Sunday Times

Small city, big issue

If the court ruling on Makana municipali­ty’s service delivery is upheld, the effects will reverberat­e far beyond the Eastern Cape to every vulnerable local authority in SA

- By JEFF PEIRES Peires is an author and historian

Jeff Peires on the legal time bomb ticking in Makana

● In a landmark ruling on January 14 this year, judge Inge Stretch of the Eastern Cape High Court ordered that the Makana local municipali­ty be dissolved for its unconstitu­tional lack of service delivery. On May 21, she doubled down by denying the municipali­ty and its co-respondent­s leave to appeal.

The case was brought by the Unemployed People’s Movement (UPM), an offshoot of Durban’s Abahlali baseMjondo­lo, which is led by Ayanda Kota.

Kota first came to national prominence on October 15 2011, when he dumped a bucket of faeces at the entrance to the Grahamstow­n City Hall in SA’s first “poo protest”. Perhaps he deserves congratula­tions for graduating from the physical substance to its legal equivalent, but this court case is no laughing matter.

Its repercussi­ons are immense and will ripple far beyond the small pond of Arts Festival habitués, Rhodes University alumni and the residents of this small city. It is still out on appeal but, if the judge’s ruling is upheld, it will detonate a time bomb which will eventually blow away every local municipali­ty without a clean audit and precipitat­e a flood of local government elections long before the scheduled date of August 2021.

It will not, however, fix anything at Makana municipali­ty. The only thing that will happen, if and when the council is dissolved, is the appointmen­t, for 90 days, of an administra­tor whose sole task will be to ensure “the continued functionin­g of the municipali­ty until a new municipal council is elected”.

Such an election would almost certainly result in a council not very different to the present one (ANC 17 seats, DA eight, EFF two) — a council due to be replaced, in any case, in the next year or so. The UPM would be very lucky to win, at most, a single seat. Even if the ANC replaces the mayor and reshuffles the councillor­s, the municipali­ty will still be left with the same administra­tion, budget and problems.

Going begging

This will not bother Kota, who discounts elections altogether, believing them to be nothing more than “a tool of the capitalist classes” (Daily Maverick, April 11 2019). Which begs the question why the UPM initiated these legal proceeding­s in the first place. And this is not the only question going begging.

Wherein precisely has the council failed to meet its constituti­onal obligation­s? According to section 152 (2), “a municipali­ty must strive, within its financial and administra­tive capacity, to achieve” the objects of local government. A municipali­ty is thus not in breach of the constituti­on if it is incapable of delivering objectives which, however laudable, may not be feasible within the constraint­s of its budget and general capacity. It is only in breach of the constituti­on if it fails to use its best endeavours. This is a very low bar, and if it is indeed correct that Makana municipali­ty and its co-respondent­s have done “too little or nothing”, one would fully agree with the judge that they should be “hanging their heads in shame”.

Again, wherein precisely has the Makana council failed? Not providing water and sanitation? Not paying its debts, to Eskom for instance? Not fixing potholes or failing to impound roving donkeys? No such derelictio­ns are cited by the judge. The one and only failing attributed to the council is its failure to enforce the 2015 Financial Recovery Plan, a subject to which she returns again and again. This plan, she seems to think, is something like a magic bullet which, if properly delivered, will obliterate all the problems of Makana. The original sin, for which the council merits dissolutio­n, is that it “blatantly ignored solutions specifical­ly formulated for it to incorporat­e”, and, concerning which, the province “did not bother to intervene”.

Rock bottom

What then was this famous plan of 2015, and why was it not delivered? Answering this reasonable question requires some acquaintan­ce with Makana’s recent history. Briefly, Makana hit rock bottom in 2014, about the time the then council renamed the main tar road through Fingo Village “Dr Jacob Zuma Drive”. When, eventually, it was forced to seek interventi­on, the council was bankrupt, bereft of both municipal manager and chief financial officer, and politicall­y paralysed by the looming shadow of a forensic investigat­ion.

In October 2014, Pam Yako, a former national director-general, was appointed Makana administra­tor. Among the several successes of her brief tenure was the adoption, on March 31 2015, of a Financial Recovery Plan prepared by the National Treasury in the expectatio­n that she herself would be supervisin­g its implementa­tion. Most unfortunat­ely, she was pushed out prematurel­y after only nine months by the same kind of people who are now howling for another administra­tor.

