IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1673/2025
In the matter between:
GXAKA-GXAKA LOCALITY 1st Applicant
ZIHLANGENE SICAM 2nd Applicant
GOBIJONA MZUVUKILE 3rd Applicant
NOKWANDISA MNANA 4th Applicant
MKHUSELI NOMNGANGA 5th Applicant
NOMZEKELO ZALI 6th Applicant
and
MUNICIPAL MANAGER, MBHASHE
LOCAL MUNICIPALITY 1st Respondent
MBHASHE LOCAL MUNICIPALITY 2nd Respondent
JUDGMENT
MHAMBI AJ
Introduction
[1] The provision of basic services is a cardinal function, if not the most
important function, of every municipal government. At the core of this application
is the duty of the municipality to give priority to the basic needs of the local
community, promote development of the local community, and ensure that all
members of the local community have access to at least a minimum level of basic
services.
[2] This judgment paves the way for how the local community inhabitants
exercise their right of access to the basic local needs, as the local municipality has
a duty to provide them.
[3] The applicants are the community members of Gxaka -Gxaka locality, in the
district of Willowvale. The deponent to the founding affidavit is the local
traditional leader. He avers in the founding affidavit that the local community has
duly mandated him to institute these proceedings and depose to the affidavit on
their behalf. A resolution of the community meeting is attached in the founding
affidavit to support that averment. Some community members have deposed to the
confirmatory affidavit in support of the application.
[4] The applicants seek for the following orders in their notice of motion:
4.1 The respondents are ordered and directed to repair, fix, re -surface and
do whatever may be necessary to restore to good condition the Gxaka
Gxaka access road from where it joins the Fort Malan Road, at Fort
Malan, Willowvale.
4.2 The respondents are ordered to commence with steps, in compliance
with sub paragraph 4.1 above, within 90 days from the date of the
order, and fully comply with sub paragraph 4.1 within 180 days from
the date of the order.
4.3 Should the respondents fail to comply with the time periods
mentioned in sub paragraph 4.2 above, respondents should report to
the above honourable Court and set out fully the steps taken to secure
compliance with paragraph 4.1 above and provide a full explanation,
to the satisfaction of the above honourable Court, on any extended
time period requested by the Respondents, within which to comply
with sub paragraph 4.1 above.
4.4 The respondent be ordered to pay the costs of this application.
[5] The 1 st respondent is the organ of state within the local sphere of
government with legislative and executive authority within the area of jurisdiction
of the applicants. The 1 st respondent shall hereinafter be referred thereto as the
“Municipality”. The 2 nd respondent is the Municipal Manager of the Municipality.
I understand he has been cited in a capacity as the accounting officer of the
Municipality.
[6] The applicants seek for an order compelling the Municipality to fix, repair
and resurface the dilapidated Gxaka -Gxaka access road. The applicants contend
that they have lodged several complaints to the municipal councillors for the
repairs of the Gxaka -Gxaka access road, which is riddled with potholes. Gleaned
from the founding affidavit, it appears all those complaints yielded no positive
response; the last resort was the institution of this application.
[7] The applicants rely on section 38 (a) and (d) of the Constitution 1 to advance
an argument that they have the requisite local standi to institute these proceedings.
[8] The applicants contend that section 156 of the Constitution provides the
Municipality with the power to administer local government matters listed in Part
B of Schedule 4 and Part B of Schedule 5. In furtherance of this contention, the
applicants rely on the remark by Ramai J in Back and Others v Kopanong Local
Municipality and Others.2
1 The Constitution of the republic of South Africa, 1996
2 Beck and Others v Kopanong Local Municipality and Others, Unreported case no. 3772/2002
[9] The applicants rely on the provisions of the Municipal Systems Act 32 of
2000 to support a contention that the Municipality has a duty to give members of
the local community equitable access to the municipal services which they are
entitled to, and that the Municipality has a duty to respect the constitutional rights
of citizens and those of other persons protected by the Bill of Rights.
