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[2020] ZASCA 136
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Premier for the Province of Gauteng and Others v Democratic Alliance and Others (394/2020) [2020] ZASCA 136; [2021] 1 All SA 60 (SCA) (27 October 2020)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 394/2020
In
the matter between:
THE
PREMIER FOR THE PROVINCE OF
GAUTENG First
Appellant
THE
EXECUTIVE COUNCIL FOR THE PROVINCE OF
GAUTENG Second
Appellant
MEC
FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS Third
Appellant
and
DEMOCRATIC
ALLIANCE First
Respondent
RANDALL
MERVYN
WILLIAMS Second
Respondent
CHRISTO
MAURITZ VAN DER
HEEVER Third
Respondent
ZWELIBANZI
CHARLES
KHUMALO Fourth
Respondent
MINISTER
FOR CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS Fifth
Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES Sixth
Respondent
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY Seventh
Respondent
AFRICAN
NATIONAL
CONGRESS Eighth
Respondent
ECONOMIC
FREEDOM
FIGHTERS Ninth
Respondent
CONGRESS
OF THE
PEOPLE Tenth
Respondent
AFRICAN
CHRISTIAN DEMOCRATIC PARTY Eleventh
Respondent
PAN
AFRICANIST CONGRESS OF
AZANIA Twelfth
Respondent
FREEDOM
FRONT
PLUS Thirteenth
Respondent
ALL
TSHWANE COUNCILLORS WHO ARE
MEMBERS
OF THE
ANC Fourteenth
Respondent
ALL
TSHWANE COUNCILLORS WHO ARE
MEMBERS
OF THE
EFF Fifteenth
Respondent
THE
REMAINING TSHWANE COUNCILLORS Sixteenth
Respondent
SPEAKER
OF THE GAUTENG PROVINCIAL
LEGISLATURE Seventeenth
Respondent
ELECTORAL
COMMISSION Eighteenth
Respondent
MPHO
NAWA
N.O. Nineteenth
Respondent
SOUTH
AFRICAN MUNICIPAL AND ALLIED
WORKERS
UNION Twentieth
Respondent
Neutral
citation:
The Premier for the
Province of Gauteng and Others v Democratic Alliance and Others
(Case
no 394/2020)
[2020] ZASCA 136
(27 October 2020)
Coram:
ZONDI, VAN DER MERWE and SCHIPPERS JJA and
MATOJANE and GOOSEN AJJA
Heard
:
17 August 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be 10h00
on 27 October 2020.
Summary:
Appeal in terms of s 18(4) of the
Superior Courts Act 10 of 2013 (the Act) – against
implementation of order reviewing and
setting aside the dissolution
of a municipal council pending application for leave to appeal –
requirements for an order
under s 18 of the Act restated – s
159 read with s 139(1)
(c)
of
the Constitution requires election to be held within 90 days of
dissolution of municipal council – exceptionality and
irreparable harm requirements established –administrator would
be in office for a period in excess of the constitutionally
prescribed 90-day period.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Mlambo JP with Potterill ADJP and Ranchod J
concurring) sitting as court of first
instance:
The appeal is dismissed with costs
including costs of two counsel.
JUDGMENT
Zondi
JA (Schippers JA and Goosen AJA concurring)
[1]
This is an urgent appeal against an order in terms of s 18(3) of the
Superior Courts Act 10 of 2013 (the Act). It arises from
a decision
(the dissolution decision) of the second appellant, the Executive
Council for the Province of Gauteng (the Gauteng EC)
to dissolve the
Council of the City of Tshwane Metropolitan Municipality (the Tshwane
Council) and appoint an administrator in
terms of s 139(1)
(c)
of the Constitution on 4 March 2020 to run its affairs. The first
respondent, the Democratic Alliance (the DA), a political party
approached the Gauteng Division of the High Court, Pretoria (the high
court), on an urgent basis seeking that the dissolution decision
be
reviewed, declared invalid and set aside.
[2] The full court of that Division
(Mlambo JP, Potterill ADJP and Ranchod J) on 29 April 2020 found in
favour of the DA and made
the following order:
‘
2.
The decision of the Gauteng Executive Council to dissolve the City of
Tshwane Metropolitan Municipality, taken on 4 March 2020
and
communicated to the applicants on 10 March 2020 (“the
dissolution decision”), is reviewed, declared invalid and
set
aside.
3.
The thirteenth and fourteenth respondents are ordered, in terms of
the Code of Good Conduct of Councillors, to attend and remain
in
attendance at all meetings of the City of Tshwane Metropolitan
Municipality Council unless they have a lawful reason to be absent.
4.
The orders in paragraphs 2 and 3 are suspended until five days after
the level 5 nationwide lockdown, enforced by the National
Coronavirus
Command Council and announced by the President of the Republic of
South Africa on 23 March 2020, has been lifted.
5.
During the period of suspension:
5.1
The administrator appointed by the second respondent in respect of
the City of Tshwane Metropolitan Municipality shall be entitled
to
exercise the powers conferred by such appointment; and
5.2
The dissolution decision shall have no impact on the entitlement of
the Councillors of the Municipal Council of Tshwane to continue
to
receive their salaries and benefits.’
[3] Subsequently, the first appellant,
the Premier for the Province of Gauteng, the Gauteng EC and the third
appellant, the MEC
for Co-Operative Governance and Traditional
Affairs, Gauteng (the MEC) and the Economic Freedom Fighters (the
EFF) launched a conditional
application for leave to appeal to this
Court, pending the application for direct access to the
Constitutional Court. As a result,
the DA launched an application in
terms of s 18(3) of the Act in the high court, to implement the full
court’s decision pending
the appeal process. On 20 June 2020
the high court found that there were exceptional circumstances
justifying the grant of the
relief sought by the DA; that it would
suffer irreparable harm if the order was not granted; and that the
Gauteng EC would not
suffer irreparable harm. The court issued the
following order:
‘
3.
Pending the outcome of the application for leave to appeal or appeals
by the first, second, fifth, eighth and fourteenth respondents
(or
any future application for leave to appeal or appeal by any other
respondent), paragraphs 2 to 5 of the order made by this
Court on 29
April 2020 remain in operation and are to be given effect.
