IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

REPORTABLE: YES
Case no: 2264/2024
In the matter between:
AFRIFORUM NPC Applicant
and
NGWATHE LOCAL MUNICIPALITY 1st Respondent
MUNICI PAL MANAGER,
NGWATHE LOCAL MUNICIPALITY 2nd Respondent
MUNICIPAL COUNCIL,
NGWATHE LOCAL MUNICIPALITY 3rd Respondent
FEZILE DABI DISTRICT MUNICIPALITY 4th Respondent
PREMIER, FREE STATE PROVINCE 5th Respondent
EXECUTIVE COUNCIL, FREE STATE PROVINCE 6th Respondent
MEC FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, FREE STATE PROVINCE 7th Respondent
MEC FOR FINANCE, FREE STATE PROVINCE 8th Respondent
MEC FOR ECONOMIC, SMALL BUSINESS DEVELOPMENT,
TOURISM AND ENVIRONMENTAL AFFAIRS,
FREE STATE PROVINCE 9th Respondent
THE NATIONAL COUNCIL OF PROVINCES 10th Respondent
MINISTER OF COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS 11
th Respondent
MINISTER OF FINANCE 12th Respondent
MINISTER OF WATER AND SANITATION 13th Respondent
MINISTER OF FORESTRY, FISHERIES
AND THE ENVIRONMENT 14th Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 15th Respondent

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Neutral Citation: Afriforum NPC v Ngwathe Local Municipality and 14 Others
(2264/2024) [2025] ZAFSHC 184 (20 June 2025)

Coram : Daffue J
Heard: 05 December 2024
Delivered: 20 June 2025
This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand- down is
deemed to be 12H 00 on 20 JUNE 2025.
Summary : Dysfunctional m unicipality – declaratory order granted that it is in
breach of its constitutional obligations towards residents – the Executive Council of
the Free State Province directed to intervene in the affairs of the municipality and inter alia to dissolve the municipal council and appoint an administrator – structural
interdict granted.

3



ORDER


1. That it be declared that:
1.1. the first respondent, the Ngwathe Local Municipality, is in breach of its
constitutional, legislative and regulatory obligations towards its residents;
1.2. the conduct of the first r espondent, in failing to –
1.2.1. ensure the provision of services to its community in a sustainable manner;
1.2.2. promote a safe and healthy environment for its community;
1.2.3. adequately structure and manage its administration, budgeting and planning
processes;
1.2.4. give priority to the basic needs of its community; and
1.2.5. promote the social and economic development of its community,
– is inconsistent with the Constitution and in breach of sections 152(1) and 153(a)
thereof, and is invalid;
1.3. the jurisdictional facts supporting mandatory Provincial intervention in the
affairs of the first respondent in terms of section 139 (4) and (5) of the Constitution,
read with sections 138 to 147 of the Local Government: Municipal Finance
Management Act 56 of 2003 ( the MFMA ), are present and have consis tently been
present in the past;
1.4. the failure of the fifth to ninth r espondents to carry out their mandate in terms
of section 139 of the Constitution and the MFMA effectively and to intervene and
resolve the issues of the first respondent is inconsist ent with the Constitution and
invalid;
1.5. the jurisdictional facts for mandatory P rovincial intervention in the affairs of the
first respondent , including dissolution of its municipal c ouncil in terms of sections 139
(4) and (5) read with sections 138 to 147 of the MFMA are now present and have
consistently been present in the past as a result of the fail ure of both the first, as well
as the fifth to ninth respondents, to ensure that the first r espondent meets its
constitutional and statutory obligations.
2. The fifth to ninth respondents are directed forthwith to i ntervene in the affairs
of the first respondent in terms of the aforementioned provisions of the Constitution
and the MFMA by exercising the powers conferred by sections 139(4) and (5) of the
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Constitution and they are specifically directed to, in terms of the provisions of section
139(5) (a) and (b) :
2.1. implement a recovery plan, aimed at securing the first r espondent’s ability to
meet its obligations to provide basic services and to meet its financial commitments;
2.2. dissolve the third r espondent and appoint an administrator until a newly
elected municipal c ouncil has been declared elected;
2.3. approve a temporary budget or revenue- raising measures, or any other
measures intended to give effect to the aforesaid recovery plan, to provide for the
continued functionality of the first r espondent .
3. The fifth to ninth r espondents shall report to this c ourt, under oath and in
writing, every three (3) months from the date of this order being handed down on
their progress in the implementation of this order, as well as the prospects of the first respondent being able to execute its own functions .
4. The first to ninth respondents shall jointly and severally pay the costs of this
application on an attorney and client scale.


JUDGMENT

Daffue J:
Introduction
[1] ‘The people of the Free State deserve better.’ This is not a quote from a
member of the judiciary, criticising another arm of the State. The Deputy Minister of Cooperative Governance and Traditional Affairs (COGTA) of the Republic of South
Africa, Dr Namane Dickson Masemola concluded his speech delivered on 3 December 2024 at the Free State Local Government Summit in these words.
1
[2] The Honourable Deputy Minister continued as follows:
2
‘… As the sphere of government closest to the people, municipalities are meant to embody
the principles of governance, responsiveness, and accountability. Yet, the reality paints a
troubling picture of governance systems in disarray. Municipal Councils are failing in their

1 Extract of a speech delivered on 3 December 2024 at the Free State Local Government Summit by
the Deputy Minister of Cooperative Governance and Traditional Affairs, Republic of South Africa, Dr
Namane Dickson Masemola.
2 Ibid.
5

critical mandate to provide leadership and enforce accountability. They are not delivering on
their primary responsibility that is ensuring essential services reach the communities they
serve. …
Across the province, our communities are walking through sewage daily, a glaring health hazard and a blatant violation of the constitutional principles that demand a safe and healthy
environment for all. It is a crisis that speaks not only to service delivery failures but to a
disregard for human dignity. …
The sewer spillages, unfinished projects, and corruption that have become synonymous with
some municipalities in this province must end. The time for complacency is over. …’

[3] The aforesaid speech came to my attention after I had reserved judgment.
The parties confirmed on request that I could take judicial cognisance thereof .
[4] On 19 November 2024 the South African Human Rights Commission, Free
State Provincial Office (SAHRC) officially released a report of its enquiry into service
delivery at local government level in the Free State Province.
3 The repor t documents
the challenges faced by local municipali ties in the Free State Province. S everal
negative findings were made against the 18 local municipalities as well as the
Mangaung Metropolitan Municipality and the Free State Department of Cooperative
Governance and Traditional Affairs (COGTA) . It is unnecessary to deal with the
findings , save to mention that many findings are encapsulated in the evidence
tendered in these application papers consisting of 1221 pages . It is appropriate to
repeat the aforesaid words of Dr Namane Dickson Masemola:
‘The people of the Free State deserve better.’
The parties
[5] The applicant is Afriforum NPC (Afriforum), a non-profit company duly
incorporated in terms of the Company Laws of the Republic of South Africa. It is a
civil rights organisation, alleging that its main purpose is to promote and advocate for
democracy , constitutional and human rights broadly, more specifically with the
emphasis on civil and socio -economic r ights, particularly the r ight to service delivery.
It has various community structures country wide and plays an active role in ensuring
better service delivery by municipalities in particular . It regard s itself also as a local
community organisation as mentioned in s 152 of the Constitution read with ss 16
and 17 of the Local Government: Municipal System s Act 32 of 2000 (the Systems

3 The report is available on the official website of the SAHRC.
6

Act) and the sections in the Systems Act dealing with the provision of services
(sections 76 – 80 under the heading, P art 2: provision of services) .

