Makana, Province lose bid to appeal UPM judgment

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Judge Igna Stretch has dismissed Makana’s bid to appeal her 14 January order for the Council to be dissolved and ordered that it be immediately implemented. In a scathing judgment handed down today, she said of the Province and the Municipality, “the left hand doesn’t know what the right hand is doing” and that the way Makana’s situation had been handled was “embarrassing”.

Her January order came at the end of a 117-page judgment that said Makana’s failure to ensure the provision of services to its community in a sustainable manner, to 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 breached sections 152(1) and 153(a) of the Constitution and the Municipality was therefore declared invalid.

The order said all the conditions for full administration existed in Makana Municipality. Judge Stretch ordered the Eastern Cape Executive to immediately implement a recovery plan to make sure the municipality provided basic services and met its financial commitments. She instructed 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.

Hours after that order was handed down in the high court in Makhanda, the ANC’s regional leadership indicated they would encourage the government entities among the 15 respondents to appeal it.

The law allows for an order to be suspended pending an appeal. Fearing further delays, lawyers for the applicant, the Unemployed People’s Movement, filed a Section 18 application.

Section 18 of the Superior Courts Act 10 of 2013 allows for an order enforcing the judgment and the orders it makes, if leave to appeal is granted. The State respondents opposed this Section 18 application.

The Province and Makana’s application for leave to appeal and the UPM’s Section 18 application were heard in a single virtual court sitting on 8 May 2020.

In the original matter, lawyers for Makana and the Province argued that the principle of the separation of powers* meant the Judge couldn’t issue an order that would affect a democratically elected institution (i.e. the Council). This remained a core argument in the appeal bid earlier this month.

In today’s appeal judgment, Judge Stretch upheld the court’s right to make such an order, saying, “During the main application it was argued on a number of occasions that the municipality was guilty of “unlawful activity” and in breach of the terms … the Constitution…  once a declaration of unlawfulness or invalidity has been made, this court was ‘empowered by the Constitution, beyond any subordinate legislation, to issue an order which is just and equitable’.

The Judge suggested that the court would have considered ordering national intervention.

“Makana’s particular situation and the way in which it has been handled thus far is so embarrassing at so many different levels that, had National intervention been called for (as provided for in section 139(7) of the Constitution) this court would have been constrained to have given serious consideration to granting such relief.”

Section 139(7) says if a provincial executive cannot or does not adequately exercise its powers or perform its functions, the national executive must intervene instead.

In an excoriating criticism of the appeal bid, Judge Stretch says, “In the premises the respondents throughout can hardly be heard to defend themselves and claim good prospects of success on appeal, based on academic nit-picking about choices of phrase from laypersons whose only claim is and has been, to vindicate the Constitution… the respondents have egg on their face. They ought to be hanging their heads in shame.”

With regard to the Section 18 application, the Judge said on the basis the Province and Municipality were denied leave to appeal, the original order was no longer suspended.

Costs for the Section 18 application were reserved on the basis that the respondents might escalate their application to appeal, meaning a possible new Section 18 application.

In the application for leave to appeal, the UPM were awarded the costs of two counsel.

The applicants (Makana and the Province) have 21 days in which to file a new application with the Supreme Court of Appeal.

Reacting to today’s judgment, Makana Mayor Mzukisi Mpahlwa said they were obviously disappointed with it.

“We will have to study it and consult our lawyers on the way forward,” Mpahlwa said.

Briefing attorney for the UPM Brin Brody said  they were delighted with the decision.

“We hope that sanity prevails and that this decision is now accepted and that ratepayers’ money is not wasted on further appeals.”

The UPM’s Ayanda Kota said, “Once more, the will of the people has prevailed… justice has been served. They must pack their bags and close the door.”

According to South Africa’s Constitution, the power of the state is divided between three different but interdependent components namely the executive (Cabinet), the legislature (Parliament) and the judiciary (courts of law).

READ THE JUDGMENT (AT THE BOTTOM OF THIS PAGE)

Izak Smuts SC consults with advocate Thandwefika Mgidlana ahead of a virtual court hearing on 8 May.

IN THE VIRTUAL COURTROOM

Appearing for the UPM in the 8 May court sitting conducted via video conferencing were Senior Counsel Izak Smuts with Gavin Brown and Thandwefika Mgidlana, briefed by Wheeldon, Rushmere & Cole’s Brin Brody.  Counsel for the Province was Jan Heunis SC with Port Elizabeth Advocate Bevan Boswell JC, instructed by Whitesides Attorneys. For the Municipality was Ismail Jamie SC with Thembelani Mayosi  with Netteltons as Attorneys of Record. The lawyers and the Judge were dressed in full court attire (or at least the parts visible to their laptop cameras were).

Along with the usual video conferencing issues of getting everyone on stream, and dealing with awkward or noisy home backgrounds, there were some amusing moments.

Jan Heunis SC argues for the Eastern Cape Province in a virtual courtroom on 8 May.

As support staff in the background battled technical issues, Heunis told Judge Stretch that her sound had been off.

“I’m sure you would like to switch me off permanently,” she joked.

Some way into his submission, Heunis put forward the argument that in order for the drastic measures in the Judge’s 14 January order to be valid, it would have to be proved that Makana’s situation was extraordinary.

In a bizarre logical contortion, Heunis said the UPM couldn’t just say how bad the situation was in Makana: all South Africa’s municipalities were in ruin, he argued, and the UPM should have proved that Makana was worse than anywhere else.

“The applicant hasn’t tried to show that bad as service delivery is in Makana, it is not exceptional,” Heunis said in the 8 May sitting. “It is notoriously the fact that municipal governance across the country is in a lamentable state. It is up to [the UPM]to show that Makana is an exception… The fact that the situation is far from ideal does not mean it is an exception.”

Heunis and Jamie both argued against the original order for dissolution on the basis of irreparable harm to the respondents.

The Judge asked each in turn what that respective harm would entail.

In the Province’s case, Heunis said, it would interrupt the turnaround process under way and deprive the Province of its Constitutional authority.

Jamie said the irreparable harm that the dissolution order would cause the Makana Council was existential, because if it were dissolved, it wouldn’t exist.

Also among the State lawyers’ arguments (originally and in the appeal application) was that the section of the Constitution used to justify calling the municipality invalid (i.e. and that it should therefore be dissolved) was the wrong one. The judgment should have referred to section 152(2), not 152(1), they argued. Section 152(2) obliges municipalities to strive, within their financial and administrative capacities, to achieve certain service delivery and other objectives.

“You cannot declare a failure to be invalid” was another logical contortion.

It was countered by Smuts, who said, “You can’t declare a failure to be invalid. You can declare failure to meet a constitutional obligation to be invalid. A failure can constitute a breach of the Constitution and be declared invalid, as the Judge did.”

Appeal bid judgment on UPM vs Makana and others_21052020_151055

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