[10] The applicants, lastly, contend that the Municipality has failed to discharge
their legal and constitutional service delivery obligations in that they have failed to
demonstrate the legal, financial, and administrative operational measures taken to
progressively realise the rights of the applicants to have a decent and paved gravel
road at the least.
[11] In opposing the application, the Municipality denies that the road is
dilapidated and denies that the road has not been maintained. The Municipality
avers that the road was last maintained during 2024 after a complaint by the
applicants was filed with the relevant ward councillor.
[12] The respondents further deny that:
12.1 There was a complaint submitted by the applicants to the respondents
alleging that even the Councillor has no knowledge of the complaint
whatsoever. In substantiation, the respondent contends that the Ward
Councillor is the one who interacts with the respondents for basic
services needed by their communities, and no submission of the
complaint was made.
12.2 The respondents contend that, had the complaint been submitted, the
complaint would have been listed in the 1 st Respondent’s
Infrastructure Maintenance Policy. Even if the complaint was
submitted by the community of Gxaka -Gxaka, the complaint would
still be listed in the IMP of the 1st Respondent.
12.3 The respondents, further, contend that had the applicants submitted
the letter of demand, the respondents would have advised the
applicants about the 1 st respondent’s policies, which should be
followed for their grievances to be addressed.
12.4 The respondents submit that the applicants adopted an incorrect
approach by bringing the application in this manner, as they ought to
have brought these proceedings by way of a review application.
[13] This court has to determine, first, whether the access road concerned has
indeed been dilapidated to the extent that it needs to be restored and or fixed to a
better condition. Secondly, this court has to determine whether the Municipality
has breached a constitutional duty to provide adequate service delivery to the
applicants, and thirdly, whether this court has the power to grant just and equitable
relief in terms of section 172 of the Constitution.
[14] In order to better understand the duty of the municipality to provide service
delivery, one has to consider the objects of the local government. Section 152 of
the Constitution states the objects of local government and requires municipalities
to strive to achieve these objects.3
[15] Section 153(a) provides that a municipality must ‘structure and manage its
administration and budgeting and planning processes to give priority to the basic
needs of the community, and to promote the social and economic development of
the community’. Section 156 authorises municipalities to carry out their functions.4
[16] These constitutional provisions must be considered with reference to the
functions and responsibilities of the municipality set out in the local government
3 Section 152 provides:
“(1) The objects of local government are-
(a) to provide democratic and accountable government for local communities;
(b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in the matters of local
government.
(2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in
subsection (1).”
4 The relevant subsections provides:
“(1) A municipality has executive authority in respect of, and has the right to administer-
(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5;
and
(b) any other matter assigned to it by national or provincial legislation.
(5) A municipality has the right to exercise any power concerning a matter reasonably necessary for,
or incidental to, the effective performance of its functions.”
legislation. The Municipal Systems Act defines ‘basic municipal services’ as a
“municipal service that is necessary to ensure an acceptable and reasonable quality
of life and, if not provided, would endanger public health or safety or the
environment”. Section 4 of the Municipal Systems Act provides for the rights and
duties of the municipal councils.5
[17] Section 8 (2) gives a higher bar on the duty of the municipality to the extent
that: “ a municipality has the right to do anything reasonable and necessary for, or
incidental to, the effective performance of its functions and exercise of its powers.”
5 Section 4 provides:
“(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
authorized 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) 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 provide; and
(ii) the available options for service delivery;
(d) give members of the local community equitable access to the municipal services to
which they are entitled;
(e) promote and undertake development in the municipality;
(f) contribute, together with other organs of state, to the progressive realization of the
(f) contribute, together with other organs of state, to the progressive realization of the
fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution.