[6] The first four resp ondents are referred to as the M unicipal respondents. They
are the Ngwathe Local Municipality (Ngwathe) , the municipal manager of that
municipality, the municipal c ouncil of that municipality , as well as the Fezile Dabi
District Municipality , cited as first, second, third and fourth respondents respectively.
[7] The fifth respondent is the Premi er of the Free State Province. The sixth
respondent is the Executive Counc il of the Free State Province. The seventh
respondent is the MEC for COGTA , Free State Province. The eighth respondent is
the MEC for Finance, Free State Province and the ninth respondent is the MEC for
Economic, Small Business Development, Tourism and Environmental Affairs, Free State Province. They are referred to as the Provincial respondents .
[8] The tenth respondent is the National Council of Provinces who abides the
decision of the court. It did not take part in the proceedings.

[9] The eleventh to fourteenth respondents are respectively the National
Ministers of C OGTA , Finance, Water and Sanitation and Forestry, Fisheries and the
Environme nt. T he President of the Republic of South Africa is cited as the fifteenth
respondent.

The relief claimed
[10] The relief sought is contained in four pages of the Notice of Motion. It is
unnecessary to quote the notice of motion. The applicant seeks a declaratory order
inter alia to the effect that (a) Ngwathe is in breach of its c onstitutional , legislative
and regulat ory obligations towards its residents , (b) jurisdictional facts supporting
mandatory Provincial intervention in the affairs of Ngwathe are present, and (c) the
failure of the P rovincial respondents to carry out their mandate in terms of s 139 of
the Constitution and sections 138 to 147 of the M FMA effectively and to intervene
and resolve Ngwathe’s issues is inconsistent with the Constitution and invalid.
Consequently, an order is sought that the Provincial respondents be directed to
forthwith intervene in Ngwathe’s affairs by exercising the powers conferred by ss 139(4) and (5) of the Constitution.
7


[11] The applicant also seeks an order that it be permitted to use its expertise to
assist with Ngwathe’s administration in certain respects. A structural interdict is also
sought in terms whereof the P rovincial respondents be ordered to report to the court
every three months under oath and in writing on their progress in the implementation of the order as well as the prospects of Ngwathe being able to execute its own
functions . Finally, costs are sought against the first to the ninth respondents , jointly
and severally , such costs to be paid on an attorney and client scale.
The opposition [12] The application is opposed by all the respondents , except the National
Council of Provinces , who abides the decision of the court. The basis of the
opposition will be dealt with later herein. The M unicipal and P rovincial respondents
to a certain extent deny several facts presented by the applicant in support of its case that Ngwathe is in a crisis. The attempt to create factual disputes will be dealt
with late r herein.
[13] It is appropriate to mention at this stage that the M unicipal respondents ’
counsel submitted that , instead of granting an order of intervention in terms of s 139
of the Constitution, a more suitable and appropriate remedy is available in the
circumstances . Accordin g to him, a fact /topic specific and separate substantive
supervisor y interdict, dealing specifically with the alleged non- compliance and calling
upon Ngwathe to report to the c ourt on how it intends to address and remedy the
non-compliance could be issued. The court should intervene and issue orders
intended to bring about an end to non- compliance, so he argued, only if Ngwathe
does not come up with satisfactory remedies .
[14] Counsel for the Provincial and National respondents, excluding the Minister of
Finance, submitted that the MEC of CO CTA has always been fulfilling its support
and monitoring obligations to ensure that N gwathe is able to meet its constitutional
obligations and therefore, mandatory intervention by the Provincial respondents was
not warranted. I shall deal later in more detail with this submission, but reiterate that the MEC neither filed an answering affidavit , nor a confirmatory affidavit in support of
the H OD’s affidavit. Clear ly, the MEC in such capacity was called upon to deal with
the applicant’s allegations .
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[15] The Minister of Finance’s counsel, al though relying on the principle of
subsidiarity , submitted that the Minister does not oppose the merits of the applicant’s
case, namely that the mandatory requirements for intervention in terms of s 139 of the Constitution have been established. Consequently, the Minister abides the
court’s findings in this regard . The point was made that , if warranted, the
constitutional obligation rest s on the Province to invoke intervention provisions.
The applicant’s locus standi
[16] The M unicipal respondents deny the applicant ’s locus standi , but only on the
basis of their denial of a lack of service delivery , or that the constitutional rights of
their residents are being infringed. The HOD for COCTA, responding on behalf of t he
MEC, did not deal with the applicant’s standing and it must be accepted that its
standing i s conceded. The Minister of Finance denies that the applicant has
standing, suggesting that it seeks ‘ self-interest remedial relief’ .

[17] I am satisfied that the applicant has standing in terms of s 38(d) and (e) of the
Constitution to bring the application. There can be no doubt that it is a local
community -based organisation as provided for in s s 17(2) and 76(b)( iv) of the
Systems Act read with s 19(3) of the Local Government: Municipal Structures Act
117 of 1998 (the Structures Act). It is also actively engaged in community
organisation and participation as provided for in s 152(1)(e) of the Constitution, read
with various sections of the Systems Act . It is obvious that the applicant’s primary
goal as a non- profit organisation is to vindicate the c onstitutional rights of its
members who are residents of Ngwathe.
4 Surely, it cannot be expected of the
proverbial aunt Emily, ntati Sibusiso , or Joe Soap to institute these kind of
applications in their own names . The residents are entitled to be represented by an
organisation such as the applicant.
Mootness and ripeness

4 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984
(CC) para 165, Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council
and Others 2002 (6) SA 66 (T), Afriforum and Another v University of the Free State 2018 (2) SA 185
(CC) para 26, and Unemployed People’ s Movement v Eastern Cape Premier & Others 2020 (3) SA
562 (ECG).
9

