IMPACT OF MAKANA MUNICIPALITY CASE ON LOCAL GOVERNMENT ACCOUNTABILITY
Intern at the Council for the Advancement of the South African
This case note will consider the decision in Unemployed People’s Movement v Premier, Province of the Eastern Cape and Others (the Makana Municipality case). In particular, the potential impact that the case might have on enhancing the accountability of local governments.
On 14 January 2020, the Makhanda High Court (formerly Grahamstown) delivered a landmark decision, wherein the court ordered the dissolution of the Municipal Council of Makana for failing in its constitutional duty to provide basic services to its denizens, and an administrator to be appointed until a new council is elected. The decision has extensive implications for local governments throughout the country, which until now could be removed only if they were voted out in local government elections, or if the provincial government decided to dissolve a council. Accordingly, the case effectively provides precedent for citizens in any municipality to legally challenge poor service delivery, due to incompetent and dysfunctional governance, through the courts.
Judgment (a) declaration of constitutional invalidity
South Africa’s Constitution is clear about the duties of local government. Importantly, it was common cause, and indeed uncontested by the respondents that a crisis exists in the financial affairs of Makana, and that this has resulted in serious and persistent material breaches of Makana’s obligations to provide basic services or to meet its financial obligations. Accordingly, the court held that the conduct of the Makana Municipality was inconsistent with the Constitution, being in breach of sections 152(1) and 153(a), and thus invalid. It is submitted that this cannot be controversial. Everyone has the right to approach the courts for effective relief. Crucially, the courts must declare that any conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency. On the facts, the Makana Municipality’s conduct was incontrovertible (and indeed uncontroverted). Thus, the court was not only permitted but obliged to declare the conduct of the Makana
Municipality unconstitutional. It is noteworthy that the court was greatly aided by the extensive evidence in support of the municipality’s conduct, which proved an abject and long-lasting failure in fulfilling its duties owed to its community. It is recommended that such evidence is crucial to the success of any future like matter.
(b) declaration of mandatory intervention in the affairs of Makana Municipality
The Constitution and relevant legislation are clear on which remedies are available in instances of breaches of the duties of local government. In particular’s 139(5) of the Constitution, read with sections 139 and 140 of the MFMA, provides that the relevant provincial legislature must intervene in the relevant municipality if the municipality is in financial crisis and consequently cannot fulfil its duties owed to its residents. This is mandatory. Importantly, it was evident that the requirements for such intervention were met. Indeed, the respondents did not dispute that the jurisdictional facts for mandatory intervention were present. Accordingly, the court declared that the set of circumstances that are required for a mandatory intervention in the affairs of Makana Municipality were existent.
It is noteworthy that the respondents contended that the applicant relied on the incorrect provision of the Constitution in its request for mandatory intervention. The applicant’s plea was in terms of s 139(1)(c), which is ostensibly discretionary in nature. Nevertheless, the court elected to provide effective relief by giving effect to substantive justice over strict adherence to form. This is a positive precedent for constitutional democratic accountability.
(c) implementation of recovery plan
Where the provincial authority duly intervenes, it is required to impose on a municipality a recovery plan aimed at securing the municipality’s ability to meet its obligations to provide basic services or its financial commitments. Again this is mandated by the Constitution and relevant legislation. Accordingly, the court ordered such. Moreover, the court ordered that the recovery plan be implemented with due regard to the Financial Recovery Plan that was developed for Makana Municipality in February 2015. The court found that the Financial Recovery Plan, which was previously developed for Makana Municipality but never implemented, was indeed for the purpose of achieving the objective of the municipality’s financial and service delivery sustainability, and should in effect be implemented.
(d) dissolution of the Municipal Council of Makana Municipality
In terms of the Constitution,the provincial authority must dissolve the relevant municipal council and appoint an administrator if that municipality in effect does not implement the recovery plan. The court found that the Executive Council for the Eastern Cape had effectively imposed a comprehensive recovery plan since 2015 through a mandatory intervention in the Makana Municipality. However, Makana had failed to or unduly delayed the implementation of the 2015 recovery plan. Accordingly, the court held that the Municipal Council of Makana must be dissolved, and an administrator appointed until a new
council is elected.
