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[2026] ZAGPJHC 739
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Economic Freedom Fighters v Speaker of Counsel Ekurhuleni and Others (2026/112542) [2026] ZAGPJHC 739 (28 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2026-112542
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
28
May 2026
In the matter between:
ECONOMIC
FREEDOM FIGHTERS
Applicant
and
THE
SPEAKER OF COUNCIL: EKURHULENI
METROPOLITAN
MUNICIPALITY
First Respondent
THE
EXECUTIVE MAYOR EKURHULENI
METROPOLITAN
MUNICIPALITY
Second Respondent
THE MUNICIPAL MANAGER:
EKURHULENI
METROPOLITAN
MUNICIPALITY
Third Respondent
CITY OF EKURHULENI
METROPOLITAN
MUNICIPALITY
Fourth Respondent
MEC
FOR FINANCE, GAUTENG PROVINCE
Fifth Respondent
MINISTER
OF
FINANCE
Sixth Respondent
MEC
FOR COOPERATIVE GOVERNMENT
AND
TRADITIONAL AFFAIRS, GAUTENG
Seventh Respondent
MINISTER
FOR COOPERATIVE GOVERNMENT
AND
TRADITIONAL
AFFAIRS
Eighth Respondent\
ALL
OTHER PARTIES REPRESENTED IN
COUNCIL,
EKURHULENI METROPOLITAN
MUNICIPALITY
Ninth Respondent
JUDGMENT
CRUTCHFIELD J
[1]
The applicant, Economic Freedom Fighters,
approached this court by way of urgency for interim interdictory
relief against the Speaker
of Council, Ekurhuleni Metropolitan
Municipality (“the Speaker”), interdicting the Speaker
from applying a voice vote
to the 2026/2027 annual budget vote,
scheduled for Thursday, 28 May 2028, at 10h00.
[2]
Furthermore, the applicant sought an order
inter alia
directing the Speaker to conduct the 2026/2027 annual budget vote
through a mechanism producing and individual count of counsellors
voting in support and in accordance with s30(2) of the Local
Government: Municipal Structures Act 117 of 1998 (‘the
Structures
Act’) and Section 169(3)(b) of the
Constitution.
[3]
The above-mentioned relief is claimed
pending the applicant’s review application issued on 13 May
2026 (“the review
application”), wherein the applicant
seeks a declaratory order that in terms of section 172(1)(a) of the
Constitution, that
the Standing Orders By Law 2023 of the Council is
constitutionally invalid to the extent that it fails to make specific
provision
for a voting mechanism capable of satisfying s30(2) of the
Structures Act and Section 106(3)(b) of the Constitution.
[4]
The first, second, third and fourth
respondents, respectively the Speaker of Council: Ekurhuleni
Metropolitan Municipality, the
Executive Mayor: Ekurhuleni
Metropolitan Municipality, the Municipal Manager: Ekurhuleni
Metropolitan Municipality and City of
Ekurhuleni Metropolitan
Municipality, oppose the application, both on the urgency and the
merits thereof.
[5]
The balance of the respondents,
respectively the fifth to ninth respondents, being the MEC for
Finance, Gauteng Province, the Minister
of Finance, the MEC for
Cooperative Governance and Traditional Affairs, Gauteng, the Minister
of Cooperative Governance and Traditional
Affairs and all other
parties represented in Council, Ekurhuleni Metropolitan Municipality,
do not participate in the application
before me.
[6]
I heard this matter during the course of
the day on Wednesday, 27 May 2026, the application having been
set down for hearing
in accordance with the practices of this urgent
court, on Tuesday, 26 May 2026.
[7]
The 2026/2027 annual budget (“the
budget”), is to be delivered and voted on, on Thursday 28 May
2026, commencing
at 10h00.
[8]
The Council agreed during December 2025
that the 2026/2027 annual budget meeting would take place on 28 May
2026.
[9]
On 10 March 2026, the Council adopted
the adjustment 2025/2026 budget. That was more than two months ago.