[18] It is appropriate to briefly deal with the doctrines of mootness and ripeness. It
is common cause that the local government elections in this country took place
during the latter part of 2021 and that councillors for the new municipal councils were elected thereafter. None of the parties, and especially the Minister of Finance, denied this in the affidavits. However, the Minister’s counsel decided to deal with these two issues, ie mootness and ripeness, in the heads of argument on the basis
that by -election s were held in August 2024 and pursuant thereto, a new municipal
council had been appointed for Ngwathe. In terms of the argument the applicant’s
premise for dissolution of the municipal council has become moot as the old council does not exist anymore. The ripeness argument was based on the same alleged facts. The submission is factually incorrect. The applicant’s counsel pointed out that
in 2024 a by-election was held in one ward only whilst the municipal council consists
of 19 wards. Consequently, the Mi nister’s counsel did not proceed with th is line of
argument during oral submissions . I am satisfied that the arguments pertaining to
mootness and ripeness were not properly made and these are rejected. Ngwathe’s
municipal council has been in office since 2021 and has been given more than
enough opportunity to ensure that Ngwathe complies with its constitutional obligations.
Subsidiarity
[19] The Minister of Finance’s counsel submitted that the applicant should be non-
suited based on the principle of subsidiarity. It is alleged that the applicant pleaded
its case backwards by relying firstly on the Constitution and only thereafter on the MFMA. I do not agree as is clearly evident from paragraphs 1.3 and 1.5 of the notice
of m otion as well as the context of the founding affidavit. The court is inter alia
requested to declare that the j urisdictional facts supporting mandatory Provincial
intervention in the affairs of Ngwathe in terms of inter alia ss 138 -147 of the MFMA
are present and have consistently been present in the past.
The constitutional status of Ngwathe as a m unicipality
[20] Section 151 of the Constitution provides for the establishment and status of
municipalities. The executive and legislative authority of a municipality is vested in its municipal council. Sub -sections 151(3) and (4) read as follows:
10

‘(3) A municipality has the right to govern, on its own initiative, the local government affairs of
its community, subject to national and provincial legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.’
5

[21] I accept that the applicant seeks a drastic remedy insofar as it also seeks the
dissolution of Ngwathe’s municipal c ouncil. I shall therefore consider herein later
whether the municipal council lived up to the standards required of it.
The crises in Ngwathe [22] As mentioned, the papers are voluminous, consisting of over 1200 pages. The
heads of argument of counsel are in excess of 120 pages. I do not intend to deal
with all the allegations and counter -allegations in respect of factual issues or legal
aspects relied upon by the parties as I do not intend to write a 100-page judgment.
Many of the facts before the court cannot really be denied convincingly. Bearing in mind that factual disputes have been raised by the respondents, it is appropriate to
consider the test as enunciated in Plascon -Evans
6 to be applied in opposed motion
procedure. I also appreciate as the Supreme Court of Appeal stated in National

5 See also ss 2, 3 and 4 of the Systems Act; s 4 reads as follows:
‘4 Rights and duties of municipal councils
(1) The council of a municipality has the right to-
(a) govern on its own initiative the local government affairs of the local community;
(b) exercise the municipality's executive and legislative authority, and to do so without improper interference; and
(c) finance the affairs of the municipality by -
(i) charging fees for services; and
(ii) imposing surcharges on fees, rates on property and, to the extent authorised by national legislation, other taxes, levies and duties.
(2) The council of a municipality, within the municipality's financial and administrative capacity and having regard
to practical considerations, has the duty to-
(a) exercise the municipality's executive and legislative authority and use the resources of the municipality in the
best interests of the local community ;
(b) provide, without favour or prejudice, democratic and accountable government;
(c) encourage the involvement of the local community;
(d) strive to ensure that municipal services are provided to the local community in a financially and
environmentally sustainable manner ;
(e) consult the local community about -
(i) the level, quality, range and impact of municipal services provided by the municipality, either directly or
through another service provider; and
(ii) the available options for service delivery ;
(f) give members of the local community equitable access to the municipal services to which they are entitled;
(g) promote and undertake development in the municipality;
(h) promote gender equity in the exercise of the municipality's executive and legislative authority;
(i) promote a safe and healthy environment in the municipality; and
(j) contribute, together with other organs of state, to the progressive realisation of the fundamental rights
contained in sections 24, 25, 26, 27 and 29 of the Constitution.
(3) A municipality must in the exercise of its executive and legislative authority respect the rights of citizens and
those of other persons protected by the Bill of Rights.’ (emphasis added)
6 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD) at 634F -635C .
11

Director of Public Prosecutions v Zuma7 that opposed motion procedure is not suited
to resolve factual disputes. However, respondents often forget that they have a duty
to present their opposition clearly and unequivocally and fail to heed the warning in
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another .8 I shall show
herein that the respondent s who tried to deal with the facts deposed to by the
applicant in an attempt to raise disputes of fact did not seriously and unambiguously
address the issues they intend to dispute. They failed to properly engage with the
facts they dispute and to reflect the disputes fully and accurately in the answering
affidavits.

[23] There is no substantive evidence in the answering affidavit of the Provincial
respondents that the MEC of COCTA or any other of these Provincial respondents took any corrective action whatsoever in respect of Ngwathe’s non- compliance with
its constitutional obligations . In fact, it is common cause that Ngwathe is
dysfunctional as is apparent from these respondents’ own papers. The minutes of
the MIG Forum meeting held on 25 August 2023 attached as annexure G3 to their
answering affidavit serves as proof of the dire straits in which Ngwathe finds itself.
The applicant dealt in minute detail with this in paragraph 16 of the replying affidavit.
Paragraph 7.3.2 of the minutes records that in the State of Local Government Report
of 2021 (updated in 2022) the National and Provincial COCTA D epartments
regarded Ngwathe as one of the seven dysfunctional municipalities in the Free State
Province. A ministerial visit was scheduled for September 2023 to address this, but
there is no evidence what transpired at such meeting, if it in fact did take place. More
will be said about the crises hereunder.
Intervention in terms of sections 139(4) and (5) of the Constitution
[24] The various counsel on behalf of the respective parties made contradictory
submissions indicating their differences of opinion as to the applicability of
intervention in Ngwathe’s afffairs . It is appropriate to quote the relevant sub- sections
of s 139:
‘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-

