AB Xuma Local Municipality and Another v Kunogqala Local Residents and Others

The Kunogqala Local Residents and individual residents brought an application against AB Xuma Local Municipality and its Municipal Manager for failure to construct a road in Nogqala village. The court had previously granted judgment on 6 February 2025 in favour of the respondents. The Municipality acknowledged that access to and from the village was substandard. The Municipality's Integrated Development Plans (IDP), including the 2023-2024 financial year plan, contained no plan for the construction of the Nogqala Road. The Municipality argued that 500 meters of road had been constructed approaching both sides of the Nogqala Bridge, but this was done in the context of bridge construction (for which contractors were appointed on 17 July 2023) rather than as an independent road construction project. No separate appointment was ever made for construction of the road itself. The Municipality applied for leave to appeal against the original judgment on 25 February 2025.

• Whether there was a reasonable prospect of success on appeal as required by section 17(1)(a) of the Superior Courts Act 10 of 2013
• Whether there was a genuine dispute of facts that warranted application of the Plascon-Evans principle
• Whether the court's order infringed the doctrine of separation of powers by dictating to the Municipality when and how its duties should be performed
• Whether the Municipality had failed to perform its statutory and constitutional duties to construct the Nogqala Road

Application for leave to appeal is dismissed with costs.

Courts may grant structural interdicts directing municipalities to perform their constitutional and statutory duties without violating the separation of powers doctrine, provided the court does not usurp the administrative authority or dictate the merits or wisdom of administrative decisions. Where a municipality has failed to take statutorily and constitutionally prescribed steps to fulfill its obligations, a court order directing performance of those duties is a legitimate exercise of judicial power. For leave to appeal to be granted under section 17(1)(a) of the Superior Courts Act 10 of 2013, there must be a reasonable prospect or realistic chance of success on appeal based on sound, rational grounds - a mere possibility of success or an arguable case is insufficient.

The court approvingly cited Lord Steyn's dictum that "in law, context is everything" from R v Secretary of State for the Home Department Ex Parte Daly, emphasizing the importance of contextual interpretation in legal matters. The court observed that in the interest of accountability under section 195(1)(g) and (h) of the Constitution, it would be expected of municipalities to advise residents from time to time of what had happened and what would happen going forward with their requests for infrastructure development. The court also noted that it would be "inconceivable that a bridge would be constructed only in the river space or area and beyond the river nothing would be done," suggesting common sense and practical considerations apply to infrastructure projects.

This case is significant in South African municipal law as it clarifies the courts' power to grant structural interdicts against municipalities that fail to perform their constitutional and statutory duties. It demonstrates that directing a municipality to fulfill its obligations does not violate the separation of powers doctrine, and reinforces the constitutional principles of accountability in section 195(1)(g) and (h) of the Constitution. The judgment also illustrates the proper application of the test for leave to appeal under section 17(1)(a) of the Superior Courts Act, requiring a reasonable prospect of success rather than mere arguability. It emphasizes municipalities' duties under their Integrated Development Plans and the importance of creating visions and planning frameworks for infrastructure development affecting communities.