[10]
The applicant, in order to succeed in the
relief claimed in this application, must comply firstly with the
requirements of Rule
6(12) of the Rules of this Court. The applicant
must set out the concise facts that it alleges render the matter
urgent and demonstrate
that it will not be afforded substantial
redress at a hearing in due course.
[11]
On 13 May 2026, the applicant issued
the review application aforementioned, referred to colloquially in
these proceedings as
the “main application”. On 14 May
2026, the applicant sought an undertaking from the Speaker not later
than 15 May
2026, that the annual 2026/2027 budget vote
scheduled for 28 May 2026, be conducted by formal division.
[12]
No response was forthcoming from the
Speaker and the applicant, on Monday, 18 May 2026, issued the
application before me enrolled
for hearing on Tuesday, 26 May
2026.
[13]
In the discrete section headed “urgency”
in the applicant’s founding affidavit, the applicant relies on
the various
grounds in respect of the urgency of this application.
[14]
The applicant, in paragraph 76 of the
founding affidavit states
inter alia
that in the event that the annual budget is declared adopted, the
harm either occurs on 28 May 2026 or it does not occur at
all.
Accordingly, the applicant does not know how the budget vote will be
conducted on 28 May 2026.
[15]
In respect of the reasons proffered by the
applicant as to why it cannot obtain substantial redress at a hearing
in due course,
the applicant contends that the harm will be complete
before the matter van be heard on the ordinary motion roll given the
delay
in obtaining dates on the opposed motion roll in the face of
the budget vote being on 28 May 2026.
[16]
Furthermore, the applicant contends that
once the budget is declared adopted, immediate implementation
follows. Thus, the financial
commitments pursuant to the adoption of
the budget will be completed by the time that the matter comes before
an ordinary motion
court.
[17]
Furthermore, the applicant afforded the
first respondent an opportunity to resolve the matter without
litigation by requesting a
written undertaking. The letter of demand
was addressed to the first respondent within less than 24 hours of
the institution and
service of the main application with a specific
demand in respect of the 2026/2027 budget vote. No response was
forthcoming form
the first respondent and thus the applicant alleged
that the urgency of the application was a result of the so-called
“silence”
on the part of the first respondent in failing
to respond to the applicant’s request for an undertaking.
[18]
The applicant further alleged that the
review application was already instituted and delivered before the
urgent application allegedly
became necessary. Accordingly, the
urgency was the result of the first respondent’s silence and
not the result of any failure
on the part of the applicant.
[19]
The applicant alleged that the urgency of
the matter was not self-created in that the applicant, on 13 March
2026, three days prior
to the alleged unlawful adoption of the
2025/2026 adjustment budget, gave notice of the alleged
constitutional breach and procedural
irregularities involved in the
voting procedure in respect thereof.
[20]
The
applicant relied on the decision in
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granites (Pty)
Ltd & Others,
[1]
for
its contention that the urgency of the application was not
“self-created” insofar as the delay was caused or at
least contributed to by “attempts to settle the matter or
collect more facts with regard thereto”.
[21]
The
applicant referred further to
Grieve
v Denel (Pty) Ltd,
[2]
to the effect that the applicant identified the legal basis of his
challenge through research while preparing for a disciplinary
hearing.
[22]
The applicant contended that it was unaware
initially of the alleged constitutional invalidity of the Standing
Orders By Laws (“the
standing orders”), of the Council
and only realised as much whilst preparing the review application.
The applicant issued
that review application on 13 May 2026,
some two weeks prior to the date of the 2026/2027 budget vote.
[23]
The applicant itself referred to certain
dates that it alleges are significant in assessing the alleged
urgency of the application.
The first was 10 March 2026, on
which date the applicant alleged the harm crystallised. The applicant
contended that prior
to 10 March 2026, there was no concrete
evidence that a voice vote would be applied to the 2026/2027 budget
vote decision.
Whilst the applicant knew as from during December 2025
that the 2026/2027 budget vote would be held on 28 May 2026, it
was
only on 10 March 2026, the date upon which the Council
adopted or passed the 2025/2026 adjustment budget, that the method of
conducting the vote in respect of the 2026/2027 budget vote, became
apparent.