Section 11 provides a number of means for the municipality’s exercise of
legislative and executive authority.6
[18] Municipalities are legally obliged to ensure the adequate provision of basic
services. Communities rely on municipalities to deliver these services and to
provide amenities to ensure a good quality of life and human wellbeing. In Joseph
v City of Johannesburg, the Constitutional Court made the following remarks
relating to the importance of the municipalities providing basic municipal services:
“the provision of basic municipal services is cardinal function, if not the most important
function, of every municipal government. The central mandate of local government is to
develop service delivery capacity in order to meet the basic needs of the inhabitants of
South Africa, irrespective of whether or not they have the contractual relationship with
the service provider”7
[19] Same sentiments were echoed in Featherbrooke Home Owners Association v
Mogale City Local Municipality, unreported judgment8:
6 These include:
“(a) developing and adopting policies, plans, strategies and programmes, including setting targets for
delivery;
(b) promoting and undertaking development
(c) implementing applicable national and provincial legislation and its by-laws
(d) preparing, approving and implementing its budgets
(e) doing anything else within its legislative and executive competence.”
7 Joseph v City of Johannesburg 2010 4 SA 55 (CC) para 34
8 JG 25-01-2021 case no: 1129/2020
“The duty to provide basic municipal services is based on several legislative provisions
that mandate the municipalities to provide basic services and to protect community’s
safety and well- being”.
[20] It is a matter of fact that, after thirty years of democracy, many communities
are faced with challenges of service delivery, with little or no access to basic
human needs like access to roads and health care, amongst others. The scars of the
spatial apartheid era, which still exists, are a contributing factor to poor or no
service delivery.9
[21] It is apposite for me to have regard also to the following provisions of the
Municipal Systems Act: Section 73 of the Municipal Systems Act mandates a
Municipality to give effect to the provisions of the Constitution as follows;
“(a) give priority to the basic needs of the local community;
(b) promote the development of local government;
(c) ensure that all members of the local community have access to at least the
minimum level of basic services”
]22] Notably, the Municipality has not raised financial challenges as the reason of
it’s inability to provide the applicants with access to a road or a paved road;
instead, it has raised other issues which I will deal with hereunder.
9 Mkontwana v Nelson Mandela Metropolitan and Another 2005 (2) BCLR 150 (CC) para 105.
[23] There is a dispute of fact on the issue of whether the road is dilapidated as
alleged by the applicants. The applicants allege that it is, whereas the Municipality
avers that it is not. Both parties advance their averments by photo evidence, and
the Municipality accepts that the complaint about the condition of the road was
received through Councillor Qunta, who appears to have been a ward councillor of
the applicants. However, the road was maintained in 2024. That was before this
application was instituted. The applicants admit the maintenance of the road in
2024; however, due to recent floods and floods that occurred soon after the
maintenance, the road was badly damaged to the dilapidated state it is currently in.
[24] This dispute is not factual, for it can be resolved on paper. The general rule
is that a final relief in motion proceedings may only be granted if those facts as
stated by the respondent, together with those facts as stated by the applicant in the
founding affidavit are admitted by the respondent, justify the granting of the
application, unless it can be said that the denial by the respondent of the facts by
the applicant is not such to raise a real, genuine or bona fide dispute of fact.10
[25] In this case, I am satisfied that there is no real or genuine dispute of facts not
to be resolved on the affidavits. I am satisfied that the applicants have made a case
to say the road is dilapidated as they allege.
10 Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1964 (3) SA 623 (A) AT 634 E-635 A-C
[26] The Constitutional provisions and the local Government legislative
frameworks cited above provide the Municipality's duty and obligations to provide
the basic services to the community it serves. I find that the provision of access
road that the applicants seek falls within the basic services the Municipality is
legally and constitutionally bound to provide to the applicants.
[27] The question of whether the Municipality has breached its constitutional
obligation is answered by evidence from the party’s papers.
[28] During the hearing of this matter, Mr Noah, for the Municipality, accepted
the duty of the Municipality to provide an access road to the applicants. However,
the breach to do so is denied by the Municipality. The applicants have attached the
photographs of the dilapidated road as they allege. This point is not disputed by the
Municipality; however, it raised a fault that has been repaired. The Municipality
replied that due to recent flooding, the road has been damaged again. The
applicants state that they seek a better-maintained road with a better surface; again,
they have attached photographs of a dilapidated road in their reply affidavit.
