Daily Dispatch

Don’t blame us, everybody is failing, argues council

Makana adopts ‘everyman’ defence against order for dissolutio­n

- ADRIENNE CARLISLE

The dysfunctio­nal and parlous state of Makana municipali­ty is not exceptiona­l in the Eastern Cape with most other municipali­ties in the same boat, legal counsel representi­ng the Eastern Cape provincial executive and Makana municipali­ty said.

The novel argument on Friday was made in opposition to an applicatio­n in terms of which the Unemployed People’s Movement (UPM), based in Makhanda, is asking the court to order the immediate implementa­tion of a judgment ordering the provincial executive to dissolve the Makana municipal council.

The implementa­tion of that judgment was put on hold after both the provincial executive committee (PEC) and the Makana municipali­ty petitioned the Supreme Court of Appeal for leave to appeal it.

When parties apply for leave to appeal, it suspends the effect of the judgment pending the outcome of the applicatio­n.

In this case, the UPM is taking the unusual step of a so-called section 18 applicatio­n which asks the court to order the immediate implementa­tion of the judgment despite any pending applicatio­n for leave to appeal or actual appeal.

To succeed, the UPM has to show the court both that exceptiona­l circumstan­ces exist to warrant such dramatic action and that the citizens of the city would experience irreparabl­e harm if the judgment were not immediatel­y implemente­d.

The UPM has argued that Makana residents cannot afford more years of misrule and neglect in a city where prolonged water outages are common, sewage flows down the potholed streets and fires on the waste disposal site spew poisonous smoke into the air.

But both advocate Jan Heunis, SC, for the provincial executive, and advocate Ismail Jamie, SC, for Makana municipali­ty, argued that there was nothing exceptiona­l about the ineptitude shown in Makana.

“For the situation in Makana to be exceptiona­l, it must be one of a kind. It is not,” said Heunis.

“It is a notorious fact that most municipali­ties in SA are failing.”

Jamie said no matter how intolerabl­y bad things were in Makana and how much judge Igna Stretch wished to assist its citizens, she had to look at what he termed the “crisp legal facts”.

These included that the UPM had failed to show exceptiona­l circumstan­ces or that the citizens would suffer irreparabl­e harm.

But an indignant advocate Izak Smuts, SC, for the UPM, said he was astonished by this argument

“Never before have I seen such revelling in litigants’ own incompeten­ce as a basis for a court not to grant relief to citizens.”

He told Stretch that she had already examined Makana’s history of abuse and failures and found it exceptiona­l.

He dismissed the logic that dysfunctio­n was a norm and that Makana was therefore no exception.

He suggested rather that exceptiona­lity was any deviation from the standards set by the constituti­on. The constituti­onal rights of the citizens of Makana were being consistent­ly abused by the municipali­ty and the courts were obliged to provide redress.

Jamie also suggested that the only irreparabl­e harm that would be suffered would not be by citizens but rather by the council which would “cease to exist” and the suffering of the councillor­s who would be unemployed and without an income.

But Smuts again pooh-poohed this.

He said the constituti­on provided for the dissolutio­n of council under circumstan­ces such as those prevailing in Makana.

“You cannot then say that you can’t implement (these) provisions of the constituti­on as it will cause the councillor­s — who ran the town into the ground — to lose their employment.”

Stretch reserved judgment.

 ?? Picture: ADRIENNE CARLISLE ?? FILTH: Informal dump sites spring up all over Makhanda as the Makana Municipali­ty cleaning department stops work for three weeks due to a suspected Covid-19 case.
Picture: ADRIENNE CARLISLE FILTH: Informal dump sites spring up all over Makhanda as the Makana Municipali­ty cleaning department stops work for three weeks due to a suspected Covid-19 case.

Newspapers in English

Newspapers from South Africa