Brief Summary

Constitutional Law — Provincial intervention in local government — Ngaka Modiri Molema District Municipality challenged the dissolution of its council by the North West Provincial Executive, seeking a temporary interdict against the administrator's interference and a review of the dissolution decision. The High Court dismissed the interdict application, finding no irreparable harm to the Municipality or its councillors, and emphasizing the urgency lay in ensuring basic service delivery to the community rather than restoring the council. The Constitutional Court upheld the High Court's decision, denying direct access and leave to appeal, affirming that the Municipality's failure to provide services justified provincial intervention and that the interests of the affected communities were paramount.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application in the Constitutional Court for leave to appeal against the refusal of interim interdictory relief by the North West High Court, Mahikeng, together with an application for direct access so that the underlying review of a provincial intervention could be determined by the Constitutional Court in the first instance.

The applicant was the Ngaka Modiri Molema District Municipality. The principal respondents were the Chairperson of the North West Provincial Executive Committee, the Premier of the North West Province, the MEC for Local Government and Human Settlements (North West), the Minister of Cooperative Governance and Traditional Affairs, the Chairperson of the National Council of Provinces, the Speaker of the North West Provincial Legislature, the appointed administrator (Mr Khulu Nair N.O.), and the Independent Electoral Commission.

The procedural history was that the North West Provincial Executive Council purportedly acted under section 139(1)(c) of the Constitution to dissolve the Municipal Council and appoint an administrator. The Municipality then approached the High Court in two parts: Part A sought a temporary interdict and suspension of the dissolution decision pending determination of Part B, which sought the review and setting aside of the dissolution decision. The High Court dismissed the interim interdict application, while the review remained pending. The Municipality then sought (a) a direct appeal to the Constitutional Court against the refusal of interim relief, and (b) direct access for the review itself.

The general subject matter concerned the constitutional and statutory framework for provincial intervention in local government, the standards for interim interdictory relief in constitutional litigation, and the urgency said to arise from alleged disruption to basic municipal services (including water and sanitation) in the Municipality’s area.

2. Material Facts

It was common cause that on 3 September 2014 the North West Provincial Executive Council purported to dissolve the Municipality in terms of section 139(1)(c) of the Constitution and appointed Mr Nair as administrator.

The Municipality’s application in the High Court sought, on an interim basis, to prevent the administrator from “interfering” in the Municipality’s affairs and to suspend the dissolution decision pending a review. The Municipality’s central complaint (as recorded in the High Court judgment and reflected in the Constitutional Court’s summary) was that, as a municipality whose councillors had been elected, it was entitled to remain in office and not be replaced by an administrator, and that the dissolution decision had “infuriated” certain officials whose resistance allegedly caused instability and prejudiced municipal functioning.

The Municipality alleged that the intervention had a prejudicial impact on municipal operations and, more importantly, on the community, resulting in a failure to provide water services to certain communities. It contended that in early October water and sanitation services came to a standstill, and that staff providing emergency, water, and sanitation services were locked out of municipal premises, to the detriment of service delivery.

After the Constitutional Court issued directions calling for affidavits on whether there had been cessation or interruption of basic municipal services and related questions, the parties’ responses showed agreement that there had been widespread and continuing disruption of basic services to people and communities in the municipal area.

The Municipality attributed the service delivery breakdown in part to uncertainty about who was lawfully in charge, and described community unrest and damage to infrastructure associated with non-provision of services. The administrator stated that some communities had lacked water for years despite funding, referred to additional quality and sanitation problems, and explained that an emergency plan had been implemented and that virtually all affected areas had been reconnected, contributing to relative calm in protests. The administrator also identified resistance by some municipal employees, the need for disciplinary steps, and that the Municipal Council had resolved to resist implementation of the intervention, with employees resisting taking instructions from the administrator.

The Minister largely confirmed the administrator’s account as to the basis for intervention, the disruption that occurred, and steps towards restoring normality, while underscoring the administrator’s authority in restoring basic services.

3. Legal Issues

The central legal questions were whether it was in the interests of justice for the Constitutional Court to grant leave to appeal against the High Court’s refusal of a temporary interdict, and whether the Court should grant direct access for the underlying review of the dissolution decision under section 167(6)(a) of the Constitution.

