IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
AFRIFORUM NPC
and
NGWATHE LOCAL MUNICIPALITY
MUNICIPAL MANAGER:
NGWATHE LOCAL MUNICIPALITY
MUNICIPAL COUNCIL:
NGWATHE LOCAL MUNICIPALITY
PREMIER,FREESTATEPROVINCE
EXECUTIVE COUNCIL, FREE STATE PROVINCE
MEC FOR COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS, FREE STATE PROVINCE
Reportable
Case no: 2264/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Neutral citation: Afriforum NPC v Ngwathe Local Municipality and Others
(2264/2024) [2026] ZAFSHC 67 (20 February 2026)
Coram: OPPERMAN]
Heard: 12 February 2026
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Delivered: This judgment 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 16h00 on 20 February 2026.
Summary: Local government - Superior Courts Act 10 of 2013 - ss 18(1) and
18(3) - execution of order pending appeal - exceptional circumstances - irreparable
harm - service delivery.
ORDER
1 The order ofDaffue J dated 20 June 2025 is hereby put into operation with
immediate effect, pending the first to third respondents' application for leave to
appeal to the Constitutional Court, and subject to the provisions of s 18( 4) of the
Superior Courts Act 10 of 2013.
2 Should the first to third respondents fail to prosecute an appeal against this
order in terms ofs 18(4)(a) (ii) of the Superior Courts Act 10 of2013 within twenty
one (21) days of the granting of this order, such appeal shall lapse, and the
suspension contemplated ins 18(4)(a)(iv) of Act 10 of2013 shall cease to operate.
3 The first to third respondents,jointly and severally, the one paying the others
to be absolved, are ordered to pay the costs of this application, including the costs
of senior counsel on scale C and junior counsel on scale B.
JUDGMENT
Opperman J
Introduction
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[l] Systemic failures which have resulted in the supply of contaminated water,
recurring sewage spillages, financial insolvency and manifestly deficient
governance demand urgent and decisive remediation. A failure to intervene in the
face of such circumstances is inconsistent with the obligations imposed by the
Constitution and cannot be countenanced in a constitutional democracy.
[2] The municipal council of the Ngwathe Local Municipality (Municipality) has
been in office since 2021. It has accordingly had ample opportunity to ensure that
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been in office since 2021. It has accordingly had ample opportunity to ensure that
the Municipality complies with its constitutional obligations. In the circumstances,
it cannot reasonably be contended that insufficient time has been afforded to the
council to discharge its duties. That position is, in my view, beyond dispute.'
[3] This is an application in terms of s 18(1) read withs 18(3) of the Superior
Courts Act 10 of 2013 (the Act), in which the applicant seeks an order that the
judgment and order granted by Daffue J on 20 June 2025,2 placing the first
respondent under mandatory provincial administration, be implemented
immediately, notwithstanding the pending application for leave to appeal to the
Constitutional Court.
[ 4] The relief is sought consequent upon the dismissal of an application for leave
to appeal by this Court and the subsequent dismissal of the first to third respondents'
petition to the Supreme Court of Appeal (SCA). I will depict the chronology of
events later in more detail.
[5] The application is opposed only by the first to third respondents (the
municipal respondents). The fourth to sixth respondents (the provincial respondents)
have filed notices to abide by the decision of this Court.
[ 6] The applicant filed supplementary founding affidavits limited to placing
before this Court facts which arose after the launch of the application. No prejudice
arises from their admission, and they are admitted in the exercise of this Court's
discretion under rule 6(5)(e) in the interests of justice.
1 Afriforum NPC v Ngwathe local Municipality and 14 Others (2264/2024) [2025] ZAFSHC 184; 2025 (6) SA 566
(FB) (20 June 2025) para 18 read with paras 1-4.
2 Ibid.
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Procedural history
[7] The main application culminated in an order by Daffue J, finding that the
jurisdictional facts for mandatory provincial intervention in terms of s 139(4) and
(5) of the Constitution had been established and ordering, inter alia, the dissolution
of the municipal council. As mentioned, an application for leave to appeal was
dismissed on 19 August 2025, with costs. A petition to the SCA was likewise
dismissed on 22 October 2025.
