Sakeliga obtains court order exhausting constitutional provisions on municipal recovery

• Sakeliga forced National Government intervention in collapsed Ditsobotla municipality and secured a cost order against state departments.
• The legal action has exhausted the final explicit constitutional provisions for addressing municipal collapse.
• Sakeliga is shifting focus toward business-driven, common-good solutions that enable commercial operations independent of failing government structures.

Sakeliga yesterday concluded its litigation for municipal recovery in Ditsobotla with a favourable court order, sealing National Government’s direct intervention, establishing critical transparency mechanisms, and recovering costs. This exhausts the final explicit provision in the Constitution for dealing with state collapse at municipal level.

The court order follows the decision recently by President Cyril Ramaphosa and his cabinet to put the town under administration by the National Executive, in compliance with Sakeliga’s legal demands and threats of personal cost orders in the event of their continued dereliction of duty.

In a multi-year process of litigation, Sakeliga and our local partners have now pushed the recovery of the Ditsobotla Local Municipality as far as section 139(7) of the Constitution provides. Section 139(7) determines that, if all else fails, the National Executive becomes directly responsible for the restoration of service delivery, common infrastructure, and town administration.

By agreement between the parties, the court also maintains a form of judicial oversight through mandatory quarterly reporting to monitor the compliance of the National Executive with its duties during the intervention.

The order stipulates that the Minister of Finance must provide these quarterly reports as contemplated in section 147 of the MFMA to Sakeliga's attorneys and file copies with the court. Sakeliga will make these reports available to the businesses and communities of Ditsobotla, to whom this additional transparency should be helpful in monitoring the National Executive’s intervention and in responding to shortcomings where appropriate.

Cost Order

The court awarded costs jointly and severally against the North West Premier, the North West Provincial Executive Council, the North West MEC for Local Government and Human Settlements, and the Minister of Finance. The cost order reflects the serious nature of the constitutional issues at stake and underscores that government departments cannot ignore their constitutional obligations without consequence.

What lies ahead

Sakeliga's work in Ditsobotla establishes precedent for the most severe form of government intervention explicitly available under the Constitution. It also adds elements of judicial oversight of constitutional interventions, which may be helpful in empowering businesses and communities elsewhere with the transparency mechanisms they require to monitor and respond to state failure.

It has been important to Sakeliga to exhaust all explicit provisions in the Constitution for rectifying municipal collapse. If the National Executive succeeds at fulfilling its obligations, we would welcome it.

However, given the extent of municipal failure and many other forms of state failure country-wide, it would be imprudent not to prepare for further, continued, or repeated incidents of municipal collapse in Ditsobotla and elsewhere. In such events, where the government proves unable or unwilling to fulfil its obligations despite court orders and judicial supervision, recourse to alternative solutions – beyond relying on the state – would be imperative.

While Sakeliga will continue to support the businesses and communities of Ditsobotla where possible, the scale of the problem also demands that our strategic emphasis must increasingly shift more directly to developing local common-good, business-driven solutions that transcend reliance on failing government structures. Achieving this will be difficult, but must be attempted.

Resources:

Click here for the court order.