Premier of the North West Province and Others v Kagisano Molopo Local Municipality and Others (CIV APP FB 01/2020) [2022] ZANWHC 7 (10 March 2022)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CIV APP FB 01/2020

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

PREMIER OF THE NORTH WEST PROVINCE

1st Appellant

MEC: NORTH WEST PROVINCIAL

GOVERNMENT: DEPARTMENT OF LOCAL

GOVERNMENT AND HUMAN SETTLEMENT

2nd Appellant

THE EXECUTIVE COUNCIL OF

THE NORTH WEST PROVINCE

3rd Appellant

THE NATIONAL COUNCIL OF PROVINCES

4th Appellant

THE MINISTER OF COOPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS

5th Appellant

NORTH WEST PROVINCIAL LEGISLATURE

6th Appellant

ZEBO LESEGO TSHETLHO

7th Appellant

THE MINISTER OF FINANCE

8th Appellant

and

KAGISANO MOLOPO LOCAL MUNICIPALITY

1st Respondent

T M OLAOTSWE

2nd Respondent

O BOJOSINYANE

3rd Respondent

CORUM: HENDRICKS DJP et PETERSEN J et SNYMAN J

DATE OF HEARING

: 15 OCTOBER 2021

DATE OF JUDGMENT

: 10 MARCH 2022

FOR THE APPELLANT

: ADV. MOKOENA SC

with ADV. TYATYA

FOR THE RESPONDENT

: ADV. JACOBS SC

with ADV. HUGO

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00 on 10 MARCH 2022.

JUDGMENT

ORDER

(i) The appeal is upheld.

(ii) The order of the court a quo is set aside and replaced with the following:

‘The application is dismissed with costs.’

(iii) The first respondent is ordered to pay the costs of this appeal including the costs of the application for leave to appeal, jointly and severally, the one paying the other to be absolved.

(iv) Such costs to include the costs consequent upon the employment of two counsel (senior and junior), where applicable.

HENDRICKS DJP

[1] This is an appeal against an order and judgment by the court a quo in which the decision, taken by the Provincial Executive Council of the North West Province to place the Kagisano Molopo Local Municipality under administration in terms of section 139 (1) (b) of the Constitution Act 108 of 1996, was reviewed and set aside on the 18th July 2019. Leave to appeal was granted to the Full Court by the court a quo on 06th December 2019, with reasons for the granting of the leave to appeal having been provided on 26th March 2020. The Kagisano Molopo Local Municipality applied for leave to appeal from the Supreme Court of Appeal (SCA) in terms of section 17 (6) (b) of the Superior Courts Act 10 of 2013, which leave to appeal was refused with costs on 15th September 2020. This appeal is therefore with leave from the court a quo. Such leave is granted only to the first, second and third appellants against the first respondent.

[2] The Kagisano Molopo Local Municipality (the Municipality) is a Category B municipality established in terms of Chapter 7 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) read with the provisions of the Local Government Municipal Structures Act 117 of 1998. It is situated at Ganyesa in the North West Province. The Municipality resorts under the North West Provincial Government.

[3] The Provincial Executive Council (PEC) of the North West Province passed a resolution on 22 August 2018 to place the Municipality under administration in terms of section 139 (1) (b) of the Constitution. The resolution read thus:-

“This communique serves to inform your office, of the Bokone Bophirirna Provincial Executive Council resolution to invoke provisions of section 139 (1) (b) of the Constitution in your municipality with effect from the 1 September 2018 for a minimum period of 6 (six) months and a maximum period of 12 (twelve) months. The decision was taken at a meeting of the EXCO on the 22 August 2018.

The Provincial Government through the Department of Local Government and Human Settlements has a legislative mandate to regularly monitor the performance and status of municipalities, provide support, build capacity, and intervene where it is necessary. The Department has identified areas in the municipalities where there is a need to intervene through other legislative measures as there are evident signs of poor administration and governance in the municipality, which negatively affect service delivery.

