THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1000/2020
In the matter between:

AFRIFORUM NPC

APPELLANT

and

THE PREMIER, GAUTENG PROVINCE     FIRST RESPONDENT

CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
SECOND RESPONDENT

MPHO KEBITSAMANG NAWA N.O.
THIRD RESPONDENT

MEC OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS, GAUTENG

FOURTH RESPONDENT

THE EXECUTIVE COUNCIL,
GAUTENG PROVINCE

FIFTH RESPONDENT

THE MINISTER OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL
AFFAIRS

SIXTH RESPONDENT

Neutral citation: Afriforum NPC v The Premier, Gauteng Province and
Others (1000/2020) [2021] ZASCA 185 (24 December 2021)

Coram:
ZONDI, VAN DER MERWE, MAKGOKA and MBATHA
JJA and MEYER AJA

Heard:
10 November 2021

Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for the hand-
down of the judgment is deemed to be 09h45 on 24 December 2021.

Summary: Section 139(1)(c) of the Constitution – dissolution of a
Municipal Council – power of administrator to approve a budget – not
legislative function – not precluded by s 139(4).

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Phahlane
AJ sitting as court of first instance):

The application for condonation of the late filing of the first
respondent’s heads of argument is granted and the first respondent is
directed to pay the costs of opposition thereof.
The application for condonation of the late filing of the third
respondent’s heads of argument is granted.
The appeal is dismissed.

JUDGMENT

Mbatha JA (Zondi, van der Merwe and Makgoka JJA and Meyer AJA
concurring):

[1] On 28 October 2020, the Gauteng Division of the High Court,
Pretoria (the high court), dismissed with costs, an application by the
appellant, Afriforum NPC, in which it had sought to set aside the approval
of the 2020/21 annual budget of the second respondent, the City of
Tshwane Metropolitan Municipality (the municipality) by the third
respondent (the administrator). The appellant contended that such approval
was unconstitutional and therefore, invalid. This appeal before us is with
leave of the high court.

[2] There was an application by the first respondent for the late filing of
its heads of argument, which should have been filed by no later than

10 March 2021, but were only filed on 4 May 2021. The appellant opposed
the application on the basis that the application was fundamentally flawed
for several reasons. It is not necessary to restate the submissions made by
the appellant in this regard. The factors which a court considers when
exercising its discretion to grant condonation are trite.1

[3] In the circumstances the delay was satisfactorily explained and there
was no prejudice to the appellant. The application should therefore be
granted. Nonetheless the first respondent should be ordered to pay the
appellant’s costs as its opposition to the condonation application was not
unreasonable.

[4] Secondly, there was the third respondent’s application for
condonation for the late filing of its heads. The appellant did not oppose
the application for condonation and sought to abide by the court's decision.
Accordingly, the third respondent’s non-compliance should be condoned
with no cost order.

The issue on appeal
[5] Returning to the merits of the appeal, the central issue in the appeal
is 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
to which he or she is appointed. The determination of the issue inter alia
requires an interpretation of s 139(1)(c) of the Constitution. That

1 Uitenhage Transitional Local Council v South Africa Revenue Services [2003] 4 All SA 37 (SCA);
2004 (1) SA 292 (SCA) para 6; See also Turnbull-Jackson v Hibiscus Municipality [2014] ZACC 24;
2014 (6) SA 592; 2014 (11) BCLR 1310 (CC) para 25 to 26 and Mulaudzi v Old Mutual Life Assurance
Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v
Mulaudzi [2017] ZASCA 88; [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA).

interpretive exercise takes place against the following background. As
mentioned already, the budget which had previously been approved by the
administrator on 30 June 2020, was ratified by the council upon its
reinstatement by the full court. The third respondent submitted that this
rendered the appeal moot. Section 16(2)(a) of the Superior Court Act
provides as follows:
‘(i)
When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this
ground alone.
(ii)
Save under exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined without reference to any
consideration of costs.’

