Government set to appeal Makana judgment

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It will be a dark moment for democracy if the government decides to oppose this week’s ruling to dissolve the Makana Council, civil society organisations say. 

Makhanda civil society organisations have called on the government to accept and act on this week’s judgment ordering that Makana’s Council be dissolved and the municipality be put under administration. This comes as the Eastern Cape government today confirmed it would consider appealing Judge Igna Stretch’s historic high court ruling.

In the first judgment of its kind in South Africa, the Eastern Cape’s Provincial Executive was on Tuesday 14 January ordered in the High Court in Makhanda  to dissolve the Makana Municipality Council and appoint an administrator until a new Council is elected. The Mayor and Municipal Manager in their personal capacities face a punitive cost order, along with various national and provincial government entities. The first respondent is the Premier of the Eastern Cape, among a list of 15 that includes the President.

In a statement in response to Grocott’s Mail’s query today, Premier Oscar Mabuyane said the judgment’s effect would be suspended until the provincial government had decided how to respond to it.

The Premier’s Spokesperson Mvusiwekhaya Sicwetsha:

Hours after Tuesday’s judgment was released, ANC Regional Chairperson Scara Njadayi told Grocott’s Mail that in [yesterday’s] ANC provincial executive meeting, they would encourage the Province and the municipality to appeal the judgment.

“The judgment has far-reaching implications and the Eastern Cape Provincial government is considering appealing the judgment,” Mabuyane said.

Makana Mayor Mzukisi Mpahlwa today told Grocott’s Mail the Council’s Mayoral Committee along with senior managers would meet Friday 17 January to discuss their response. A recommendation to Council would follow.

“Council has not yet met and only Council can make a decision about our response,” Mpahlwa told Grocott’s Mail. He said out of tomorrow’s leadership meeting would come a recommendation to councillors. Council’s first scheduled meeting is on 30 January, but the Mayor said it was likely a special council meeting would be convened earlier.

Indictment

Meanwhile the winning applicants, the Unemployed People’s Movement (UPM), as well as the Grahamstown Residents Association (GRA) have called on the government to accept the ruling.

The UPM’s Ayanda Kota said in response to today’s news, “It [would be]an indictment on the part of the government to oppose the will of the people. It would indeed be a dark moment for our city and our country.”

Minutes after the judgment was released, an elated Kota had told Grocott’s Mail, “People were united across the spectrum against the political elite of the city… it’s democracy… we hope they will accept that it’s part of the democratic process… they must take their things and go home.”

The GRA likewise called on the government to accept the ruling. In a statement issued last night, GRA chairperson Philip Machanick said, “I see reports that ANC structures are calling for the judgment to be appealed because of the precedent it sets. I propose a different precedent for the government: start governing. That is all we ask.

“Civil society has refused to accept this as normal; the extremely diverse constituencies who have stood up for positive change attest to that. We are not the opposition: we are the people government is meant to serve. The GRA calls on government to accept this judgement as a wake-up call and stop resisting the inevitable – a comprehensive intervention to turn things around.”

Citizens

The Judge’s two-page order said Makana had failed to provide services to the community in a sustainable manner, promote a safe and healthy environment, structure and manage its administration, budgeting and planning processes, prioritise the community’s needs and promote its social and economic development. Makana Municipality had breached sections 152(1) and 153(a) of the Constitution and was therefore declared invalid.

Judge Stretch ordered the Eastern Cape Executive to immediately implement a recovery plan to make sure the municipality provides basic services and meets its financial commitments.

And she ordered the Province to immediately dissolve the Council, appoint an administrator until a new Council is elected and approve a temporary budget to keep Makana Municipality functional.

New dawn

Costs were awarded against the Mayor and Municipal Manager who must share the bill with the Eastern Cape government, the municipality, the Council and the Co-operative Governance Minister.

For the UPM, Brin Brody of Wheeldon Rushmere and Cole briefed Senior Counsel Izak Smuts with Thandwefika Mgidlana and Gavin Brown and the matter was heard in September 2019. In a press conference after Tuesday’s judgment, Brody said it was the first of its kind in South Africa and its length indicated the complexity of the judicial issues involved.

Brody said the UPM were wonderful as clients, “because they had the best interests of the town, especially of vulnerable people, at heart…

“We hope this will be the start here of a new dawn,” Brody said. He said the precedent setting judgment would make it easier to achieve administration for dysfunctional municipalities. For example, a similar matter against Enoch Gijima Municipality would be heard in Queenstown in the coming weeks.

“As a lawyer, this has been one of the highlights of my practice,” Brody said.

The UPM’s Ayanda Kota thanked Brody as well as evidence gatherers Tim Bull and Daphne Timm “and other amazing people” for their part in the case. “The people have won, democracy has been served,” an elated Kota said. “People united are winners.”

In a statement, the Grahamstown Residents Association (GRA) congratulated the UPM on their emphatic win.

“We would also like to thank their legal team who have taken on a number of public interest cases for no pay, except for the prospect of a costs order against the other side,” Chairperson Philip Machanick said.

“This judgment is a clear warning to the government that being elected does not absolve you of carrying out your constitutionally-mandated duties,” Machanick said, referring to ongoing issues with water and at the municipal landfill… We further appeal to any who contest the election to replace the council to nominate candidates with the interests of the community at heart and who will work hard to turn things around.”

Appeal

Speaking to Grocott’s Mail soon after the judgment was released, ANC Regional Chairperson Scara Njadayi said the party was likely to encourage a joint appeal against the judgment.

“We are here to start looking at the judgment and its contents,” Njadayi said. “We’ve agreed we must appeal the judgment. [On Wednesday] we’ll be meeting with the leadership of the Provincial Executive to take them through our position.

“I won’t say there has been judicial overreach until we’ve looked at the gravity of the judgment and what is entailed. However, we will encourage the Makana Council and all the respondents to mount a joint appeal. This is a precedent for Makana and the whole country – it’s going to be a problem if it is left unattended.”

The Democratic Alliance (DA) in the Eastern Cape welcomed the judgment.

The party’s provincial leader Nqaba Bhanga said, “The current failing ANC government has run this once prosperous municipality into the ground. Years of maladministration, the total collapse of service delivery, massive Eskom debt, the growing water crisis and several audit disclaimers by the Auditor-General are only a few examples of how the ANC has failed the people of Makana.”

Bhanga said the court had also set a positive precedent that could be used in defunct municipalities across the province.

Leader of the DA caucus in Council Brian Fargher said, “We fully endorse the statement of the provincial leadership and await developments on the ground locally.”

The South African Municipal Workers Union met Tuesday afternoon to discuss the implications of the judgment. Members were this afternoon in a memorial service for a colleague and so weren’t able to speak to us.

Makana’s dissolution is in terms of Section 139(5) of the Constitution.

The Judge’s order for the dissolution of Council and the appointment of an administrator is in terms of Section 139(5) of the Constitution. An application for leave to appeal to the Supreme Court must be lodged within 21 days of the judgment.

* Children’s faces in the main photo blurred in line with Grocott’s digital policy

 

Ayanda Kota of the UPM speaks to attorney Brin Brody from Wheeldon Rushmere & Cole during a break in the Unemployed People’s Movement’s bid to have Makana Municipality put under full administration in the High Court in Makhanda on Thursday 12 September 2019. Photo: Sue Maclennan

UPM celebrates Makana judgment

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