The decision, of the Provincial EXCO was informed by amongst others the following (sic) failures or challenges that are experienced by your municipality:

State of Governance and Administration

• There are numerous reported in-fights within the municipal council which compromises oversight role of the council;

• Governance structure such as the MPAC and audit committee are rendered null and ineffective as the environment is not conducive for any constructive oversight role to be conducted within the municipality. The municipality has not yet tabled its 2016/17 financial year Oversight Report on annual report, which is evident that the oversight structure is no longer functional or effective;

• The AG has highlighted, in its audit report that leadership did not adequately exercise appropriate oversight over financial and compliance activities;

• The municipality deteriorated from an unqualified audit outcome during 2015/16 financial year to a qualified audit opinion during the 2016/17 financial year. The implementation of PAAP has been reported by FEED as slow due to political instability;

• The Current Council has suspended the Major and the CFO, opening challenges for litigation against the municipality;

• Lack of corporation between Major, the Municipal Manager and Council has led to amongst others: failure to adopt IDP and Budget as Prescribed;

• There is failure to convene statutory Council meetings, Council operates through special sittings. Sometimes council meetings take place convened by Municipal Manager, without the knowledge of the Speaker to convene Council.

State of Service Delivery

• Service Delivery is negatively affected by the challenges experienced at the municipality between the Major, Council and the Municipal Manager;

• SCM Procurement is now influenced by the councillors aligned to the business forum, to the point Where they supply quotations for Supply Chain Management processes to be done in procurement of services;

• The Municipality is unable to spend its MIG allocations as it has not appointed the technical director;

• Equitable Share allocations are being withheld by National Treasury due to the instability, in the municipality, and this has a potential to adversely affect the delivery of services and labour stability which is key in rendering services to the community.

The intervention will focus mainly on ensuring good governance, prudent financial management and sustainable and uninterrupted provision of services. It is therefore on the basis of the above, that the Provincial EXCO resolved to invoke provisions of section 139 (1) (b) of the Constitution which stated that:

“When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including assuming responsibility for the relevant obligation in that municipality to the extent necessary to:

(i) Maintain essential national standards or meet established minimum standards for rendering of a service

(ii) Prevent that Municipal council from taking unreasonable action that is prejudicial to the interests of another municipality or the province as a whole

(iii) Maintain economic unity”

An Administrator who will implement the intervention on behalf of the Provincial Executive will be appointed immediate effect. The

Administrator will be supported by a team of experts to ensure the success implementation of the intervention.

Lastly, the Speaker of the Kagisano Lical Municipality is required to convene a meeting with all councillors but not later than 5 September 2018 where the department will communicate the intervention and introduce the Administrator and the intervention support team. The date of the meeting must be confirmed with my office through LoetoT@nwpg.gov.za.

Your corporation in this regard will be highly appreciated.”

[4] The Municipality launched an urgent application in the court a quo challenging the lawfulness of the resolution taken by the Provincial Executive Council (PEC) of the North West Provincial Government. The challenge is based on two grounds, namely:

(a) that the Provincial Executive Council (PEC) had no authority to take action as it had been divested by the National Government in terms of section 100 of the Constitution of its power to resolve as it had;

(b) that if the Provincial Executive Council (PEC) had the power at the time to resolve as it did, the exercise of the power was unlawful.

[5] The court a quo in its judgment only dealt with the first ground listed as (a) above and stated that it is not necessary to deal with the second ground listed as (b) supra, perhaps as a result of its finding with regard to (a). The court a quo concluded that the Provincial Executive Council of the North West Provincial Government, was already placed under administration by the National Government in terms of section 100 of the Constitution. Therefore, so it further concluded, it meant that the Provincial Executive Council (PEC) had no powers at all at that time to invoke the provisions of section 139 (1) (b) of the Constitution to place the Municipality under administration. The court a quo then granted the following order:

“1. The decision of the first and/or the second and/or the third respondent to intervene in the Kagisano Molopo Local Municipality in terms of Section 139 (1) (b) of the Constitution, 1996, adopted on 22 August 2018, effective from 1 September 2018, be declared null and void and set aside,

2. The aforesaid decision of the second and/or the third respondent, particularly to appoint the seventh respondent as administrator to the first applicant, be declared null and void and set aside;

3. The first, second and third Respondents are ordered to pay costs which shall include costs of two counsel.”

[6] As alluded to earlier, an application for leave to appeal against this order and judgment was instituted. The court a quo granted leave to appeal to the Full Court of this Division. In its typed reasons for granting leave to appeal on 26 March 2020, the court a quo stated:

“[4] For the sake of convenience the parties will be referred to as in the main application. The respondents raised the main issue for determination in the appeal as whether a province under section 100 of the Constitution Act 108 of 1996 has powers and authority to, in turn intervene in local municipalities in terms of section 139 of Act 108 of 1996. The second issue was whether the Court had interpreted the notice to intervene in terms of section 100 in the North West Province properly.

