Free State High Court compels the provincial government to intervene in the dysfunctional Ngwathe Local Municipality
Residents have endured persistent water shortages, raw sewage spilling into streets, crumbling infrastructure, and financial mismanagement, with the municipality owing over R1 billion to creditors like Eskom and Rand Water. This dire situation prompted Afriforum, a civil rights organisation, to seek judicial intervention, culminating in a ruling by the Free State High Court in Afriforum NPC v Ngwathe Local Municipality and 14 Others in favour of Afriforum. Judge Johannes Daffue declared the municipality as dysfunctional and in breach of its constitutional, legislative, and regulatory obligations under sections 152(1) and 153(a) of the Constitution, which mandate sustainable service delivery and sound municipal management. The court ordered the dissolution of the Ngwathe municipal council and compelled immediate provincial intervention by the Free State government under section 139 of the Constitution, reinforcing the growing judicial oversight of local government.
Legal basis for provincial intervention under section 139 of the Constitution
Section 139 of the Constitution provides a framework for provincial intervention when a municipality fails to fulfill its executive obligations. This provision empowers provinces to issue directives, assume responsibility for specific functions, or, in extreme cases, dissolve a municipal council and appoint an administrator. In the Ngwathe case, Judge Daffue invoked sections 139(4) and (5), citing the municipality’s failure to approve a viable budget, meet financial obligations, and deliver basic services like water and sanitation. The court’s ruling emphasised that the provincial executive, including the Member of the Executive Council (MEC) for Co-operative Governance and Traditional Affairs (COGTA), failed to act despite clear evidence of dysfunctionality, as documented in the 2021 State of Local Government Report, which listed Ngwathe among seven dysfunctional municipalities in the Free State. This judicial compulsion underscores the courts’ role as a “watchdog” when provincial authorities neglect their constitutional duties to intervene in failing municipalities.
The role of communities in holding government accountable through the courts
Afriforum, supported by community groups like Save Ngwathe and Mooi Parys, played a pivotal role in bringing the Ngwathe case to court. Their legal arguments highlighted the municipality’s chronic service delivery failures, including water contamination, sewage spillage into the Vaal River, and financial mismanagement, with debts exceeding R1.5 billion (para 30 and 31). Residents, despite paying electricity and service fees, faced service delivery disruptions that violated their constitutional rights to dignity, a safe environment, and access to basic services. The ruling is a victory for residents who had suffered for years due to municipal incompetence. The court’s structural interdict not only ordered dissolution but also mandated the Free State Premier and her Provincial Executive Council to implement a recovery plan to restore service delivery and financial stability, reflecting the judiciary’s commitment to protecting community rights when local and provincial governments fail.
Judicial findings on municipal dysfunctionality
Judge Daffue’s judgment detailed the extent of Ngwathe’s dysfunctionality, noting instability in leadership, with frequent turnover of municipal managers since 2022 and vacant senior positions, including the Chief Financial Officer. The court rejected the municipality’s claim that water was free of fecal contamination, citing evidence of ongoing sewage spillage as a public health hazard (paragraph 50). Furthermore, the Provincial Treasury’s rejection of Ngwathe’s R2.099 billion draft budget for 2025/26, based on an unrealistic 100% collection rate, underscored the municipality’s financial insolvency. The judgment also criticised the provincial government’s inaction, despite its constitutional obligation to intervene under section 139(1) and sections 136–140 of the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA). According to the court, this failure to act constituted “exceptional circumstances” warranting judicial intervention to compel provincial oversight and council dissolution (para 50).
The role of structural interdicts in judicial oversight
The court’s use of a structural interdict in the Ngwathe case is a powerful legal tool to ensure compliance with its orders. This remedy requires the Free State provincial government to dissolve the municipal council, appoint an administrator, approve a temporary budget, and implement a recovery plan, with periodic progress reports to the court. Judge Daffue emphasised the judiciary’s role as a “watchdog” to monitor the implementation of these measures, ensuring that the provincial executive fulfills its constitutional mandate. Structural interdicts are increasingly common in municipal litigation, as seen in cases like the Makana Local Municipality, where courts compelled provincial intervention to address systemic failures. This approach balances judicial intervention with respect for provincial autonomy, allowing the executive to execute the recovery plan while under court supervision.