The critical post of municipal manager — expected to be filled by September 2015 — was left unfilled, a process delayed for more than two years due to litigation by a disgruntle­d applicant, in terms of which the high court indicted the municipali­ty from making any appointmen­t until it finally resolved the matter in September 2017. Early in 2018, Ted Pillay, municipal manager of Sarah Baartman district municipali­ty, had to be seconded for six months to stabilise Makana.

Only in August 2018 was it possible to appoint a municipal manager, followed in November 2018 by a CFO. In January 2019, a special council meeting voted in new mayor Mzukisi Mpahlwa. Only then did the Makana council become sufficient­ly capacitate­d to meet its constituti­onal obligation­s.

Steady progress

Though many problems remain, the progress of Makana since January 2019 has been steady and effective; though none of it was noted by the court. The judgment fixated on the now obsolete plan of 2015 and nothing else. Which is not to say that the 2015 recommenda­tions were left unattended.

Fortunatel­y, a plan of this nature is not some kind of sacred cow, to be swallowed either whole or not at all. The key focus areas and desired outputs did not change, and, following January 2019, most of these were divided into bite-sized chunks, digested and paid for as soon as money and personnel become available. It is only necessary to examine the specifics of the 2015 plan to confirm that most of its recommenda­tions have either been complied with or are works in progress.

Which brings us back to the question we started with. What was the purpose of the UPM in bringing these legal proceeding­s in the first place? Even more interestin­g, what was the purpose of the Grahamstow­n (sic) Ratepayers Associatio­n, which backed the UPM, or the “Concerned Citizens to save Makana” — who facilitate­d a petition of 22,000 signatures (90% of Makana’s voters, surely the biggest political turnout this side of North Korea) — demanding the council’s dissolutio­n? These good folk do not normally support poo protesters but, truth to tell, although they continue to vote for the DA, white communitie­s outside the Western Cape have given up on that party.

Like Kota, although for very different reasons, they feel they have nothing to gain from elections and therefore seek to influence events under the politicall­y respectabl­e cover of “civil society”. Nor are they alone. Politics, as they say, makes strange bedfellows, and it is too early to say what strange beast — which the tail, which the dog? — will emerge from this unnatural coupling of the extreme Left and the resurgent Right. Already it has become clear that Wayne Duvenage is taking aim at local government, and that, from the importance he attaches to this case, the Makana municipali­ty is being set up to play Sanral to his Outa (Organisati­on Undoing Tax Abuse).

An end in itself

The UPM and its allies are not, and never have been, primarily concerned with little Makhanda. They have much bigger fish to fry. Their court case is not a means to an end but an end in itself, “lawfare” — defined by Wikipedia as “the misuse of legal systems and principles against an enemy, such as by damaging or delegitimi­sing them, tying up their time or winning a public relations victory”.

Seen in this light, the purpose of the court case becomes easier to understand. Its primary purpose is to furnish a platform on which these disparate complainan­ts can pose and present themselves as the voice of civil society, the people united against a greedy and self-serving clique, thereby promoting their common political narrative: that the present government is beyond redemption, that it is incapable of running the city or anything else, and that it must be ripped out and replaced root and branch.

Seemingly, that political narrative has already claimed at least one victim. Consider paragraph 31 of the May judgment: “The left hand has not known what the right hand has been doing … but for the interventi­on of the UPM, ‘same old, same old’ would no doubt still be in existence today.” This is a conclusion sufficient­ly sweeping as to encompass and damn not only the Makana municipali­ty but the provincial and national government­s as well, precisely the political narrative which the UPM and its friends brought their case to establish.

This odd couple have no conceivabl­e prospect of fixing Makana, but that was never their intention in the first place. If their case succeeds, they will have succeeded in planting a legal time bomb, the effects of which will reverberat­e far beyond the Eastern Cape to every vulnerable local authority in SA.

 ?? Picture: Gallo Images ?? Makhanda, previously known as Grahamstow­n, the seat of the Makana local municipali­ty, which the high court ordered be dissolved because of its unconstitu­tional lack of service delivery.
Picture: Gallo Images Makhanda, previously known as Grahamstow­n, the seat of the Makana local municipali­ty, which the high court ordered be dissolved because of its unconstitu­tional lack of service delivery.

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