IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case No: 2026-102060
In the matter between:
TSWAING LOCAL MUNICIPALITY First Applicant
ACTING MUNICIPAL MANAGER OF TSWAING
LOCAL MUNICIPALITY Second Applicant
MAYOR OF TSWAING LOCAL MUNICIPALITY Third Applicant
SPEAKER OF TSWAING LOCAL MUNICIPALITY Fourth Applicant
and
MEC FOR COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL
AFFAIRS First Respondent
TAU MATSIMELA ATTORNEYS INC Second Respondent
Coram: Petersen ADJP
Date heard: 22 May 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 14h00 on 25 May 2026.
Summary: Urgent application – interim interdictory relief – bifurcated
application – Part A dismissed – Local Government: Municipal Systems Act 32
of 2000, s 106(1)(b) – Provincial oversight over municipalities –
Intergovernmental Relations Framework Act 13 of 2005 – whether non -
compliance with intergovernmental dispute resolution mechanisms ousts judicial
jurisdiction – Rule 7(1) of the Uniform Rules of Court – authority of municipal
manager – requirements for interim interdictory relief – whether audi alteram
partem applies during a s 106 investigation, and if so to what extent, is a novel
issue unresolved by authority – Matzikama paras 13–24 characterise s 106 as a
monitoring and accountability mechanism, investigative rather than adjudicative
in character, but do not address procedural fairness obligations during an
investigation – novel audi question best ventilated in Part B – arguability of
review grounds insufficient to establish prima facie right of requisite weight –
harm contingent and not irreversible – balance of convenience favours judicial
restraint where Provinicial statutory oversight mechanism under challenge – costs
reserved.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
INTRODUCTION
[1] This is the urgent Part A of a bifurcated application in which the applicants
seek interim interdictory relief pending the determination of Part B, being review
proceedings directed at setting aside the outcome of an investigation
commissioned by the First Respondent (“the MEC”) in terms of s 106(1)(b) of
the Local Government: Municipal Systems Act 32 of 2000 (“the Systems Act”).
[2] The applicants seek, in essence, an order suspending the operation and
implementation of the investigation report compiled by the Second Respondent
(“the Report”), together with the MEC’s directive requiring implementation of
(“the Report”), together with the MEC’s directive requiring implementation of
specified remedial measures flowing from that Report. The relief is framed on the
premise that the investigation process was procedurally unfair and that, if
implemented, the remedial measures will result in the revocation of the
employment contracts of three senior officials of the Municipality.
[3] The application raises questions concerning the scope of Provincial
oversight over Local Government, the requirements of procedural fairness in
investigative processes undertaken pursuant to s 106 of the Systems Act, the
relationship between intergovernmental dispute resolution mechanisms and
judicial intervention, and the cumulative requirements for urgent interim
interdictory relief.
[4] While the applicants raise review grounds that are not frivolous, the issue
presently before this Court is narrower : whether the applicants have established
entitlement to urgent interim relief of the kind sought.
BACKGROUND
[5] The First Applicant is Tswaing Local Municipality, a municipality
established in terms of section 155 of the Constitution.
1 The Second Applicant is
the Acting Municipal Manager. The Third and Fourth Applicants are ,
respectively, the Mayor and the Speaker. The First Respondent is the Provincial
MEC responsible for Cooperative Governance.
[6] Acting pursuant to a complaint concerning alleged maladministration
within the Municipality, the MEC invoked s 106(1)(b) of the Systems Act and
appointed the Second Respondent, a firm of attorneys, to conduct an
investigation. Section 106 constitutes part of the statutory framework through
which provincial government exercises oversight over municipalities where there
are allegations of maladministration, fraud, corruption or failure to fulfil
executive obligations. That oversight function is constitutionally significant .
Local Government autonomy exists within a constitutional system of cooperative
governance, not institutional isolation.
[7] The investigation culminated in a report dated 30 January 2026. Prior to its
transmission to the Municipality, on 19 March 2026, the Head of Department in
1 Constitution of the Republic of South Africa, 1996.
the Office of the MEC wrote to the Municipality conveying that the MEC had
“come to a considered decision to implement the recommendation of the
investigation report.” The letter informed councillors that implementation would
proceed and invited them to make representations on findings prepared against
them in the Report.
