The High Court in Grahamstown in Makhanda, Eastern Cape, created a stir this week when it ruled that the provincial government must dissolve the Makhanda council.
Questions were also raised on judicial overreach, but the court’s decision has been widely seen as a positive one.
One Constitutional Law expert, from Rhodes University Dean of Law, Professor Rossan Kruger, says the court’s decision has stimulated dialogue among the three spheres of government.
In the application filed by the civic organisation Unemployed People’s Movement, the High Court in Grahamstown found the Makana Municipality guilty of failing to ensure the delivery of basic services to the community in a sustainable manner.
In the landmark judgment, the municipality was directed to implement a recovery plan to provide basic services and to meet its financial obligations.
The court further ordered the Provincial Executive Council to dissolve the municipality and appoint an administrator until fresh elections can be held.
The movement’s spokesperson, Ayanda Kota, says this is a victory for the residents of the municipality.
“It has sent out a very strong message to politicians that it will not be business as usual, that you will not continue to rule people through punitive measures, that you will not disregard people. People can always go to court and the court will come to their rescue.”
Judge Igna Stretch’s judgment has stimulated dialogue around the issue of the separation of powers of the legislature, the executive and the judiciary.
Makana mayor, Mzukisi Mphahlwa, says the judgment will create a precedent for struggling municipalities such as Makhanda. He says the municipality is owed millions in revenue, hence its current situation.
“My view is that at a national level, the three arms of state need to come together; the judiciary, the executive and parliament to tell the municipalities what they must do under the circumstances when they are owed so much by the residents and the business alike. We can deliver the services according to the funds available to our disposal.”
Political analyst, Ongama Mtimka, says the judgment will hold public representatives accountable and give voters more power.
“The public now does not only have the five-year voting cycle in order to enforce regime performance when the municipality, ultimately the national government, is not performing. There’s a defined parameter for that and the constitutional provision such as that the municipality is failing then it allows the recourse of the law which has not been much prominent between the relations of the judiciary and the public.”
The Rhodes University Dean of Law, Professor Rossan Kruger, says the judgment does not cause a conflict between the three arms of state but rather stimulates dialogue among them. She doesn’t believe this is setting a precedent that will see people from other municipalities rushing to the courts. Professor Kruger says Makana’s situation is unique as all avenues to turn around the municipality were exhausted.
“What we should remember is that because the constitution is supreme, there has to be a body that enforces the supremacy of the constitution and the constitution gives that authority to the judiciary. So when the judiciary makes an order that may seem on the face of it to be an intrusion to the authority of another branch and if that intrusion is allowed by the constitution, it is, in fact, a check in the exercise of power not an intrusion per se.”
Eastern Cape premier, Oscar Mabuyane, says the executive is studying the judgment with the intent to file a notice of leave to appeal.
“Definitely that is the precedent that we are concerned about. We don’t want to create an impression of judicial overreach because everybody goes go to court for relief and the court must decide based on facts on disposal. We believe there are other areas that the judge didn’t really apply her mind in; we cannot have a government that is collapsing.”
The provincial government has 20 days from the day judgment was delivered to file a notice of leave to appeal.