In an unprecedented case, following an application by the Unemployed Peoples’ Movement (UPM), the Makhanda high court on 14 January dissolved the Makana Local Municipality with immediate effect. Member of the Executive Council for Cooperative Governance and Traditional Affairs Xolile Nqatha must now appoint an administrator immediately to run the Makana council until a new council is voted in. The city will run off a temporary budget until then.
The order has wide-ranging implications for local governments across the country, who before now could be removed only if they were voted out in local government elections, or if the provincial government decided to dissolve a council. UPM chairperson Tshezi Soxujwa, 21, described the ruling as a victory for the concept of democracy. “The majority of the people here have been calling for the dissolution of the municipality. The people have won and the corrupt people have been removed from power. It is a very democratic decision,” he said.
The town of Makhanda has been in the news for several years over its terrible roads, missing municipal funds, dysfunctional sewerage plant, its constant spills of sewage into the streets and a water crisis that meant at one point that non-governmental humanitarian group Gift of the Givers had to drill boreholes to supply water.
The UPM applied to have the council dissolved almost a year ago, under Section 139 of the Constitution, alleging that the council had failed to provide services and had not even budgeted to meet the basic needs of its residents. Section 139 provides that when a municipality cannot or will not carry out its constitutional obligations to provide services, the provincial executive committee may impose a recovery plan, dissolve the council or take other steps to make sure that the council can deliver services. The difference in this case was that a social movement approached the courts to compel the complete dissolution of the council.
The UPM submitted detailed evidence showing that it had approached the provincial government and Makana municipality for five years, calling for the provincial government to intervene in the running of the municipality. The response from the municipality, member of the executive council and provincial government was that Section 139 gave the provincial government (not the courts) sole discretion in deciding whether to dissolve a council or not.
Courts as the ultimate referees
In a 116-page ruling, Judge Igna Stretch wrote: “The Constitution has empowered courts to be the ultimate referees on whether the Constitution or any other law has been breached. When the Constitution requires that the judiciary decide a particular controversy, it can never amount to overreaching.
“Section 34 of the Constitution entrenches the right of everyone to approach courts and to have their grievances resolved by an impartial court. Courts safeguard the public interest and help preserve and deepen the democratic project.”
Stretch added that it was “common cause that Makana is facing several crises, which have resulted in breaches of its obligations to provide basic services”.
“The allegations made against its council (including why it should be dissolved) have also not been disputed or defended. That really is the long and the short of it,” said the ruling.
Stretch said that instead of disproving the allegations by the UPM, the municipality had chosen to rely on the argument that the courts could not invoke the provisions of Section 139 of the Constitution as this would be “an impermissible intrusion by the judiciary on the constitutional obligations of provincial government in disregard of the principle of the separation of powers”.
Not one practical step
She agreed with the UPM that neither the municipality nor the member of the executive council nor the Eastern Cape Department of Cooperative Governance and Traditional Affairs had pointed out “a single practical step” they had taken to address the crisis in Makhanda. The municipality had already been placed under administration twice, with no positive change. Stretch said that at least one subsequent request by the UPM for intervention from the provincial government was “met by silence. No acknowledgement. No response. No action.”
Stretch referred to a 2015 recovery plan “designed and intended to be a mandatory intervention”, but that was “ignored” and never implemented. The municipality and provincial government should have explained to the court and the UPM why they had not yet finalised this “urgent” plan, which traversed virtually every complaint made by the UPM, according to Stretch.
She said the UPM had argued in court papers that the crisis was owing to persistent “maladministration and mismanagement, which has resulted in the collapse of almost every facet of its spheres of operation”.
The judgment appears to indicate strongly that if social movements or residents’ associations provide weighty and compelling evidence to the courts that shows municipalities have failed to deliver services in line with the Constitution, then the municipalities will have to respond to that evidence in court, instead of simply ignoring it.
A good ruling
UPM spokesperson Ayanda Kota said he was thrilled with the ruling. “The far-too-common story we can legitimately tell about our town is that of arresting mediocrity and kleptocracy in the post-apartheid period,” he said.