[8] On 20 April 2026, the MEC transmitted the Report to the Municipality ,
together with correspondence addressed to the Mayor and the Speaker, requiring
the implementation of remedial measures in respect of paragraphs 98, 156, and
185 of the Report. These paragraphs relate to the revocation of the employment
contracts of three senior officials of the Municipality. An implementation plan
was required within seven days of receipt of the letter. The applicants launched
this urgent application shortly thereafter.
PRELIMINARY ISSUES
Authority – Rule 7(1)
[9] The MEC raised a challenge in terms of Rule 7(1) of the Uniform Rules of
Court to the authority of Fihla Attorneys to act on behalf of the Municipality. In
support of their authority, the applicants filed a document purporting to be a
Council Resolution authorising the institution of these proceedings.
[10] The First Respondent challenges the validity of the Council Resolution on
the following grounds. it was signed by the Speaker, who is the Fourth Applicant
in these proceedings; no minutes or attendance register were provided; no
indication was given that the statutory requirements relating to the calling of
meetings or the standing orders had been complied with. Reliance was placed on
Manana v King Sabata Dalindyebo Local Municipality
2 and Fedsure Life
Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 3 for
2 Manana v King Sabata Dalindyebo Local Municipality (PA01/2024) [2025] ZALAC 27.
3 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others
1999 (1) SA 374 (CC).
the proposition that a municipality may only act within the powers lawfully
conferred upon it and that authority must be specifically and objectively
demonstrated.
[11] The applicants respond that any challenge to the authority of the municipal
manager to launch an application on behalf of a municipality must be brought by
way of a separate Rule 7(1) notice directed specifically at the municipal manager.
Reliance was placed on this Division’s decision in Mahikeng Local Municipality
v Harrison
4, where I, still, in acting capacity, held that the legal position in this
Division is clear , that a challenge to the authority of a municipal manager to
launch proceedings must be brought by way of Rule 7(1). No such notice was
filed; the Rule 7(1) challenge was directed at Fihla Attorneys. Furthermore, the
First Respondent did not file a Rule 30A notice asserting that the applicants’
response was inadequate. A council resolution constitutes prima facie proof that
a juristic person has taken the relevant decision.
[12] I accept the applicants’ submission. The Rule 7(1) challenge was directed
at the authority of Fihla Attorneys, not at the authority of the municipal manager
to institute the proceedings. No separate notice was filed challenging the
municipal manager’s authority. The point in limine accordingly fails. I proceed
on the assumption, in the applicants’ favour, that sufficient prima facie authority
exists for the purposes of Part A.
Intergovernmental dispute resolution
[13] The MEC contends that the applicants were required to exhaust the dispute
resolution mechanisms provided for in the Intergovernmental Relations
Framework Act 13 of 2005 (“the IGRFA”) before approaching this Court.
Reliance is placed on MEC Responsible for Local Government, Western Cape v
Matzikama Local Municipality and Others
5 as authority illustrating that the
4 Mahikeng Local Municipality v Harrison (M209/2020) [2021] ZANWHC 87 (14 April 2021).
4 Mahikeng Local Municipality v Harrison (M209/2020) [2021] ZANWHC 87 (14 April 2021).
5 MEC Responsible for Local Government, Western Cape v Matzikama Local Municipality and Others (747/2021)
[2022] ZASCA 167; 2023 (3) SA 521 (SCA).
potential applicability of the IGRFA in the context of section 106 proceedings is
an open question.
[14] The applicants advance two answers. First, s 39 of the IGRFA provides
that where another Act furnishes an applicable dispute resolution mechanism, the
IGRFA does not apply, and s 106 of the Systems Act provides such a mechanism.
Secondly, s 2(3)(b) of the IGRFA requires that an organ of state be invited to
participate in the intergovernmental dispute resolution process. The MEC never
extended any such invitation. In argument, counsel for the applicants submitted
that the MEC, as a permanent member of t he intergovernmental forum
contemplated in s 16 of the IGRFA, was at all times in a position to invite the
Municipality to the table, and that his failure to do so undermines reliance on the
Municipality's non-compliance.
[15] This matter has an intergovernmental dimension. I t concerns a provincial
executive function directed at a municipality and implicates the relationship
between constitutional spheres of government. Section 41 of the Constitution
obliges organs of state to make every reasonable effort to avoid litigation and to
settle disputes through appropriate mechanisms. Courts must take those
principles seriously.
