The Premier for the Province of Gauteng and Others v Democratic Alliance and Others

On 4 March 2020, the Gauteng Executive Council (Gauteng EC) decided to dissolve the City of Tshwane Metropolitan Municipality Council (Tshwane Council) and appoint an administrator under section 139(1)(c) of the Constitution. The decision was based on the Tshwane Council's dysfunction - it had no Mayor, Mayoral Committee or Municipal Manager, and was unable to hold meetings due to walkouts by ANC and EFF councillors, depriving it of quorum. The DA challenged the dissolution decision in the High Court, which on 29 April 2020 reviewed and set aside the decision. The appellants sought leave to appeal to the Constitutional Court and conditionally to the Supreme Court of Appeal, which suspended the High Court's order. The DA then applied under section 18(3) of the Superior Courts Act for interim enforcement of the High Court's order pending appeal. The High Court granted the interim order on 10 June 2020. The appellants brought an automatic appeal against the interim enforcement order under section 18(4)(ii) of the Superior Courts Act.

• Whether the requirements for interim enforcement of a judgment pending appeal under section 18 of the Superior Courts Act 10 of 2013 were satisfied
• Whether exceptional circumstances existed to justify deviating from the general rule that judgments are suspended pending appeal
• Whether the DA would suffer irreparable harm if the order was not implemented pending appeal
• Whether the appellants would suffer irreparable harm if the order was implemented pending appeal
• Whether section 159(2) of the Constitution, which requires elections within 90 days of dissolution, applies to dissolutions under section 139(1)(c)
• Whether an administrator appointed under section 139(1)(c) may lawfully hold office beyond 90 days

The appeal was dismissed with costs, including costs of two counsel. The interim enforcement order of the High Court dated 10 June 2020 was upheld, meaning the High Court's order reviewing and setting aside the dissolution decision remained in operation pending the appeal process.

Section 18 of the Superior Courts Act sets a high threshold for interim enforcement of judgments pending appeal, requiring: (1) exceptional circumstances; (2) proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted; and (3) proof on a balance of probabilities that the respondent will not suffer irreparable harm if the order is granted. Section 159(2) of the Constitution, which requires elections within 90 days of dissolution, applies to dissolutions under section 139(1)(c) when read together with section 34(4) of the Local Government: Municipal Structures Act. An administrator appointed under section 139(1)(c) who remains in office beyond the constitutionally prescribed 90-day period infringes the constitutional scheme of separated spheres of government and democratic accountability. Exceptional circumstances exist where constitutional provisions prescribing time limits are breached and an unelected administrator exercises powers beyond the constitutionally contemplated period. Irreparable harm is established where citizens are denied their constitutional right to be governed by democratically elected representatives for an extended period beyond constitutional limits.

The majority noted that on a proper construction of sections 139(1)(c) and 159(2), it would be inconceivable for the Constitution to prescribe a 90-day limit for by-elections when a council's term expires or is dissolved under national legislation, but allow an unlimited term when dissolved under section 139(1)(c). The minority observed that the drafters of the Constitution must have realised unforeseen circumstances (such as a declared state of disaster or extensions granted by the Electoral Court) might lawfully cause elections or declaration of results to occur beyond 90 days. The minority also commented that infringement of a right per se does not constitute proof of irreparable harm - the applicant must prove the infringement will cause irreparable harm. The Court noted that section 34(4) of the Municipal Structures Act, which appears to vest dissolution power in the MEC, should be interpreted consistently with section 139(1)(c) which vests that power in the provincial executive, to avoid unconstitutionality. The Court observed that the power of one sphere of government to intervene in another is highly circumscribed under the constitutional scheme and permitted only temporarily in exceptional circumstances.

This case is significant for establishing the requirements for interim enforcement of judgments under section 18 of the Superior Courts Act, particularly in the context of constitutional challenges to provincial intervention in local government. The majority judgment affirms the constitutional limits on the term of office of administrators appointed following dissolution of municipal councils, holding that the 90-day requirement in section 159(2) applies even to dissolutions under section 139(1)(c). The case emphasizes the constitutional scheme of separated spheres of government and the importance of democratic accountability and autonomy in local government. It establishes that keeping an unelected administrator in office beyond 90 days is antithetical to democratic and accountable government enshrined in section 152(1)(a) of the Constitution. The case demonstrates the high threshold for section 18 applications and the need to prove both exceptional circumstances and irreparable harm on a balance of probabilities. The split decision (3-2) reveals ongoing jurisprudential debate about the interpretation of sections 139(1)(c) and 159(2) and the balance between provincial intervention powers and local government autonomy.