[6] This Court in Mabotwane Security Services CC v Pikitup Soc (Pty)
Ltd and Others2 referred with approval the following statement in National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others:3
‘A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on
abstract propositions of law.’
In the Centre for Child Law v Hoërskool Fochville & Another,4 this Court
held as follows:
‘This court has a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between the parties to the litigation, it has
dealt with the merits of an appeal (see, inter alia, Natal Rugby Union v Gould 1999 (1)
SA 432 (SCA) ([1998] 4 All SA 258); The Merak S: Sea Melody Enterprises SA v
Bulktrans
(Europe)
Corporation
2002
(4)
SA
(SCA);
Land
en

2 Mabotwane Security Services CC v Pikitup Soc (Pty) Ltd and Others [2019] ZASCA 164 para 15.
3 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1; 2000 (1) BCLR 39 CC para 21 footnote 18.
4 Centre for Child Law v Hoërskool Fochville & another [2015] ZASCA 155; 2016 (2) SA 121 (SCA)
para 11. (Emphasis added.)

Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA)
([2005] 4 All SA 509); and Executive Officer, Financial Services Board v Dynamic
Wealth Ltd 2012 (1) SA 453 (SCA)). With those cases must be contrasted a number
where the court has refused to enter into the merits of the appeal.5 The broad distinction
between the two classes is that in the former a discrete legal issue of public importance
arose that would affect matters in the future and on which the adjudication of this court
was required, whilst in the latter no such issue arose (see Qoboshiyane NO & others v
Avusa Publishing Eastern Cape (Pty) Ltd & others 2013 (3) SA 315 (SCA) para 5).’

[7] In my view, this Court should exercise its discretion and determine
the appeal despite the fact that the budget was subsequently adopted by the
re-instated council, as it concerns the interpretation of s 139(1)(c) of the
Constitution and the lawfulness of a decision taken by an administrator to
approve an annual budget, which are both discrete questions of law of
public importance which are likely to arise in the future. There may be
various circumstances under which a municipality may be placed under
administration. Certainty is therefore required. The dictum of this Court in
Capitec Bank Holdings Limited and Another v Coral Lagoon Investments
194 (Pty) Ltd and Others therefore finds application:6
‘This court has a discretion to entertain the merits of an appeal, even where the matter
is moot. Where a case poses a legal issue of importance for the future that requires
adjudication that may incline the court to hear the appeal.’

Summary of the facts

5 See Radio Pretoria v Chairman, Independent Communications Authority of South Africa above; Rand
Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA); Minister of Trade and Industry v Klein
NO [2009] 4 All SA 328 (SCA); Clear Enterprises (Pty) Ltd v CSARS [2011] ZASCA 164 (SCA); The
Kenmont School & another v DM & others [2013] ZASCA 79 (SCA); and Ethekwini Municipality v
South African Municipal Workers Union & others [2013] ZASCA 135 (SCA); Legal Aid South Africa v
Magidwana & others [2014] 4 All SA 570 (SCA); and Deutsches Altersheim Zu Pretoria v Dohmen &
others [2015] ZASCA 3 (SCA).
6 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99; [2021] 3 All SA 647 (SCA) para 19. (Footnote omitted.)

[8] On 5 March 2020, the first respondent (the Premier of Gauteng
Province) announced a resolution of the Gauteng Executive Council to
dissolve the City of Tshwane Metropolitan Municipality Municipal
Council (the Council) because it was dysfunctional and placed 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 56 of 2003 (the
MFMA), with effect from 23 March 2020 until a new Municipal Council
has been declared elected. The administrator's powers were determined as
contemplated by s 35(2) of the MFMA. This gave rise to an urgent
application in the high court by the Democratic Alliance (the DA), a
political party which governed the municipality, to set aside the decision
to dissolve the Council.

[9] A specially constituted full court declared the decision to dissolve
the council invalid and set it aside.7 Leave to appeal against the full court
judgment was pursued to the Constitutional Court, thereby suspending the
operation of the judgment. This was followed by the full court order on
29 April 2020, subsequently confirmed by this Court on 27 October 2020,
that the order remains in operation and should be given effect to, pending
an application for leave to appeal to the Constitutional Court. On 4 October
2021 the Constitutional Court found the dissolution of the council unlawful
and issued an order compelling the MEC to invoke his powers in terms of
item 14(4) of the Schedule of the Local Government: Systems Act, 32 of
2000 (Systems Act), appointing a person or committee to investigate the
cause of the deadlock of the municipal council.8

7 Democratic Alliance and Others v Premier for the Province of Gauteng and Others [2020] 2 All SA
793 (GP).
8 Premier, Gauteng and Others v Democratic Alliance and Others; All Tshwane Councillors who are
Members of the Economic Freedom Fighters and Another v Democratic Alliance and Others; African
National Congress v Democratic Alliance and Others [2021] ZACC 34; 2021 (12) BCLR 1406 (CC).

