Third time lucky? Provincial intervention in the Makana Local Municipality

• Author: Chamberlain, L.
• Published date: 19 May 2021
• DOI: https://doi.org/10.47348/SALJ/v138/i2a7
• Pages: 423-459
• Date: 19 May 2021

423

THIRD TIME LUCKY? PROVINCIAL

INTERVENTION IN THE MAKANA LOCAL

MU NICI PAL ITY

LISA CHA MBERLAIN†

Senior Lectu rer, School of Law, University of the Wit watersrand

THATO MASI ANGOAKO‡

Researcher, Socio -Economic Rights Institut e of South Africa

South Afric an local governm ent is plagued by nan cial mismanagem ent and poor

governanc e, resulting in widesprea d failure to realize socio- economic rights. O ne of

the key mechan isms envisaged by the C onstitution to address mun icipalities in cri sis

is provincia l intervention in te rms of s 139. However, although this mech anism is

frequently used, its re sults have been under whelming. This ar ticle discusses a rec ent

case in which the E astern Cape High Co urt, Grahamstow n ordered the dissolution

of the Makana Mu nicipal Council a s part of a provinci al intervention. T he article

unpacks the la w governing s 139 interventions a nd, drawing on the Makana e xample,

questions the e cacy of provin cial interventi ons. Further, a number of fa ctors are

identied whic h must be taken into cons ideration in order to maxim ise the chances

that a provinc ial intervention mi ght succeed. These i nclude whether man datory or

discretionar y intervention i s appropriate; whe n the dissolution of a munici pal council

is an appropr iate component of an i ntervention; the rel ationship between pro vincial

interventio n, stable governan ce and political in uence; and the timing, f unding and

institutional ar rangements of an inte rvention. The a rticle conclude s by highlighting

the important ro le that community act ivism can play in cata lysing intervention, b ut

draws attention to t he fact that such action can be da ngerous for the activists involved.

Provinci al intervention – s 139 of the Con stitution – socio- economic rights

– service delivery – commu nity activism

I IN TRODUCT ION

South Afr ican local government is plagued by  nancial m ismanagement

and poor governance, resulting in widespread failure to realize socio-

economic rights. While there are multiple factors contributing to this,

the poor and deteriorating state of municipal nances and accompany ing

nancia l misma nagement is a cr itical one. The Depar tment of Co-oper ative

Governance and Trad itional Aairs (‘CoGTA’) conrms the existence of

‘clear evidence of the di re nancia l situation of municipalities’.1 Co GTA’s

2009 State of Local Government Report concedes this:

† BA LLB (Wit watersra nd) LLM (Univer sity of Michi gan). Research Associate ,

Southern Cent re for Inequality St udies, University of the W itwatersrand.

‡ BA(Hons) (Witwat ersrand) MSc (SOAS) MA ( Witwatersrand). The aut hors

would like to t hank Kelebogile K hunou and Alan a Potter for their assis tance with

this research.

1 Execut ive Summar y of CoGTA ‘State of Local G overnment in South A frica:

Overview Report’ (11 March 2013) 5.

https://doi.org/10.47348/SALJ/v138/i2a7

(2021) 138 SALJ 423

© Juta and Company (Pty) Ltd

424 (2021) 138 THE SO UTH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v138/i2a7

‘Serv ice failure s by municipal ities may be attribut ed to elements of uneven

and unst able governance. There is ev idence of a high incidence of i rregular

or inappropr iate appointments, coupled with low cap acities, poor sk ills

development progr ammes and wea k institutional man agement. Those

municipa lities in remote areas expe rience the added ch allenge of access

to skil ls and litt le understa nding of thei r spatial and economic real ities.

They genera lly lack the nancial and human resou rces to deliver on thei r

constitut ional and legal mandate and on citi zen expectations.’2

This situation has only worsened since then. In the 2018/2019 nancial

year, 113 municipalities adopted unfu nded budgets, meaning that they had

plans to spend money they did not have. In the period 2017–2019, more

than 30 mun icipalities received either a discla imer (which means th at the

auditor could not nd enough paperwork to come to any conclusion about

the accuracy of the nancia l statements), an adverse aud it outcome, failed

to submit their nancial statements on time, or a combi nation thereof.3

In a National Treasury brieng to the National Council of Province’s

Finance Com mittee in October 2019, it was conrmed that 51 per cent

of municipal ities had overspent their operating bud get, and the number of

municipal ities in nancia l distress had incre ased from 95 in 2012/13 to 125

in 2017/18, which was almost half of all the municipal ities in the country.4

Without available f unds, and the abi lity to ma nage them, responsibly

many munic ipalities are f ailing to f ull one of thei r core functions: to del iver

services such as water, sanitat ion and electricity, and thereby to realize

the socio-econom ic rights of the people living under their jurisdiction.

