IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1880/2025
Reportable YES
In the matter between:
EHESINI AND KUNOMYAYI LOCALITIES 1st Applicant
NOMTHA THWANE 2nd Applicant
NO-ANDILE GIGI 3rd Applicant
NCEDISWA JALISA 4th Applicant
THOZAMA JALISA 5th Applicant
CELISWA ZIDE 6th Applicant
DALIWONGA GIGI 7th Applicant
MABOLINA JALISA 8th Applicant
MALIZO JALISA 9th Appellant
and
DR. AB XUMA LOCAL MUNICIPALITY 1st Respondent
THE MUNICIPALITY MANAGER, DR
AB XUMA LOCAL MUNICIPALITY 2nd Respondent
JUDGMENT
CENGANI-MBAKAZA AJ
Introduction
[1] Before this court is an application for an order mandating the respondents
to repair, resurface and generally restore to good condition the Ehesini Access
Road, from its junction with MR00715 or near Elityeni Lomthwa to the
applicant’s community.
[2] The applicants further seek an order directing the respondents to
commence with the steps set out in paragraph 1 above within 90 days of the
date of this order, and to fully comply therewith within 180 days of the date of
this order.
[3] In addition, the applicants seek an order directing the respondents to file a
report with this court within the time periods set out above, setting out in full
the steps taken to secure compliance with paragraph 1, and further directing that
any request for an extended period , comply with paragraph 1 be made to this
court on notice to the applicant. That the respondents be ordered to pay costs of
this application.
[4] The respondents oppose the application and raise two points in limine.
The first is that the applicants have failed to exhaust internal remedies. The
second is that the applicants have failed to comply with s 29(1)(b) of the Local
Government :Municipal Systems Act 32 of 2000 (Municipal Systems Act).
[5] Furthermore, the respondents contend that addressing the needs of the
local communities is subject to the municipality’s operational and strategic
processes and must comply with s 33 of the Municipal Finance Management
Act, 2003 (MFMA).
The applicants’ case.
[6] In her capacity as the Headwoman of Ehesini and Kwa Nomyayi, within
the Upper Mnyolo Administrative Area, the second applicant avers that these
communities are rural areas inhabited by indigent and marginalised people.
[7] The communities, so it is averred, have limited amenities and are
compelled to access Ngcobo Town, the nearest centre for all government
services, via a grossly dilapidated access road which is an eyesore and
impassable in parts. Critically, the road has not been constructed since the dawn
of democracy.
[8] The Ehesini locality is situated near the Khovothi and Khovithana forests
adjacent to the Mnyobo River. During periods of rainfall, the valley collects
rainwater and deposits it into the Mnyolo River. This causes the soil to become
muddy and results in severe soil erosion.
[9] As a result of the erosion and mud, the road becomes slippery and
dangerous. This prevents the residents from accessing Ngcobo Town, which is
the nearest centre for government services, especially during the summer season
when heavy rainfall is prevalent. Due to the absence of any drainage system,
rainwater accumulates on the road surface, causing further damage and
accelerating deterioration.
[10] The applicants aver that they attempted to resolve this matter prior to
litigation. Complaints were made to various councillors. In particular,
Councillor Mzuku has personal knowledge of the condition of the road and the
difficulties experienced by the residents. He has on several occasions visited the
communities using the same road in its dilapidated state.
[11] Prior to instituting these proceedings, specifically on 16 January 2024, the
applicants held a community meeting and resolved to pursue legal action.
During or around January 2024, the applicants caused a statutory notice in terms
of s 3 of the Legal Proceedings Against Certain Organs of the State Act 40 of
2002 to be served on the respondents.
[12] On 02 February 2024, the respondents replied and requested that the
applicants should halt litigation as they were still investigating the issues raised.
The respondents undertook to revert to the applicants on or before 08 March
2024. That undertaking was not honoured.
[13] In their bundle, the applicants have filed photographs which depict the
dilapidated and dangerous state of the access road. Some confirmatory
affidavits further attest to the hardship suffered by residents, including the
inability to access health facilities, schools and to transport the sick due to the
grossly defective condition of the road.
The respondents’ case.
