procedural system as a whole. Where proportional mechanisms reach a point of deadlock, the Constitution permits neutral and rational tie-breaking procedures, such as sortition, that preserve institutional functionality without undermining the representational character of the system.
What the Applicant’s argument ultimately surfaces is a rationality challenge, advocating an alternative “pathway” to the one chosen by the legislature through its amendments to section 43(2). At least in the present matter, deferring to votes cast would have obviated the need to cast lots in terms of section 43(2)(c) altogether. After the municipal council election, SADA and the DA both obtained 2 seats, but SADA accumulated 346 more votes. Although the calculation operation in section 43(2)(a) and (b) would still result in a deadlock at the level of seats, the High Court reasoned that, “[w]here all variables were, however, not equal, there was, strictly speaking, no tie.”70 This reasoning exposes an inherent difficulty in the amended legislation. Since parties are less likely to obtain the exact same number of votes, but are more likely, through the prescribed calculation, to reach percentages that equate to the same number of seats when rounded, a seats-based system increases the likelihood of deadlock, whereas a vote-deferral system would not.
Both courts rightly deplore the Minister’s lack of contribution in this regard, as such input would have been invaluable in determining whether this was a reasoned legislative choice or an illogical insertion of an arbitrary alternative method. Discarding the functional determinative value of votes due to their association with elective processes, where they might otherwise simplify the formation of an executive committee, gestures toward the kind of “mathematical approach” to democracy cautioned against by Justice Sachs in Masondo.71
Though it cannot be fully explored here, perhaps the apparent misunderstanding of proportional representation as either a democratic principle or purely technical tool points to a deeper question: how far democratic principles should permeate the practical functioning of internal organisational structures in order to ensure that the overall system remains both democratically aligned and administratively efficient.
Footnote(S):
1 Constitution of the Republic of South Africa 1996, s38(a),(d) (Constitution).
2 Local Government: Municipal Structures Act 117 of 1998, as defined in the ‘Definitions’ section under ‘minister.’
3 Constitution, s92(2).
4 Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs [2025] ZACC 26, [3] (SADA v Minister of COGTA).
5 SADA v Minister of COGTA, [6].
6 SADA v Minister of COGTA, [8].
7 SADA v Minister of COGTA, [7]–[8].
8 SADA v Minister of COGTA, [8]–[9].
9 SADA v Minister of COGTA, [8]–[9].
10 SADA v Minister of COGTA, [10].
11 SADA v Minister of COGTA, [3]. The minister had originally filed a notice to oppose, but this was withdrawn.
12 SADA v Minister of COGTA, [11]. The court inferred that in respect of the representation on the larger municipal council, the intention is to create a proportional constituency within the executive committee.
13 SADA v Minister of COGTA, [11].
14 SADA v Minister of COGTA, [11].
15 SADA v Minister of COGTA, [12].
16 SADA v Minister of COGTA, [11]–[12].
17 SADA v Minister of COGTA, [11].
18 SADA v Minister of COGTA, [12]; Constitution of the Republic of South Africa 1996, s167(5) allocates the final discretionary power to rule on an Act of parliament’s constitutionality to the Constitutional Court, requiring its confirmation of any lower court’s order of invalidity.
19 SADA v Minister of COGTA, [13].
20 SADA v Minister of COGTA, [3], [14].
21 SADA v Minister of COGTA, [14].
22 SADA v Minister of COGTA, [14].
23 Constitution of the Republic of South Africa 1996, s157(2)(a).
24 SADA v Minister of COGTA, [15].
25 SADA v Minister of COGTA, [10]–[13], [25], [37].
26 SADA v Minister of COGTA, [12]. Issue determined with reference to the High Court’s ruling.
27 SADA v Minister of COGTA, [10], [12]–[13]. Issue determined with reference to the High Court’s ruling and additional framing by the Applicant’s arguments in the present court.
28 SADA v Minister of COGTA, [15].
29 SADA v Minister of COGTA, [22].
30 SADA v Minister of COGTA, [19], [22]–[24], [31]–[33].
31 SADA v Minister of COGTA, [34]–[35].
32 SADA v Minister of COGTA, [28].
33 SADA v Minister of COGTA, [29]–[30].
34 SADA v Minister of COGTA, [29]–[30].
35 SADA v Minister of COGTA, [29].
36 SADA v Minister of COGTA, [30].
37 SADA v Minister of COGTA, [35].
38 SADA v Minister of COGTA, [34].
39 SADA v Minister of COGTA, [31]–[33].
40 SADA v Minister of COGTA, [19], [33], [38].
41 SADA v Minister of COGTA, [33], [38].
42 SADA v Minister of COGTA, [35].
43 Democratic Alliance v Masondo NO [2002] ZACC 28 (Masondo), [12].
44 SADA v Minister of COGTA, [36]; Masondo, [12].
45 SADA v Minister of COGTA, [35], [43].
46 SADA v Minister of COGTA, [39], [43].
47 SADA v Minister of COGTA, [34], [40].
48 SADA v Minister of COGTA, [37].
49 SADA v Minister of COGTA, [47]–[50].
50 SADA v Minister of COGTA, [41], [44].
51 SADA v Minister of COGTA, [42].
52 SADA v Minister of COGTA, [42].
53 SADA v Minister of COGTA, [45]–[46].
54 SADA v Minister of COGTA, [45].
55 SADA v Minister of COGTA, [50]–[52].
56 SADA v Minister of COGTA, [50].
57 SADA v Minister of COGTA, [54].
58 SADA v Minister of COGTA, [53].
59 Note that proportional representation refers to an electoral model and is therefore capable of being used functionally and conceptually.
60 SADA v Minister of COGTA, [29]–[30].
61 SADA v Minister of COGTA, [29].
62 SADA v Minister of COGTA, [39].
63 Votes for either the party or for particular council members.
64 SADA v Minister of COGTA, [39].
65 SADA v Minister of COGTA, [40].
66 SADA v Minister of COGTA, [45].
67 Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs [2025] ZACC 26, [37].
68 Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs [2025] ZACC 26, [30].
69 SADA v Minister of COGTA, [11].
70 SADA v Minister of COGTA, [11].
71 SADA v Minister of COGTA, [36]; Masondo, [12]. It is noted that the original statement relates to the requirements of fair representation; however, it is submitted that the same could be said of proportional representation in this context.
