1. Introduction

The ACDP, COPE and FF Plus (the “Panel”) was requested to provide an opinion on a dispute in the coalition in PE and to adjudicate whether the parties in dispute are in breach of the Coalition Agreement (“Agreement”).

The three parties resolved among itself to adjudicate the matter on a balance of probability.

The following needs to be noted:

  • The adjudication is performed purely on the papers;
  • No single comprehensive affidavits from both parties setting out arguments and issues chronologically with supporting annexures were furnished, and thus made connecting the various issues (argument and counter-argument) cumbersome;
  • Many of the issues submitted are mere accusations with no proof provided to support the veracity thereof;
  • The issues submitted with documentary proof was helpful, but are in some respects still lacking in making a finding. As far as disputes regarding the legality or not of decisions – and many of the disputes centre around this – none of the parties presented evidence of having sought independent legal advice and submitted those legal opinions for scrutiny by the Panel, save for one referred to by the EM – but was not submitted for scrutiny. It is to be noted that the Panel is not a body constituted with legal experts and thus cannot pronounce on the correctness or not of the two opposing legal positions;
  • The DEM’s comprehensive rebuttal of the allegations against him references many annexures, NONE of which were attached. This seriously prejudices his version of events and as such the contents will have to be accepted as bona fide and correct.
  • The Panel had barely three days since instruction to apply their minds.

Therefore, care must be taken in using this document to base any prejudicial decisions upon. At most, this document, its observations and conclusions can only be used as a guide to implement the Coalition Agreement’s dispute resolution provisions, which are based on finding consensus on the way forward.

 

In the event that the Coalition and parties would like this Panel to make substantive and informed findings in order to provide proper direction with legal effect, it is advised that this Panel, or another constituted panel, holds a proper hearing where oral and other evidence is submitted and tested.

 

  1. Coalition Agreement:

The following guiding principles of the Agreement must be kept in mind:

  • The parties to the Agreement are equals and no one party has a higher status than the other on any basis, including size.
  • As with all agreements, the requirement of good faith – and therefore ‘trust’ – is important.
  • Its preamble sets out very important objectives for the public good which can only be achieved by way of cooperation between the parties.
  • On page 2 under the heading “Co-governance in Municipalities” very important and practical directives are set out that supports the notion that all parties in coalition are equal in status (bullet point one), will fulfil its election undertakings made to their respective constituencies (bullet point three), will receive recognition for their work in the coalition government (implied in bullet points one and three) and will collectively work for the greater good of all the people in the particular municipality (bullet point 2 and the remainder of bullet points).
  • On page 3 under the heading “Managing Co-Governance”, certain mechanisms are created to deal with any disputes between parties.

 

  1. The agreement is patently and clearly about co-governance and collaboration. Therefore, mutuality has to prevail and in fact to a considerable degree. Every act of every member of the coalition, in the given circumstances, has to be rigorously tested for mutuality, reciprocity, transparency, good faith and reasonable give and take. These are totally essential to the success of a coalition. The ostensible purpose of the coalition in Nelson Mandela Bay is to reflect governance characterised by integrity and a clear commitment to “bringing open, honest, accountable and responsive government to the people of South Africa”. To what extent has the emphasis been on attaining the above goal and which member of the coalition has not pulled his or her weight in the above regard?

 

  1. Dispute:

In this analysis, not all of the issues will be dealt with due to the limitations of the evidence presented set out above. However, the following conclusion can be made:

  • A complete breakdown of trust between the party exists;
  • The various allegations have given rise to the following two opposing perceptions and positions:
    • EM: that the DEM is uncontrollable, acts irrationally, undermines the coalition and must now be replaced;
    • DEM: that the EM is domineering and infringes upon the autonomy of the DEM as a representative of a separate and independent political party and that the EM does not consult properly with the DEM. A racial dimension is also present.
  • This positioning has now due to various acts, accusations and counter-accusations escalated into an impossible situation.
  • The breakdown in trust is in violation of the Agreement.
  • It is, however, not possible to decide who is truly at fault. The evidence indicates acts of departure from the Agreement by both parties, especially as the dispute escalated.

 

  1. Findings:

The Coalition Agreement is being undermined by the current state of affairs and a fundamental breach has already occurred due to the breakdown in trust between the parties.

