This OpEd is written by Saadiyah Kadwa and Cecile van Schalkwyk –
Legal Resources Centre Land Programme
In 1994, most of the responsibility for the delivery of basic services, was decentralised to local government, with Municipalities becoming the main drivers for the delivery of water, sanitation, and refuse removal. The Constitution compels Municipalities to structure and manage their administration, budgeting, and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community. The idea is that Municipalities should act as sites of sustainable and meaningful improvement, where the provisioning of basic services would assist in transforming the living standards of poor and vulnerable communities. But Municipalities are failing dismally in this regard. Many of them are either dysfunctional or about to be declared dysfunctional, with only 27 of the 257 municipalities in South Africa receiving a clean audit in 2019/2020.
In the 2022 State of the Nation’s address, the President promised that reforms in key areas, including the delivery of bulk infrastructure and institutional reform to ensure the sustainable provisioning of water and sanitation, will be a priority. However, given the catastrophic failures and dysfunctional status of municipalities across the country; the likelihood of this occurring is dubious. These reforms are only possible where municipalities, as the main implementing agents, are administratively and financially well-managed and have a pro-poor approach to the provisioning of services that sees poor communities being prioritized.
Although the maladministration of municipalities has been widely highlighted in the media and reports by the Auditor-General, the reality is that at the ground level it is difficult to see any discernable change. The Legal Resources Centre (LRC) has first-hand knowledge of this as it has litigated against municipalities; actively advocating for the repair of broken infrastructure, provision of clean and reliable water, sanitation, refuse removal, and challenging inhumane and degrading conditions. Often this litigation – which is instituted to ensure that poor and vulnerable citizens are accorded their constitutional rights to basic services – is opposed by municipalities, thereby wasting time, money and resources that could be better spent serving the community’s needs.
The LRC focussed its efforts on assisting various communities in KwaZulu Natal and Eastern Cape in litigation for the provision of basic services. These court cases served to confirm that Municipalities are duty bound to provide basic services and ensure the realisation of socio-economic rights to health, sanitation, water, and a clean environment. It is apparent that obtaining judgements in these matters is the “easy” part of the case. Once a court order is obtained the next and arguably more difficult stage in the matter commences: the implementation stage. Usually, implementation is fraught with mismanagement of municipal money, delays, and avoidance of responsibility.
In the Eastern Cape the embattled Makana Municipality is one of the biggest culprits. For more than a year, water has only been provided every alternate day to residents, and at the beginning of 2022, certain areas were left without water for more than three weeks. Makana also finds itself heavily indebted to Eskom, but instead of servicing the electrical bill the municipality opted to pay bonusses to its employees in December 2021, causing Eskom to threaten disconnection of electricity to the town. Evidently the needs of the community are secondary to the financial gain by Municipal officials.
Since 2010, sanitation systems in Makana have deteriorated. Inadequate maintenance, coupled with budget constraints due to mismanagement of municipal funds have resulted in constant sewerage spills in and around the homes of residents. In June 2020, an order was obtained on behalf of ten residents to compel the municipality to take all the necessary steps to contain the sewerage spills, as well as to attend to the sites to ensure that the spills do not reoccur. The municipality was also ordered to submit a report to the court within 30 days setting out all the active sewerage spills in Makhanda, together with a budget and the plan to fix the spills.
Although the municipality attended the sites of the ten residents, this intervention was insufficient, as the spills have since reoccurred without any further attendance by the Municipality. Sites around Makana are overflowing with sewerage yet again. Furthermore, the reports that were filed by the municipality was a study in inadequacy, containing only pictures of the sites and descriptions of the conditions at the sites. The Municipality is clearly struggling with failing infrastructure but seem to be only engaging in stopgap measures no reference was made to budget, or a clear plan on how they intend to deal with the root cause of the problem. Our follow up questions on the report remain unanswered and the reports completely stopped after five months.
Other than sanitation woes, the residents of Makana Municipality also suffer because of a failing refuse removal system. In 2021, the LRC had to obtain another order to compel Municipality to comply with its obligations in relation to refuse removal in town. The court found the municipality’s Bylaws and Waste Management Systems to be unconstitutional as it failed to protect the residents’ right to an environment that is not harmful to their health. The municipality was ordered to clear seven specific dumpsites, and thereafter meet with residents to identify remaining dumpsites that had to be cleared within four months of the date of the order. The municipality also had to provide plastic bags to residents and place refuse receptacles around the town. To date the municipality cleared two dumpsites, at three of the other sites, they simply dumped soil over the rubbish without actually removing it, while no action was taken at the other sites. While they have provided some rubbish bags, it is not enough, and it leaves communities with little choice than to make use of the illegal dumpsites that have mushroomed all over town. This breaches the community’s right to a healthy environment – which is all the more necessary as we battle the Covid-19 pandemic.
