HBR (Hola Bon Renaissance) Foundation v President of the Republic of South Africa and Others

The applicant, HBR Foundation, a non-profit voluntary association, applied to the Municipal Demarcation Board on 15 October 2010 seeking the establishment of a local municipality for Soweto and the redetermination of the City of Johannesburg's boundaries. Soweto currently forms part of the municipal area of the City of Johannesburg. The Board responded that changes to municipal boundaries were suspended in September 2008 and decisions on redetermination would only be taken after the 2011 local government elections. The Board advised the applicant that under section 22 of the Local Government: Municipal Demarcation Act 27 of 1998, requests for boundary redetermination must come from either the Minister, an MEC for local government, or a municipality with concurrence of affected municipalities - not from private organizations. The applicant allegedly approached the City and the MEC, who both referred the matter to national level. Unhappy with this response, the applicant demanded the resignation of the entire Board within 24 hours (9 November 2010), and when this was refused, wrote to the President on 24 November 2010 demanding removal of the Board within 14 days. On 9 February 2011, the day before the State of the Nation Address, the applicant launched an urgent application for direct access to the Constitutional Court seeking to interdict the President from announcing the local government election date, to establish a tribunal to investigate removal of Board members, and to direct the Board to consider its application.

• Whether the Constitutional Court should grant direct access in terms of section 167(6)(a) of the Constitution
• Whether it is in the interests of justice to grant leave for direct access
• Whether the applicant had prospects of success on the merits
• Whether the Municipal Demarcation Board acted improperly in refusing to consider the applicant's request on its own initiative
• Whether the Board's response constituted misconduct, incapacity or incompetence warranting investigation and removal under section 13 of the Local Government: Municipal Demarcation Act
• Which body has the constitutional power to establish municipalities
• Whether the applicant had complied with the procedural requirements for requesting boundary redetermination under section 22 of the Municipal Demarcation Act

The application for direct access was dismissed with no order as to costs.

Direct access to the Constitutional Court will only be granted in exceptional circumstances where it is in the interests of justice, which requires consideration of prospects of success on the merits. Where an applicant has no prospects of success, direct access must be refused as it would be a futile exercise. The constitutional power to establish municipalities is vested in provincial governments under section 155(6) of the Constitution, not in the Municipal Demarcation Board. A lawful response by an administrative body that correctly points out statutory procedural requirements does not constitute misconduct, incapacity or incompetence warranting removal from office under section 13 of the Municipal Demarcation Act. Applications for direct access must comply with Rule 18 of the Constitutional Court Rules, including setting out grounds on which it is contended that it is in the interests of justice for leave to be granted.

The Court reiterated the general principle, established in Biowatch Trust v Registrar, Genetic Resources, and Others, that in constitutional litigation between the State and a private party, if the private party is unsuccessful it is generally not ordered to pay costs, but if the private party is successful, a costs order is awarded against the State. The Court also emphasized the undesirability of the Constitutional Court sitting as a court of first and final instance in matters where other courts have jurisdiction, particularly High Courts which have constitutional jurisdiction under section 169 of the Constitution including jurisdiction to make orders concerning the validity of Acts of Parliament or provincial Acts. The Constitution contemplates that such orders will be referred to the Constitutional Court for confirmation, and effect must be given to this by ensuring that courts are not bypassed unless there are compelling reasons to do so.

This case reinforces several important principles in South African constitutional and administrative law: (1) It confirms the exceptional nature of direct access to the Constitutional Court and the requirement that applicants demonstrate that it is in the interests of justice to bypass lower courts; (2) It emphasizes the Constitutional Court's reluctance to sit as a court of first and last instance, particularly where other courts have jurisdiction; (3) It clarifies the constitutional division of powers regarding local government, specifically that provincial governments, not the Municipal Demarcation Board, have the power to establish municipalities under section 155(6) of the Constitution; (4) It illustrates the importance of following proper procedural channels when seeking administrative action, in this case the requirements of section 22 of the Municipal Demarcation Act; (5) It demonstrates that disagreement with an administrative body's lawful response does not constitute grounds for removal of its members under section 13 of the Municipal Demarcation Act; and (6) It applies the Biowatch principle regarding costs in constitutional litigation between private parties and the State. The case serves as an important reminder of the limits on direct access and the importance of proper legal representation in constitutional matters.