[5] At the heart of this application was the interpretation of section 100 of the Constitution. Due to the implication of the application of the said section it is imperative for the matter to be ventilated further in the appeal court and possibly come to a different conclusion. The issue of interpretation of the Constitution in relation to the powers that the Provincial Government has when placed under administration in terms of section 100 of the Constitution is crucial. This impacts on whether the Provincial Government can interfere in municipalities across the province. As stated during argument a number of matters were launched in relation to this matter in this division and a decision from the Full Court would have the effect of clarifying the legal position as far as the interpretation of section 100 of the Constitution is concerned.”

[7] When granting the order for leave to appeal on 06 December 2019, the court a quo stated the following in its ex tempore judgment:

“I thank both counsel for the submissions made in this matter and the comprehensive heads that have been submitted.

I must say that this is one matter that raises interesting aspects and indeed I am of the view that there are issues that are raised in this matter which would need to be clarified further and in the interest of justice that the matter should be ventilated further and on that note it is my view that another court would come to a different conclusion. As such the order that I am giving today is that the leave to appeal to the full bench of this division is hereby granted with costs to be costs in the appeal.”

[8] The appeal is therefore with leave of the court a quo. The following grounds of appeal are listed in the Notice of Appeal:

“1. That the appeal is upheld with costs, such costs to include the costs consequent upon the employment of two counsel;

2. That the order granted by her ladyship, the honourable Justice Djadja [sic] be substituted with an order whereby the Respondents' application is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.”

[9] The crux of this appeal is therefore the interplay between the provisions of section 100 and section 139 (1) (b) of the Constitution and not the merits. The appellants filed an application to lead further evidence on appeal in terms of section 19 (b) of the Superior Courts Act 10 of 2013. This concerns the Memorandum of Understanding (MOU) between the National Government and the North West Provincial Government. An

application for condonation for the late filing of the respondents’ answering affidavit to the appellants’ application brought in terms of section 19 (b) of the Superior Courts Act 10 of 2013, was also made.

[10] The application to lead further evidence is opposed mainly on the basis that the MOU that is sought to be introduced as further evidence, was at all material times available to the appellants/applicants and there exists no plausible reason why it was not introduced as evidence at the hearing in the court a quo. The prejudice that will be suffered if the MOU is now introduced, so the submission goes, will be immense. This contention is countenanced by a submission that reference was made to the MOU during the hearing of the matter in the court a quo.

[11] It was further submitted that the respondent (Municipality) will suffer no harm or prejudice if the MOU is accepted as further evidence on appeal. The admission of the MOU as further evidence it was ultimately submitted would be in the interest of justice in that it would enable this Court, as a Court of Appeal, to dispense justice in dealing with the novel issue of the interplay between sections 100 and 139 (1) (b) of the Constitution. As previously stated, there is the further issue of an application for condonation for the late filing of the respondent’s answering affidavit to the appellants’ application to lead further evidence in terms of section 19 (b) of the Superior Courts Act 10 of 2013. After due consideration of the application, taking into account the content of the answering affidavit and the importance of the novel issued raised on appeal, we are of the view that the requisite condonation for the late filing of this answering affidavit should be granted.

[12] We fully align ourselves with the contention on behalf of the appellants/applicants in respect of the admission of the MOU. To allow the MOU as evidence before this Court, in the interest of justice, will be beneficial not only to this Court but will allow the question of law to be fully ventilated. Consequently, we are inclined to allow the application for admission of the MOU as further evidence before this Court. The MOU between the National Government and the North West Provincial Government is quoted in its totality and reads thus:

(Please refer to pdf)

[13] As alluded to earlier, the crux of this matter concerns the interplay between section 100 and section 139 (1) (b) of the Constitution. The appeal does not lie against the merits of the matter. The respondents’ opposition to this appeal is, inter alia, that the appeal is moot and of no academic value. When this appeal previously served before the Full Court, which was differently constituted, it was ordered that supplementary heads of argument (written submissions) be filed to deal with the question of the mootness of this appeal. Supplementary heads of argument have subsequently been filed. The contention by the respondent (Municipality) is that the appeal is moot, for the following reasons:

(a) The intervention adopted on 31 August 2018, which took effect on 01 September 2018 lapsed after the passage of twelve (12) months on 31 August 2019;

(b) There exists no exceptional circumstance(s) upon which this Court of appeal would not dismiss an appeal due to mootness;

(c) An academic analysis of section 139 (1) (b) of the Constitution would amount to speculation and conjecture only and not establish an important legal issue at stake;

(d) The appellants failed to effectively address the scope of the intervention in terms of section 100; and

(e) The appellants failed to place the resolution adopting the intervention in the Municipality before the court a quo.

