Eastern Cape government backs down on another municipal court case

The Eastern Cape government has agreed to implement a financial recovery plan for the Enoch Mgijima municipality based in Komani/Queenstown as part of an out-of-court settlement with the civil society umbrella organisation Let’s Talk Komani.

The organisation applied for the Enoch Mgijima municipal council to be dissolved, citing an unconstitutional failure to deliver services to the people of Komani and its surrounding towns.

“It will bring us out of collapse. It is a good start,” Let’s Talk Komani chairperson Ken Clark said. “You cannot fix that mess in one day. It won’t be easy, but we will have to take it one win at a time,” he said. “We are going to make sure that they perform.”

In February 2020 the MEC for Co-operative Governance and Traditional Affairs, Xolile Nqatha, confirmed that he had approached the national government for funds to bail out 14 unsustainable, bankrupt Eastern Cape municipalities. In May, Nqatha also conceded in written answers to the Eastern Cape legislature that the Auditor-General gave eight municipalities disclaimers, as insufficient information was provided to reach conclusive findings. This was the worst performance by Eastern Cape municipalities since 2012. The Auditor-General indicated in a schedule provided by Nqatha that the audit for Enoch Mgijima could not be completed.

The settlement comes as the municipality also faces an application for contempt of court from the local business chamber for failing to adhere to a court order compelling it to pay Eskom on time. The court order was issued in December 2019 after Eskom threatened to cut the electricity supply after the municipality failed to pay on time.

Clark said the agreement has been made an order of court and this will assist Let’s Talk Komani to hold the municipality to its undertakings.

“When we met with them in March they said this is what they are doing. They have done nothing, but now we will hold them in contempt of court if they don’t perform,” Clark said.

The settlement comes as Premier Oscar Mabuyane’s government, after suffering a defeat in court in a similar application by the Unemployed People’s Movement, was told to “hang their heads in shame”. They are in the process of appealing against a court order that the Makana Municipality, based in Makhanda, must be dissolved “forthwith” for its lack of service delivery. Since then one of the activists who played a key role in the court case, Ayanda Kota, had to go into hiding after his life was threatened.

According to papers before the court service delivery in the Enoch Mgijima Local Municipality has all but collapsed. Apart from the threat that electricity will be cut, the waste site is not being run in compliance with regulations and waste has been illegally burnt. The road infrastructure is collapsing and the waste removal fleet has five instead of 11 vehicles. Livestock roam free in Komani and other towns and are not removed.

In his affidavit before court, Clark requested that any official opposing the application should be held personally accountable for the legal costs as they will be trying to “defend the indefensible”.

“Every aspect of running a municipality is wanting (in the Komani municipality), and the municipality has now reached a state of disaster. The council has failed to govern and manage the municipality effectively. The inability of the municipality to provide basic services and to meet its financial obligations has been manifest for a number of years and the municipality has been in persistent material breach of its obligations to provide basic services at Komani. The municipality has been guilty of gross service delivery failures and has been unable to provide basic essential services to residents for a number of years now,” Clark said in papers before court.

Organisations that have joined to form Let’s Talk Komani are the Amakhalipa Church Youth Group, Ashley Wyngaard Foundation, Basic Services Komani, the Black Management Forum, the Border-Kei Business Chamber, Concerned Residents, four schools in the area, the Get Ahead Community Action Club, Komani4Me, the Komani branch of the SA Council of Churches, the Komani Development Foundation, the Komani Ratepayers Association, the Komani Hindu Association, Komani’s Islamic leaders, the Minister’s Fraternal, the Mlungisi Farmers’ Association, Phakamisa Khomani, Queenstown Education Foundation, Queenstown’s Farmers’ Association, Queenstown’s Unity of Churches, Qiqa Liphile, Sakhingomsa Development Institute, the Schools Principals’ Forum, the SPCA, the Walter Sisulu University and the Youth Chamber of Commerce.

It was explained in court papers that the provincial government had appointed an administrator for the municipality in September 2018. Vuyo Mlokothi titled his report to the Eastern Cape government:

“How to collapse a municipality in full view of its vanguard.” Guards had to be appointed to protect him, but he later became too ill to continue his work.

His successor advised the Eastern Cape government to dissolve the council.

A separate report commissioned by the Eastern Cape Department of Co-operative Governance said that the municipality failed to implement revenue collection systems and also failed to employ suitably qualified and competent staff in senior positions. According to this report, the July 2019 operating income for the municipality was R25-million. This broke down to R19-million as payment for electricity and R3-million rates and taxes. The staff payroll alone was R27-million and the municipality was using treasury grants to pay Eskom.

Eastern Cape Premier Oscar Mabuyane’s spokesperson, Mvusi Sicwetsha, said he would have to consult the province’s legal division before commenting. DM/MC