[24]
10 March 2026, it has to be said, was
some two months prior to 13 May 2026. The applicant issued the review
application on
13 May 2026. It is somewhat surprising that the
applicant required a period as long as approximately two months, from
10 March
to 13 May 2026, to consult, research and issue the review
application pursuant to which the alleged constitutional invalidity
of
the standing orders became apparent.
[25]
The issue of the review application on
13 May 2026, does not justify the delay in issuing this urgent
application, on 18 May
2026 prior to the budget vote on 28 May
2026.
[26]
The applicant had more than two months in
which to take all such steps as it contends were necessary or
required to perform the
appropriate research and conduct the
necessary preparation in respect of the review application and also
this urgent application
in respect of the 2026/2027 budget vote. The
applicant knew from December 2025 that the budget vote would be
conducted on 28 May
2026. It knew from 10 March 2026 that a
voice vote would likely be adopted in respect of the budget vote.
[27]
The delay of some two months in issuing an
application as serious and as far-reaching as this urgent
application, whilst affording
the respondents an impossibly
constrained period of time in which to oppose the application and for
this court to deal with the
matter and prepare a judgment, was simply
not adequately or cogently explained by the applicant.
[28]
Furthermore, this court, an extremely busy
court, cannot and should not be expected to deliver a cogent and
properly reasoned judgment
on issues as significant and serious as
those articulated in this application, on such short notice and in
such a limited period
of time. It matters not that the application
was heard on 27 May 2026 and not 26 May 2026. That was the
result of the
pressure of the roll. The fact is that this application
should never have been set down for hearing on Tuesday 26 May 2026,
in
circumstances where a full set of affidavits was not prepared or
yet ready on Thursday, 21 May 2026, with the date of the budget
vote on 28 May 2026.
[29]
The alleged attempts at settlement relied
upon by the applicant, refer to the letter addressed to the Speaker
on 14 May 2026.
The applicant sought an undertaking that the
budget vote be conducted by “formal division”. There is
no explanation
of what is intended by the applicant by the phrase
“formal division”. The Speaker did not respond. Some four
days thereafter,
on 18 May 2026, the applicant issued the urgent
set down for hearing, in terms of the practice applicable to this
court, on
Tuesday, 26 May 2026.
[30]
The applicant’s attempt to blame the
Speaker or the Council’s failure to respond to the
correspondence of 14 May
2026, for the delay in bringing this
application does not withstand scrutiny. The date of 14 May
2026, in the face of the
date of the budget vote being 28 May
2026, some two weeks thereafter, was already far too late.
[31]
The undertaking sought from the Speaker in
terms of the correspondence of 14 May 2026, is not justifiable
in terms of section 30(2)
of the Structures Act.
[32]
The demand made by the applicant of the
Speaker in the correspondence of 14 May 2026 was at variance
with the relief sought
by the applicant in the urgent application.
The relief sought in the correspondence differed from that clamed in
the urgent application.
Accordingly, I cannot find that the
demand made of the Speaker on 14 May 2026, or the Speaker’s
failure to reply played
any part in the delay in launching the
application.
[33]
This court’s practice directive dated
4 October 2021, applicable to the management of this urgent
court, requires that
a full set of papers, including a replying
affidavit, be placed before the court by the Thursday at noon prior
to the Tuesday on
which the matter is set down for hearing.
[34]
The applicant failed dismally to comply
with that directive. The applicant required the respondents to
deliver their notice of intention
to oppose the application, if any,
on Wednesday, 20 May 2026, two days after delivery of the
application, and for the respondents
to deliver their answering
affidavit on Friday, 22 May 2026, some three days thereafter.