[14] In opposing the application, and in particular the material issues raised
therein, the respondents through Mr Muladzi Khathutshelo Lucky, the
municipal manager, aver that the applicants’ community falls within ward 20.
The respondents further contend that the roadshows were conducted between 20
October and 26 October. The respondents refer to the attached Integrated
Development Plan which details the priorities and community needs that were
raised by those present.
[15] The respondents contend that, despite the opportunity afforded to them,
the applicants neglected and/or failed to participate and present their needs. The
respondents further state that there is a backlog in service delivery. The total
road network under the jurisdiction of the respondent is 930.33 km in length,
consisting of 111.68 of surfaced roads and 818.65 km of gravel roads. The
respondents admit that the valley roads, both paved and unpaved, are not in
good condition and are in need of maintenance and upgrade.
[16] The respondents argue that they rely on budgets allocated by the National
Treasurer which, from time to time, are not sufficient to cater for the entire
Province of the Eastern Cape. The respondents further state that from time to
time they have to develop a strategy to ensure that the needs of communities for
roads are catered for.
[17] The respondents aver that since the institution of these proceedings, on
either 22 April or 24 May 2025, they have, through their Technical Services
Department, attended to the repair, fixing, re -surfacing, widening and
restoration of the road to a good condition.
[18] Given the budget limitations and costly nature of road maintenance, the
department engaged with municipalities to enable them to prioritise road
maintenance based on the unique circumstances of these respective
communities. One area that was identified as needing attention was the Sandile
Road. The respondents claim that the Integrated Developmental Plan for
Sandile Road was completed in December 2023.
[19] The respondents submit that these proceedings are now moot in that the
issues underlying the dispute have been resolved and are no longer justiciable.
The case no longer presents an existing or live prejudice or threats of prejudice
to the applicants, and there remain no live issues.
The applicants’ reply.
[20] In reply, the applicants state that the respondents’ reliance on s 29 of the
Municipal Systems Act is misplaced. Section 29 places an obligation on the
respondents to consult the local community in relation to the drafting of the
Integrated Development Plan (IDP). This never happened in this case.
[21] No invitation was ever extended to the applicants and their community to
participate in the drafting of the IDP. Had the respondents complied with their
statutory obligation to consult the community, the deplorable condition of the
access road in question would have been raised and prioritised in the IDP. The
applicants would not have been compelled to institute these proceedings.
The issues
[22] The issues for determination are:
22.1 Whether the respondents have breached their constitutional and
statutory duties in respect of maintaining the Ehesini Access Road.
22.2 Whether the respondents’ defences, namely, lack of consultation,
budgetary constraints, service delivery backlog, and mootness
justify that breach; and
22.3 What the appropriate remedy is, and whether this court has
jurisdiction to grant a structural interdict in the circumstances of
this case.
The parties’ legal submissions
[23] This court has carefully considered the comprehensive oral submissions
and the heads of argument filed by both parties. The applicants acknowledge the
steps taken by the respondents after the institution of these proceedings. Despite
this, they submit that the steps belatedly taken by the respondents, post -
litigation, in an attempt to comply with the relief sought are inadequate and
cannot excuse their earlier failure to discharge their constitutional obligations.
[24] The applicants’ counsel persists with the application contending that in
light of the factual matrix, and especially the common cause facts, the
respondents have dismally failed to discharge their legal and constitutional
service delivery obligations. They failed to demonstrate the legal, financial, and
administrative/operational measures taken to progressively realise the
applicants' rights, namely, to have a decent, properly paved access road.
[25] Counsel for the respondents, on the other hand, concedes that the road is
in need of maintenance. However, she denies that the respondents had been
supine. She avers that the work commenced on or about 24 May 2025, pursuant
to which the Technical Services Department undertook repairs, patching and
resurfacing of the sections of the road.
[26] Counsel contends that, owing to operational budgetary constraints and
prevailing financial limitations, outsourcing the work or undertaking extensive
intervention was not practical. She further argues that the relief sought by the
applicants- that the road be repaired, fixed, resurfaced and restored within 90
days is overly broad. It goes beyond routine maintenance and in effect seeks
rehabilitation or reconstruction, with attendant procurement processes and
substantial budgetary implications.