[10] By 30 June 2020, the administrator had approved the municipality’s
annual budget for the 2020/21 financial year. This raised the issue of
whether the administrator's appointment in terms of s 139(1)(c) of the
Constitution, read with the powers and functions set out in the terms of
reference, vested him with power to approve the budget.

The legal framework
[11] It is necessary to set out the relevant provisions of the Constitution
and other statutory instruments within which the issue in the appeal must
be determined. Section 151(2) of the Constitution vests the executive and
legislative authority of a municipality in its Municipal Council. This
provision is echoed in ss 4(1)(b) and 4(2)(a) of the Systems Act. The
powers and functions of a municipality are regulated by the provisions of
s 156 of the Constitution. Section 156(2) of the Constitution provides that
a municipality may make and administer by-laws for the effective
administration of the matters which it has the right to administer.

[12] Section 160(1)(a) of the Constitution empowers a Municipal
Council to make decisions concerning the exercise of all the powers and
the performance of all the functions of the municipality. In terms of
s 160(2) of the Constitution, the following functions may not be delegated
by a Municipal Council: the passing of by-laws; the approval of budgets;
the imposition of rates and other taxes, levies and duties; and the raising of
loans. Section 229 of the Constitution deals with the municipal fiscal
powers and functions. It provides that a municipality may impose –
‘(a) rates on property and surcharges on fees for services provided by or on behalf of the
municipality; and

(b) if authorised by national legislation; other taxes, levies and duties appropriate to
local government or to the category of local government into which that
municipality falls, but no municipality may impose income tax, value-added tax,
general sales tax or customs duty.’

[13] The process for approval of the annual budget by a council of a
municipality is this. In terms of s 16(1) of the MFMA, the council must for
each financial year approve an annual budget for the municipality before
the start of that financial year. In order to comply with s 16(1), the mayor
of the council must in terms of 16(2) of the MFMA, table the budget at a
council meeting at least 90 days before the start of the budget year. The
entire process is initiated by the mayor, who co-ordinates the process for
preparation of the budget. Once the budget has been published and tabled,
the council must consider approval of the annual budget in terms of s 24(1),
at least 30 days before the start of the budget year.

[14] Section 24(2)(a) of the MFMA provides that the annual budget must
be approved before the start of the budget year. If a municipality has not
approved an annual budget or any revenue raising measures necessary to
give effect to the budget by the first day of the budget year, the mayor must
immediately comply with s 55 of the MFMA, which enjoins the mayor to
make a report to the provincial executive in such a case. Section 26
provides for the consequences of failure to approve the budget before the
start of the budget year. In terms of s 26(1), the executive council of the
relevant province is entitled to intervene in the municipality in terms of s
139(4) of the Constitution by taking any appropriate steps to ensure that
the budget or those revenue-raising measures are approved, including
dissolving the council and –

‘(a) appointing an administrator until a newly elected council has been declared elected;
and
(b) approving a temporary budget or revenue-raising measures to provide for the
continued functioning of the municipality.’

[15] It behoves me to mention that the process followed by the Gauteng
Executive Committee (the provincial executive) did not arise from the
process envisaged in s 55 of the MFMA. In considering the impugned
decision, one needs to consider the empowering provision that was relied
upon by the provincial executive when it dissolved the council and
appointed the administrator. It acted in terms of s 139(1)(c) of the
Constitution, which provides as follows:
‘When a municipality cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation, the relevant provincial executive may intervene by taking
any appropriate steps to ensure fulfilment of that obligation, including –
. . .
(c)
dissolving the Municipal Council and appointing an administrator until a newly
elected Municipal Council has been declared elected, if exceptional circumstances
warrant such a step.’

Appellant’s submissions
[16] The appellant relied on Mnquma Local Municipality and Another v
Premier of the Eastern Cape and Others, in which the court found that the
approval of a budget is not an executive obligation in terms of s 139(1).
The argument was that, by analogy, the approval of a budget was not an
executive function as envisaged in the third respondent’s terms of
reference. The court stated as follows in paragraph 58:9

9 Mnquma Local Municipality and Another v Premier of the Eastern Cape and Others [2009] ZAECBHC
14 (Footnotes omitted.)

‘Neither sub-section (1) nor any of the other provisions of chapter 7 pertinently specify
the executive obligations of a municipal council. What is clear from a reading of section
139 as a whole is that it does not include an obligation to approve a budget or any
revenue raising measures, or a material breach of an obligation to provide basic
services, or to meet its financial commitments which is “as a result of a crisis in its
financial affairs.” These matters are specifically dealt with in sub-sections (4) and (5).”’

