The South African National Civic Organisation (SANCO) wanted the appeal court to uphold a lower court’s order directing the municipalities to repair and replace water pipes and faulty water mains within 12 months and to charge each consumer R70 per month and R50 per month respectively pending the repairs or replacement. A court cannot grant such an order.
The order is not competent in the light of the principles of legality and the separation of powers between government and courts. There is a whole legal framework governing the supply of water and power and the functions of municipalities in that regard.
A municipality has executive authority which it exercises to supply water and power and to fix tariffs for doing so. A district municipality is the water service authority under the applicable statutes. A municipality (local government) is the third sphere of government and in that capacity exercises legislative and executive functions.
When a decision is taken by a municipality in regard to its powers the decision will not ordinarily be administrative in character and capable of challenge in the courts. Executive and legislative powers of a municipality are excluded from judicial scrutiny if there is no illegality in the exercise of the powers. A court could not make an order forcing the municipalities to provide certain water supplies or to charge a particular tariff.