[8] The present s 18-application was initially enrolled on an urgent basis but was
removed from the urgent roll on 22 October 2025. The merits were not adjudicated,
and the matter is accordingly not res iudicata. It was thereafter re-enrolled on the
ordinary opposed motion roll. Any procedural complaints raised by the second
respondent in a Rule 30-notice were rendered moot by the applicant's re-service of
the papers and the additional time afforded to supplement affidavits.
[9] The following is a chronological account of the events culminating in the
present matter. The municipal council of the Ngwathe Local Municipality was
elected on 1 November 2021. The main application, which ultimately gave rise to
the present proceedings, was served on 16 May 2024 and argued on 5 December
2024. On 20 June 2025, Daffue J granted an order placing the Municipality under
administration . On 24 June 2025, the first and third respondents filed an application
for leave to appeal to the High Court while the municipal manager followed with a
separate application for leave to appeal on 10 July 2025. On 19 August 2025, Daffue
J dismissed the applications for leave to appeal and immediately thereafter a petition
was lodged with the SCA. That petition was dismissed on 22 October 2025.
[ 1 OJ In the interim, a media statement was issued by the mayor on 29 August 2025.
The present application in terms of s 18 was served on 10 September 2025. On 30
September 2025, the fourth to sixth respondents filed notices to abide, while the first
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to third respondents delivered their answering affidavits on 1 October 2025. The
applicant filed a replying affidavit on 8 October 2025.
[11] The s 18-application was initially enrolled on an urgent basis but was struck
from the roll for lack of urgency by Chesiwe Jon 22 October 2025, on the same day
that the petition to the SCA was dismissed. The merits of the application were not
determined, and the matter was thereafter set down for hearing on 4 December 2025.
[12] On 31 October 2025, the applicant filed its first supplementary affidavit while
the respondents lodged an application for leave to appeal to the Constitutional Court
of South Africa on 7 November 2025. This application is still pending. Meanwhile,
the s 18-application was re-served on 24 November 2025, with further time afforded
to the respondents to regularise the process.
[13] The foregoing narrative reflects a continuous sequence of appellate steps
pursued after the order of 20 June 2025, the cumulative effect of which delayed the
implementation of the administration order for a considerable period.
The legal framework
[14] Section 18 of the Act provides that the operation and execution of a decision
is suspended pending an appeal unless the court orders otherwise under exceptional
circumstances, upon proof that: the applicant will suffer irreparable harm if the order
is not implemented; and the respondent will not suffer irreparable harm if it is. The
SCA has confirmed that these requirements are not to be approached
mechanistically. The overarching enquiry remams whether exceptional
circumstances exist, having regard to all relevant facts.
' [17] Counsel fared no better in defence of the contention that s 18(3) leaves no room for a
''weighing-up" by the court .. .. In other words, unless there was no (as in "zero", in the words of
counsel) irreparable harm to a respondent the s 18 application had to fail.
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[18] Counsel did not shrink from the logical consequence of the contention , namely that such
a mechanistic approach, which rested on the supposition that the second and third had to be
approached as isolated enquiries, may well strip a court of any discretion that it may possess or
that it could give rise to a manifestly inequitable conclusion, which could serve to undermine the
rule of law. This approach, if it is to be favoured, would disregard entirely the rationality,
reasonableness and proportionality yardsticks that have become important touchstones in our
jurisprudence . . . ' . 3
Exceptional circumstance5-
[ l 5] The order sought to be implemented is not an ordinary civil judgment. It
concerns the governance of a local authority, the provision of basic services, and the
vindication of constitutional rights of thousands of residents.
[16] Ngwathe Local Municipality was financially dysfunctional, with liabilities
exceeding assets by billions of rands. Notwithstanding previous legal battles
concerning its dysfunction, the situation has worsened. The Municipality
persistently fails to meet its obligations to Eskom and the Department of Water and
Sanitation; it incurred extensive irregular, fruitless and wasteful expenditure; it fails
to provide basic services, particularly potable water, sanitation and electricity; and
it is unable to fulfil its constitutional obligations.
[17] The aforesaid factual realities have not been credibly or meaningfully
challenged in any of the applications for leave to appeal, nor are they gainsaid by
the evidence placed before this Court by the respondents. They are not salvaged by
reliance on the so-called Plascon-Evans dictum. The respondents' attack is directed
almost exclusively at the legal conclusions drawn by the court, rather than at the
underlying factual findings, which remain substantially uncontroverted.
3
Tyte Security Services CC v Western Cape Provincial Government (479/2024) [2024] ZASCA 88; 2024 (6) SA 175
(SCA) (Tyte).