[29] I am mindful that in application proceedings, affidavits constitute both
evidence and pleadings if they were trial proceedings 11. The photographs
demonstrate the dilapidated state and surface of the road. The evidence in the
11 Fine and Country South Africa (Pty) Ltd v Tradelink Properties (Pty) Ltd (2024) ZA GPJHC 586 (21 June 2024),
para 25, 27
affidavits establishes a fact that the access road concerned is indeed dilapidated. It
goes without saying that the Municipality has breached its constitutional obligation
to provide the applicants with a better, well-surfaced, and maintained access road.
[30] Our courts have consistently emphasised the need for organs of state (such
as the municipality herein) to be exemplary in the manner in which they comply
with their constitutional obligations. In Merafong12 , for instance, the
Constitutional Court held that a municipality must act as a ‘good constitutional
citizen’ and its conduct should be in compliance with the Constitution. A similar
observation was made by the Constitutional Court in Lesapo,13 where it held that
an organ of state should be exemplary in its compliance with the fundamental
constitutional principle. Respect for the rule of law is crucial for a defensible and
sustainable democracy. In Kirkland14, the Constitutional Court (per Cameron J)
made the following observation:
‘To demand this of government is not to stymie it by forcing upon it a senseless
formality. It is to insist on due process, from which there is no reason to exempt
government. On the contrary, there is a higher duty on the state to respect the law, to
fulfil procedural requirements and to tread respectfully when dealing with rights.
12 Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35; 2017(2) BCLR 182 (CC)
paras 60 and 61
13 Lesapo v North West Agricultural Band and another [1999] ZACC 16; 1999 (12) BCLR 1420 (CC0 para 17.
14 MEC for Health Eastern Cape and Another v Kirkland Investments (Pty) Ltd trading as Eye and Lazer Institute
[2014] ZACC 6; 2014 (3) 481 (CC)
Government is not an indigent or bewildered litigant, adrift on a sea litigious uncertainty,
to whom the courts must extent a procedure -circumventing lifeline. It is the
Constitution’s primary agent. It must do right, and it must do it properly’. (Footnote
omitted.)
[31] I disagree with the Municipality's proposition that the grant of the orders
sought will constitute a breach of the separation of powers.
[32] The Municipality has challenged the locus standi of the applicants. It argues
that the applicants lack the requisite locus standi to institute these proceedings. The
applicants have in their founding papers attached the resolution of the community
meeting as an authority to the institution of these proceedings; the deponent to the
founding affidavit is the traditional leader and headman of the locality. The other
community members who are applicants have signed the confirmatory affidavit.
The applicants have alleged that they act in terms of section 38 (a) and (d) of the
Constitution.
[33] The Constitutional Court has given guidance in this regard. In Lawyers for
Human Rights v Minister of Home Affairs and Others 15. The court dealt with what
needs to be shown in order to establish whether a person or any entity is acting in
the public interest.
15 2004 (4) SA 125, 2004 (7) BCLR 775 (EC) at paras 14-16.
[34] The Court referred to the judgment by O’ Regan J in Ferreira v Lenin NO,
Vryenhoek v Powell NO16, where he said:-
“This Court will be circumspect in affording applicants’ standing by way of Section 7 (4)
(b) (v) and will require an Applicant to show he or she is genuinely acting in public
interest. Factors relevant to determining whether a person is genuinely acting in public
interest will include considerations such as: whether there is another reasonable and
effective manner in which challenge can be brought, whether there is another reasonable
and effective manner in which challenge can be brought, the nature of the relief sought,
the extent to which it is of general and prospective application, and the range of persons
or groups who may be directly or indirectly affected by an order made by the Court and
the opportunity that those persons or groups have had to present evidence and argument
to the court. These factors will need to be reconsidered in the light of the facts and
circumstances of each case”.
[35] The Court also said: -
“(A) distinction must however be made between the subject position of the person or
organization claiming to act in the public interest on one hand, and whether, it is,
objectively speaking, in the public interest for the particular proceedings to be
brought….”
16 1995 ZACC 13, 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 CC.
