Court Case Demands that President and Cabinet Restore Ditsobotla Municipality themselves

Sakeliga asks the court to order President Cyril Ramaphosa and his cabinet, to take direct responsibility for the recovery of the Ditsobotla Local Municipality.
Power and water must be restored within 30 days and the intervention must not stop until the rest of the recovery plan has been successfully executed.
The court case helps to lay the foundation for stabilisation and alternative solutions to municipal collapse in the countryside.

The court must order the president and cabinet to fix the collapsed Ditsobotla Local Municipality themselves.

That’s what Sakeliga is asking in the latest phase of our ongoing court case about municipal decay.

The latest application is brought on an urgent basis regarding the escalating state decay in Lichtenburg, Coligny, Bhoikutso, Blydeville and surrounding areas.

The application forms part of a series of court cases by Sakeliga and our local partners over several years and stems from a court order in October 2023, when the court ordered provincial intervention at Ditsobotla.

Pursuant to section 139(5) of the Constitution provincial intervention is the second highest form of state intervention in municipal collapse.

However, because the provincial government failed miserably with Ditsobotla, Sakeliga is asking the court to enforce the highest form of state intervention. That is, to order the president and cabinet to take responsibility themselves for the administrative and financial recovery of the municipality. In terms of section 139(7), this is something that the president and cabinet should have done on their own a long time ago, but grossly neglected.

The application

In our application, Sakeliga therefore asks the court, among other things:

To declare that the president (as head of the national executive), the cabinet as a whole, and certain cabinet members individually:

a. Is acting unconstitutionally and unlawfully by not intervening with the Ditsobotla Local Municipality.
To order that the president and his cabinet:

a. Take over all the responsibilities of intervention from the provincial government.

b. Themselves enforce and implement the approved municipal recovery plan.

c. Report to the court within 10 days on how to restore water and power supply in Ditsobotla, complete the necessary work within 30 days, and then maintain it.

d. Provide a monthly report under oath to the court and Sakeliga on implementation, service delivery, and financial recovery.

e. Meaningfully engage with Sakeliga and our representatives about the rescue effort at least quarterly.

f. May not stop intervening until the court is satisfied that Ditsobotla’s financial crisis has been resolved and that Ditsobotla is meeting his obligations.

g. Deliver a copy of the court order, as soon as it is granted, to the National Assembly and National Council of Provinces.

Further litigation, should president and cabinet fail

The requested order will provide the president and his subordinates with an opportunity to correct their failure and fulfill their responsibilities.

Judging by growing state failure countrywide, however, this cannot be counted on. In our litigation, Sakeliga therefore once again makes provision for the possible necessity of further steps.

We request the court – as in October 2023 – that, in the event of further failure by the president and cabinet, Sakeliga need not bring a new court case.

Should the president and cabinet indeed continue to neglect or fail in their duties, it would herald an unprecedented constitutional crisis.

The Constitution contains in article 139, which deals with municipal failure, no further provision than direct intervention by the president and cabinet. Yet the destruction of towns and violation of rights do not stop simply because of court orders – issued in an attempt to enforce the Constitution’s master plan regarding municipal decay – against public officials already in dereliction of their duties.

Unfortunately, the Constitution does not provide for a situation where the national executive, like the provincial executive before them, could prove unable to reverse municipal collapse.

However, Sakeliga is preparing for the possibility that alternative legal solutions will have to be found, even if the court grants the required relief under section 139(7) of the Constitution.

Should the national executive fail yet again, Sakeliga will not hesitate to ask for new relief under article 172 of the Constitution to restore order in the affected towns.

Such jurisprudence could include the development and enforcement of other forms of state intervention (for example, the institution of a special master, as have elsewhere been applied by the courts), or recognition and protection for emergency interventions by business people, residents, and communities acting for their common good.

Importance of further litigation

Municipal decay in South Africa is extensive and threatens the entire country’s stability.

Debt to Eskom alone amounts to around R100 billion.

And according to the Auditor-General, 30% of municipalities may not even be going concerns anymore – in some provinces more than 50%. If solutions against rural state failure – and increasingly even cities like Bloemfontein – are not found, this will trigger a chain reaction of destabilisation.

When smaller towns collapse, many impoverished residents migrate to regional towns. When those municipalities then start collapsing faster due to the extra pressure, the migration accelerates and shifts to cities. This finally shifts the burden to urban administrations that already experience serious problems of their own, as already exemplified in parts of Johannesburg and Bloemfontein.

Without stabilisation of significant parts of the countryside, the serious destabilisation of all the urban environments in South Africa – and therefore the country itself – is a substantial risk.

Sakeliga’s most recent court action in Ditsobotla form part of a strategy for a legal framework in terms of which local communities can escalate state failure as quickly as possible to the highest level of government for solutions – and in the absence of solutions from within the government, to solutions from outside the government.

In the interest of rural and urban communities and the country as a whole, it is crucial to protect and expand the right of people to create solutions themselves when state failure leads to decay and collapse.

The president and cabinet still have a chance to fulfill their duties, but the residents of Ditsobotla cannot rely naively on an unwilling government.

Although this will require a long-term process, it is inevitable that the vacuums of state failure will have to be filled by alternative solutions that business people and communities develop step by step, combined with good jurisprudence by which the courts enforce, recognise and protect appropriate interventions.

Read Sakeliga’s court papers here.

Litigation history

Sakeliga has been conducting a litigation process for several years to develop the best jurisprudence possible on municipal failure.

This includes:

Contributing to a crucial finding by the Supreme Court of Appeal in 2021, which set limits to Eskom’s practice of cutting power to paying end users when a municipality did not remit the fees received to Eskom. Since then, our litigation has prevented billions of rand in damages and kept the lights on for thousands of businesses and residents in hundreds of towns.
Winning a Constitutional Court case in 2022 that protected the rights of municipal councils to procure on a value-for-money basis if they wished, rather than being forced to apply BEE.
Several court orders which imposed consecutively higher forms of state intervention in the Ditsobotla Local Municipality.
Court orders that protected residents with valid outstanding municipal levy disputes from the municipality’s illegal collection efforts, such as withholding power and water from them.