 

We are not making a finding who is at fault as this falls outside the instructions to the Panel and cannot be made in any event due to the incomplete state of the available evidence.

Finding: the issue of personality and power mongering has subsumed every other consideration as the correspondence reveals. Substantive issues gave way to open and unceasing bickering.

 

The investigation confined itself to looking into violations of the governance agreement. Some issues are not covered by the agreement or the papers presented but are from subsequent letters from the DA and UDM and are laid out in observations. The findings are laid out beneath the relevant clause in the agreement.

 

The agreement entered into by the coalition partners is rooted in the joint acknowledgement that the government they form in each municipality “must be qualitatively different from the administrations they are replacing”. In particular, the new government “must use public resources to benefit all the people; … root out corruption wherever it manifests itself and by whomsoever it is committed; … be caring particularly for the poorest and most vulnerable citizens; … provide opportunities for people to get ahead, … and strive to provide safety for all within the mandate given to municipalities”. Visible acts will include, “transferring title deeds to occupants, (and ensuring) the provision of early childhood development, the supply of water, electricity, sanitation and refuse removal to all inhabitants”. This is the second test that must apply.

 

We are determined to place all the inhabitants of the municipalities at the centre of service delivery where we co-govern.

 

Finding: the issue of one’s preferred candidates to fill posts became a two-way tug of war eclipsing the above considerations. The cause of the poor fell by the wayside. This should have consequences for those escalating the problem.

 

For these reasons, the Parties commit themselves, in the municipalities in which they are the government, to abide by the following principles:

  • Reference to our coalition governments will reflect the constituent parties in the coalition.
  • Finding: Referring to the government as the DA led coalition violates the agreement.
  • Our coalition governments will act in the interests of all the residents of those municipalities, whether or not they are supporters of the coalition Parties, in an effort to improve and uplift the lives of all the people of the municipalities, and to promote social cohesion.
  • Our coalition governments will land the broad thrust of the parties’ municipal manifestos, into the Integrated Development Plan of the municipalities. Where there are aspects of incompatibility, these will be the subject of negotiation.

 

Finding: The IDP process was not consultative.

 

  • Our coalition governments are committed to infrastructure-led growth: investment in infrastructural service provision (roads, weekly refuse removal, utility provision) and above-inflation budgetary allocation to repairs and maintenance of municipal infrastructure.

 

  • Our coalition governments are committed to sound and sustainable financial management. This means that all the necessary management interventions must be in place and respected to achieve unqualified and/or clean audits.

 

Finding: If everything was done by the book nothing would need to have been said but to point to the book. Competent legal and audit service would have given oral and written advice. Instead of doing just that, the national leaders were being called upon repeatedly to referee the endless fights. If any party was seeking to exert undue and irregular influence or was guilty of using bullying tactics, charges should have been formulated and the Speaker should have referred the matter to the disciplinary committee to investigate. That is why the disciplinary committee exists in Council.

 

Finding: 1 hour overtime decision may result in a qualified audit opinion which breaches the agreement. Other parties should have been consulted.

 

  • Our coalition governments will establish an open and transparent tender system – public tender committee meetings and a comprehensive and up-to-date service provider database.

 

  • Our coalition governments will have a zero tolerance for corruption on the part of both politicians and professional staff, as well as a commitment to take all the necessary action to detect and interdict corruption, and to take disciplinary steps and/or to lay criminal charges against those responsible.

 

Finding: Suborning payment to companies that are under investigation for corruption and meeting with and speaking to staff members who are also under investigation could cause a serious breach in the legal process, costing the NMB metro severe financial loss. It is prudent and correct to request members of the government (all parties) not to meet with or talk to staff or companies with pending legal cases.

 

Finding: there is no provision here for the unilateral laying of charges with the police and the firing off of letters to the Minister and MEC without the involvement of other partners.  The mayor as well as the deputy mayor ought to be engaging all the members of the coalition at all times and particularly when matters of importance arose. As a result of the mayor and the deputy mayor slugging it out as individuals and rushing to the media, the situation has been made untenable.

 

  • Our coalition governments will avoid irregular, fruitless and wasteful expenditure, and a commitment to take action against those responsible (politically and administratively) for such expenditure.

