EASTERN CAPE DIVISION

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					IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, BHISHO


                                          Case no: 231/ 2009


In the matter between:


Mnquma Local Municipality                 First Applicant

Webster Mbasa Ntongana                    Second Applicant

and

The Premier of the Eastern Cape           First Respondent

The Member of the Executive Council
for Local Government and
Traditional Affairs, Eastern Cape         Second Respondent



The Executive Council of the
Eastern Cape Province                     Third Respondent

The National Council of Provinces         Fourth Respondent

The Minister of Local Government          Fifth Respondent

The Provincial Legislature of the
Eastern Cape Province                     Sixth Respondent

Thandolwakhe Tubane NO                    Seventh Respondent


                               JUDGMENT

D. VAN ZYL J:


Introduction
                       2
[1] This application                           concerns           a

   decision taken by the Provincial Executive Council of

   the Eastern Cape Province in terms of the provisions of

   the Constitution to dissolve the Municipal Council of

   the Mnquma Local Municipality. The intervention of

   the Provincial Government in the said municipality was

   not without its problems. The aforementioned decision,

   which was taken on 8 April 2008, was preceded by two

   earlier unsuccessful attempts to dissolve the municipal

   council. The lead up to the decision which forms the

   subject matter of the present application was briefly the

   following: In early December 2008 the Member of the

   Executive Council of the Eastern Cape Province

   responsible for Local Government Affairs (the MEC)

   advised the municipality in writing that she had been

   “informed     of   possible    maladministration”      in    the

   municipality. The municipality was instructed to “halt

   all activities with financial implications until further notice.”

   The MEC further informed the municipality in the same

   letter that she had appointed the Special Investigating
                                                 3
                                     1
                         Unit                 to                                investigate these

                         matters and was doing so in terms of section 106(1)(b)

                         of the Local Government: Municipal Systems Act 32 of

                         2000 (the Systems Act).2

The aforementioned letter did not offer any particulars of the nature of the
“possible maladministration”. As a result the municipality requested the
MEC in writing to identify the malpractice in issue and at the same time
advised that it would not be practical to comply with the request to halt
all activities with financial implications as it would bring service delivery
at every level to a standstill. What followed was the publication of a
notice in the provincial gazette on 23 January 2009 dissolving the
Mnquma Municipal Council (the council). This gave rise to an
application launched on 23 January wherein the municipality sought an
interdict, inter alia, restraining the relevant authorities from intervening
in the municipality’s affairs and from dissolving the council. An interim
order was granted and the relevant respondents were called upon to show
cause why it should not be made final. On 9 February this order was
supplemented by an order that the said respondents must further show
cause why an order requiring the Province to relinquish possession and
control of the municipality’s premises should not be made final.


                    [2] On 12 February the aforementioned rule nisi was

                         discharged by agreement and the respondents were

                         ordered to pay the costs of the application. However, on

                         the same day, and unbeknown to the municipality, the

                         Province initiated a new intervention. A letter was


1
   A special investigating unit is appointed in terms of section 2 of the Special Investigating Units and
Special Tribunals Act 74 of 1996 “to investigate the matter concerned” inter alia on the ground of
“serious maladministration in connection with the affairs of any state institution.”
2
   This section authorises the MEC “who has reason to believe” that inter alia “maladministration,
fraud, corruption of any other serious malpractice has occupied” to designate “a person or
persons” to investigate the matter.
                      4
  delivered to the                         mayor    of    the

  municipality in the evening of the same day informing

  the municipality that (a) it was not fulfilling its

  executive obligations by failing to comply with certain

  provisions of the Local Government: Municipal Finance

  Management Act 56 of 2003 (the Municipal Finance

  Management Act), and (b), that “noting the factors set out

  above… the Mnquma Council is hereby dissolved with effect

  from 12 February 2009.”




[3] This prompted the Municipality to lodge a second

  application. In the notice of motion relief was sought

  substantially similar to that in the first application. The

  application was similarly opposed. This Court, per

  Kemp AJ, after hearing argument, granted the interim

  relief   claimed.       However,   on   23   February   the

  respondents filed a notice of withdrawal of opposition

  and tendered to pay the wasted costs. According to the

  respondents in their answering affidavit filed in the

  present matter, the reason for the withdrawal of their

  opposition was that, acting on legal advice, the two
                                              5
                         decisions       to                      dissolve       the

                         council were taken in circumstances that exposed it to a

                         procedural attack.



                    [4] According to counsel for the respondents the provincial

                         executive, now acting on new legal advice, then

                         adopted a different procedural approach. On 27

                         February it wrote to the municipality setting out a

                         number of complaints which might form the basis of a

                         decision to dissolve the municipal council. Counsel

                         submitted in their heads of argument that this was done

                         not because any duty was imposed by the empowering

                         provisions in the Constitution, or because there is clear

                         authority to that effect, but by reason of the principle of

                         co-operative governance in sections 40 and 413 of the

                         Constitution, and constitutional values which might

                         require the application of the audi alteram partem

                         principle in the implementation of the said provisions.



                    [5] In the aforementioned letter the executive mayor of the

3
    See paragraph 30 infra.
                   6
municipality was                            advised that the

provincial executive was considering whether or not to

issue a notice dissolving the municipality’s council.

This notification offered an opportunity to the council

to respond in writing and to advance such submissions

and representations as may be appropriate. The council

responded to the matters raised in the letter after

requesting further information and furnished its

representations on 18 March. A memorandum was

prepared    by   the   state     attorney    analysing   and

summarising the presentations that were received from

the council. This memorandum, together with a number

of attachments, which included the initial notification,

the requests by the municipality for information, the

responses    given     thereto      and      the   council’s

representations, were then placed before the provincial

executive when it made its decision on 8 April. On that

date it was decided to dissolve the council and to

appoint an administrator to conduct the functions of the

council until a new council was elected. This decision

was communicated to the council on 16 April.
                                           7


                 [6] On the following day a notice was published in the

                     provincial gazette. It reads:

       “I, TOKOZILE XASA, Member of the Executive Council responsible for Local
       Government and Traditional Affairs in the Eastern Cape Province, duly
       authorized thereto by the Provincial Executive Council of the Eastern Cape,
       hereby give notice of the dissolution of the Municipal Council of the Mnquma
       Local Municpality in terms of section 139(1)(c) of the Constitution of the
       Republic of South Africa (“the Constitution”).


I hereby appoint THANDOLWAKHE TUBANE as administrator of the Mnquma Local
Municipality to act until a newly elected Municipal Council has been declared elected.
The administrator is hereby vested with all appropriate powers to ensure the fulfilment
of the obligations of the Mnquma Local Municipality in terms of the Constitution and
legislation.

In terms of section 139(3)(b) of the Constitution the dissolution will take effect 14 days
from the date of receipt of the notice by the Council unless set aside by the Cabinet
member responsible for Local Government affairs or the National Council of Provinces
before the date.”



Notice of the decision to dissolve the Council was thereafter given to the
National Minister, the Provincial Legislature and the National Council of
Provinces.
               [7] On 30 April the present application was launched. In

                     the notice of motion the following relief was inter alia

                     sought:

       “2.     That a rule nisi be issued in terms of which the First, Second and Third
               Respondents are called upon to appear before the above Honourable
               Court at a time and date to be determined by the Honourable Court to
               show cause, if any, why the following order should not be made final:
                       2.1     Interdicting     and     restraining   the First, Second
and   Third
                       Respondents, their officials and any other person(s) purporting
                                               8
                    to act on their                    behalf, from interfering with, impeding
                    or otherwise compromising the First Applicant’s ability or right
                    to exercise its constitutional and statutory powers and to perform
                    its functions pending the outcome of the review application
                    which commences herewith.
      2.2          Interdicting and restraining                     the         aforesaid        Respondents
            from
                                intervening        in     the      First        Applicant’s        affairs   in
      terms of section
                                139(1)(c) of       the Constitution               and,      in     particular,
      from dissolving
                    the First Applicant and                      appointing        an administrator in
                    its     stead      until       a      newly           elected Municipal Council
                    has         been    declared           elected, pending the outcome of the
                    review application which commences herewith.


            2.3            Suspending      the          effect     of     the     Second         Respondent’s
            letter of 16
                    April 2009 referred to                   in the founding affidavit in which
                    she gives notice of the Municipal Council’s dissolution in terms
                    of section 139(1)(c) of the                  Constitution, pending the outcome
                    of the review application which commences herewith.


 3.   Reviewing           and     setting aside the Third Respondent’s                             attempt to
 dissolve
the First Applicant in terms of section 139(1)(c) of the Constitution and to
appoint an administrator to replace it.”



             [8] At the first hearing of the matter on 8 May the parties

                   agreed that the matter was to be argued “on a final basis

                   on 15 May” and that “The Second, Third and Seventh

                   Respondents undertake, pending the conclusion of the
                                              9
                       hearing on Friday                                   15th     May     2009,

                       not in any way to intervene in the conduct of Local

                       Government by the First Applicant. (If need be, it remains

                       open to the Applicants to seek appropriate interim relief

                       arising from the hearing).” This agreement was made an

                       order of Court and the matter was postponed to 15 May.

                       At the hearing of the matter, the same undertaking was

                       made pending the delivery of judgment by this Court.



The Parties

                   [9] The first applicant is the Mnquma Local Municipality

                       (the Mnquma Municipality). It is, a category B

                       municipality as envisaged in section 155(1) of the

                       Constitution, namely a municipality that shares

                       municipal executive and legislative authority with a

                       category C municipality within whose area it falls.4



                   [10] The second applicant is the mayor of the Mnquma

                       Municipality, who is said to also bring this application

                       in his personal capacity as a ratepayer and a registered


4
  The types of category B municipalities and their composition and structures are dealt with in the
Local Government: Municipal Structures Act 117 of 1998.
                     10
  voter        who                         resides    within

  the municipal area of the first applicant. The reason for

  this is explained in the founding affidavit as being the

  fact that the second respondent on a previous occasion

  in litigation involving an attempt to dissolve the

  municipal council of the Mnquma municipality took the

  view that because the municipal council was dissolved,

  it did not have the capacity to institute legal proceedings.

  At the hearing of this matter counsel for the respondents

  informed the Court that it is not an issue which they

  wish to raise or pursue in their proceedings.



[11] The first respondent is the Premier of the Eastern

  Cape Province (the Premier) in whom the executive

  authority of the provincial government vests by virtue

  of the provisions of section 125(7) of the Constitution.

  He exercises these powers together with the members of

  the executive council of the province. This council is

  cited as the third respondent and is the relevant

  functionary in terms of section 139 of the Constitution

  of the Republic of South Africa, 1996 (the Constitution).
                                          11
                         Members of the                                executive

                         council are appointed by the Premier who also assigns

                         to them their powers and functions.5 The member of the

                         executive council tasked or entrusted with local

                         government affairs is the second respondent (the MEC).



                     [12] The fourth respondent is the National Council of

                         Provinces. Its interest in these proceedings arises from

                         the provisions of section 139 (3)(a)(ii) of the

                         Constitution. That section requires the provincial

                         executive to immediately submit a written notice of the

                         dissolution of a municipal council to the Council. For

                         the same reason the applicants have also cited the

                         National Cabinet Minister for Local Government and

                         the Provincial Legislature of the Eastern Cape Province

                         as the fifth and sixth respondents respectively. The

                         seventh respondent is the person who had been

                         appointed as an administrator of the Mnquma

                         Municipality until such time as elections had been held

                         and a new municipal council declared elected as

5
    Constitution, section 132.
                                                  12
                        envisaged            in                                   section 139 of

                        the Constitution.



                    [13] The application is opposed by the first, second and

                        third respondents. (the respondents.)




The Relevant Legislative Provisions

                    [14] The decision to dissolve the council of the Mnquma

                        Municipality was taken in terms of section 139 (1) of

                        the Constitution. It reads as follows:

      “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
                                        13
              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.”



                [15] Section 139 was amended by the Constitution of the

                       Republic of South Africa Second Amendment Act 3 of

                       2003 to the extent that it was substituted with a new

                       section consisting of eight sub-sections as opposed to

                       three as before. Relevant for purposes of the present

                       proceedings is that the term “executive” obligation in

                       sub-section (1) was extended to include executive

                       obligations in terms of the Constitution as opposed to

                       only in terms of legislation. In addition, the word “and”

                       linking paragraphs (a) and (b) was deleted. The most

                       significant amendment was the addition of paragraph

                       (c). As opposed to the word “and”, it is linked to the two

                       preceding paragraphs by the conjunctive “or”. Other

                       important additions were sub-sections (4) and (5). As in

                       the case of paragraph (c) these sub-sections anticipate

                       the dissolution of a municipal council in certain
                                                 14
                         circumstances.                                         Finally the word

                         “supervision” in the heading to section 139 was amended

                         to read “intervention”.

With one exception6, I have not been referred to any reported decision
where sub-section (1) formed the subject matter of the dispute. As will
appear more clearly from the submissions made, the meaning to be
attributed to the wording of the sub-section is central to a determination
of the validity of the decision to dissolve the Mnquma municipal council.
It is evident from a reading of sub-section (1) as amended (to be referred
to as sub-section (1)) that it deals with a failure by a municipality to fulfil
an “executive obligation”. By reason of such a failure the provincial
executive is empowered to take appropriate steps to ensure the fulfilment
of the obligation. The sub-section falls to be divided into three parts:
firstly, a failure to fulfil an executive obligation; secondly, a discretionary
power to intervene; and thirdly, the taking of appropriate steps, which
steps include the issuing of a directive, the assumption of responsibility
for the relevant obligation, or the dissolution of the council. In the event
of intervention taking the form of dissolution of the council, there is the
added aspect of exceptional circumstances envisaged in paragraph (c).




