The troubled Tswaing Local Municipality has failed in its attempt to halt the implementation of the findings of an investigation ordered by the province’s Co-operative Governance, Human Settlements and Traditional Affairs MEC Gaoage Molapisi.
Molapisi was hauled to the province’s high court by acting municipal manager Mogale Morwe, mayor Norah Mahlanghu and the speaker Sam Letlakane.
The North West council took the matter to court after Molapisi complained about alleged maladministration within the municipality and invoked provisions of the Municipal Systems Act and appointed a firm of attorneys, to conduct an investigation.
According to the judgment, section 106 of the Act constitutes part of the statutory framework through which the provincial government exercises oversight over municipalities where there are allegations of maladministration, fraud, corruption or failure to fulfill executive obligations.
“That oversight function is constitutionally significant. Local government autonomy exists within a constitutional system of cooperative governance, not institutional isolation,” ruled acting North West High Court Deputy Judge President Andre Petersen.
The judge reserved costs for the substantive challenge to the report.
Acting Deputy Judge President Petersen also warned that should Morwe, Mahlanghu and Letlakane fail to prosecute second part of the application, Molapisi may apply to the registrar of the court, on notice to the municipality for a date for consideration of the costs of tee application.
“The MEC responds that the applicants (Morwe, Mahlanghu and Letlakane) have a range of adequate alternative remedies available to them. If and when the municipal council resolves to implement the MEC’s recommendations, that council resolution is itself susceptible to review,” the court found.
It added: “If disciplinary proceedings are instituted, those proceedings are regulated, and their outcomes are independently reviewable. Should implementation steps create an imminent threat, targeted interim relief may be sought at that stage”.
Molapisi said the balance of convenience favoured him.
“The MEC is constitutionally and statutorily duty-bound to intervene in instances of maladministration and corruption in municipalities. The public interest, and in particular the interest of the residents of the North West province in accountable local government, requires the MEC to exercise this oversight function,” acting Deputy Judge President Petersen found.
He added that an interim restraining order at the stage of the dispute would impede a constitutionally grounded mechanism and run contrary to the cooperative governance framework under the Constitution.
The judge also stated that the municipality’s apprehension of harm was understandable given Molapisi’s directive character’s correspondence.
“However, an interim interdict requires a well-grounded apprehension of irreparable harm, not a reasonable anxiety about future contingencies. The harm asserted remains conditional on the municipal council taking a decision that it has not yet taken and, on the applicants’ own account, is unlikely to take given the council’s apparent disagreement with the report.
The alleged harm has not crystalised into imminent and irreversible prejudice. The applicants (Morwe, Mahlanghu and Letlakane) have accordingly failed to establish irreparable harm of the required kind,” the court ruled.
Molapisi‘s spokesperson Lerato Gambu said they noted the court’s observation that the central legal question raised by the applicants – whether and to what extent the audi alteram partem principle applies during a Section 106 investigation – is a novel issue that is best determined in the main review proceedings and not on an urgent interim basis.
“The MEC remains committed to exercising constitutionally mandated oversight over municipalities in the North West province, including the use of Section 106 of the Local Government: Municipal Systems Act, to address allegations of maladministration and to promote accountable, clean, and effective local governance.”
Gambu added that Molapisi will continue to defend the integrity of the investigative process and will await the prosecution of the review application.
loyiso.sidimba@inl.co.za
