With just over a month to municipal elections, people and parties are debating service delivery and the responsiveness — or otherwise — of municipalities and their officials. It turns out that the courts are similarly focused on the issue, as a new judgment on the delivery problems of neighbouring seaside towns highlights. The villages — Kenton, Bushman’s River and Nature’s Landing — are in an environmentally sensitive part of the Eastern Cape.
The three issues at the heart of the matter heard by the high court in Grahamstown, in the dispute between the towns’ ratepayers and the Ndlambe local municipality, illustrate the frustration of many communities over unacceptable delivery regarding sewage, waste disposal and communication.
Failure to sort out the local sewerage works led to raw sewage flowing into the Bushman’s River estuary and thus into the sea. In addition nothing was done to establish a new waste dump site though the authorities had a number of years’ notice to act. And, perhaps most frustrating: the municipality simply ignored correspondence on these issues over three years, from November 2011 to September 2014.
As the court’s judgment made absolutely clear, local authorities acted unlawfully when they ignored residents’ claims and reneged on promises these authorities had themselves made to the community.
One of the issues for decision was whether the municipal manager should be found in contempt for disregarding a court order finalised some years ago in connection with the same dispute. Judge Murray Lowe said the approach by municipal manager Rolly Dumezweni was completely inadequate and he failed to appreciate this was “an extremely serious issue”.
Lowe found Dumezweni in contempt of court in relation to the sewage issue, but he can count himself lucky not to have been jailed or given a suspended sentence. Instead he escaped with a warning and must jointly pay the punitive costs of part of the law suit.
As for the second problem — the complete failure of the municipality to act in time to resite the solid waste dump despite fires and pollution at the old site — Lowe said it was “astonishing” Ndlambe had done nothing about a new site even though it knew in 2007 that another site would be needed by 2011. It had not taken even the first steps, the judge noted.
The municipality’s failure in many instances to respond to correspondence on these issues was “an egregious dereliction” of its duty, said the court, and despite counter arguments by the municipality, the court proceeded to set up a “structural interdict” under which the municipality must report back every 90 days on what it has done to meet its obligations as stipulated by the court.
The new Kenton judgment is important for other municipalities and community organisations for several reasons.
First to note is Ndlambe’s shocking neglect of its duty and what amounts to nose-thumbing of the community — and the court. Other municipalities should hesitate to follow suit because the community won a resounding legal victory.
While ratepayers may take heart at this, municipalities should take heed. Many might have wanted the court to take tougher measures against municipal officials, but its carefully worded rationale for acting against the municipal authorities may be used by other communities whose officials don’t carry out their duty. Also noteworthy: while the municipality appeared alarmed at the prospect of a structured interdict, arguing strongly against it, the court had no time for suggestions that such a measure was inappropriate and even an infringement of the separation of powers.
Municipalities unwilling or unable to do a proper job of providing basic services may have to get used to being subjected to court control and held to account via regular checkups.