[16] However, counsel for the MEC properly conceded that there is no clear law
or jurisprudence regulating the applicability of the IGRFA specifically to a s 106
report and a MEC’s recommendation arising from such report. The Matzikama
appeal did not resolve this question, since the point was abandoned by the parties
before pronouncement. I leave the question open since it does not affect the
outcome of Part A. I also accept that the MEC's absence of an IGRFA invitation
undermines any reliance on that mechanism as a jurisdictional bar.
URGENCY
[17] The applicants advance the following grounds of urgency. The Report was
served on the Municipality on 20 April 2026. The Municipal Council convened
on 21 April 2026 and resolved to take the Report on review. The application was
instituted on the first available sitting of the urgent court of this Division. If the
interim interdict is not granted urgently, the remedial actions, specifically the
revocation of the employment contracts of the three implicated senior officials,
will be implemented before the review application in Part B can be heard. Counsel
for the applicants submitted that the revocation of employment contracts is not
susceptible to redress through ordinary labour law remedies. The only applicable
mechanism under the Labour Relations Act in the context of an organ of state’s
employment decisions is a self-review under s 158(1)(h), which would require
the Municipality itself to review the very decision it is implementing, a manifestly
inadequate remedy.
[18] The MEC submits that the matter is not urgent. Reliance was placed on
Matamela Enterprise CC v George Municipality & 4 Others
6 and East Rock
Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd7 for the applicable test. The
sole basis for urgency, counsel submitted, is contained in paragraph 33 of the
founding affidavit, which asserts only that the implicated applicants “might” and
not “will” suffer revocation of their contracts of employment should the Mayor
and Speaker implement the recommendations. This is conditional and remote.
The Municipal Council has taken no resolution to implement the MEC’s
recommendations; indeed, on the applicants’ own version, the Council disagrees
with the Report. The application is accordingly premature.
[19] The applicable test is well established. Rule 6(12) of the Uniform Rules of
Court requires an applicant to set forth explicitly the circumstances that render
6 Matamela Enterprise CC v George Municipality & 4 Others (Case No 24-146973) (unreported, ZAWCHC).
7 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011]
ZAGPJHC 196 (23 September 2011).
the matter urgent and the reasons why substantial redress cannot be obtained at a
hearing in due course. As the court held in East Rock , the decisive question is
whether the applicant will be afforded substantial redress in an application in due
course. The absence of substantial redress is not equivalent to the irreparable
harm required for an interim interdict; it is something less. Delay in instituting
proceedings is not on its own a ground for refusing to characterise a matter as
urgent, but must be considered with an explanation and assessed against the
question of substantial redress.
[20] The Report was transmitted to the Municipality on 20 April 2026, and the
application was instituted in early May 2026. That interval is not insignificant in
urgent proceedings . However, I accept the applicants’ explanation that the
Council first considered the Report on 21 April 2026 and that the process of
briefing counsel and preparing papers required a short period. More
fundamentally, the alleged harm remains conditional. The MEC’s remedial
measures will take effect only if the Full Municipal Council resolves to
implement them, and on the applicants’ own version, the Council disagrees with
the Report. There is no evidence that a council meeting has been convened for
the purpose of implementing the recommendations or that disciplinary
proceedings are imminent.
[21] I accept that the MEC’s correspondence , the HOD’s letter of 19 March
2026, and the MEC’s letter of 20 April 2026 are directive in character and reflect
an intention to have the Report’s recommendations implemented. The MEC has,
in that sense, taken a decision. The applicants’ concern about the tempo of
implementation is therefore not without foundation. However, urgency cannot
rest on conjectural future harm. By the time the application was argued on 22
May 2026, there was no evidence that the Municipality had submitted an
implementation plan, instituted disciplinary processes, or revoked any
implementation plan, instituted disciplinary processes, or revoked any
employment contracts. The apprehension of harm remains hypothetical.
[22] That said, because urgency and the merits often overlap in interim interdict
proceedings, I proceed to consider the application on its merits rather than striking
the matter for lack of urgency.
THE APPLICABLE LEGAL PRINCIPLES
[23] The requirements for an interim interdict are well established and were not
in dispute. As formulated in Setlogelo v Setlogelo8 and developed in subsequent
authority. T hey are , a prima facie right, though open to some doubt; a well -
grounded apprehension of irreparable harm if interim relief is not granted; a
balance of convenience favouring the grant of the interdict; and the absence of an
adequate alternative remedy. These requirements must be considered
conjunctively and not in isolation, so that strength in one may compensate for
relative weakness in another.
