Member of the Executive Council for Development Planning and Local Government in the Provincial Government of Gauteng v Democratic Party and Others

A dispute arose within the Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council regarding whether a simple majority or a two‑thirds majority was required to approve its budget. The Council and the MEC for Development Planning and Local Government brought an urgent application in the Witwatersrand High Court seeking a declaration that a simple majority sufficed. The High Court dismissed the application, holding that certain provisions of the Local Government Transition Act were insulated from constitutional scrutiny. The MEC sought to appeal and applied for leave to appeal directly to the Constitutional Court. Due to transitional constitutional arrangements under the 1996 Constitution, uncertainty existed about the correct appellate procedure for constitutional matters. The High Court declined to issue a positive certificate under Constitutional Court Rule 18(e), but granted leave to appeal to the Supreme Court of Appeal. Despite the negative certificate, the MEC applied directly to the Constitutional Court for leave to appeal.

Leave to appeal to the Constitutional Court was granted; the respondents’ request to recall or set aside the order granting leave to appeal was refused.

The case clarified transitional appellate procedure under the 1996 Constitution and confirmed the Constitutional Court’s control over applications for leave to appeal in constitutional matters. It established that a negative High Court certificate does not bar access to the Constitutional Court and distinguished direct appeals from direct access, shaping future constitutional litigation strategy and appellate practice.