The Forthcoming Municipal Elections - Against The Background Of Local Government Disorder

Introduction

This brief explores the current state of local government in South Africa. Since many municipalities fail to provide basic services to their communities, individuals have taken it upon themselves to find ways in which to hold their administrations accountable. They have encountered marginal successes and some failures in seeking to do so. With the municipal elections now before us, it is a good time to assess the value of these attempts to enforce accountability.

What is the role of local government exactly?

Local government plays a crucial role in South Africa’s political system, as it is the level of government where basic everyday service delivery takes place and where citizens engage with government. It has been defined as the ‘sphere of government located within communities which is well-placed to appropriately respond to local needs, interests and expectations of communities’.[i] The role and purpose of local government is succinctly set out in section 152 of the Constitution of the Republic of South Africa which states that:

(1) The objects of local government are –

(a) To provide democratic and accountable government for local communities;

(b) To ensure the provision of services to communities in sustainable manner;

(c) To promote social and economic development;

(d) To promote a safe and healthy environment

The Constitutional Court has stated that ‘a local government is enjoined to strive, within its financial and administrative capacity, to achieve, among others, its object of ensuring the provision of services to its communities in a sustainable manner’.[ii]

With local government elections coming up on 1 November 2021, the state of individual municipalities are under close scrutiny. However, there are weekly news reports about poor service delivery, lack of accountability and the manner in which this affects those living in precarious and unhygienic conditions. A closer look at these failing municipalities will give some insight into where the problems lie, as well as what can be done by affected communities and individuals.

The problem: the state of municipalities nationwide

There are currently 257 municipalities in South Africa, comprising metropolitan, district and local municipalities.^[iii] The core function of these municipalities, and their constitutional obligation, is to provide basic service delivery to the people living under their administration.[iv]The Constitution[v] provides that the following service provisions fall within the ambit of local government and its municipalities: water, electricity, town and city planning, road and storm water drainage, waste management, emergency services, licences, fresh produce markets, parks and recreation.

In the 2018/2019 Consolidated report on the local government audit outcomes (“the 2018/2019 AG Report”) the Auditor General (“AG”) found that:

‘When looking across the board and after carefully analysing the financial statements we audited, we can safely conclude that local government does have sufficient money and assets to fulfil most of the basic needs and aspirations of its citizens. But a lot of work is needed to make sure that this is realised’.[vi]

If there is sufficient funding for it to fulfil most of its obligations, then why is our local government in such a dire state?

Although corruption would seem to play an important role in many failing municipalities, it is not the only cause. There are other challenges, such as the ‘administrative capacity and institutional performance to drive service delivery, as well as effective implementation of government policies and programmes’.[vii]

Furthermore, many municipalities do not have adequate financial management capacity in place to ensure that finances are dealt with in an appropriate and ethical manner. As a result, the 2019/2020 Auditor General Report stated that there is significant doubt that over a quarter of municipalities will be able to continue operating as a going concern in the near future.[viii] What will happen to these municipalities, if left without assistance, is uncertain.

The level of skill and qualification of municipal workers has received increasing public attention, with harrowing reports about underqualified staff and employees receiving undue benefits. For example, the Msunduzi Municipality in Pietermaritzburg conducted a physical head count of employees and found that over 100 persons listed on the payroll were either dead or had resigned.[ix] This phenomenon known as ‘ghost employees’, is a feature which has become increasingly common within failing municipalities. The true figure of wasted expenditure in this regard is unknown.

In terms of accountability, there are Constitutional checks and balances in place to ensure that municipalities function. According to National Treasury, ‘disciplinary processes have been started against 79 municipal officials for financial misconduct in 15 municipalities for the 2020/21 financial year’.[x] The eThekwini Metropolitan Municipality in Kwa-Zulu Natal has instituted disciplinary processes against 29 people during this period.

There is also the possibility of provincial intervention. The Constitutional Court has highlighted that ‘national and provincial governments must, by legislative and other measures, support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions’.[xi] Section 139(1) of the Constitution provides for ways in which provincial governments can intervene in failing municipalities. It provides that the

‘relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including-

(a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;

(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary to-

(i) maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or

(iii) maintain economic unity; or

(c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step’.[xii] (My emphasis)

According to section 139(1)(c) of the Constitution, a municipality may be placed under administration whereby the provincial government takes control for a limited period of time in order to deal with the specific issues that placed the municipality under administration in the first instance. This measure was meant to be used as a last resort in instances where the elected municipal council has suffered a systemic failure and was in desperate need of intervention.

To place a municipality under the administration of an unelected representative in this manner, constitutes obvious interference with the constitutional obligation of the municipal council, which had been elected by the community itself. The application of these provisions would indicate the dire state of the municipality in question.

