IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:
OVERBERG DISTRICT MUNICIPALITY

and
PREMIER OF THE WESTERN CAPE &

JUDGMENT 
Application for leave to appeal and for leave to execute judgment

BOZALEK,J

On 12 October, the Court found in favour of the applicants and made an order effectively reinstating the Council, the councillors and affording them a 10 week period within which to pass a budget for the municipality but leaving the temporary budget passed by the third respondent partially extant, so as to avoid a budgetary vacuum. A notice of appeal was filed the following day thereby suspending the effect of the Court's order. The applicants oppose the granting of leave to appeal and have in addition brought an application in terms of Rule 49(11) for the implementation of the Court's order pending the outcome of any appeal.

The written application for leave to appeal cites numerous errors of reasoning and omissions on the part of the Court in arriving at its conclusion. No point is served in attempting to address these criticisms since the Court gave a comprehensive and reasoned judgment. The simple and basic question is whether there are reasonable prospects of another court finding that the correct interpretation of section 139(4) of the Constitution is that once a municipality has failed to approve a budget by the statutory deadline, the provincial executive is obliged to dissolve the Council, appoint an administrator and approve a temporary budget or whether it can take other steps short of these in order to resolve the problem.

I turn to the application to implement the order of the Court pending the outcome of any appeal. The relevant background is that the existing, directly or indirectly elected 20 person council will continue to hold office until approximately May or June 2011 when national municipal elections will be held. To clarify, they will continue to hold office if the order to the application to implement the order is granted. If the application is not granted, the Overberg District Municipality will be administered until then by the administrator appointed by the respondents. He is accountable to the respondents alone. Democratic governance of the municipality will be suspended whilst all 20 councillors, including 11 of the applicants in the main application, will be divested of their positions, responsibilities and powers as well as the salaries and allowances which accrue to them by virtue of the positions which they hold. It does appear, however, that only four of the applicants, those directly elected to the Council, will entirely  lose their incomes,  the  balance  of the  applicant councillors, being members of local municipal councils, are designated by those municipal councils to represent them on the Overberg District Municipal Council. To those four councillors must be added another four, from the opposition so to speak, who are also directly elected and will lose their income. Although there was mention in the original application of the IEC holding fresh elections within 60 days of the dissolution of the Council, according to all parties this is no longer a prospect.

"The Court to which an application for leave to execute is made, has a wide general discretion to grant or refuse leave and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised ... This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgements ...      In exercising this discretion, the

1.	the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted;
2.	the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused;
3.	
4.	where there is potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience as the case may be."

The terms of the court order made on 12 October allows, and by implication requires, the Council to pass a budget for the remainder of the financial year within a stipulated period of 10 weeks.   There is no suggestion that the Council, will not now or cannot, take this step nor is it suggested that the Council will not henceforth properly administer the affairs of the Municipality.

In the event that the applicants might again fail to fulfil their responsibilities in terms of the Constitution or the applicable legislation, the provincial executive retains its powers of intervention in the affairs of the Municipality in terms of section 139 of the Constitution or other relevant legislation.

On the other hand, if leave to implement is not granted, there is substantial prejudice to the applicants. Apart from losing their elected or designated positions as councillors and the remuneration attendant thereon, the applicants will carry the stigma of representatives divested of their office for having failed to fulfil their responsibilities. If any appeal process is not completed by mid-2011, they will carry this stigma into any election which they may see fit to contest. There is moreover prejudice of another type which in my view is just as material, if not more material, namely the fact that democratic processes will be suspended in the Overberg District Municipality until mid 2011. This is prejudice which cannot be repaired if the appeal proves to be unsuccessful.

Taking   these   factors   into   account,   I   consider   that   the applicants have established that the balance of convenience favours them and that if leave to implement is not granted, they will, on balance, suffer undue hardship. Accordingly, in my view, in the particular circumstances of this matter it would be just and equitable to grant the application for leave to implement the Court's order of 12 October 2010. Notwithstanding the applicants' success in the Rule 49(11) application, I propose to make the costs therein costs in the overall matter.  For these reasons the following order is made:
1. The respondents are granted leave to appeal to the Supreme Court of Appeal against the decision of this Court dated 12 October 2010 on the grounds set out in their notice of application for leave to appeal dated 13 October 2010.
2. Pending the outcome of such appeal, or any further appeal, the order of this Court dated 12 October 2010 may be implemented.
3. The costs of the application for leave to appeal and the Rule 49(11) application shall stand over for determination in the appeal.