7 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 26.
8 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) para 13.
12

a. issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its
obligations and stating any steps required to meet its obligations;
b. assuming responsibility for the relevant obligation in that municipality to the extent
necessary to-
i. maintain essential national standards or meet established minimum standards for the
rendering of a service;
ii. prevent that Municipal Council from taking unreasonable action that is prejudicial to the
interests of another municipality or to the province as a whole; or
iii. maintain economic unity; or
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.
2. . . .
3. . . .
4. If a municipality cannot or does not fulfil an obligation in terms of the Constitution or
legislation to approve a budget or any revenue- raising measures to give effect to the budget,
the relevant provincial executive must intervene by taking any appropriate steps to ensure that the budget or those revenue-raising measures are approved, including dissolving the
Municipal Council and-
a. appointing an administrator until a newly elected Municipal Council has been declared elected; and
b. approving a temporary budget or revenue-raising measures to provide for the continued
functioning of the municipality.
5. If a municipality, as result of a crisis in its financial affairs, is in serious or persistent
material breach of its obligations to provide basic services or to meet its financial
commitments, or admits that it is unable to meet its obligations or financial commitments , the
relevant provincial executive mus t-
a. impose a recovery plan aimed at securing the municipality's ability to meet its obligations
to provide basic services or its financial commitments, which-
i. is to be prepared in accordance with national legislation; and
ii. binds the municipality in the exercise of its legislative and executive authority, but only to
the extent necessary to solve the crisis in its financial affairs; and b. dissolve the Municipal Council , if the municipality cannot or does not approve legislative
measures, including a budget or any revenue-raising measures, necessary to give effect to
the recovery plan, and-
i. appoint an administrator until a newly elected Municipal Council has been declared
elected; and
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ii. approve a temporary budget or revenue-raising measures or any other measures giving
effect to the recovery plan to provide for the continued functioning of the municipality; or
c. if the Municipal Council is not dissolved in terms of paragraph (b), assume responsibility
for the implementation of the recovery plan to the extent that the municipality cannot or does
not otherwise implement the recovery plan.’ (emphasis added)

[25] I shall return to s 139 in a moment , but it is appropriate to quote ss 138 and
140(1), (2) and (3) of the MFMA. S 138 reads as follows :
‘138 Criteria for determining serious financial problems
When determining for the purposes of section 137 the seriousness of a financial problem, all
relevant facts must be considered, and the following factors, singly or in combination, may
indicate a serious financial problem:
(a) The municipality has failed to make payments as and when due;
(b) the municipality has defaulted on financial obligations for financial reasons ;
(c) the actual current expenditure of the municipality has exceeded the sum of its actual
current revenue plus available surpluses for at least two consecutive financial years;
(d) the municipality had an operating deficit in excess of five per cent of revenue in the
most recent financial year for which financial information is available;
(e) the municipality is more than 60 days late in submitting its annual financial statements
to the Auditor -General in accordance with section 126;
(f) the Auditor -General has withheld an opinion or issued a disclaimer due to inadequacies
in the financial statements or records of the municipality, or has issued an opinion which identifies a serious financial problem in the municipality ;
(g) any of the above conditions exists in a municipal entity under the municipality's sole
control, or in a municipal entity for whose debts the municipality may be responsible, and the
municipality has failed to intervene effectively; or
(h) any other material condition exists which indicates that the municipality, or a municipal
entity under the municipality's sole control, is likely to be unable for financial reasons to meet
its obligations.’ (emphasis added)

[26] Section 140(1, (2) and (3) read as follows:
‘(1) When determining whether the conditions for a mandatory intervention referred to in
section 139 are met, all relevant facts must be considered.
(2) The following factors, singly or in combination, may indicate that a municipality is in
serious material breach of its obligations to meet its financial commitments:
(a) t he municipality has failed to make any payment to a lender or investor as and when
due;
14

(b) the municipality has failed to meet a contractual obligation which provides security in
terms of section 48;
(c) the municipality has failed to make any other payment as and when due, which
individually or in the aggregate is more than an amount as may be prescribed or, if none is
prescribed, more than two per cent of the municipality's budgeted operating expenditure; or
(d) the municipality's failure to meet its financial commitments has impacted, or is likely to impact, on the availability or price of credit to other municipalities.
(3) Any recurring or continuous failure by a municipality to meet its financial commitments
which substantially impairs the municipality's ability to procure goods, services or credit on usual commercial terms, may indicate that the municipality is in persistent material breach of
its obligations to meet its financial commitments.’
(emphasis added)

[27] The Provincial respondents did not consider p rovincial intervention. Section
136 of the MFMA states what the MEC shall do when becoming aware of a serious financial problem in a municipality. No discretion is allowed. Action must be taken in order to determine whether intervention in terms of s 139 of the Constitution is justified. Ex facie the answering affidavit discretionary intervention as provided for in
s 137 of the MFMA has not even been considered. This section allows the Provincial
Executive to int ervene and take appropriate steps including:
‘(a) assessing the seriousness of the financial problem in the municipality;
(b) seeking solutions to resolve the financial problem in a way that would be sustainable
and would build the municipality's capacity to manage its own financial affairs;
(c) determining whether the financial problem, singly or in combination with other problems,
is sufficiently serious or sustained that the municipality would benefit from a financial
recovery plan and, if so, requesting any suitably qualified person-
(i) to prepare an appropriate financial recovery plan for the municipality;
(ii) to recommend appropriate changes to the municipality's budget and revenue-raising measures that will give effect to the recovery plan; and
(iii) to submit the recovery plan and any recommendations referred to in subparagraphs (i)
and (ii) to the MEC for local government in the province within a period determined by the
MEC; and
(d) consulting the mayor of the municipality to obtain the municipality's co-operation in
resolving the financial problem, and if applicable, implementing the financial recovery plan.’

[28] Mandatory provincial intervention provided for in s 139 of the MFMA was also
not considered. I quote sub- sec (1):
‘139 Mandatory provincial interventions arising from financial crises
15

(1) If a municipality, as a result of a crisis in its financial affairs, is in serious or persistent
material breach of its obligations to provide basic services or to meet its financial
commitments, or admits that it is unable to meet its obligations or financial commitments, the
provincial executive must promptly -
(a) request the Municipal Financial Recovery Service-
(i) to determine the reasons for the crisis in its financial affairs;
(ii) to assess the municipality's financial state;
(iii) to prepare an appropriate recovery plan for the municipality;
(iv) to recommend appropriate changes to the municipality's budget and revenue-raising
measures that will give effect to the recovery plan; and
(v) to submit to the MEC for finance in the province-
(aa) the determination and assessment referred to in subparagraphs (i) and (ii) as a matter
of urgency; and
(bb) the recovery plan and recommendations referred to in subparagraphs (iii) and (iv)
within a period, not to exceed 90 days, determined by the MEC for finance; and (b) consult the mayor of the municipality to obtain the municipality's co-operation in
implementing the recovery plan, including the approval of a budget and legislative measures
giving effect to the recovery plan.’

Evaluation of the crises and the parties’ submissions
[29] I recorded earlier that I do not intend to deal with all allegations of lack of
service delivery and/or maladministration. I shall restrict myself to the more serious issues and those that are either common cause, or have not been engaged seriously
in an attempt to show a real and bona fide dispute.
Managerial and financial crises
[30] The magnitude of Ngwathe’s financial problems has been admitted by its
municipal m anager who confirmed that it will not be ‘remedied over a short period of
time.’ It owes Eskom in excess of R2 billion and although R69 million in respect of
interest has been written off, the magnitude of this debt is not appreciated by the
respondents. Furthermore, it owes million s of Rands to other service providers . It is
common cause that it has been paying service providers late as a result of which
fruitless and wasteful expenditure relating to interest charged on late payments have been incurred.