4.
The first, second, fifth, eighth, fourteenth and nineteenth
respondents are ordered to pay the costs of this application jointly
and severally. The one paying the other to be absolved.’
[4]
The issue before this Court is whether the DA satisfied the
requirements of s 18 of the Act for interim enforcement of a judgment
pending an appeal. It is important to emphasise that what is before
us is an appeal against the order putting into operation the
judgment
and orders made by the full court, pending an application for direct
appeal to the Constitutional Court and the conditional
appeal to this
Court, not the appeal against the main judgment delivered on 29 April
2020.
[5]
The events that led to the dissolution decision, the lawfulness of
which was successfully challenged by the DA, are dealt with
in the
full court judgment delivered on 29 April 2020 and need not be
detailed in this judgment. For the sake of convenience, however,
and
to facilitate understanding of the issues arising on appeal, a resume
of certain relevant facts is necessary.
[6] The full court in the main
judgment made the following factual findings:
‘
[7]
The Municipal Council has reached a dead-lock; no parties therein can
win an argument or gain an advantage and no action can
be taken by
the Municipal Council. The Municipal Council has no Mayor, Mayoral
Committee and no Municipal Manager. Simply put,
it is unable to
conduct its business and cannot serve its residents.
[8]
The reason for the dead-lock can be located in the Municipal
Council’s inability to convene and run council meetings to
transact and take necessary decisions in line with its
responsibilities. This situation exists as a direct consequence of
the
disruption of its meetings due to the walkout from council
meetings by ANC and EFF councillors thus depriving the Municipal
Council
of the necessary quorum. Whether done for good or bad reasons
does not alter the fact that the walkouts have rendered the City
powerless.’
[7]
On 5 March 2020, the Premier for the Province of Gauteng issued a
press statement announcing a resolution of the Gauteng EC
to dissolve
the Tshwane Council and to appoint an administrator under s 139(1)
(c)
of the Constitution until a newly elected Municipal Council has been
declared elected. The reasons for the dissolution notice were
set out
under the heading ‘Key Observations’ which, according to
the Premier, were concerning with regard to the state
of affairs in
the City of Tshwane. The Premier gave nine reasons for the decision.
Pursuant to the dissolution notice on 23 March
2020, the Premier
appointed the nineteenth respondent, Mr Mpho Nawa, as an
administrator. It is clear from the dissolution notice
that the
decision to dissolve the Council was based entirely on s 139 (1)
(c)
of the Constitution.
[8]
Aggrieved by this decision, the DA launched an application in the
high court to review and set aside the dissolution decision.
As
stated above, a full court was constituted to hear the matter. On 29
April 2020 the court made an order, inter alia, reviewing
and setting
aside the dissolution decision, and directing the ANC and EFF
councillors to attend and remain in attendance at all
meetings of the
Tshwane Council unless they have a lawful reason to be absent, in
terms of the Code of Good Conduct of Councillors.
[1]
The Gauteng EC and the EFF approached the Constitutional Court for
direct access and simultaneously therewith, conditionally sought
leave to appeal to this Court. These processes invoked by the Gauteng
EC and the EFF prompted the DA to approach the same Division
of the
high court in terms of s 18 of the Act, for an order implementing its
order of 29 April 2020, pending the finalisation of
the appeal
processes, which was granted.
[9] Section 18 of the Act reads as
follows:
‘
18
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision of a decision that is an interlocutory order not having the
effect of a final judgment, which is the subject of an application
for leave to appeal or of an appeal, is not suspended pending the
decision of the application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1) ─
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.’
[10]
The history of s 18 was comprehensively dealt with by this Court both
in
Ntlemeza v Helen Suzman Foundation
and Another
[2017] ZASCA 93
;
2017 (5) SA 402
(SCA), paras 19-22 and
University
of the Free State v Afriforum and Another
[2016] ZASCA 165
;
2018 (3) SA 428
(SCA), paras 5-6 and need not be
repeated in this judgment, save to emphasise that in
University
of the Free State
this Court held that
it was clear on a proper construction of s 18 that it does not merely
purport to codify the common-law principle,
but rather to introduce
more onerous requirements. That common-law principle stipulates that
in general, the execution of a judgment
is automatically suspended
upon the noting of an appeal, with the result that, pending the
appeal, the judgment cannot be carried
out and no effect can be given
thereto, except with the leave of the court which granted the
judgment. The Court reached this conclusion
after a thorough analysis
of the provisions of s 18 and the extent to which the legislature has
interfered with the common-law
principles articulated in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
at 544H-545G.
[11] In this regard this Court in
University of Free State
held:
‘
[9]
What is immediately discernible upon perusing ss 18(1) and (3), is
that the legislature has proceeded from the well-established
premise
of the common law that the granting of relief of this nature
constitutes an extraordinary deviation from the norm that,
pending an
appeal, a judgment and its attendant orders are suspended. Section
18(1) thus states that an order implementing a judgment
pending
appeal shall only be granted “under exceptional circumstances”.
The exceptionality of an order to this effect
is underscored by s
18(4), which provides that a court granting the order must
immediately record its reasons: that the aggrieved
party has an
automatic right of appeal; that the appeal must be dealt with as a
matter of extreme urgency and that pending the
outcome of the appeal
the order is automatically suspended.
[10]
It is further apparent that the requirements introduced by ss 18(1)
and (3) are more onerous than those of the common law.
Apart from the
requirement of “exceptional circumstances” in s 18(1), s
18(3) requires the applicant “in addition”
to prove on a
balance of probabilities that he or she “will” suffer
irreparable harm if the order is not made, and
that the other party
“will not” suffer irreparable harm if the order is made.
The application of rule 49(11) required
a weighing-up of the
potentiality of irreparable harm or prejudice being sustained by the
respective parties and where there was
a potentiality of harm or
prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the case
may be, was required. Section
18(3), however, has introduced a higher threshold, namely proof on a
balance of probabilities that
the applicant will suffer irreparable
harm if the order is not granted and conversely that the respondent
will not, if the order
is granted.’
[12]
It is clear from the provisions of s 18(1) read with s 18(5) of the
Act that the noting of an appeal suspends the operation
and execution
of the order pending the decision of the appeal or application for
leave to appeal. The judgment or order is also
suspended whilst an
application for leave to appeal is pending before this Court or the
Constitutional Court. This is the norm
or a default position.
