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
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.