[31] Clearly, Ngwathe’s previous municipal m anager ’s findings regarding its
liabilities and assets are contradicted by the Auditor General’s qualified opinion f or
16

the 2001/2002 financial year. The figures provided by the Auditor General are far
more damning. Ngwathe’s liabilities exceeded its assets by R1.6 billion in addition to
its debt to Eskom of R1.5 billion and the Department of Water and Sanitation (DWS)
of R150 million at the time. Irregular expenditure increased from R2.7 million to more than R31 million. Unauthorised expenditure increased from less than R100 million to more than R250 million and fruitless and wasteful expenditure increased from R31 million to R62 million. The Auditor General’s qualified opinion for the 2001/2002
financial year has not been denied by Ngwathe, but merely noted.
[32] The applicant ’s allegations in the founding affidavit that the Auditor General
did not receive a response from the erstwhile municipal m anager regarding the
material irregularities pointed out , has not been denied. In my view this is yet
another indication that Ngwathe is not in a position to fulfil its constitutional obligations .
[33] On 20 December 2022 the applicant ’s attorneys issued a letter of demand
which is attached as annexure FA28 to the founding affidavit. This letter was sent to
all the respondents cited in this application. Detail of service deliver y issues, again
repeated in these proceedings , was provided. It was suggested that discretionary
Provincial intervention was required. Although this letter was addressed to the Municipal respondents as well, only the HOD of COCTA responded to t he 17- page
letter setting out several problems pertaining to lack of basi c services. I quote the
HOD’s vague response of 4 January 2023 attached as annexure FA 30 to the
founding affidavit :
‘1. Your letter dated 20 December 2022 is acknowledged and the contents thereof
noted;
2. The Department is in the process of engaging the Department of Water and
Sanitation and the Municipality to deal with matters at the Municipality;
3. It is the opinion of the Department that the engagement process should be given an
opportunity to come up with plans to resolve the challenges at the Municipality, instead of
embarking on costly litigations which the Municipality is in no position to afford;
4. We hope the above is in order.’
Neither the Premier, nor the MEC of COGTA or any of the other addressees (which
included the present MEC’s , the Premier and National Ministers) deemed it
necessary to respond.

17

[34] A further letter by applicant’s attorneys dated 8 September 2023 in similar
terms , attached as annexure FA29 to the founding affidavit, did not attract a
response from any of the aforesaid addressees . In this letter the financial and
budgeting woes of Ngwathe were highlighted. The municipal manager referred to
these letters in his answering affidavit and suggested that support has been received
from the MEC of COGTA and DWS, but the list of projects referred to by him was not
attached as annexure AA30 as alleged. He insists that notwithstanding the financial problems, Ngwathe is ‘not in complete disarray without any internal interventions to remedy the position’ and intervention by Province was ‘not warranted’. Whatever the
municipal manager tried to convey in his answering affidavit, it is apparen t that ,
although he may be an ambitious person, his ideas and plans are vague to the
extreme and lack critical detail. [35] The draft budget plan attached as annexure AA2 to the Municipal
respondents’ affidavit is merely a draft and there is no indication that it has been finally approved.
[36] The ordinary MIG grant s allocated to Ngwathe are insufficient to service the
massive debt, but in any event , it is common cause that Ntwathe recently did not
even spend R5 million of the allocated MIG grant s.
[37] The municipal manager stated that people had been employed to attend to
illegal conn ection of electricity , but there is no indication whether this had a positive
effect , and if so, on what basis . There is also no indication that these people are in
fact qualified to do the work allegedly e mployed to do.
[38] The municipal manager failed to attach the Integrated Development Plan
(IDP) as annexure AA9 to the answering affidavit. In any event , all m unicipalities are
obliged to adopt such plans in the ordinary course as is provided for in s 25 of the
Systems Act, read with ss 23 to 24 of that A ct. Section 21(1) of the MFMA stipulates
that when preparing the annual budget, the mayor of a municipality must take into
account the municipality’s IDP .
[39] Section 17 of the MFMA deals with the contents of annual budgets and
supporting documents . The budget must set out realistically anticipated revenue for
18

the year and the revenue sources as well as projected expenditure under the
different votes. W hen an annual budget is t abled for consideration by the municipal
council it must inter alia be accompanied by measurable performance objectives for
revenue from each source and for each vote in the budget, taking into account the
municipality’s IDP and proposed amendment s to the IDP following the annual review
thereof in terms of s 34 of the Systems Act. I agree with the applicant that the
adoption of a rational IDP is an integral and mandatory part of the municipality’s
budgeting process and nothing out of the ordinary . Consequently, the fact that the
IDP is not including as an attachment to the answering affidavit speaks volumes .
[40] Ngwat he’s instability appears from the turn over of municipal managers since
2022 and the fac t that several people are merely acting in senior positions such as,
inter alia , that of chief financial officer . Other positions have not been filled which
must have a serious effect on service provision. I t is disconcerting that neither the
mayor , nor any municipal councillor has filed an affidavit in support of the opposition
of the application.

[41] Ngwathe’s debt collection rate is extremely low , much lower than the norm.
But the existing by -laws are not enforced with any degree of consistency. There is no
indication when Ngwathe’s by-laws would be reviewed as suggested by the
municipal manager. No explanation is given for the delay in this regard. Bearing in
mind Ngwathe’s precarious finances , a review of its by -laws relating to fiscal and
credit policies is long overdue. Section 98(1) of the Systems Act is peremptory:
‘A municipal council must adopt by -laws to give effect to the municipality’s credit control and
debt collection policy, its implementation and enforcement.’
[42] The budget for the 202 3/2024 financial year has been approved in June 2023 .
It made no provision for any income to be derived from debt collection and
furthermore, the remuneration of political office bearers and that of the municipal
manager and other senior managers were not addressed in the budget separately as
required. I am satisfied that the adopted revenue- raising measures could clearly not
give effect to the budget as provided for in s 139(4) of the Constitution.
[43] As mentioned, t he municipal m anager relied upon a draft budget funding plan
for the 2024/2025 financial year annexed as annexure AA2 to his answering affidavit .
The impression created that this is a final budget funding plan is inaccurate. There is
19