[17] In support of its construction of s 139(1) of the Constitution, the
appellant referred to s 1 of the MFMA, which defines ‘approved budget’
to mean ‘an annual budget – (a) approved by a municipal council; or (b)
approved by a provincial or national executive following an intervention
in terms of s 139 of the Constitution and includes such an annual budget as
revised by an adjustments budget in terms of s 28.’

[18] This was so, it was submitted on behalf of the appellant, because the
approval of an annual budget entails a legislative function, which the
administrator was not afforded. It was contended that a budget can only be
approved by either a municipal council or provincial executive only in the
case of a temporary budget in terms of s 139(4) and 139(5) of the
Constitution. For this contention, the appellant relied on the judgment of
this Court in Premier of the Western Cape and Others v Overberg District
Municipality and Others, where this Court held as follows:10
‘The real question is thus whether there is anything in the MFMA which excludes a
directive by the provincial executive that compels approval of the budget by the council
after 1 July, from the wide ambit of ‘any appropriate steps’. The answer to this question,
I believe, is that the MFMA imposes no such limitation on the powers of the provincial
executive. At the risk of repetition, I point out that, as I see it, ‘any appropriate steps’
in s 139(4) clearly include a directive by the provincial executive that enables the

10 Premier of the Western Cape and Others v Overberg District Municipality and Others 2011 (4) SA
441 (SCA); [2011] 3 All SA 385 (SCA) para 30. (Footnotes omitted.)

council to approve the annual budget. Any exclusion of that power in the MFMA would
therefore impose a limitation on the powers bestowed upon the provincial executive by
the Constitution itself. Since the MFMA contains no express limitation to that effect, it
would have to be implied. Needless to say, in my view, that one could hardly imply a
limitation into legislation that would be unwarranted by the Constitution.’
The appellant further submitted that the Constitution did not intend that an
administrator should approve a budget where the council has been
dissolved. The appropriate steps to approve the budget can, so it submitted,
only be taken by the provincial executive in terms of s 139(4). It was further
submitted that s 139(4) provides a twofold process, namely, interim
caretaking measures and the approval of the budget only by the provincial
executive to provide for the continued functioning of the municipality until
the elected council takes over.

[19] Furthermore, for its contention that the approval of the budget is a
legislative function falling beyond the administrator’s competence, the
appellant relied on the decision in Fedsure Life Assurance Ltd and Others
v Greater Johannesburg Transitional Metropolitan Council and Others,11
and the views expressed by Woolman and Bishop.12 It asserted that the
provincial council could have approved a temporary budget in terms of
s 139(4).

Evaluation of the merits
[20] At the outset, I must state that the appellant conflated s 139(1) and
s 139(4). These sub-sections cater for different scenarios under which the
provincial executive may intervene. In this case, the provincial executive

11 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others 1999 (1) SA 374 CC; 1998 (12) BCLR 1458 para 45.
12 Stu Woolman and Michael Bishop Constitutional Law of South Africa 2ed (2012) pages 22-123 and
22-124.

proceeded in terms of s 139(1)(c) by dissolving the council and appointing
the administrator. The s 139(1)(c) intervention occurs when a municipality
cannot or does not fulfil an executive obligation in terms of the
Constitution or legislation. In relevant parts, s 139 reads:
‘Section 139 Provincial intervention in local government
1.
When a municipality cannot or does not fulfil an executive obligation in terms
of the Constitution or legislation, the relevant provincial executive may intervene by
taking any appropriate steps to ensure fulfilment of that obligation, including-
(a)
issuing a directive to the Municipal Council, describing the extent of the
failure to fulfil its obligations and stating any steps required to meet its obligations;
(b)
assuming responsibility for the relevant obligation in that municipality
to the extent necessary to-
(i)
maintain essential national standards or meet established minimum
standards for the rendering of a service;
(ii)
prevent that Municipal Council from taking unreasonable action that is
prejudicial to the interests of another municipality or to the province as a whole;
or
(iii)
maintain economic unity; or
(c)
dissolving the Municipal Council and appointing an administrator until
a newly elected Municipal Council has been declared elected, if exceptional
circumstances warrant such a step.’
It is thus left to the discretion of the provincial council which process it
will follow, as long as it is appropriate. These powers are distinguishable
from the powers set out in s 139(4), which provides as follows:
‘4. If a municipality cannot or does not fulfil an obligation in terms of the Constitution
or legislation to approve a budget or any revenue-raising measures to give effect to the
budget, the relevant provincial executive must intervene by taking any appropriate steps
to ensure that the budget or those revenue-raising measures are approved, including
dissolving the Municipal Council . . .’.
Thus, the intervention depends on the nature of the failure to execute an
obligation, and the appropriateness of the internvention.