[24] The applicants placed reliance on Air France-KLM SA and Another v SAA
Technical SOC Ltd and Others
9 for the formulation of these requirements and on
National Treasury v Opposition to Urban Tolling Alliance 10 (“OUTA”) for the
considerations applicable when interim relief is sought against the exercise of a
public power. In OUTA, the Constitutional Court held that courts must carefully
consider the probable impact of any restraining order on the constitutional and
statutory powers and duties of the relevant organ of state.
[25] Counsel for the MEC submitted that OUTA in effect elevates the threshold
in cases involving public power from a prima facie right to something closer to a
clear right, given the separation of powers implications attending judicial restraint
of statutory executive functions. A court should be slow to interfere with the
constitutional and statutory functions of a provincial executive member unless it
8 Setlogelo v Setlogelo 1914 AD 221.
9 Air France-KLM SA and Another v SAA Technical SOC Ltd and Others [2016] ZAGPPHC 877 (3 September
2016).
10 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC).
is entirely persuaded that a clear case for relief exists. I deal with this submission
in the analysis that follows.
A PRIMA FACIE RIGHT
[26] The applicants contend that they have a prima facie right to procedurally
fair administrative action. Their primary ground is that the Second Respondent
failed to comply with the audi alteram partem principle, making adverse findings
against the Municipality and implicated persons without affording them an
adequate opportunity to be heard. In support of this ground, the applicants rely
on Masetlha v President of the Republic of South Africa
11 and Malan v City of
Cape Town 12 in which the Constitutional Court endorsed the formulation in
Traub that when a statute empowers a public official or body to give a decision
prejudicially affecting an individual in their liberty, property, or existing rights,
that individual has a right to be heard before the decision is taken, unless the
statute expressly or by implication indicates the contrary.
[27] More particularly, the applicants submit that the procedural defects are as
follows. First, only one implicated person, Mr Mohali, received a letter setting
out specific allegations against him and inviting a response. No equivalent
individualised communication was directed to any other implicated official or
councillor. Secondly, the letter directed to councillors was a generic
communication, described in oral argument as a “come one come all” invitation,
which did not identify specific allegations against the recipients and was not
accompanied by the Report. Thirdly, the meeting scheduled for 3 December 2025
to engage councillors was attended by no one, because councillors had been
committed elsewhere by the Deputy Minister on that day. The Report was
accordingly finalised without any engagement with the affected parties. Counsel
also relied on Chairman, Board of Tariffs and Trade v Branco Incorporated (Pty)
11 Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), paras 74–75.
11 Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC), paras 74–75.
12 Malan v City of Cape Town 2014 (6) SA 215 (CC), para 135.
Ltd and Others 13 for the proposition that in assessing what fairness requires,
careful regard must be had to the scope of the proceedings, the source of
jurisdiction, and the objective of the inquiry.
[28] The applicants further submitted that the Second Respondent failed to
utilise the procedural tools made available by s 106(2) of the Systems Act, which
imports the provisions of the Commissions Act 8 of 1947,
14 including the powers
to summon witnesses, receive evidence under oath, and compel the production of
documents. Instead, the Second Respondent merely requested documents from
officials, and when those documents were not produced, proceeded to finalise and
submit the Report without further process.
[29] The MEC disputes that the audi alteram partem principle was violated. It
is contended that the applicants themselves deliberately elected not to cooperate
with the investigation, thereby precluding themselves from relying on its
procedural shortcomings. Counsel submitted, with some force, that it cannot be
open to a party to obstruct an investigation and then assert non -compliance with
the audi principle as a ground of review. The Report is, at best, a recommendation
to the Municipal Council, not a binding instruction. The Municipal Council
retains the prerogative to accept or decline the recommendations. The Council
was not even cited as a respondent in these proceedings, yet it is the Council in
which the ultimate decision-making authority vests.
[30] The applicants responded that the municipality and its council are not
separate legal entities ; the municipality acts through its council as a single
juridical entity. Reliance was placed on Nelson Mandela Bay Municipality v
GABA,
15 where the Supreme Court of Appeal confirmed that the Constitution
does not clothe a municipal council with separate legal personality from the
13 Chairman, Board of Tariffs and Trade v Branco Incorporated (Pty) Ltd and Others 2001 (4) SA 511 (SCA),
para 14.
14 Commissions Act 8 of 1947.
para 14.
14 Commissions Act 8 of 1947.
15 Nelson Mandela Bay Municipality and Others v GABA 2022 (3) SA 239 (SCA).
municipality of which it is a component; a municipality acts and performs its
functions through the agency of its council.