Preliminary Issues

                    [16] The respondents raised a number of points in limine

                         that must be dealt with before proceeding to the issues

                         raised on the merits of the application and the

                         submissions made in respect thereof on behalf of the


6
    See City of Cape Town v Premier of the Western Cape and Others 2008 (6) SA 345 (C). The
sub-section was dealt with in the context of a challenge to the power of a provincial government to
establish an investigation in terms of section 106 of the Systems Act and to appoint a commission of
enquiry. It was held that the subject matter of the investigation must be of such a nature that
intervention by the province in terms of section 139 of the Constitution could rationally result from the
commission’s report. (at para [94])
                                                15
                        parties.          The                                 issues        arising

                        therefrom are the following:

        (a) the authority of the firm of attorneys of record to act on behalf

             of the applicants;

the authority of first applicant’s legal adviser and of the second applicant
to institute the proceedings on behalf of the first applicant;
       (b) the locus standi of the second applicant to also bring the

             application in his personal capacity; and

        (c) whether the exercise of the provincial executive of its power to

             dissolve the municipal council constitutes executive action and

             is consequently not reviewable under the Promotion of

             Administrative Justice Act 3 of 2000 (PAJA) and Rule 53 of the

             Uniform Rules of Court (the Rules).



                   [17] In furtherance of these issues notices in terms of Rules

                        77 and 35(12)8 were filed by the respondents requesting

                        the applicants to produce: (a) a power of attorney


7
    Rule 7 enables a respondent in application proceedings to challenge the authority of a person who
purports to act on behalf of the applicant. When such authority is challenged the Rule requires the
person concerned to satisfy the Court he or she “is authorised so to act”. The method of establishing
authority where it is challenged is not prescribed. Gainsford NNO v Hiab AB 2000 (3) SA 635 (W) at
639J – 640A. This may be done by producing any acceptable form of proof and not necessarily by
filing a written power of attorney. See Johannesburg City Council v Elesander Investments (Pty) Ltd
1979 (3) SA 1273 (T) at 1279H – 1280A and Texeira v Industrial and Mercantile Corporation 1979
(4) SA 532 (O) at 538 A. The Rule requires the Court to be satisfied that authority exists at the time
when proof of it is profferred. Johannesburg City Council v Elesander Investments (Pty) Ltd 1979 (3)
SA 1273 (T) at 1280A.
8
    Rule 35(12) authorises the production of documents in legal proceedings.
                                     16
                   authorising   the                            applicants’

                   attorneys of record to act on behalf the municipal

                   council; (b) a general delegation to represent the

                   municipal council in the application, and (c), a

                   resolution of the municipal council recording its

                   decision to bring the application.



               [18] In response to the Rule 7 notice the applicants filed

                   powers of attorney wherein the legal adviser and the

                   Municipal Manager in their respective capacities, and

                   the second applicant in his personal capacity, confirmed

                   their instructions to the firm of attorneys concerned. As

                   a consequence the respondents at the hearing of the

                   matter elected not to pursue their challenge to the

                   authority of the applicant’s attorneys of record to

                   represent the applicants.



(a) The authority of the first applicant’s office bearers to institute the

proceedings on its behalf

               [19] The application was instituted on behalf of the

                   municipality by its legal adviser and the second
                                               17
                        applicant in his                                    capacity as its

                        mayor. It is alleged by them in the founding affidavit

                        filed in support of the application that they “have

                        resolved to bring the current application on behalf of the

                        Mnquma Municipality by virtue of the delegated authority

                        vested” in them. In response to the respondents’

                        challenge to their authority documentation was put up

                        showing a delegation by the municipal council to (i) its

                        Municipal Manager to “… institute, defend, compound

                        and/or settle any Criminal, Labour or Civil matter by or

                        against Council, and to settle any other proceedings by or

                        against Council whether in or out of Court, only in cases

                        where the Legal Advisor refuses to exercise his power, or

                        where the Legal Advisor is not available” and (ii), to its

                        executive mayor to “deal with legal actions and claims on

                        behalf of the Council, including prosecutions of a routine

                        nature, institution of ejectment proceedings, civil collections

                        and proceedings in the Industrial Court”. The respondents’

                        submission is that despite this delegation, the council,

                        as an artificial legal persona, is still required to take a

                        valid decision whether or not to litigate at all.9


9
    In argument it was submitted on behalf of the respondents with reference to one of the documents
                                                   18


                     [20] In terms of section 2 of the Municipal Systems Act a

                         municipality is an organ of state and has a separate legal

                         personality. It must be accepted that any proceedings

                         instituted by or on behalf of a municipality must be

                         authorised by its council. It is tasked by section 160 (1)

                         of the Constitution to “make all decisions concerning the

                         exercise of all the powers and the performance of all the

                         functions of the municipality”.10 This is usually done by

                         way of the adoption of a resolution to that effect.

                         However, as in the case of all other artificial legal

                         personae, there is no reason why it should be required

                         to convene a council meeting on each and every

                         occasion that it wishes to institute legal proceedings. It

                         may instead, as in the present matter, choose to delegate

                         its authority to do so to other persons. In dealing with

                         the representation of companies in legal proceedings the




filed in response to the respondents’ rule 35(12) notice, wherein members of the mayoral committee
expressed their support for the application, that it cannot be construed to constitute a ratification of any
of the actions taken by the mayor or the municipality’s legal adviser. But as the applicants did not in
argument attempt to place any reliance on this document but instead relied on the delegation of powers,
it is not necessary to deal with the submission by the respondents in this regard.
10
      Durban City Council v Minister of Labour 1947 (1) SA 373 (D) and Bestenbier v Goodwood
Municipality 1951 (4) SA 199 (C) at 202C.
                                                19
                        Court in Louw v                                       WP Koöperasie

                        Bpk11 referred with approval to the following passage in

                        Joubert’s The Law of South Africa:



        “Almost invariably the board of directors has the power to authorise the
        participation of the company in litigation. This does not mean that each
        and every law suit must be specifically authorised by a resolution of the
        board. It would be absurd if the directors were required to summon a
        meeting whenever the company wished, for instance, to take action for the
        recovery of a trade debt. Thus it is common practice for boards to
        delegate authority to other persons, for instance the managing director,
        the secretary, a manager or other officer of the company”.12



                   [21] The delegation of, what is termed, “appropriate”

                        powers by a municipal council to other political

                        structures, political office bearers, councillors and staff

                        members is also authorised by section 59(1) of the

                        Municipal Systems Act. Further, in terms of section 56

                        (3)(f) of the Local Government: Municipal Structures

                        Act 117 of 1998 (the Structures Act), the executive

                        manager of a municipality is tasked with the


11
    1991 (3) SA 593 (A) at 603 B-D.          .
12
    Vol. 4 para 276 at page 254. In Kritzinger v Newcastle Local Transitional Council and Others
2000 (1) SA 345 (N) it was held that a municipal council is not barred from delegating to an executive
committee the power to determine whether civil proceedings should be instituted or defended. See also
Democratic Alliance v Masondo NO and Another 2003 (2) SA 413 (CC) at para [21] and Blackman et
al Commentary on the Companies Act vol 1 at 4-20-1.
                                               20
                       performance          of                              such powers as

                       may have been delegated to him by the council. Section

                       60(3) of the same Act requires the mayor to exercise

                       such powers and functions that have been designated to

                       him together with members of the mayoral committee.



                   [22] It was not suggested on behalf of the respondents that

                       the delegation of the authority to institute legal

                       proceedings on behalf of the municipality was not

                       authorised by the relevant provisions in any of the

                       enactments dealing with the powers and functions of

                       local government. On the evidence placed before me

                       and in the absence of anything to the contrary, 13 I am

                       satisfied that the office bearers concerned had authority

                       to initiate proceedings on behalf of the municipality and

                       that the objection to the standing of the municipality

                       should therefore fail.



(b) The locus standi of the second applicant


13
    See the test applied in Parsons v Barkley East Municipality 1952 (3) SA 597 (E). See also Thelma
Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C); Mall (Cape) (Pty) Ltd v Merino Ko-operasie
Bpk 1957 (2) 347 (C) at 352 A-B; and Griffiths v Inglis v Southern Cape Blasters 1972 (4) SA 249 (C)
at 252 F-G.
                                                     21
                     [23] The        objection                   raised   to   the

                         standing of the second applicant is based on his election

                         to also seek the relief claimed in his capacity as a

                         “ratepayer” and a “registered voter”. The contention is

                         that the second applicant only has an indirect interest in

                         the proceedings and that as a private litigant he is not

                         prejudiced by what is purely a temporary remedial

                         measure. It is rather, so the submission goes, the

                         municipal council as a body and/or each of its members

                         in that capacity that are most closely affected by the

                         decision.



                     [24] In my view the objections and the submissions made

                         in support thereof lose sight of two aspects: The first is

                         that in a municipal government that has a mayoral

                         executive system as provided in the Structures Act, the

                         executive leadership of the municipality is vested in the

                         executive mayor. 14 The mayor is however also a

                         councillor. The reason for this is the fact that he is, in

                         terms of section 55(1) of the Structures Act, elected

14
     Section 7(b) of the Municipal Structures Act.
                      22
   from among the                              members of the

   municipal council. Secondly, the term of office of the

   mayor ends with that of the council. He accordingly

   suffers the same prejudice as any other member of the

   council. It is accordingly not correct to draw the

   distinction which the respondents sought to do.



[25] Further, as will appear more clearly when I deal with

   the next preliminary issue, the applicants’ challenge to

   the validity of the decision to dissolve the municipal

   council raises a constitutional issue based on the

   doctrine of the rule of law. The second applicant is not

   only the mayor and a councillor, but he is also as a

   member of the community whom the Mnquma

   Municipality serves. According to section 2(c) of the

   Systems Act a municipality functions in its area in

   accordance with “the political, statutory and other

   relationships between its political structures, political office

   bearers and administration and its community”. This Act

   also    encourages      community        participation     and
                                                      23
                                                 15
                          involvement.                                Community

                          participation in local government affairs, including the

                          election of office bearers, gives expression, as I will

                          indicate later in this judgment, to the democratic

                          principles and values of our Constitution and the

                          political rights of the individual entrenched in section

                          19 of the Constitution. In this context it is in my view

                          appropriate to rather adopt a broader approach to

                          standing as contemplated in section 38 of the

                          Constitution. I am accordingly satisfied that the second

                          applicant has locus standi in his personal capacity and

                          that the preliminary objection in this regard should be

                          dismissed.



(c) No judicial review of administration action

                     [26] The respondents’ complaint under this heading relates

                          to the nature of the relief claimed by the applicants in

                          these proceedings and the procedure adopted in doing

                          so. In their notice of motion the applicants asked that

                          the decision of the provincial executive to dissolve the


15
     Section 4(c). See also section 152(e) of the Constitution.
                                    24
             council       should                           be reviewed and

             set aside. It is common cause that by virtue of the

             provisions of PAJA the province’s exercise of its

             constitutional powers in terms of sub-section (1)

             constitutes      executive       action     as     opposed   to

             administrative action. In terms of section 1(bb) thereof

             the executive powers or functions of the provincial

             executive referred to in section 139 are pertinently

             excluded from the definition of what constitutes

             administrative action. Consequently, the decision to

             intervene in the affairs of a municipality in terms of

             section 139(1) is not justiciable in the sense of being

             susceptible to review. The respondents’ submission in

             this regard is that the procedural rules provided in rule

             53 do not apply to anything other than administrative

             action. It was submitted that the applicants had

             misconceived their remedy and that the only competent

             relief available to them would have been a declaration

             of invalidity in terms of section 172(1)(a) of the

             Constitution. This section reads as follows:

“(1) When deciding a constitutional matter within its power, a court –
                                           25
       (a) must declare that any law or                     conduct that is inconsistent
           with the Constitution is invalid to the extent of its inconsistency; and
may make any order that is just and equitable, including –
      (i)    an order limiting the retrospective effect of the declaration of invalidity;
               and
an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.”


                 [27] The relationship between the individual and public

                     bodies, and the relationship between public bodies such

                     as central and local government, is governed by the

                     principles of public law. Under the common law the

                     courts have developed a body of principles that ensure

                     that public bodies do not exceed or abuse their powers

                     and that they perform their duties. The primary method

                     by which a court exercises its supervisory jurisdiction

                     over public bodies is by way of judicial review. The

                     right to administrative action that is subject to judicial

                     review has now been entrenched in section 33 of the

                     Constitution and was given effect to by the provisions

                     of    PAJA.      The       procedural     rules     applicable   to

                     applications for judicial review are contained in Rule 53

                     of the Uniform Rules of Court.
                                              26
                   [28] Under our new                                           constitutional

                       dispensation the relationship between the individual and

                       public bodies and between public bodies inter se is now

                       also informed by the Constitution. It binds all spheres of

                       government, which are constrained by the principal of

                       legality, sometimes referred to as the rule of law, which

                       arises from the provisions of the Constitution rather

                       than the administrative justice clause in section 33.16 It

                       demands that any sphere of government may not

                       exercise any power or perform any function beyond

                       those conferred upon them by the Constitution and that

                       the exercise of all public power has to comply with the

                       Constitution. It expresses the idea that the exercise of

                       public power is only legitimate where lawful. With

                       regard to the content of the principle of legality, the

                       Constitutional Court in Fedsure Life Assurance v

                       Greater Metropolitan Council17 held that the principle

                       of legality implied that an entity exercising public


16
    Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the
Republic of South Africa and Others 2000 (2) SA 674 (CC) at paras [20] and [85]; Fedsure Life
Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Other 1999
(1) SA 374 (CC); President of the Republic of South Africa and Others v South Africa Rugby Football
Union and Others 2000 (1) SA 1 (CC) para [148]; Prinsloo v Van der Linde and Another 1997 (3) SA
1012 (CC) and Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566
                                            27
                      power had to act                                 within             the

                      powers lawfully conferred on it. In President of the

                      Republic of South Africa v South African Rugby

                      Football Union18 it required the holder of power to act

                      in good faith and not to misconstrue his or her powers.