[21] Section 139(1)(c) is a broad provision, aimed at a failure by a
municipality to ‘fulfil an executive obligation in terms of the Constitution
or legislation’. It gives a discretion to the provincial executive whether to
intervene or not. On the other hand, s 139(4) is specific. It is triggered by
a Municipal Council’s failure to approve a budget or any revenue raising
measures to give effect to the budget. It is couched in peremptory terms,
making it mandatory that the provincial executive intervene by taking
appropriate steps to ensure that the budget or revenue raising measures are
approved. A simple reading of s 139(4) makes it plain that the failure to
approve a budget or revenue raising measures is the only trigger for an
intervention by the provincial executive in terms of s 139(4). Therefore,
s 139(4) read with the provisions of s 26 of the MFMA, caters only for the
consequences of failure to approve a budget before the start of a budget
year.

[22] In the present case, the administrator was not appointed as a
consequence of a failure by the municipality to approve a budget but in
terms of s 139(1)(c). His terms of reference were to:
‘(i)
undertake all executive functions of a municipal council;
(ii)
undertake all statutory executive functions of the Mayor;
(iii)
undertake all fiscal and financial management functions at the municipality,
including being signatory on the municipal primary banking account;
. . .
(vi)
ensure implementation of financial systems, policies and procedures.’
Section 139(1)(c) of the Constitution imposes no obligation on the
provincial executive to pass an interim budget when it dissolves the
council. It refers to the dissolution of the council and the appointment of
an administrator until a newly elected Municipal Council has been declared
elected, if exceptional circumstances warrant such a step.

[23] The clear purpose of the appointment of an administrator is to ensure
the continued functioning of the municipality. The administrator does so
as the legal substitute of the Municipal Council. This leads to two important
consequences. First, the administrator could hardly fulfil this function
without an approved budget. It follows that if an administrator is in office
when the aforesaid legislative provisions oblige the approval of a budget,
the approval thereof by the administrator would accord squarely with the
very purpose of the appointment of the administrator. Secondly, a reference
to a Municipal Council in provisions such as s 160 of the Constitution and
the definition of ‘approved budget’ in s 1 of the MFMA, must be
understood as including a reference to the duly authorised legal substitute
of the Municipal Council for the time being.

[24] A proper analysis of the appellant’s contention reveals that it comes
down to saying that s 139(4) and 139(5) of the Constitution provide for a
blanket prohibition against the approval of a budget by an administrator.
Such an intention could easily have been clearly expressed, but cannot be
found in the text of these provisions. And as I have said, their context points
the other way.

[25] The fundamental flaw in the appellant’s case is that it assumed that
whenever a municipal council is dissolved, regardless of the basis for the
dissolution or the power invoked, it is only the provincial executive that is
empowered to adopt the budget.

[26] I agree with the first respondent that budget approval is not a
legislative function. As I have said, s 151(2) of the Constitution provides
that the executive and legislative authority of a municipality is vested in its

Municipal Council. The Constitution does not define these terms. They
should accordingly bear their ordinary meanings. A legislative function
relates to the making of laws, as envisaged in, inter alia, s 156 (2) read with
s 162 of the Constitution or the imposition rates and taxes in terms of s 229
read with, inter alia, s 6 and 14 of the Rates Act 6 of 2014. The fact that it
is preceded by a debate in the municipal council does not mean that the act
of passing a budget is a legislative function. The interpretation of the
budget process should be considered in the context of its purpose, which is
executive in nature. The budget essentially facilitates service delivery.

