ARTICLE: THE MAKANA JUDGEMENT - A SMALL NEW DAWN FOR LOCAL AUTHORITIES?

2020 opt

The shocking state of local government finances and service delivery is well known. The 2019 Auditor-General's report on the state of local government finances showed that more than a third of the 257 municipalities and 21 municipal entities were dysfunctional. Only 8% received a clean audit (versus 14% in 2016/17). When traveling in the north of the country, especially in the countryside, the decline of smaller towns in terms of maintenance of roads, water and sewage is evident. Standerton (Lekwa) was in the news last year when the municipality, which is only a few kilometres from the Vaal River and the Grootdraai Dam, was unable to supply water to the Astral Foods plant.

In January this year, an important ruling by the Supreme Court in the Eastern Cape again shon the spotlight on the lack of service delivery by local authorities. The Unemployed Peoples Movement, supported by a coalition of civic organisations in Makana (formerly Grahamstown), approached the Court in terms of section 172 of the Constitution and requested that the Court find that the municipality had failed to fulfil its constitutional duties towards the town's residents (in terms of section 152 of the Constitution) and that the provincial government was obliged to (again) intervene - in terms of section 159 of the Constitution. The driving force of the application rests on the failure of Makana to stop sewage from flowing into the streets.

There are a number of technical aspects in the judgment. One is whether the proper article used by the Unemployed Peoples Movement is section 139(1), whereby the provincial government must dissolve the municipal council, or whether it should rather be section 139(5) where the provincial government can dissolve the municipal council. Ultimately, Judge Igna Stretch found that a section 139(5) intervention had already taken place in 2015, which failed because the municipal council either delayed or prevented it. Two administrators were also appointed, without any changes in service delivery to residents. The municipal council and provincial government could not show a single step taken by the municipality to improve the situation.

The Court therefore found that the failure of the Makana Municipality to provide (among other things) sustainable services to the community, to promote a safe and healthy environment, and to properly structure its administration, budget and planning processes, was in violation of section 152(1) and 153(a) of the Constitution and were therefore declared invalid. The Court further stated that there were sufficient legal grounds for compulsory intervention by the provincial government and ordered the government to dissolve the municipal council immediately and appoint an administrator until a new council is elected. A recovery plan for the municipality's ability to fulfil its service delivery and financial obligations must be implemented - taking into account the 2015 plan (which had never been implemented).

Both the municipal government and the provincial government have indicated that they will appeal against the decision of the Court, and therefore the dissolution of the municipal council and other actions have not yet taken place. The mayor of Makana, meanwhile, told the media that if the decision stands, all local authorities in the Eastern Cape will have to resign because "everyone is in the same position". This in itself is a tragic statement and a harsh judgment on not only local governments in the Eastern Cape, but also on provincial and national government.

What are the consequences for local authorities if the appeal is rejected and the verdict stands?

On a legal level, it will confirm that the courts have a duty to ensure that local authorities fulfil their constitutional responsibilities to citizens, and that if this does not happen and municipalities still fail in repeated efforts, the provincial government can be ordered to dissolve municipal councils and elect new councils. Judge Stretch found that it was not a violation of the powers of the Court or the principles of separation of powers between the Judiciary and the Executive if the Court found that an executive arm of government did not do its constitutionally-mandated work. This ruling may reverse and weaken substantially the legal position of dysfunctional municipalities.

At the political level, this can cause a revolution for local authorities. Instead of being trapped in the dysfunctional clutches of a particular party for five years, residents will be able to use the legal system to force a new election, and perhaps elect another party. It is interesting that the Makana community is working to transform an alliance of organisations into a party that could contest the possible new elections in Makana. If the Makana ruling stands, it could also have consequences for other municipalities in the 2022 local government elections. There are already indications that other communities in the Eastern Cape want to take the same path to the Supreme Court.

However, the Court ruling was also a blow to the provincial government, whose response to the Makana crisis was strongly criticised by the judge. She wrote that a request for community intervention was greeted by "silence". "No acknowledgment of receipt, no response, no action." One has to ask the question: how can a dysfunctional local authority be placed under administration by an equally dysfunctional provincial authority? And how can one expect better results under these circumstances?

For elected political leaders, it will send a clear message that they can't just receive a fat salary check and do nothing further. They can lose their jobs and benefits if they do not put service to the communities first. From the court documents, it is clear that at both the local and provincial levels, the ANC officials have had an astonishing apathy for decades on service delivery problems. The Court ruling should provide them with a clear guideline to fulfil properly their responsibilities as elected public representatives of the people.

At the administrative and management level, the ruling will also have consequences. The Makana saga once again confirmed that there are serious and structural crises at the local government level. Appointing an administrator but keeping a council in place that is dysfunctional and unwilling to change, clearly did not work in Makana (and probably other municipalities). And for the administrators only to write a new report on what remains to be done has had no effect either. Further, as the provincial government tried to do, throwing money or (more) training at the problems did not have the desired effect either. The question is whether a dysfunctional municipality can be made functional with dysfunctional managers and staff? Management and staff can only be replaced by a responsible municipal council. But this has happened in few places (if any) - probably because administrators are also only ANC cadres. Many commentators attribute this whole state of affairs to the political and financial benefits of a council seat and a management position. The responsible politicians will have to think further about this. Perhaps an appointed administrator should specifically be empowered to get rid of ineffective and stubborn people. Otherwise, a recovery plan will never be implemented.

If some of the municipalities can be turned around, it can have very positive socio-economic consequences. A municipal council should be a facilitator of local economic development. It should provide infrastructure, services and a stable environment for local businesses to invest, produce and create jobs. Without it, businesses move away. And when that happens, formerly strong rural towns simply become "kampongs" where people struggle to live and have to look elsewhere for jobs (the larger towns or cities).

It is interesting and perhaps important that, although the Minister of Finance and the President were involved as respondents, they did not oppose the application of the Unemployed Peoples Movement. This may only have been based on legal grounds, but perhaps these two office bearers realise that something drastic needs to be done to save local government and they believe that this constitutional path can be one part of the solution.

The Makana ruling is a good example of the Constitution in effect. It gives hope to provide a mechanism to dissolve malfunctioning municipalities and turn around and restore service delivery to an acceptable level. It may be a small glimmer of light, a new dawn of sorts, for people in the rural areas sitting in the darkness of despondency.

By Theuns Eloff: Chair, FW de Klerk Foundation Board of Advisers
17 March 2020 

*First published by Netwerk24 in Afrikaans

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