A Cautionary Tale To Municipalities – Power To The People Through The Courts

INTRODUCTION

In recent times the South African legal sphere has witnessed an increase in individuals and private group litigation against defaulting and/or poor performing municipalities across the nation. Many municipalities are underperforming and act as if their statutory obligations and duties to ratepayers do not exist.

The litigation instituted against the various municipalities sets a precedent where municipalities are duty-bound to supply services to ratepayers and taxpayers. If a municipality fails in service delivery, it will be found to be delinquent.

THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

Section 152 of the Constitution of the Republic of South Africa sets out the objects of local government as follow :-

“(1) The objects of local government are –
(a) To provide democratic and accountable government for local communities;
(b) To ensure the provision of services to communities in sustainable manner;
(c) To promote social and economic development;
(d) To promote a safe and healthy environment; and
(e) … .
(2) A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1).”

The obligations of municipalities towards ratepayers are enshrined and protected by the Constitution and they are therefore duty bound to comply with those obligations. These obligations extend to both individuals and private organisations who reside and/or operate within a specific municipal area.

A failure to comply with these obligations can result in provincial intervention in local government as set out in section 139 of the Constitution.

MAKANA LOCAL MUNICIPALITY

The Makana Local Municipality has faced a number of challenges over the years with regards to water provision, electricity, sanitation, housing and waste disposal and has been placed under administration on two occasions between 2014 and 2017. Unfortunately, those administration processes yielded no significant and/or lasting effect on Makanda.

On 14 January 2020, the High Court of South Africa, in Unemployed People’s Movement v Eastern Cape Premier and Others 2020 (3) SA 562 (ECG) heard an application brought by the Unemployed People’s Movement representing its members in Makanda. This application against Makana was as a result of its failure to provide basic services to its ratepayers and to meet its financial obligations.

The Court viewed the conduct of the Municipality in failing to provide services to its community in a sustainable manner; promote a safe and healthy environment; structure and manage its administration, budgeting and planning process’ and to give priority to social and economic development was inconsistent with and in breach of s152(1) and 153(a) of the Constitution.

The Court declared the failings invalid to the extent of the inconsistencies and directed the Provincial Executive of the Province to implement a recovery plan aimed at securing the Municipality’s ability to meets its obligations to provide basic services and to meet its financial commitments. The Provincial Executive was further directed to dissolve the Municipal Council of Makana Municipality and to appoint an administrator until a new Council had been elected. The Court made significant orders on serious shortfalls including essential service delivery.

LEKWA LOCAL MUNICIPALITY

The failings of the Lekwa Local Municipality to meet its service delivery obligations have been well documented. The Municipality has for years battled to provide water and electricity to its ratepayers, due to, amongst other reasons, its disintegrating infrastructure.

Due to the re-failings, South Africa’s largest poultry producer, Astral Foods, launched legal proceedings in the High Court against the provincial and national governments to hold them accountable for the failures in municipal delivery in Standerton. Standerton is in a poor state.

On 12 April 2021, Astral Foods obtained a Court Order forcing the national government and the Treasury to prepare a financial recovery plan for the municipality as contemplated in the Municipal Finance Management Act 56 of 2003. Ratepayers are approaching the Courts because there is currently no other suitable remedy.

KGETLENGRIVIER LOCAL MUNICIPALITY – KOSTER

On 18 December 2020 the High Court in Kgetlengrivier Concerned Citizens and Another v Kgetlengrivier Local Municipality and Others (UM 271/2020) [2020] ZANWHC 95 declared that the raw sewerage works at Koster and Swartruggens was flowing into and contaminating the Koster and Elands rivers.

The Court further declared that the Kgetlengrivier Local Municipality had failed to supply potable water for the residents of Koster and Swartruggens and that the water purifying works were in states of disrepair. In respect of the sewerage works, the Court interdicted the kgetlengrivier Local Municipality from allowing raw sewerage to overflow into the Koster and Elands rivers. The Court ordered that if the spills were not resolved within a specified period that the Kgetlengrivier Concerned Citizens would be authorized to take control of the sewerage works and to appoint or employ suitably qualified people to operate them.

On the water works, the Court ordered that in the event that the Kgetlengrivier Local Municipality failed to continuously supply potable water to the towns of Koster and Swartruggens within a specified timeframe, the Kgetlengrivier Concerned Citizens would be authorized to take control of the water works and to appoint or employ suitably qualified people to operate them.

The Court further ordered that the reasonable costs thereof must be paid jointly and severally by the MEC responsible for environmental affairs, Kgetlengrivier Local Municipality and the Bojanala Platinum District Municipality.

CONCLUSION

These are examples of cases. Individuals and/or private organisations who are frustrated with the service delivery of their respective municipalities and are unable to effect change by communicating with their municipalities may resort to the Courts for remedies.

The Courts will in most cases order intervention by provincial government in order to assist a poor performing Municipality. In more extreme circumstances the Court may order that the people and/or private groups located within the Municipality’s service area, take control of the failing and/or poor performing functions of the municipality.

The litigation instituted against the municipalities is setting a precedent, wherein ratepayers can hold their respective municipalities accountable to their constitutional obligations.

CHM Attorneys, as a result of its experience and expertise, is well suited to assist clients in ensuring that Municipalities and Counsellors adhere to their Constitutional mandate. Therefore, please do not hesitate to contact us for assistance.

Written by

Lennard Cowan, Henry Korsten, Mzamo Danana and Courtney Wingfield
of Cowan-Harper-Madikizela Attorneys

Lennard Cowan of Cowan-Harper-Madikizela Attorneys
Henry Korsten of Cowan-Harper-Madikizela Attorneys
Mzamo Danana CHM Legal Attorneys
Courtney Wingfield of Cowan-Harper-Madikizela Attorneys