                      In Pharmaceutical Manufacturers Association of South

                      Africa: In Re Ex Parte President of the Republic of

                      South Africa19, the same Court held that the principle of

                      legality demanded that the exercise of public power

                      should not be arbitrary or irrational. This included the

                      requirement that the decision must be rationally related

                      to the purpose for which the power was given “…

                      otherwise they are in effect arbitrary and inconsistent with

                      this requirement. It follows that in order to pass

                      constitutional scrutiny the exercise of public power by the

                      Executive and other functionaries must, at least comply with

                      this requirement. If it does not, it falls short of the standards

                      determined by our Constitution for such action.”20




(CC) at para [78].
17
   Supra at paras [56] and [58 ].
18
   Supra at para [148].
19
   Supra at para [85].
20
   Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic of
South Africa supra at para [85].
                                              28
                   [29] The                                                    constitutional

                       principle of legality is of application even when the

                       action in question is an exercise of public power that

                       does not qualify as administrative action in terms of the

                       right to administrative justice. Legality thus provides a

                       remedy when the action in question is not subject to

                       review in terms of PAJA but nonetheless constitutes

                       action taken in pursuance of public power. It is clear

                       from what has been stated to fall within the ambit of the

                       principle of legality that it overlaps with the principles

                       that are ordinarily applied to the right to administrative

                       justice in section 33 of the Constitution. The application

                       of the principle has in fact been referred to by some as

                       being similar to a review that takes place on limited

                       grounds.21



                   [30] Section 172 of the Constitution referred to by the

                       respondents provides a remedy to a failure to comply

                       with the constitutional imperative of legality. An


21
     See Hoexter The New Constitutional and Administrative Law vol. 2 at 84. The author describes
it as a safety net “… capable of coming to the rescue when the action in question does not qualify
for review in terms of the Promotion of Administrative Justice Act or in terms of s.33.” (at 84)
                                               29
                        appropriate                                          remedy         is     a

                        declaration of invalidity. There is no specific procedure

                        which is prescribed in the Constitution for the

                        enforcement of a remedy as provided for in section 172.

                        It may be enforced either by way of action or by way of

                        motion proceedings. As in all other cases, the decision

                        as to which procedure to follow will be informed by the

                        facts and circumstances of each particular case. In most

                        instances however motion proceedings may prove to be

                        appropriate.



                            [31] I      may       add      that      none       of     the cases

                                referred to in paragraph [30]

above which deal with the principle of legality include any of the

requirements relating to procedural fairness as part of the content of the

said principle. This may suggest that it does not extend to procedural
                                                                                           22
requirements such as the audi alteram partem principle.                                          The

respondents contended that by reason of the fact that the exercise of the

power to dissolve a municipal council does not constitute administrative


See further Minister v Health v New Clicks SA (Pty) Ltd and Others 2006 (2) SA 311 (CC) at para [97].
22
     In fact in Masetlha v President of the Republic of South Africa supra at para [78] Moseneke DCJ
stated that procedural fairness is not a requirement.
                                           30
action as defined in PAJA, there                was no duty on the respondents to

give the municipality prior notice thereof. However, as stated by

Hoexter,23 the principle of legality:

          “… has already developed considerably since it was first identified by the
          Constitutional Court, and it is likely to be developed further. While the courts
          have not always been sure of its status or willing to make use of it, they now
          regard it as an essential safety net and frequently turn to it. It is becoming
          increasingly common for judges to observe that if their diagnosis of
          administrative action turns out to be wrong, it makes no real difference
          because the principle of legality makes the same demands as regular
          administrative law.”24




                     [32] That the application of the principle of legality in the

                         context of the provisions of section 139(1) may also

                         demand procedural fairness is in my view not without

                         merit. As I shall attempt to indicate when I deal with the

                         constitutional context of sub-section (1), the power to

                         dissolve a municipal council encroaches on the

                         autonomy of the sphere of local government. Its effect

                         is also prejudicial to the individual members of the

                         council as they are in most instances removed from

                         their positions against their will with adverse financial


23
     Administrative Law in South Africa.
24
     At 219.
                                                  31
                                             25
                        implications.                                       In            addition,

                        section 139, as I will show when I deal with the

                        interpretation of sub-section (1), requires the objective

                        determination of certain precautions before it may be

                        invoked. Accordingly, it may be argued that the

                        relevant authority cannot do so without also receiving

                        evidence from the council itself. However, as the matter

                        can be disposed of on other grounds I shall refrain from

                        making any finding in this regard.



                    [33] The question is in essence whether the applicant

                        should be non-suited for making use of a procedure

                        designed for the exercise by the High Court of its

                        supervisory jurisdiction over the proceedings and

                        decisions of bodies or persons charged with the

                        performance of administrative acts and duties. The

                        overriding question in this regard is in my view whether

                        the proceedings constitute an abuse of the process of

                        Court. In the present matter an application raises issues

                        of general public importance and it has not been

25
     In terms of Section 167 of the Municipal Finance Management Act councillors may be
                                               32
                          suggested     that                          the respondents

                          had been unjustly or unfairly treated or were in any way

                          prejudiced by the applicants having adopted an

                          incorrect procedure. As indicated, the grounds for

                          contesting the legality of the exercise of public power

                          overlap with the usual grounds of review and a

                          procedure    similar      to   that   for   the   review   of

                          administrative action is equally conducive to an

                          effective ventilation of the issues that may arise in

                          proceedings founded on the principle of legality. The

                          principle of legality has been pertinently raised by the

                          applicants on the papers and the grounds upon which

                          the applicants rely have been fully raised and ventilated.

                          For these reasons, notwithstanding any procedural

                          defect that may exist, I am of the view that some

                          flexibility is necessary in the present matter.



The principal submissions made on behalf of the parties

                      [34] Mr JC Heunis SC appeared, with Mr Osborne and Ms

                          Ferreira, on behalf of the applicants. The applicants’


   compensated by the municipality.
                      33
case        largely                        revolves around

the meaning and ambit of sub-section (1). It is in

essence that the authority of a provincial executive to

act in terms of sub-section (1) is subject to the existence

of certain facts or the fulfilment of certain conditions,

and that the exercise of such authority in the absence of

those facts or without fulfilment of those conditions

would      render     the   provincial   executive     without

jurisdiction and as a consequence the decision to

intervene would be ultra vires. In their heads of

argument and at the hearing of the matter counsel for

the applicants focused on the first and third parts of

sub-section (1). With regard to the first part thereof, two

submissions were made: the first was that since the

sub-section is framed in the present tense, it is

concerned with an ongoing failure as opposed to a past

failure to fulfil an executive obligation. Secondly, the

term “executive obligation” has a very specific meaning

and must be limited to matters concerning the

formulation of policy as opposed to matters such as the

delivery     of     services    which    would       constitute
                       34
   administrative                               action.



[35] It was further submitted that, having regard to the legislative

   scheme governing provincial and local government relations,

   which include the provisions of and the remedies provided in the

   Municipal Finance Management Act and the Municipal Systems

   Act, sub-section (1) envisages an incremental series of steps.

   Accordingly, more intrusive measures, such as the dissolution of

   a council, are only justified by the manifest failure of the

   previous intervention. The final submission was that the term

   “exceptional circumstances” in paragraph (c) must be

   interpreted restrictively to mean such circumstances that

   are unusual and would exist if the form of intervention

   as envisaged in paragraphs (a) and (b) had been

   unsuccessful due to an unwillingness on the part of the

   municipality to resolve matters.



[36] Mr J Gauntlett SC, with Mr F Pelser, represented the

   respondents at the hearing of the application. The

   submissions made on behalf of the respondents were

   that the applicants’ interpretation of the jurisdictional

   facts in sub-section (1) was flawed in that no, what was
                      35
   referred to as a                          “bright        line”

   distinction, can be drawn between executive and

   administrative    competencies      in   the   context     of

   sub-section (1). It was inter alia contended that the

   failure of a municipal council to comply with

   constitutional imperatives or statutory obligations

   substantially entails executive action. It was argued that

   while it may be true that it is a feature of administrative

   action that it does not extend to the formulation of

   policy or the initiation of legislation by the executive it

   does not follow conversely that action that extends to

   the implementation of legislation is per se exclusively

   administrative in nature.



[37] In response to the applicant’s submissions dealing with the

   second part of sub-section (1), it was submitted that the

   construction given thereto by the applicants amounted to the

   imposition of a “less drastic step” requirement. It was

   argued that the sub-section must be interpreted with

   reference to its clear wording and that to give such an

   interpretation to sub-section (1) would be to inject a
                                  36
               requirement into                         it     that   simply

               does not exist.



The Constitutional Context

            [38] Before examining the provisions of sub-section (1) it

               is necessary to consider its significance in the scheme of

               the Constitution. Section 139, as is the position with

               most of the provisions of the Constitution, cannot be

               read in isolation but has to be viewed against the

               background of the constitutional framework which it

               forms part of. Chapters 3, 5, 6 and 7 of the Constitution

               are of particular relevance to the present enquiry. These

               chapters establish a number of, what may be termed,

               constitutional features or principles that either instruct

               or inform the manner in which the individual sections

               that form part thereof are to be interpreted.



            [39] Central to this is the fact that Chapters 3 and 5 to 7

               provide for a new constitutional dispensation where

               government authority has been divided amongst three

               levels   of   government.    Section    40      divides   the
                                            37
                          government into                                   national,

                          provincial and local spheres of government which are

                          distinctive, interdependent and interrelated. The three

                          spheres are obliged to respect the constitutional status,

                          institutions, powers and functions of government in the

                          other spheres, 26 and must exercise their powers and

                          perform their functions in a manner that does not

                          encroach on their functional or institutional integrity.27
                                                         28
                          Each has its own budget              and the division and

                          allocation of revenue between the different levels is a

                          matter for national legislation.29



                     [40] On a reading of the provisions that deal with this

                          structure of government there are in my mind four

                          features that stand out: the first is the enhanced status of

                          local government. Placed in historical context, local

                          government under the new constitution dispensation

                          enjoys a far more enhanced status compared to what

                          was previously the position. As opposed to being


26
     Constitution, section 41(1)(e).
27
     Constitution, section 41(1)(g).
28
     Constitution, section 215(1).
                                                  38
                        “creatures           of                              statute”, in other

                        words, owing their existence to and deriving their

                        powers from provincial ordinances, municipalities now

                        derive their existence and powers directly from the

                        Constitution.30 Local government is therefore no longer

                        regarded as a functional area of competence of the

                        provinces. It is a distinctive sphere of government

                        which is “… suggestive of an equality as between the

                        concepts of national, provincial, and local governmental

                        structures, as opposed to the more traditional hierarchical

                        levels of power and importance.”31 The autonomous nature

                        of municipalities is underlined by section 151. It

                        provides that the executive and legislative authority of a

                        municipality is vested in the Municipal council and it

                        has the right to govern, on its own initiative, the local

                        government affairs of its community. 32 In terms of

                        sub-section (4) of section 151 the national or provincial


29
   Constitution, section 214(1).
30
    See Fedsure Life Assurance v Greater Johannesburg Transvaal Metropolitan Council & Others
supra at paras [38] and [126]; City of Cape Town and Another v Robertson and Another 2005 (2) SA
323 (CC) at paras [53] to [60]; CDA Boerdery [Edms] Bpk and Others v Nelson Mandela Metropolitan
Municipality 2007 (4) SA 276 (SCA) at paras [33] and [38] and Stalwo (Pty) Ltd v Wary Holdings
(Pty) and Another 2008 (1) SA 654 (SCA) at para [26].
31
    Uthukela District Municipality & Others v President of the Republic of South Africa & Others 2002
(5) BCLR 479 (N) at 485 G-H.
32
    Sub-sections (2) and (3).
                                            39
                          government may                            not “compromise

                          or impede a municipality’s ability or right to exercise its

                          powers or perform its functions.” As opposed to only

                          being a service delivery agent, municipalities are now

                          also tasked with developmental duties.33



                     [41] A second aspect is that, while it provides for a

                          governmental     structure    wherein     each   sphere   of

                          government has its own distinctive status, powers and

                          functions, the constitutional framework establishes a

                          relationship   between       the   different   branches   of

                          government based on co-operation, which is aimed at

                          the advancement of inter-governmental participation

                          and support. All the spheres of government are tasked

                          to observe the principle of co-operative government and

                          must conduct their activities within the parameters of

                          Chapter 3 of the Constitution.34 In this context section

                          155 (6)(b) places a duty on each provincial government

                          to support local governments in their provinces and

                          further to promote the developmental capacity of local


33
     Section 153(a) and (b).
                                              40
                       governments so                                      as to enable them

                       to perform their functions and duties. Section 154(1) in

                       turn obliges the national and provincial governments to

                       support and strengthen, by legislative and other means,

                       the capacity of municipalities to manage their own

                       affairs and to exercise and perform their functions. The

                       duty to provide support has been extended by the

                       different enactments dealing with local government.35



                   [42] Thirdly, although the constitutional framework seeks

                       to realise a local government structure that is a

                       distinctive and autonomous sphere of government, it is

                       important to recognise that it is not without limitations.

                       Municipalities can perform only such powers and

                       functions that they are legally permitted to perform.

                       Section 151(3) of the Constitution to this extent

                       provides that the right of municipalities to govern is


34
    Sections 40(2) read with section 41(1)(h).
35
   Section 34 of the Municipal Finance Management Act for example provides the following in
sub-sections (1) and (2):
          “(1)     The    national and provincial governments must by agreement assist
         municipalities
                in building the capacity of municipalities for efficient, effective and transparent
                financial management.
       (2) The national and provincial governments must support the efforts of municipalities to
           identify and resolve their financial problems”.
                                                   41
                        “subject              to                               national            and

                        provincial legislation”. The parameters of legislative

                        oversight is determined by the qualification that such

                        legislation is limited to what is provided for in the

                        Constitution. In other words, the areas of legislative

                        competence of national and provincial government in

                        this regard are determined by the Constitution itself.



                    [43] A limitation that is important in the context of this

                        judgment arises from the concept of co-operative

                        government. Co-operative government not only relates

                        to the provision of support and assistance to local

                        governments, but also involves an aspect of supervision.

