Don’t blame us, everybody is failing, argues council
Makana adopts ‘everyman’ defence against order for dissolution
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.