These questions primarily concerned the application of legal standards to facts, including the evaluation of urgency, irreparable harm, and the balance of convenience in interim interdict proceedings, as well as the Constitutional Court’s discretionary assessment of whether direct appeal and direct access serve the interests of justice.

A further issue, arising from the Court’s own directions, concerned the practical and constitutional implications of alleged interruptions in basic municipal services, including water and sanitation, and whether any further order was warranted to secure service delivery while the review remained pending.

4. Court’s Reasoning

The Court located the dispute within the constitutional architecture governing local government and provincial oversight. It noted that municipalities are the primary interface of government with communities and that, where a municipality cannot or does not fulfil an executive obligation, section 139(1) permits provincial intervention, including dissolution and appointment of an administrator in exceptional circumstances.

On the interim relief and appeal, the Court emphasised that the Municipality sought to justify direct appeal and direct access on the basis of urgency, but the Court characterised the relevant urgency differently. In the Court’s assessment, urgency lay in ensuring the immediate provision of basic services (sanitation, water, and other services) to affected communities, rather than in restoring municipal councillors to office or protecting the institutional position of the Municipality pending the review.

A key difficulty identified by the Court was that the persons who would suffer the most acute prejudice from service disruption—the residents and communities—were not parties to the litigation. The Court observed that the Municipality had been dissolved because of an alleged failure to fulfil executive obligations to those very residents. On this footing, the Court held that the High Court could not be faulted for concluding that the balance of convenience did not favour an order that would have the effect of continuing, or risking continuation of, a situation alleged to involve dire service-delivery consequences.

In considering the interim interdict requirements and the interests-of-justice enquiry for leave to appeal, the Court endorsed the High Court’s reliance on National Treasury and Others v Opposition to Urban Trolling Alliance and Others. It highlighted that the High Court found the Municipality (as distinct from individual councillors) suffered no harm, let alone irreparable harm, and that the allegation of councillors’ loss of salary was not a sufficient basis to establish irreparable harm. The Court further reasoned that neither the Municipality nor the councillors faced an urgency affecting their interests because, if the review ultimately succeeded, they could be reinstated.

For these reasons, aligned with the interests-of-justice considerations referenced in OUTA, the Court concluded that leave to appeal against the refusal of the interim interdict should be refused.

The Court applied similar reasoning to the request for direct access on the review. It held that the urgency asserted did not relate to the Municipality’s interests in a manner warranting the Constitutional Court’s immediate intervention, and that the section 139 dispute was one that should ordinarily “run its course” in the High Court. The Court therefore found direct access not to be in the interests of justice.

At the same time, the Court acknowledged it could not ignore the plight of residents affected by the disruption of basic services. It referred to its broad just and equitable remedial jurisdiction, which is not necessarily dependent on a finding of constitutional invalidity. It reiterated that the obligation to provide basic municipal services is sourced in the Constitution and legislation, and relied on Joseph and Others v City of Johannesburg and Others for the proposition that sections 152 and 153 of the Constitution, read with sections 4(2)(f) and 73 of the Local Government: Municipal Systems Act 32 of 2000, impose an obligation on municipalities to provide basic services to inhabitants irrespective of contractual relationships. It also referred to section 7(2) of the Constitution, and noted that removal of access to water, sanitation, electricity, and emergency services due to a management dispute may implicate residents’ fundamental rights, including the right of access to sufficient water in section 27(1).

After receiving the directed affidavits, the Court accepted that there had been widespread disruption, but it considered the practical effect of dismissing the leave-to-appeal application. The Court reasoned that dismissal meant that, pending the finalisation of the review, the lawfulness of the administrator’s intervention in restoring services was “beyond question” for present purposes, thereby strengthening the administrator’s authority to act and making any further order from the Constitutional Court superfluous. The Court indicated that if further interference occurred, the administrator could seek appropriate relief in the High Court, and similarly if there were complaints about alleged failure by the administrator to perform responsibilities.

On costs, the Court exercised a value judgment based on the consequences for residents, holding that an adverse costs order against the Municipality would place an additional financial burden on residents, and therefore made no costs order.

5. Outcome and Relief

The Constitutional Court granted the Minister’s application for condonation for the late filing of his affidavit.