[2]
Section 18(3) is an exception to this general rule. Under s 18(1) a
court may order otherwise ‘under exceptional circumstances’.
A party who requires the court to ‘order otherwise’ is in
terms of s 18(3) required to prove on a balance of probabilities
that
he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable
harm if the
court so orders.
[13]
In other words, the test in terms of s 18 requires that ‘exceptional
circumstances’ must exist, and this involves
two factual
findings. A party seeking leave to execute the order must show
firstly, that the applicant for leave to appeal would
not suffer
irreparable harm if the order is put into operation, and secondly,
that he or she would suffer irreparable harm if the
order remains
suspended and the absence of irreparable harm to the respondent who
seeks leave to appeal. The circumstances must
be such as to justify
the deviation from the norm.
[14]
The concept of ‘exceptional circumstances’ is not defined
in the Act. In my view the concept is sufficiently flexible
to be
considered on a case-by-case basis, since circumstances that may be
regarded as ‘ordinary’ in one case, may be
treated as
‘exceptional’ in another. This may explain the reason for
the reluctance by the courts to lay down a general
rule. In
Liesching
and Others v The State
[2018] ZACC 25
;
2019 (4) SA 219
(CC) the Constitutional Court in
considering the concept of ‘exceptional circumstances’
within the context of s 17(2)
(f)
of the Act referred to
MV Ais Mamas
Seatrans Maritime v Owners
,
MV
Ais Mamas and Another
2002 (6) SA 150
(C) in which Thring J distilled the principles that
emerged from the survey of case law relating to the meaning of
the
concept of ‘exceptional circumstances’ at 156E-157C:
‘
1.
What is ordinarily contemplated by the words “exceptional
circumstances” is something out of the ordinary and of
an
unusual nature; something which is exceptional in the sense that the
general rule does not apply to it; something uncommon,
rare or
different: “besonder”, “seldsaam”,
“uisonderlik”, or “in hoë mate ongewoon”.
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the word “exceptional”
has two shades of meaning: the primary meaning
is unusual or
different; the secondary meaning is markedly unusual or specially
different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a literal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.’
[15]
In
Ntlemeza
[3]
this Court held that s 18 sets the basis for when the power to depart
from the default position comes into play, namely, exceptional
circumstances which must be read in conjunction with the further
requirements set by s 18(3). It emphasised that the Legislature
has
set the bar fairly high. It went on to hold as follows at para 38:
‘
In
UFS
v Afriforum & another
[2016]
ZASCA 165
(17 November 2016), para 9, this court stated that it was
immediately discernible from ss 18(1) and (3) that the Legislature
proceeded
from the well-established premise of the common law, that
the granting of relief of this nature constituted an extraordinary
deviation
from the norm that, pending an appeal, a judgment and its
attendant orders are suspended. It noted that the exceptionality is
further
underscored by the requirement of s 18(4)(i); that the court
making such an order “must immediately record its reasons for
doing so”. I interpose to state that the reasons contemplated
in s 18(4)(i) must relate to the court’s entire reasoning
for
deciding “otherwise” and must therefore also include its
findings on irreparable harm as contemplated in s 18(3).’
[16] With this background, it remains
to consider whether the high court in granting the order to execute
had due regard to the
relevant provisions of s 18 and applied them
correctly. This requires a closer examination of the factual
averments on which the
DA’s case was anchored.
[17]
As regards exceptional circumstances, the DA’s case is based on
two pillars. First, that the effect of the dissolution
decision is to
undo the votes of the residents of Tshwane and to force fresh
elections, and from a constitutional standpoint the
dissolution
decision is extraordinary. It contends that local government is one
of the three spheres of government created by the
Constitution. This
contention was based on s 41
(g)
of the Constitution which sets out the general rule that neither the
national, nor provincial sphere of government may encroach
on the
functional integrity or institutional integrity of a local
government. Section 139(1)
(c)
of the Constitution, the DA contends, provides an exception to this.
It allows a provincial government to dissolve a municipality
where
the municipality has failed to fulfil an executive obligation in
terms of the Constitution or legislation and where there
are
exceptional circumstances justifying the dissolution.
[18]
The second pillar of the DA’s case was the contention that the
administrator who is appointed under s 35(1) of the Local
Government:
Municipal Structures Act 117 of 1998 (the Municipal Structures Act)
has extraordinary powers. The DA accordingly contends
that as a
result of the dissolution decision, the Tshwane Council is governed
by the administrator, who wields extraordinary power
to control every
aspect of the municipality’s function including its
constitutionally original legislative and executive
functions, and
who does so in circumstances in which there is no accountability or
oversight over his conduct whatsoever. It also
contends that as a
result of the convoluted appeal procedures prosecuted by the Gauteng
EC and the EEF and its councillors, together
with the effects of the
coronavirus, the administrator would be in total control of every
function of the municipality for an indeterminate
period of time
which will extend far beyond the 90-day period contemplated by the
Constitution. It may, the DA argues, result in
an unelected
administrator remaining in power for the majority of the remainder of
the term of the Tshwane Council. If that
is permitted, the
judgment which the DA and its councillors obtained from the full
court would become meaningless and be rendered
moot.
[19] As regards an irreparable harm
requirement, it is argued by the DA that, if the order is not put
into operation pending the
appeals, it would suffer the following
irreparable harm during the interim:
(a) there would be a severe harm to
the separation of powers and the autonomy of local government;
(b) allowing the dissolution decision
to remain in force pending the appeal has potentially devastating
consequences for the city’s
finances;
(c) the administrator is currently in
a position to take decisions and make commitments that will bind the
Tshwane Council for all
future purposes, even after his departure
when the appeal fails. This form of harm was said to be irreparable
and that it was particularly
unacceptable given that the
administrator has never been elected – he was appointed by the
Gauteng EC; and
(d) under the
administrator, the Council has effectively ceased to function and
respond to its residents and it is clear that the
administrator has
failed to put in place any plan to do so.