Although envisaged as a one-time remedy, this route has not been found to be very effective, as most municipalities who are placed under administration, find themselves back under the supervision of the provincial government months or years later. The Makana Local Municipality in the Eastern Cape (formerly known as Grahamstown) has been placed under administration on two occasions between 2014 and 2017, with no successful outcome. Another example is the Ditsabotla Local Municipality in the North West which has ‘been under section 139 intervention on numerous occasions’ and now faces dissolution as a result of internal political battles.[xiii]

Many municipalities in South Africa are facing a series of different challenges. The question that needs to be answered is: what recourse is available to South Africans who reside in municipalities where service delivery is lacking and where there is no accountability in this respect?

What has been done? Successes and failures

Individuals, private entities and communities have engaged in three types of action against failing municipalities.

The first is by protesting and rioting. The second is a rates payment boycott. The third, which is becoming increasingly popular, consists of legal action in the courts in an attempt to get a binding, lawful result against these municipalities. Do these responses provide viable solutions for residents who are confronted with dysfunctional local government?

Service delivery protests

Most commonly known as ‘service delivery protests’, communities have taken to protesting in the form of large group gatherings, which sometimes leads to rioting. Protesting in this manner has been condemned for the physical violence it entails as well as the damage to property which often accompanies it. Although such action may enable communities to give vent to feelings of frustration and desperation, they do not have a successful record of effecting actual change.

The withholding and boycotting of rates

Another form of protesting has emerged where communities have simply withheld or boycotted rates. The former has been referred to as a ‘temporary measure forced upon the community by municipal failure’,[xiv] whilst the latter takes on a longer lasting form.

In essence this form of protest comprises the withholding or non-payment of rates and fees to municipalities who are not fulfilling their duties for service provision of water and electricity as well as road maintenance and other municipal obligations.[xv]

The only lawful basis that this action may be grounded in can be found in the Constitutional Court case of Rademan v Moqhaka Local Municipality[xvi] where the Constitutional Court stated that ‘there is no obligation on a resident, customer or ratepayer to pay the municipality for a service that has not been rendered’.[xvii] The threshold would be for the Applicant to show that the municipality rendered no services at all - since the Constitutional Court held that a municipality may consolidate different components of a resident’s account, such as an electricity account, with a municipal rates and taxes account, in order to justify cutting off electricity supply for non-payment of such other accounts. Therefore, it is only if the municipality does not supply any services whatsoever, that this action may be justified.

It has been found that even though this nuanced form of protesting in the form of the withholding of rate payments is motivated by the same frustration as physical riots and protests, it is a ‘‘new’ form of protest action emanating from a different quarter within South African society, namely ‘white, professional people from traditionally ‘well-off’ communities’.[xviii] According to a research project conducted by the Community Law Centre, the withholding of rates is usually done only after a failure in service delivery is identified, and ratepayers have formed a ratepayers’ associations (“RA”) to represent their interests.[xix] The RA then withhold payments of rates and rather deposit the money into a private interest-bearing trust account. Once the municipality performs, ratepayers claim that they are willing to withdraw the money deposited in the private trust account and pay for the services received. In the meantime, the RA is able to withdraw interest accumulated in order to effect service delivery to the area concerned. The full research report compiled by the Community Law Centre on rate withholding can be found here.

While this may at first sight seem like a viable solution, it can also be seen as having detrimental effects on a democratic society. First, there is no lawful reason for withholding rates from municipalities, except for the exception mentioned above, and this action will only serve to ‘undermine the rule of law and the constitutional authority of the state’.[xx] Local Government has stated that ‘withholding taxes further frustrates delivery’,[xxi] and that ‘resorting to protest such as this does nothing but frustrate both ratepayers and municipalities. We especially encourage direct and robust communication rather than resorting to protest such as this.”[xxii]

Although there hasn’t been a specific case brought in regards to the withholding of rates, the Constitutional Court ruling on the boycotting of rates (as mentioned above), we would assume that this would also apply to the withholding of rates as a different form of ‘self-help’.

The boycotting of rates has also been severely critisised by the Constitutional Court in the case of City Council of Pretoria v Walker,[xxiii] where Justice Langa held that:

“Local government is as important a tier of public administration as any. It has to continue functioning for the common good; it however cannot do so efficiently and effectively if every person who has a grievance about the conduct of a public official or a governmental structure were to take the law into his or her own hands or resort to self-help by withholding payment for services rendered. That conduct carries with it the potential for chaos and anarchy and can therefore not be appropriate. It is pre-eminently for the courts to grant appropriate relief against any public official, institution or government when there are grievances. It is not for the disgruntled individual to decide what the appropriate relief should be and to combine with others or take it upon himself or herself to punish the government structure by withholding payment which is due.”

