Ngaka Modiri Molema District Municipality v Chairperson, North West Provincial Executive Committee and Others

The North West Provincial Executive Council (Province), purportedly acting in terms of section 139(1)(c) of the Constitution, dissolved the Ngaka Modiri Molema District Municipality (Municipality) on 3 September 2014 and appointed Mr Nair as administrator. This decision was made on the basis that the Municipality had failed in its executive obligation to provide basic services, including water and sanitation, to its communities. Some communities had not had water for years despite funding being received. The Municipality approached the North West High Court seeking: (a) a temporary interdict to prevent the administrator from interfering in municipal affairs and to suspend the dissolution decision (Part A); and (b) review and setting aside of the dissolution decision (Part B). The High Court dismissed the temporary interdict application. Municipal employees resisted the implementation of the provincial intervention, causing turmoil and instability in the municipal administration. This resistance led to disruption in the provision of basic services including water, sanitation, electricity, and fire and emergency services. The administrator put in place an emergency plan to restore services, and by the time of the Constitutional Court proceedings, virtually all areas affected had been reconnected.

• Whether leave to appeal should be granted against the High Court's refusal to grant a temporary interdict preventing the administrator from exercising powers following the dissolution of the municipal council
• Whether direct access to the Constitutional Court should be granted in terms of section 167(6)(a) of the Constitution for the review application to be heard
• Whether exceptional circumstances existed to warrant intervention by the Province under section 139(1)(c) of the Constitution
• Whether the failure to provide basic municipal services constitutes a breach of constitutional obligations under sections 152 and 153 of the Constitution read with sections 4(2)(f) and 73 of the Local Government: Municipal Systems Act
• Whether the disruption of basic services to communities violates the right of access to water under section 27(1) of the Constitution
• Who bears the constitutional and legal obligation to provide basic municipal services in circumstances where a municipality has been dissolved and an administrator appointed

1. The fourth respondent's application for condonation is granted. 2. The application for leave to appeal is dismissed. 3. The application for direct access is dismissed. No costs order was made.

The binding legal principles established in this case are: (1) For purposes of applications for temporary interdicts pending review of provincial interventions under section 139(1)(c) of the Constitution, the relevant harm to be considered is harm to the municipality as an institution, not harm to individual councillors who may lose salaries; (2) Where a municipality has allegedly failed in its executive obligation to provide basic services, and that failure is the basis for its dissolution, the balance of convenience does not favour an interdict that would perpetuate the dire situation of service delivery failure; (3) Direct access to the Constitutional Court under section 167(6)(a) is not warranted where the urgency relates to ensuring service delivery to communities rather than to determining the validity of the section 139 intervention, and where the dispute can appropriately be determined by the High Court in the ordinary course; (4) Under sections 152 and 153 of the Constitution read with sections 4(2)(f) and 73 of the Municipal Systems Act, every municipality bears an obligation to provide basic municipal services to inhabitants within its jurisdiction irrespective of whether there is a contractual relationship; (5) Where a lawfully appointed administrator is in place following dissolution of a municipal council, and the effect of refusing a temporary interdict is to confirm the administrator's legal authority, no further court order is necessary to compel the administrator to fulfil service delivery obligations - the administrator already has the legal authority and obligation to do so; (6) At a minimum, in terms of section 7(2) of the Constitution, the state must refrain from interfering with existing rights; where access to water, sanitation, electricity and emergency services once existed but is taken away due to disputes within or relating to municipal management, there may be a violation of fundamental rights of inhabitants under section 27(1) of the Constitution.

The Court made several important observations: (1) This Court has a wide just and equitable remedial jurisdiction under section 172 of the Constitution that is not necessarily dependent on a finding of constitutional impropriety; (2) Municipalities are "the face of government to the communities they are supposed to serve"; (3) The Court expressed concern about the "reprehensible conduct" of municipal employees who resisted the lawful authority of the administrator, noting that such resistance caused turmoil and instability and contributed to service delivery failures; (4) The Court observed that where municipal employees continue to resist taking instructions from a lawfully appointed administrator, the remedy would be for the administrator to approach the High Court for relief; (5) The Court noted that making a costs order against the Municipality would place an additional financial burden on residents, which informed its decision not to make a costs order; (6) The Court acknowledged that the people whose interests lie at the heart of the matter - the residents who depend on basic services - were not parties to the proceedings, highlighting a potential gap in representation of community interests in municipal dissolution disputes; (7) The Court expressed approval of the administrator's emergency plan to restore services and the fact that by the time of the proceedings, "virtually all areas affected by the disruption in services had been reconnected," noting this explained "why there has been relative calm in community protests."

This case is significant in South African law for several reasons: (1) It reinforces the principle that municipalities are the face of government to communities and bear constitutional obligations to provide basic services; (2) It clarifies the circumstances in which provincial intervention under section 139(1)(c) of the Constitution is appropriate when a municipality fails to fulfil its executive obligations; (3) It emphasizes that in disputes involving municipal dissolution and service delivery, the real urgency lies in protecting the rights of community members who depend on basic services, not in protecting the interests of municipal councillors; (4) It reaffirms that sections 152 and 153 of the Constitution, read with the Municipal Systems Act, impose obligations on municipalities to provide basic services irrespective of contractual relationships; (5) It demonstrates the Court's approach to balancing access to justice considerations under section 167(6) with the need to allow matters to proceed through the ordinary court hierarchy; (6) It illustrates the Court's willingness to use its remedial jurisdiction to address service delivery failures even without making specific orders where the legal framework already provides adequate remedies; (7) It serves as a reminder that resistance by municipal employees to lawful administrative decisions can lead to violations of community members' constitutional rights, particularly the right of access to water under section 27(1).