[36] In this matter, having considered the locus standi of applicants, and the
context in which it is pleaded, objectively considered, the applicants have made a
case for their locus standi to bring these proceedings.
[37] The applicants have a fundamental duty to hold the Municipality
accountable for service delivery. The applicants are empowered by the Bill of
Rights to demand equitable and accessible public services, which are essential for
the protection of socio-economic rights.
[38] The Municipality has argued that the applicants should not have based their
application on the constitution, whereas there is applicable local government
legislation to challenge their Municipality. I disagree with the Municipality on this
point. Quite clearly from the papers, the applicants have relied on a number of
provisions from the Municipal Systems Act to support their application. Further to
that, this court should be slow to allow procedural issues to prevent it from looking
into a challenge to the lawfulness of a public power. It does so to uphold the rule
of law17.
[39] Mr Nkele, who appeared for the applicants, asked this court to grant just and
equitable relief as empowered by Section 172 of the Constitution. In the South
African Broadcasting Corporation, the Constitutional Court described the
17 Van Wyk v Unitas Hospital [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477G
provisions as an important one, pointing out that the only qualification on the
exercise of public power contained in Section 173 was that the court must take into
account the interests of justice18.
[40] Judicial support for the applicant's contentions for this type of relief is to be
found in Fose v Minister of Safety and Security, where the Constitutional Court
held19:
‘….I have no doubt that this Court has a particular duty to ensure that, within its bounds
in it. In our context an appropriate remedy must mean an effective remedy, for without
effective remedies for breach, the values underlying and the right entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly in a country where so
few have the means to enforce their rights through the courts, it is essential that on those
occasions when the legal process does establish that an infringement of an entrenched
right has occurred, it be effectively vindicated. The courts have a particular responsibility
in this regard and are obliged to “forge new tools” and shape innovative remedies, if
needs be, to achieve this goal.’
[41] The Constitutional Court also stated in Treatment Action Campaign that:
‘South African Courts have a wide range of powers at their disposal to ensure that the
Constitution is upheld. These include mandatory and structural interdicts. How they
18 South African Broadcasting Corporation Ltd v National Director of Public Prosecutions [2006] ZACC 15, 2007
(1) SA 523 para 72.
19 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)
should exercise those powers depends on the circumstances of each particular case. Here,
due regard must be paid to the rules of the Legislature and the Executive in a democracy.
What must be made clear, however, is that when it is appropriate to do so, Courts may –
and, if need be, must – use their wide powers to make orders that effect policy as well as
legislation20.
[42] In conclusion, having considered the conspectus of issues involved in this
matter, and the evidence from the party’s papers, I am satisfied that this application
should succeed. I see no reason to depart from the normal principle that the costs
follow the suit.
Order
[43] In the result, I make the following order:-
1. The second respondent is ordered to:-
1.1 Repair and do whatever may be necessary to restore to a good
and functioning condition the Gxaka -Gxaka access road from
where it joins the Fort Malan main road, Willowvale;
1.2 Commence with steps in compliance with the order in
paragraph 1.1 above within 30 calendar days from the date of
20 2002 (5) SA 721 (CC) para 113.
this order and fully comply with the order in paragraph 1.1
within 180 days from the date of this order.
1.3 In the event the second respondent fails to comply with any of
the time periods mentioned in paragraph 1.2 above, the 1 st
respondent is ordered to.
2. Report to this court and set out fully the steps taken to procure
compliance with the order in paragraph 1.1 above and on any
extended time period required by the relevant respondent within
which to comply with the order in paragraph 1 above;
3. The applicants are granted leave to, on the same papers, supplemented
as may be necessary, approach this court if the first respondent fails in
any manner whatsoever to comply with the orders in paragraphs 1.1 to
2 above;
4. The second respondent is ordered to pay the costs of this application
on scale “A”.
M MHAMBI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicants : Mr Nkele
Instructed by : T.A. Nkele and Sons
Mthatha
Counsel for the Respondents : Mr Noah
Instructed by : T. Noah and Sons
Mthatha
Heard on : 16 April 2026
Judgment Delivered on : 26 May 2026