The Eastern Cape Provincial government has confirmed it will appeal the judgment ordering its Executive Council to dissolve the Makana Council and put the municipality under administration. The announcement was made via a media release this morning 30 January 2020, an hour before the Makana Council opened its first full council meeting of the year and councillors voted 15 to 9 to appeal the judgment. The voting was done during a confidential session. The DA (seven councillors) and the EFF (two councillors) have previously stated their support for the judgment and their opposition to the move to appeal it.
Judge Igna Stretch’s ruling handed down in the high court in Makhanda on 14 January 2020 declared Makana Municipality non-functional in terms of administrative functioning and service delivery and therefore invalid. The discussion and vote to appeal the ruling was taken in a confidential section of this morning’s Council meeting; however, in a press conference a week ago, Mayor Mzukisi Mpahlwa said the municipality would appeal because the judgment hadn’t acknowledged significant improvements to service delivery and administration over the past five years. In addition, Makana’s dissolution would set a precedent that could affect every municipality in South Africa.
The Judge’s two-page order – the conclusion of a 117-page judgment – said Makana had failed to provide services to the community in a sustainable manner, promote a safe and healthy environment, structure and manage its administration, budgeting and planning processes, prioritise the community’s needs and promote its social and economic development. Makana Municipality had breached sections 152(1) and 153(a) of the Constitution and was therefore declared invalid.
Judge Stretch ordered the Eastern Cape Executive to immediately implement a recovery plan to make sure the municipality provides basic services and meets its financial commitments. She ordered the Provincial Executive to immediately dissolve the Council, appoint an administrator until a new Council is elected and approve a temporary budget to keep Makana Municipality functional.
The Unemployed People’s Movement were the successful applicants in a victory celebrated by residents across the town.
In a statement issued this morning, Eastern Cape Premier Oscar Mabuyane said the Eastern Cape Provincial Governmenhad t sought legal advice on the appropriate course of action in responding to the judgment.
“The advice solicited advised the Executive Council on the appealability of the judgement, which broadly advised on the incorrect interpretation of legislative provisions, the doctrine of separation of powers and the perceived bias appearing from the judgment. There are sound grounds upon which an appeal maybe lodged and that another court may find differently,” Mabuyane said.
However, Mabuyane saqid, the Executive Council acknowledged there were “challenges” in Makana.
“The Executive Council is of the view that the work it is doing through an intervention in Makana must be taken into consideration by the court. One of the reasons for this is because the intervention has helped the municipality to pay its Eskom account on a regular basis. Our commitment is to support the municipality to be able to sustainably provide services to the people of Makana,” Mabuyane said.
He said the current support to Makana Municipality had been placed before the court, but had not been considered by the court.
“The provincial government has harnessed support from the National Cooperative Governance and Traditional Affairs (CoGTA), Municipal Infrastructure Support Agency (MISA), Department of Water and Sanitation, Amatola Water and Eastern Cape Development Cooperation (ECDC),” Mabuyane said, listing the following outcomes that he said had not been considered by the court:
a) Development of data optimisation systems which provides Makana with online access to cost-effective database;
b) The Department of Water and Sanitation’s allocation by April 2019 of R78 million for the upgrade of [James Kleynhans] water treatment works to store 20 megalitres and R35 million for refurbishment of the plant;
c) R22 million allocated for drought relief and identification of new boreholes;
d)The fact that as a result of the support, Bulk water is now extracted from the Fish River and delivered to the eastern part of Makana;
e) ECDC’s assistance to assist in the implementation of sewer infrastructure upgrades.
“These interventions were part of a broader programme of support by the Provincial Government to the municipality, which had a major impact on the stabilisation of the services rendered by the Municipality,” the Premier said..
Komani court action
Mabuyane confirmed that the provincial government had received papers for the application for a similar action by Let’s Talk Komani. The organisation is asking the court to dissolve the Enoch Mgijima local municipality.
“The Executive Council is considering the content of the application, while the provincial CoGTA department is engaging the Enoch Mgijima Municipality,” the Premier said. “All these processes will result in the decision of the Executive Council on the appropriate response with regards to this particular application. The decision will be taken at the next meeting of the Executive Council scheduled for the first week of February 2020.”