[14] That the period of administration has lapsed is beyond dispute and that much was conceded to by counsel for the appellants/applicants, Adv. Mokoena SC. However, the matter does not end there. Mootness is not the only factor to be considered to determine whether or not an appeal should be heard. This is trite. There is a plethora of cases dealing with this aspect. In a line of cases reported since 2001, starting with Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC) at paragraph [9], the Constitutional Court (CC) said:

“[9] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others Ackermann J said:

“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”

Even though a matter may be moot as between the parties in the sense defined by Ackermann J, that does not necessarily constitute an absolute bar to its justiciability. This Court has a discretion whether or not to consider it. Langa DP, in President, Ordinary Court-Martial and Others v Freedom of Expression Institute and Others, throws some light on how such discretion ought to be exercised. The conclusion in that judgment is that section 172(2) of the Constitution does not oblige this Court to hear proceedings concerning confirmation of orders of unconstitutionality of legislative measures which have since been repealed but has a discretion to do so and “should consider whether any order it may make will have any practical effect either on the parties or on others”. The reasoning is equally applicable to this appeal.”

(my emphasis)

[15] In Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142 (CC) at paragraph [32] it was stated:

“The Bank correctly points out that any ruling this Court makes will not affect the Sebolas themselves. The judgment has been abandoned,

together with the costs orders granted against them, and regardless of what this Court might decide about section 129, the options the provision affords will have been made available to them. Yet mootness is not an absolute bar to deciding an issue. That is axiomatic: the question is whether the interests of justice require that it be decided. One consideration is whether the Court’s order will have any practical effect on either the parties or others.”

[16] In Minister of Mineral Resources and Others v Sishen Iron Ore Company (Pty) Ltd and Another 2014 (2) SA 603 (CC) at paragraph [104] it is stated:

“This court has made it clear that, when it is in the interests of justice to do so, it may hear and determine a dispute that has become moot. It may be so, if the parties agree that a court must resolve the dispute although it may not have a practical effect; or when the resolution of the dispute is in the public interest; or when the failure to decide the matter may spawn further prolonged and costly litigation.”

[17] In POPCRU v SACOSWU 2019 (1) SA 73 (CC), the following is stated:

“[44] But mootness is not an absolute bar to the justiciability of an issue. The Court may entertain an appeal, even if moot, where the interests of justice so require. In making this determination the Court exercises a judicial discretion based upon a number of factors. These include, but are not limited to, considering whether any order may have some practical effect, and if so its nature or importance to the parties or to others.”

[18] In Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) at paragraph [8], the following is stated:

“[8] Despite this, the parties made it plain that they wished the Court to proceed to determine the issues. There are good reasons for the Court to do so. It has long been settled that this Court may determine issues where the narrow dispute between the parties has become moot. In Independent Electoral Commission, the Court afforded a declaration that a dispute between the Electoral Commission and a sphere of government or organ of state is not an intergovernmental dispute, despite the matter being moot.”

[19] The ratio in the aforementioned cases is succinctly ensconced in President of the Republic of South Africa v Democratic Alliance and Others 2020 (1) SA 428 (CC) at paragraph [17]:

“[17] This would ordinarily put an end to this application. But, this Court has the discretionary power to entertain even admittedly moot issues. In Langeberg we said that we have —

“a discretion to decide issues on appeal even if they no longer present existing or live controversies. That discretion must be exercised according to what the interests of justice require.”

[20] Adv. Mokoena SC, contended that this matter is not moot for the following reasons:

(a) There are pending applications which are brought by a number of municipalities challenging the authority, power and capacity of the First to Third Appellants to place their respective municipalities, under administration in terms of section 139 of the Constitution, while the Province itself is under section 100 administration. Certainty in this regard, is required on the question of law, which is pertinently raised in these proceedings;

(b) There is a need for the judgment of this Court, in the appeal, to provide a proper interpretation of section 100 read with section 139 of the Constitution, in order to provide guidance in the pending matters and any future matters;

(c) There is no decision on appeal on the legal point which arises in this appeal and the decision of this Appeal Court will not only provide a clear guidance on the legal issue arising in these proceedings, but it might lead to these pending matters being resolved, premised on or following from the judgment of this Appeal Court.