The dissolution of the municipal council by order of a court sets an advanced precedent for challenging other incompetent municipalities. This is certainly a pioneering decision, as this case is novel in our courts. Moreover, removal of elected officials is typically a political process, rather than a judicial one. However, it is submitted that the remedy is provided for by the Constitution. Importantly, the case confirms that local government is indeed subject to checks and interventions through the judiciary.
Separation of Powers
A primary contention of the decision is the issue of the judiciary (unelected judges) potentially infringing on the domain of the other branches of state in effectively removing elected officials. However, it is submitted that “the checks and balances embedded in the doctrine of separation of powers demand that courts must ensure that all branches of government act in accordance with the Constitution and other law”. Moreover, s 172 of the Constitution empowers a court to make any order that is just and equitable in the circumstances. In fact, judicial intervention in such cases is mandated. It is submitted that this case is a paradigm of a working constitutional democracy in action. “Courts safeguard the public interest and help preserve and deepen the [constitutional] democratic project”. This is because the court ultimately gave effect to the constitutionally
protected rights and interests of the community (the people were the applicants), over the failures of local government.
The case will be taken on appeal. The case has wide-spread implications for dysfunctional municipalities across the country, which could now potentially be challenged in the courts for failing to uphold their duties, a potential ‘floodgate’ of claims. The claim is likely to be based on an alleged infringement of the separation of powers or judicial overreach. In particular, dissolution of the council is a bold action typically undertaken by government only. However, I opine that there was strong evidence to support the decision. Furthermore, the optics of the matter are certainly not in government’s favour. The application was brought by the community for a crucial failure in their local government, despite numerous attempts at engagement through the typical political, administrative and legal channels.
The case undoubtedly sets an important precedent as a potential means of holding local government accountable for their governance failures. Essentially, the case establishes that judicial intervention can be used to dissolve a local municipality where local government fails in its constitutional duties owed to its residents. The Constitution (and relevant legislation) entrenches powerful rights for citizens and imposes duties on government, but, importantly, it requires effective realisation by empowered (organised) people.
Nonetheless, there are important circumstances which were crucial to the success of the applicants. It is therefore recommended that these factors are acknowledged in future like matters. The adage good facts make good cases is aptly suited to this case. Firstly, the evidence was comprehensive and undeniable in establishing the severe and sustained
failures of Makana Municipality. Secondly, the community had attempted to engage with local and provincial authorities numerous times over several years without success. Thirdly, there had been interventions in the municipality before without significant improvement. It is submitted that this was an important factor in the court’s decision to dissolve the Makana Municipal Council, as opposed to just ordering that the provincial executive intervenes and imposes a recovery plan. It was determined that the problem was structural, and without dissolving the council there was no reason to suggest that the issues would now be fixed. This was encapsulated in Judge Stretch’s repeated notion of “same old, same old”. This is not surprising, as according to a government report, section 139 of the Constitution has been invoked 142 times by provincial executive committees since 1998. The government report conceded that soft approaches, such as putting a town or city under administration for a period of time, were mainly not successful. 15 Lastly, and importantly, the applicants were a united and well-organised community. It was not a politically partisan matter. The community was seeking to receive basic public services due to them from their local government, which was critically failing them; unconstitutionally so.
The judgment appears to indicate strongly that if communities, social movements or residents’ associations provide weighty and compelling evidence to the courts that demonstrates a municipality has failed to deliver basic services in line with the Constitution, then the municipality will have to respond to that evidence in court, and not simply ignore it. If it fails to do so, the court is empowered to dissolve the council. The judgment clearly establishes that South Africans can and should use the law and courts to hold government to account for its failures. This case is a triumph for ensuring local government is held
accountable, as well as empowering citizens.