                        Section 155(6) of the Constitution in fact pertinently

                        provides that a provincial government must by

                        legislative or other measures provide, not only for the

                        support, but also for the monitoring of local

                        government. 36 In terms of sub-section (7) both the

                        national and provincial governments have legislative


36
   Section 155(7) also provides that national and provincial government have, subject to section 44, the
legislative and executive authority to see to the effective performance by municipalities of their
functions.
                                                 42
                         and        executive                                  authority to “see

                         to the effective performance by municipalities of their

                         functions…” This provision underlines the fact that the

                         autonomy of municipalities is relative. The duty to

                         perform a monitoring function is accompanied by the

                         right to take corrective measures. Intervention is

                         authorised by the subject matter of this judgment,

                         namely section 139 of the Constitution. This, as stated

                         by the Constitutional Court in Ex Parte Chairperson of

                         the Constitutional Assembly: In Re Certification of the

                         Amended Text of the Constitution of the Republic of

                         South Africa 1996 (the Second Certification judgment)37

                         “… is conducive to effective public administration”, and that

                         in the constitutional scheme as embodied in the

                         aforementioned chapters, the provincial executive “… is

                         fully entitled, if not obliged, to do what is necessary to ensure

                         that the Constitution and legislation consistent with the

                         Constitution are adhered to.”38




                     [44] A fourth important feature that arises from the


37
     1997 (2) SA 97 (CC).
38
     Ibid at para [118] See also para [370] of the First Certification judgment (Ex Parte Chairperson of
                                               43
                       structure            of                                     government

                       entrenched in section 40 of the Constitution is that it

                       provides a forum for local community participation in

                       the affairs of all levels of government, including local

                       government level. By establishing a local government

                       structure that is distinctive from the other spheres of

                       government, and whose members are democratically

                       elected, it entrenches democracy from the bottom up by

                       providing for, what has been termed, “grass-roots

                       democracy”.39 Members of a municipal council are now

                       elected by the members of the community which they

                       serve. The elected council is a deliberative assembly

                       with legislative and executive powers expressing the

                       wishes of its constituency. This is in line with the

                       democratisation of our country by the establishment of

                       a constitutional state based on democratic principles and

                       values.       The         democratic        government           that     is
                                                                                          40
                       contemplated is a participatory democracy.                              The

                       preamble of the Constitution declares that it lays “the


the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa
1996, 1996 (4) SA 744 (CC)).
39
    Bekink The Principles of South African Local Government Law at page 64 and Devenish A
                                        44
                        foundation for a                                      democratic          and

                        open society”. Section 1 of the Constitution, which

                        establishes the founding values of the State, includes as

                        part of those values “a multi-party system of democratic

                        government, to ensure accountability, responsiveness and

                        openness”.41




                    [45] Flowing from the fact that the structure of local

                        government allows for community participation based

                        on the principle of democracy is the feature that local

                        government is, as in the case of the other two spheres of

                        government, also part of the political structure of

                        government. Participation in this level of government

                        takes place in a democratic manner by the exercise of

                        the political rights entrenched in section 19 of the

                        Constitution. 42 Community members elect their own


Commentary on the South African Constitution at page 199.
40
    Minister of Health v New Clicks SA (Pty) Ltd and Others supra at para [111].
41
    “The Republic of South Africa is one sovereign democratic state founded on the following values:
       (a) …..
       (b) …..
       (c) …..
       (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party
system of democratic government, to ensure accountability, responsiveness and openness”.
42
    It reads as follows:
       “19 (1)     Every citizen is free to make political choices, which includes the right-
           (a) to form a political party;
to participate in the activities of, or recruit members for, a political party; and
to campaign for a political party or cause.
                                                 45
                          representatives                                      on       a       party

                          political basis and according to the ideology of the party

                          the candidates represent. Local government therefore

                          also creates a forum for the democratic representation

                          of its electorate. That being so, deference must be

                          shown to the choices made by community members in

                          the election of representatives. Added to this is that a

                          council that does not fulfil its functions or the

                          expectations of the electorate should be removed by the

                          normal democratic processes. A voter can be expected

                          to “suffer” his vote for the duration of the term for

                          which the representatives have been elected.



                     [46] To summarise, local government is a “… sphere of

                          government that is profoundly democratic, enjoys a measure

                          of self-government, is mandated to be developmental and

                          functions in co-operation with and under the supervision of

                          the national and provincial spheres of government.”43


              (2)      Every citizen has the right to free, fair and regular elections        for any
legislative body
                         established in terms of the Constitution.
     (3)  Every adult citizen has the right-
              (a) to vote in elections for any legislative body established in terms of the Constituion
                  and to do so in secret; and
                     (b) to stand for public office and, if elected, to hold office.”
43
      Steytler and de Visser Local Government Law of South Africa at 1-23.
                                                    46



     The Scope and Meaning of Section 139(1)

(a) “When a municipality cannot or does not fulfil an executive obligation”

                        [47] It is clear from a reading of the first part of

                             sub-section (1) that the

     authority or power of the provincial executive to intervene in a manner as

     provided for therein is subject to the existence of the fact that a

     municipality “cannot or does not fulfil an executive obligation in terms of the

     Constitution or legislation”. In the context of sub-section (1), it constitutes a

     statutory precondition or jurisdictional fact, the existence of which is a

     necessary prerequisite to the exercise by the relevant provincial executive

     of its statutory power to intervene. 44 What a jurisdictional fact is was

     dealt with authoritatively by Corbett J in South African Defence and Aid

     Fund and Another v Minister of Justice:45

             “Upon a proper construction of the legislation concerned, a jurisdictional fact
             may fall into one or other of two broad categories. It may consist of a fact, or
             state of affairs, which, objectively speaking, must have existed before the
             statutory power could validly be exercised. In such a case, the objective
             existence of the jurisdictional fact as a prelude to the exercise of that power in
             a particular case is justiciable in a Court of law. If the Court finds that
             objectively the fact did not exist, it may then declare invalid the purported
             exercise of the power (see eg. Kellerman v Minister of Interior, 1945 TPD 179;


     44
         That the exercise of the power to intervene is made conditional “on specific circumstances and is
     constrained by specific procedures” was acknowledged by the Constitutional Court in the first
     certification judgment, supra at para [370].
                                                 47
          Tefu v Minister of Justice and              Another, 1953 (2) SA 61 (T)). On the
          other hand, it may fall into the category comprised by instances where the
          statute itself has entrusted to the repository of the power the sole and exclusive
          function of determining whether in its opinion the pre-requisite fact, or state of
          affairs, existed prior to the exercise of the power. In that event, the jurisdictional
          fact is, in truth, not whether the prescribed fact, or state of affairs, existed in an
          objective sense but whether, subjectively speaking, the repository of the power
          had decided that it did. In cases falling into this category the objective existence
          of the fact, or state of affairs, is not justiciable in a Court of law. The Court can
          interfere and declare the exercise of the power invalid on the ground of a
          non-observance of the jurisdictional fact only where it is shown that the
          repository of the power, in deciding that the pre-requisite fact or state of affairs
          existed, acted mala fide or from ulterior motive or failed to apply his mind to the
          matter. (See eg Minister of the Interior v Bechler and Others, supra; African
          Commercial and Distributive Workers’ Union v Schoeman, NO and Another, 1951
          (4) SA 266 (T) R v Sachs, 1953 (1) SA 392 (AD)).”



                     [48] The existence of the jurisdictional facts in sub-section

                         (1) is not left to the discretion of the provincial

                         executive         but   is    an   objective     fact    which      is

                         independently triable by a Court. Sub-section (1) does

                         not provide that the provincial executive has the power

                         or jurisdiction where it “is of the opinion” or it “is

                         satisfied” of certain matters, or where certain facts

                         “appear” to exist, in which case different considerations

                         arise and the power of the Court to intervene may be

                         more limited. Accordingly, as stated by Corbett J in the

45
     1967 (1) SA 31 (A) at 34 A to 35 D.
                                           48
                         The         South                        African Defence

                         and Aid Fund 46 case, considerations relevant to the

                         determination of fact would apply and the duty is on the

                         authority concerned to place sufficient information

                         before the Court to satisfy it that the required factual

                         position did in fact exist. It is therefore open to a Court

                         to determine for itself whether the jurisdictional fact

                         concerned existed, and it may intervene if its conclusion

                         differs from that of the provincial executive.



                      [49] With regard to the words “cannot or does not fulfil” in

                         sub-section (1), counsel for the applicant referred me to

                         the decision in City of Cape Town v Premier, Western

                         Cape and Others47 where Swain J said the following:


         “This section is concerned with an omission or an inaction by the municipality
         and not positive misconduct. It is also framed in the present tense, being
         concerned with an ongoing failure and not a past failure. Intervention would
         not be appropriate where a past omission had already ceased.”48



In the context of section 100 of the Constitution, the counterpart of


46
     Supra at 35 A.
47
     Supra.
48
     At para [79].
                                                49
section 139, the Constitutional                      Court in the First Certification

judgment stated that the section serves the limited purpose of enabling the

national        government          to   take    appropriate   executive   action   in

circumstances where this is required because a provincial government is

“unable or unwilling” to do so itself.49




                     [50] Given their ordinary meaning the words used in

                            sub-section (1) in my view relate to two situations; on

                            the one hand the inability to fulfil an executive

                            obligation, and on the other, the failure to do so. The

                            inability to fulfil an executive obligation should in my

                            view not be unduly limited but should be interpreted so

                            as to include the inability to effectively fulfil an

                            executive obligation. It should accordingly include the

                            situation where a municipality attempted to perform an

                            executive obligation but was unsuccessful. To hold

                            otherwise would defeat the object of sub-section (1). I

                            however do not find it necessary to make any positive

                            finding in this regard as it did not, in the context of the

                            present matter, arise as one of the issues that must be

49
     Supra at para [266].
                                              50
                            decided.



                    [51] What was however pertinently raised in argument is

                            that when the provisions of sub-section (1) are invoked,

                            a provincial executive cannot place reliance on an

                            inability or a failure that may have occurred in the past

                            but which has since been rectified or complied with. In

                            support of this construction counsel for the applicants

                            placed reliance on what was said by Swain J in the City

                            of Cape Town 50 judgment quoted earlier. Counsel for

                            the respondents did not attempt to argue otherwise.



                    [52] More problematic is the requirement that the failure

                            must relate to an “executive obligation”. As to the

                            meaning that should be attributed to the term, counsel

                            for the respective parties expressed different opinions. It

                            was submitted on behalf of the applicants that a

                            restrictive interpretation should be given to the words in

                            the sub-section. It was argued that it does not extend to

                            the implementation of legislation and to matters such as

50
     See para [51] above.
                                      51
                the delivery of                        services but that

                it is limited to matter such as the development of policy

                and the introduction of by-laws. In support of this

                submission counsel placed reliance on the distinction

                that has been drawn in the case law between

                administrative action and executive action. The

                contention essentially is that the meaning to be

                attributed to the words “executive obligation” must be

                consistent with what is understood to constitute

                “executive action”.




              [53] Counsel for the applicants placed reliance on two

                reported decisions. In the first, a decision of the

                Constitutional Court in President of the Republic of

                South Africa and Others v South African Rugby

                Football Union and Others, 51 one of the issues that

                arose for determination was whether the appointment of

                a commission by the President in terms of section

                84(2)(f) of the Constitution amounted to administrative

                action as contemplated in section 33 of the Constitution.

51
     Supra.
                                             52
                          In dealing with                         this     issue    the

                          Court     stated   that   one   of    the      constitutional

                          responsibilities of the President and cabinet members in

                          the national sphere is to ensure the implementation of

                          legislation.52 This responsibility, according to the Court,

                          was an administrative one which is justiciable, and will

                          ordinarily constitute “administrative action” within the

                          meaning of section 33. However, members of cabinet

                          also have other constitutional responsibilities and, in

                          particular, the duty to develop policy and to initiate

                          legislation. The Court held that action taken in carrying

                          out this responsibility cannot be construed as being

                          administrative action for the purposes of section 33.53



                     [54] It was argued on behalf of the applicants that,

                          “executive obligation” as contemplated in sub-section (1)

                          must be construed in a similar manner so as to be

                          confined to the obligations of a municipal council to

                          develop

policy and to initiate by-laws. I do not agree with the submission that the

52
     At paras [140] to [143].
                                              53
distinction relied upon can be                     applied to “executive obligation” in

sub-section (1). Precise definitions of what constitutes administrative,

executive or legislative functions are not attainable as one class of

function tends to shade off into another.54 The meaning to be attributed to

the words “executive” and “administrative” would vary according to the

context and the purpose for which the classification is attempted. The

purpose of the distinction that was made in the South African Rugby

Football Union 55 case was to determine whether the decision by the

President to appoint a commission was “administrative action” and

therefore the subject matter of Section 33. That section deals with the

entrenched right of an individual to just administrative action.

Accordingly, the distinction which the applicants sought to apply to the

present matter was made in the context of a determination of what

administrative action is in respect of the right to fair administrative action

in section 33 the Constitution.



                   [55] The purpose of the distinction in the present matter is,

                       in the context of sub-section (1), to determine whether a

                       jurisdictional fact necessary for the exercise of a

53
   At para [142].
54
   See Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6)
SA 313 (SCA) at para [25].
55
   Supra.
                 54
constitutional                          power has been

shown to exist, as opposed to whether a decision or

action taken by a public body constitutes the exercise of

public power which is subject to the supervisory powers

of review of the Court. The word “executive” in

sub-section (1) is used in the context of an obligation

that is imposed on a municipality “in terms of the

Constitution or legislation”. Accordingly, what would

constitute an executive obligation must be determined

with reference to the Constitution and the legislation

referred to. While the definitions attributed to the words

“administrative” and “executive” where they are used in

another context can provide some guidance, it cannot

simply and without qualification be transferred to or

applied to the search for the meaning of the words

“executive obligation” as used in sub-section (1). The

distinction and the case law dealing therewith can only

be relevant to the extent permitted by the different

statutory contexts and the purpose for which the

distinction is sought. I am of the view that it is more

appropriate to extract a contextual meaning for this term
                                               55
                       as    opposed      to                   simply applying

                       the distinction relied upon thereto.