The replying affidavit was to be
delivered on Monday, 25 May
2026. The applicant set the urgent application down for hearing on 26
May 2026 in circumstances
where the replying affidavit, the last
affidavit, was to be delivered on the previous day, Monday 25 May
2026. This resulted
not only in enormous pressure being placed
on this court, but also pressurising the respondents unduly and
unnecessarily, effectively
affording them an unjustifiably
constrained period in which to answer to the applicant’s case
in a cogent manner, and prepare
their appearance in this court. It
must be emphasised that the issues raised by this application are of
a serious nature. The applicant’s
launch of this application
and the time constraints imposed by the applicants on the respondents
do not allow for proper consideration
of those issues.
[35]
My office received the respondents’
heads of argument at approximately 21h30 on the evening of Tuesday,
26 May 2026,
after the date on which the matter was set down for
hearing. The prejudice to the respondents and to this court is not
justifiable
by the applicant.
[36]
Accordingly, the applicant’s delay
from 10 March 2026 to 18 May 2026, the date of upon which
this urgent application
was issued, is insufficiently explained by
the applicant. The applicant’s alleged consultation and
preparation with its attorneys
over a two month period in
respect of the review application, is not a cogent answer by the
applicant to the respondents’
averments that the application is
not urgent.
[37]
The applicant ought to have issued this
application shortly after 10 March 2026. The applicant’s
failure to issue this
application within a reasonable time after
10 March 2026 significantly undermines the applicant’s
contention that the
matter is urgent and ought to be enrolled and
considered accordingly.
[38]
The review application was launched after
the adoption on the 10 March 2026 of the adjustment budget. The
applicant waited
until the budget had been adopted and the harm
allegedly crystallised prior to bringing the review application.
However, the applicant
did not adopt the same procedure in respect of
the budget vote on 28 May 2026. The applicant’s urgent
application is based
on supposition, on what may or may not transpire
during the course of the budget vote on 28 May 2026.
[39]
It may transpire that the conduct of the
budget vote on 28 May 2026 is acceptable to the applicant, in which
case this entire application
will have been wasted. It is not
sufficient to base relief as sought by the applicant, on supposition
and inference. This court
operates on facts and thus there is no harm
to the applicant in waiting until the budget vote is conducted.
Thereafter, if the
facts give rise to an issue, the applicant can
approach a court accordingly, based on facts.
[40]
This urgent application does not have to be
heard this week and would better be heard after the vote takes place
on 28 May
2026, and the applicant is armed with facts and not
assumptions.
[41]
The applicant has remedies available to it
once the budget is passed, assuming that that does transpire on
28 May 2026. It
is then open to the applicant to approach a
court based on facts and to seek the appropriate relief, in the same
manner as the
applicant did in respect of the review application. The
applicant’s urgent application, at this stage, is based on
speculation
and assumption and is premature.
[42]
Thus, the applicant has substantial redress
available to it at a hearing in due course, if required, after the
vote on 28 May 2026,
as envisaged in rule 6(12)(b).
[43]
The
fact that this matter potentially deals with the constitutional
invalidity of the standing orders, does not in and of itself,
mean
that the application is urgent.
[3]
[44]
Furthermore, the standing orders provide
for internal remedies to be complied with by the applicant prior to
the application being
issued. The applicant’s stance that it is
not required to exhaust the internal remedies available to it
contained in the
standing orders, prior to the applicant approaching
this court, cannot be supported.
[45]
Rule 8 of the standing orders (“Rule
8”), provides
inter alia
that the council may, by resolution, dispense with or suspend a
provision of these rules for a specific period and purpose.
[46]
The provisions of Rule 8 provide inter
alia that the Council may by resolution dispense with or suspend a
provision of the
rules for a specific period and purpose.
[47]
Rule 8(4) of the standing orders
provides that a motion under the rule may be introduced without
notice and must indicate the
reason for and duration of the proposed
suspension. Rule 8(5) provides that the suspension of a
provision must be limited
in its operation to the particular purpose
and duration for which the suspension has been approved.
[48]
In terms of Rule 8, it was open to the
applicant to achieve the results sought in terms of this application.
Rule 8 provides that
a counsellor wishing to propose a resolution
suspending a provision of the rules must do so by introducing a
motion for the suspension
of the rule and following the procedure set
out in Rule 86.