Municipal col lapse exacerbates exist ing inequalities in South A frica as

‘middle and h igh income citizens h ave the nancia l wherewithal to absor b

a degree of mun icipal dysf unction by resorting to pr ivately delivere d

service s. However, the poor and marginal ised rely exclusively on public

provided ser vices and have l ittle or no resource to generators, pr ivate bore

holes, private securit y etc. Therefore, mun icipal fai lures disproportiona lly

aect the poor a nd marginal ised and thus seriously u ndercut South Africa’s

quest to reduce inequalit y.’5

2 Ibid at 3.

3 Tracy Ledge r & Mahlatse Ra mpedi ‘Mind the gap: Sec tion 139 interventions

in theor y and in practise’ P ublic Aair s Research Instit ute report (October 2 019) 1,

available a t https://pari.org.za/mind-the-gap-section-139-interventions-in-theory-and-prac

tic e/, accessed on 8 December 202 0.

4 Parliamentar y Monitorin g Group summa ry of Nationa l Treasury br ieng

on the State of Local Government Finances a nd Financia l Manage ment

(15 October 2019), available at https://pmg.org.za/committee-meeting/29052/, accessed

on 8 December 202 0.

5 J de Vi sser & J November ‘Overseeing the overseers: Assessin g the com-

pliance w ith municipal inter vention rules in South A frica’ (2017) 9 Hague Journal

of the Rule of La w 109 at 112 –13.

© Juta and Company (Pty) Ltd

PROVINCIAL I NTERVENTION IN TH E MAKANA L OCAL MUNICIPALI TY 425

https://doi.org/10.47348/SALJ/v138/i2a7

In addition, the COVID-19 pandemic has sta rkly illuminated t he wide-

spread lack of access to adequate water and sa nitation, particula rly in

informal settlements and rural areas,6 and how this disproport ionately

impacts on poor, predom inantly black, com munities livi ng in South Afr ica.

One of the key mechanisms envisaged by the Constitut ion of the

Republic of South Africa, 1996 (‘the Constit ution’) to address local

government fa ilure of this na ture is provinci al intervention i n terms of s 139

of the Constitution, the details of which are discussed below. In 2019, the

Public Aairs Research Institute (‘PARI’) published a report containing

an extensive analysis of the mechanism of provincial inter vention.

The report docu mented the 140 provinci al interventions which have been

initiated since 1998, involving 143 municipa lities.7 It found that 48 of

the 140 interventions (more than a third) have been in respect of repeat

oenders — that is, municipalities where more than one intervention was

initiated. By September 2019, 40 municipal ities were reportedly under

admin istration, one third of them in places where there had already been

at least one prior intervention.8

This dat a paints a bleak picture of provincial interventions. PARI’s

position is that very few of the provincial interventions initiated since

1998 have had a sustained positive impact on municipal operations or

nancia l health, and that some municipalities are in a worse position

after an intervention than before it.9 Dugard arg ues similarly that there is

scant infor mation about whether provincial i ntervention improves service

delivery, or simply results in further disconnections and cutbacks to save

mon ey.10 Zolani also asserts that the evidence suggests that municipalities

that go through provincial intervention are not always eective and

ecient after t he intervention has been completed.11 W hat is undeniable is

6 See Dina Lupi n Townsend ‘COVID-19 Symposium: COVID-19 and the

human r ight to water and sanitation’ Opi nio Juris report (31 March 2020),

available at https://opiniojuris.org/2020/03/31/COVID-19-symposium-COVID-19-and-the-

human-right-to-water-and-sanitation/, accessed on 24 June 2020; Est elle Ellis

‘COVID-19: Exposin g a water crisi s in the mak ing’ Daily Maverick 14 May 2020,

available at https://www.dailymaverick.co.za/article/2020-05-14-COVID-19-exposing-a-

water-crisis-in- the-making/#gsc.tab=0, accessed on 24 June 202 0.

7 Ledger & Rampedi op cit note 3 at 4.

8 Ibid at 7.

9 Tracy Ledge r ‘We alread y have a solution to faili ng municipalit ies: It’s in the

ne print’ D aily Maverick 6 October 2019, available at https://www.dailymaverick.

co.za/opinionista/2019-10-06-we- already-have-a-solution-to-failing-municipa lities-its-

in-the-ne-print/#gsc.tab= 0, access ed on 24 June 2020.

10 Jackie Dug ard ‘The rig ht to water in South A frica’ in Found ation for

Human Rights Socio-Economic Rights: Pr ogressive Realisation? ( 2016) 8.

11 T Zolan i & O Iruoma Nzewi ‘Prov incial inter vention outcomes in Maka na

Local Mun icipalit y in the Eastern Cape Province’ (2018) 18 Journal of Public

Aairs 2.

© Juta and Company (Pty) Ltd