Neither sub-section (1) nor any of the other provisions of chapter 7
pertinently specify the executive obligations of a municipal council. What
is clear from a reading of section 139 as a whole is that it does not include
an obligation to approve a budget or any revenue raising measures, or a
material breach of an obligation to provide basic services, or to meet its
financial commitments which is “as a result of a crisis in its financial affairs.”
These matters are specifically dealt with in sub-sections (4) and (5). The
word “executive” is defined in the as “pertaining to execution; having the
function of executing; esp. as concerned with carrying out the laws, decrees, and
judicial sentences; opp. To “judicial” and legislative”.56 Generally speaking
the word “executive” in the context of a democracy or a democratic state
refers to bodies exercising functions of a public nature, including the head
of state, cabinet or individual ministers and government departments. In
this context it is to be distinguished from the legislature and the judiciary.
The functions performed by the executive are the residue of functions of
government after legislative and judicial functions have been taken away.
These functions may “… be said to entail the formulation or application of
general policy in relation to particular situations or cases, or the making or
execution of individual discretionary decisions. More specifically they include the
execution of law and policy, the maintenance of public order …. And the
provision, regulation, financing or supervision of such services as education,
public health, transport and national insurance.”57


                   [56] The meaning to be accorded to this term must in my

                       view rather be found within and against the background

                       of the constitutional framework of the sections dealing

                       with the different spheres of government. As stated

                       earlier, in terms of section 40(1) the government is

                       constituted as national, provincial and local spheres of


56
     The Shorter Oxford English Dictionary.
                                                 56
                         government. At a                             national level the

                         executive is headed by the President, assisted by a

                         Deputy President and a cabinet, the members of which

                         are appointed by the President.58 At a provincial level

                         the executive arm consists of the Premier and an

                         executive council consisting of the Premier as the head

                         of the council, and a number of members appointed by

                         the Premier from amongst the members of the

                         provincial legislature.59



                     [57] On both a national and provincial level legislation is

                         considered and passed by an elected legislature. In

                         terms of sections 85 and 125 of the Constitution the

                         “executive authority” of the central and provincial

                         governments vests in the President and the Premiers of

                         the Provinces respectively. This, according to the two

                         sections, includes the authority to implement and

                         administer legislation, to develop and implement policy,

                         to co-ordinate the functions of state and provincial


57
     Halsbury’s Laws of England 4th ed reissue vol. 8(2) at para 9.
58
     Constitution, sections 83 and 91.
59
     Constitution, sections 125 and 132.
                                                   57
                          departments and                                   to prepare and

                          initiate legislation and perform any other executive

                          function provided for in the Constitution or in national

                          legislation or, in the case of a province, any other

                          function assigned to the provincial executive. 60 This

                          quite clearly accords with what is generally understood

                          by the term “executive”.



                     [58] By contrast, in chapter 7 of the Constitution, which

                          deals with local government, there is no separation of

                          executive and legislative functions. According to


60
     The relevant portions of the sections read as follows:

          “85(2) The President exercises the executive authority, together with the other members
          of Cabinet, by-
          (a)     implementing national legislation except where the Constitution or an Act of
                  Parliament provides otherwise;
(b)       developing and implementing national policy;
(c)       co-ordinating the functions of state departments and administrations;
(d)       preparing and initiating legislation; and
(e)       performing any other executive function provided for in the Constitution or in national
legislation.”
“125(2) The Premier exercises the executive authority, together with the other members
of the Executive Council, by-
(a)       implementing provincial legislation in the province;
implementing all national legislation within the functional areas listed in Schedule 4 or 5 except
where the Constitution or an Act of Parliament provides otherwise;
administering in the province, national legislation outside the functional areas listed in Schedules
4 and 5, the administration of which has been assigned to the provincial executive in terms of an
Act of Parliament;
developing and implementing provincial policy;
co-ordinating the functions of the provincial administration and its departments;
preparing and initiating provincial legislation; and
performing any other function assigned to the provincial executive in terms of the Constitution
or an Act or Parliament.”
                                               58
                       section 151 (2)                                     both               the

                       executive and legislative authority of the municipality is

                       vested in its council.61 Section 43 (c) of the Constitution

                       similarly declares the legislative authority of the local

                       sphere of government to vest in municipal councils 62.

                       By reason of the fact that a municipal council exercises

                       both executive and legislative authority, both of these

                       aspects are dealt with in one section, namely section

                       156 under the heading “Powers and Functions of

                       Municipalities”. The said section reads as follows:



        “(1)    A municipality has executive authority in respect of, and has the
        right to administer –
        (a)     the local government matters listed in Part B of Schedule 4 and
                Part B of Schedule 5; and
                (b)      any other matter assigned to it by national or provincial
                         legislation.
        (2)     A municipality may make and administer by-laws for the effective
                administration of        the    matters     which     it has      the   right to
                administer.
(3)      Subject to section 151(4), a by-law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by-law and national or provincial
legislation that is inoperative because of a conflict referred to in section 149,


61
   “125(2) The executive and legislative authority of a municipality is vested in its Municipality
Council.”
62
    “In the Republic, the legislative authority –
(a) …
…
of the local sphere of government is vested in the Municipal Councils, as set out in section 156.”
 In Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) at supra at
para [213] Langa DCJ described the local government system for this reason as a “hybrid” one.
                                                  59
    the by-law must be regarded as valid            for as long as that legislation is
    inoperative.
    (4)     The national government and provincial governments must
    assign to a municipality, by agreement and subject to any
    conditions, the administration of a matter listed in Part A of
    Schedule 4 or Part A of Schedule 5 which necessarily relates to
    local government, if –
                    (a)    that matter would most effectively be administered locally;
                               and
            (b)      the municipality has the capacity to administer it.
            (5)       A    municipality   has      the    right    to    exercise   any   power
            concerning a
                      matter     reasonably     necessary for,    or incidental to, the effective
                     performance of its functions”.




                       [59] The mandate of local governments is to provide

                           government at a local level. At this level of government

                           there exists very little scope for matters such as the

                           formulation of policy and other executive functions that

                           are performed at a higher level of government. The

                           execution of its mandate is concerned rather with the

                           delivery of basic services and the improvement of the

                           well being of the members of the community within

    its area as is apparent from what is termed “local government matters” in

    Part B of Schedule 4 and Part B of schedule 5 in section 156 of the

    Constitution.63 In Democratic Alliance v Masondo NO and Another64 O’


    63
        The schedule 4B matters are:
(a) Air pollution;
                                                       60
    Regan         J     in     her       dissenting         judgment explained the difference

    between local government and the other spheres of government with

    reference to the functions of local government. According to her “They

    are not the high affairs of state – defence, foreign affairs, justice and security,

    but matters concerning delivery of services and facilities to local communities:



(b) Building regulations;
    Child care facilities;
    Electricity and gas reticulation;
    Fire-fighting services;
    Local tourism;
    Municipal airports;
    Municipal planning
    Municipal health services;
    Municipal public transport;
    Municipal public works only in respect of the needs of municipalities in the discharge of their
    responsibilities to administer functions specifically assigned to them under this Constitution or any
    other law.
    Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national
    shipping and matters related thereto;
    Stormwater management systems in built-up areas;
    Trading regulations; and
    Water and sanitation services limited to potable water supply systems and domestic waste-water and
    sewage disposal systems.

          The Schedule 5B matters are:

    (a)           Beaches and amusement facilities;
             Billboards and the display of advertisements in public places;
             Cemeteries, funeral parlours and crematoria;
             Cleansing;
             Control of public nuisances;
             Control of undertakings that sell liquor to the public;
             Facilities for the accommodation, care and burial of animals;
             Fencing and fences;
            Licensing of dogs;
            Licensing and control of undertakings that sell food to the public;
            Local amenities;
            Local sport facilities;
            Markets;
            Municipal abattoirs;
            Municipal parks and recreation;
            Municipal roads;
            Noise pollution;
            Pounds;
            Public places;
            Refuse removal, refuse dumps and solid waste disposal;
            Street trading;
            Street lighting; and
                                           61
power, water, waste management,                 parks and recreation and decisions

concerning the development and planning of the municipal area. Thus executive

decisions of municipal councils will ordinarily be decisions which have direct

effect on the lives and opportunities of those living in these areas.”65



                     [60] That the obligation as contemplated in sub-section (1)

                         is also concerned with matters such as the task of

                         providing services is evident from the provisions of the

                         sub-section itself. Paragraph (b)(i) thereof authorises the

                         provincial executive to assume responsibility for the

                         executive obligation of a municipality to the extent that

                         it may be necessary to inter alia “meet established

                         minimum standards for the rendering of a service”.

                         Intervention in this form is clearly aimed at ensuring

                         that the rendering of services with which a municipality

                         has been tasked, is rendered at a certain standard.

                         Section 139 therefore clearly envisages something more

                         than simply the development of policy and initiation of

                         legislation as suggested.




        Traffic and parking.
64
     Supra.
65
     At para [60].
                    62
[61] On a reading of                      sub-section   (1),

   the type of failures that empower the provincial

   executive to intervene are limited by of sub-section

   itself. It must be acknowledged that the use of the term

   “executive obligation” was intentional. In the context of

   the autonomous position occupied by local government

   in the constitutional framework, the aim was to limit

   intervention to a failure to fulfil obligations that are

   executive in nature. The term must in my view be given

   a meaning consistent with the ordinary meaning

   attributed to it in a democratic dispensation and the

   executive authority of the national and provincial

   executives in terms of the Constitution. The obligation

   of local government is to provide government at a local

   level and to discharge the functions associated therewith.

   This obligation is exercised within the functional areas

   referred to above and extends to the obligation to,

   within those functional areas, implement and administer

   legislation in relation thereto, provide the services

   associated therewith, provide an administration to do so,

   develop policy in relation thereto and initiating by-laws
                                              63
                       to       effectively                              govern   within

                       those functional areas. That this is consistent with what

                       must be understood by the term “executive” is confirmed

                       by section 11(3) of the Municipal Systems Act which

                       reads as follows:

“A municipality exercises it is legislative or executive authority by-
                         (a) developing and adopting policies, plans, strategies and
                             programmes, including setting targets for delivery;
          promoting and undertaking development;

         establishing and maintaining an administration;

         administering and regulating its internal affairs and the local government

                 affairs of the local community;

         implementing applicable national and provincial legislation and its

                 by-laws;

         providing municipal services to the local community, or appointing

                 appropriate service providers in accordance with the criteria and

                 process set out in section 78;

         monitoring and, where appropriate, regulating municipal services where

                 those services are provided by services providers other than the

                 municipality;

         preparing, approving and implementing its budgets;

         imposing and recovering rates, taxes, levies, duties, service fees and

                 surchages on fees, including setting and implementing tariff, rates

                 and tax and debt collection policies;
                                     64
      monitoring the impact and           effectiveness of any services, policies,

             programmes or plans;

      establishing and implementing performance management systems;

      promoting a safe and healthy environment;

      passing by-laws and taking decisions on any of the above-mentioned

             matters; and

      doing anything else within its legislative and executive competence.”




Accordingly, although the ambit of the executive obligations exercised on

a local government level is narrower in that it is determined and limited

by the functional areas assigned to municipalities by the Constitution and

legislation as envisaged in section 156(1)(a) and (b) of the Constitution,

there is no reason why it should be given a wider meaning than that

applicable to the other two spheres of government.




              [62] Executive obligations must not be confused with

                  statutory obligations or duties that are aimed at ensuring

                  the effective performance by local government of its

                  executive obligations. In terms of section 105(7) of the

                  Constitution     both    the    national    and     provincial

                  governments have the legislative and executive
                                                   65
                         authority to see                                       to the effective

                         performance by municipalities of their functions in

                         respect of the matters listed in Schedules 4 and 5, “by

                         regulating the exercise by municipalities of their executive

                         authority referred to in section 156(1)”. These obligations

                         and duties are inter alia contained in legislation such as

                         the     Municipal              Structures     and       Systems          Acts.

                         Non-compliance with a statutory obligation or duty

                         aimed at ensuring the effective performance of

                         executive obligations would not necessarily result in a

                         failure to fulfil an executive obligation within the

                         meaning referred to in the preceding paragraph. It could

                         never have been the intention, within the framework of

                         the     system       of        government       established         by     the

                         Constitution, that the failure by a mayor to table a time

                         schedule within the prescribed time limit, 66 or the

                         failure to include an annual performance report in the
                                               67
                         annual report,             would on its own constitute an

                         executive obligation that would empower intervention

66
     Relied on in the present matter by the provincial executive as constituting an executive obligation
in terms of section 21(1)(b) of the Municipal Finance Management Act.
67
    Considered by the provincial executive to constitute an executive obligation in terms of section 4(2)
of the Systems Act read with section 152(1) of the Constitution.
                                               66
                        as envisaged by                                      sub-section        (1).

                        The failure to comply with statutory provisions of this

                        nature may rather lead to a conclusion that a

                        municipality is failing to comply with an executive

                        obligation such as providing an effective administration

                        to fulfil its constitutional mandate of providing

                        government at a local level. It is a factual question that

                        must be determined by having regard to the conduct or

                        the lack thereof of a municipality on which reliance is

                        placed in any given case. I accordingly do not agree

                        with the respondents’ submission that the term must

                        extend to statutory obligations or duties in the

                        enactments relied upon in the present matter.68 I also do

                        not agree with the suggestion that the use of the word

                        “obligation”, as opposed to “authority” 69 , indicates that

                        the envisaged intervention is only activated by a failure

                        to adhere to peremptory norms in legislation. 70 This

                        argument not only once again equates a statutory


68
    Reliance for this submission was placed on Steytler and de Visser Local Government Law of
South Africa wherein the view is expressed that any function of local government that is not a
legislative function is executive in nature. Accordingly, “the failure to fulfil any non-legislative
obligations could possibly trigger an intervention in terms of section 139(1)” and that “a failure to
call such a meeting [a council meeting] can therefore trigger a section 139(1) intervention.” (at
15-19)
                                              67
                      obligation       with                             an        executive

                      obligation, but the meaning to be attributed to it must

                      rather “ultimately depend upon the proper construction of

                      the statutory provision in question, or, in other words, upon

                      the intention of the lawgiver as ascertained from the

                      language, scope, and purpose of the enactment as a whole and

                      the statutory requirement in particular…”.71




                  [63] The term “executive obligation” would also exclude

                      obligations arising from other sources such as contract.

