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[1]            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 High Court of South Africa, Gauteng Division, Pretoria (High Court), declared section 43(2)(c) of the Local Government: Municipal Structures Act[1] (Act) inconsistent with sections 19(3) and 160(8) of the Constitution, and thus invalid and unconstitutional.[2]  The order of invalidity was suspended for a period of 18 months and the order was referred to this Court for confirmation.  It did so in terms of section 167(5) read with section 172(2)(d) of the Constitution.

[2]            If satisfied that it is proper to do so, this Court must confirm declarations of invalidity by the High Court and the Supreme Court of Appeal.[3]  This is not a mere rubberstamping exercise.[4]

[3]            The applicant, the Socialist Agenda for Dispossessed Africans (SADA), is a registered political party.  At the outset, it is important to record that the respondent, the Minister of Cooperative Governance and Traditional Affairs (Minister), took no part in these proceedings, despite being urged to do so by this Court more than once.  The Minister withdrew his initial notice to oppose the application and, instead, filed a notice to abide the High Court’s decision.  At the Court’s request, the Pan African Bar Association (PABASA) appeared and argued the case for the respondent.  We are indebted to PABASA, and to Mr Mpofu SC and Ms Matlhape in particular, for their assistance in this matter.  More will be said about the Minister’s inaction later.