The people now have the power to fight failed municipalities

The ruling by the Eastern Cape High Court that the Makana local municipality violated its constitutional mandate to deliver services could see incompetent councils such as Mangaung and Buffalo City, and a host of other poorly functioning municipalities, facing similar sanction.

The ruling has opened a new avenue for residents to use the courts to force all incompetent municipalities to deliver on their constitutional obligations to them, or be disbanded.

The judgment gave the people power to force service delivery by municipalities, unlike in the past, when it depended on the will of the province to invoke sections 139 and 156 of the constitution to assist a municipality to function, or be dissolved and replaced by an interim administrator.

The court on Tuesday ordered the Eastern Cape government to dissolve the Makana local municipality council, which encompasses Makhanda (formerly Grahamstown) and appoint an administrator to run it until a new council was elected, after it found the municipality failed to provide basic services. The court said the municipality also failed to implement the financial recovery plan approved by the Eastern Cape MEC of finance in 2015. The municipality must hold elections within 90 days.

Constitutional expert Phephelani Dube said considering the recent auditor-general’s report indicating that the municipalities were the “weakest link” when it came to managing their finances and accounting for their obligations, the country could see a flurry of court applications challenging their failure to deliver.

“This is only the beginning in terms of the courts playing a more decisive role in holding municipalities accountable for their failure to stick to their constitutional mandates to provide the necessary services to people,” Dube said.

Jay Kruuse, Rhodes University-based Public Service Accountability Monitor’s director, said the ruling highlighted the need to strengthen civil society to fight against ineptitude in governance across the public service. Makana was nonresponsive to an engagement from the Unemployment People Movement (UPM), which brought the court action against Makana, since 2013/14 about the need to address service delivery and corruption in the municipality, he said.

“The UPM got prejudiced and had their rights violated by Makana. This judgment is to be welcomed.

“We need to lay the foundation to challenge these failure by municipalities,” Kruuse said.

In its court application, UPM stated: “The inability of the municipality to provide basic services, and to meet its financial obligations, has been manifest for a number of years, and the municipality has been in persistent breach of its obligations to provide basic services.”

UPM spokesperson Ayanda Kota said the court challenge was meant to help the poor and all affected by Makana’s failure to deliver services.

“We represent the poorest of the poor and this was the only logical option we had to bring about change in the face of poor service delivery and rampant municipal corruption.”

The judgment opened the way for ratepayers, and even opposition parties, to initiate similar court actions. The Congress of the People (Cope) yesterday indicated its intention to approach the court to disband the Tshwane metro, saying it had become “totally dysfunctional” because it was paralysed by the ANC, DA and EFF.

“The behaviour of these public representatives is a total disgrace, nothing short of hooliganism,” said Cope national spokesperson Dennis Bloem.

General secretary of the SA Municipal Workers’ Union Koena Ramotlou said the union had long classified Makana as a nonexistent government due to the collapse of service delivery.

The Inyanda National Movement, to which UPM is affiliated, applauded the UPM’s resilience to pursue court action.

The Organisation Undoing Tax Abuse’s manager for local government, Michael Holenstein, said the ruling was a lesson to corrupt and badly managed municipalities around the country, “particularly those which have been under interventions but showed no improvement”.

“This ruling encourages oversight over local government, which is urgently needed,” Holenstein said.

Holenstein urged Bhisho to implement the court-initiated intervention immediately.

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