                      It was for these reasons rather than that it constitutes

                      administrative as opposed to executive action, that the

                      Court in the second decision to which counsel for the

                      applicants referred me to, namely Member of the

                      Executive Council for Local Government, Mpumalanga

                      v Independent Municipal and Allied Workers Union 72

                      found that the statutory duty of a municipality to pay

                      over an employee’s deducted tax to the Revenue

                      Services, or the contractual obligation to pay bond


69
   As in section 156 of the Constitution.
70
   See Steytler and de Visser Local Government Law of South Africa at 15-19.
71
   Per Trollip JA in Nkisimane and Others v Santam Insurance Co. Ltd 1978 (2) SA 430 (a) at 434
A-B. See also Weenen Transitional Local Council v Van Dyk 2008 (4) SA 653 (SCA) at 659 C-D.
72
   2002 (1) SA 76 (SCA).
                                        68
                      instalments, are                         not     executive

                      obligations.73



(b) “The Relevant Provincial Executive may Intervene”

                    [64] Once it has been established that a municipality

                      cannot or does not fulfil an executive obligation the

                      relevant provincial executive is given the power to

                      intervene. The power itself is a discretionary one. The

                      use of the word “may” is a clear indication that this is so.

                      Accordingly, even though the jurisdictional fact exists,

                      the provincial executive concerned is not obliged to

                      exercise it. Further, although the exercise of the

                      discretion by the provincial executive to intervene does

                      not constitute administrative action as contemplated in

                      PAJA, the validity of the decision to intervene is subject

                      to compliance with the requirements pertaining to the

                      principle of legality implicit in the Constitution,74 and a

                      relevant question is, as contended by the applicants,

                      whether there is a rational relationship between the

                      exercise of the power and the purpose for which it was

73
     At para [9].
                                                69
                                     75
                         given.



(c) “By taking any appropriate steps … including … dissolving the Municipal

council… if exceptional circumstances warrant such a step.”

                     [65] The last aspect that must be considered is the form or

                         mode of intervention once there has been a failure to

                         fulfil an executive obligation and the provincial

                         executive has exercised its power to intervene. The

                         relevant portion of sub-section (1) authorises the

                         provincial executive to take “any appropriate steps to

                         ensure fulfilment” of the obligation “including” the issuing

                         of a directive, assuming responsibility for the relevant

                         obligation or dissolving the municipal council. The

                         applicants’ once again urged the Court to adopt a

                         restrictive approach to the interpretation of this part of

                         the         sub-section.    According   to   the   applicants,

                         sub-section (1), as well as the Municipal Finance

                         Management Act, provides for less intrusive measures

                         to be taken and, in light of the constitutional imperative

                         that the functional integrity of local government must


74
     See paras [30] to [31] above.
                                                70
                        be        respected,                                 such       measures

                        should first be implemented before the more drastic step

                        of dissolving a municipal council is taken.



                   [66] In support of the submissions made in this regard

                        reliance was placed on the approach adopted by the

                        Constitutional         Court      in    the second certification
                                      76
                        judgment           in dealing with section 100(1) of the

                        Constitution. As stated earlier, section 100(1) is the

                        partner provision of section 139(1) and regulates the

                        relationship       between        the     central      and     provincial

                        governments. As in the case of sub-section (1), it

                        authorises the national executive to intervene in a

                        province where the province concerned “cannot or does

                        not fulfil an executive obligation in terms of the Constitution

                        or legislation.” Save for the fact that it does not contain

                        the equivalent of paragraph (c) of section 139(1), and

                        that paragraphs (a) and (b) thereof are linked by the

                        conjunctive “and”, the two sub-sections are similarly

75
    See Pharmaceutical Manufacturers of SA: In Re: Ex Parte President of the Republic of South
Africa supra at para [90].
76
    Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Amended Text of
the Constitution of the Republic of South Africa, supra.
                                            71
                         worded.



                      [67] In dealing with an objection raised to the wording of

                         section 100 of the amended text of the final Constitution

                         on the ground that its formulation did not comply with

                         the principle of separation of powers, the Constitutional

                         Court held that the use of the word “and” in the section

                         indicates that it deals with a process of successive steps

                         whereby the first step is the issuing of a directive in

                         terms of paragraph (a). “AT [amended text] 100(1) (a) and

                         (b) deal with one process. This follows from the fact that they

                         have not been formulated in the alternative, but are linked by

                         the conjunction ‘and’. The issuing of a directive in terms of

                         AT 100 (1)(a) has no consequences in itself; it only has

                         relevance as part of a process which requires a directive to be

                         issued before the intervention sanctioned by AT 100 (1)(b)

                         takes place. If intervention in terms of AT 100 (1)(b) occurs,

                         the requirements of AT 101 (2) have to be complied with.

                         These successive steps constitute the process referred to in

                         AT 100 (3) which may have to be regulated by legislation”.77

                         Consequently, it is only after the province has failed to


77
     At para [120].
                                              72
                      implement           a                         directive that the

                      national executive can proceed with assumption of the

                      responsibility for the relevant obligation as envisaged in

                      paragraph (b) of section 100 (1).



                  [68] Counsel for the applicants placed reliance on several

                      authors who are of the view that despite the use of the

                      word “or”, as opposed to “and”, as the position was

                      before the 2003 Constitutional                amendment, the

                      approach adopted by the Constitutional Court in the

                      certification judgment to section 100 (1) must stand and
                                                                                        78
                      should equally be applied to section 139 (1).

                      Dissolution can therefore not be a first step in what

                      must be construed as establishing a “process”. It is the

                      final step in a process of intervention consisting of more

                      than one attempt to resolve the problem that may exist

                      in a municipality. This, it was submitted, is also in

                      accordance with section 34(3)(b) of the Structures Act,

                      which provides that dissolution takes place if an earlier


78
   See Steytler and de Visser Local Government Law of South Africa at 15-20.Woolman et al
Constitutional Law of South Africa 2nd ed vol 2 at 22-122; Murray “Municipal Integrity and
Effective Government (1999) 14 SAPR/PL at 348 to 350.
                       73
  intervention was                             not successful.



[69] In regard to the latter submission, it must be

  acknowledged that the Structures Act came into being

  prior to the constitutional amendment to sub-section (1)

  in 2003. Accordingly, what is contained in the said Act

  in   this   regard        must   be   read   subject   to   the

  aforementioned amendment. With regard to the first

  submission it is in my view an incorrect approach to the

  interpretation of this part of sub-section (1) to simply

  attribute to it a meaning similar to that given to its

  counterpart in section 100 at a time when paragraph (c)

  did not exist. I agree with counsel for the respondents

  that to read sub-section (1) in its present form as a

  process comprising a set of sequential steps would be to

  strain the wording of the sub-section. It must be

  accepted that the use of the word “or” and its insertion

  at the end of paragraph (b) and before paragraph (c) was

  deliberate. This is more appropriate and in accordance

  with the principle that a Constitution is a legal

  instrument and that when the language used is clear
                                           74
                       effect must be                                given     to.   The

                       word “or” must therefore rather be given its ordinary

                       meaning so as to provide for an alternative form of

                       intervention as opposed to a step in a process.



                   [70] The focus of the enquiry should, in my view, rather be

                       on the sub-section in its contextual setting and its

                       present form. The first aspect that arises for

                       consideration from its wording is that the form of

                       intervention must be “appropriate”. What is appropriate

                       is not left to the discretion of the provincial executive.

                       As stated by Harms JA in Pharmaceutical Society of

                       South Africa v Tshabalala-Msimang:79


          “In this regard there is a clear break from the approach adopted in matters
         such as security legislation during the pre-Constitutional era. There, the
         jurisdictional fact was quite often the opinion of one or other functionary and,
         provided the functionary held the opinion, courts were rather hamstrung.
         Hence the jurisdictional fact is not someone’s opinion but an objective fact…
         Whether it is appropriate can be tested judicially. If the fee does not pass this
         threshold requirement, the regulation is pro tanto void because it has no legal
         basis or justification.”80




79
     2005 (3) SA 238 (SCA).
80
     At para [75].
                                              75

                    [71] The word “appropriate” means “specially suitable” or

                        “proper”. In the second certification judgment the

                        Constitutional Court held that the reference to

                        “appropriate steps” in section 100 (1) had to be construed

                        in the context of the Constitution as a whole and the

                        provision that it makes for the distribution of power

                        between the different levels of government. It said the

                        following:

         “If regard is had to the CPs [constitutional principles] and the constitutional
         scheme embodied in the AT[amended text], it would not be appropriate for the
         National Executive to attempt to intervene in provincial affairs in a manner
         other than that authorised by the Constitution or by legislation enacted in
         accordance with the Constitution. ‘Appropriate steps’ would thus include action
         such as a resort to the procedures established under AT 41(2) for the promotion
         of intergovernmental relations and the settlement of intergovernmental disputes
         and the exercise of the treasury control powers under AT 216. It would not,
         however, include resort to means that would be inconsistent with AT chap 3, and
         in particular, with the obligation under AT 41 (1)(g) to exercise its powers in a
         manner that ‘does not encroach on the geographical, functional or institutional
         integrity’ of provincial governments.


         [125] On this construction of the clause, AT 100 means-

                    (a) when an obligation is not performed by a province the National
                            Executive can intervene through taking appropriate steps;
                    (b) ‘appropriate steps’ must be construed to mean steps
                            that are appropriate in the context of the Constitution;
                            and…”81

81
     Supra at para [124].
                                                76



                    [72] In      Pharmaceutical Society of South Africa v

                         Tshabalala-Msimang 82 case and in Hoffmann v South
                                                  83
                         African Airways               the respective courts had to

                         determine the meaning of the word “appropriate” in the

                         context of “appropriate dispensing fee” and “appropriate

                         relief”. It was held that appropriateness in the context of

                         the Constitution imports the elements of justice and

                         fairness and that “In determining what is appropriate one

                         must consider the conflicting interests of all those involved

                         and affected” and that “One is really dealing with a

                         balancing act implicit in the right of access…”. 84 In the

                         present context I am of the view that “appropriate steps”

                         are to be construed as steps that are such as would be

                         suitable in the sense that it must fit the situation. The

                         form of intervention must accordingly address the

                         particular circumstances of the case. This can only be

                         determined with due regard to the nature of the

                         executive obligation that was not fulfilled, the interests


82
     Supra.
83
     2001 (1) SA 1 (CC).
84
     Per Harms JA in Pharmaceutical Society of South Africa v Tshabalala-Msimang supra at para [77].
                         77
   of those affected                               by the failure to

   fulfil an executive obligation, and the interests of the

   municipality concerned with due regard to those

   features that arise from the constitutional scheme as

   embodied in chapters 3, 5, 6 and 7 of the Constitution.

   It requires a balancing of the constitutional imperative

   to respect the integrity of local government as far as

   possible against the constitutional requirement of

   effective government. A further consideration is the

   purpose of the power to intervene. It is clearly designed

   as a corrective measure to ensure that such steps are

   taken that would resolve the problems that may be

   experienced      in        a   particular    municipality.   This

   necessitates    the question          whether the form of

   intervention that is contemplated would be effective and

   commensurate with the nature and/or the extent of the

   failure to fulfil the obligation concerned.



[73] The next aspect relevant to this part of the enquiry is

   the meaning that is to be attributed to the phrase “if

   exceptional    circumstances       warrant    such   a   step”   in
                                                  78
                        paragraph           (c).                               The                first

                        observation          is    that      the     existence         of     special

                        circumstances is a prerequisite to the exercise of the

                        power to dissolve a municipal council. It is a

                        jurisdictional fact that must exist before there can be

                        dissolution. As in the case of the two other

                        jurisdictional facts in sub-section (1) dealt with earlier,

                        the existence of exceptional circumstances does not

                        depend upon the exercise of a discretion or an opinion

                        of the provincial executive. It is an aspect that is

                        susceptible to objective proof and is equally an issue for

                        the decision of the Court considering the validity of

                        action taken in terms of sub-section (1)85. This means

                        that a duty rests on the provincial executive to satisfy

                        the Court that exceptional circumstances exist.86



                    [74] The term “exceptional circumstances” is not defined in


85
    “… that this statutory criteria, formidable though it may conceivably be, is flexible and subject to
judicial control on a case-by-case basis.” Per Comrie J in S v Mohammed 1992 (2) SACR 507 (C) at
513j to 514b.
86
    In dealing with the phrase “exceptional circumstances” in the Development Trust and Land Act
18 of 1936 Steyn CJ said the following in Die Suid Afrikaanse Naturelletrust v Kitchener en Andere
1964 (3) SA 417 (A) at 421 C-D:
          “Die omstandighede moet werklik van besondere aard wees, eie aan die geval. Ek sou verder
          meen dat die onteiende wat op ń byvoeging aanspraak maak, bewys moet voorlê van die
          omstandighede waarop hy steun. Is daar geen bewys nie of onvoldoende bewys, dan ontbreek
                                                  79
                         the Constitution                        and I have not

                         been referred to any decision where it was discussed in

                         the context of sub-section (1). According to the

                         applicants the said term must be restrictively interpreted

                         and the particular circumstances used to justify the

                         intervention must be qualitatively different in kind from

                         the ubiquitous service delivery and other problems

                         commonly dealt with by means of less of intrusive

                         means of support and monitoring. Relying on Steytler,87

                         and with reference to the provisions of section 34(3)(b)

                         of the Structures Act, it was submitted that exceptional

                         circumstances would exist if there has been failed

                         intervention as envisaged in paragraphs (a) and (b) of

                         sub-section (1) and such intervention was due to the

                         unwillingness of the municipal council to resolve the

                         problems concerned. It is evident that this construction

                         of what constitutes exceptional circumstances for

                         purposes of paragraph (c) is an extension of the

                         submission that sub-section (1) provides for a process


         ń voorwaarde vir ń byvoeging.”
87
     Op cit at 15-26. According to the authors at 15-27:
                                              80
                       of intervention.



