Politicians, lawyers wrestle Makana matter

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At the very moment a select Parliamentary Committee was discussing Makana’s recovery status during a virtual sitting last week, lawyers for the Unemployed People’s Movement were at work in their Makhanda offices on putting together evidence that they believe shows the municipality is beyond redemption.

On Tuesday 25 August, the UPM’s lawyers Wheeldon Rushmere and Cole were compiling a document to persuade the judiciary that without further delay, Judge Stretch’s 14 January order must be effected – the Grahamstown High Court ruled at the beginning of 2020 that Makana Council be dissolved and the municipality be put under full administration.

The UPM’s supplementary replying affidavit is in response to a supplementary answering affidavit from the Municipal Manager dated 21 August. They are a response and counter-response to a Section 18 application by the UPM. This, if successful, would force the Province to immediately put into effect the January ruling – even while the Province and Makana await an appeal date.

A recap of the sequence of events:

  1. 14 January 2020: In the first judgment of its kind in South Africa, Judge Igna Stretch rules that the Eastern Cape’s Provincial Executive must dissolve Makana Municipality and appoint an administrator until a new Council is elected. The Mayor and Municipal Manager in their personal capacities faced a punitive cost order, as did various national and provincial government entities. The Judge 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. All the conditions for full administration existed in Makana Municipality and the Eastern Cape Executive must immediately implement a recovery plan to make sure the municipality provided basic services and met its financial commitments. The Judge 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.
  2. Days later, both the Province and the Makana Council voted to appeal the judgment. Premier Oscar Mabuyane later explained this was on the basis of arguments around the alleged incorrect interpretation of legislative provisions, and the doctrine of separation of powers (legislative versus judiciary). The law allows for an order to be suspended pending an appeal. Fearing further delays, the UPM’s lawyers filed a Section 18 application for the ruling to be enacted immediately – i.e. without waiting for the appeal to be heard.
  3. In a scathing appeal judgment handed down on 21 May, Judge Stretch 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”. She dismissed the application to appeal with costs. The Section 18 application was heard in the same (virtual) sitting as the appeal. Because the Province and Municipality were denied leave to appeal, the original judgment (ordering the Province to put Makana under full administration) was no longer suspended.
  4. But the Province and Makana have taken their bid up to the Supreme Court of Appeal. The UPM’s Section 18 application will be heard in a virtual sitting on 18 September.
  5. The Judge allowed the filing of supplementary affidavits. Makana Municipal Manager Moppo Mene filed his supplementary answering affidavit on 21 August. The UPM’s reply is dated 25 August.

Meanwhile in Parliament

The UPM vs Makana judgment was described as a landmark one because, among other effects, it could set a legal precedent that would affect municipalities (and their political and administrative leadership) across the country. This titanic legal wrestle was echoed in Parliament’s Select Committee on Co-operative Governance and Traditional Affairs, Water and Sanitation and Human Settlements this week.

Chair China Dodovu asked Cogta MEC Xolile Nqatha and Makana Mayor Mzukisi Mpahlwa to account for Cogta and Makana. For the Provincial Executive, Charity Sihunu spoke. While no longer a Member of Parliament in the National Council of Provinces, the DA’s Mlindi Nhanha was invited as an Eastern Cape constituency representative. Nhanha is also a former Makana councillor.

Nqatha said there was currently a Section 139.5 intervention under way in Makana. Key vacant positions (CFO, municipal manager) had been filled, meaning there was institutional stability. He cited an improved audit, better revenue collection, infrastructure upgrades and proper HR policy as among the new achievements.

Since May 2019 the municipality had been under Section 139.5 (financial intervention), securing the municipality’s obligations to meet its service delivery and financial commitments. Cabinet had resolved that rather than a single administrator, various task teams from government entities including Cogta, the Department of Water and Sanitation and the Office of the Premier would do assessments and provide relevant support.

There were questions from MPs about the effectiveness and cost of successive administrative interventions in Makana, starting with Pam Yako’s stepping in on October 2014. Parliamentarians also asked questions why the Kabuso Report had not been acted on.

“Was there consequence management on all staff implicated?” asked Limpopo Province ANC MP Shahidah Shaik.