So it is over to the Courts

As Justice Langa pointed out, it is for the courts to ‘grant appropriate relief against any public official, institution or government when there are grievances’.[xxiv]And as a result a new trend has started in the last few years where disgruntled communities have taken their disputes to the judicial system in order to get some sort of binding and lawful type of outside intervention.

Case studies

During the course of 2021, there were more than three cases before the High Courts of South Africa concerning dysfunctional municipalities. These cases have been brought by the South African Human Rights Commission (SAHRC), civil society groups and private entities.

In April 2021, Astral Foods, a leading poultry producer in South Africa, obtained an order from the High Court against the Lekwa Municipality in Mpumalanga for its failure to provide basic service delivery in line with its constitutional obligations. The Court ordered the national government and Treasury to prepare a financial recovery plan for the municipality.

In May 2021 the SAHRC successfully applied to the Pietermaritzburg High Court for a declaratory order and structural interdict against the Msunduzi Municipality in Kwa-Zulu Natal. The SAHRC instituted an urgent application for human rights violations as a result of a poorly managed landfill site which caused home evacuations and an unhealthy environment. The Municipality was found to have breached the Constitutional right to a healthy environment and ordered to file an action plan with the court within one month.

Although the filing of action plans has been welcomed by some communities, this manner of accountability has not been found to be effective in solving the many diverse issues facing the municipalities concerned. This is why the case of Kgetlengrivier Concerned Citizens v Kgetlengrivier Local Municipality has been revolutionary, with the court using its powers to authorise the concerned citizens group, a ratepayers’ association, to run the sewerage works as a drastic form of intervention.

In this case, the ratepayers’ association approached the High Court in the North West Division with an urgent application regarding the failure of the Municipality to provide adequate potable water for residents and to prevent the Municipality from polluting two rivers with untreated sewage.

In the interim order, the Court interdicted the Kgetlengrivier Local Municipality from allowing raw sewerage to overflow into the Koster River. The Kgetlengrivier Concerned Citizens group were authorised to monitor the situation for 10 weeks and to employ experts in order to compile a comprehensive report for the Court. The Municipality was given until 1 March 2021 to show why the interim order should not be made final. Furthermore, the court held that the residents’ association would be authorised to take control of the sewerage works if the sewage pollution and water provision issues were not resolved within 10 days.

One feels that the relief granted in this judgment is in principle long overdue, with the court recognising that provincial and national intervention have not assisted in helping to bring failing municipalities into a more functional state. However, in South Africa’s democratic society it is not clear whether such an outcome can be constitutionally mandated. For instance, commentators have stated that by allowing residents to take on Municipal functions, the court has ‘essentially ordered the outsourcing of municipal service delivery to an un-elected group of residents.’[xxv] Furthermore, if done in this manner, certain available legal processes will be ignored - such as the Municipal Systems Act, which sets out the legal requirements for outsourcing municipal functions and the legal avenues through which residents can participate in local government affairs.

In the short term this judgment may provide some assistance, specifically for municipalities such as the Kgetlengrivier Local Municipality, but it is difficult to see how it can be sustainable in the long run. The North West High Court has directed the Kgetlengrivier Concerned Citizens to hand back the administration of the water plant to Magalies Water and the Municipality. This decision has been welcomed by the MEC for Cooperative Governance, Human Settlements and Traditional Affairs, Mmoloki Cwaile.[xxvi] The main reasons given by the MEC include the fact that the plant was being run by ‘private persons’ who are ‘unauthorised’ to do so.[xxvii]

Authorising residents to take over functions of the State cannot provide a long term solution, but if this is not the solution then what is?

What is the way forward?

One thing is clear - residents and businesses are tired of waiting for Municipalities to fulfil their constitutional obligations and are taking matters into their own hands. Forms of ‘self-help’ such as the boycotting and withholding of rates have not been approved by the Constitutional Court. The only viable legal remedy therefore seems to be to approach the courts for an order against the municipality and patiently wait for this route to take its course - which may take a very long time, if appeals are lodged against judgments. In addition, it is clear that potential problems are created if unelected communities are permitted to take over functions specifically delegated to a Municipality.

Therefore, for all the reasons set out above, the forthcoming local government election on 1 November 2021 is the most critical tool that communities can use in choosing to hold their municipalities accountable. By voting, communities can choose who runs their affairs and they are able to ensure that those who have taken part in the degradation of the municipality are no longer present on the Council. If, however, the outcome of the electoral process does not evidence a change in this regard, it can be expected that the Courts will be approached to take a more hardline attitude to ensure that local government is able to deliver the services that communities desperately need.

Sophie Smit
Legal Researcher
sophie@hsf.org.za

[i] S Koma, Journal of Public Administration, Vol 45 no 1.1 ‘The State of South Africa: Issues, Trends and Options’ (June 2010). Available here.