no indication that this draft budget funding plan was finally adopted. Fact of the
matter is that the debt collection rat e decreased over the years. The annual average
collection percentage as admitted in paragraph 5.5.2 of this document is far below
the norm . It is revealed in the same paragraph that the lack of service delivery
contributes towards the revenue decline. A s a result , it is conceded that Ngwathe is
unable to pay suppliers and to run its daily operations as expected. This is a
concession that mandatory intervention is required.
Water crisis
[44] The allegation that Ngwathe’s water supply is checked daily on a two hourly
basis cannot be correct. The municipal manager contradicted himself. He also mentioned that Ngwathe obtains samples of water at the treatment works monthly.
[45] There is a dispute as to drinking water shortages and the cleanliness of
potable water. It is not necessary to deal in detail with the dispute, save to say that
the municipal manager conceded that water shedding processes applied at least until November 2023.
[46] The first Blue Drop Report by the DWS reveals that the applicant is correct in
respect of drinking water. That report is attached as annexure FA13 to the founding
affidavit . It is stated that the supply systems showed high risk ratings, save in the
case of Heilbron, and that Edenville achieved a critical risk rating. Three of the towns within Ngwathe did not have Water Safety Plans.
[47] The respondents have always been in possession of the updated Blue Drop
Report issued by the D WS dated 22 November 2023. Although this was available to
them , they failed to attach this report to any of the answering affidavits.
Consequently, t he applicant attached it to the replying affidavit. According to this
report Ngwathe’s risk rating increased from 37% in 2022 to 42.6% in 2023 ,
demonstrating a further worsening of its water supply systems despite the Municipal
respondents ’ baseless allegations to the contrary . There is no evidence of a detailed
corrective action plan as instructed by the D WS. Clearly, nothing substantial is done
to deal with the water crisi s.

20

[48] The allegation that ‘the water from the Municipality was not contaminated by
faecal matter’ is false on Ngwathe’s own version. This is apparent from the first
report in annexure AA11 attached to the municipal manager’s answering affidavit ,
indicating a faecal coliform count of 164 per 100ml which is far in excess of the SANS 241 criteria which requires it to be less than 10 per 100ml. The municipal
manager’s denial that Ngwathe continually struggles with the supply of clean water is
incorrect. Immediately after his denial, he continued to state that Ngwathe ‘ is
improving on and working towards alleviating its drinking water challenges ’.
[49] It is outrageous for the municipal manager to state that he, and therefore the
Municipal respondents, did not have any knowledge of the Water Master Plan attached as annexure FA12 to the founding affidavit . This plan, dated October 2019,
was prepared on behalf of Ngwathe for COCTA, Free State Province. The municipal manager relied on a 2017 edition which is clearly outdated.
Sewage crisis
[50] There appears to be factual disputes about sewage spillage. The evidence
presented by the applicant, corroborated by photographs could not seriously be
disputed. This is a daily occurrence which has been continuing for several years.
Sewage is even flowing into the Vaal River. Several sewage work are dysfunctional
and although it is alleged that repairs are being undertaken, it is not understood why
emergency measures cannot be undertaken to prevent a serious health problem.
The municipal manager conceded that sewage spillage occurs from time to time, but
blame power outages and blocked pipelines. There is no indication when or whether
the alleged corrective steps will be completed.
[51] The DWS prepared a Green Drop Report in 2023 which inter alia dealt with
Ngwathe’s wastewater treatment works. These have been found to be in a critical
state. Ngwathe achieved a Green Drop score of 10% (down from 16% in 2013) which puts it in the ‘critical state’ category in respect of all five its plants. Ngwathe’s
failure to deal responsibly with the damning findings in the Green Drop Report is telling and warrants a negative inference. The municipal manager merely referred vaguely to upgrading and to a project to be executed in phases. No detail was provided. He then concluded that ‘ measures have been taken to control sewage
spillage’.
21


Need for declaratory orders
[52] Section 172(1) of the Constitution stipulates as follows:
‘When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency.
(b) may make any order that is just and equitable, including – . . .’
[53] I considered the notice of motion and am satisfied that the applicant has
shown that a proper case has been made out for the required declaratory orders .
Such order shall be made.
Intervention in terms of ss 139(4) and (5) of the Constitution
[54] I am satisfied that Ngwathe’s dysfunctionality, including that of its municipal
council, is such to constitute exceptional circumstances. The jurisdictional facts supporting mandatory Provincial intervention has been proven. There is no doubt that the Provisional respondents and the MEC of COCTA in particular, failed to act in accordance with s 139(1) of the Constitution, read with ss 136 to 140 of the MFMA.
Notwithstanding the fact that it is clear that Ngwathe cannot fulfil its constitutional
obligations, the Provisional Executive did not intervene and did not take appropriate
steps to ensure fulfilment of such obligations. The Provincial Executive did not issue any directive to the municipal council, stating steps required to meet its obligations. The Provincial Executive also failed to assume responsibility to, for example, maintain essential national standards, or meet established minimum standards for
the rendering of service s.
[55] The Provincial respondents’ version that Ngwathe is and has been supported
by them and the National respondents misses the point. That is their constitutional duty as set out in s 154(1) of the Constitution to be complied with by default and in
the ordinary course. What is needed is a wholesale intervention, but unfortunately these respondents misconstrue the gravity of Ngwathe’s problems.
[56] It is certainly not strange for courts to nowadays grant orders to compel
provincial governments to intervene in the affairs of municipalities within the ir
22

jurisdiction . Some judgments will be referred to in the next paragraphs to explain the
ratio for intervention.

[57] In Premier of the Western Cape and Others v Overberg District Municipality
and Others (Overberg)9 the Supreme Court of Appeal held that s 139 requires a
Province to act proactively in ensuring that local governments are not mismanaged
and that it should intervene when the occasion demands it , not belatedly and in a
reactionary manner once the situation is virtually beyond repair. As Brand JA put it,
provincial governments are required to supervise the affairs of a local governments
‘and to intervene when things go awry.’10 In this case the Provincial Executive was
advised that it had no alternative than to dissolve the municipal council . After
considering s 139(4) of the Constitution, the learned Justice of Appeal held that
because of an error in interpretation by the cabinet (the Provincial Executive), it failed to consider less drastic means other than to dissolve the municipal council .
11
The facts upon which that decision was based, differ from the facts in casu.

[58] In Premier, Gauteng and Others v Democratic Alliance and Others12 Mathopo
AJ, writing for the majority , stated the following:
‘The framers of the Constitution used the word “may” in section 139(1) to not merely confer a
discretion, but a power coupled with a duty.’
The Constitutional Court made the point that there is no need for the total collapse of
a municipality before intervention by the P rovincial Executive as it is sufficient if it is
objective ly shown that the municipal c ouncil has failed to fulfil an executive
obligation. As stated, even ‘the non-fu lfilment of a single executive obligation is
sufficient to ground intervention.’13

[59] In Mafube Business Forum and Another v Mafube Local Municipality and
Others (Mafube)14 Van Rhyn AJ granted an intervention order in terms of s 139(4)
and (5) to direct the Free State Province to intervene in the affairs of the Mafube
Local Municipality.

