Residents of Makhanda have widely welcomed a high court ruling that the Makana Municipal Council must be dissolved over its unconstitutional failure to provide services. It was the first such order by a court in South Africa.
“This judgment sparks hope. We couldn’t live like this any more. We are very happy,” said Ayanda Kota, the founder of the Unemployed People’s Movement, the organisation that brought the application.
Apart from Makhanda, the Makana Municipality is also required to provide services to surrounding small towns such as Riebeeck East, Salem, Alicedale, Fort Brown, Seven Fountains and Sidbury.
“Our people are living in sewage and rubbish. They struggle to access water and when they have water it is contaminated. The Makana municipality ran out of money to buy chemicals to clean the water or to service the trucks for rubbish removal. Our roads are full of potholes. The levels of corruption were just astonishing,” Kota said. “They were not even engaging with us any more. That is why we decided to go to court,” he said.
Kota said he was sure the municipality and government would appeal against the ruling.
“But for now it is the first judgment of its kind in the country. It is a real victory.”
He said his organisation was grateful and happy with all the assistance received from the residents’ association.
“It was nice for us to act like one town,” he said. “We were all in it together.”
In a 116-page judgment, delivered on Tuesday, Judge Igna Stretch of the Makhanda High Court said the municipality had violated the Constitution by failing to provide services to the community of Makhanda.
She said the council must be dissolved immediately and an administrator must be appointed to run Makhanda and the surrounding towns.
Advocate Izak Smuts SC, instructed by attorney Brin Brody, arguing the case for the Unemployed People’s Movement (UPM), persuaded the court that the municipality was in breach of the Constitution by failing to provide services in a sustainable manner.
In papers before the court, a number of examples of how the council failed residents were cited. These included failing to address ongoing sewage spills, failure to provide proper waste removal services, failure to plan effectively for the drought and failing to secure the town’s water supply and quality, ongoing air pollution caused by the incineration of waste at the municipal landfill, failure to pay Eskom, leading to threats that the town’s power would be cut off.
Other issues highlighted in the court papers included the municipality’s inability to maintain road infrastructure, failure to regulate livestock in town and allowing fire-fighting equipment to fall into disrepair, and not restocking.
In June 2019 the municipality was ordered by the high court to begin paying R44-million in arrears to Eskom after the power utility threatened to switch off supply.
“The conduct of the municipality in failing to ensure the provision of services to its community in a sustainable manner, in failing to promote a safe and healthy environment for its community, in failing to structure and manage its administration, budget and planning process, in failing to give priority to the basic needs of its community, and in failing to promote the social and economic development of its community, is inconsistent with the Constitution… and is declared invalid to the extent of these inconsistencies,” Stretch wrote in her judgment.
She ordered Eastern Cape Premier Oscar Mabuyane and his executive to implement a recovery plan aimed at ensuring that these basic services are delivered and that the council can meet its financial commitments.
Mabuyane’s spokesperson Mvusi Sicwetsha said on Tuesday that the judgment had been noted.
“Given the nature of the matter at issue, the provincial government is studying the judgment to understand the specifics and the order made by the High Court.” He said after the government had completed [this process] a decision on the steps to be taken by the provincial government would be communicated.
Professor Philip Machanick, who chairs Makhanda’s residents’ association, said they believed the judgment sent a strong message that accountability was vitally important in a constitutional democracy.
“You can’t just be elected and do nothing,” he said.
He said they were appreciative of the judge’s comments that the case had to do with issues that impacted daily on people’s lives and not just with the niceties of the law.
“We are very grateful for the judgment,” he said, adding that they were waiting to see what government’s next steps would be.
“We provided a lot of input for the case and we were very happy to help. I think this case should also be a lesson that to have an ‘us vs them’ attitude will not bring us very far. The government should understand that these are legitimate concerns that need to be addressed.”
By Tuesday afternoon the municipality had not yet responded to a request for comment. MC
"I would rather have questions that can't be answered than answers that can't be questioned." ~ Richard Feynman