Opinionista Jordan Griffiths 28 January 2020

Makana ruling the smoking gun aimed at dysfunctional councils nationwide

The order by the Eastern Cape High Court that the Makana municipality – which includes the city of Makhanda, formerly Grahamstown – be dissolved, sets a key precedent.

The recent court ruling by the Eastern Cape High Court in favour of the Unemployed Peoples’ Movement (UPM) mandating that the provincial government dissolve the municipal council of Makana has deep ramifications for local government across the country. The High Court delivered a stinging 117-page court judgment which systematically tracks out how the municipality has collapsed. A footnote on page 23 of the judgment provides some insight into the state of the municipality.

“In 2005 Makana received the national Vuna award for excellence in service delivery, and that it had financial reserves of more than R50-million and some 350 employees. By the end of 2014 Makana was bankrupt, owing over R150-million (over R57-million to Eskom alone) whilst the number of employees had risen to over 1,500. This has not been disputed.”

This has not been disputed.

However, Makana was not only suffering from a financial crisis; over the past decade basic service delivery on all fronts has collapsed. In April 2019 it was reported that the city was facing a two-month waste collection strike, water shortages, raw sewage running into the streets and threats by Eskom to begin implementing 14-hour electricity cut-offs due to non-payment. The municipality had already once been placed under administration in 2014 and had adopted a financial recovery plan, none of which had properly been implemented. Instead, over the next five years, the situation in the municipality gradually deteriorated even further.

This has also not been disputed.

That’s right, in the court action brought by the Eastern Cape provincial government against the UPM, zero effort was made by the provincial government to argue that Makana was a properly functioning municipality. There was not a shred of credible evidence that the provincial government could present that could dispel or bring into question the fact that Makana municipality had been run into the ground. It is nothing short of an embarrassment. 

Assuming court action was not brought against the government, I wonder how long it would have taken for any tangible intervention to be implemented? What would have happened if the UPM had not brought this court action? Was the provincial government going to just happily look on while Makana was run into the ground?

This is what is truly shameful about the Makana court case, the facts that the municipality had collapsed were already established and taken for granted. Neither the president, the premier, the provincial government, the finance minister, the South Africa Local Government Association (SALGA), the executive mayor, the municipal manager nor any of the other eight respondents named in the case made any effort to come to the defence of the administration of Makana.

Instead, the case ultimately revolved around the nature of the intervention that must be taken at the municipality and this is what makes it so significant. The government was not interested in arguing that the Makana municipality was functioning well and had in fact not collapsed. This battle they had already lost, they were only interested in arguing about what type of intervention the courts could mandate. 

This is where the court ruling becomes important because the UPM was arguing that the municipal council be dissolved while the government attempted to argue that this intervention was not required and that they should introduce a new financial recovery plan.

It’s important here to emphasise why the dissolution of a municipal council is significant. The dissolution of the municipal council is noteworthy because in this case, it demonstrates a clear intervention where citizens were able to force their elected representatives to account by having them removed from their positions. When a provincial government dissolves a municipal council, the executive mayor, speaker, any other political leadership and every single councillor who was elected in that municipality becomes unemployed, overnight. 

A by-election must then be organised to re-elect the entire council. It is a last resort for the provincial government because to dissolve a municipal council is to admit total failure. In the case of Makana, it means the ANC provincial government has to admit that the ANC-led Makana Council has failed, and failed dismally – a politically damaging decision on all fronts. It can not only trigger vicious political battles within the ANC regionally, but also then requires the organisation to contest an election in the municipality which they themselves dissolved – in many cases trying to get the same councillors which they recently fired, re-elected.

In the court case the UPM was able to argue, successfully, that the financial recovery plan that had been approved in 2015 had not at any point been implemented and that due to this failure the provincial government must dissolve the municipal council.

Again, the significance of this cannot be understated, various municipalities around the country have at times been placed under administration. Part of this process includes the introduction of a financial recovery plan – what the UPM has achieved in this court case is to highlight that the financial recovery plan is not just a document that can be adopted and then later put aside and ignored. It is not a tool which the provincial government can merely use to tick the box on its legislative duties and not do any due diligence in ensuring that the plan itself is actually implemented, tracked and reported on.

Thus citizens around the country who are living in municipalities that have been placed under administration should take note, as this ruling opens up the path for them to have their municipal councils dissolved should nothing change within their administrations. It is essentially a path that could be followed to get your entire municipal council fired.

Some groups have already moved on the Makana ruling. Let’s Talk Komani, an organisation made up of 30 different NGOs based in the Enoch Mgijima Local Municipality in the Eastern Cape have also filed court papers to have their municipal council dissolved.

Perhaps the Eastern Cape provincial government will make an attempt to argue that the Enoch Mgijima municipality is in fact being governed well, despite the stark failings that can be seen in the municipality. They definitely won’t be able to make the same argument that was presented during the Makana case.

In all likelihood, the provincial government will once again be told to dissolve the municipal council and hopefully once this starts happening in a few other municipalities around the country, it will start creating more responsive and service-delivery oriented local governments. DM

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