[20]
On the question of harm to the Gauteng EC, it was contended by the DA
in the high court that the Gauteng EC would not suffer
irreparable
harm if the judgment was implemented, for the simple reason that a
municipality must be governed by its elected municipal
council.
Moreover, the root cause of the difficulties encountered by the
Tshwane Council was the failure of ANC and EFF councillors
to attend
and remain in attendance at Council meetings, as they were obliged to
do under the Code of Conduct for Councillors. These
councillors
likewise would not suffer irreparable harm.
[21]
The high court upheld the contentions of the DA, which relied on
Electoral Commission v Mhlope
[2016] ZACC 15
;
2016 (5) SA 1
(CC) that the term of office of an
administrator, like that of municipal councils, should not be
extended beyond the 90-day period
stipulated by the Constitution. It
held that the extension would be unlawful and would constitute
irreparable harm. The high court
reasoned that the extension of the
administrator’s term arises from the postponement of the local
government elections to
September 2020, as well as the period it
would take to finalize the direct appeals to the Constitutional
Court. It stated that,
keeping the administrator in office for longer
than the mandatory 90-day period, goes against the constitutional
scheme of preventing
one sphere of government from interfering longer
than it should in the affairs of another, which would be the case if
the administrator
remains in control of the City of Tshwane for
longer than 90 days allowed by the Constitution. It held that this
amounts to exceptional
circumstances in that the effect thereof is to
keep duly elected councillors, the majority of whom are from the DA,
from doing
what the Constitution envisages, to run the affairs of the
City of Tshwane in keeping with the wishes of Tshwane voters.
[22]
As regards the requirement of irreparable harm, the high court found
that the DA had established that it and the residents
of Tshwane
would suffer irreparable harm if the interim enforcement was not
granted pending the appeal. The basis for this finding
was that the
citizens of Tshwane have a fundamental constitutional right to be
governed by those they elected and the denial of
this right for
longer than the constitutionally permitted 90-day period would, in
its view, constitute irreparable harm. The grant
of the interim
enforcement order would ensure that the duly elected councillors are
allowed to resume their constitutional function,
thereby preserving
the rights of the voters and the autonomy of local government.
[23]
Thereafter, the high court as required by s 18(3) of the Act,
proceeded to determine whether the grant of interim enforcement
order
would cause the Gauteng EC irreparable harm. It found that none was
established.
[24]
Before us, it was submitted by counsel for the Gauteng EC, that the
DA failed to establish all three elements of s 18, which
he argued,
are required by the Act to be simultaneously present and that failure
to establish one of them, should have resulted
in the DA being
non-suited. He argued that the high court misdirected itself in two
ways. First, by finding that the interim enforcement
order would not
cause the Gauteng EC irreparable harm; and secondly, by collapsing
the requirement of exceptionality with that
of irreparable harm. In
developing this argument, counsel pointed out that it was clear from
the judgment of the high court that
the elected representatives of
Tshwane would lose out on their elected terms of office as a
consequence of a combination of Covid-19
(which rendered it
impossible for the Independent Electoral Commission (IEC) to hold the
elections within the period prescribed
by the Constitution following
the dissolution of the Tshwane Council) and the delays of the appeal
processes. That rationale, counsel
argued, was used by the high court
to establish both the exceptionality and irreparable harm
requirements.
[25]
In my view, the criticism that the high court collapsed both the
exceptionality and irreparable harm requirements of s 18,
is
unfounded. Granted, they are two separate requirements, but there is
nothing that says the same set of facts cannot give rise
to
irreparable harm and exceptional circumstances. In fact, the same
approach was adopted by Sutherland J in
Incubeta
,
paras 27-29 where he used the same facts to make a finding on
exceptional circumstances and irreparable harm. The same approach
was
also adopted by this Court in
Ntlemeza
,
paras 45-47, where the adverse prior crucial judicial pronouncements
about Mr Ntlemeza and the place that the South African Police
Service
maintains in the constitutional scheme, as well as the vital role of
the National Head of the Directorate for Priority
Crime Investigation
(DPCI) and the public interests at play, were facts that were
recognised in the assessment of both the exceptionality
and
irreparable harm requirements.
[26]
It was contended by the Gauteng EC that the irreparable harm it
relied upon, covered the interests of the Provincial Government,
the
residents of Tshwane and the interests of the Tshwane Council. What
gave rise to the irreparable harm in this case, it was
argued, was a
combination of four elements. Firstly, a leadership void. In this
regard, it was argued that the City of Tshwane
had been without a
mayor, a municipal manager and senior positions at management level
had not been filled for a long time. Secondly,
the Council was unable
to hold meetings in order to transact business. Thirdly, there was a
failure of service delivery such as
the provision of water to the
residents of Hammanskraal and a crisis at Wonderboom Airport, which
implicated the Municipality in
maladministration, negligence and
corruption.
[27]
It was further contended that, at the heart of a dissolution based in
part on disruption of service delivery, the interests
of residents
affected by the lack of service delivery, not those of councillors,
are of paramount concern. For this proposition
counsel relied on
Ngaka Modiri Molema District
Municipality v Chairperson, North West Provincial Executive Committee
and Others
[2014] ZACC 31
;
2015
(1) BCLR 72
(CC) in which the Constitutional Court held at para 9:
‘
This
reveals a fundamental flaw in the Municipality’s application
for leave to appeal against the refusal by the High Court
of the
temporary interdict application. It needs to be stressed that the
potential prejudice and urgency lie not in the harm suffered
by the
Municipality or the municipal councillors, but in the continued
disruption of basic essential services to the people and
communities
the Municipality is supposed to serve. The people who may suffer the
real harm are not party to these proceedings.
It is because of the
alleged failure in its executive obligation to them that the
Municipality was dissolved.’
[28]
I am not satisfied that the Municipal Council’s failure to
supply water to the residents of Hammanskraal and the crisis
at
Wonderboom Airport constitute irreparable harm to the Gauteng EC. As
regards the water crisis in Hammanskraal, the full court
in the main
judgment accepted that provision of water was an executive obligation
which the Council had failed to fulfil. This
however, was due to
failure to achieve a quorum in the Council which is addressed by the
full court’s order directing compliance
with the Code of
Conduct for Councillors. Aside from this, the Gauteng EC was not
without a remedy. It could have assumed the responsibility
for the
obligations in relation to Hammanskraal in terms of s 139(1)
(b)
of the Constitution.