 

  • Our coalition governments will select a “fit for purpose” executive management team, including the municipal manager and the executive directors, and will place an absolute prohibition of nepotism in appointments. Our coalition governments will also seek to fill vacancies on the staff establishment as rapidly as possible, preferably within 90 days.

 

Finding: In the appointment of senior management it is accepted practise that legal opinions given by a structure’s own legal advisors are accepted and acted upon in said structure. It forms a rational and legally defensible decision. Disagreements must be referred to the dispute resolution mechanism.

 

Nepotism refers to an official unfairly advantaging family members in appointments. This is not the case in the suggested appointments of senior management. The law insists that the best person for the position must be offered the job taking into account equity laws. The coalition agreement states that there will be no cadre appointments which is commonly understood to be unfairly advantaging party members. This should have been resolved in the dispute resolution mechanism.

 

Berating and accusing staff is unacceptable. This should be referred to the disciplinary mechanisms of the council. Shouting at and swearing at staff is equally unacceptable.

All of the parties should have been convened and consensus striven for. Failing that the majority decision must hold. Holding back progress without clear legislative or constitutional support retards progress.

 

  • Our coalition governments will allocate housing opportunities fairly, on the basis of an audited, transparent and non-racial housing waiting list database and with the transfer of title deeds.
  • Our coalition governments will likewise allocate EPWP opportunities fairly based on an up-to-date work-seekers’ database. Allied to this, they will interdict of the allocation of such opportunities for favours or on the basis of political affiliation.
  • Our coalition governments will implement policies that ensure effective debt collection, while developing a fair indigent policy.
  • Our coalition governments will be open and transparent, and will not unreasonably withhold information from the public.
  • Our coalition governments will place a ban on the use of blue-light convoys and the excessive executive office perks and privileges, such as the use of official vehicles (except where real security concerns dictate this), travel, the upgrading of offices, and so on.

 

Finding: The agreement clearly states a ban on blue lights.

  • Where possible, our coalition governments will invest in integrated public transport and broadband as enhancers of opportunity.
  • Our coalition governments commit themselves to open, transparent and consultative government, and the institution of systems and processes to ensure this. In the metros, our governments will instate sub-councils. In bigger and far-flung municipalities, this may mean decentralised administration.
  • Managing Co-Governance

 

The Parties accept that co-governance requires special measures to enhance co-operation and mutual trust. Accordingly, the Parties’ governance will be based on the following:

  • The Parties commit themselves to seek consensus on any matter relating to the administration of the Council and must make every reasonable effort to settle any disagreement or dispute by means of the mechanisms provided for in this agreement.
  • The Parties undertake to make the agendas of any plenary meeting of the Council or any committee of the Council available to all the councillors at least seven (7) days before that meeting.
  • The Parties agree not to introduce any new matter, or any amendment to a matter, unless the matter or amendment has been dealt with in the manner prescribed in this agreement.
  • The Parties agree to give adequate notice of any matter, save for matters of strict exigency, that any party intends to raise and any meeting of the Council or a committee, and will supply additional documentation so as to allow the other party(ies) the time to arrive at an informed decision.
  • The Parties agree to establish a Political Management Committee (PMC) in each municipality in which they co-govern, consisting of the leader of each of the coalition partners in that council. The PMC shall meet as often as necessary, but shall meet at the request of any of the Parties, and at least five (5) days before every plenary meeting of the Council. Where it meets at the request of any Party, it shall convene within seventy-two (72) hours of the request being made. The PMC will be assisted with secretarial services by one or more appropriately qualified municipal official(s).

 

Finding: Every effort should have been made by both parties to resolve their differences. This agreement should have been the basis of tackling every issue. Unfortunately, the correspondence does not show that the agreement was being minutely referenced. The agreement is very detailed. If it was laid out with numbers, it would have served as a kind of constitution

 

  • Any Party which disagrees with or has misgivings about any matter being proposed before the Council or a committee must raise the issue at the PMC. Should it not be possible to reach consensus in the PMC, the matter will be withdrawn from the agenda of the council or committee, and the issue will be escalated to the Dispute Resolution Mechanism (DRM).

