Makana loses bid to appeal

Municipality must be placed under administration

The Grahamstown High Court has dismissed an application for leave to appeal by Makana Municipality and the provincial government against the court’s earlier decision to place Makana under administration.

The case against Makana was launched more than a year ago by the Unemployed People’s Movement (UPM), which argued that the municipality had failed to fulfil its constitutional obligations, leading to deteriorating basic services and financial ruin in Makhanda.

The Eastern Cape premier was named as first respondent, with other respondents being the Eastern Cape Executive Council, the MEC for cooperative governance and traditional affairs, the MEC for treasury, economic development and tourism, Makana Municipality, the mayor and municipal manager in their individual capacities and the Makana council.

The high court ruled in January that the Eastern Cape Executive Council dissolve forthwith the Makana council and take certain steps including the appointment of a temporary administrator and the approval of a temporary budget and other measures to keep the municipality functioning.

Makana and the province indicated their intention to appeal the judgment and the council was allowed to remain in office and the municipality continue operating as normal until the hearing.

It was contended on behalf of the respondents (Makana and the province) that another court would overturn certain findings and set aside certain orders made by the high court on the grounds that the court erred or misdirected itself.

Makana and its co-respondents argued that failure to do something cannot be declared invalid. They also contended that no argument had been made that failure to act triggered Section 172(1)(a) of the Constitution, which states: “When deciding a constitutional matter within its power, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency”.

In her judgment last week, Judge Igna Stretch said she disagreed with the respondents. “During the main application it was argued on a number of occasions that the municipality was guilty of ‘unlawful activity’ and in breach of the terms of Section 152 and the provisions of Section 153 of the Constitution, and that once a declaration of unlawfulness or invalidity has been made, this court was ‘empowered by the Constitution, beyond any subordinate legislation, to issue an order which is just and equitable’.”

With respect to the contentions that the court had erred in declaring failure to act invalid/unlawful, the judge said: “I am of the opinion that there are no reasonable prospects that another court would differ from this court’s findings. In my view the approach which this court adopted, as stated in its judgment, was both just and equitable in that it reflected a balanced approach between the concerns expressed by the applicant and those expressed by the provincial respondents, which concerns were not disputed or addressed by the municipal respondents.”

As for province’s contention that the court had erred in making an order for relief in terms of Section 139(5) of the Constitution – instead of Section 139(1), Judge Stretch pointed out that the MEC for Cogta had already resolved to implement a recovery plan, so the respondents were not prejudiced by the order to do so.

“I have difficulty in understanding to what extent the UPM was expected to present more evidence, against an admitted background that a recovery plan has been in place since 2015 and that the municipality failed to implement it – without giving any reasons for its failure to do so – and that the provincial executive simply did nothing about it,” Stretch said.

“As already stated in the judgment in the main application, the respondents have egg on their face. They ought to be hanging their heads in shame.”

This will be the second time that Makana has been placed under administration. In 2014, the province appointed Pam Yako as administrator for nine months, for which she was paid about R300,000 a month – working only three days a week. Her administration was widely criticised for achieving no meaningful results.

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