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[18] The ongoing collapse of governance and service delivery, coupled with the
repeated use of appellate processes to delay implementation of the order, constitutes
circumstances that are markedly unusual, serious and compelling. I am satisfied that
exceptional circumstances within the meaning of s 18 are present.
Irreparable harm
[19] The harm suffered by the applicant's members and the residents of the
Municipality is ongoing and, by its very nature, irreparable. The interruption of
potable water supply, the contamination of areas by sewage spillages and persistent
electrical instability constitute more than mere administrative shortcomings; they
pose immediate and tangible risks to public health, human dignity, and the
environment. Access to clean water is indispensable to life itself and the sustained
deprivation thereof, coupled with exposure to raw sewage, creates conditions
inimical to human survival and wellbeing, and may, if unabated, result in severe
illness or death.
[20] The harms complained of are of such a nature that they cannot be undone by
the mere success of an appeal at some indeterminate point in the future. Once
suffered, they will have taken effect in a manner that is neither reversible nor capable
of meaningful restoration. They are also not susceptible to being cured by way of a
monetary award. The enquiry into the nature of the harm is, therefore, in legal terms,
straightforward: if the prejudice apprehended cannot adequately be remedied by
damages, it is, by definition, irreparable.
[21] It has been said, albeit in a somewhat different context, that irreparable harm
is more than a convenient rationale; it is a critical factor. The concept itself defies
precise definition. As R J Sharpe observes:
'The rationale for requiring the plaintiff to show irreparable harm is readily understood. If damages
provide adequate compensation, and the defendant is in a position to pay them, then ordinarily
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there will be no justification in running the risk of an injunction pending the trial. While it is easy
to see why this requirement should be imposed, it is difficult to define exactly what is meant by
irreparable harm. '4
[22] The essence of the requirement lies not in semantic precision but in practical
justice. Where the harm apprehended cannot be adequately redressed by a
subsequent award of damage, and where its consequences would endure beyond the
reach of corrective relief, a court is entitled, indeed obliged, to recognise its
irreparable character.5 Conversely, the municipal respondents have failed to
demonstrate any concrete or substantiated irreparable harm they would suffer should
the order be implemented.6 Assertions relating to councilors' tenure or loss of
remuneration are legally insufficient and constitutionally misplaced.
[23] The delay in instituting the present application has been satisfactorily and
convincingly explained. The applicant adopted a measured and reasonable approach
in awaiting the outcome of the applications for leave to appeal before this Court. It
could not be assumed, as a matter of course, that the respondents would proceed
further by way of petition. That eventuality materialised only on 26 August 2025.
[24] That development constituted the operative trigger for the present
proceedings. It is common cause that the determination of the petition will inevitably
delay the implementation of the order for several months. In those circumstances,
the lapse of time between 26 August 2025 and 10 September 2025, when this
application was issued, can hardly be characterised as inordinate. During that period,
the applicant was required not only to prepare its response to the petition but also to
obtain updated information concerning the prevailing conditions within the
4 Ibid para 19. See also paras 20-2 1.
5 See Setlogelo vs Setloge/o 1914 AD 221 at 227.
4 Ibid para 19. See also paras 20-2 1.
5 See Setlogelo vs Setloge/o 1914 AD 221 at 227.
6 The next local government elections are scheduled to take place between 2 November 2026, being the earliest
possible date, and 31 January 2027, being the latest permissible date.
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Municipality.
[25] Viewed objectively, the explanation tendered is rational, consonant with the
established chronology of events, and devoid of any suggestion of dilatoriness that
might justify an adverse inference. It reflects neither neglect nor indifference, but a
measured response to unfolding circumstances. Counsel correctly submitted during
argument that applications in terms of s 18 are, by their very nature, urgent. In the
context of the present matter, that urgency is accentuated by the particular facts and
the substantive consequences at stake.
