The short answer
There are processes in place for this, but it is usually more effective to organise as a community.
The whole question
Port Elizabeth's dams are at an extreme low – we are likely going to need tankers soon. Sometimes we have leaks that go on for days before they get attended to. Surely this mismanagement and oversight is a gross dereliction of duty? Especially if the municipality is heading towards a tariff increase (apart from the ones already implemented).
How can we hold our officials and governance accountable, given the National Development Plan 2030? What processes are in place? Who do we report to? Surely municipalities are not exempt from the Consumer Protection Act?
The long answer
This is certainly gross dereliction of duty, as you say.
Before we get into the nitty-gritty of how municipalities are supposed to be held to account, municipalities do not fall under the provisions of the Consumer Protection Act (CPA). The CPA applies to goods and services supplied by the market, that is, private companies, rather than government.
The Constitution states that municipalities have the responsibility to make sure that all citizens are provided with services to satisfy their basic needs, and that they must fulfil these duties as best they can within the budget and capacity available to them. The municipal council has the authority to make all the policies (legislative authority) and decisions (executive authority) of the municipality.
The Municipal Systems Act lays down that all municipal councils must consult the local community about municipal services and must take the community’s views into account when deciding on the way services are delivered, the range and level of services provided, and policies and plans. The way that this consultation is supposed to happen is the following:
The date, time and venue of council meetings must be published so that the community can attend and participate, and the council must set aside space for the public in the meeting venues. All meetings of the council and its committees should be open to the public, including the media, except the executive committee meetings and the mayoral committee meetings. These committees are allowed to close any or all of their meetings to the public.
Municipalities are obliged to establish procedures for:
receiving and responding to petitions and complaints lodged by members of the community;
giving notice of public meetings, and allowing for public comment when appropriate;
holding consultative sessions with locally recognised community organisations and, where appropriate, with traditional authorities; and
reporting back to the local community.
This is what is supposed to happen in a functioning municipality. However, the majority of municipalities in South Africa currently are dysfunctional. The reasons for this have been analysed by many sources, and include political manipulation, corruption, lack of accountability and transparency, lack of capacity, poor internal management of finances, incompetent leadership, poor planning, poor monitoring and evaluation, and poor citizen participation.
As Mike Muller, visiting adjunct Wits professor in the School of Governance, wrote in an article for Business Day on 23 June 2021, " … most municipal water supply goes to poor households that struggle to pay for water used over and above their free basic allocations. And funds for those free allocations are paid by the Treasury to municipalities as part of their 'equitable share' grants, even though it is often used for other purposes. It will be difficult for community organisations to access the water and sanitation component of that equitable share since it is directed to municipalities by the constitution. That autonomy has allowed municipalities to fail, while in plain sight local politicians use money intended to provide basic services for patronage appointments or worse."
The Public Service Commission South Africa (PSC) and the Auditor General of South Africa (AGSA) have made the following recommendations to address these problems:
Increasing citizen participation in the affairs of the local authority and partnership with the community in service delivery,
Flexible response to service user complaints, offering value for money and ensuring that service users pay their bills on time,
Strategic public service planning and including capacity building and employee motivation and managing change,
Dealing with corruption and improving accountability
Partnering with other players and outsourcing services.
But as we know, these recommendations have not been taken seriously – in some municipalities, the water loss from lack of maintenance is as much as 77%.
Mike Muller again: "National and provincial government have often proven unable to intervene effectively. They have been hamstrung by the protections provided to local government by the constitution. The administrative requirements for intervention are onerous. And there are political costs, since local government leaders provide a political power base on which many provincial and national politicians depend."
So, what is to be done?
Increasingly, communities are taking steps to organise themselves and to take their municipalities to court for failing to carry out their constitutionally-mandated duty to provide essential basic services.
In 2019 the Unemployed People’s Movement (UPM) and other civil society organisations took the Makana municipality to court, and in 2020 the Makhanda (Grahamstown) High Court ordered the Makana municipality to be dissolved by the Provincial Executive of the Eastern Cape and placed under administration for failing to provide basic services to the community. The Provincial Executive, which was one of the respondents named in the case, has to put in place a recovery plan so that the municipality meets its constitutional mandate.
Since then, the Makhanda High Court has ordered the municipality to report to a judge on the management of sewage and water leaks, and has ordered the municipality to collect rubbish, after a street committee and a school governing body, represented by the Legal Resources Centre, took the municipality to court.
Some of the community activists in the case to have the municipal council dissolved have now established the Makana Citizens Front and they intend to stand in the forthcoming local elections.
Mike Muller in his Business Day article also notes that Section 51 of the 1997 Water Services Act allows the Minister for Water to establish a water services committee to provide water services to consumers within its service area if there is no viable alternative. The Minister would have to get agreement from the municipality concerned, as well as provincial and national government officials but it may well be that the courts would rule that a community could establish its own water committee. The courts would have to balance the rights of citizens to receive a basic water supply against the right of municipalities to receive their equitable share from Treasury.
In conclusion, it would seem that there is no alternative but to organise as a community if you wish to secure proper municipal functioning.
I include below a list of contact numbers provided by the government where complaints can be made by individuals, but experience shows that government is not that responsive to individual complaints.
The Presidential Hotline at 17737 can be used when all attempts to get help from a government department or municipality have failed with service delivery problems.
Tel: 17737 (1 PRES)
Fax: 086 681 0987 / 012 323 8246
E-mail: President@presidency.gov.za (link sends email)
Contact details: 0800 601 011
E-mail: email@example.com (link sends email)
Wishing you the best,
Answered on Oct. 29, 2021, 11:40 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.