Afriforum NPC v The Premier, Gauteng Province and Others

South Africa

24.12.2021

Civil

Section 139(1)(c) of the Constitution imposes no obligation on the provincial executive to pass an interim budget, when it dissolves the council

The issue before the SCA was whether the administrator appointed in terms of Section 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 Section 139(1)(c) of the Constitution and Section 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.

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. It is only when there is a failure to approve a budget that it can intervene and adopt an interim budget. Furthermore, 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. The executive powers given to the third Respondent included the power to approve the budget. Appeal dismissed.

Tags : Annual budget Power Approval

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