With the next municipal elections fast approaching, the Supreme Court of Appeal (the SCA) delivered a timely judgment in the case of The Municipal Manager of the Umdoni Local Municipality and Others v S Sookhraj and Another (1057/2024) [2026] ZASCA 65 (6 May 2026) (Umdoni), bringing much-needed certainty to the realm of local government structures.
In November 2021, a Democratic Alliance (a DA) councillor resigned, triggering a by-election for Ward 13. The African National Congress (the ANC) won that by-election, increasing its council seats from 17 to 18 and reducing the DA's from seven to six. In August 2022, DA councillor Baptie resigned as a councillor and vacated his exco seat, creating a vacancy in one of the DA's two allocated exco seats. In November 2022, the DA appointed councillor Sookhraj to fill that vacancy in terms of section 43(2)(e) of the Local Government: Municipal Structures Act 117 of 1998, as amended, (the Structures Act).
However, in February 2023, an ANC councillor moved a motion that councillor Maharaj be appointed to fill the vacancy created by councillor Baptie. The motion was passed by council vote and councillor Maharaj, an ANC member, was appointed to exco.
The central issue for determination was whether the composition of an executive committee (an exco) may be altered during a municipal council's five-year term, as a result of a by-election. This is of some significance given that some councillors have a penchant to switch political allegiance during a municipal council's term.
The appellants contended that the composition of an exco may be altered during a council's five-year term following a by-election and the resulting change in the composition in council. The respondents, conversely, argued that the right of political parties to appoint members to the exco is fixed within 14 days of the Council's election and endures until either the municipality changes or a new council is elected.
Section 43(2)(e) of the Structures Act provides that the award of seats on the exco to political parties or political interests must be determined in a certain manner, including "in the event of a vacancy arising on the executive committee, the political party or political interest to which the seat was allocated to will, through an authorised representative, appoint a councillor to fill that vacancy…"
However, section 45 of the Structures Act provides that a municipal council must determine the members of its exco from among its members at a meeting that must be held, inter alia, within 14 days after the council's election. Furthermore, section 46 provides that the members of an exco are determined for a term ending, subject to section 47, when the type of municipality is changed or the next municipal council is declared elected. Section 47 provides that a member of an exco vacates office during a term if that member (i) resigns as a member of the exco, (ii) is removed from office as a member of the exco or (iii) ceases to be a councillor.
The legal issue accordingly related solely to statutory interpretation. The appeal was about the implications of a vacancy arising in an exco, how a councillor can be appointed to fill that vacancy and whether a change in the composition of a council during its five-year term necessarily mandates a change in the composition of the exco.
The SCA's reasoning proceeded along three interrelated lines.
Firstly, the appellants contended that preserving seat allocations after a by-election would allow a party that had lost electoral support to retain exco representation, in conflict with section 160(8)(a) of the Constitution. The SCA rejected this, drawing on the Constitutional Court's recent judgment in Socialist Agenda of Dispossessed Africans v Minister of Cooperative Governance and Traditional Affairs [2025] ZACC 26; 2026 (1) BCLR 13 (CC), which confirmed that section 160(8) entitles members to participate in committee proceedings in a fairly representative manner consonant with democratic principles, but does not require that parties be proportionally represented on exco's as elected to the council. It therefore could not be unconstitutional for section 43(2)(e) to preserve seat allocations for the term notwithstanding mid-term shifts in council composition. This conclusion was reinforced by section 43(2)(f), which expressly permits a party to nominate a councillor from another party to fill one of its allocated seats. The SCA reasoned that if that is constitutionally permissible, preserving original seat allocations under section 43(2)(e) must equally be so.
Secondly, in analysing the relevant provisions, the SCA noted that the starting point is the text, bearing in mind the context and purpose of the provisions. The SCA drew an important distinction, introduced by the 2021 amendments to the Structures Act, between the initial allocation of seats to the exco and the filling of vacancies that arise during a term. The SCA noted that the 2021 amendments replaced the former brief proportionality requirement with a detailed formulaic approach that expressly distinguishes between the initial allocation of exco seats and the filling of vacancies. Critically, the legislature made no distinction between the circumstances in which a vacancy may arise, whether a councillor resigns from the committee, is removed from it, or ceases to be a councillor altogether. The same vacancy-filling procedure applies in all cases, a uniformity the SCA suggested as a deliberate legislative choice to create temporal stability in exco composition.
The pivot of the textual analysis was the phrase in section 43(2)(e): "the political party or political interest to which the seat was allocated to". The use of the past tense reflects a completed historical event, namely the initial determination of exco composition within 14 days of the council’s election pursuant to sections 43(2)(a) to (d) and section 45 of the Structures Act. Had the legislature intended a recalculation at each vacancy, it would have used a present or future tense formulation. The SCA further noted that the word "appoint" in section 43(2)(e) reinforces autonomous party authority, confirming that the relevant political party exercises an independent appointment power which is not subject to council approval.
Reading sections 43, 45, 46 and 47 together confirmed this interpretation: section 45 creates a single mandatory moment for exco determination and no provision exists for subsequent re-determination during the term except in limited circumstances relating to vacancies and removal by council resolution; section 46 fixes the exco term until either the type of municipality changes or the next council is declared elected; and by-elections appear nowhere in the list of termination events.
Thirdly, on a purposive interpretation, the SCA held that requiring exco re-determination after every by-election, particularly in hung councils, would create chronic instability, administrative complexity, potential disputes and repeated disruption to municipal operations, contrary to the objects of local government in section 152 of the Constitution. General elections determine overall council composition, and derivatively, the exco composition. By contrast, ward by-elections address localised vacancies and do not provide a fresh mandate for the council or exco as a whole. It was therefore rational, the SCA concluded, for exco composition to be fixed for the five-year term, with proportionality assessed only at the time of general elections.
Accordingly, the appeal was dismissed, and the DA's appointment of councillor Sookhraj in November 2022 was found to be lawful. The judgment in Umdoni represents a significant contribution by the judiciary to reinforcing legislative efforts to stabilise local government, ensuring that political volatility does not unduly compromise the rights and interests of South Africa's citizens.
