The Unemployed People’s Movement and opposition parties have responded scathingly this week to moves to appeal this month’s high court judgment declaring Makana Municipality invalid. Predictions proved true when a statement issued early Thursday morning confirmed that the provincial government will appeal the order for its Executive Council to dissolve the Makana Council and put the municipality under administration. Barely an hour later, in Makana’s first full council sitting of the year, councillors voted 15 to 9 to appeal the judgment.
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 the Council meeting on 30 January; however, in a press conference a week earlier, 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 voting was done during a confidential session. The DA has seven councillors and in a statement yesterday provincial leader Nqaba Bhanga said the party was shocked by the Council decision to seek leave to appeal the judgment and confirmed all seven DA councillors had voted against appealing the judgment.
“They vociferously spoke out against yet another frivolous waste of public money,” Bhanga said. “Council has now written a blank cheque with rate payers’ money and this is a slap in the face of the long-suffering people of Makana.
“The DA has on numerous occasions called for the council to be dissolved so that fresh elections can be held and the people can vote in a government that is actually capable of bringing change to Makana… It is clear that the ANC is trying to rob residents of an opportunity to vote for change in fresh elections and put the Makana Local Municipality back on track by electing a DA led government.”
The EFF has two. EFF councillor Siyamthanda Dyantyi confirmed that the party was in favour of Judge Stretch’s ruling.
“The EFF welcomes the judgment… the ANC has failed numerous times in terms of implementing its IDP and ensuring that service delivery goes to the communities,” Dyantyi told Grocott’s Mail yesterday. “We believe that its time EFF took over the municipality.”
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 Executive of the Eastern Cape government 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 their press conference on Monday, they were scathing about moves to appeal the judgment, given the substandard services Makana residents were subjected to.
“If air ran through pipes, Makhanda residents would have suffocated long ago,” UPM chairperson Sikhumbuzo Soxujwa said, describing the decision to contest the judgment as “oozing with political arrogance”.
“The fact that the judgment is being contested by the ruling political elites of our town shows clearly that there is no real desire to change [on]their part,” Soxujwa said. He went on to urge the ANC to instead join the UPM in its efforts to better the lives of ordinary people and unite them.
United Front Provincial Executive member Lungile Mxube said the UPM’s lawyers had been briefed to oppose the appeal.
“The only way they can appeal is through the ballot,” Mxube said. “They have no mandate now. We are not going to allow them to run this municipality like a spaza shop.”
Director of the Allan Gray Centre for Ethical Leadership Pedro Tabensky said the move to appeal was “a shame”.
“It could have been a chance to turn things around,” he said.
In an emailed statement, the Grahamstown Residents Association expressed disappointment at the move to appeal.
“As Justice Stretch points out the respondents do not dispute the facts,” Chairperson Philip Machanick said.
“The only arguments we have heard from government is that they can’t allow the judgment to stand because every municipality could face the same legal action and that improvements in the preceding five years had not been taken into account. The latter point arose because the government side chose to base their case on technicalities rather than to argue the facts.
“There have been some improvements. We have competent people in a few senior positions including the Chief Financial Officer and Water and Sanitation Manager. During Ted Pillay’s time, managers who were accused of serious misconduct and corruption left. Beaufort Street was resurfaced and funding to resurface major roads was subsequently announced. The current mayor is also a vast improvement on his two predecessors.
“Nonetheless there are major problems. The landfill site is still not being managed and a case for contempt is working its way through the High Court. When Eskom threatened to cut our supply by up to14 hours per day, business, GBF and GRA took them and Makana to court. CFO Gerard Goliath came up with a settlement agreement that was more sustainable than previous agreements and he has since stuck to it. However: why did civil society have to go to court before he was able to do this? The best explanation is that he was being blocked from doing his job…
“…In short, there is evidence that internal resistance is undermining efforts to turn the municipality around. That calls for removal of the council as a factor in decision making until a new council can be elected and appointment of an outsider as administrator who is not tainted by any local factional politics.”
With the decision to appeal confirmed, Thursday Council meeting was indeed business as usual, with an agenda that included the municipality’s Audit and Risk Committee report and the mid-year budget and performance assessment report.
The introductory speeches varied greatly in tone, with Speaker Yandiswa Vara describing how difficult the life of a councillor is.
“Being a councillor is like joining the ANC before 1994,” Vara said. “It is putting your life at risk. Some leave their homes because of the pressure on them.
“You are expected to have solutions to almost any problem. You can’t even have a braai at home and you are told you are eating their money,” she told her Council Chamber audience. “You’re not even allowed to buy yourself a car and you are told you are corrupt.”
The Mayor, on the other hand, said he’d had a sleepless night.
“Exactly a year ago, I stood here in front of you as part of a collective leadership meant to lead this institution,” Mpahlwa said. “I remember very well that I said if we had been performing at 100% we now need to perform at 200%.”
He said the verdict was out on how the Judge saw their performance.
“Last night I did not sleep because I was reflecting on whether I personally have done enough,” Mpahlwa said. “Are there things we could have done differently? Individually and collectively we should be asking this. The verdict is an opportunity for us to look deeper at the work we are doing.”
In a statement issued Thursday morning, Eastern Cape Premier Oscar Mabuyane said the provincial government had sought legal advice on the appropriate response 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,” Mabuyane said. “There are sound grounds upon which an appeal maybe lodged and that another court may find differently.”
However, Mabuyane said, 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 various outcomes that he said had not been considered by the court.
- a) Development of data optimisation systems which provides Makana with online access to a 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 was 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 was asking the court to dissolve the Enoch Mgijima local municipality, he confirmed.
“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.”
* Updated 31/1/2020 to include the DA’s statement.