Sakeliga takes action against state delays in court cases over municipal failure

29 March 2023

State respondents are unconscionably delaying critical litigation over municipal decay in the North West province. Delay on the part of the state and an apparent lack of prioritization of matters of constitutional importance in the High Court in Mahikeng exposes communities and business people to escalating state failure.

This is the state of affairs after the High Court in Mahikeng last week once again postponed Sakeliga and its litigation partners' application regarding municipal collapse in the Naledi and Ditsobotla municipalities. In two applications before the High Court, Sakeliga is asking, among other things, for mandatory national intervention, financial administration and interim management of municipal bank accounts by independent auditors to act as special masters at the behest of the High Court.

Sakeliga is concerned about the lack of prioritization that this matter currently enjoys. After two previous postponements of the matter, the High Court ordered on 13 February 2023 that the September 2022 urgent application, together with Sakeliga's already pending application for the appointment of a paymaster, should be heard on 23 and 24 March 2023. The cases were set down for a special hearing spanning over two days. However, already early in the morning on the 23rd of March, Sakeliga's legal team was confronted by the reality of several other applications which were also enrolled before the same court, and which would seize most of the court's time during the allocated two days. Further affidavits by, among others, the Minister of Finance and the Ditsobotla Municipality, which were filed at the eleventh hour the night before, then rendered postponement of Sakeliga’s cases inevitable.

Given the risk that further delays may be brought about by the court or the respondents, urgent further case management is now requested from the court, so that new special hearing dates can be determined.

This is the third time since September 2022 that the hearing of the second leg of Sakeliga's urgent court application regarding the collapse of municipal government in the Ditsobotla Municipality has been postponed. On previous occasions the case was adjourned due to respectively:

on 10 November 2022, the government's non-compliance with an order that Sakeliga obtained in the first leg of its application and the fact that the court's generator was out of order; and

on 18 November 2022, the acting judge set to hear case indicating that he could not hear the case and subsequently remitting the case to another acting judge. However, the latter judge was no longer acting at that stage, and special directives had to be obtained from the judge president of the North West Division of the High Court before the case could proceed.

On 23 March 2023, in response to the late filing of the government's answering affidavits, the court granted two costs orders for the wasted costs of the day, against the Ditsobotla Municipality. These costs include the costs of three counsel.

The eleventh-hour affidavit filed by Ditsobotla was signed by a person posing as Ditsobotla's acting municipal manager, although there is no formal appointment for that person. In the affidavit, the person testifies about the supposedly improved municipal situation. These allegations were made in the same week that Sakeliga gained possession of a letter of resignation by the very person, which had already been submitted to the municipality days before. In his letter of resignation, the person lists the reasons for resigning from the municipality with immediate effect and irrevocably, which reasons include that the municipal situation and his own safety in Ditsobotla are untenable.

Sakeliga’s two current court applications form part of a comprehensive litigation strategy aimed at developing a legal framework for non-state interventions in the event of general state collapse.

Sakeliga instructed our legal team to exert as much pressure as possible to swiftly get the case back on track, so that it can be brought to finality. If remedies are ultimately not available in the Mahikeng High Court, Sakeliga will, in consultation with our legal team, take all necessary further steps to ensure that justice is done.

Issued by Tian Alberts, Legal and Liaison Officer, Sakeliga, 29 March 2023