[29]
In relation to the Wonderboom Airport complaint, the full court in
the main judgment found that it did not amount to an unfulfilled
executive obligation as the Council had taken steps to remedy the
situation. This complaint, in my view, does not provide sufficient
factual support for the claim of irreparable harm on the part of the
Gauteng EC. The full court’s conclusion that the Gauteng
EC had
failed to show that it would suffer irreparable harm if the operation
of the order in the main judgment was put into effect
pending the
appeal, was therefore correct.
[30]
It is correct that prior to the dissolution decision the Tshwane
Council was dysfunctional. The full court in the main judgment
found
that the situation existed as a direct consequence of the disruption
of its meetings due to the walkout from council meetings
by the ANC
and EFF councillors, thus depriving the Council of the necessary
quorum. The mandamus issued by the full court was designed
to remove
that obstacle. There is no suggestion that upon the reinstatement of
the Council, the problems which led to the Council
being unable to do
what it is mandated to do, will be experienced again, in particular
having regard to the fact an Acting Municipal
Manager was appointed
to perform the functions of the Municipality. It is not suggested
that the work that he has done thus far
will be undone should the
Council be reinstated.
[31]
In addressing the irreparable harm requirement, the high court had
regard to secs 1
(d)
and 152(1)
(a)
of the Constitution and concluded that it was clear from these
provisions, that allowing the administrator to continue running
the
affairs beyond the 90-day prescribed by the Constitution, was
anathema to the values upon which a democratic state is founded.
It
accordingly held that the citizens of Tshwane have a fundamental
constitutional right to be governed by those they had elected
and the
fact that they were denied this right constituted irreparable harm on
their part. I cannot find fault with the high court’s
reasoning.
[32]
As regards exceptionality, it was submitted by counsel for the
Gauteng EC that the high court’s reliance on the 90-day
constitutional requirement, as a basis for its finding on
exceptionality was misplaced. Two reasons were advanced for this
submission.
The first was that the 90-day period requirement
stipulated in s 159(2) of the Constitution does not apply when a
provincial
government invokes its original constitutional power to
dissolve a municipal council under s 139(1)
(c)
.
The second reason, which is an alternative to the first, is that even
if the 90-day period requirement does apply, the Electoral
Court has,
in effect, made it irrelevant by granting the IEC an extension to
hold elections.
[33]
Counsel submitted that there is nothing unconstitutional about the
dissolution of a municipal council by the province. The
intervention
by the province in the affairs of local government is mandated by the
Constitution itself and its source is the failure
of the Council to
fulfil its executive obligations. In developing this argument, he
submitted that the Constitution does not envisage
that a Council will
hold office for the entire five years, no matter what the
circumstances are. He stated that secs 139(1)
(c)
[4]
and 159
[5]
of the Constitution contain provisions that deal with the term of
office of a Municipal Council. Section 159 stipulates that the
term
of a Municipal Council may be no more than five years, as determined
by national legislation. If the Municipal Council is
dissolved in
terms of a national legislation, or when its term expires, an
election must be held within 90 days of the date that
council was
dissolved or its term expired. It is important, he argued, to read s
159 with s 139 of the Constitution, which also
envisages that the
terms of office of a Municipal Council may not be completed.
[34]
Counsel argued that, on the textual reading of s 159 of the
Constitution, the requirement that the election must be held within
90 days of the date of dissolution decision, does not apply if
Council is dissolved under s 139(1)
(c)
of the Constitution. This was so, the argument proceeded, because in
terms of the section, an administrator must continue to run
the
affairs of the Municipal Council until a newly elected Municipal
Council has been declared elected. He maintained that where
there has
been an intervention under the national legislation, the period of 90
day stipulated in s 159(2) of the Constitution
will then apply. He
submitted that this requirement does not apply when the dissolution
takes place under s 139(1)
(c)
of the Constitution because the dissolution does not take place under
the national legislation. It takes place directly under the
Constitution.
[35]
This was so, counsel argued, because the text of s 159(2) of the
Constitution uses the term ‘national legislation’.
He
submitted that the construction of s 159(2) of the Constitution,
contended for by the DA, that the dissolution was effected
in terms
of both the national legislation and the Constitution, was incorrect.
He argued that s 159(2) does not say if there was
a dissolution in
terms of ‘the Constitution and the national legislation’
then the 90-day period would apply. He said
it was logical that s
159(2) of the Constitution does not make a reference to a dissolution
in terms of the Constitution itself,
because 139(1)
(c)
already governs the dissolution
directly under the Constitution and there would be no point in
regulating the same subject matter
twice.
[36]
Counsel further submitted that there is no national legislation that
gives effect to s 139. Section 34 of the Municipal Structures
Act is
not the national legislation that is contemplated in s 139(8) of the
Constitution. He argued that s 34 of the Municipal
Structures Act
does not give effect to s 139 of the Constitution, because it makes
no provision for the dissolution of a municipal
council by a
province. It specifically deals with the dissolution of a municipal
council by the MEC, he submitted. The dissolution
of a municipal
council by a province is regulated entirely by s 139 of the
Constitution, so he argued. He maintained that s 34(1)
of the
Municipal Structures Act creates a different category of
dissolutions, not the dissolution under s 139.
[37] Section 34 of the Municipal
Structures Act deals with dissolution of municipal councils. It
reads:
‘
(1)
A municipal council may dissolve itself at a meeting called
specifically for this purpose, by adopting a resolution dissolving
the council with a supporting vote of at least two thirds of the
councillors.
(2)
A municipal council may dissolve itself only when two years have
passed since the council was last elected.
(3)
The MEC for local government in a province, by notice in the
Provincial
Gazette
,
may dissolve a municipal council in the province if the Electoral
Commission in terms of section 23 (2)
(a)
of
the Demarcation Act is of the view that a boundary determination
affects the representation of voters in that council, and the
remaining part of the existing term of municipal councils is more
than one year.
(4)
The MEC for local government in a province may dissolve a municipal
council in a province in accordance with the provisions
of section
139 of the Constitution of the Republic of South Africa, 1996.’
[38]
The argument that the Municipal Structures Act does not apply to the
dissolution decision is untenable. There is no distinction
between
the dissolution of a municipal council in terms of the Constitution,
and a dissolution under national legislation. There
is only one
source of power to dissolve a municipal council – s 139(1)
(c)
of the Constitution. Section 139(8) of the Constitution expressly
provides that national legislation may regulate the implementation
of
s 139(1). Sections 25, 34 and 35 of the Municipal Structures Act are
legislative provisions that regulate s 139(1)
(c)
of the Constitution. Thus, a decision to dissolve a municipal council
is taken in terms of both s 139(1)
(c)
of the Constitution and national legislation, namely s 34(4) of
the Municipal Structures Act. It is therefore not surprising
that the decision to appoint the administrator in this case was
published in the Provincial Gazette, as required by s 34(4) and
s
35(2) of the Municipal Structures Act.
[6]
[39]
Furthermore, it is inconceivable that the Constitution would
prescribe a 90- day time limit for the holding of by-elections
where
the term of a municipal council expires or where a council is
dissolved in terms of national legislation, but would then
allow an
administrator an unlimited term of office where a municipal council
is dissolved in terms of s 139(1)
(c)
of the Constitution. I conclude, therefore, that on a proper
construction of secs 139(1)
(c)
and 159(2) of the Constitution, an election must be held within 90
days of the date of the dissolution of a municipal council.
[40] The second leg of the Gauteng
EC’s argument was that, in any event, the
answer
to the question whether or not the 90-day period applies to the
dissolution under s 139(1)
(c)
of
the Constitution is not dispositive of the s 18(3) question, because
ultimately, but for the effects of Covid-19, an election
would have
been held within 90 days of the date of dissolution of the Tshwane
Council.
[41] The Constitution, however,
contemplates a limited period during which citizens may be deprived
of governance by those whom
they have democratically elected. It
envisages only a 90-day period, which in this case has been breached
considerably. In
Mhlope
the Constitutional Court held that our
Constitution limits the terms of municipal councils to no more than
five years and does
not provide for any extension of this term.
Similarly, the Constitution allows an administrator appointed
following the dissolution
of Council to remain in office for no
longer than 90 days of the date of dissolution. The administrator is
not democratically elected
and therefore is not accountable to the
voters though he is accountable to the MEC. The time period with
which we are concerned
here, is designed to give effect to our
constitutional scheme. This scheme was described by the
Constitutional Court in
City of Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal and Others
[2010]
ZACC 11
;
2010 (6) SA 182
(CC) as follows:
‘
42.
Section 40 of the Constitution defines the model of government
contemplated in the Constitution. In terms of this section the
government consists of three spheres: the national, provincial and
local spheres of government. These spheres are distinct from
one
another and yet interdependent and interrelated. Each sphere is
granted the autonomy to exercise its powers and perform its
functions
within the parameters of its defined space. Furthermore, each sphere
must respect the status, powers and functions of
government in the
other spheres and “not assume any power or function except
those conferred on [it] in terms of the Constitution”.
43.
The scope of intervention by one sphere in the affairs of another is
highly circumscribed. The national and provincial spheres
are
permitted by sections 100 and 139 of the Constitution to undertake
interventions to assume control over the affairs of another
sphere or
to perform the functions of another sphere under certain well-defined
circumstances, the details of which are set out
below. Suffice it now
to say that the national and provincial spheres are not entitled to
usurp the functions of the municipal
sphere except in exceptional
circumstances, but only temporarily and in compliance with strict
procedures. This is the constitutional
scheme in the context of which
the powers conferred on each sphere must be construed.’
[42]
Thus, the power granted by the Constitution to one sphere of
government to intervene and assume control of the affairs of another
sphere, is highly circumscribed. If this Court were to uphold the
appeal, an unelected administrator would remain in place, accountable
only to a different sphere of government that appointed him, and for
far beyond the period envisaged in the Constitution. The choices
of
voters at the municipal level would then be disregarded,
[7]
and the autonomy of local government, undermined.
[8]
And this, when the provincial government is controlled by a party
that did not win the Tshwane municipal elections in 2016, and
where
the dissolution decision itself has been declared unconstitutional
and unlawful.
[43]
The high court, by contrast, rightly held that the circumstances of
the case were exceptional, given that they involved the
infringement
of peremptory provisions of the Constitution; and that the DA had
made out a proper case under s 18(3) of the Act
– the running
of the City of Tshwane by an unelected administrator is the very
antithesis of democratic and accountable government
for local
communities, enshrined in s 152(1)
(a)
of the Constitution. The court’s order properly ensures that
the councillors, duly elected by the citizens of Tshwane in
2016, are
allowed to resume their rightful constitutional role, powers and
responsibilities. The order gives effect to the rights
of voters and
preserves the autonomy of local government. It cannot be faulted.
[44] In the result, the appeal is
dismissed with costs, including costs of two counsel.
_________________
ZONDI JA
JUDGE OF APPEAL
Van der Merwe JA (Matojane AJA
concurring)
[45]
I have had the benefit of reading the comprehensive judgment of my
brother Zondi JA. However, I find myself in respectful disagreement
with its reasoning and conclusion. In my view, for the reasons that
follow, the appeal should succeed.
[46]
To recapitulate, on 4 March 2020 the second appellant took a decision
to dissolve the council of the Tshwane Metropolitan Municipality
(the
Tshwane Council) in terms of s 139(1)
(c)
of the Constitution (the decision). Consequently an administrator was
appointed on 23 March 2020 to undertake the functions of
the Tshwane
Council. The first to fourth respondents (collectively the DA)
challenged the decision in the Gauteng Division of the
High Court,
Pretoria. A full court of that division (the court a quo) made an
order reviewing and setting aside the decision (the
main order). The
appellants launched a conditional application for leave to appeal
against the main order to this court, as well
as an application for
leave to appeal directly to the Constitutional Court. The effect was
to suspend the main order pending the
determination of the proposed
appeal. The DA, in turn, approached the court a quo under
s 18
of the
Superior Courts Act 10 of 2013
for enforcement of the main order
pending the determination of the appeal proceedings. On 10 June 2020
the court a quo granted
the order sought (the interim order) and
the appellants brought it on automatic appeal to this court under
s
18(4)(ii)
of the
Superior Courts Act.
[47
]
The issue on appeal is whether the court a quo correctly held that
the DA had established each of the three requirements for interim
enforcement of an order under
s 18
of the
Superior Courts Act.
Applied
to this matter they were: (a) that exceptional circumstances
justified the interim order; (b) proof on a balance of probabilities
that the DA would suffer irreparable harm in the absence of the
interim order; and (c) proof on a balance of probabilities that
the
appellants would not suffer irreparable harm as a result of the
interim order.
[48] The court a quo held that s
159(2) of the Constitution was applicable to the matter. It provides:
‘
If a
Municipal Council is dissolved in terms of national legislation, or
when its term expires, an election must be held within
90 days of the
date that Council was dissolved or its term expired.’
The
court a quo reasoned that ‘the term of office of the
administrator cannot be elongated beyond the 90 days where the
Constitution
does not provide for such extension’. A
by-election in respect of the Tshwane Council was initially scheduled
for 10 June
2020. In the meantime, on 4 May 2020, the Electoral Court
gave an order authorising the extension of the period within which
this and other municipal by-elections were to be held, to 3 September
2020. In the circumstances the court a quo held that the
administrator would unlawfully hold office for much more than 90 days
following on the dissolution of the Tshwane Council. This
factor, so
the court a quo held, constituted both exceptional circumstances and
irreparable harm to the DA. It also concluded that
the appellants
would not suffer irreparable harm as a result of the interim order.
These conclusions are, in essence, endorsed
in the judgment of Zondi
JA and I need not elaborate thereon.
[49] I am prepared to accept, without
deciding, that s 159(2) of the Constitution is applicable to the
dissolution of a municipal
council under s 139(1)
(c)
. It seems
to me that this conclusion may be reached along the following lines.
Section 34 of the Local Government: Municipal
Structures Act 117
of 1998 (the Structures Act) provides for the dissolution of
municipal councils. Section 34(4) provides:
‘
The
MEC for local government in a province may dissolve a municipal
council in a province in accordance with the provisions of section
139 of the Constitution of the Republic of South Africa, 1996.’
However,
s 139(1)
(c)
of the Constitution clearly provides that the power to dissolve a
municipal council vests in the relevant provincial executive,
that is
the Premier together with the other members of the Executive Council.
On the face of it, therefore, s 34(4) directly contradicts
s
139(1)
(c)
and is unconstitutional. It is trite, however, that if the language
permits it, preference should be given to an interpretation
that
renders a statutory provision constitutional. See
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
paras 22-24.
[50] Section 139(8) of the
Constitution provides:
‘
National
legislation may regulate the implementation of this section,
including the processes established by this section.’
In
the circumstances I can see an argument that the phrase ‘in
accordance with the provisions of section 139 of the Constitution’
in s 34(4) of the Structures Act, should be interpreted to mean ‘in
accordance with a decision of a provincial executive
in terms of the
provisions of s 139’. Put differently, s 34(4) and the
provisions of s 35 that deal with the mechanics of
the appointment of
an administrator, do not provide an independent power to the MEC to
dissolve a municipal council, but provide
for the implementation of a
decision of a provincial executive under s 139(1)
(c)
.
This construction would avoid an inconsistency that would otherwise
exist, namely that no time limit is set for holding a by-election
after the dissolution of a municipal council under s 139(1)
(c)
.
It would also have the result that a municipal council is in such a
case (actually) dissolved in terms of national legislation,
within
the meaning of s 159(2).
[51]
But does it follow from the acceptance that s 159(2) was applicable
that the appointment of the administrator had terminated
or become
unlawful upon the expiry of a period of 90 days after the dissolution
of the Tshwane Council? I do not think so. First
and foremost, that
is not what s 139(1)
(c)
says. It provides that the administrator is appointed ‘until a
newly elected Municipal Council has been declared elected’.
[52]
Second, the drafters of the Constitution must have realised that
unforeseen circumstances might lawfully cause either the holding
of
an election or the declaration of its results to take place more than
90 days from the dissolution of the municipal council.
An obvious
example of the first instance is the lawful prevention of a
by-election as a result of a declaration of a national state
of
disaster under
s 27(1)
of the
Disaster Management Act 57 of 2002
,
coupled with regulations under
s 27(2)
that, for example, severely
restrict movement and gathering of persons.
[53] The provisions of s 64 of the
Local Government:
Municipal Electoral Act 27 of 2000
illustrate the
second instance. In terms of
s 64(1)
the Electoral Commission must
determine the result of a municipal election and declare the result
in public.
Section 64(2)
provides that if the Electoral Commission is
unable to determine and declare the result of an election within
seven days of the
election, it may apply to the Electoral Court for
an extension of that period.
Section 64(3)
reads:
‘
Despite
the provisions of any law, the Electoral Court may, on good cause
shown, grant or refuse an application referred to in subsection
(2).’
The
exercise of this wide discretion may clearly result in the lawful
declaration of the result of an election after expiry of the
90-day
period. The declaration of the result may be even further postponed
by an appeal against the refusal of an application for
extension
under
s 64(2).
(The papers do not reveal the power in terms of which
the Electoral Court authorised the extension that I have referred to
and
I express no opinion thereon.)
[54]
Third, s 152 of the Constitution sets out the objects of local
government. These include to ensure the provision of services
to
communities in a sustainable manner and to promote a safe and healthy
environment. In the light of what I have said there would,
on the
court a quo’s reasoning, in many cases be a vacuum, that is,
where neither a municipal council nor an administrator
is in place to
fulfil these objects. This could not have been intended.
[55]
For these reasons I hold that the appointment of an administrator
endures until a newly elected municipal council is declared
elected,
irrespective of the expiry of a period of 90 days after the
dissolution. In my opinion, therefore, the mainstay of the
interim
order was legally untenable. For this reason alone, the appeal should
succeed.
[56]
The appellants argued that even if it was accepted that for the
administrator to remain in office for more than 90 days would
infringe rights, the DA did not show the requirement of irreparable
harm. I agree and, for the benefit of the parties, I briefly
state my
reasons for this conclusion.
