Member of the Executive Council for Local Government and Development Planning of the Western Cape Province and Another v Paarl Poultry Enterprises CC t/a Rosendal Poultry Farm

Following amendments to the Local Government Transition Act 209 of 1993 (LGTA) in 1996, district councils were required, from 1 July 1997, to be elected on a proportional representation basis. District councils in the Western Cape, including the Winelands District Council, were not reconstituted accordingly and were declared by the Cape High Court to have been improperly elected. The MEC for Local Government in the Western Cape then promulgated Proclamation 52 of 1998, which both reconstituted district councils on a proportional basis and retrospectively validated all acts and decisions taken by those councils since 1 July 1997 through a broad savings provision. Winelands sued Paarl Poultry Enterprises CC for unpaid regional service levies. The respondent challenged the validity of the savings provision, contending that the district council lacked lawful authority when instituting proceedings. The High Court declared the savings provision ultra vires the LGTA and invalid. The MEC and the successor municipality, Boland District Municipality, sought leave to appeal directly to the Constitutional Court.

Leave to appeal directly to the Constitutional Court was granted. The appeal was dismissed and the High Court’s declaration that the savings provision in section 10 of Proclamation 52 of 1998 was invalid was upheld.

The case affirms that all exercises of public power, including the making of subordinate legislation, are subject to constitutional control and legality review. It clarifies the limits of provincial executive authority under the LGTA during the local government transition and underscores the obligation of courts to apply section 172(1) of the Constitution when declaring legislation invalid.