 

Finding: In the matter of the appointment Ms Zitumani we agree that it should have been  referred  to the dispute resolution mechanism.

The Deputy Mayor has without invoking dispute resolution voted 3 times against the government resolutions.

 

  • The DRM shall consist of the provincial leader of the Parties or his or her nominee and one additional member from each Party. The DRM must convene to consider any matters referred to it within seven (7) days of receipt thereof, and must attempt to resolve the matters by consensus. If the matter is unable to be resolved by the DRM, it must be referred to the national leaders of the Parties to take whatever steps they believe appropriate.

 

Finding: The bi-lateral meetings to attempt to resolve the differences have breached the agreement by not invoking the dispute mechanism arrangements.

The Parties further agree that their councillors in municipalities jointly controlled by the two or more parties will not unreasonably, openly, publicly or in any medium, including social media, criticise the members or the policies of another party to this agreement. If one party believes, with good cause, that a councillor through his or her actions or statements, is bringing the good name or reputation of the coalition into disrepute, or who is acting in an unreasonable or uncooperative manner, that party may refer the matter to the DRM.

 

Finding: It is not acceptable for a coalition partner to make public allegations against another leader in the coalition government. However, it is of extreme concern that recordings of meetings have been leaked to the media. This whole dispute has been carried into the public, disgracing the whole NMB metro government. It is in the best interest of that government to conduct an investigation of the matter and prevent any other leaks to the media.

 

Announcing corruption investigations on a portfolio of any Mayco member without informing or discussing the matter with said member is in breach of the coalition.

 

  • However, it is accepted that, where one party has a serious moral or principled objection to any matter, or where it has been impossible to arrive at consensus on any matter, that party retains the right to disagree and to criticise the majority viewpoint both within and outside the Council, whilst still retaining the governance agreement: provided that the party concerned first seeks consensus on the matter in the manner provided for in this agreement.

 

Finding : Based on the papers supplied the dispute resolution mechanism was not used to iron out any differences therefore the public criticisms in this case  are in breach of the agreement .

  • Nothing in this agreement shall prohibit any party from advancing, commenting on, mobilising on or demonstrating for or against any political issues, in terms of that party’s constitution.

 

Executives

The Parties agree that, where this is provided for in terms of the legislation and provincial choices, the municipalities will retain the Executive Mayoral system (with a mayoral committee), but that the mayoral committees will operate in an open, transparent and accountable way.

 

The initial positions (mayors, speakers, mayoral and executive committee members, sub-council chairs, delegates to the district councils) on each council in which the Parties are in coalition will be negotiated by the leadership of the Parties. Should a vacancy arise, this vacancy will be filled by a person nominated by the party which held that position, in consultation with the Mayor. In the event that the Mayor unreasonably refuses to accept the person nominated by that party, the matter may be referred to the DRM for resolution. Likewise, the delegation of specific responsibilities to each mayoral committee or executive committee member will be the prerogative of the Mayor, but such prerogative may be referred to the DRM should any party object to such delegation.

 

Note: The national leader of the DA agreed to rescind their letter stating their intention to replace the DEM in the health portfolio. The mechanism has been invoked by the National Party Leaders and an investigation is in process.

 

Finding: It seems that many members of the coalition are not conversant with the terms of this agreement. It would be prudent to have a workshop in each coalition government to ensure that the agreement is understood and used as a guide to manage governance.

 

NOTE: It was not possible given the time frame and in some cases a lack of evidence to make a finding on every issue that was raised

 

  1. Observations

It is of great concern that after all Parties had decided on a way forward both the Mayor and the Deputy Mayor made public statements which negated the terms we had agreed upon. The media statement by the Executive Mayor breached the agreement that the national leaders had made to keep issues out of the media to protect the coalition and engender trust in the government. The agreement also stated that the status quo remain until the outcome of the investigation. By making his statements he directly contradicted the joint statement and added fuel to fire. The DEM by organising a public demonstration also undermined the leaders’ decision. It also most definitely did not engender trust in the government both actions were disgraceful. National Leaders’ decisions and agreements must be adhered to by all parties.

 

In addition, the other parties and Mayco members have expressed their support for the Executive Mayor in writing.

Anton Alberts FF+

Farouk Cassim Cope

Jo-Ann Downs  ACDP