SO bad were services in the Ngaka Modiri Molema district municipality that the provincial authorities used their extraordinary powers under the Constitution to dissolve the municipality in September this year and appoint an administrator to sort things out.
Since then, however, municipal councillors have fought back via protest action and then by litigation. Today the Constitutional Court put them in their place: all 11 members of the highest court have told the councillors to behave and let the administrator do his work.
The court said that municipalities were the ‘face of government’ to the communities they were supposed to serve. Where they did their work really badly, the provincial authorities were constitutionally mandated to step in, dissolve the municipality and appoint someone to sort things out.
This is what had happened to the Ngaka Modiri Molema district municipality, and Khula Nair was appointed to rectify the chaos in the municipality.
Trying to save their jobs the municipality asked the high court to intervene, but when that court refused to grant an interim interdict suspending the decision to dissolve the council and to stop Nair from ‘interfering in municipal affairs’, the council turned to the Constitutional Court.
Councillors said that the matter was urgent, and that is why they had approached the court directly.
You’re right, said the court, the matter is indeed urgent. But the urgency lies in the need to ensure that the people of the municipality get the services and resources that the council was supposed to provide. Urgency did not lie ‘in restoring the status of municipal councillors to the position from which they complain they have been unjustly removed.’
The court added, ‘It needs to be stressed that the potential prejudice and urgency lie not in the harm suffered by the Municipality or the municipal councillors, but in the continued disruption of basic essential services to the people and communities the Municipality is supposed to serve. The people who may suffer the real harm are not party to these proceedings. It is because of the alleged failure in its executive obligation to them that the Municipality was dissolved.’
Nair, the administrator appointed to sort out the municipality’s problems, was quoted by the Constitutional Court as saying that some parts of the municipality had not had water for many years, even though the municipality had received funding for water and sanitation. The quality of water in some areas where it had been provided was so bad that the government had had to issue ‘a warning about the drinking of water’.
Nair, with the backing of the province and the minister of cooperative governance and traditional affairs, said that steps were now being taken to rectify matters. – But protests by councillors angry that they had lost their jobs were hampering the situation.
According to all sides councillors, ‘infuriated’ by the dissolution of the council, protested in a way that caused ‘turmoil and instability’ in the administration. As an expression of their anger over the appointment of an administrator the council has resolved to ‘resist any attempt to implement the decision (to dissolve the council). In addition employees of the Municipality who have returned to work resist taking instructions from the administrator’.
The Constitutional Court said that until the high court had ruled on a separate application for a review of the decision to dissolve the council the administrator was in charge.
The lawfulness of his intervention in restoring services was ‘beyond question’, they said.
What does this mean for on-going disputes about municipalities placed under administration? The court has made it clear that the interests of the community, often starved of basic services because of a useless municipal council, takes precedence over complaints by councillors that they have effectively lost their jobs.