9 Premier , Western Cape and Others v Overberg District Municipality and Others 2011 (4) SA 441
(SCA).
10 Ibid para 1.
11 Ibid para 37.
12 Premier, Gauteng and Others v Democratic Alliance and Others 2022 (1) SA 16 (CC) para 59.
13 Ibid para 75.
14 Mafube Business Forum and Another v Mafube Local Municipality and Others (1969/2021) [2022]
ZAFSHC 86 (28 April 2022).
23


[60] In Unemployed People’ s Movement v Eastern Cape Premier & Others
(UPM )15 the court compelled the provincial g overnment of the Eastern Cape to
dissolve the entire municipal c ouncil of the Makana local municipality and pl ace it
under Provincial administration. The facts in Mafube and UPM are on par with the
facts in casu.

[61] I am satisfied that Ngwathe’s financial crisis can only be overcome if a
recovery plan is prepared in accordance with national legislation as provided for in s
139(5)(a) of the Constitution. This must be done sooner than later in order to prevent
a total collapse.

[62] I accept, as stated by Brand JA in Overberg, that to dissolve a municipal
council could be the most drastic step to be taken, but the seriousness of the
situation in casu calls for drastic measures. As said earlier, neither the mayor, nor
any councillor presented evidence why the municipal council should not be
dissolved. I am satisfied that Ngwathe should be placed under administration due to
its dismal record of service delivery, its managerial instability, its insolvent status and
mounting debt. It is impossible, unlike as the municipal manager tried to explain, for
it to dig itself out of this hole without financial, logistical and administrative assistance
that could be provided through Provincial intervention .

Structural interdict
[63] I take full cognisance of the doctrine of separation of powers and the criticism
by some insofar as courts are prepared to grant structural interdicts to play the role of the proverbial watchdog over another arm of the State. Obviously, judges must be wary of not exceeding the boundaries placed upon the judiciary.
[64] I am satisfied that this is a suitable case where the court should play the role
of a watchdog. The history of the Provincial respondents’ recalcitrance and unresponsiveness as shown in inter alia Mafube,
16 has persuaded me to grant a
structural interdict. Just for the record, in Mafube it was even necessary for the
applicants in the court a quo (the appellants on appeal) to approach the court a quo

15 Unemployed People’s Movement v Eastern Cape Premier & Others (UPM ) 2020 (3) SA 562 (ECG).
16 Mafube Business Forum and Others v Premier of the Free State Province and Others (A23/2024)
[2025] ZAFSHC 93 (25 March 2025).
24

for an order that the Premier be found guilty of contempt of court and imprisoned
subject to certain conditions. Although the court a quo dismissed the application and
the full bench on appeal declined to grant a contempt of court order in the specific
circumstances, severe criticism was expressed.17
[65] I agree with Lowe J, stating the following in Kenton- On-Sea Ratepayers
Association and Others v Ndlambe Local Municipality and Others :
18
‘. . . The order that I propose to make does not seem to me to threaten the separation of
powers in any way; it is made against the background of the intersection between the
socioeconomic rights and the particular functional areas of the municipality, and goes
towards ensuring that the first respondent provides the basic services within its area of
jurisdiction relating to waste management — it in no way infringes on the separation of
powers in any objectionable way.’

[66] In Mwelase and Others v Director -General, Department of Rural Developm ent
and Land Reform and Another19 the Constitutional Court did not mince its words. I
quote:
‘And the courts have never sought to supplant government in its task of implementing
legislative and other programmes. They simply could not and cannot. They step in only when
persuaded by argument and evidence that they have to correct erroneous interpretations of the law, or intervene to protect rights infringed by insufficient and unreasonable conduct in
social and economic programmes. In this, the courts undertake no self- appointed role, but
seek only to carry out their constitutionally mandated function with appropriate restraint. In
Treatment Action Campaign, this court noted that, where the state has failed to give effect to
its constitutional duties, the Constitution obliges the court to say so:
“Insofar as that
constitutes an intrusion into the domain of the Executive, that is an intrusion mandated by
the Constitution itself. ” And in Mohamed, this court noted that to 'stigmatise ’ a court order
“as a breach of the separation of State power as between the Executive and the judiciary is
to negate a foundational value of the Republic of South Africa, namely supremacy of the
Constitution and the rule of law .” In the same vein, the court warned in Doctors for Life, that
the bogeyman of separation of powers concerns should not cause courts to shirk from this
constitutional responsibility:

17 Ibid paras 39 -41.
18 Kenton- On-Sea Ratepayers Association and Others v Ndlambe Local Municipality and Others 2017
(2) SA 86 (ECG) para 93.
19 Mwelase and Others v Director -General, Department of Rural Development and Land Reform and
Another 2019 (6) SA 597 (CC) para 51.
25

“(W)hile the doctrine of separation of power is an important one in our constitutional democracy, it
cannot be used to avoid the obligation of a court to prevent the violation of the Constitution. The right
and the duty of this Court to protect the Constitution are derived from the Constitution, and this Court
cannot shirk from that duty.” ’ (emphasis added)

[67] The Constitutional Court expressed itself as follows in Minister of Health and
Others v Treatment Action Campaign and Others (No 2)20
‘The primary duty of Courts is to the Constitution and the law, “which they must apply
impartially and without fear, favour or prejudice ”. The Constitution requires the State to
“respect, protect, promote, and fulfil the rights in the Bill of Rights ”. Where State policy is
challenged as inconsistent with the Constitution, Courts have to consider whether in
formulating and implementing such policy the State has given effect to its constitutional
obligations. If it should hold in any given case that the State has failed to do so, it is obliged
by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the Executive, that is an intrusion mandated by the Constitution itself. There is also no merit in
the argument advanced on behalf of
government that a distinction should be drawn between
declaratory and mandatory orders against government. Even simple declaratory orders
against government or organs of State can affect their policy and may well have budgetary
implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so. Thus, in the Mpumalanga case,
this Court set aside a provincial government's policy decision to terminate the payment
of subsidies to certain schools and ordered that payments should continue for several
months. Also, in the case of August the Court, in order to afford prisoners the right to vote,
directed the Electoral Commission to alter its election policy, planning and regulations, with
manifest cost implications. ’

[68] In Minister of Home Affairs v National Institute for Crime Prevention21 the
Constitutional Court accepted that it was necessary for an order to be issued to
supervise the implementation of its order. Another example of the Constitutional
Court issuing a mandamus and exercising supervisory jurisdiction to ensure
compliance with its order is Sibiya v Director of Public Prosecutions:
Johannesburg.22


20 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721
(CC) para 99.
21 Minister of Home Affairs v National Institute for Crime Prevention & the Reintegration of Offenders
(NICRO) and Others 2005 (3) SA 280 (CC) paras 79 -80.
22 Sibiya v Director of Public Prosecutions , Johannesburg & Others 2005 (5) SA 315 (CC).
26

[69] In Nyathi v MEC for the Department of Health and Another23 the
Constitutional Court emphasised the fundamental importance of compliance with
court orders. In that case the Constitutional Court issued an order to exercise judicial
supervision over the State’s compliance with outstanding judgment debts.

