A judge has said that Eastern Cape Premier Oscar Mabuyane and his government and the Makana Municipality ought to be ‘hanging their heads in shame’ as they were refused leave to appeal against a landmark ruling that the municipality must be dissolved for its unconstitutional lack of service delivery.
A court order that the Makana Municipality must be dissolved “forthwith” has come into operation after the Makhanda High Court ruled on Thursday 21 May in a scathing judgment that neither the provincial nor local government had a reasonable chance to successfully appeal the ruling.
The court refused the Eastern Cape government and the Makana Municipality leave to appeal against an order that the municipal council must be dissolved for its unconstitutional failure to deliver services to residents.
Judge Igna Stretch said in her reasons for refusing leave to appeal that the government “ought to be hanging their heads in shame”.
She said they were trying to claim that they would have good prospects of success by “academic nit-picking about choices of phrase from laypersons whose only claim is and has been to vindicate their constitutional rights”.
According to Stretch’s order that now stands, the council must be dissolved “forthwith”.
Premier Oscar Mabuyane’s spokesperson, Mvusi Sicwetsha, said the provincial executive committee would discuss the judgment. The Makana Municipality has not yet responded to the ruling but did put out a statement that residents should expect water shortages as it was having problems at the water treatment works.
Mabuyane’s government is facing a similar application to have the Enoch Mgijima Municipality, based in Queenstown/Komani dissolved and a threat that in the absence of a serious intervention in the Sakhisizwe Municipality, based in Cala and Elliot, civil society organisations would also file a similar application.
A spokesperson for the Unemployed People’s Movement, Ayanda Kota, dedicated the victory to a former president of the organisation, Gladys Mpepho, who died unexpectedly last week. He said she was instrumental in the fight to obtain this order.
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 failing to secure the town’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 town’s power would be cut off.
Other issues highlighted in the court papers included the municipality’s inability to maintain road infrastructure, failure to regulate livestock in town and allowing fire-fighting 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.
Stretch said there was no reasonable prospect that the appeals of the provincial and the local government would succeed.
She said that while she was aware that the ruling was likely to set a precedent for the dissolution of municipalities across the country, she had ruled on the specific set of facts placed before her relating to the Makana Municipality.
This, she continued, included a “paucity of evidence in response to the serious allegations [of service delivery failures]” that mounted over at least five years and the municipality’s long history of non-compliance with any recovery plans. “[They] blatantly ignored solutions,” she said.
“Makana’s situation and the way it has been handled thus far is so embarrassing on so many different levels that had national government intervention been called for, this court would have been constrained to have given serious consideration to granting such relief.” DM/MC