(d) Flowing from the abovementioned, this appeal should be entertained by this Honourable Court of Appeal as it is critical to the legal question which is not academic, but will provide certainty and proper guidance on the interpretation of the two sections.

(e) Whether a Province in which the National Government had intervened in terms of section 100 of the Constitution is divested of its powers and authority to intervene at the local sphere of government, as it did at Kagisano Molopo Local Municipality, in terms of section 139 (i) (b) of the Constitution.

[21] Adv. Mokoena SC also submitted that following this judgment by the court a quo per Djaje J, the following cases were pending where the parties resisted the intervention and premised their objection on the strength of the judgment of the court a quo, which is the subject matter of this appeal:

(i) Mamusa Local Municipality Councillors / MEC for Co- operative Governance, Human Settlements and Traditional Affairs and Others (case number UM135/19);

(ii) JB Marks Local Municipality I MEC: Department of Local Government and Human Settlements of the North West Province and Others (case number UM152119);

(iii) Ratlou Local Municipality and Others / Premier of the North West Province and Others (case number M443/19).

(iv) Tswaing Local Municipality / The MEC for the Department of Co-operative Governance, Human Settlements & Traditional Affairs: North West Province and Others (case number UM 166/2020);

(v) Jostina Mmantina Mothibe and Others / The Executive Committee: North West Province and Others (case number UM 167/2020);

(vi) Ramotshere Moiloa Local Municipality/ Premier of the North West Province and Others (case number UM17512020).

[22] We fully align ourselves with these submissions. We are of the view that the importance of this issue which is a novel issue raised for the first time, is such that the appeal should be allowed and not be struck off the roll on account of alleged mootness. The importance of this matter for the sake of certainty not only for the respondent (Municipality), but for all the Provincial Governments and Municipalities in our country cannot be downplayed or ignored. We are therefore of the view that the appeal should be allowed for consideration by this this Court.

[23] Section 100 provides:

“100. National intervention in provincial administration- (1) When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-

(a) issuing a directive to the provincial executive, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and

(b) assuming responsibility for the relevant obligation in that province to –

(i) maintain essential national standards or meet established minimum standards necessary for the rendering of a service;

(ii) maintain economic unity;

(iii) maintain national security; or

(iv) prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.

(2) If the national executive intervenes in a province in terms of subsection (1) (b) –

(a) it must submit a written notice of the intervention to the National Council of Provinces within 14 days after the intervention began;

(b) the intervention must end if the Council disapproves the intervention within 180 days after the intervention began or by the end of that period has not approved the intervention; and

(c) the Council must, while the intervention continues, review the intervention regularly and may make any appropriate recommendations to the national executive.

(3) National legislation may regulate the process established by this section.”

[24] On 17 May 2018 the National Government of the Republic of South Africa placed the Provincial Government of the North West Province under administration in terms of section 100 (1) of the Constitution. The document reads thus:

“NOTICE OF INTERVENTION IN TERMS OF SECTION 100 (1) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

This letter serves to inform the National Council of the Provinces about a decision taken by Cabinet on 09 May 2018, following the report of the Inter-Ministerial Task Team on the North-West Province, to invoke section 100(1) of the Constitution of the Republic of South Africa 1996, to address challenges which are currently facing the North West Provincial Government.

Section 100(1) of the Constitution provides that:

(1) When a province cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-

(a) Issuing a directive to the provincial executive, describing the extent of the failure to meet its obligation; and

(b) Assuming responsibility for the relevant obligation in that province to the extent necessary to-

(i) Maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii) Maintain economic unity;

(ii) Maintain national security; or

(iii) Prevent that province from taking unreasonable action that is prejudicial to the interests of another province or to the country as a whole.

An Inter-Ministerial Task Team led by Minister in the Presidency:

Planning, Monitoring and Evaluating, Dr Nkosazana Dlamini Zuma was established, amongst others, to oversee the intervention.