[27] According to the respondent’s counsel, the relief sought triggers statutory
prerequisites, including planning, the development of strategies, prioritisation
and alignment with available resources. She argued that s 15, in particular s 16
of the (MFMA) is peremptory, and this court is precluded from granting an
order compelling unlawful expenditure.
[28] Counsel further states that by virtue of the separation of powers, courts
lack the institutional competence to make primary policy decisions. This
includes decisions involving trade-offs between competing public needs and the
sequencing and prioritisation of public expenditure.
[29] Additionally, counsel submits that the primary policy decisions fall
within the terrain of the executive and legislative branches. She refers to two
cases, namely: Minister of Health and Others v Treatment Action Campaign
and Others (No.2 )(TAC)1 and City of Johannesburg Metropolitan Municipality
v Blue Moonlight Properties 39 (Pty)Ltd (Blue Moonlight Properties) 2, and
argues that they are distinguishable from the present case and should not be
1 2002 (5) SA 721 (CC).
2 2012 (2) SA 104 (CC).
applied. Counsel contends that in the present case, there is a clear dispute of fact
stemming from the feasibility of a 90 -day timetable, including the limited
budget. She proposes that an alternative remedy would be reporting on interim
maintenance and on steps taken to consider and process the Ehesini Access
Road through the next IDP and budget cycle.
Analysis
[30] On the respondent’s own admission that the Ehesini Access Road
requires maintenance, the points in limine of non -exhaustion of internal
remedies and failure to consult prior to litigation are unsustainable.
[31] The applicants aver that they were neither approached nor consulted. The
respondents’ contention that the applicants failed to co -operate in a consultation
process is accordingly without foundation. It is inconceivable that a community
in such desperate circumstances would refuse an invitation or even failed to
engage on an issue so central to its life.
[32] The converse is true: the applicants have been ignored despite their
urgent need. In any event, even if it were to be found that the applicants failed
to exhaust internal remedies, such failure is not absolute and does not bar this
court from considering the merits of the application.3
3 See Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC) at paras 38-39.
[33] The respondents’ obligations are set out in the Constitution4 and are given
concrete expression in the subordinate legislation. Section 152(1) provides that
the objects of the local government are inter alia: to ensure provision of
services to communities in a sustainable manner; and to promote social and
economic development.
[34] Section 7(2) of the Constitution imposes a duty on the state to respect,
protect, promote and fulfil the rights in the Bill of Rights. Section 27(1) of the
Constitution confers on everyone the right to have access to, inter alia, health
facilities and social security. In terms of s 27 (2) of the Constitution, the state
must take reasonable legislative measures, within its available resources, to
achieve the progressive realisation of this right. Section 237 further requires that
all constitutional obligations must be performed diligently and without delay.
[35] The relevant provision applicable in the Municipal Systems Act includes
s 4(2)(f), which obliges a municipality to give effect to the rights in the Bill of
Rights. This section provides that the council of the municipality has a right to
give members of the local municipality equitable access to the municipal
services to which they are entitled to.
[36] In terms of s 5(1) of the Municipal Systems Act, a community has a right
to have access to municipal services. Additionally, in terms of s 16 (1)(a) of the
Municipal Systems Act, the municipality must develop a culture of community
4 The Constitution of the Republic of South Africa, 1996 (the Constitution).
participation in the use and provision of municipal services. Furthermore, the
IDP must, in terms of s 26 of the Municipal Systems Act, set out its
development priorities and its operational strategies for service delivery. The
MFMA, on the other hand, permits emergency expenditure and adjustments of
budgets during the financial year.
[37] Reverting to the facts of this matter: it is common cause that a public
access road is a municipal infrastructure and municipal service. Without a
motorable road, Ehesini community cannot meaningfully exercise the right or
access to the services contemplated in s 152 of the Constitution. I agree with the
respondents’ counsel that these constitutional imperatives are given effect by
statute. I further acknowledge that the respondents have an obligation to act
within the framework of the Municipal Systems Act and the MFMA.