                   [75] In the decision of Seatrans Maritime v Owners, MV

                       Ais Mamas and Another 88 the Court considered the

                       meaning of the phrase in the context of section 5

                       (5)(a)(iv) of the Admiralty Jurisdiction Regulation Act

                       105 of 1983 and concluded that “… it is neither desirable

                       nor, indeed, possible to attempt to lay down precise rules as

                       to what circumstances are to be regarded as exceptional and

                       what are not. Each case must depend on its own facts.”89 The

                       Court dealt with the dictionary definitions of the words

                       “exceptional” and “exception” and earlier decisions in

                       which the phrase “exceptional circumstances” had been

                       considered and concluded as follows:

        “What does emerge from an examination of the authorities, however, seems to
        me to be the following:
                  1.   What is ordinarily contemplated by the words ‘exceptional
                       circumstances’ is something out of the ordinary and of an unusual
                       nature; something which is excepted in the sense that the general
                       rule does not apply to it; something uncommon, rare or different;
                       ‘besonder’, seldsaam, ‘uitsonderlik’, or ‘in hoë mate ongewoon’.
To be exceptional the circumstances concerned must arise out of, or be incidental to, the

          “The general principle should be that dissolution follows, as a last resort, on earlier
         interventions.”
88
    2002 (6) SA 150 (C).
89
    At 156 F. See further Prins v Carstens 1953 (4) SA 107 (C) at 111A; Estate Docrat v Isaacs 1956
(2) SA 35 (N) at 38 E; Poole NO v Currie and Partners 1966 (2) SA 693 (RA) and Webster and
Another v Santam Insurance Co. Ltd 1977 (2) SA 874 (A) at 882 E-H.
                                            81
particular case.
Whether or not exceptional circumstances exist is not a decision which depends upon the
exercise of a judicial discretion: their existence or otherwise is a matter of fact which the
Court must decide accordingly.
Depending on the context in which it is used, the word ‘exceptional’ has two shades of
meaning: the primary meaning is unusual or different; the secondary meaning is
markedly unusual or specially different.
                  2. Where, in a statute, it is directed that a fixed rule shall be departed
                      from only under exceptional circumstances, effect will, generally
                      speaking, best be given to the intention of the Legislature by
                      applying a strict rather than a liberal meaning to the phrase, and
                      by carefully examining any circumstances relied on as allegedly
                                          90
                      being exceptional.”




                  [76] In the context of sub-section (1) and the constitutional

                      background sketched earlier, it seems to me that the

                      purpose of requiring exceptional circumstances where

                      intervention takes the form of the dissolution of the

                      Municipal council is to ensure that no inroads are made

                      without good reason into the autonomy of another

                      sphere of government. The requirement of exceptional

                      circumstances gives recognition to this aspect and the

                      importance of the role and position of this sphere of

                      government in the new constitutional dispensation.

                      What is also clear from the requirement of exceptional

                      circumstances is that it is recognised that the dissolution
                                             82
                          of the Municipal                         council       is   the

                          more drastic and far-reaching of the three forms of

                          intervention authorised by sub-section (1). Not only

                          must the dissolution be an “appropriate” step to remedy

                          the situation, it can only be resorted to if exceptional

                          circumstances have been found to exist. By reason of

                          these considerations I agree with applicants’ counsel

                          that the phrase must be given a narrow rather than a

                          wide interpretation. Accordingly, to be exceptional

                          within the meaning of the phrase, the circumstances

                          must be “markedly unusual or specially different.”91



                    [77] In my view it would be inappropriate to attempt to

                          give an exhaustive definition of what would constitute

                          such circumstances and to limit it to a situation where

                          there has been a failed intervention as envisaged in

                          paragraphs (a) and (b) due to the unwillingness of the

                          municipal council to resolve the problem. There may be

                          other situations where the willingness or otherwise of a

                          council to co-operate or to comply with a direction may

90
     At 156 H to 157 C.
                                                 83
                          not prove to be                        decisive of the

                          existence of exceptional circumstances. It is undesirable

                          to anticipate what type of situations may present

                          themselves. Exceptional circumstances may lie in the

                          nature of the problem that may be experienced in a

                          municipality and the fact that any other form of

                          intervention would not be appropriate. What constitutes

                          exceptional circumstances should rather depend on the

                          circumstances of each particular case. It is however a

                          step that should not easily be resorted to and only after

                          careful consideration has been given to the facts and

                          circumstances of each particular case with due regard to

                          the principles that underlie the position of local

                          government in the constitutional framework.



                     [78] As a general observation, it is clear from a reading of

                          paragraph (c) in the context of sub-section (1) as a

                          whole that the form of intervention authorised by

                          paragraph (c) suggests that the dissolution is only

                          appropriate if the fulfilment of an executive obligation

91
     See the decisions referred to in footnote   above.
                 84
cannot         be                               achieved

otherwise than by the dissolution of the existing council

and its replacement by an administrator until such time

as a new council has been elected. There are three

aspects that flow from this: the first is that it

presupposes, at the very least, that consideration was

given to other forms of intervention that are effective

and less intrusive, secondly, that there exists a causal

connection between the conduct of the municipal

council and the continued failure to comply with an

executive obligation, and lastly, as in the case of the

other two forms of intervention, the question must be

asked whether the municipality would be able to fulfil

its obligations after the intervention is over. In other

words, as a corrective measure, would it be successful

in remedying or resolving the particular problem in the

municipality? Dissolution of the council and its

replacement with a newly elected council would after

all serve no purpose if it would not resolve the problems

at hand.
                                  85
              [79] To    conclude,                       the purpose of

                 section 139(1) is to enable a provincial executive to take

                 steps that are necessary to place a municipality in a

                 position to fulfil its executive obligations. The section

                 has both legal and political safeguards built into it,

                 namely, the objective determination of whether there

                 has been a failure to fulfil an executive obligation, to

                 intervene in a manner that is appropriate, and in the case

                 of paragraph     (c), the existence of exceptional

                 circumstances are matters which are not left to the

                 discretion of the provincial executive. The existence of

                 these prerequisites are to be determined objectively and

                 the existence thereof may be tested in a court. In

                 addition, on a political level, the Cabinet Minister

                 responsible for Local Government Affairs or the

                 National Council of Provinces are empowered to

                 terminate any form of action taken against a

                 municipality under sub-section (1).



Does the decision to intervene and dissolve the Mnquma Municipality

Council satisfy the principle of legality?
                                      86
            [80] The                                                  information

                 placed before the provincial executive in support of the

                 recommendation that the Mnquma Municipal Council

                 be dissolved and on which the decision was arrived at,

                 is essentially contained in a letter by the MEC notifying

                 the municipality that consideration was given to the

                 dissolution of the council (letter of notification), the

                 municipality’s written response to the allegations in the

                 notification and a memorandum by the state attorney

                 intended to “summarise and analyse” the said response

                 (the memorandum). Because it formed the basis of the

                 decision to intervene and to dissolve the council, the

                 focus of the present enquiry is on those documents and

                 their contents.



            [81] It was submitted on behalf of the applicants that the

                 information contained therein and the reasons for the

                 decision did not warrant dissolution because they:


   “36.1   have to do      largely   with administrative, rather than executive,
           functions;
36.2       are   stated   in   uncertain,   tentative   language   that   belies   the
   purportedly exceptional nature of the circumstances;
                                         87
are so vague and open-ended as                  to preclude a meaningful response;
relate to past matters that have, in some cases, already been addressed;
relate to ubiquitous problems experienced in municipalities throughout
                           South Africa and, particularly, in the Eastern Cape Province;
and
      36.3     are, in several respects, factually wrong.”




                 [82] The MEC’s letter of notification deals with the matters

                    raised therein under several headings. It lists a number

                    of events and conduct that are said to constitute

                    exceptional circumstances and which “suggest that a

                    decision and notice in terms of section 139((1)(c) of the

                    Constitution may be required.” Under a separate heading,

                    “Institutional incapacity”, a number of reasons are

                    mentioned which are said to demonstrate “what appears

                    to    be   intractable    institutional    incapacity”    in    the

                    municipality. A heading styled, “Further Failure to Fulfil

                    Functions”, then follows and lists, what is referred to as,

                    “further instances of systematic failure and incapacity on the

                    part of the Council to fulfil its executive functions.” Under

                    the latter heading a number of conclusions were drawn,

                    such as that “the prevailing circumstances in the Mnquma

                    Municipality include the existence of a compelling situation

                    which constitutes exceptional circumstances and displays an
                      88
   institutional                               incapacity on the

   part of the council.”




[83] In the municipality’s response the events and conduct

   relied upon in the letter of notification were dealt with

   on an item by item basis. The factual correctness of the

   allegations therein were disputed in some instances and

   in others the municipality attempted to provide

   clarification. These responses were dealt with in the

   state attorney’s memorandum assessing the correctness

   of the municipality’s assertions and whether they should

   be accepted. This assessment was then followed by a

   recommendation in respect of each of the matters raised

   with reference to the particular executive obligation that

   the municipality was alleged to have failed to fulfil by

   acting in the manner alleged. In dealing with the issue

   of   exceptional        circumstances     the   memorandum

   concluded that the “… issues analysed above are multiple

   and, in their cumulative effect, serious. Even if certain of

   them had not been established, their cumulative weight is

   clearly   profound. The failures        to perform executive

   obligations across a range of statutory provisions as detailed
                                                89
                        are     fundamental                                   and systemic.” It

                        is clear from this that whereas the existence of

                        exceptional circumstances was limited to the matters

                        raised under that heading in the letter of notification, the

                        recommendation             in    the     memorandum            was      that

                        exceptional circumstances were to be found in the

                        cumulative effect of all the matters raised in the said

                        notification. That the decision to dissolve the council

                        was made on that basis, was confirmed by the

                        respondents in their answering affidavit.92



                   [84] The first enquiry is whether the conduct or the failures

                        of the municipality, on which the respondents placed

                        reliance for exercising the power to intervene, constitute

                        a failure to fulfil an executive obligation as envisaged in

                        sub-section (1). The approach in the memorandum to

                        this issue was to deal with each of the failures

                        individually. The alleged failures as framed in the

                        memorandum are:


92
    In paragraph 32 thereof it is stated with reference to the memorandum that “… it is the cumulative
effect of the circumstances present in this particular municipal council which informed the
Province’s decision.”
                                                 90
         (i)     six    mayors,    instability        and a lack of executive leadership;

         (ii)      invalidity of council resolutions;

(iii)      no co-operation with special investigating unit;
(iv)     authorising payment to the Municipal Manager without entitlement;
     (v)       reinstating of Mr Mtalo contrary to recommendation by disciplinary

                       tribunal;

         (vi)    salary allowances of councillors and staff;

(vii)    in-arrears of serving councillors;
(viii)   suspension of councillor Mbebe;
(ix)     removal from office of councillor Dyani;
(x)      arrest on charges of corruption;
         (xi)    reinstatement of the Municipal Manager despite conviction by

                 disciplinary tribunal;

         (xii)   involvement in civil litigation and criminal prosecution;

(xiii)   support grant of R5 million;
(xiv)    lack of financial management system;
(xv)     lack of adequate financial controls;
(xvi)    lack of a proper risk management strategy;
         (xvii) rampant maladministration and non-adherence to municipal procedures

                 and systems;

(xviii) report on investigation on misappropriation or fraud against employee;
(xix) overpayment of two councillors;
(xx) expenditure in respect of office of the speaker;
(xxi) highly congested accumulation of litter and raw sewerage spillage
contaminating potable water;
(xxii) concerns relating to revenue management;
(xxiii) compliance with section 15(a) of the MFMA;
(xxiv) failure to submit annual financial statements;
(xxv) failure to develop proper supply chain management policy;
(xxvi) obligations to commence with budget process;
(xxvii) no reliable data basis of indigent people exists;
(xxviii) failure to implement an asset management policy and strategy;
(xxix) failure to communicate bank account details to the provincial treasury;
(xxx) bank overdraft in excess of the permissible overdraft limit;
(xxxi) auditor-general’s disclaimers and adverse opinions;
(xxxii) failure to declare output VAT received for processing of Enatis transactions;
(xxxiii) municipal planning and performance of management regulations;
(xxxiv) failure to appoint a performance audit committee;
                                        91
(xxxv) apparent failure to include             annual performance report in annual
report;
(xxxvi) preparation and submission of plan on progress towards implementation of
GAAP, GAMAP and GRAP;
(xxxvii)failure by accounting officer to inform the mayor, MEC and
auditor-general in writing of unauthorised, irregular or fruitless and wasteful
expenditure.


                [85] In the memorandum each of the alleged failures were

                    linked to a specific statutory provision that was said to

                    constitute an executive obligation. So for example, the

                    payment of what is alleged to be disproportionate salary

                    allowances to councillors and staff, is stated to amount

                    to a failure to fulfil those executive obligations in terms

                    of sections 41(3) and 152(1) and 21 of the Constitution

                    and section 4(2)(a), (b), (d), (f) and (g) of the Systems

                    Act. Other provisions that have been relied upon as

                    constituting a failure to comply with an executive

                    obligation in the event of non-compliance thereof are

                    sections 43 of the Systems Act and 21(1)(b), 32,

                    63(2)(b), 65(2)(i), 73, 74, 99(2)(b), 111, 112(1), 115,

                    131(1), 165(2) and 172(1)(b) of the Municipal Finance

                    Management Act.



                [86] Section 152 of the Constitution deals with the objects
                                             92
                     of              local                           government. 93 In

                     terms of sub-section (2) thereof it is stated that a

                     municipality must strive, within its financial and

                     administrative capacity, to achieve the objects. A

                     similar provision is found in section 19 of the Municipal

                     Structures Act. These are loose statements of the

                     rationale of local government rather than “executive

                     obligations” and to find otherwise would in my view

                     unduly extend the range of possible action or inaction

                     which may constitute an executive obligation beyond

                     what is capable of any precise determination. Such an

                     extended meaning of “executive obligation” militates

                     against what is intended to be a provision that is of

                     limited application in certain specified instances.



