Komani residents ask ConCourt to dissolve Enoch Mgijima municipal council over service delivery failure

In the wake of several government interventions at the Enoch Mgijima Local Municipality, Komani residents have now approached the Constitutional Court to rule on whether their municipal council should be dissolved.

Their case is based on the municipality’s failure to deliver services to residents, including electricity and waste collection. It is also accused of failing to deal with ghost employees, collect rates and implement a financial recovery plan, and it has an unpaid Eskom bill that is running into billions, according to papers before court.

If the court grants the application and hears the case, it is bound to make legal history. This is because, although several applications have come before the country’s high courts for orders in this regard, neither of the two highest courts – the Supreme Court of Appeal and the Constitutional Court – has had a chance to pronounce on the legal interpretation of the Constitution in this regard.

The first case in which residents were successful in obtaining an order that their municipal council should be dissolved because of an unconstitutional lack of service delivery was brought by the residents of Makhanda. The Eastern Cape government appealed against the decision, but the matter was settled at the Supreme Court of Appeal before the case could be heard.

Ken Clark, an independent municipal councillor and the owner of Crickley Dairy and Twizza, together with local civic groups Let’s Talk Komani and the Independents, have led the call for the Enoch Mgijima municipal council to be disbanded.

Although they lost their case in the High Court in Makhanda, Clark said he believed – “with respect” – that Judge Thandi Norman’s interpretation of the law had been “plainly wrong”.

The applicants have asked the Constitutional Court to overturn Norman’s ruling. Clark said the municipality consistently failed to provide services to its residents. It also owes Eskom millions of rands.

The Eastern Cape government first staged an intervention in the municipality in 2018, but in April 2022 it was agreed that a financial recovery plan had not been successfully implemented.

The national government then intervened, but in a memorandum penned by National Treasury it was reported that irregular and unlawful decisions continued to be taken by the council, progress reports were inaccurate and the municipality had failed to improve its performance.

The memorandum then recommended that the minister of finance note the extent of the defiance in the Enoch Mgijima Municipality, the reasons to support its dissolution and the violations of Treasury norms and standards.

According to Clark, the national government withdrew its support from the municipality in May 2023.

In papers before court it is stated that the municipality now owes Eskom R1.6-billion.

Despite this, Clark said that Norman had interpreted the law in a manner that fa­­voured the municipality and denied the application.

He has asked the Constitutional Court to provide guidance on two main issues: a finding by the court that there must be exceptional circumstances present to trigger an application to dissolve the municipal council; and Norman’s ruling that the ­doctrine of the separation of powers militated against her granting the order. She refused the residents leave to appeal against her decision.

In her ruling, she stated that exceptional circumstances should be present, since the effect of disbanding a municipal council was drastic in nature and this extra requirement should prevent unwarranted and reckless applications to do so. She further ruled that this requirement should be present no matter what the nature of the intervention is.

This, however, means there are now conflicting rulings from the high courts, as some say no exceptional circumstances are needed and also have different interpretations on the issue of the separation of powers.

Exceptional circumstances are required for an intervention by a provincial government in a municipality that is not being run well. This is an intervention that is allowed in terms of section 139(1) of the Constitution.

But Clark said the applicants had asked for an intervention in terms of section 139(5), which is based on a financial crisis affecting the delivery of services in the municipality, and exceptional circumstances are not required for this type of application.

Although court pa­­pers stated that the national government had withdrawn from the intervention at the municipality in May 2023 and no longer assumed responsibility for it, Minister of Cooperative Governance and Traditional Affairs Velenkosini Hlabisa said in June that a new intervention had begun and was going well.

“Since 28 April 2022, the municipality has been under national intervention in accordance with section 139(7) of the Constitution. This intervention mandated the implementation of a financial recovery plan, which the municipality is actively executing.

“The minister deployed a national Cabinet representative and a multisectoral intervention support team to Enoch Mgijima Local Municipality through the Results Management Office in the Department of Cooperative Governance and Traditional Affairs in October 2024.

“This team aims to build upon the efforts of previous representatives to support the municipality to function effectively across all critical areas, including governance, financial management, institutional performance and service delivery,” Hlabisa said.

According to papers before court, the national government had decided against dissolving the council of the municipality, even though it was considered.

The reasons given were that the government felt that engagement and full intervention would be a better way to go, as dissolving the municipal council would be seen as a way to “trample” on the democratic rights of residents to vote for their representatives.

It was also pointed out that the same municipal councillors complained about in the application could be voted in if a new election is held. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.