[38] Notwithstanding respondents’ counsel’s submissions in this regard, these
statutes operate within the Constitution. They regulate how funds are
appropriated and how services are planned. They do not suspend constitutional
obligations. Where there is tension, s 2 of the Constitution is clear: it is
supreme.
[39] The test for compliance with socio -economic rights is reasonableness. In
Government of the Republic of South Africa and Others v
Grootboom(Grootboom)5, the Constitutional Court (CC) set out the
5 2001 (1) SA 46 (CC) at paras 39-41, 44 and 66[paraphrased].
requirements for reasonableness in the context of socio -economic rights. At
paragraph 39, the CC held that a programme to realise such rights must be
comprehensive, coherent, adequately resourced and implemented with
reasonable speed for short, medium- and long-term needs.
[40] Despite the fact that the respondents acknowledge their constitutional and
statutory role in respect of the Ehesini Access Road, their defences are
contradictory and unsatisfactory. Firstly, it was submitted that it was impossible
to consult in relation to the Ehesini Access Road due to the community’s failure
to co -operate. Secondly, on either 22 April or 24 May 2025 the respondents
undertook the patching and resurfacing works on the very same road. These
works were carried out in the absence of the consultation that is now relied upon
as a bar to further action.
[41] Thirdly, the respondents rely on the budgetary constraints and the
MFMA, but no evidence was placed before the court by the municipal manager,
the Chief Financial Officer or any technical official to demonstrate how
compliance within 90 days is impossible. In the absence of such evidence, a
mere assertion cannot create a genuine dispute of fact. 6 Fourthly, regarding the
issue of backlog as stated in the respondents’ papers, a backlog in itself cannot
be regarded as a defence in the circumstances of this case. The question is not
6 See Plascon Evan-Evans Paints Ltd v Van Riebeeck Paints Ltd 1984 (3) SA 634E-F..
whether there are other needs. The question, in terms of Grootboom7, is whether
the measures adopted to address the backlog are reasonable, comprehensive,
coherent, and whether they pay attention to those in desperate need.
[42] The respondents have placed no evidence before this court of the nature
and extent of the alleged backlog. There is no satisfactory engineering report
nor IDP prioritisation matrix. The attached IDP does not allocate any budget to
the Ehesini Access Road. It does not set out any adequate time frame for
rehabilitation or maintenance. Moreover, there is no explanation why the
Ehesini Access Road was attended to on 22 April or 24 May 2025, if the
backlog is so severe as to preclude any action now. In my view, a bald assertion
of a backlog, without more, cannot justify years of inaction.
[43] It is further my view that the respondents’ approach fails the Grootboom8
test. Their approach is not comprehensive on the basis that the Ehesini
community has been excluded for years. It is not coherent because, when
resurfacing the road the respondents acted without consultation and then relied
on the failure of the applicants to participate in the consultation process as a
defence. Furthermore, it is not diligent because the years of inaction followed
by reactive maintenance only after litigation falls short of the standard required
by s 237 of the Constitution.
7 Fn 5 above.
8 Ibid.
[44] The belated works of 22 April or 24 May 2025 do not cure the breach.
Instead, they confirm that there is indeed a breach. It is clear that the
respondents are capable of acting, and that funds can be made available as they
did after the institution of these proceedings. I therefore conclude that the
respondents have failed to take reasonable measures within available resources
to achieve the progressive realisation of the applicants’ rights.
[45] I now deal with the question on whether the TAC as well as Blue
Moonlight Properties9 are distinguishable and should not be applied to the facts
of this case, as argued by the respondents’ counsel. I accept the submission,
more specifically in relation to the facts. Briefly, TAC concerned access to
antiretroviral medication; Blue Moonlight Properties, on the other hand,
concerned emergency housing in the form of eviction. The present matter
concerns access to municipal infrastructure in the form of a road.
[46] Notwithstanding the dissimilarities, the principle articulated in those
judgments is relevant in the present matter. Moreover, the respondents’ failure
to fully repair and resurface the Ehesini Access Road infringes s 27 of the
Constitution. This is because the Ehesini community does not have free access
to health care facilities and social security as a result of the impassable road. In
TAC10, the CC emphasised the importance of the principle of separation of
powers. However, stated that where the state fails to meet a constitutional
9 Ibid.
10 Fn 1 above at para 98-106 [paraphrased].
obligation, a court is not only entitled but obliged to grant appropriate relief.