Kota described the general attitude as, “Let’s not do anything to fulfil the democratic aspirations of the people of South Africa. Let’s rather act like rats on a sinking ship and grab as much as we can, as quickly as we can, before we all drown.” The attitude could also have been described as: “We have won a protracted battle against iniquity and now we can rebuild things in order to bring about a just order for all, creatively, vigorously and lovingly,” he added.
The UPM’s attorney, Brin Brody of Wheeldon, Rushmere and Cole, said it was the first order of its type in South Africa.
“Judicially, this was a tough one and I am grateful we got through,” he said. “As someone who lives in this town, I really, really hope that this will be the beginning of a new dawn, because we can’t carry on like we have been.”
Brody said the judgment would potentially make it easier for other communities to have their councils dissolved. “Ayanda Kota and the UPM were wonderful to have as clients because what they did was in the best interests of this town and especially the vulnerable people of the town. As a lawyer, this is one of my highlights in practice,” Brody said.
It is not yet known if the member of the executive council or the municipality will appeal the order. The provincial government acknowledged that Makana municipality has been mismanaged, but wanted to stop short of dissolving the council and place the city under administration instead. “Which we were against, because we believed the problem lies with council,” added Brody.
Kota praised the legal team and the Grahamstown Residents’ Association for supporting the application and for painstakingly taking hundreds of photographs showing the council’s failure to provide municipal services.
“They would spend literally entire days preparing for this case. It was a hell of a case. It was amazing. When people have won, democracy has been served. People united will always end up winners,” Kota said.
Brody said concerned residents of Queenstown in the Eastern Cape had made a similar application to have the Enoch Mgijima Local Municipality dissolved, and that case would be heard in about six weeks’ time.
The UPM and Socialist Revolutionary Workers’ Party (SRWP) are now mulling over whether they should put forward candidates in the upcoming local government elections, which need to be held within three months.
Lungile Mxube of the SRWP said people had united across races to get rid of the corrupt Makana municipality. “Both black and white must now be united on one thing: to restore the glory of our city. The ruling is a rejection of the ANC internal rot,” he said.
He added that if the Makana municipality appeals the ruling, the UPM and SRWP will mobilise communities to protest. “As we sit here, the Makana municipality is no longer legitimate. They don’t have a legal standing to sit and meet to plan an appeal. We will not allow them to further abuse the taxpayers by taking the matter on appeal.”
Tim Bull of the Grahamstown Residents’ Association said he was “delighted with the outcome”. But he cautioned that Makhanda had previously been placed under administration in 2014, and there was “a lot of analysis of the problems but no implementation.
“This needs the public to come together … the community has to nail people down and make sure they deliver on promises,” Bull said.
According to a report by the provincial government to Parliament last year, Section 139 of the Constitution has been invoked 142 times by provincial executive committees since 1998. The report conceded that soft approaches, such as putting a town or city under administration for a period of time, were mainly not successful.
Why Makana had to be dissolved
“Provinces tend to deploy one person as an administrator without concomitant experts per the diagnosis of the challenges encountered in the municipality, such as financial or human resource experts where required; and this administrator, more often than not, relies on municipal personnel to execute his/her mandate. At times, these municipal personnel are sceptical and very reluctant, and most times, uncooperative to assist the administrator.
“There is resistance and obstructionist tendencies from municipal councils and municipal personnel to an extent that there is no cooperation, and at times, bordering on illegal activities such as destroying documentation” said the report.
It was for this reason that the UPM went directly to the courts to ask for the complete dissolution of the Makana municipality.
Makana mayor Mzukisi Mpahlwa said he was about to receive a briefing from the municipality’s lawyers and that, based on what was discussed, the municipality would “explore an appeal”.
He added that an appeal would not be a costly waste of public money, because courts should not remove democratically elected leaders. “We are of the view that the executive has been elected by the people and therefore the people need to make sure that they are given the opportunity to elect leaders,” he said. “We don’t see it as a waste of money. We see it as a principle issue.”