The Inter-Ministerial Task Team is comprised of the following members of the National Executive:

Minister of Planning, Monitoring and Evaluation (Convener);

Minister of Health

Mister of Finance

Minister of Corporative Governance and Traditional Affairs;

Minister of Public Works

Minister of Agriculture, Forestry and Fisheries Minister of Police

Minister of Defence and Military Veterans Minister of State Security

Minister of Justice and Correctional Services Minister of Public Service and Administration Minister of Basic Education.

Section 100 (2) (a) of the Constitution requires the National Executive, if it intervenes in the province in terms of section 100(1)(b) of the Constitution, to submit a written notice of the intervention to the National Council of Provinces within 14 days after intervention began.

I take the liberty of alerting you to the obligations of the National Council of Provinces as set out in section 100 (2) (b) and (c) of the Constitution.”

[25] As alluded to earlier, on 22 August 2018, the Provincial Executive Council (PEC) of the North West Provincial Government invoked the provisions of section 139 (1) (b) of the Constitution and placed the Municipality under administration. Section 139 (1) reads:

“Provincial intervention in local government 139.

(1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including—

(a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;

(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary to —

(i) maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or

(iii) maintain economic unity; or

(c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.”

[26] The question to be decided in this appeal is whether the fact that the Provincial Government of the North West Province was placed under administration by the National Government in terms of Section 100 of the Constitution, precludes the Provincial Government, in turn, placing a Municipality under administration in terms of section 139 (1) (b) of the Constitution. This raises further corollary questions. If a Provincial Government which is under administration is divested of its authority and control over a Municipality (municipalities) under its administrative control, the question arises who should exercise control over the Municipality. Should it be National Government or does it imply that such a Municipality is free of any supervisory control, and is at liberty to do as it pleases. Will such a Municipality be unaccountable to the Provincial Government even in the face of serious allegations of malfeasance, corruption, lack of service delivery and maladministration or would it be accountable to National Government. These questions require very careful scrutiny.

[27] At the heart of the contention by the respondent(s) is the allegation that the appellants had no executive authority to adopt a decision to intervene in the first respondent by virtue of the Section 100 intervention by National Government. In particular, the contention is that, having been divested of any authority to intervene as result of the Section 100 intervention by National Government, the intervention by the Provincial Government was of no force and effect. Even if it were to be held that the appellants retained some form of executive authority, the contention is that the intervention was irrational and unlawful. That it was irrational and unlawful is premised on the alleged uncertainty as to when and by whom the decision to intervene was adopted; and because the intervention does not relate solely to the performance of the Municipality’s executive functions but was a political play aimed against the respondents. It must be underscored that the merits of this matter is not the subject of this appeal and therefore plays no role in the determination this appeal. This appeal relates solely to the legal question which relates to the interplay between Sections 100 and 139 (1) of the Constitution.

[28] In Premier, Gauteng and others v Democratic Alliance and others 2022 (1) SA 16 (CC), the Constitutional Court, in a matter involving section 139(1)(c) of the Constitution, albeit distinguishable from the issue before this Court, provided a very insightful judgment on the provisions of section 139 of the Constitution and the relationship between the three spheres of Government at National, Provincial and Local level. The ratio in this judgment, in our view, applies equally to section 100 of the Constitution, where a Provincial Government is placed under administration by National Government. Mathopa AJ, as he then was, writing for the majority, said the following:

“[1] ‘Legality … draws its lifeblood from multiple texts of the Constitution and lies at the structural heart of our constitutional democracy.’ This case concerns a dispute between organs of state in the provincial and local government spheres. It implicates the constitutionally ordained powers of a provincial executive to intervene and dissolve a municipality in terms of s 139(1)(c) of the Constitution, on the basis that the City of Tshwane Metropolitan Municipal Council (Municipal Council or Council) failed or was unable to fulfil its executive obligations in terms of the Constitution and related legislation…

…

[51] The issues before us are not only important to the parties, they also impact the relationship between municipalities and provincial

governments country-wide. They bring into sharp focus the serious and complex conflict between the power of the provincial government to intervene in the affairs of local government and the autonomy of local government as a separate sphere of government. Importantly,

‘(i)t needs to be stressed that the potential prejudice and urgency lie not in the harm suffered by the Municipality or the

municipal councillors, but in the continued disruption of basic essential services to the people and communities the Municipality is supposed to serve. The people who may suffer the real harm are not party to these proceedings.’ It is the first time that this court has been called upon to decide this issue. Although it is desirable for this court to have the benefit of the decisions of other courts, notably the Supreme Court of Appeal, the applicants argued that the Supreme Court of Appeal has already weighed in on the interpretation and application of s 139.’