The nature of a section 106 investigation: What Matzikama paras 13–24
establish
[31] Against the parties’ submissions on the audi question, it is necessary to
consider carefully what the SCA said in Matzikama about the nature and purpose
of s 106 investigations. In that case, the SCA was required to determine whether
s 106(1) empowers an MEC to appoint an investigation into criminal conduct
other than fraud or corruption. In addressing that question, the Court examined
the constitutional and statutory architecture of s 106 in paragraphs 13 to 24 of the
judgment, and its analysis illuminates the character of the s 106 mechanism and,
by extension, the novelty of the audi question that the applicants seek to raise.
[32] What is conspicuous in paragraphs 13 to 24 of Matzikama is precisely what
the SCA did not address. The Court was concerned with the scope of the s 106
power, what the MEC may investigate. It was not called upon to consider, and
did not consider, the process requirements during the conduct of such an
investigation. The following questions, all directly implicated by the applicants’
challenge in the present case, were neither raised nor resolved in Matzikama.
Whether the audi alteram partem principle applies during the fact- gathering
phase of a section 106 investigation; at what stage of the investigative process, if
at all, the principle is engaged; what content the principle bears in a mechanism
described as investigative and monitoring in character rather than adjudicative;
whether the procedural architecture o f the Commissions Act, incorporated by s
106(2) of the Systems Act, displaces, supplements or co-exists with any common
law or constitutional fairness requirements; and what the consequence of
procedural non-compliance would be for the validity of the repo rt and any
remedial action flowing from it.
[33] This brings into focus the genuinely novel character of the audi alteram
partem question as raised by the applicants. The applicants assert that s 106
investigations attract the audi principle at the fact-finding stage, before findings
are made and before the MEC transmits the report to the municipality. The MEC
disputes this on the basis that the investigation was not adjudicative, and
separately on the basis that the applicants’ own failure to cooperate disentitles
them from invoking the principle. Neither position is supported by binding
authority specifically in the s 106 context. Matzikama paras 13 to 24 characterise
what section 106 is, a monitoring and accountability mechanism, investigative
rather than adjudicative in character, but that characterisation neither resolves nor
forecloses the audi question. Indeed, the investigative character of s 106 might be
said to cut in either direction. It may support the conclusion that full audi
obligations of the kind associated with adjudicative proceedings do not apply; or
it may support the conclusion that some attenuated form of participation is
required before adverse findings affecting employment and reputational interests
are made. The answer to that question, and its consequences for the validity of
the Report and the remedial actions, requires a full factual record, properly
developed legal arguments, and careful analysis. It is an issue best ventilated in
Part B.
[34] For present purposes, I accept that the applicants raise an arguable prima
facie right. The novelty of the audi question in the s 106 context is itself a reason
for caution at the interim stage . Where the asserted rights rest on an unresolved
legal question of this kind, it is difficult to characterise the prima facie right as
sufficiently established and weighty to justify judicial displacement of an ongoing
statutory provincial oversight process. The applicants have not met the threshold.
IRREPARABLE HARM
IRREPARABLE HARM
[35] The applicants contend that irreparable harm will materialise in the
following respects . If the remedial actions are implemented, the employment
contracts of three senior officials will be revoked; that reputational and
employment prejudice cannot be restored by any later success in Part B; and there
is no adequate labour law remedy for revocation of employment contracts, since
s 158(1)(h) of the Labour Relations Act provides only for self -review by the
municipality, an inadequate remedy where the municipality is simultaneously the
implementing party.
[36] The MEC submits that no immediate irreparable harm has been
established. There is no evidence before this Court that the Municipal Council
has resolved, or is imminently likely to resolve, to implement the MEC’s
recommendations. The harm is contingent on a chain of future events. A council
meeting, a resolution, and an act of implementation. None of these has occurred
or been shown to be imminent. Even if implementation steps were initiated, the
contemplated disciplinary processes are themselves regulated, and the decisions
arising from them are reviewable.
[37] The applicants’ apprehension of harm is understandable given the directive
character of the MEC’s correspondence. However, an interim interdict requires a
well-grounded apprehension of irreparable harm, not a reasonable anxiety about
future contingencies. The harm asserted remains conditional on the municipal
council taking a decision that it has not yet taken and, on the applicants’ own
account, is unlikely to take given the council’s apparent disagreement with the
Report. The alleged harm has not crystallised into imminent and irreversible
prejudice. The applicants have accordingly failed to establish irreparable harm of
the required kind.