Precedents and comparative cases
The Ngwathe ruling aligns with a growing trend of judicial intervention in dysfunctional municipalities across South Africa. For instance, the Makana Local Municipality in the Eastern Cape faced similar court-ordered intervention in 2020, when the High Court directed the provincial executive to dissolve the council and impose a financial recovery plan due to persistent service delivery failures. Similarly, the Matjhabeng Local Municipality in the Free State was placed under administration in 2025 for financial mismanagement and governance collapse. These cases highlight the courts’ willingness to step in when provinces fail to exercise their section 139 powers, particularly in cases of financial distress or service delivery breakdown. The Ngwathe judgment reinforces the principle that provincial inaction can trigger judicial compulsion, ensuring accountability and protecting residents’ constitutional rights.
Implications for provincial-municipal relations
The Ngwathe ruling raises critical questions about the relationship between provincial and local governments in South Africa. Section 139 interventions are intended to be a constitutional override mechanism to prevent municipal collapse, yet provinces often hesitate to intervene due to political considerations. Some argue that provincial intervention should be proactive, addressing dysfunctionality before it reaches a crisis point, rather than a reactive “mopping up” exercise. The Ngwathe case exposes the Free State Provincial Government’s failure to act despite years of documented municipal failures, prompting the court to enforce accountability. This judicial precedent may embolden other communities and organisations to seek legal remedies when provinces fail to uphold their supervisory roles, potentially reshaping the dynamics of cooperative governance in South Africa.
Financial mismanagement and Eskom debt crisis
Ngwathe’s financial woes, including its R1.467 billion debt to Eskom and R1 billion to Rand Water, exemplify the broader municipal debt crisis in South Africa. A 2022 Constitutional Court ruling criticised Eskom’s attempt to reduce electricity supply to Ngwathe without consulting residents, highlighting the tension between utility providers and dysfunctional municipalities. Residents, who paid for services through prepaid meters or monthly bills, were unfairly penalised by the municipality’s failure to remit payments to Eskom. The Ngwathe judgment addresses this systemic issue by mandating a recovery plan to restore financial stability, including revenue-raising measures. However, the court refrained from granting Afriforum’s request to directly assist the Provincial Executive temporarily with the intervention, citing potential conflicts, and instead entrusted the provincial executive with the intervention process. Nonetheless, when intervening, the Provincial Executive will be assisted by a variety of stakeholders such as the National Government, national Ministers, the President and even Afriforum, to implement a complete and successful turnaround strategy “where actions speak louder than words” (para 72).
Community empowerment and judicial precedent
The Ngwathe ruling sets a significant precedent for community-driven litigation against failing municipalities. Afriforum’s success, supported by groups like Save Ngwathe, demonstrates the power of organised civil society to hold local governments accountable. The judgment not only delivers justice for Ngwathe’s residents but also provides a legal framework for other communities facing similar challenges. The court’s order for the provincial government to pay Afriforum’s legal costs further underscores the legitimacy of such actions. As Schalk Burger, Chairperson of Afriforum’s Parys branch, noted, the ruling is a “sweet victory” after years of struggle, reflecting the perseverance of residents and their allies in demanding accountability and improved service delivery. This case may inspire similar legal challenges across South Africa, amplifying the judiciary’s role in municipal governance.
Conclusion and future outlook
The Free State High Court’s ruling contributes to the South African local government law, reinforcing the judiciary’s role in compelling provincial intervention when municipalities fail. By ordering the dissolution of Ngwathe’s council and mandating a recovery plan, the court has established a foundation to address a long-standing crisis while setting a benchmark for judicial oversight in dysfunctional municipalities. However, the success of this intervention depends on the Free State provincial government’s commitment to implementing the court’s orders effectively as well as ensuring consistent compliance in future similar crisis. Afriforum and community groups have pledged to monitor the process closely, ensuring that residents’ rights to a liveable environment are upheld. As South Africa grapples with widespread municipal dysfunctionality, the Ngwathe case underscores the need for proactive provincial oversight and robust judicial mechanisms to safeguard constitutional guarantees of service delivery and good local governance.
Dr Paul Mudau, Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa.