Case  CCT31/20
[2021] ZACC 36

Hearing Date: 18 May 2021

Judgement Date: 19 October 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 19 October 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Labour Appeal Court, hearing an appeal from the Labour Court. The matter related to the interpretation and application of section 193(2)(b) of the Labour Relations Act (LRA), and the question for determination was whether a court or arbitrator is entitled or obliged, in terms of section 193(2)(b), to consider whether a continued employment relationship would be intolerable when considering the remedy of reinstatement in respect of an unfair dismissal.

The applicant, Mr Booi, was employed by the first respondent, Amathole District Municipality. He was charged with misconduct and, following a disciplinary hearing, was dismissed. Aggrieved, the applicant referred a dismissal dispute to the South African Local Government Bargaining Council where the arbitrator found him not guilty of the charges and held that his dismissal was substantively unfair. The arbitrator ordered that he be reinstated retrospectively. The first respondent took the decision on review to the Labour Court, arguing that the arbitrator had, among other things, committed a reviewable irregularity by ordering reinstatement in circumstances where the relationship between the applicant and his supervisor had broken down irretrievably. The Labour Court upheld the arbitrator’s finding that the dismissal was unfair. However, it held that the arbitrator’s decision to order reinstatement was not reasonable since the applicant’s conduct, although insufficient to sustain a finding of misconduct, was completely destructive to the prospect of a continued employment relationship. It accordingly substituted the arbitration award with an order of compensation. Leave to appeal was refused by the Labour Court and the Labour Appeal Court. The applicant approached the Constitutional Court seeking reinstatement.

Only two parties participated in these proceedings: the applicant, Mr Booi, and the first respondent, his employer, which opposed the relief sought and maintained that not only had the applicant perempted his right to bring the appeal, but the fact that his working relationship with his employer had irretrievably broken down meant that the Labour Court’s refusal to reinstate him was unassailable.

In a unanimous judgment, penned by Khampepe ADCJ, the Constitutional Court granted condonation and leave to appeal, and upheld the appeal.

The Constitutional Court found that the application unequivocally engaged the Court’s jurisdiction as the matter concerned the interpretation and application of section 193(2)(b) of the LRA. In terms of this provision, the primary remedy for a finding of unfair dismissal is an order of reinstatement, unless the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.

The Constitutional Court noted that, because the applicant had instructed his erstwhile legal representatives to secure payment of compensation in terms of the Labour Court’s judgment, this conduct may have created the impression that the applicant had acquiesced in that judgment and would not later seek to appeal it. The Court noted that, on the basis of the doctrine of peremption, this conduct would have been fatal to the applicant’s case but for any overriding policy considerations that might militate against the strict enforcement of the doctrine. The Court found that far from indicating an intention to waive his right to appeal, the applicant’s seeking payment of the compensation in order to finance an appeal demonstrated his persistent intention to pursue an appeal, and his actions were an unfortunate consequence of poor legal advice. The Court stressed that widespread unemployment, poverty and exploitation of employees in South Africa are hurdles that the constitutional project seeks to overcome, and because the matter raised important constitutional issues relating to fair labour practices and job security, the Court was satisfied that the interests of justice could not be served if the doctrine of peremption were to be strictly enforced.

One of the main grounds of appeal in this matter related to the applicant’s averment that the Labour Court, in deciding to order compensation rather than reinstatement, raised the issue of the intolerability of the continued employment relationship mero motu (of its own volition), which was unacceptable since a court can only ever be seized with the arguments litigants place before it. The Constitutional Court was not persuaded by this. Firstly, it found that the question, and quality, of the relationship between the applicant and his supervisor was a feature of the record, was the subject of oral argument before the Labour Court and the applicant himself had alleged that it had soured. Thus, it could not be said that the Labour Court raised the issue mero motu. In any event, the Constitutional Court found, even if the Labour Court had raised the issue mero motu, it would have been justified in doing so since section 193(2)(b) requires a court to consider the intolerability of the working relationship prior to making an order of reinstatement – the relief the applicant himself sought. Raising the question of the intolerability of his relationship with his supervisor, was therefore necessary for the Labour Court to dispose of the matter.

The Constitutional Court found that the matter turned on the proper approach to section 193(2)(b) of the LRA, and the nature of the enquiry when an arbitrator’s decision to order reinstatement is taken on review to the Labour Court. The Court emphasised that, where a dismissal has been found to be substantively unfair, reinstatement is the primary remedy in terms of section 193(1) of the LRA, unless reinstatement would be intolerable because the employment relationship has irretrievably broken down (section 193(2)(b)). However, the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is high, which is the product of a deliberate policy choice adopted by the Legislature to protect labour rights by ensuring that substantively unfairly dismissed employees are put in the position they would have been in but for the unfair dismissal. The Court emphasised that the conclusion of intolerability should not easily be reached and the evidentiary burden to establish intolerability is certainly heightened where the dismissed employee has been exonerated of all charges. The Court found that if the conduct did not justify dismissal, then it is difficult to understand why, at the same time, it could nevertheless provide a ground to prevent reinstatement.

The Constitutional Court also noted that an important question was whether the Labour Court was even entitled to interfere with the award of reinstatement made by the arbitrator. The Court acknowledged that where an arbitrator acting in terms of section 193(2) has considered all the evidence, found that it does not establish intolerability, and decided to order the primary remedy of reinstatement, then the high bar implied by section 193(2)(b) dictates that the arbitrator’s decision should not readily be interfered with by a review court. Furthermore, a review Court is confined to strict grounds of review, and can only interfere if the decision reached by the arbitrator was not one that a reasonable decision-maker could reach. It found that in substituting the award of reinstatement made by the arbitrator with one of compensation, the Labour Court erred because it had considered itself at large to conduct the enquiry that had been before the arbitrator, afresh, as if it were sitting as a court on appeal, which of course it was not.

On this point, the Court lamented the frequency with which courts treat reviews as appeals. This not only results in a waste of judicial resources but creates backlogs for Labour Courts, which backlogs in turn, impede their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. The Constitutional Court emphasised that arbitration awards are intended to be final and binding. In this case, the arbitrator had properly considered all the evidence and had been alive to the strained nature of the employment relationship, but had nevertheless concluded that this evidence was insufficient to persuade him to deviate from the primary remedy for a substantively unfair dismissal: reinstatement. The reasonableness of the arbitrator’s decision was unassailable. Thus, there was no basis for the Labour Court’s interference with the arbitrator’s exercise of his discretion to reinstate the applicant. In the result, the appeal succeeded.

The Constitutional Court set aside the order of the Labour Court and ordered the first respondent to reinstate the applicant retrospectively. However, because of the effluxion of time since his dismissal, which was largely characterised by delays occasioned by the applicant, the Court limited the retrospectivity of the order to the period between his dismissal and the date of the Labour Court’s order, being 9 December 2015 and 3 November 2017 respectively. The Court held that the amount already received by the applicant pursuant to the Labour Court’s order of compensation must be subtracted from the back-pay to which he was entitled for the overall period.

The Constitutional Court, following the general principle that costs do not follow the result in labour disputes, made no order as to costs. It also set aside the punitive costs order made against the applicant by the Labour Court, which it found was unwarranted..


The Full judgment  here

Case  CCT31/20
[2021] ZACC 35

Hearing Date: 11 March 2021

Judgement Date: 15 October 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday,15 October 2021 at 10h00, the Constitutional Court handed down a judgement in an application for leave to appeal against the judgment and order of the Competition Appeal Court in which that Court conditionally approved a merger between the respondents: Mediclinic Southern Africa (Pty) Limited (Mediclinic) and Matlosana Medical Health Services (Pty) Limited (Matlosana).

On 29 September 2016, the respondents as required by section 13(1) of the Act duly notified the Competition Commission of their intended merger. If approved, the merger would result in Mediclinic owning and managing hospitals (target hospitals) which pre-merger were owned and managed by Matlosana. The Commission accordingly investigated the proposed merger and on 28 June 2017, upon realising that it raises significant competition concerns, recommended to the Competition Tribunal that the proposed merger be prohibited because there was a reasonable possibility that it would substantially lessen competition in the private health sector and result in increased costs of healthcare services for both insured and uninsured patients.

Acting on that recommendation, on 22 March 2019, the Tribunal held that the proposed merger would take away the lower tariffs available to uninsured patients at the target hospitals, and given the significant differences in the tariffs, the merger would significantly affect uninsured patients by limiting their ability to negotiate and switch to cheaper hospitals in the form of target hospitals. And in the absence of remedies tendered by the respondents which effectively addressed the established competition concerns, the Tribunal prohibited the proposed merger.

Aggrieved by the Tribunal’s decision, the respondents appealed to the Competition Act Court. The majority of the Competition Appeal Court thereupon held that in the absence of evidence that substantial harm may eventuate if the merger were to be approved, the prohibition of the proposed merger by the Tribunal could not be justified. As such, the majority approved the merger with conditions. On the contrary, the minority confirmed the reasoning and conclusion of the Tribunal, that it would not be in the interest of the public to approve the merger since such would undermine the right to access to healthcare services in the relevant market, rather than advance it.

Unhappy with the decision of the Competition Appeal Court, the Commission sought leave to appeal the order and judgement of the Competition Appeal Court to the Constitutional Court. Before the Constitutional Court, the Commission contended that the Competition Appeal Court ignored sections 7(2) and 39(2) of the Constitution in its interpretation of section 12A(1)(a) and (2) of the Act (provision at issue). It further submitted that the changes in tariffs at the target hospitals would have an impact on the competitive behaviour of Mediclinic, as it would decrease the incentive of Mediclinic’s competitors to charge lower tariffs. Additionally, it raised that a significant tariff increase would have substantial adverse effects on the affordability and access to private healthcare services by uninsured patients who sought private healthcare services in the North West province (the relevant market region), hence without doubt, the merger frustrated the object of the Constitution.The respondents countered and contended that the Constitutional Court had no jurisdiction in the matter as the application raised no constitutional issue or arguable points of law of general public importance which ought to be considered by the Court and, as a result, leave to appeal should not be granted. In the alternative, the respondents argued that the applicant’s contention that the Competition Appeal Court did not consider the constitutional implications of the merger had no basis. Finally, they submitted that the Competition Appeal Court was correct in approving the merger.

In a majority judgment penned by Mogoeng CJ (with Jafta J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J concurring), the crux of the matter before the Court was identified as:

(a) whether the Competition Appeal Court was entitled, in law, to interfere with the findings and remedy of the Tribunal;

(b) the proper interpretation of section 12A(1)(b) and (3) of the Competition Act 89 of 1998 (the Act) which seeks to determine whether a merger can be justified on substantial public interest grounds;

(c) whether the right to access healthcare services in section 27 of the Constitution of the Republic of South Africa, 1996 ought to be considered as a “substantial public interest” ground in terms of the Act. and

(d) whether the Competition Appeal Court interpreted section 12A of the Act in a manner that promotes the spirit, purport and objects of section 27 of the Constitution.

The majority found that interference with factual findings by appellate courts can only be justified in the event of a misdirection or a clearly wrong decision. And this is to be done for the sole purpose of achieving justice. The reversal of the Tribunal’s factual findings and decision on remedy is not a consequence of a rigorous test and examination of its justifications with due deference to the expertise of its members demanded of the Competition Appeal Court by its Imerys South Africa (Pty) Ltd v The Competition Commission [2017] ZACAC 1 and Schumann Sasol (SA) (Pty) Ltd v Price’s Daelite (Pty) Ltd [2002] ZACAC 2 decisions. It is more of an imposition of that Court’s conception of what is right and a consequential replacement of the Tribunal’s factual findings and discretionary decision on remedy with its own preference. Therefore, the Court found that the Appeal Court was not entitled in law to interfere with the Tribunal’s findings.

The majority further held that all that section 12A requires in this regard is that a determination be made whether there is a substantial prevention or lessening of competition. And this is ordinarily measured with reference to a potential increase in price. It does not lay down the “enhancement of market power” as the test or provide any basis for a court to do so. It follows that the majority departed from the wording of the Act which is the point of departure in statutory interpretation. The Court held further that the point of departure to achieve a proper and thorough interpretation and application of section 12A of the Act is construing the section through the prism of constitutional provisions from which section 12A draws life, the most significant being section 27(1) of the Constitution, the right to health care. This approach, the Court reasoned, advances and promotes the injunction of sections 7(2) and 39(2) of the Constitution.

Therefore, the Court upheld the appeal and set aside the decision of the Competition Appeal Court with no order as to costs.

The second judgment, penned by Theron J (with Khampepe J concurring), would have dismissed the appeal on the basis that it failed to engage the Court’s jurisdiction and that, in any event, the interests of justice militated against granting leave.

In respect of jurisdiction, the second judgment held that, at its core, the appeal turned on a factual dispute as to the relevant market and the likely effects of the merger. The second judgment emphasised that in terms of the Court’s jurisprudence, even where factual disputes implicate constitutional rights, they do not engage the Court’s jurisdiction.

The second judgment held further that the various legal questions which the Commission alleged were in issue were, in fact, attributable to remarks the Competition Appeal Court made obiter dictum (in passing) and were therefore insufficient to engage the Court’s jurisdiction. In particular, contrary to the Commission’s allegations, the Competition Appeal Court had made no binding decision that price increases are irrelevant to an assessment of whether a merger is likely to substantially lessen or prevent competition. This was because the Competition Appeal Court had held that the merger was likely to cause prices at the target hospitals to decrease. The second judgment also found that the Competition Appeal Court did not decide that merging parties do not bear an onus within the context of the public interest inquiry where no substantial prevention or lessening of competition has been shown. Instead, the Competition Appeal Court expressly found that the merging parties had adduced sufficient evidence to demonstrate that there was no public interest concern which justified the prohibition of the merger.

The second judgment held that the Court’s jurisdiction was not engaged by the question whether the Competition Appeal Court had erroneously interfered with the factual and remedial findings of the Tribunal. On the basis of the Court’s decision in General Council of the Bar v Jiba, the second judgment held that such a question is factual, and therefore does not engage the Court’s jurisdiction. It reasoned that even if the question is not purely factual, it would in any event concern the application of a settled legal test and, for this reason too, would fail to engage the Court’s jurisdiction.

Finally, the second judgment held that even if the Court’s jurisdiction was engaged, the interests of justice militated against granting leave to appeal. This was because the Competition Appeal Court is a specialist court, statutorily empowered to make factual determinations in merger proceedings. The second judgment therefore held that in this appeal, which fundamentally concerns the factual determinations of the Competition Appeal Court, the interests of justice demanded that the Court should defer to the findings of the Appeal Court, and refuse leave to appeal.


The Full judgment  here View Online Recording Judgment hand down(Via court youtube Channel) 

Case  CCT82/20 & CCT91/20
[2021] ZACC 34

Hearing Date: 10 September 2020

Judgement Date: 04 October 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Monday, 4 October 2021 at 10h00, the Constitutional Court handed down judgment in three applications for direct leave to appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria. The High Court reviewed and set aside the decision taken by the Gauteng Executive Council (Gauteng EC) on 4 March 2020 to dissolve the City of Tshwane Metropolitan Municipal Council (Municipal Council) in terms of section 139(1)(c) of the Constitution. The High Court also ordered council members of the African National Congress (ANC) and Economic Freedom Fighters (EFF) to attend and remain in attendance of the Municipal Council meetings.

The Municipal Council had been unable to convene and retain the necessary quorum since 27 September 2018 due to walkouts by ANC and EFF councillors. On 6 December 2019, the Gauteng EC resolved to invoke section 139(1) read with section 154 of the Constitution. It conveyed this decision to the acting Speaker of the Municipal Council through the Member of the Executive Council for Co-operative Governance and Traditional Affairs (MEC). The Gauteng EC stated that it took this decision upon consideration of a detailed report on the state of affairs in the Municipal Council, with reference to its finance management, service delivery, issues of maladministration and corruption and institutional capacity.

On 18 December 2019, the Speaker of the Municipal Council responded to the MEC’s letter pointing out, amongst others, that the letter of 6 December 2019 failed to identify the executive obligations that the Municipal Council had allegedly failed to fulfil, which was a necessary requirement for the imposition of a section 139(1) intervention. She also pointed out that no engagement took place with the Municipal Council prior to the decision being taken.

On 14 January 2020, the MEC responded to the Speaker’s letter disputing her competence to provide such a response and annexed a document containing directives, in terms of section 139(1)(a) of the Constitution, that contained plans developed by the Department of Co-operative Governance and Traditional Affairs (COGTA). The directives set out the Municipal Council’s failures to provide services for communities, and adequately address water and electricity losses. It also identified the Municipal Council’s inadequate revenue collection, debtor management, and weaknesses in governance and accountability as being problematic.

On 7 February 2020, the Speaker responded to the directives with a document spanning more than several pages. In this document, she detailed action plans and programmes undertaken by the Municipal Council to address the directives issued by the Gauteng EC through the office of the MEC.

On 4 March 2020, the MEC wrote to the Speaker enquiring whether the section 139(1)(a) directives, dated 14 January 2020, had been served before the Municipal Council. He provided her with three days within which to respond. On the same day the Gauteng EC resolved to dissolve the Council (dissolution decision). This was attributed to the fact that the Municipal Council had reached a deadlock with councillors walking out of meetings leaving it inquorate, and rendering it paralysed.

The effect of the dissolution decision was that the Municipal Council was immediately dissolved. An administrator was appointed to take over its functions, and new elections were required to be held in the Municipality, within 90 days, in terms of the Constitution. On 10 March 2020, the DA and the Municipal Council, for the first time, were presented with the Dissolution Notice, dated 6 March 2020, setting out nine key observations for the dissolution of the Municipal Council.

On 13 March 2020, the DA launched an urgent application seeking to review and set aside the dissolution decision, as well as to compel the attendance of the ANC and EFF councillors. The Premier of Gauteng (the Premier) and the ANC opposed the application, while the EFF – against whose councillors, along with the ANC’s, a mandamus was sought – did not. The High Court was required to consider whether the dissolution decision was substantively invalid and whether the jurisdictional facts necessary to invoke section 139(1)(c) were established. The Court conducted a detailed examination to determine whether the nine key observations provided in the Dissolution Notice disclosed executive obligations that were unfulfilled; and whether they constituted exceptional circumstances warranting the dissolution of the Municipal Council. The High Court rejected all of them, save for one which, it found, should have been the subject of targeted intervention by the provincial government, and was insufficient to justify dissolution. The Court held that the most direct cause of the Municipal Council’s inability to conduct its business was the continued disruptions of meetings by ANC and EFF councillors staging walkouts. The Court held that provincial government had an obligation to apply less intrusive means in resolving the Municipal Council’s dysfunctionality, and that a decision in terms of section 139(1)(c) would only be appropriate if it was likely to ensure the relevant obligation would be fulfilled. The Court held further that there was no guarantee that the appointment of an administrator, and fresh municipal elections would resolve the problem at hand. The application was therefore successful and the dissolution decision was set aside.

Aggrieved by the outcome of the High Court, the Premier, the EFF and the ANC each brought separate applications before the Constitutional Court directly appealing the order and judgment of the High Court. The DA opposed the Premier and the EFF’s applications. The Premier and the EFF argued that the High Court failed to apply the rationality test correctly when coming to its decision that the provincial government did not substantively comply with the jurisdictional requirements of section 139(1)(c) in dissolving the Municipal Council. They submitted that a rationality review asked if there was a rational connection between the government’s objectives and the means chosen to achieve them, and that such a decision should not be set aside because it was ineffective. This was because, their argument continued, courts could not interfere with the means selected because they did not like them, or because there were other more appropriate means that could have been selected. They further submitted that the true reason for the dysfunctionality of the Municipal Council was the break down in the coalition agreement between the DA and the EFF. Once a municipality was dysfunctional, deadlocked, and paralysed it amounted to exceptional circumstances, with dissolution being a rational way to break the deadlock. Lastly, they argued that the mandamus granted by the High Court amounted to judicial overreach and that councillors could, in any event, not be compelled to vote. Such an order, they argued, would place the councillors who failed to attend without a lawful cause in contempt of court, with imprisonment as an alternative, when there already was a sanction available in the Local Government: Municipal Systems Act 32 of 2000 (Systems Act).

The DA argued that the wording of section 139(1), and 139(1)(c), of the Constitution required more than just a rationality test, and that a test of lawfulness, because of the use of words such as “appropriate step”, is more apt. Furthermore, every exercise of public power should be rational, and that appropriateness should be given a meaning which contained something beyond rationality. Even the Premier conceded in argument that appropriateness required that the steps, referred to in section 139(1) of the Constitution, be “proper, fitting, suitable and effective” for purposes of fulfilling the executive obligations of a municipal council. The DA also urged the Court to accept the inclusion of less restrictive means. It argued that the threshold for the lawful dissolution of a municipal council was high because it was a drastic step that could only be undertaken in exceptional circumstances. Finally, the DA argued that the Court was empowered to make an order that is just and equitable. To that end, it argued that the Court should order the ANC and EFF councillors to attend council meetings as, absent an order compelling same, the cause of the problem in Municipal Council would not be resolved. It argued that such an order would ensure the day to day running of the Municipal Council, even if the ANC and EFF councillors refused to vote. If the mandamus was not confirmed, the DA invited the Court to fashion an appropriate remedy, as in Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), to secure the protection and enforcement of the rights of the Municipal Council to hold meetings

The ANC did not make representations before the Court and therefore, effectively, elected to abide the Court’s decision.

In the majority judgment penned by Mathopo AJ (with Khampepe J, Majiedt J, Theron J and Victor AJ concurring), the Constitutional Court had to determine whether the dissolution decision was lawful and whether the mandamus granted by the High Court was an appropriate remedy. The Court identified four jurisdictional facts, in terms of section 139(1)(c) of the Constitution, that had to be established for the dissolution decision to be lawful. The first was the establishment of a failure to fulfil an executive obligation. The second was the taking of an “appropriate step”. The third was the existence of exceptional circumstances, and the fourth was that the exceptional circumstances had to warrant the dissolution. The Court found that three of the jurisdictional facts had been established, but that the dissolution was not warranted in the circumstances. Thus the dissolution decision was found to be unlawful. As for remedy, the Constitutional Court set aside the High Court’s mandamus and substituted it with an order compelling the MEC to invoke his powers in terms of item 14(4) of Schedule 1 of the Systems Act, appointing a person or a committee to investigate the cause of the deadlock of the Municipal Council.

The second judgment penned by Jafta J (with Mhlantla J and Tshiqi J concurring) identified that the collapse of council meetings revealed a deep-rooted inability to address political issues within the Council, leading to its dysfunctionality. As from November 2019, the Council was unable to take any decision for months, including those necessary for the fulfilment of executive obligations, until the provincial executive of Gauteng intervened pursuant to section 139(1) of the Constitution and dissolved the Council in March 2020.

The second judgment held that the discretion conferred upon a provincial executive by section 139(1) was wide. The section required that “any appropriate” steps were to be taken. A dissolution of the Council would have been an appropriate step if it was likely to fulfil the executive obligation and exceptional circumstances warranted the dissolution. The second judgment therefore disagreed with the finding made by the High Court and the majority judgment that the dissolution was not appropriate because there were other steps which the Province could have taken to address the issue of non-fulfilment of executive obligations. The second judgment held that once the conditions for dissolution were met, there can be no sound basis to hold that the exercise of the power to dissolve the Council was unlawful or inappropriate.

The second judgment further addressed the High Court’s failure to determine the remaining grounds of review, namely that the dissolution was procedurally unfair and irrational, and that the Gauteng Province was actuated by an ulterior motive in taking the decision to dissolve the Council. On the basis of the rule that our courts decline to decide on appeal issues not determined by the court of first instance, the second judgment considered it fair to limit the reversal of the High Court’s order to the extent of its decision, and remit the remainder of the matter to the High Court.

In the result, the second judgment would have granted an order granting leave to appeal, upholding the appeal, setting aside the order of the High Court, and remitting the matter back to the High Court for determination of the other grounds of review.

In a dissenting judgment, Mogoeng CJ (with Madlanga J concurring) said that while he agrees that a failure to fulfil an executive obligation and the existence of exceptional circumstance are preconditions for a proper or appropriate dissolution in terms of section 139(1)(c), he disagrees that section 139(1)(a) and (b) are indispensable preconditions to dissolution. He held that there are cases where (a) and (b) must first be explored and section 139(1)(c) resorted to only if (a) and (b) fail to yield the desired result. The correct approach is in his view the adoption of an option that would realistically result in the executive obligation being fulfilled.

He agrees that the dissolution of the Municipal Council was extraordinary, but contends that it was the only appropriate and effective remedial step to take in view of the Municipality’s undisputed dysfunctionality. He held that time simply does not permit the luxury of overly protracted litigation that could otherwise have been effectively ended by this Court’s just and equitable order. In his view both the High Court order and that proposed by the main judgment constitute a constitutionally impermissible encroachment into the terrain exclusively reserved for the Executive.

He held that he would accordingly grant leave, uphold the appeal and set aside the order of the High Court with no order as to costs, but order the DA to pay the EFF’s costs, including costs occasioned by the employment of two counsel..


The Full judgment  here