the court as referee for government actionsconstitutional law


In Unemployed Peoples Movement v Premier, Province of the Eastern Cape and Others (553/2019) [2020] ZAECGHC 1 (14 January 2020), the High Court addressed the disintegration of local government in the Makana Municipality. This is situated at Makhanda (formerly Grahamstown).

The Unemployed Peoples Movement brought an application for a declaration that the Municipality was in breach of the Constitution. The Municipality had failed to provide services and to promote a safe and healthy environment. It had also failed to manage its budgeting and planning processes and to promote the social and economic development of the community. Furthermore, the UPM applied for an order directing the Provincial Executive Council to intervene and to appoint a competent and experienced administrator.

The case raises the question of the role of the courts in a constitutional democracy. What is the extent to which courts can intrude upon the work of the executive branch of government, such as the PEC or the Municipality?


Here, the High Court observed that the Constitution has empowered courts to be the referees on whether any law has been breached. This includes the Constitution itself. The judiciary must oversee compliance with the law by all branches of government. It safeguards public interest and helps to preserve and deepen the democratic project.

Courts must decide whether the implementation of state policy gives effect to the state’s constitutional obligations. If this amounts to an intrusion upon the work of the executive branch of government, then this is mandated by the Constitution. The judiciary ensures that all branches of government act in accordance with the Constitution, which is the blueprint for SA’s transformative and democratic project. The lifeblood of this project is clean and people-centred governance, the rule of law, democratic oversight and accountability. It is also the dedicated, honest and prudent use of public resources to achieve social justice and equality.

In this matter, the High Court granted the application with costs. It ordered the PEC to implement a recovery plan, dissolve the municipal council, and appoint an administrator. Moreover, the High Court ordered the PEC to approve other measures for the continued functioning of the Municipality.

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