EC government should 'hang head in shame' for failing Makana people - judge

Judge Igna Stretch said the Eastern Cape government and Makana municipality had failed the citizens of Makana. The judgment was a victory for the Unemployed Peoples’ Movement which says Makana has suffered under a 'useless regime that collapsed every aspect of governance'.
Judge Igna Stretch said the Eastern Cape government and Makana municipality had failed the citizens of Makana. The judgment was a victory for the Unemployed Peoples’ Movement which says Makana has suffered under a 'useless regime that collapsed every aspect of governance'.
Image: 123RF/skycinema

The Eastern Cape government may have to immediately dissolve the Makana municipal council after its application for leave to appeal a judgment ordering it to do so was dismissed on Thursday.

In dismissing the application for leave to appeal, judge Igna Stretch said the province and municipality “had egg on their faces” and should “hang their heads in shame” for the way they had failed the citizens of Makana, reports SowetanLIVE's sister publication DispatchLIVE.

Stretch earlier this year ordered the provincial executive to dissolve the beleaguered Makana council “forthwith” and appoint an administrator until a new council was elected.

She said the municipality had consistently contravened the constitution by failing to sustainably provide services to the community or to structure and manage its administration, budget and planning process.

She ordered the provincial executive to immediately impose a recovery plan aimed at securing the Makana municipality’s ability to meet its financial and service delivery obligations.

She suggested a recovery plan drafted after the previous provincial intervention in 2015 — which had never been implemented — could serve as the basis for a comprehensive recovery plan.

The order followed a high court application by the Unemployed Peoples’ Movement (UPM), which maintained that the citizens of Makana had suffered long enough under a useless regime that had collapsed every aspect of governance.

But both the Makana municipality and the provincial executive sought leave to appeal the judgment, claiming Stretch had entered the realm of the executive in her order and that her judgment could open the floodgates to litigation leading to other councils in similarly dysfunctional municipalities being dissolved.

They said she had erred in directing the provincial executive to act in a certain way to address the situation in Makana when it had already taken a decision to intervene in a less drastic way.

The executive said it had intended stepping in to intervene in terms of section 139 (5) of the constitution. This is a less drastic step, in terms of which provincial government would impose a financial recovery plan on the municipality rather than dissolve the council.

But Stretch found it had already followed this course in 2015 and the financial recovery plan imposed on the council by the administrator had never been implemented. What should follow after such a failure was the dissolution of the recalcitrant council. But the provincial executive had instead done nothing for four years.

She said the left hand had not known what the right hand was doing for a substantial period.

“Indeed Makana’s particular situation and the way it has been handled thus far is so embarrassing at so many different levels that, had a national intervention been called for ... this court would have been constrained to have given serious consideration to granting such relief.”

She said given the long history of the dysfunctional municipality and the fact that its council blatantly ignored solutions specifically formulated for it to implement, and the fact that the provincial executive did not bother to intervene to address this, she believed no other court would find differently to the way she had.

Stretch dismissed the claim that her judgment set a precedent for the dissolution of other councils across the country. She said her decision was made on a unique set of circumstances and a long history of non-compliance.

Stretch’s decision to reject the application for leave to appeal means that the UPM’s application to have the judgment immediately implemented pending an appeal falls away.

The UPM’s delighted Ayanda Kota said the people had won.

“History tells us that the people will always win.”

The UPM’s attorney, Brin Brody, said he hoped sanity would now prevail and that the decision would be accepted without any further appeals or wastage of ratepayers’ money.

“We need normality restored in Makana now.”

The province still has the option of petitioning the Supreme Court of Appeal for leave to appeal.

Premier Oscar Mabuyane’s spokesperson Mvusiwekhaya Sicwetsha said the executive committee would “discuss the matter soon”.

Brody said the municipality and the province had 21 court days within which to petition.


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