IN THE HIGH COURT OF SOUTH AFRICA
FREE STA TE DIVISION, BLOEMFONTEIN
In the application for leave to appeal of
NGWATHE LOCAL MUNICIPALITY
MUNICIPAL MANAGER: NGWATHE LOCAL MUNICIPALITY
MUNICIPAL COUNCIL: NTWATHE LOCAL MUNICIPALITY
and
AFRIFORUM NPC
FEZILE DABI DISTRICT MUNICIPALITY
PREMIER, FREE STATE PROVINCE
EXECUTIVE COUNCIL, FREE ST ATE PROVINCE
MEC FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, FREE STATE PROVINCE
MEC FOR FINANCE, FREE STATE PROVINCE
MEC FOR ECONOMIC, SMALL BUSINESS DEVELOPMENT,
TOURISM AND ENVIRONMENTAL AFFAIRS,
FREE STATE PROVINCE
THE NATIONAL COUNCIL OF PROVINCES
MIN ISTER OF COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS
MINISTER OF FINANCE
MINISTER OF WATER AND SANITATION
MINISTER OF FORESTRY, FISHERIES AND
Not reportable
Case no: 2264/2024
First Applicant
Second Applicant
Third Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
S ixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
THE ENVIRONMENT
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
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Twelfth Respondent
Thirteenth Respondent
Neutral citation: Ngwathe Local Municipality and Others v Afriforum NPC and Others
(2264/2024) [2025] ZAFSHC 251 (19 August 2025)
Coram: Daffue J
Heard: 12 August 2025
Delivered: This application for leave to appeal was handed down electronically by
circulation to the parties' representatives by email and released to SAFLII. The date and
time for hand-down is deemed to be 11 h00 on 19 August 2025.
Summary: Applications for leave to appeal by local municipality, its municipal
manager and municipal council against declaratory order, mandatory provincial
intervention ordered in terms of s 139(4) and (5) of the Constitution and structural
interdict - no reasonable prospects of success and no compelling reasons -
applications dismissed.
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ORDER
1 The application for leave to appeal by the Ngwathe Local Municipality and the
Municipal Council: Ngwathe Local Municipality, cited as first and third applicants herein,
is dismissed with costs, inclusive of the costs of first respondent's senior and junior
counsel on scale C and B respectively.
2 The application for leave to appeal by the Municipal Manager: Ngwathe Local
Municipality, cited as second applicant herein, is dismissed with costs, inclusive of the
costs of first respondent's senior and junior counsel on scale C and B respectively.
JUDGMENT
Daffue J
[1] Two separate applications for leave to appeal served before me. In the one
application, the Ngwathe Local Municipality and the Municipal Council: Ngwathe Local
Municipality were represented by Adv WR Mokhare SC, instructed by Rampai Attorneys.
In the other application, ie that of the Municipal Manager: Ngwathe Local Municipality,
Adv MC Louw appeared on behalf of Peyper Attorneys. In the main application Mr Louw
appeared for all the applicants, cited as first, second and third respondents respectively,
having been instructed by Peyper Attorneys. The applicant in the main application,
Afriforum NPC , is cited as first respondent in the applications for leave appeal. It is still
represented by Advv FJ Erasmus SC and P Eilers, instructed by Hurter Spies Attorneys.
[2] No application for leave to appeal has been brought by any of the other
respondents in the main application and in particular the parties referred to in that
application as the provincial respondents. The same applies to the national respondents.
In light of the failure by these parties, and in particular the provincial respondents, to file
applications for leave to appeal, no other deduction can be made than that they accepted
their fate, acquiesced in the judgment and are prepared to act in accordance with the
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orders granted. Their acquiescence is not surprising, bearing in mind the stern words
expressed by the Honourable Deputy Minister of Cooperative Governance and Traditional
Affairs quoted in paragraphs 1 and 2 of the main judgment.
[3] The test for leave to appeal has recently been restated in Ramakatsa and Others
v African National Congress and Another.1 I quote from the judgment:
'[8] ... The test of reasonable prospects of success postulates a dispassionate decision based
on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In other words, the appellants in this matter need to convince this Court on
proper grounds that they have prospects of success on appeal. Those prospects of success must
not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis
for the conclusion that there are prospects of success must be shown to exist.'
[4] Mr Mokhare's submissions focused on the requirements of s 139( 1) of the
Constitution which deals with the situation when a provincial executive may intervene in
the affairs of a municipality. This subsection is immaterial as the provincial executive
refused and/or failed to intervene in Ngwathe's affairs. Mr Mokhare also relied on ss 138
to 147 of the Local Government: Municipal Finance Management Act 56 of 2003 (the
MFMA). Section 139(1) of the MFMA clearly states that 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' the provincial executive must
act as provided for in the section. It clearly failed to do so as indicated in the main
judgment.
[5] Mr Mokhare submitted that the facts in Premier, Gauteng and Others v Democratic
Alliance and Others2 (Premier Gauteng v DA) and those in Premier of the Western Cape
and Others v Overberg District Municipality and Others3 ( Overberg) were no different from
and Others v Overberg District Municipality and Others3 ( Overberg) were no different from
the facts in casu and that I failed to follow these judgments. His submission is incorrect.
