Abaqulusi Local Municipality and Another v Premier of the Province of KwaZulu-Natal and Others (3003/2022P) [2023] ZAKZPHC 97 (15 September 2023)

Abaqulusi Local Municipality and Another v Premier of the Province of KwaZulu-Natal and Others (3003/2022P) [2023] ZAKZPHC 97 (15 September 2023)

The court found that the provincial intervention in the municipality had lapsed on 31 October 2021, with no evidence of extension or retention communicated before that date. The ministerial representative had vacated office and the province had no presence in the municipality after 31 October 2021. The decision to retain the intervention, conveyed in the letter dated 2 February 2022, was not supported by objective facts or proper assessment of the municipality's current status. The province's reliance on general directives and circulars was insufficient and amounted to an unconstitutional, unlawful, and irrational exercise of power. The impugned decision was therefore declared...

Citation
[2023] ZAKZPHC 97
Parties
Applicant: Abaqulusi Local Municipality; Applicant: The Speaker, Abaqulusi Local Municipality; Respondent: Premier of the Province of KwaZulu-Natal; Respondent: Member of the Executive Committee: Co-operative Governance and Traditional Affairs, KwaZulu-Natal; Respondent: Provincial Executive Council; Respondent: Minister of Co-operative Governance and Traditional Affairs
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 September 2023
Case Number
3003/2022P
Procedural Posture
Review Application / Final Order After Hearing on Merits
Outcome
Application for review granted; the decision to retain intervention declared unconstitutional and invalid; costs awarded to applicants.
Judges
R Singh
Legal Topics
Provincial Intervention, Principle of Legality, Municipal Autonomy, Section 139 Intervention, Review of Executive Action
Constitutional Law Administrative Law Provincial Intervention Principle of Legality Municipal Autonomy Section 139 Intervention Review of Executive Action

Case Brief

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Parties

Abaqulusi Local Municipality

Applicant

The Speaker, Abaqulusi Local Municipality

Applicant

Premier of the Province of KwaZulu-Natal

Respondent

Member of the Executive Committee: Co-operative Governance and Traditional Affairs, KwaZulu-Natal

Respondent

Provincial Executive Council

Respondent

Minister of Co-operative Governance and Traditional Affairs

Respondent

Procedural Posture

Review Application / Final Order After Hearing on Merits

Legal Issues

  1. 1 Whether the decision to retain provincial intervention in the municipality after 31 October 2021 was unconstitutional and invalid.
  2. 2 Whether the declaration of invalidity should be suspended to allow the intervention to continue.
  3. 3 Who should bear the costs of the application for review.

Ratio Decidendi

The court found that the provincial intervention in the municipality had lapsed on 31 October 2021, with no evidence of extension or retention communicated before that date. The ministerial representative had vacated office and the province had no presence in the municipality after 31 October 2021. The decision to retain the intervention, conveyed in the letter dated 2 February 2022, was not supported by objective facts or proper assessment of the municipality's current status. The province's reliance on general directives and circulars was insufficient and amounted to an unconstitutional, unlawful, and irrational exercise of power. The impugned decision was therefore declared...

Court Disposition

Application for review granted; the decision to retain intervention declared unconstitutional and invalid; costs awarded to applicants.

Orders

  • The decision by the third respondent taken on 26 January 2022 and conveyed in the second respondent’s letter dated 2 February 2022 to retain the powers of the second respondent in terms of section 139(1)(b) of the Constitution is declared unconstitutional and invalid and is set aside.
  • The letter dated 2 February 2022, constituting notice given by the second respondent to the applicants, is reviewed and set aside.