High Court gives Makana Municipality tongue-lashing over attempt to appeal landmark verdict

Judge says government “ought to be hanging their heads in shame”

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A Makhanda High Court Judge has given a scathing ruling against the Makana Municipality (located in Makhanda, formerly Grahamstown), rejecting its appeal against a judgment that dissolved it for violating its constitutional mandate. Photo: Tim Giddings (via Wikipedia, public domain)

Judge Inga Stretch of the Makhanda High Court has given the Eastern Cape government and the Makana Municipality a tongue-lashing before rejecting their bid to appeal a landmark ruling, made against the Makana Municipality in January.

The ruling in January ordered the municipality to be placed under administration for violating its constitutional mandate by failing to provide basic services to the community. The application had been brought by the Unemployed People’s Movement (UPM) and other civil society organisations against the municipality, which was the first respondent, and several others in February 2019. It accused Makana Municipality of corruption, failure to provide water and sewerage services, and serious neglect of municipal infrastructure. The applicants were represented by Wheeldon, Rushmere & Cole.

The government’s argument for leave to appeal was based on the principle of separation of powers. The application for leave to appeal argued that the court did not have the power to dissolve an elected council. It also argued that the original judgment did not acknowledge the improvements to service delivery since the adoption of a financial recovery plan in 2015.

In a written judgment on Thursday, Stretch said that the provincial and local government “ought to be hanging their heads in shame”.

Stretch upheld the right of the court to dissolve a sitting council, saying: “The municipality’s behaviour was inconsistent with the Constitution and therefore unlawful, and having declared that jurisdictional facts for mandatory intervention in the municipality’s affairs were indeed present … the court in my view, was not only entitled but mandated to invoke the provisions of 172 (1) (b) [of the Constitution]… to make any order as long it is both just and equitable.” (Section 172 of the Constitution deals with the power of the courts in constitutional matters.)

Stretch said that there was an “absence of any rebutting evidence from the municipality, on the contrary, the municipality, by virtue of its inaction, has not approved any measures necessary to give effect to the [2015 financial] recovery plan”.

The parties have 21 days to file an application with the Supreme Court of Appeal.

In a statement, spokesperson for the UPM, Ayanda Kota dedicated the victory to the late Gladys Mpepo. She was a founding member of the UPM who was instrumental in the UPM’s court case against the municipality. She died last week.

The municipality did not respond to our questions by the time of publication.

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