Participation in local government
[70] Section 152(1) of the Constitution deals with the objects of local government
and sub- sec (e) states one such object , ie ‘to encourage the involvement of
communities and community organisations in the matters of local government. ’ This
is echoed in s 16 of the Systems Act , stipulating that a culture of community
participation should be developed to enable local community to participate in the affairs of the municipality. Section 17(2) of the Systems Act reads as follows :
‘A municipality must establish appropriate mechanisms, processes and procedures to enable
the local community to participate in the affairs of the municipality, . . .’.
Section 76 of the Systems Act stipulates that a municipality may provide a municipal
service in its area or a part of its area through an external mechanism by entering
into a service delivery agreement with, inter alia , ‘a community -based organisation or
other non- governmental organisation legally competent to enter into such an
agreement .’

[71] In South African Municipal Workers Union v City of Cape Town and Others
(Samwu)24 the court found that ss 16 and 17 of the Systems Act foster a ‘culture of
participatory governance’ and that ‘the provisions of [ss 16- 21] in the Systems Act . .
. foster participation by the community as a whole in decision- making processes’ .25

[72] I accept that the applicant wants to become involved in Ngwathe’s
administration with the aim to assist the Provincial Executive temporarily with its
intervention insofar as its members have expertise and a willingness to participate.
The applicant and its members’ willingness to assist a commercially insolvent and dysfunctional entity is laudable. I have no doubt that they can make a huge contribution to save Ngwathe from a total collapse, but I would rather err on the side

23 Nyathi v MEC for the Department of Health and Another 2008 (5) SA 94 (CC) para 92.
24 South African Municipal Workers Union v City of Cape Town and Others 2004 (1) SA 548 (SCA).
25 Ibid paras 10 -11; see also Kungwini Local Municipality v Silver Lakes Home Owners Association
and Another 2008 (6) SA 187 (SCA) para 24; Meadow Glen Home Owners Association and Others v
Tshwane City Metropolitan Municipality and Another 2015 (2) SA 413 (SCA) para 32; and Agri
Eastern Cape and Others v MEC , Department of Roads and Public Works and Others 2017 (3) SA
383 (ECG).
27

of caution and not grant the order sought in order to avoid conflict. Therefore,
notwithstanding the authorit ies referred to, I am of the view that I should refrain from
making an order in this regard. In my view, the Provincial Executive should be
allowed to intervene and hopefully , with participation and/or assistance by role
player s such as the National Government, the National Ministers, the P resident and
even the applicant , a complete and successful turnaround strategy could be
implemented where actions speak louder than words . The Provincial Executive
should be allowed the opportunity to show that it will not drag its feet, but shall comply forthwith with its constitutional obligations, bearing in mind the manner in
which I intend to structure this order.
26
Order
[73] The following order is granted:
1. That it be declared that:
1.1. the first respondent, the Ngwathe Local Municipality, is in breach of its
constitutional, legislative and regulatory obligations towards its residents;
1.2. the conduct of the first respondent, in failing to –
1.2.1. ensure the provision of services to its community in a sustainable manner;
1.2.2. promote a safe and healthy environment for its community;
1.2.3. adequately structure and manage its administration, budgeting and planning
processes;
1.2.4. give priority to the basic needs of its community; and
1.2.5. promote the social and economic development of its community,
– is inconsistent with the Constitution and in breach of sections 152(1) and 153(a)
thereof, and is invalid;
1.3. the jurisdictional facts supporting mandatory Provincial intervention in the
affairs of the first respondent in terms of section 139 (4) and (5) of the Constitution, read with sections 138 to 147 of the Local Government: Municipal Finance Management Act 56 of 2003 (the MFMA), are present and have consistently been present in the past;

26 Unfortunately, the Free State Provincial Government failed to comply with the orders granted by
Van Rhyn AJ in Mafube Business Forum and Another v Mafube Local Municipality and Others
(1969/2021) [2022] ZAFSHC 86 (28 April 2022); read Mafube Business Forum and Others v Premier
of the Free State Province and Others (A23/2024) [2025] ZAFSHC 93 (25 March 2025). It is my
sincere hope that it will comply with the order.
28

1.4. the failure of the fifth to ninth respondents to carry out their mandate in terms
of section 139 of the Constitution and the MFMA effectively and to intervene and
resolve the issues of the first respondent is inconsistent with the Constitution and invalid;
1.5. the jurisdictional facts for mandatory Provincial intervention in the affairs of the
first respondent, including dissolution of its municipal council in terms of sections 139 (4) and (5) read with sections 138 to 147 of the MFMA are now present and have consistently been present in the past as a result of the failure of both the first, as well as the fifth to ninth respondents, to ensure that the first respondent meets its constitutional and statutory obligations.
2. The fifth to ninth respondents are directed forthwith to intervene in the affairs
of the first respondent in terms of the aforementioned provisions of the Constitution and the MFMA by exercising the powers conferred by sections 139(4) and (5) of the Constitution and they are specifically directed to, in terms of the provisions of section 139(5) (a) and (b):
2.1. implement a recovery plan, aimed at securing the first respondent’s ability to
meet its obligations to provide basic services and to meet its financial commitments;
2.2. dissolve the third respondent and appoint an administrator until a newly
elected municipal council has been declared elected;
2.3. approve a temporary budget or revenue- raising measures, or any other
measures intended to give effect to the aforesaid recovery plan, to provide for the continued functionality of the first respondent.
3. The fifth to ninth respondents shall report to this court, under oath and in
writing, every three (3) months from the date of this order being handed down on their progress in the implementation of this order, as well as the prospects of the first respondent being able to execute its own functions.
4. The first to ninth respondents shall jointly and severally pay the costs of this
application on an attorney and client scale.

________________________
JP DAFFUE J
JUDGE OF THE HIGH COURT
29


Appearances
For applicant : FJ Erasmus SC & P Eilers
Instructed by: Hurter Spies Inc
c/o Hendre Conr adie Inc
Bloemfontein

For first, second & third respondent s: MC Louw
Instructed by: Peyper Attorneys
Bloemfontein
For fourth to fifteenth respondents ,
excluding twelfth respondent : KD Moroka SC & L Tlelai
Instructed by: State Attorney
Bloemfontein

For twelfth respondent: A Nacerodien
Instructed by: State Attorney
Pretoria