Afriforum NPC v The Premier, Gauteng Province and Others

The Premier of Gauteng Province dissolved the City of Tshwane Metropolitan Municipality Council on 5 March 2020 on the basis that it was dysfunctional, placing it under administration in terms of s 139(1)(c) of the Constitution and s 35(1) of the Local Government: Municipal Finance Management Act (MFMA). An administrator was appointed with specified powers and functions. On 30 June 2020, the administrator approved the municipality's annual budget for the 2020/21 financial year. Afriforum NPC challenged this approval, arguing that the administrator lacked the constitutional power to approve a budget. The Gauteng Division of the High Court, Pretoria dismissed the application with costs on 28 October 2020. Afriforum appealed with leave of the high court. The budget was subsequently ratified by the reinstated council after the full court declared the dissolution invalid (later confirmed by the Constitutional Court). There were also applications for condonation by the first and third respondents for late filing of heads of argument.

• Whether an administrator appointed in terms of s 139(1)(c) of the Constitution has the power to approve an annual budget of a municipality
• Whether the appeal had become moot given the subsequent ratification of the budget by the reinstated council
• Whether the approval of a budget constitutes a legislative or executive function
• The proper interpretation of s 139(1)(c) and s 139(4) of the Constitution and their application to municipal budget approval

1. The application for condonation of the late filing of the first respondent's heads of argument was granted, with the first respondent directed to pay the costs of opposition thereof. 2. The application for condonation of the late filing of the third respondent's heads of argument was granted. 3. The appeal was dismissed. No costs order was made against the appellant in respect of the appeal itself, in line with the Biowatch principle regarding constitutional litigation against organs of state.

An administrator appointed in terms of s 139(1)(c) of the Constitution has the power to approve an annual municipal budget. The administrator acts as the legal substitute of the Municipal Council and must be understood as being included within references to "Municipal Council" in relevant provisions. Budget approval is an executive function, not a legislative function - it facilitates service delivery rather than constituting law-making. Section 139(1)(c) and s 139(4) of the Constitution provide for different intervention scenarios: s 139(1)(c) applies when a municipality fails to fulfil an executive obligation (discretionary intervention), while s 139(4) applies specifically to failure to approve a budget or revenue-raising measures (mandatory intervention). Section 139(4) does not impose a blanket prohibition on budget approval by an administrator appointed under s 139(1)(c). An administrator appointed with powers to undertake all executive functions cannot ensure the continued functioning of the municipality without an approved budget.

The Court made observations about mootness and the discretion to hear appeals on moot issues. It noted that courts have discretion to entertain the merits of an appeal even where a matter is moot, particularly where a case poses a legal issue of importance for the future that requires adjudication. The Court distinguished between cases where discrete legal issues of public importance arose affecting future matters (where the court would decide the merits) versus those where no such issue arose (where the court refused to enter into the merits). The Court also noted that the Fedsure case was incorrectly relied upon by the appellant - that case concerned the legality of rates imposed by a Municipal Council and found rate-setting to be a legislative power peculiar to legislative bodies, but was not authority for the proposition that budget approval is law-making. The Court observed that only a resolution is required to adopt a budget, further distinguishing it from legislative functions.

This case provides important clarity on the powers of administrators appointed under s 139(1)(c) of the Constitution when municipal councils are dissolved. It establishes that such administrators have the power to approve budgets as part of their executive functions, ensuring continuity in municipal governance. The judgment clarifies the distinction between interventions under s 139(1)(c) and s 139(4), showing they are separate mechanisms triggered by different circumstances. It also definitively characterizes budget approval as an executive rather than legislative function, which has significant implications for municipal governance and intervention processes. The case demonstrates the Court's willingness to determine appeals on moot issues where discrete legal questions of public importance arise that may affect future cases.