[49]
Nothing stopped a Councillor of the
applicant from proposing a resolution suspending a provision of the
rules by introducing a motion
for such suspension in terms of the
procedures set out in Rule 8(5).
[50]
The provisions of Rule 8 were
available to the applicant and would in effect, upon an application
of the provisions thereof,
have allowed the applicant to achieve a
result having an equivalent purpose and outcome to the relief sought
by the applicant before
me.
[51]
Furthermore, Rule 6 of the standing
orders permits the Council
inter alia
to
amend, revoke or add a rule. Recourse to Rule 6 would also have
permitted the applicant to achieve a result substantially
similar to
the relief sought by the applicant in this urgent application.
[52]
These alternate remedies afford to the
applicant substantial redress in respect of the issues raised in this
application.
[53]
The
applicant’s failure to comply with the internal remedies
available to it impacts upon the alleged urgency of the application.
The court in
Itshegetseng
v African National Congress & Others
[4]
held that insofar as the applicant wrote to the Speaker but failed to
take up the procedure set out in terms of the internal remedies
relevant in that matter, that application was brought prematurely
“because the applicant has not invoked the internal processes
available to him. For that reason, too, the matter does not meet the
test of urgency”.
[5]
[54]
Upon
an application of
Itshegetseng
,
the application before me is similarly premature in that the
applicant failed to exhaust the available internal remedies available
to it, and did not advance cogent reasons for its failure to do so,
including that those internal remedies were unavailable, inadequate
or futile.
[6]
[55]
The applicant had an obligation to exhaust
the internal dispute resolution mechanisms available to it in terms
of the standing orders.
[56]
In the circumstances, the application is
not urgent as envisaged in terms of rule 6(12)(b) and stands to be
struck off the roll.
[57]
As regards the costs of the application,
the costs should follow the order on the merits. Both the applicant
and the respondents
used two counsel and costs on scale C are
appropriate given that the issues involved some complexity.
[58]
At approximately 21h11, on 27 May
2026, subsequent to this application being argued to completion
before me, the applicant
sent to my secretary by email a request to
introduce new evidence comprising a video recording of the Council’s
sitting of
10 March 2026. The video allegedly depicts the manner
in which the Voice Vote was conducted in respect of the adoption of
the 2025/2026 adjustment budget.
[59]
The letter or application to submit
additional evidence, is a further reason why this application is not
urgent and should not be
dealt with on the merits at this stage. Once
the budget vote has been conducted and the relevant facts collated,
the applicant,
in the event that it has reason to complain, can then
approach a court for the appropriate redress based on all the facts.
[60]
In the circumstances the application to
submit further evidence is denied.
[61]
In the circumstances, I grant the following
order:
1.
The application to submit further evidence
is denied.
2.
The application is struck off the roll with
costs, including the costs of two counsel where two counsel were
utilised, such costs
to be on scale C.
I hand down the judgment.
CRUTCHFIELD J
JUDGE OF THE HIGH
COURT
JOHANNESBURG
For the
Applicant:
Adv L Moela together with Adv K M Rammai
instructed by Thabela Inc Attorneys.
For
the First to Fourth Respondents:
Adv E N Sithole together with Adv Lifero instructed
by M B
Mabunda Inc.
Date
of the hearing:
27 May 2026.
Date of the
judgment:
28 May 2026.
[1]
East
Rock Trading 7 (Pty) Ltd & Another v Eagle Valley Granites (Pty)
Ltd & Others
(11/33767) [2011] ZAGPJHC 196 (“East Rock”).
[2]
Grieve
v Denel (Pty) Ltd
[2003]
4 BLLR 366
(LC) (“
Grieve
”)
at [7].
[3]
Volvo
Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose
Trading CC
(2023/067290) [2023] ZAGPJHC 846 (1 August 2023).
[4]
Itshegetseng
v African National Congress & Others
(2026/056424) [2026] ZAGPJHC 347 (30 March 2026).
[5]
Id
at
[8].
[6]
Itshegetseng
at [19].