In a far-reaching urgent court application, Sakeliga is now asking for a court order to force the national government to intervene directly in the Ditsobotla local municipality (Lichtenburg and Coligny) and to empower community organisations to undertake emergency interventions.
The application requests authorisation for community organisations to intervene on an interim basis in the delivery of water services in the municipality, and it also includes a request for the intervention process to take place under supervision of the court on an ongoing basis.
Among other things, Sakeliga also asks for a special master to be appointed in the event that government intervention keeps failing.
The recent collapse of local government capacity in Ditsobotla has compelled Sakeliga to escalate its already pending legal actions to the highest level of intervention provided for in the Constitution. The application is also aimed at bridging some of the political and administrative problems accompanying this level of state decay.
Sakeliga has wide support from the Lichtenburg and Coligny communities, with support in the application by co-applicants, including the Centre for Good Governance and Social Justice (CGGSJ) and also businesspeople in these two towns.
Province’s failed intervention in terms of section 139(1)
The court application, which was served on the presidency and other spheres of government yesterday, comes after large-scale governance implosion in the Ditsobotla local municipality in North West in September this year. In the umpteenth irrational and failed attempt at intervention, the provincial government in September decided to dissolve the municipal council in terms of section 139(1)(c) of the Constitution. This was done despite the fact that the municipality allegedly had been quietly placed under forced administration in terms of section 139(5) of the Constitution as far back as November 2021. No administrator was appointed in November 2021 and the province apparently started the process of appointing one only after it was decided in September this year to dissolve the municipal council.
Water supply has come to a standstill in numerous places, sewage and rubble are piling up everywhere, normal business is untenable, and medical people have warned about a possible health crisis because of the lack of water supply to these towns.
Province’s failed intervention in terms of section 139(5)
The section 139(5) intervention of November 2021 (until recently undisclosed) is of major importance, because it took place during the paymaster court case launched by Sakeliga in June 2021. Not only did neither the province nor any of the other respondents during almost a year of litigation inform Sakeliga that section 139(5) had been applied, but all of them, in fact, continued to oppose Sakeliga’s application for the court to order such administration.
The initial paymaster case formed part of Sakeliga’s strategic litigation plan against local state decay with a view to placing financial administration and critical service delivery in failed municipalities such as Ditsobotla under the control of independent auditors. Click here for more about the 2021 paymaster case.
The state’s malicious opposing of Sakeliga’s 2021 paymaster case is counting against them in several ways and will be raised in court. Practically stated, however, the most important fact now is that matters under the control of the province, in terms of section 139(5), have after 11 months clearly only deteriorated. The section 139(5) intervention has failed completely.
What is provided for by the Constitution: sections 139(7) and 172
The highest level of intervention at failed municipalities expressly provided for by the Constitution is stipulated in section 139(7). In terms of this section, the national government is obliged to intervene directly when lesser interventions by the provincial government as prescribed in sections 139(1) to 139(5) have failed.
However, given that even this highest explicit intervention in terms of the Constitution is not going to restore critical water supply quickly enough or guarantee success, Sakeliga is asking the court to go beyond that, namely in terms of section 172 of the Constitution.
Section 172 provides that the court, through the administration of justice, must develop solutions to unconstitutional situations for which no other provision is made in legislation or the Constitution. Complete local municipal decay, which is not solved by state action in terms of section 139 of the Constitution, constitutes such a situation.
What Sakeliga is asking now: escalation of intervention, community empowerment and court supervision
Referring to sections 139 and 172, among others, Sakeliga therefore asks the court to –
- find that the province’s section 139(5) intervention has failed;
- instruct the national government to perform a section 139(7) intervention;
- recognise and, if necessary, subsequently expand and even transfer to a special master, critical interim service delivery, specifically water supply, by community organisations;
- supervise the process, with monthly reporting by the national government, under oath, on their progress; and
- make other orders as deemed fit by the court.
Drastic acceleration of Sakeliga’s strategic litigation
After several state institutions had maliciously delayed Sakeliga’s paymaster case since June 2021, the failure at all levels of government to ensure functional local government has caught up with them.
Sakeliga’s present court application represents a drastic acceleration of its strategic municipal litigation by means of which we intend creating administration of justice for application across the country. It escalates Ditsobotla’s local state of decay to the highest level of intervention provided for by the Constitution and gives guidance in creating administration of justice to solve the problem in the long run.
Sakeliga remains committed to creating a legal framework step by step, even if it takes a long time, within which business people themselves can restore their local economies to the benefit of local communities and in the interest of a stable society.
Co-applicants and supporters from the community
Sakeliga is supported in its application by two co-applicants, a public benefit organisation and a local businessman. The public benefit organisation, the first co-applicant, is the Centre for Good Governance and Social Justice (SGGSJ), represented by its executive director, Mr Mandla Boyce Mpempe. The Centre undertakes public interest litigation to promote its objectives and positions itself independently and apolitically.
Apart from the co-applicants, Sakeliga’s application is also benefitting from contributions by persons and organisations from various communities in Ditsobotla, in particular Agri North West, the Lichtenburg Chamber of Business and other business people in Lichtenburg and Coligny. We are grateful for this cooperation.
Click here for the court documents in the latest court case, as served on 6 October 2022.