Ngwathe Municipality

The Ngwathe Local Municipality has lodged an urgent petition with the Supreme Court of Appeal seeking leave to challenge a Free State High Court judgment that ordered the dissolution of its council due to severe service delivery failures.

Detailed Petition Seeks to Overturn High Court Judgment

In the application filed on 27 August 2025, the municipality, along with its Municipal Manager Futhuli Patrick Mothamaha and the Municipal Council, argue that the High Court’s ruling on 20 June 2025 was flawed in both law and fact. The petition seeks to set aside the judgment and the subsequent dismissal of their leave to appeal on 19 August 2025, as well as costs in the appeal and any further relief deemed necessary.
Mothamaha’s founding affidavit emphasises his authority under section 54A of the Local Government: Municipal Systems Act and the Municipal Finance Management Act to bring the application. He states the facts are within his personal knowledge and belief, true and correct, and that legal submissions are based on advice from the applicants’ representatives. “I am the Municipal Manager of Ngwathe Local Municipality. I was appointed in terms of section 54A of Local Government Municipal Systems Act (‘MSA’) and I assume all the powers provided to a Municipal Manager in terms of MSA read with the Municipal Finance Management Act (‘MFMA’) and other laws pertaining to the administration of local government affairs. I am duly authorised to depose to this affidavit and to bring this application for leave to appeal to the Supreme Court of Appeal (SCA) against the whole judgment and order delivered by Daffue J in the Free State Provincial Division, Bloemfontein, on 20 June 2025. A copy of the judgment appealed against is annexed hereto marked ‘A’. A copy of the order is annexed marked ‘B’. The Municipal Council has also resolved by a resolution to appeal against the whole judgment and order of Daffue J sitting in Free State Provincial Division,” the affidavit reads.
The applicants contend the dissolution was unlawful and should never have occurred, as it interferes with their constitutional mandate to govern. They argue the appeal enjoys reasonable prospects of success, citing contradictory orders from the High Court that are mutually exclusive and not capable of co-existence. “The High Court erred in law and fact when it granted the declaratory order against the applicants (the municipality), mandating mandatory orders,” the document states. It highlights the novelty of the issues, including whether a non-governmental organisation like the first respondent can seek such relief.
The petition lists 13 respondents, including AfriForum NPC, Fezile Dabi District Municipality, the Free State Premier, Executive Council, various MECs (for Cooperative Governance and Traditional Affairs, Finance, Economic Small Business Development Tourism and Environmental Affairs), the National Council of Provinces, Ministers of Cooperative Governance and Traditional Affairs, Finance, Water and Sanitation, Forestry Fisheries and the Environment, and the President of South Africa.
Opponents have one month to file answering affidavits. The application notes that only AfriForum participated in the initial leave to appeal, and provincial and national government respondents, despite opposing the main application, are not joining this petition but will be served through the State Attorney’s office.
This is an application in terms of section 17(2)(b) of Superior Courts Act 10 of 2013. The appeal should lie with the Supreme Court of Appeal due to the complexity of the issue and the novelty of the issues that are raised by the judgment of the High Court.
Leave to appeal is sought on the basis contemplated in section 17(1)(a)(i)(ii) of Superior Courts Act in that the appeal enjoys reasonable prospect of success and there is some other compelling reason why the appeal should be heard. The High Court has, as I demonstrate below made contradictory orders which are mutually exclusive and not capable of co-existence, thus making even the enforcement if it were to be carried untenable. These are certainly issues which require the attention of the SCA.

The factual and legal grounds or basis upon which the leave to appeal is sought are essentially as follows: “1. The High Court erred in law and fact when it granted the declaratory order against the applicants (the municipality), mandatory orders and order dismissing leave to appeal.”
The other respondents are organs of State in the sense that the second respondent being Fezile Dabi District Municipality was cited for the interest it may have in the matter, and the other respondents from the third respondent to the seventh respondents are collectively referred to herein as the provincial respondents and from the eighth respondent, which is the National Council of Provinces, the ninth respondent to the thirteenth respondent are national government respondents. Although these respondents participated in the main application and they opposed the relief sought by AfriForum therein, they have since not participated in the further conduct of this matter by way of an application for leave to appeal which was brought only by the Municipal applicants and opposed only by AfriForum.
The provincial and national government respondents are therefore not participating in this application as evidenced by their non-participation in the initial application for leave to appeal. Despite their non-participation, this application will nevertheless be served on them through the State Attorney’s office, which represented them in the main application.
This Court, or the President of this Court, or any of the judges designated by the President of this Court, to grant leave to appeal against the whole judgment and orders made by the High Court on 20 June 2025. The judgment and order of the High Court dismissing leave to appeal should also be set aside by this Court. A copy of the judgment appealed against is annexed hereto marked “C”. This application is brought within one month from the date of the order dismissing leave to appeal as required by section 17(2)(b) of Superior Courts Act.
The appeal should lie with the Supreme Court of Appeal due to the importance of the matter, the complexity of the issue and the novelty of the issues that are raised by the judgment of the High Court.
Leave to appeal is sought on the basis contemplated in section 17(1)(a)(i)(ii) of Superior Courts Act in that the appeal enjoys reasonable prospect of success and there is some other compelling reason why the appeal should be heard. The High Court has, as I demonstrate below made contradictory orders which are mutually exclusive and not capable of co-existence, thus making even the enforcement if it were to be carried untenable. These are certainly issues which require the attention of the SCA.
The first respondent is defending the gains that it obtained from a favourable order granted in its favour by the High Court. AfriForum is a non-governmental organisation which describes its goals in its constitution.

Long-Standing Service Delivery Failures Prompted Original Ruling

The High Court’s June decision stemmed from years of complaints about Ngwathe’s collapse in providing basic services. Residents in areas like Parys, Vredefort, and Koppies have endured chronic water shortages, sewage spills into streets and rivers, potholed roads, and unreliable electricity. The municipality’s debt exceeds R2 billion to Eskom and over R1 billion to Rand Water, leading to frequent cut-offs and legal battles with suppliers.
Audits have revealed irregular expenditure topping R1 billion, with poor financial controls and allegations of corruption. Communities report health risks from contaminated water, including cholera scares, and economic losses from businesses closing due to unreliable services. The court found the council breached its constitutional duties under sections 152 and 153, which mandate providing sustainable services and promoting development.
This led to the order for dissolution and provincial intervention under section 139(5) of the Constitution, which allows takeovers when municipalities fail financially or in service provision. The ruling aimed to restore functionality, potentially through fresh elections or administrative oversight.

Appeal History and Community Impact

Ngwathe appealed the dissolution in July, arguing the process was flawed and intervention unnecessary. On 19 August, Judge Johannes Daffue dismissed the bid, stating no reasonable prospects of success and criticising the council’s “passive” response to crises. He noted the municipality’s history of interventions since 2019, yet problems worsened, with residents suffering “inhumane” conditions.
The SCA petition claims the High Court erred by acting outside its powers and that the issues warrant higher review due to their complexity and implications for local governance. If granted, it could delay intervention, prolonging uncertainty for residents.
In Tumahole township, protests erupted on 31 August with tyre-burning, defying a separate interdict against shutdowns. Communities demand Mayor Victoria de Beer-Mthombeni’s removal, citing mismanagement. Political groups have slammed the interdict as intimidation, urging unity against failing leadership.

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