                 [87] The provisions of section 4(2) of the Systems Act

                     relied upon are of a similar nature. The sub-section

                     states that a municipal council “within the municipality’s


93
   These objects are:
       “(a)     to provide democratic and accountable government for local communities;
                 (b)    to ensure the provision of services to communities in a sustainable
manner;
               (c)      to promote social and economic development;
               (d)      to promote a safe and healthy environment; and
                                         93
                     financial        and                                  administrative

                     capacity and having regard to practical considerations” has

                     the duty to:

       “(a)    exercise the municipality’s executive and legislative authority and use the
               resources of the municipality in the best interests of the local community;
           (b) provide, without favour or prejudice, democratic and accountable
               government;
           (c) ….
           (d) strive to ensure that municipal services are provided to the local
               community in a financially and environmentally sustainable manner;
     (e)   …
give members of the local community equitable access to the municipal services to which
they are entitled;
promote and undertake development in the municipality;…”



                 [88] On a reading of the provisions in the Municipal

                     Finance Management Act it becomes clear that many of

                     the failures relied on relate to “statutory obligations” or

                     duties as opposed to “executive obligations”, a distinction

                     dealt with in paragraph [65] above. So for example,

                     sections 21 and 32 respectively deal with the budget

                     preparation process and the recovery of unauthorised,

                     irregular and wasteful expenditure. Sections 63, 65, 73

                     and 74 deal with the duties of the municipality’s

                     accounting officer, while section 165 deals with the


               (e)    to encourage the involvement of communities and community organisations
                               94
      duties             and                    functions of the

      internal audit unit of municipalities. In section 2 of this

      Act the object thereof is stated “to secure sound and

      sustainable management of the fiscal and financial affairs of

      municipalities.” Its aim is clearly to provide effective

      performance by municipalities of their functions as

      envisaged in section 155(7) of the Constitution, as

      opposed to imposing executive obligations within the

      meaning of that term. The provincial executive

      therefore quite clearly misconstrued the meaning of the

      term “executive obligation” in sub-section (1).



  [89] Assuming that the failures relied upon constitute

      executive obligations the second enquiry is whether

      there exists sufficient evidence to conclude that the

      municipality failed in the manner alleged by the

      respondent. As stated, this is an enquiry where

      considerations relevant to the determination of fact

      would apply. The applicants dealt with the failures

      alleged in the letter of notification in their founding


in the matters of local government.”
                       95
   affidavits and in                         support of their

   contentions they placed reliance on several documents

   that were annexed to the said affidavit. In seven of the

   thirty seven failures originally listed in the letter of

   notification the recommended decision to the provincial

   executive in the memorandum was that “no decision in

   terms of section 139 (1)(c) is recommended in relation to this

   aspect.”




[90] On a reading of the documentation forming the basis

   for the decision to intervene a number of difficulties are

   apparent. The first is that the assessment of whether

   there was a failure to fulfil what was incorrectly

   perceived to be an executive obligation was in many

   instances dealt with on the assumption that the

   allegations in the letter of notification were factually

   correct. The approach that was adopted appears to be

   one where the facts were accepted unless the

   municipality was able to provide sufficient and

   convincing evidence to conclude otherwise. This is so

   despite the fact that many of the failures referred to in
                        96
   the    letter   of                       notification were

   stated in an uncertain or tentative manner. For example,

   it is stated that council resolutions have “apparently been

   invalid” or that “it is not apparent” that the provisions of

   the municipal structures have been complied with. With

   regard to compliance with section 21 of the Municipal

   Finance Management Act it is stated that “there is no

   evidence sufficiently indicating what steps the municipality

   has taken to fulfil this obligation.” As stated earlier,

   whether or not there is a failure to comply with an

   executive obligation is a factual issue that must be

   determined objectively. The question in each case is

   therefore whether there is sufficient evidence to

   conclude that a failure exists. The approach adopted by

   the provincial executive in certain of the instances was

   not conducive to such a factual enquiry.



[91] Secondly, it is not clear from the information supplied

   whether some of the alleged failures relate to past,

   current or ongoing action or inaction on the part of the

   municipality. The result of this is that reliance may have
                  97
been placed on                          failures that have

been addressed. In fact, in some instances it would

appear that this was indeed the case. In respect of the

failure to declare output value added tax reliance is

pertinently placed on past failures to justify a finding

that there was a failure to comply with sections 4(2)(a)

and (d) of the Systems Act and section 152 of the

Constitution. With regard to the alleged failure to

comply with obligations to commence with a budget

process, reference is made to the fact that on available

documentation there was no compliance with the

provisions of section 21(1)(b) of the Municipal Finance

Management Act “during previous financial years”. In

respect of the current financial year, reliance was

simply placed on the fact that the council did not state

in its representations that it complied with its obligation

in terms of the relevant section. With regard to the

“apparent” failure to include an annual performance

report in the annual report, it is said that while the

annual report for 2008 contained performance reports

the same cannot be said for the 2007 annual report. In
                     98
   respect   of   the                      allegation      of

   political instability, reference is made to documents

   reflecting the position two years ago, namely a “Report

   on the Status Quo of the Mnquma Municipality following

   Local Government Elections”, a letter from the Municipal

   Manager to the Superintendent-General dated 17

   October 2006, and the Municipality’s Annual Report

   for the year ending 30 June 2007. It would appear that

   these documents refer to the same “political instability”

   referred to in a report to the Select Committee on Local

   Government and Administration. This report was

   submitted to the Select Committee in January 2008. To

   make matters worse, none of these reports appear to

   have been included in the documents placed before the

   provincial executive.



[92] A third difficulty is that some of the evidence relied

   upon simply does not justify the conclusion that has

   been drawn. An example of this is the allegation of

   political instability that resulted in a “complete lack of

   executive leadership”. Reliance is in this regard placed on
                     99
what was said in                          a letter of the

municipal manager that “… the recent developments in the

council … signalling the beginning once again of political

instability…” What these recent developments are, are

not stated and it is consequently not clear upon what

facts, what appears to be an opinion, is based.

Reference is also made to “a series of consultations … with

senior officials with knowledge of the relevant facts …

establish that inherent and chronic instability prevails…”

Who these officials are and what their knowledge of the

facts are is not stated. This evidence clearly falls short

of concluding that political instability that occurred in

the past still prevails. A further important aspect in this

regard is precisely what is understood by the term

“political   instability”.   As stated earlier, municipal

councillors are elected on a party political basis and as

in any democratic system, what can be referred to as

“politicking ” will take place and may influence the

manner in which institutions operate, especially where

both legislative and executive powers are vested in the

same body. The effect of this is that where political
                            100
   instability         is                            relied upon in

   support of an allegation that there is a failure to comply

   with an executive obligation, the facts pertaining thereto

   are to be fully established and carefully analysed in

   order to ensure that what may otherwise simply be part

   of a democratic political process is not unjustifiably

   labelled as constituting political instability.



[93] The investigative process undertaken in the present matter in

   my view falls short of such an analysis. In terms of section 106 of

   the Systems Act the MEC has the power to appoint investigators

   in certain circumstances to investigate the affairs of a

   municipality. The respondents’ complaint that the investigation

   undertaken in the present matter was not successful because the

   municipality failed to assist the investigator appointed, namely

   the Special Investigating Unit, does not pass scrutiny. The letter

   from the Unit relied upon in support of the finding that the

   Mnquma municipality failed to co-operate refers to a certain

   individual    who    was       requested   to   assist   in   obtaining

   documentation. It is not stated whether this person is employed

   by the municipality or is a member of the council. Consequently,

   what role the council, if any, played in the failure to submit the

   required documentation was not investigated. As has been stated,
                        101
   the duty is on the                          authority      who

   invokes the power in a statutory provision to place sufficient

   information before the Court to satisfy it that the required

   precondition did in fact exist. By reason of the fact that the

   failure of the provincial executive to appreciate the meaning of

   the term “executive obligation” influenced the findings

   arrived at in respect of the appropriateness of the form

   of intervention and the existence or otherwise of

   exceptional circumstances, I do not find it necessary to

   deal in any further detail with the correctness or

   otherwise of the factual findings made in relation to the

   alleged failures of the municipality.



[94] The next question that has to be determined is whether

   it can be said that the dissolution of the municipal

   council was an “appropriate” form of intervention. It is

   evident from a reading of the documentation relied

   upon in support of its decision that the provincial

   executive did not consider this aspect separately from

   the requirement of exceptional circumstances. The

   approach appears to have been that the “issues analysed

   above are multiple and, in their cumulative effect serious.”
                                               102
                        The finding is                                      effectively       that

                        there were so many failures that the only appropriate

                        form of intervention was the dissolution of the council.

                        The danger with this approach is that a large number of

                        what may constitute failures that are not serious and

                        could easily have been resolved in another manner, are

                        thrown together to justify the dissolution of a municipal

                        council. In the present matter a number of failures relied

                        upon relate to the duties of employees of the

                        municipality, imposed by the Municipal Finance

                        Management Act. Most of these matters appear to be of

                        such a nature that they could have been resolved in

                        another manner so as to ensure that these employees

                        comply with their duties.94



                    [95] Another aspect in this regard is that it appears to have

                        been simply assumed that it was due to a lack of

                        leadership that these employees did not comply with

                        their duties. As stated earlier, when dissolution of a

                        municipal council is considered, one of the aspects that

94
     In terms of section 5(4)(d) of the Municipal Finance Act a provincial treasury is for instance
                                                103
                        must                 be                                accounted for is

                        whether there exists a connection between the conduct

                        of the council and the continued failure to comply with

                        an executive obligation. As the statutory obligations on

                        which the provincial executive placed reliance on in the

                        present matter as constituting executive obligations tend

                        to impose obligations on individual functionaries or

                        municipal officials, such as the mayor, the accounting

                        officer or the internal audit unit rather than on the

                        council as a whole, this is an aspect that required

                        investigation. More importantly, by wrongly treating

                        the failures relied upon individually as constituting

                        executive obligations, these were elevated to a level of

                        seriousness that caused the provincial executive to

                        conclude, by virtue of their sheer number, that

                        dissolution of the council was not only appropriate, but

                        that     it    satisfied       the     exceptional         circumstances

                        requirement.




empowered to take appropriate steps if a municipality commits a breach of the provisions of that Act.
                                 104
Conclusion

             [96]   Having regard to the nature of the conduct or

                failures relied upon to justify the decision to intervene

                in terms of sub-section (1) and to dissolve the council, I

                am of the view that they rather raise the question

                whether the Mnquma Municipality has complied with

                its executive obligation to establish and maintain an

                effective administration to perform its functions. The

                alleged failures relied upon may instead have been

                considered as providing evidence of the failure of the

                municipal council to comply with its executive

                obligation in that regard. That was however not the

                approach adopted. Instead each alleged failure was

                wrongly    considered    to   constitute   an   executive

                obligation and on that basis the appropriateness of the

                intervention and the issue of exceptional circumstances

                were dealt with. As the focus of the enquiry was skewed

                and because different considerations would have arisen

                and the evidence was to be considered in a different

                context, it is not appropriate to make any finding in

                these proceedings whether the Mnquma municipality
                                                  105
                           failed to comply                                   with any one of

                           its executive obligations.



                       [97] For the aforegoing reasons the jurisdictional facts

                           applicable to the exercise of the provincial executive’s

                           power were absent and as a consequence it acted ultra

                           vires in dissolving the municipal council. As the

                           decision to intervene was based on a mistaken belief

                           that the jurisdictional facts did exist, it was also

                           irrational. 95 Accordingly, the decision to dissolve the

                           council does not satisfy the requirements of the

                           constitutional principle of legality. An appropriate order

                           in my view is one declaring the decision invalid in

                           terms of section 132 of the Constitution as being

                           inconsistent with the Constitution.



Costs

                       [98] Turning to the issue of costs, counsel were ad idem

                           that costs should follow the result and should include

                           the costs of two counsel. The costs of 8 May 2009 were

   95
        See Pharmaceutical Manufacturers of South Africa: In Re Ex Parte President of the Republic of
                                            106
                        reserved. I agree                        with counsel for

                        the respondents that the applicants should be ordered to

                        pay the wasted costs occasioned by the postponement of

                        the matter. It is evident that the applicants were not in a

                        position to proceed with the application on that day.

                        The seventh respondent had to be joined as a party to

                        the proceedings, the applicants were constrained to

                        amend their notice of motion, and the applicants had

                        failed to comply with the Respondents’ notices issued

                        in terms of Rules 7 and 35(12).

                    [99] Counsel for the respondents submitted further that an

                        adverse costs order should be made and that the costs of

                        the documentation annexed to the applicants’ founding

                        affidavit should be disallowed. I am not convinced that

                        such an order is justified. The documents in question

                        were annexed in order to refute the respondents’

                        allegations relating to the municipality’s alleged failures

                        to comply with its executive obligations. As indicated,

                        it is a factual issue that may be tested by a Court. In this

                        context the documentation was indeed relevant to the


South Africa supra at paras [89] to [90].
                                             107
                        issues raised.



  The Order

                     [100]      In the result the following order is made:

           (a)      The decision of the third respondent to intervene in the

                    Mnquma Municipality in terms of section 139(1)(c) of the

                    Constitution and to dissolve the municipal council of the

                    said municipality is declared invalid and is set aside.



     (b) The applicants are ordered to pay the wasted costs occasioned
     by the postponement of the matter on 8 May 2009, jointly and
     severally, the one paying the other to be absolved.

     (c) The first, second and third respondents are ordered to pay the
     costs of the application, such costs to include the costs occasioned by
     the employment of two counsel.



D. VAN ZYL
     JUDGE OF THE HIGH COURT


Matter heard on                 :        15 May 2009

Judgment delivered              :        5 August 2009

sAnuC lrpA rot ro     lesnuoC   :        Csrs nueCrCs
                                              M Osborne
                                              L Ferreira

     Instructed by                       :         Keightly Incorporated
                                                   Hillcrest House
                                108
                                            No. 60 Cumberland Road
                                      MTHATHA
                                      ℅ Smith Tabata Incorporated
                                      No. 126 Alexander Road
                                      KING WILLIAMSTOWN

Counsel for the Respondents :         J Gauntlett SC
                                      F Pelser

Instructed by               :     The State Attorney
                                  ℅ Shared Legal Services
                            No. 32 Alexander Road
                                  KING WILLIAMSTOWN

				
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