How to fix broken down local government
IN DECEMBER, the High Court in Mahikeng, the capital of North West, made a controversial order after finding the Kgetlengrivier Local Municipality had failed to deliver water and sanitation or to prevent environmental pollution in Koster and Swartruggens.
The court ordered that, unless the municipality acted quickly, a local residents’ association could take control of the water and sewerage systems.
The state would have to pay the residents for doing the municipality’s job. Soon after, residents restored both systems to working order. The municipality strongly objected to the take-over. But, in January, the court endorsed residents’ control of services.
The remedies in the judgment were radical and unusual. K get len gr ivier’ s residents demonstrated committed citizenry – a constructive kind of anarchy.
But, by endorsing their actions, the court essentially ordered the outsourcing of municipal services to un-elected residents. The court made no reference to the legal requirements for outsourcing municipal functions in the Municipal Systems Act. What does this say about the state of the country’s constitutional democracy?
The 1996 Constitution awards municipalities responsibility to run local affairs– and provincial and national governments to support municipalities. When a municipality is unable to manage its own affairs or to meet its financial obligations, the Constitution requires provincial government intervenes – placing the municipality under administration; a recovery plan; taking over services or even to disband the council.
In 2020, the Makhanda High Court also ordered the Makana Local Municipality in the Eastern Cape be dissolved after provincial intervention could not stop the collapse of services.
In another case, when Emalahleni and Thaba Chweu municipalities in Mpumalanga failed to pay their electricity bills due to financial mismanagement, local businesses obtained an interdict to stop Eskom from cutting off the electricity. The court criticised the national and provincial governments for not ensuring municipalities could meet their financial obligations.
Moreover, the Human Rights Commission recently released a report on the pollution of the Vaal River by sewage spills from Emfuleni Local Municipality south of Joburg, under the administration of the provincial government since 2018.
These cases reveal worrying and widespread governance failure. But the decisions in these cases all insist broken municipalities be fixed within the constitutional framework of co-operative governance.
The Kgetlengrivier judgment is different. The High Court seems not only to have given up on the municipality, but also on North West’s ability to provide support.
The judgment begs several questions. How sustainable is service delivery by residents? What happens to bypassed structures? What is the role of the elected municipal council? What will residents be voting for in local government polls?
The Koster and Swartruggens residents should be applauded for their civic virtue, goodwill and dedication. The system of local governance is clearly broken. Active community participation will be essential to fix it.
But one doesn’t repair a system by casting it aside. South Africa needs a way to incorporate active citizens within the prevailing constitutional and legal structures. This would strengthen all levels of government.