Cape Argus

How to fix broken down local government

- PROFESSSOR MARIUS PIETERSE Marius Pieterse is a professor of law at the University of Witwatersr­and

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.

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