‘When the Constitution requires that the judiciary decide a particular controversy, it can never amount to overreaching. If it is trespass at all, it is one that the Constitution itself allows,” reads Judge Igna Stretch’s recent Makhanda high court ruling.
The landmark judgment ordered the dissolution of the Makana local municipal council which, before now, could only be removed if voted out in local government elections, or at the discretion of the provincial government.
Stretch also ordered that the municipality in the Eastern Cape be put under administration for “failing to promote a safe and healthy environment for its community”, but surmised that this intervention would not be effective without the removal of the “incompetent” council.
The ruling effectively empowers South Africans to use the courts to hold the country’s ailing local governments to account.
The matter was brought to the court by the Unemployed People’s Movement (UPM), an activist organisation based in Makhanda, which accused the Makana municipality of failing to adhere to the principles of good governance.
The crisis Makhanda is currently facing — which includes habitual financial transgressions, severely constrained water supply and deteriorating infrastructure — is a direct result of this failure, the UPM claimed.
In her 116-page judgment, Stretch notes that it is “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”.
Section 139 of the Constitution provides that, when a municipality does not fulfil its obligations, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation. This includes putting municipalities under administration.
In September 2019, deputy minister of co-operative governance and traditional affairs Parks Tau revealed in Parliament that there were 40 municipalities under administration.
More recently, the ANC-led Gauteng government threatened to place the City of Tshwane under administration.
In her judgment, Stretch indicates that the court “has been told, in no uncertain terms, that there is nothing that it can do now to assist these desperate applicants except to sit back and perhaps require (as was done previously to no avail) the municipality and provincial government to make reports to this court as to the progress”.
While the Eastern Cape provincial government conceded that the municipality could be put under administration as per section 139(5) of the Constitution, it maintained that the municipal council is not necessarily dissolved as a consequence of the intervention.
The municipality argued that the court should not intervene in this matter, on the basis of the principle of the separation of powers.
But Stretch pointed out that the municipality had been put under administration twice before. In 2015 this resulted in a recovery plan that has seemingly been abandoned by the current council.
“On a proper and complete reading of the 2015 financial plan it is as clear as daylight that the 2015 intervention was intended to be a peremptory response to a section 139(5) crisis in Makana’s financial affairs which caused it to be in serious and persistent breach of its obligations to provide basic services or to meet its financial commitments,” Stretch writes.
“This plan was ignored, not only then, but also conveniently in the proceedings before me.”
Stretch ultimately sided with the UPM’s stance that the 2015 intervention, in the absence of the dissolution of council, “went no further than the paper it was written on”.
It is yet to be confirmed as to whether the Eastern Cape government will appeal the decision.