[52] A constitutional issue is clearly at stake here. Granting leave to appeal directly to this court will ensure the speedy resolution

of the matter, and reduce costs, which was one of the purposes for which s 167(6)(b) of the Constitution was enacted. Lastly, it would not be in the interests of justice to allow uncertainty over the proper interpretation of the constitutional provisions at issue to persist. Thus, direct leave to appeal is granted.

Legal framework

[55] The determination of this case turns on the interpretation of s 139 of the Constitution, which regulates the provincial government’s

intervention in local government. This provision is to be interpreted against the background of the constitutional imperatives of the rule of law, principles of co-operative governance, and intergovernmental relations…

[57] First, this section serves the limited purpose of enabling the provincial government to intervene by taking appropriate action in circumstances where this is required because a local government is unable to fulfil its executive obligations. Second, it empowers the provincial government to intervene in such circumstances for the obligations that have not been carried out, but only to the extent necessary for the purposes referred to in s 139(1)(a), (b)(i) – (iii) and (c).

[58] The section is corrective in nature as it seeks to address the problems in the municipality and restore service delivery...

[59] The framers of the Constitution used the word ‘may’ in s 139(1) to not merely confer a discretion, but a power coupled with a duty. The provincial government has a constitutional duty to intervene where a municipality cannot, or does not, fulfil its executive obligations. The purpose of the intervention is to enable the relevant provincial executive, in limited circumstances, to ensure fulfilment of the executive obligation that the municipality could not or did not fulfil. In this constitutional scheme the provincial executive is fully entitled, if not obliged, to do what is necessary to ensure the fulfilment of executive obligations.

[60] The right to intervene is not absolute. It is subject to ss 154(1) and 41(1)(h) of the Constitution. The former provides that ‘(t)he national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and perform their functions’. Whereas the latter provides that:

‘All spheres of government and all organs of state within each sphere must —

(h) co-operate with one another in mutual trust and good faith by —

(i) fostering friendly relations;

(ii) assisting and supporting one another;

(iii) informing one another of, and consulting one another on, matters of common interest;

(iv) co-ordinating their actions and legislation with one another;

(v) adhering to agreed procedures; and

(vi) avoiding legal proceedings against one another.’

[61] Chapter 3 of the Constitution has two components. The first is s 40. Section 40(1) states that the three spheres of government, national, provincial and local governments, are distinctive, interdependent and interrelated. Section 40(2) prescribes that organs of state must comply with the principles of co-operative government set out in ch 3. The second component is s 41. Consistent with the principles of co-operative governance and intergovernmental relations, s 41(1)(b) requires that all spheres of government and all organs of state within its sphere must secure the wellbeing of the people of the Republic. Section 41(1)(h) states that they must ‘co-operate with one another in mutual trust and good faith by . . . assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest…’ Another important provision is that all spheres of government must not assume any power or function except those conferred on them in terms of the Constitution. Section 41(1)(e) provides that one sphere of government must respect the constitutional status, institutional powers and functions of government in other spheres.

[62] In Johannesburg Metropolitan Municipality Jafta J observed that:

‘Section 40 of the Constitution defines the model of government contemplated in the Constitution. In terms of this section the government consists of three spheres:

the national, provincial and local spheres of government. These spheres are distinct from one another and yet interdependent and

interrelated. Each sphere is granted the autonomy to exercise its powers and perform its functions within the parameters of its defined space. Furthermore, each sphere must respect the status, powers and functions of government in the other spheres and “not assume any power or function except those conferred on [it] in terms of the Constitution”.

The scope of intervention by one sphere in the affairs of another is highly circumscribed. The national and provincial spheres are permitted by ss 100 and 139 of the Constitution to undertake interventions to assume control over the affairs of another sphere or to perform the functions of another sphere under certain well-defined circumstances, the details of which are set out below. Suffice it now to say that the national and provincial spheres are not entitled to usurp the functions of the municipal sphere, except in exceptional circumstances, but only temporarily and in compliance with strict procedures. This is the constitutional scheme in the context of which the powers conferred on each sphere must be construed.’

