Makana judgment appeal: ‘They are using taxpayers’ money to defend the indefensible’

“Why are they using taxpayers’ money to save a local government that has collapsed?”

Ayanda Kota, community activist and one of the driving forces behind the ground-breaking ruling, asked this question on Tuesday after the Supreme Court of Appeal gave permission to the Eastern Cape provincial government and the Makana Municipality to appeal against a ruling that the municipal council must be dissolved for its unconstitutional failure to provide services to residents.

After extensive litigation by the Unemployed People’s Movement about service delivery failures in the Makana district municipality, including frequent and extensive water outages, electricity problems, sewage, waste management and issues with road maintenance, Judge Igna Stretch gave her ruling in January 2020 that the service delivery failures in Makhanda were so severe, widespread and extensive that they violated the Constitution and justified the dissolution of the municipal council.

She refused permission for either the provincial government or the municipality to appeal against her order. In her ruling on the refusal of leave to appeal, she said the provincial government should “hang their heads in shame”.

Shortly after this ruling, Kota received death threats and went into hiding.

“I am back in Makhanda and ready to fight,” he said on Wednesday 28 October. “The people are strong. They are ready to take this further… Off to court we go.”

“Government should be transparent and accountable. Our local government has collapsed. It is an indictment on all pillars of government and a disgrace that they are spending more money to defend this municipality. They have no interest in making local government work. We are just pawns in their political game,” he said.

In papers before the court, numerous examples of how the council failed residents were cited. These included failing to address ongoing sewage spills, failure to provide proper waste removal services, failure to plan effectively for the drought and failure to secure the city’s water supply and quality, ongoing air pollution caused by the incineration of waste at the municipal landfill, and failure to pay Eskom, leading to threats that the city’s power would be cut off.

Kota said they were still having trouble with water.

“The electricity is only staying on because there is a court order making them pay Eskom,” he said. “There are court orders to make them attend to the sewage and to the management of the waste dump. But the municipality wants to fight these too,” he added.

Other issues highlighted in the court papers included the municipality’s inability to maintain road infrastructure, failure to regulate livestock in town and allowing firefighting equipment to fall into disrepair, and not restocking.

In June 2019, the municipality was ordered by the high court to begin paying R44-million in arrears to Eskom after the power utility threatened to switch off its supply.

In response to the ruling, the Makana Municipality has claimed that it had turned a corner and that the situation was improving.

Mabuyane’s government faced a similar application to have the Enoch Mgijima Municipality, based in Queenstown/Komani, dissolved but that was settled outside court with an order compelling the municipality to implement a turnaround plan.

Lwazi Ncapayi from the Cala University Students Association (Calusa), said they had received no response to a request to the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini Zuma, to intervene in the Sakhisizwe Municipality based in Cala and Elliot.

“Calusa has requested its legal representatives, the Centre for Applied Legal Studies, to develop a legal opinion on the prospects of success of obtaining a court judgment ordering Cogta to invoke section 139 in Sakhisizwe,” Ncapayi said. A Section 139 intervention is a last-resort measure where the provincial government can intervene to ensure the effective running of a municipality.

Ncapayi said their lawyers had also filed an application in terms of the Promotion of Access to Information Act to request documents relating to a turnaround plan for the municipality and “any provincial reports regarding the progress of the intervention”.

He said in the absence of a serious intervention in the Sakhisizwe Municipality, civil society organisations would file a similar application. MC/DM