[27] The appellant’s reliance on Fedsure13 was incorrect. The first
respondent correctly pointed out that Fedsure is no authority for the
proposition that the approval of the budget is law-making. The fact that
s 151(2) vests the council with executive and legislative powers does not
confer to the council the same powers as envisaged in the national and
provincial governments, the Constitution limits the council’s power to
legislate only to the passing of by-laws. In fact, only a resolution is required
to adopt a budget. Most significantly, the Fedsure judgment concerned the
legality of rates imposed by the Municipal Council on its residents. The
majority in Fedsure found that when power is exercised to raise rates and
taxes or appropriation of public funds, the National, provincial or local
government exercises a power under the Constitution peculiar to legislative
bodies. It further concluded that it did not seem to the Court that the action
of municipal legislatures, in resolving to set the rates, can be classified as
administrative action as contemplated by s 24 of the interim Constitution.

13 Ibid fn 11.

[28] It remains to deal with the appellant’s reliance on para 58 of
Mnquma. It will be recalled that the court held that the obligations to
approve a budget or to provide basic services are not executive obligations
within the meaning of s 139(1), because these matters, amongst others, are
specifically dealt with in s 139(4) and (5). This interpretation is not correct.
Section 139(4) and (5) simply do not purport to define executive
obligations or to differentiate between executive and legislative
obligations. This is particularly illustrated by the fact that the obligations
of a Municipal Council to provide basic services and to meet its financial
commitments are clearly of executive nature. The reliance on Mnquma was
thus misplaced.

[29] In conclusion, the executive powers given to the third respondent
included the power to approve the budget. The appeal has to fail.

[30] With regard to costs, since the appeal was on a constitutional issue
against an organ of state, in line with the Biowatch14 principle, the appellant
should not be saddled with the state respondents’ costs.

The order
[31] Accordingly, the following order is made:
The application for condonation of the late filing of the first
respondent’s heads of argument is granted and the first respondent is
directed to pay the costs of opposition thereof.

14 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC).

The application for condonation of the late filing of the third
respondent’s heads of argument is granted.
The appeal is dismissed.

_____________________________
Y T MBATHA
JUDGE OF APPEAL

Appearances

For appellant:
A T Lamey (with him C van Schalkwyk)

Hurter Spies Inc., Pretoria

Rossouw & Conradie Inc., Bloemfontein

For first respondent:
T Ramogale

The State Attorneys, Pretoria

The State Attorneys, Bloemfontein

For third respondent:
T J Bruinders SC (with him M Motlogelwa)

Malebye Motaung Mtembu Inc., Pretoria

JL Jordaan Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

24 DECEMBER 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Afriforum NPC v The Premier, Gauteng Province and Others (1000/2020) [2021] ZASCA 185
(24 December 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing, with costs, an appeal
against a decision of the Gauteng Division of the High Court, Pretoria (the high court).
The issue before the SCA was whether the administrator appointed in terms of s 139(1)(c) of the
Constitution had the power to approve the 2020/21 annual budget of the City of Tshwane Metropolitan
Municipality (municipal council). The administrator upon his appointment approved the annual budget
of the municipal council
The appellant challenged the legality and constitutionality of the approval of the annual budget by
Kebitsamang Nawa NO (the third respondent), the administrator of the City of Tshwane Metropolitan
Municipality (the second respondent), for the financial year 2020/2021 and the nature and character of
the decision to approve the budget. On or about 5 March 2020, the first respondent (Premier of Gauteng
Province) announced a resolution of the Gauteng Executive Council to dissolve the City of Tshwane
Metropolitan Municipality Municipal Council (the Council) because it was dysfunctional and placed 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 56 of 2003 (the MFMA), with effect from 23 March 2020 until the
declaration of a newly elected Municipal Council.
The appellant argued that the approval of the annual budget entails a legislative function which the
administrator may not perform. It contended that the Constitution did not intend that an administrator
should approve a budget where the council has been dissolved.
The SCA held that s 139(1)(c) of the Constitution imposes no obligation on the provincial executive to
pass an interim budget when it dissolves the council. It refers to the dissolution of the council and the
appointment of an administrator until a newly elected Municipal Council has been declared elected, if
exceptional circumstances warrant such a step. It is only when there is a failure to approve a budget
that it can intervene and adopt an interim budget. Furthermore, the SCA found that the administrator
was not appointed as a consequence of a failure to approve a budget but was appointed to act in line
with the terms of reference.
~~~~ends~~~~