[57]
Whilst I accept that it is generally offensive to democratic values
for unelected persons to hold office for longer than necessary,
the
matter is governed by clear principle. The starting point is the
common law principle that, in order to prevent irreparable
damage to
the party intending to appeal, the execution of an order is
automatically suspended by the noting of an appeal, unless
the court
orders otherwise. In terms of the common law, therefore, the party
that seeks enforcement of an order pending an appeal,
has to justify
the exception to the general rule. As Fourie AJA demonstrated in
University of the Free State v Afriforum
and Another
[2016] ZASCA 165
;
2018 (3)
SA 428
(SCA) paras 9-11, the requirements of s 18 are more onerous
than those of the common law.
[58]
I accept that the question of harm could not be limited to the
position of the DA itself, as a political party. I therefore
accept
that it had to be considered whether the DA’s constituency in
Tshwane would suffer irreparable harm. And as I have
said, for
present purposes I assume that the rights of the DA’s
constituency would be infringed if the unelected administrator
holds
office for more than 90 days. But as this court emphasised in
UFS v Afriforum
para 22, infringement of a right per se does not constitute proof of
irreparable harm. The DA had to prove on a balance of probabilities
that the infringement would cause irreparable harm to it or its
constituency.
[59]
The ordinary meaning of harm is injury, damage or ill effect. And for
harm to be irreparable, the effects or consequences must
be
irreversible or permanent. See
Tshwane
City v Afriforum and Another
[2016]
ZACC 19
;
2016 (6) SA 279
(CC) para 59.
[60] It is common cause that the
Tshwane Council was dysfunctional. The court a quo succinctly
described this position and the reasons
therefor:
‘
[7]
The Municipal Council has reached a dead-lock; no parties therein can
win an argument or gain an advantage and no action can
be taken by
the Municipal Council. The Municipal Council has no Mayor, Mayoral
Committee and no Municipal Manager. Simply put,
it is unable to
conduct its business and cannot serve its residents.
[8]
The reason for the dead-lock can be located in the Municipal
Council’s inability to convene and run council meetings to
transact and take necessary decisions in line with its
responsibilities. This situation exists as a direct consequence of
the
disruption of its meetings due to the walkout from council
meetings by ANC and EFF councillors thus depriving the Municipal
Council
of the necessary quorum. Whether done for good or bad reasons
does not alter the fact that the walkouts have rendered the City
powerless.’
[61]
On the evidence of the appellants and of the administrator, which in
terms of well-known principles had to be accepted for
purposes of
determination of the application, the administrator and his team have
been doing a good job in running the municipality.
It is lamentable
that the obstructive conduct of councillors caused the paralysis of
the Tshwane Council. However, it is difficult
to comprehend how the
interim enforcement of the order requiring the Tshwane councillors to
attend council meetings and to remain
in attendance, would remove the
underlying acrimony, strife and political machinations that caused
the Tshwane Council to become
a lame duck. Even if it is accepted
that there may be some improvement of its performance, there is no
reason to believe that during
the period pending the appeal against
the main order, the Tshwane Council would do better than the
administrator and his team.
In the result the DA did not show
irreparable harm. On this basis too, the appeal should be upheld.
[62]
Finally I point out that neither the court a quo nor Zondi JA held
that irreparable harm lay in a wasteful by-election. This
must be
right. This court may take judicial notice thereof that the
Constitutional Court heard the application for leave to appeal
against the main order on 10 September 2020, but reserved judgment
and that the Electoral Court on 7 July 2020 further extended
the
aforesaid period to 30 December 2020, with leave to the Electoral
Commission to apply for a further extension. In the circumstances
it
is not a realistic possibility that the Tshwane by-election would
take place prior to the determination of the application for
leave to
appeal against the main order.
[63] I do not think that the
employment of more than two counsel was justified in the s 18
application. For these reasons I would
make the following order:
1 The appeal is upheld with
costs, including the costs of two counsel.
2 The order of the court a quo
dated 10 June 2020 is set aside and replaced with the following:
‘
The
application is dismissed with costs, including the costs of two
counsel.’
_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL
Appearances:
For
appellants: T Ngcukaitobi SC (with him J Mitchell, C Tabata and T
Ramogale)
Instructed
by: The State Attorney, Johannesburg
The
State Attorney, Bloemfontein
For
1
st
to
4
th
respondents: S Budlender
SC (with him N Ferreira, M Musandiwa and I Learmonth)
Instructed
by: Minde Schapiro & Smith Inc, Bellville
Symington
& De Kok, Bloemfontein
[1]
Contained
in Schedule 1 to the
Local Government: Municipal Systems Act 32 of
2000
.
[2]
Ntlemeza
v Helen Suzman Foundation and Another
[2017]
ZASCA 93
;
2017 (5) SA 402
(SCA) para 25;
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another
[2013] ZAGPJHC 274;
2014 (3) SA 189
(GJ) para 24.
[3]
Ibid
para 28.
[4]
‘139
Provincial
intervention in local government
(1) When a municipality cannot or
does not fulfil an executive obligation in terms of the Constitution
or legislation, the relevant
provincial executive may intervene by
taking any appropriate steps to ensure fulfilment of that
obligation, including─
. . .
(c) dissolving the Municipal Council
and appointing an administrator until a newly elected Municipal
Council has been declared
elected, if exceptional circumstances
warrant such a step.’
[5]
‘159
Terms of
Municipal Councils
(1) The term of a Municipal Council
may be no more than five years, as determined by national
legislation.
(2) If a Municipal Council is
dissolved in terms of national legislation, or when its term
expires, an election must be held within
90 days of the date that
Council was dissolved or its term expired.
(3) A Municipal Council, other than a
Council that has been dissolved following an intervention in terms
of section 139, remains
competent to function from the time it is
dissolved or its term expires, until the newly elected Council has
been declared elected.’
[6]
Section 35(2) of the Municipal Structures Act provides:
‘
When appointing one or more
administrators the MEC for local government, by notice in the
Provincial Gazette, must determine the
functions and powers of the
administrator or administrators.’
[7]
Mogalakwena
Municipality v Provincial Executive Council, Limpopo
2016 (4) SA 99
(GP) para 29.
[8]
City of
Cape Town and Another v Robertson and Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC) para 60.