Mafube Business Forum and Another v Mafube Local Municipality and Others (1969/2021) [2022] ZAFSHC 86 (28 April 2022)

Mafube Business Forum and Another v Mafube Local Municipality and Others (1969/2021) [2022] ZAFSHC 86 (28 April 2022)

The court found that the Mafube Local Municipality and associated respondents are in persistent breach of their constitutional and legislative obligations to provide basic services and meet financial commitments. The provincial executive's intervention under section 139(1)(b) failed to resolve the Municipality's crises, and the jurisdictional facts for mandatory provincial intervention under section 139(4) and (5) are present and have been for some time. However, the court held that national intervention under section 139(7) is only permissible after the province has implemented mandatory intervention and failed to exercise its powers adequately. The election of a new municipal council in...

Citation
[2022] ZAFSHC 86
Parties
Applicant: Mafube Business Forum; Applicant: AfriForum NPC; Respondent: Mafube Local Municipality; Respondent: The Municipal Manager: Mafube Local Municipality; Respondent: The Administrator: Mafube Local Municipality; Respondent: The Executive Mayor: Mafube Local Municipality; Respondent: The Municipal Council: Mafube Local Municipality; Respondent: The Premier of the Free State Province; Respondent: Executive Council for the Free State Province; Respondent: The MEC: Cooperative Governance and Traditional Affairs, Free State Province; Respondent: The MEC: Finance, Free State Province; Respondent: The MEC: Department of Economic Development, Tourism and Environmental Affairs, Free State Province; Respondent: The Minister of Cooperative Governance and Traditional Affairs; Respondent: The Minister of Finance; Respondent: The Minister of Human Settlements, Water & Sanitation; Respondent: The Minister of Environment, Forestry and Fisheries; Respondent: National Council of Provinces; Respondent: Fezile Dabi District Municipality; Respondent: The President of the Republic of South Africa
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
28 April 2022
Case Number
1969/2021
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
Application granted in part: declaratory and structural relief for mandatory provincial intervention and financial recovery plan; costs awarded against first to tenth respondents; national intervention and direct applicant participation in administration declined.
Judges
I Van Rhyn
Legal Topics
Municipal Failure to Provide Basic Services, Section 139 Intervention, Financial Recovery Plan, Structural Interdict, Community Participation, Constitutional Invalidity
Administrative Law Constitutional Law Civil Procedure Municipal Failure to Provide Basic Services Section 139 Intervention Financial Recovery Plan Structural Interdict Community Participation +1 more

Case Brief

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Parties

Mafube Business Forum

Applicant

AfriForum NPC

Applicant

Mafube Local Municipality

Respondent

The Municipal Manager: Mafube Local Municipality

Respondent

The Administrator: Mafube Local Municipality

Respondent

The Executive Mayor: Mafube Local Municipality

Respondent

The Municipal Council: Mafube Local Municipality

Respondent

The Premier of the Free State Province

Respondent

Executive Council for the Free State Province

Respondent

The MEC: Cooperative Governance and Traditional Affairs, Free State Province

Respondent

The MEC: Finance, Free State Province

Respondent

The MEC: Department of Economic Development, Tourism and Environmental Affairs, Free State Province

Respondent

The Minister of Cooperative Governance and Traditional Affairs

Respondent

The Minister of Finance

Respondent

The Minister of Human Settlements, Water & Sanitation

Respondent

The Minister of Environment, Forestry and Fisheries

Respondent

National Council of Provinces

Respondent

Fezile Dabi District Municipality

Respondent

The President of the Republic of South Africa

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the Mafube Local Municipality and associated respondents are in breach of constitutional, legislative, and regulatory obligations towards residents.
  2. 2 Whether the provincial executive's intervention under section 139 of the Constitution has failed to ensure the Municipality meets its obligations.
  3. 3 Whether the jurisdictional facts for mandatory provincial intervention under section 139(4) and (5) of the Constitution are present.

Ratio Decidendi

The court found that the Mafube Local Municipality and associated respondents are in persistent breach of their constitutional and legislative obligations to provide basic services and meet financial commitments. The provincial executive's intervention under section 139(1)(b) failed to resolve the Municipality's crises, and the jurisdictional facts for mandatory provincial intervention under section 139(4) and (5) are present and have been for some time. However, the court held that national intervention under section 139(7) is only permissible after the province has implemented mandatory intervention and failed to exercise its powers adequately. The election of a new municipal council in...

Court Disposition

Application granted in part: declaratory and structural relief for mandatory provincial intervention and financial recovery plan; costs awarded against first to tenth respondents; national intervention and direct applicant participation in administration declined.

Orders

  • It is declared that the Mafube Local Municipality and associated respondents are in breach of constitutional, legislative, and regulatory obligations towards residents.
  • The conduct of the Municipality and associated respondents in failing to provide services, maintain administration, and promote development is inconsistent with the Constitution and declared invalid.