“Who is paying for all these court cases?” asked the EFF’s Sam Zandemela. “Appeal after appeal?”

“Makana owes us a report from 2016 to now,” said the IFP’s Simon Mfayela. “We want to know what happened. It is very rare to give an intervention without a time frame.”

The mayor speaks

Mayor Mzukisi Mpahlwa described his entry to Makana Municipality in 2019, three years after the new administration stepped in in 2016. He said Makana’s challenge was a financial one, made worse by a lower revenue collection rate under Covid-19: from 70% to 55%.

“We are trying our best within these financial constraints,” Mpahlwa said.

He outlined the infrastructure upgrade projects under way at the town’s water supply and sewage works, and said knowing they lacked capacity and financial muscle to properly address the landfill problems, they had appointed a company to manage the site.

“The situation is different than in 2014,” Mpahlwa said. “We are doing everything in our power within limited resources to deliver services. We are owed R600 million by residents. If we got all that money, would be able to pay all our creditors and still have enough to deliver services.”

‘Which Makana?’

Nhanha started with praise for Mpahlwa, saying, “He was Mayor long before the current mess and he left it in a very good financial state.”

At some point in the 90s, Makana had been regarded as a strategic municipality in the Eastern Cape with R60m in reserves.

“The rot started after the 2011 local government elections,” said the former Makana councillor, who in 2019 was seconded by his party to the National Council of Provinces.

Nhanha, who sat on several local government committees during his time at Makana, explained that during the implementation of the first financial recovery plan, a new administration, and a new plan, had been brought in.

“But even that one has not been implemented,” Nhanha said.

He spoke of a bloated (more than 600 instead of the 370 required for a municipality of Makana’s size) and poorly managed workforce; overpaid middle managers who had little to do other than provide proof of address to residents.

He challenged the assessment by the Province’s lawyer, Charity Sihunu, that the situation was different from 2014.

“It is,” Nhanha said. “From 2014 to now, the potholes have multiplied. I don’t know which other Makana they are helping to get off its knees. From being a strategic municipality in the province, today it’s on its knees,” Nhanha said. “All that’s required is bold action from the provincial government and the Council.”

Nhanha agreed with the Mayor’s assessment that Council was compliant.

“It has every statutory body and conducts every statutory meeting. But do ratepayers get comfort in statutory compliance, or service delivery?” he asked.

“I live there and there is absolutely no service delivery.”

Nhanha said the UPM’s successful application to have the Council dissolved enjoyed of the support of the majority of residents.

“Have you bothered to check?” he asked the Province’s lawyers. “Your preoccupation as provincial government is nothing other than to prevent a precedent.

“Ratepayers and residents matter most – not precedents and assumptions.”

THE SECTION 18 AFFIDAVITS

The Section 18 application by the UPM will be heard on 18 September. It seeks to have the Grahamstown High Court’s 14 January order immediately effected. Here is a summary of the Municipal Manager’s and the UPM’s latest affidavits on this matter:

Mene’s affidavit includes that:

  • It is inaccurate and unfair to describe Makana Council’s attitude as not caring about the issues raised in the UPM’s application;
  • Council approved a 19% increase in refuse removal fees for 2020/21 in order to meet operational requirements;
  • Council approved a 6.25% across the board salary increase because this was decided in SALGA’s central bargaining council and Makana had no say over it;
  • Makana is complying with payment plans to Eskom and Amatola Water, among other creditors;
  • Sewage breakdowns and spillages are the case with most municipalities, especially those with financial constraints, and many are caused by misuse of the sewerage system;
  • While there have been significant water interruptions, upgrades are under way to increase and secure the water supply;
  • Work is being done by a contractor to improve conditions at the landfill site and operate it correctly;
  • There are lots of potholes, but this isn’t because the municipality isn’t concerned about the state of the road system

 

The UPM’s reply says that:

  • An entire car crashed into a large hole in Fitzroy Street on 20 August. The hole had remained open for a week despite attempts by residents in the area to have the repair completed and the hole closed. Makana’s lack of response was proof of its poor attitude.
  • A municipality is fully entitled to apply to SALGA for an exemption from salary increases
  • The UPM attaches photographs to back up its statement that the position at the landfill site had worsened, not improved.
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