By Wallace Mgoqi
In South Africa today, no one would gainsay that the situation with our municipalities, is extraordinary, demanding extraordinary measures to arrest the decay and reverse it. Hardly a day goes by without residents taking to the streets, pulling things down, burning things and turning things upside down, in protest against the failure of municipalities in service delivery, be it water, sanitation and electricity.
More municipalities are dysfunctional than those that still have a modicum of normality. In the words of Ronal Sackville, the chair of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability regarding the inquiry into poverty in Australia: “Nothing rankles more in the heart than a sense of injustice. Illness we can put up with, but injustice makes us to want to pull things down.”
After 27 years of the advent of our democracy, people feel let down by local government, at a time, when in a matter of months they will be called upon to vote in local government elections. They are asking: “Vote for what?”
In a recent case heard in the Constitutional Court – Mwelase and Others v Director General for the Department of Rural Development and Land Reform and Another – the court ruled in favour of the appointment of an outsider, or Special Master, confirming an order made earlier by the Land Claims Court, but was subsequently reversed by the Supreme Court of Appeal.
The terms of reference of the Special Master involved, among other things, supervising the work on processing labour tenant claims. The Department of Agriculture Land Reform and Rural Development had failed over many years to do so and the Special Master had to report to the Land Claims Court on progress or lack thereof.
Judge Cameron, opened the judgment as follows: “Earlier this year, in a case about Parliament’s constitutional duties, this Court stressed that land and dignity were fundamental to realising other constitutional rights. Land reform could be a “catalyst for structural change in our society,” the judgment noted.
But delays in processing land claims have debilitated land reform. Expeditious land restitution could, the court said, “contribute to a wider, more striking consciousness that centres on the constitutional values of equality and dignity, and gives rise to ideals of social justice, identity, the stimulation of economic activity, the promotion of gender equality and a contribution towards the development of rural livelihoods.”
The Concourt was asked to determine in an appeal, whether the Land Claims Court had erred in making an order to appoint a Special Master to oversee labour tenants’ cases, which had been lodged over a long time, but were not processed and referred to the Land Claims Court for finalisation.
The court cited a precedent in a different case, Black Sash 1, where a special committee of independent persons was appointed in the Department of Social Development due to the failure of systems there as regards social grants.
It would seem that, without resorting to litigation, it would make sense, following this precedent in Mwelase for the Department of Co -operative Governance & Traditional Affairs (Cogta), under which municipalities fall, to appoint a Special Administrator:
– to oversee, not only the dysfunctional municipalities, according to the records of the Auditor-General over the past five years, but also all other municipalities;
– to call upon these municipalities to subject themselves to accounting to this Special Administrator, as regards their structures, their administration, planning processes and budgeting;
– to give an account as to how they are giving effect to, for example, Section 153 of the Constitution as well as other relevant local government legislation, aimed at the seamless, effective and efficient functioning of municipalities, in terms of their mandate;
– to do whatever is necessary, including restructuring these municipalities, under Court supervision, to cause these municipalities to deliver on their mandate, in keeping with the dictates of our Constitution, in upholding the human dignity of our people.
Indeed, such a measure would be an extraordinary measure, but one that would be justified by the extraordinary circumstances faced by the nation, right now, where every other day, there is a flare up of service delivery protests against these municipalities.
These violent disruptions destroy existing infrastructure, thus putting to waste tax payer’s resources, where it may take years to replace such infrastructure, if at all.
It would work out even better if a person like the Deputy Auditor-General, were to assume such a responsibility, as their office already has access to the financial and other records and data on the performance of municipalities, garnered through the audit function they perform in relation to municipalities, year in and year out.
The details relating to the terms of reference of such a Special Administrator, and to whom she or he would report to would be worked out later, but it is something that would send a signal to ordinary citizens that something extraordinary is being done, to remedy the situation.
The highest office in the land, that of the President, in whose jurisdiction municipalities and traditional authorities, in rural areas fall, would be best placed to take such an initiative and direct accordingly. Already in some of the protests, protesters insist on seeing the President before they can stop their protests.
It is time that this extraordinary measure is put in place, from the highest office, to meet the extraordinary situation the country faces. The time is now. We need to act now, before things slide further into irreversible decay. We still have something to salvage; let’s do it now!
Dr Wallace Mgoqi is the chairman of AYO Technologies and the former City Manager of the City of Cape Town and the former Chief Land Claims Commissioner on the Restitution of Land Rights, writing in his personal capacity.
*The views expressed here are not necessarily those of IOL or of title sites
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