Kunogqala Local Residents and Others v Ab Xuma Local Municipality and Another (4146/2023) [2025] ZAECMHC 4 (6 February 2025)

Kunogqala Local Residents and Others v Ab Xuma Local Municipality and Another (4146/2023) [2025] ZAECMHC 4 (6 February 2025)

The court found that the respondents, as the local municipality, have a clear and unambiguous constitutional and statutory duty to construct and maintain municipal roads, including the Nogqala access road. The respondents' prolonged failure to act, despite repeated requests and consultations, constituted an ongoing violation of the Constitution, specifically the rights to access education, dignity, and basic municipal services. The respondents' reliance on budgetary constraints was rejected as insufficient justification for non-performance, given the constitutional imperative for diligent and timely fulfilment of obligations. The court held that the applicants are entitled to a mandatory...

Citation
[2025] ZAECMHC 4
Parties
Applicant: Kunogqala Local Residents; Applicant: Nowanathi Mxuxumba; Applicant: Nojikile Makhamba; Applicant: Asakhe Makhamba; Applicant: Ngcawe Ntsheqane; Applicant: Nobutnti Ntsheqane; Applicant: Lulamile Tsheqane; Respondent: AB Xuma Local Municipality; Respondent: The Municipal Manager, AB Xuma Local Municipality
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
6 February 2025
Case Number
4146/2023
Procedural Posture
Urgent Application / Final Judgment After Opposed Motion
Outcome
Application granted. Mandatory order issued compelling respondents to construct Nogqala Road and report on progress. Costs awarded against first respondent.
Judges
A.S Zono
Legal Topics
Municipal Service Delivery, Mandamus, Constitutional Obligations, Local Government Roads, Right to Dignity, Access to Education
Constitutional Law Administrative Law Land and Property Municipal Service Delivery Mandamus Constitutional Obligations Local Government Roads Right to Dignity +1 more

Case Brief

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Parties

Kunogqala Local Residents

Applicant

Nowanathi Mxuxumba

Applicant

Nojikile Makhamba

Applicant

Asakhe Makhamba

Applicant

Ngcawe Ntsheqane

Applicant

Nobutnti Ntsheqane

Applicant

Lulamile Tsheqane

Applicant

AB Xuma Local Municipality

Respondent

The Municipal Manager, AB Xuma Local Municipality

Respondent

Procedural Posture

Urgent Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the respondents have a constitutional and statutory duty to construct the Nogqala access road and complete the Nogqala bridge.
  2. 2 Whether the respondents' prolonged failure to construct the road and bridge constitutes a violation of constitutional rights, including access to education and dignity.
  3. 3 Whether budgetary constraints justify the municipality's failure to perform its legal obligations.

Ratio Decidendi

The court found that the respondents, as the local municipality, have a clear and unambiguous constitutional and statutory duty to construct and maintain municipal roads, including the Nogqala access road. The respondents' prolonged failure to act, despite repeated requests and consultations, constituted an ongoing violation of the Constitution, specifically the rights to access education, dignity, and basic municipal services. The respondents' reliance on budgetary constraints was rejected as insufficient justification for non-performance, given the constitutional imperative for diligent and timely fulfilment of obligations. The court held that the applicants are entitled to a mandatory...

Court Disposition

Application granted. Mandatory order issued compelling respondents to construct Nogqala Road and report on progress. Costs awarded against first respondent.

Orders

  • The respondents are directed to forthwith take all steps necessary to commence with and finish Nogqala Road that connects applicants’ village to the road to Ngcobo and Ugie Towns.
  • The respondents are directed to report to the applicants through their legal representatives within one hundred and eighty (180) days of the steps already taken, and steps to be taken within ninety (90) days after the lapse of one hundred and eighty (180) days.