[26] The Constitutional Court has repeatedly held that the primary prejudice lies
with communities deprived of basic services, not with office-bearers who may lose
positions through constitutionally sanctioned processes. The Constitutional Court
made it clear that '[i]t is evident that appropriate steps require a "balancing of the
constitutional imperative to respect the integrity of local government as far as
possible against the constitutional requirement of effective government'" 7 and the
people must come first:
' The People of Tshwane must come first. We are dealing with a very difficult situation and are
tasked with finding a remedy that will result in the strengthening of the Municipal Council to
manage its own affairs and functions. Importantly, it must be a remedy that will stabilise the
Municipal Council and enable it to continue to fulfil its executive obligations. ' 8
Prospects of success
[27] Although not decisive, the prospects of success on appeal are a relevant
consideration.9 The dismissal of the SCA petition, the absence of any appeal by the
7 Premier. Gauteng and Others v Democratic Allian ce and Others; All Tshwane Councillors who are Members of the
Economic Freedom Fighters and Another v Democratic Alliance and Others; Afr ican National Congress v
Democratic Alliance and Others (202 1) ZACC 34; 2022 (1) SA 16 (CC) para 81.
8 Ibid para 129.
Democratic Alliance and Others (202 1) ZACC 34; 2022 (1) SA 16 (CC) para 81.
8 Ibid para 129.
9 University of the Free State v Afriforum and Another (929/2016) [2016] ZASCA 165; [2017) 1 AIJ SA 79 (SCA);
2018 (3) SA 428 (SCA) ( 17 November 2016):
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provincial respondents, and the fact that the Constitutional Court application is
materially indistinguishable from the petition previously dismissed, all weigh
heavily against the respondents. I am not persuaded that the pending Constitutional
Court application enjoys reasonable prospects of success.
Section 18(4) as remedy for the respondents
[28] Section 18(4)(a)(iv) of the Act regulates the immediate enforceability of a
court' s decision granting execution pending appeal. It provides that, where a court
orders that its decision shall operate notwithstanding the noting of an appeal, such
order is automatically suspended upon the lodging of an appeal against that
execution order. The effect is that the successful applicant under s 18(3) does not
obtain an unqualified right to immediate enforcement; rather, the statute creates an
internal safeguard by preserving the appellant's right to challenge the execution
order itself. Thus, once an appeal in terms of s 18( 4) is duly instituted, the operation
and execution of the order granted under section 18(3) are suspended pending the
outcome of that appeal, unless and until the appeal court determines otherwise.
Costs
[29] The applicant litigates in the public interest to vindicate constitutional rights
against organs of state. The Biowatch-principle applies.
[30] The municipal respondents, however, persisted in opposition notwithstanding
overwhelming evidence and failed to advance any substantive basis for resisting the
' (14] A question that arises in the conte xt of an application under s 18, is whether the prospects of success in tbe
pending appeal should play a role in this analysis. ln lncubeta Holdings Sutberland J was of the view that the prospects
of success in the appeal played no role at all. In liviero Wilge Joint Venture Satc hwell J, Moshidi J concurring, was
of the same view. However , in Justice Alliance Binn s- Ward J (Fortuin and Boqwana JJ concurring) , was ofa different
view, nam ely that the prospects of succe ss in the appeal remain a relevant factor and ther efore" ... the less sanguin e
a court seized of an application in term s of s 18(3) is about the prospects of the judgment at first instance being uph eld
on appeal, tbe less inclined it wit I be to grant the exceptional remedy of exec ution of that judgment pendin g the appeal.
The same quit e obv iously applies in respect of a court dea ling with an appeal against an order granted in tenn s of
s 18(3)".'
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relief.
[31] Order
1 The order of Daffue J dated 20 June 2025 is hereby put into operation with
immediate effect, pending the first to third respondents' application for leave to
appeal to the Constitutiona] Court, and subject to the provisions of s I 8( 4) of the
Superior Courts Act LO of 2013.
2 Should the first to third respondents fail to prosecute an appeal against this
order in terms of s 18( 4 )(a)(ii) of the Superior Courts Act 10 of 2013 within twenty
one (21) days of the granting of this order, such appeal shall lapse, and the
suspension contemplated ins 18(4)(a)(iv) of Act 10 of2013 shall cease to operate.
3 The first to third respondents, jointly and severally, the one paying the others
to be absolved, are ordered to pay the costs of this application, including the costs
of senior counsel on scale C and junior counsel on scale B.
MOPPERMAN
JUDGE OF THE IDGH COURT
Appearances
For the applicant:
Instructed by:
For the first and third respondent:
Instructed by:
For the second respondent:
Instructed by:
FJ Erasmus SC & P Eile rs
Hurter Spies Incorporated
c/o Hendre Conradie Incorporated
WR Mokhare SC
Rampai Attorneys
MCLouw
Peyper Attorneys
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