The Court dismissed the application for leave to appeal against the High Court’s refusal of the temporary interdict.

The Court also dismissed the application for direct access for the review to be heard by the Constitutional Court.

The Court made no order as to costs.

Cases Cited

National Treasury and Others v Opposition to Urban Trolling Alliance and Others [2012] ZACC 18; 2012 (6) SA 223; 2012 (11) BCLR 1148 (CC).

Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another [2006] ZACC 5; 2006 (6) SA 103 (CC); 2006 (6) BCLR 669 (CC).

Zondi v MEC for Traditional and Local Government Affairs and Others [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC).

Mkontwana v Nelson Mandela Metropolitan Municipality [2004] ZACC 9; 2005 (1) SA 530 (CC); 2005 (2) BCLR 150 (CC).

Satchwell v President of the Republic of South Africa and Another [2003] ZACC 2; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC).

Zulu and Others v eThekwini Municipality and Others [2014] ZACC 17; 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC).

Minister of Safety and Security v Van Der Merwe and Others [2011] ZACC 19; 2011 (5) SA 61 (CC); 2011 (9) BCLR 961 (CC).

Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC).

Joseph and Others v City of Johannesburg and Others [2009] ZACC 30; 2010 (4) SA 55; 2010 (3) BCLR 212 (CC).

Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC).

Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).

Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others [2009] ZACC 33; 2010 (4) BCLR 312 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 7(2), 27, 139(1)(c), 152, 153, 167(6)(a)).

Local Government: Municipal Systems Act 32 of 2000 (sections 4(2)(f) and 73).

Rules of Court Cited

No specific rules of court were cited by number in the judgment; the Court referred generally to section 167(6) of the Constitution, which contemplates that national legislation or the rules of the Constitutional Court must allow direct access when it is in the interests of justice and with leave of the Court.

Held

The Court held that the Municipality failed to demonstrate that it was in the interests of justice to grant leave to appeal against the High Court’s refusal of interim interdictory relief. The Court found that the alleged urgency and prejudice relied upon by the Municipality did not establish irreparable harm to the Municipality or councillors, and that the real urgency related to the provision of basic services to residents who were not parties to the proceedings.

The Court further held that it was not in the interests of justice to grant direct access for determination of the review of the section 139 dissolution decision, and that the review should proceed in the High Court in the ordinary course.

The Court also held that, given the effect of dismissing leave to appeal, the administrator’s authority to intervene and restore services stood pending the review, rendering any further Constitutional Court order at that stage unnecessary. Condonation for the Minister’s late filing was granted, and no costs order was made to avoid burdening residents.

LEGAL PRINCIPLES

The Court applied the principle that leave to appeal and direct access under section 167(6) depend on whether it is in the interests of justice, a discretionary enquiry that includes consideration of urgency, the nature of prejudice alleged, and whether ordinary processes should be followed.

In evaluating interim interdictory relief in constitutional litigation, the Court proceeded from the approach articulated in National Treasury and Others v Opposition to Urban Trolling Alliance and Others, including the requirements of irreparable harm and the balance of convenience, and the broader interests-of-justice considerations relevant to appellate interference with interim orders.

The judgment reaffirmed that obligations to provide basic municipal services arise from the objectives and duties of local government in sections 152 and 153 of the Constitution, reinforced by sections 4(2)(f) and 73 of the Municipal Systems Act 32 of 2000, and that municipalities owe these obligations to inhabitants irrespective of contractual relationships, consistent with Joseph and Others v City of Johannesburg and Others.

The Court underscored the constitutional duty in section 7(2) that the state must respect, protect, promote, and fulfil rights in the Bill of Rights, and recognised that the interruption of previously existing access to essentials such as water and sanitation due to governance disputes may implicate fundamental rights, including section 27(1).

The Court acknowledged its broad just and equitable remedial jurisdiction, but indicated that where the dismissal of interim relief applications clarifies the administrator’s authority pending a review and where practical steps are underway, additional orders may be unnecessary, with further disputes appropriately managed through the ordinary supervisory and remedial mechanisms of the High Court.

Ngaka Modiri Molema District Municipality v Chairperson, North West Provincial Executive Committee and Others (CCT 186/14) [2014] ZACC 31; 2015 (1) BCLR 72 (CC) (18 November 2014)