In Premier Gauteng v DA, the province dissolved the Tshwane council due to a political
deadlock 'caused by the walkouts of the ANC and EFF councillors', but the Constitutional
Court held that 'the Municipal Council was both willing and, in certain circumstances, able
1 Ramakatsa and Others v African National Congress and Another[2021] ZASCA (31 March 2021)
2 Premier, Gauteng and Others v Democratic Alliance and Others (2021] ZACC 34; 2021 (12) BCLR 1406
(CC); 2022 (1) SA 16 (CC).
3 Premier of the Western Cape and Others v Overberg District Municipality and Others (2011] ZASCA 23;
2011 (4) SA 441 (SCA).
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to fulfil its obligations, but was prevented from doing so by factors beyond its control.' It
specifically referred to 'the recalcitrant councillors.' Consequently, the Court found that
the dissolution of the Tshwane council was too drastic and inappropriate given the
availability of less restrictive means to break the deadlock which could have been resorted
to.4
[6] The Constitutional Court, referring to the power of the provincial government to
intervene in terms of s 139(1) of the Constitution on the one hand and a municipality's
autonomy on the other, stated the following in Premier, Gauteng v DA:5
'Importantly, "[i]t needs to be stressed that the potential prejudice and urgency lie not in the harm
suffered by the Municipality or the municipal councilors, but in the continued disruption of basic
essential services to the people and communities the Municipality is supposed to serve.'
Later in the judgment the Court emphasized that 'the Legislature sought to provide
protection to the citizenry both against local government's failure to fulfil executive
obligations, and provincial government's interference in local government (and the
citizenry's choice of local government).'6
[7] The Overberg case is completely distinguishable on the facts. In Overberg the
provincial executive at least tried to follow a proactive approach. In that case the provincial
executive relied on an incorrect legal opinion to the effect that it had no alternative than
to dissolve the council in light of its failure to approve an annual budget. The Supreme
Court of Appeal held that it 'failed to consider less drastic means , ... to meet the desired
end of an approved budget.'7 Instead of following a proactive approach in casu, the
provincial respondents merely stood by, witnessing the collapse of Ngwathe without
intervening on a discretionary basis.
[8] Mr Louw, whilst echoing Mr Mokhare's submissions, also relied on s 139(1) of the
[8] Mr Louw, whilst echoing Mr Mokhare's submissions, also relied on s 139(1) of the
Constitution and the fact that intervention and the council's dissolution was the last resort
which was inapplicable in this case. According to him, this court over-emphasised
Ngwathe's past failures, instead of accepting that it had taken various steps and adopted
various programs in order to improve. Mr Louw 's key argument was that even if it was
4 Footnote 2 paras 127-131.
5 Ibid para 51 .
6 Ibid para 89.
7 Footnote 3 para 37.
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accepted that intrusive intervention was appropriate, it ought not to have included the
dissolution of Ngwathe's council as an appropriate measure. I am satisfied that there is
no sound rational bases to grant leave to appeal. Another court would not reasonably
come to a conclusion that I was wrong in respect of Ngwathe's financial crisis, its
managerial woes and its inability to provide proper basic services to its community.
[9] The applicants' submission that leave to appeal should be granted as there are
compelling reasons for such an order is without substance. I refer to Premier, Gauteng v
DA, Overberg as well Mafube Business Forum and Another v Mafube Local Municipality
and Others,8 Unemployed People's Movement v Eastern Cape Premier and Others9 and
Democratic Alliance v Premier of the Free State Province and Others 1°.
[1 O] I have considered the submissions of counsel but have not been convinced on
proper grounds that the applicants have prospects of success on appeal. I am satisfied
that there is no sound, rational basis to arrive at such a conclusion.
[11] Therefore, the following orders are issued.
1 The application for leave to appeal by the Ngwathe Local Municipality and the
Municipal Council: Ngwathe Local Municipality, cited as first and thiral applicants herein,
is dismissed with costs, inclusive of the costs of first respondent's senior and junior
counsel on scale C and B respectively.
2 The application for leave to appeal by the Municipal Mana •er: N wathe Local
Municipality, cited as second applicant herein, is dismissed with costs, inclusive
costs of first respondent's senior and junior counsel on scale C and B respectively.
\
JP DAFFUE J
8 Mafube Business Forum and Another v Mafube Local Municipality and Others [2022] ZAFSHC 86 (28
April 2022).
9 Unemployed People's Movement v Eastern Cape Premier and Others [2020] ZAECGHC 1; 2020 (5)
BC LR 573 (ECG ); 2020 (3) SA 562 (ECG) .
BC LR 573 (ECG ); 2020 (3) SA 562 (ECG) .
10 Democratic Alliance v Premier of the Free State Province and Others [2024] ZAFSHC 338 (22 October
2024).
Appearances
For the First and Third Applicants:
Instructed by:
For the Second Applicant:
Instructed by:
For the First Respondent:
Instructed by:
WR Mokhare SC
Rampai Attorneys
Bloemfontein
MC Louw
Peyper Attorneys
Bloemfontein
FJ Erasmus SC and P Eilers
Hurter Spies Inc
c/o Hendre Conradie Inc
Bloemfontein
For the Second to Thirteen Respondents: No Appearance
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