[63] In addition to the constitutional framework, additional statutes regulating the interplay between the provincial and local spheres are relevant. Section 105 of the Systems Act empowers the MEC to monitor the municipalities in her or his province with a view to assessing the support needed to strengthen their capacity to manage their own affairs. Section 106 of the Systems Act deals with the designation of a person where the MEC has reason to believe that a municipality cannot address or does not fulfil a statutory obligation binding on it, or that maladministration, fraud, corruption or any other serious malpractice may occur, or is occurring, in the municipality.

[64] Thus, s 139(1) requires that the provisions, and the powers they impose, must be construed in the context of the Constitution as a whole and the provision that it makes for the distribution of power between different levels of government.

[118] … Section 41(1)(f) of the Constitution forbids the provincial government and any sphere of government from assuming any power or function except those conferred on them in terms of the Constitution. Section 41(1)(h)(ii) provides that ‘spheres of government and organs of state . . . [must assist and support] one another’. The provincial

government was constitutionally obliged to investigate and provide solutions to the causes of unfulfilled obligations…”

[29] The Constitution recognizes three spheres of Government, National, Provincial and Local Government. Section 41 of the Constitution specifically deals with and sets out the importance of co-operative governance in the relationship between the three spheres of Government. The purpose of the section is clear in that it is directed at harmonizing co-existence and mutual co-operation and understanding between the three spheres of government with emphasis on good governance.

[30] It is quite apparent, having regard to the wording of Section 100 that the National Government cannot take over control of the Provincial Government in toto. The intention is to co-govern or to render assistance if and when required to do so, if the Provincial Government fails to perform its functions or fails to do so adequately. Ordinarily as demonstrated in interventions of the nature of Section 100 and 139 (1) (b), one or more specific department(s) within the Provincial Government or Municipality would be the subject matter of the administrative intervention. The placing of the Provincial Government under administration, relevant to this appeal, is to ensure compliance with its constitutional mandate. This by no means implies or constitutes a complete takeover of the Provincial Government.

[31] It is not difficult to comprehend what the position would be if the placing under administration of the Provincial Government would be given a prepositive interpretation akin to a total takeover. If that were the case the question could rightfully be begged, what would happen to the Provincial Government whilst under administration. Does the Provincial Government seize to exist? Does it imply that the Provincial Government cannot perform any function or exercise any authority because it is divested of same? Any interpretation to that effect would certainly run counter to the spirit and purport of the Constitution. National government is empowered to intervene in the Provincial Government. That is inescapable. The role of National Government is, however, circumscribed in that it is at most to render assistance and provide guidance to the affected departments within Provincial Government.

[32] It follows axiomatically that when the Provincial Government is placed under administration by the National Government it does not imply that the Provincial government is divested of all its constitutionally entrenched powers over the Local Government (municipality). The three different tiers of Government are constitutionally recognized and it is unfathomable that National Government is empowered to interfere and usurp control and management of a municipality at Local Government. It is unprecedented and could certainly never have been the intention of the drafters of the Constitution.

[33] It is clear that the Provincial Government is enjoined with oversight powers over the local sphere of government. The fact that the Provincial Government is placed under administration does not imply that it is summarily divested of all its authority over the Local government (municipalities). Logically, any other interpretation would beg the question why the Provincial Government is not summarily dissolved when placed under administration rather than keeping it in existence with its duly constituted Executive and Administration.

[34] Otherwise stated, does it imply that if a Provincial Government is placed under administration, its Premier, the Provincial Executive [MEC’s], the Provincial Legislature and all its functionaries seize to exist and perform no functions at all. That could never have been the intended consequences of a Provincial Government being placed under administration. If that were the case, it would undoubtedly erode the democratic principle of democratic governance as enshrined in the Constitution. The consequence would be that Local Government (municipalities) would not be accountable and enjoy unfettered autonomy with freedom to govern without accountability to any higher authority. It is not difficult to fathom what the consequences would be if a municipality could not be held accountable in the face of maladministration, malfeasance and corruption. The inimitable consequence of such a system is chaos which would ultimately led to the total collapse of Local Government and render the tenets of section 41 of the Constitution illusory.

[35] The legal question in our view must accordingly be answered in favour of the appellants.

Order

[36] Consequently, the following order is made:

(ii) The order of the court a quo is set aside and replaced with the following:

‘The application is dismissed with costs’.

(iii) The first respondent is ordered to pay the costs of this appeal including the costs of the application for leave to appeal.

R D HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

A H PETERSEN

JUDGE OF THE HIGH COURT,

F M M SNYMAN