Despite clear problems with water and waste infrastructure, Makana Municipality has reported a continued underspent on its capital budget, with a reported 66.8% underspent in 2018/2019. No money was spent on repairs and maintenance during this time, while 28.4% of its spending amounted to fruitless and wasteful expenditure, which means it was either unbudgeted or unauthorised. In January 2022, Makana Municipality spent about 66.7% of its budget on wages, including R1 234 128 on “overtime”. The wage bill of the municipality far outweighs the expenditure on any projects aimed at providing municipal services. Furthermore, Statistics SA has recently reported that there is a decline in all municipal public-sector infrastructure spending by 14% in 2020. Municipalities provided various reasons for the decrease, the most concerning being that decreases are a result of project delays stemming from procurement delays and protest action.
What exacerbates the service delivery problem is the Municipality’s complete disregard for the courts and rule of law. In respect of both the sanitation and waste removal litigation, the municipality initially opposed the application only to show up to court on the morning of the hearing to settle the matter. Considering this, the municipality’s non-compliance with the orders is even more troubling. Firstly, by opposing applications, the Municipality drags out the court processes. It then agrees to relief, fully aware of what the court expected them to do, but still fails to comply. Letters threatening contempt proceedings are simply ignored by the municipality, resulting in costly and unnecessary contempt litigation – thereby wasting more resources.
This attitude is also prevalent in the province of KwaZulu Natal, where three municipalities namely Msunduzi, Umshwathi, Umgugundlovu Municipalities were litigated against for their failure to provide basic water, sanitation, and refuse removal services to farm dwellers and labour tenants. In this matter the applicants comprised of poor communities who settled on private farms and struggled to access water. They also had no access to sanitation or refuse removal. The main client was a centenarian farm dweller called Zabalaza Mshengu who unfortunately passed away before the judgement was granted in 2019 when the municipalities were ordered to make provision for basic services to all these farm dwellers. 
However, shortly thereafter the Msunduzi Municipality sought leave from the High Court to appeal the judgment, in a bid to delay the implementation of the order, as their notice had the effect of suspending the implementation. This ploy was confirmed as the Msunduzi Municipality took no further steps after lodging their leave to appeal notice.
Unfortunately, this delay tactic caused the LRC to once again approach the court to apply for the implementation of the order to resume, notwithstanding the Municipalities’ appeal proceedings. This again necessitated that municipal money and time be appropriated to contest municipal obligations to provide basic services. It is prudent at this stage to note that all three Municipalities are under administration. The LRC submits that mindlessly defending litigation intended for the benefit of communities and not offering to provide the essential service delivery is a weakness in local government.
After the court ordered that the Municipality comply with the order, the LRC engaged with the Municipality to fast track the finalisation of the implementation plans. Unfortunately, only two of the three Municipalities have filed plans, but with glaring inadequacies. To the Municipalities’ credit they have added the implementation as an item in their annual IDP meetings, but progress is entirely too sluggish.
Not only does the non-delivery of basic services violate residents’ right to health, human dignity, and equality, but it is also incredibly costly. In September 2021, the Public Affairs Research Institute (PARI) published a report which indicated that about 50% of South African households already pay 20% or more of their monthly income towards their municipal services account. In municipal areas where service delivery is poor, households are forced to find and pay for alternative sources of water, sanitation, and refuse removal whilst still paying for basic services. These households buy water that must be transported, discard their own refuse, and must find alternative sources of sanitation. This raises the cost of living and impoverishes communities even further. Those households that depend on free water (6KL) and sanitation or are entitled to an indigent subsidy as they cannot afford basic services, have no financial ability to be able to provide their own services – they simply go without, and live in squalid conditions that are not suitable for human habitation.
Municipalities bear a duty to carry out their functions in a manner that ensures the appropriate financial administration and decision-making that advances the extent and quality of services to our nation. We do not expect municipalities to mismanage monies and engage in corrupt activities to the detriment of the poor. But our experience has shown that instead of municipalities spending money and resources to provide services to the most destitute, they often fail these communities, and when challenged in court, opt for misconceived challenges to legal actions. When they inevitably lose, they ignore the orders of the court, undermining the rule of law, and in the process spending further valuable tax-payers money on defending contempt proceedings. This complete disregard for the courts and the rule of law is a slap in the face of the communities that struggle every day to survive with access to the bare minimum in terms of services. Maladministration of municipalities, the failure to deliver basic services, and contempt of court orders, violate the constitutional vision of a transformative and sustainable local government aimed at improving the lives of the most vulnerable communities. In this regard, South Africa’s Auditor-General, Tsakani Maluleke’s, words ring true: “it is important to realise that every cent misspent, squandered, stolen or allowed to be unused, impacts on the lived experiences of some of the most vulnerable in our country,”
 Section 153 (a) of the Constitution
 Mshengu & Others v Msunduzi Local Municipality & Others  4 All SA 469 (KZP)