BALANCE OF CONVENIENCE
[38] The applicants submit that the balance of convenience strongly favours
granting the interim interdict. They argue that the MEC will suffer no harm if the
interdict is granted. T he Report has been finalised and the MEC retains all his
other regulatory and oversight options under s 106, including the ability to request
further reports, engage the municipality, and obtain a seconded official. By
contrast, if the interdict is refused and the employment contracts are revoked
before Part B is heard, the harm to the implicated officials will be irreversible.
[39] The MEC submits that the balance of convenience favours the MEC. The
MEC is constitutionally and statutorily duty- bound to intervene in instances of
maladministration and corruption in municipalities. The public interest, and in
particular the interest of the residents of the North West Province in accountable
local government, requires the MEC to exercise this oversight function. An
interim restraining order at this stage would impede a constitutionally grounded
mechanism and run contrary to the cooperative governance framework under
Chapter 3 of the Constitution.
[40] The balance of convenience does not favour the applicants. Provincial
oversight over municipalities is constitutionally significant. Courts must be
circumspect before interfering with statutory oversight mechanisms at an interim
stage, particularly where the harm alleged is contingent and adequate alternative
remedies are available. As the Constitutional Court emphasised in OUTA, courts
must carefully assess the probable impact of any restraining order on the
constitutional and statutory functions of t he relevant organ of state. The
characterisation in Matzikama of s 106 as a mechanism for monitoring,
strengthening and ensuring accountability in local government reinforces this
caution. To suspend the Report and its implementation before the merits of the
review are ventilated would risk judicial overreach in circumstances where the
harm the interdict is designed to prevent has not yet materialised and may not
materialise at all, on the applicants’ own papers.
ALTERNATIVE REMEDY
[41] The applicants contend that there is no adequate alternative remedy. The
revocation of employment contracts is not susceptible to reversal through
revocation of employment contracts is not susceptible to reversal through
ordinary labour law processes, since s 158(1)(h) of the Labour Relations Act, the
only applicable mechanism for an organ of state’s employment decisions,
requires self -review by the Municipality itself, which is the same party
implementing the remedial action. Any success in Part B after implementation
will be “vacuous”.
[42] The MEC responds that the applicants have a range of adequate alternative
remedies available to them . If and when the Municipal Council resolves to
implement the MEC’s recommendations, that council resolution is itself
susceptible to review. If disciplinary proceedings are instituted, those proceedings
are regulated , and their outcomes are independently reviewable. Should
implementation steps create an imminent threat, targeted interim relief may be
sought at that stage. The Part B review application r emains available and
constitutes an adequate interim alternative.
[43] The applicants have not established the absence of an adequate alternative
remedy. Part B remains available and constitutes the appropriate forum for the
ventilation of the review grounds raised, including, importantly, the novel audi
alteram partem question in the s 106 context identified above. The applicants
retain adequate remedies and have not demonstrated that those remedies are
inadequate to protect their interests.
CONCLUSION
[44] The applicants have raised issues deserving judicial consideration in Part
B. However, Part A requires more than an arguable grievance. It requires
exceptional justification for urgent interim judicial interference with statutory
provincial oversight. The applicants have not established a prima facie right of
requisite weight, a well-grounded apprehension of irreparable harm, a balance of
convenience in their favour, or the absence of adequate alternative remedies. In
particular, the central audi alteram partem question, whether and to what extent
that principle operates during the conduct of a section 106 investigation, is a novel
issue unaddressed by the existing authorities, including Matzikama paras 13 to
24, and is best determined in Part B upon a full record and properly developed
arguments. The cumulative failure to meet the requirements for an interim
interdict, viewed in light of the OUTA principle requiring circumspection when
a court is asked to restrain the exercise of a constitutional and statutory oversight
function, is fatal to Part A of the application.
ORDER
[ 45] In the result, the following order is made:
1. The application in Part A is dismissed.
2. Costs are reserved for determination in Part B. If the applicants fail to
prosecute Part B of the application, the First Respondent may apply to
the Registrar of this Court, on notice to the Applicants, for a date for
consideration of the costs of this application.
ACTING DEPUTY JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Applicants: Adv M Moeletsi
Instructed by: Fihla and Associates, Mafikeng
For the First Respondent: Adv HJ Scholtz
Instructed by: The State Attorney, Mafikeng