Judge rules on Eskom threat

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In the High Court in Makhanda (Grahamstown) on Thursday 28 March a senior Judge was putting Makana Municipality down for the full legal costs of an application to interdict Eskom from cutting power to the town while in the City Hall, politicians were voting to oppose a different High Court action for the Council to be dissolved and the municipality put under full administration.

In a special council meeting in the Council Chamber on Thursday 28 March 2019, the ANC caucus vote outnumbered the DA and EFF’s opposition to Municipal Manager Moppo Mene’s recommendation to fight the Unemployed People’s Movement’s bid for dissolution and Section 139(1)(c) administration.

Court papers were served on Makana Municipality on 27 February, to notify it of the UPM application. The papers allege a range of crises in the municipality including failure to manage staff; multiple ongoing sewage spills; failure to plan for the drought and secure Makana’s water supply; air pollution as a result of burning waste at the landfill; repeated threats from Eskom of power cuts after revenue diverted to pay salaries; and ineffective waste removal.

Also quoted by the Municipal Manager in tabling the item on this week’s Council agenda are the UPM’s allegations that Makana has been unable to provide basic services and meet its financial obligations for several years; it is increasingly in debt; and that previous 139(1)(b) interventions failed.

On the agenda of the open section of the meeting were the approval of the Draft Annual Budget for 2019/20; a report on progress in managing issues related to the drought and water crisis; a request for Council to approve an additional R8.3 million for the Alicedale sewerage reticulation upgrade project; and the tabling of the draft integrated development plan and budget (IDP).

All hell broke loose, however, when Mene’s recommendation that he be mandated to litigate on Makana’s behalf against the UPM was discussed.

ANC councillor Mabhuti Matyumza suggested that all those councillors who opposed the recommendation and were in favour of the Council being dissolved should resign. DA councillor Mlindi Nhanha said there was no point in wasting taxpayers’ money, and insisted on elaborating why. Chief Whip Luyanda Nase sought for the Speaker to order Nhanha to sit down, citing a point of order.

The recommendation to fight the UPM in court was adopted by a majority vote of the ANC caucus. Both the DA and the EFF rejected the decision and insisted that their objections be minuted. Later, in a media statement, DA Premier Campaign Spokesperson Mlindi Nhanha said, “Today the Democratic Alliance rejected the failing ANC’s motion to use ratepayer’s money to defend the municipality in court against a case that seeks to dissolve the council. The DA sees no reason to spend money to defend the court case, which has been brought by civil action groups on behalf of the residents of Makana…  The looming crisis of day zero for water and massive debt to Eskom are just the tip of the iceberg. After years of maladministration, political infighting and chronic service delivery failure, it is clear that the current administration and political leadership of the ANC are not prepared to put the interests of the people before their own.”

Meanwhile, at the High Court in Makhanda, Justice Zamani Nhlangulela, who is the Deputy Judge President, had instructed the Grahamstown Business Forum and Grahamstown Residents Association, along with the city’s two biggest business owners, to meet with Eskom and reach a settlement. The GBF, GRA, Beer Properties and Pinzon Traders 8 last week made an urgent application to interdict Eskom from carrying out its threat of progressive electricity throttling to Makhanda from 2 April 2019, eventually resulting in 14-hour daily outages.

Legal representatives of Eskom and the applicants, locked in discussion for most of the day, drafted a plan that the Judge declared an order of court.

It postpones the matter to 6 June and orders Eskom not to proceed with cutting electricity to the city, except for normal loadshedding. The applicants and Eskom have been authorised by the Judge to engage with Nersa, and Makana, the National Treasury, the MEC for Co-operative Governance and others to agree on a mechanism for settling Makana’s arrears to Eskom and determine a payment mechanism for future electricity supplies by Eskom to Makana.

The Judge also ordered Makana to pay costs.

GBF chairperson Richard Gaybba, commenting on the proceedings, said, “I take no joy in having to go to court. Whilst the order is a relief the negotiations leading up to the next court date will be complex and taxing on all parties.

“I am bitterly disappointed that Makana and Nersa didn’t respond and failed to show up. They are key role players. Makana has missed ample opportunities to resolve this matter. They are now bound by an order that they played no part in negotiating. Furthermore, they have a cost order against them that the can’t afford.”

GRA chairperson Philip Machanick said the order was a victory for good sense.

“The threat of cutting Eskom power for up to 14 hours per day was an unnecessary attack on confidence in our city.

“What is happening in Makana is not a local problem – Eskom is owed R20-billion by municipalities and Makana’s debt is less than half a percent of that. The judge has authorised us to work with the relevant government departments and agencies that should be solving this problem nationally. It is a sorry state of affairs that we have to win a High Court action before these agencies and departments take on what should be their responsibility. GRA is committed to serving all our people and will continue to work on ensuring that government carries out its constitutionally-defined role.”

Makana Mayor Mzukisi Mpahlwa said he and the Municipal Manager would be meeting with their legal adviser for a briefing on the court proceedings and the interdict.

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