The relief may include a structural order with time frames. It is clear from the
CC11 judgment such an order does not constitute an infringement of separation
of powers, instead, it gives effect to the Constitution.
[47] In Blue Moonlight Properties 12, the court confirmed that a municipality
cannot rely on budgetary and policy processes to avoid compliance with the
constitutional duties. Therefore, if anything, the present case calls for
intervention more readily than TAC and Blue Moonlight Properties . The latter
cases required the state to develop new policy and to allocate substantial new
resources. In the present instance, no new policy is required in that the
respondents accept that road maintenance falls within their mandate in terms of
s 152(1) of the Constitution and s 5(1) of the Municipal Systems Act.
Resultantly, the argument positing that TAC and Blue Moonlight Properties are
distinguishable to the extent that they do not support the relief sought is
rejected.
[48] Considering the TAC and Blue Moonlight Properties 13, the respondents’
assertion that the relief sought infringes the separation of powers is without
merit. In my view, a structural order with a timeframe does not dictate to the
11 Ibid.
12 Fn 2 above at paras 69-72.
13 Ibid.
executive how to budget. 14 It simply requires the executive to fulfil its
constitutional and statutory obligation. Notably, the alternative relief proposed
by the respondents to report on interim maintenance and to consider the road in
the next IDP cycle is not effective relief. It perpetuates delay contrary to s 237
of the Constitution. Moreover, it offers no tangible benefit to the applicants in
terms of the Constitution.
[49] Lastly, the submission that this matter is moot considering the works
done on 22 April or 24 May 2025 is without merit. It is well -established that a
matter is moot when there is no longer any practical effect that a judgment can
have.15 The converse is that even if a matter were moot, a court may still hear it
where it is in the interest of justice and there is continuing breach or a real
prospect of recurrence. 16 In this instance, the papers show that the works of 22
April or 24 May 2025 were patching and not a full repair or resurfacing. It is
common cause that the road has since deteriorated.
[50] More importantly, the respondents have given no undertaking that they
will continue to maintain the road. This fact, including the very fact that they
only acted after the launching of this application, demonstrates a real risk that
the breach will recur. Absent an order of this court, the Ehesini community will
14 See TAC fn 1 at para 100.
15 JT Publishing (Pty)Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) at para 15.
16 Fn 15 above, para 16.
be left at the mercy of ad hoc reactive patching only when the litigation is
threatened. Consequently, the application must succeed.
Order
[51] The following order is issued:
1. It is declared that the first and second respondents have breached
their obligations in terms of s 152(1) and s 27(1) read with s 237 of
the Constitution, and ss 4(2)(f) and 5(1) of the Municipal Systems
Act 32 of 2000 by failing to reasonably maintain, repair and
resurface the Ehesini Access Road.
2. The first and second respondents are directed to, within 90 days of
this order;
2.1 conduct a full assessment of the Ehesini Access Road.
2.2 adopt and implement a plan with budgetary allocation for the
rehabilitation and ongoing maintenance of the Ehesini
Access Road; and
2.3 file a report with this court and serve it on the applicant’s
attorneys setting out the assessment plan, budget and
timeframes referred to in 2.1 and 2.2 above.
3. The first and second respondents are further directed to ensure full
compliance with the plan referred to in paragraph 2.2 above,
including completion of all rehabilitation and maintenance works,
within 180 days of this order.
4. The first and second respondents are directed to file a further
report with this court and serve it on the applicant’s attorneys
within 200 days of this order confirming compliance with
paragraph 3 above.
5. The respondents shall pay costs of this application on Scale B as
contemplated under Rule 67A read with Rule 69 of the Uniform
Rules of Court, jointly and severally, the one paying the other to be
absolved.
______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicants : Adv Baceni
Instructed by : Nkele Attorneys
Mthatha
Counsel for the Respondents : Adv Da Silva SC with Adv Booysen
Instructed by : State Attorney
Mthatha
Heard on : 26 March 2026
Judgment Delivered on : 18 August 2026