Local government vs communities: Reclaiming the people’s power through the courts

[first published in News24]

State authority can be challenged, giving civil movements the power to circumvent limitations and failures of state institutions, moving closer to the idea of co-existence and co-dependency between the state and society when it comes to accountability, writes Thina Nzo.

The local government, as a sphere of government that is closest to communities, has a constitutional obligation to ensure that local municipalities duly deliver local services, ranging from housing, water and sanitation, refuse collection, construction and the maintenance of municipal roads and storm water infrastructure, to local revenue collection and the passing of municipal by-laws.

However, 26 years later, most local government institutions have failed to meet their constitutional obligations.

The majority of municipal infrastructure is in a state of dilapidation due to aging infrastructure that has neither been upgraded, nor properly maintained.

Potholes, bursting water pipes, overflowing sewage, poorly maintained reservoirs, inadequate stormwater drainage systems, poor street lighting, Eskom electricity cuts, water supply failures, dirty and littered streets and the poor upkeep of public recreational spaces are some of the everyday problems local communities and ratepayers encounter. Due to the collapse of municipalities and ineffective interventions from higher structures of provincial government, residents have begun to take matters into their own hands by reclaiming their communities back from municipalities.

Collapsing sewage systems

Last year, a residents’ association in the North West, named Kgetlengrivier Concerned Citizens, took the Kgetlengrivier Local Municipality to court.

The North West High Court ordered that Kgetlengrivier Concerned Citizens be allowed to take control of the area’s sewage works, and it must be paid by the local and provincial governments. The judgment also ordered the imprisonment of the municipal manager for 90 days, which was suspended on condition that raw sewage spilling into the Elands and Koster rivers be cleared up within 10 days.

The municipal sewage system is collapsing across the country.

The Department of Water and Sanitation revealed in its Water and Sanitation Master Plan that 56% of the 1 150 municipal wastewater treatment works and 44% of the 962 water treatment works, were in a poor or critical condition. Eleven percent of these treatment works are in a dysfunctional state. The sewage spillage in the Vaal River and residential areas in the eMfuleni Local Municipality, which has affected the health of community members, is also one of the illuminating cases of dysfunctional wastewater that caught the attention of yet another independent Chapter 9 institution, the Human Rights Commission.

However, the court order granted to the Kgetlengrivier Concerned Citizens is not something new.

The Unemployment Peoples Movement (UPM) in the Eastern Cape also took the Makana Local Municipality to court for failing to ensure the provision of services to its communities, which is a constitutional obligation.

The High Court of Grahamstown ordered the Eastern Cape executive to dissolve the Makana Local Municipality council under Section 139(5)(b) of the Constitution.

In the past, citizen’s and civil society movements often relied on community protests to voice their frustrations and disillusions with the local government.

These judgments therefore symbolise a sense of victory, empowerment and hope for communities who are despondent and disempowered.

The shift towards using the judiciary system to demand social justice and accountability for communities, shows how civic movements have begun to explore diverse strategies in reclaiming their power and resisting state repression of their constitutional rights.

This reveals a longstanding strong culture of civic organising and citizen agency in South Africa. It also demonstrates that municipalities are not immune to being held legally  accountable through the alternative use of the judiciary system.

The judiciary system, by virtue of its role as an independent organ of the state, stands to ensure that all citizens have access to the justice system to take legal recourse against individuals and institutions that subvert their constitutional rights.

Democratic right

Therefore, communities and civic movement are acting within their democratic right to litigate against their local governments, which shows resistance against a lethargic bureaucracy.

On the other, it can be argued that the manifestation of the use of the courts to force local governments to deliver on its constitutional mandate, illuminates the idea that elected representatives, municipal institutions and their governance structures are failing to exercise accountability over the executive and administration.

This has the likelihood of proliferating into an uptake of more litigations against local governments by other communities in collapsing municipalities as a means of enforcing local government accountability and reclaiming civic power. Yet, we have Section 139 of the Constitution which provides provincial Departments of Cooperative Governance with powers and the authority to intervene and dissolve municipalities where are failing their communities.

The inability of provincial governments to intervene as per their legislative obligations also demonstrates the impotency of higher structures of government. All of this raises questions about the relevance of state structures, which includes municipal institutions and their elected representatives, in ensuring that public goods and services are delivered. In other words, do we really need government institutions?

Tracing the historical development of the concept of the state, we know that the state was viewed, by western political scholars, as a necessary solution for the creation of order in modern societies through bureaucratic formal institutions governed by rules and laws.

Formal state institutions, such as the government, in this view, are concerned with policy making, collecting and redistributing taxes, complying with legislation, implementing policies and delivering public goods and services.

Conversely, this parochial idea of statehood did not take into account the role that civic movements play in shaping or reshaping policy making because civic movements were more often considered to be non-state actors.

Citizens were regarded as passive recipients of state public goods and services.

Evolutionary process 

However, the ongoing evolutionary process of state formation, particularly in African states, has brought about a different understanding to the definition of formal state institutions through the ways in which civil society and social movements have come to challenge state authority, power and function, by playing a significantly influential role in determining socio-economic and political changes.

Concepts such as justice, liberty, respect for the law and constitutionalism are at the core of civic agency in modern states.

Hence, citizenship and public participation find anchorage in democratic modern state development processes in a bid to ensure that state government institutions are transparent and accountable.

As with the court case of the Kgetlengrivier Concerned Citizens, we can see how state authority can be challenged, giving civil movements the power to circumvent limitations and failures of state institutions, thus bringing forward the idea of co-existence and co-dependency between the state and society when it comes to accountability.

Therefore, while state institutions, such as municipalities, will continue to play a structural role in decentralised political and administration constitutional functions, a combination of civic agency and social activism, resistance and the exercise of democracy through the ballot box and independent state institutions, such the judiciary system in South Africa, offers multiple ways in which checks and balances of state power can be achieved.

– Thina Nzo holds a PhD in African Studies from the University of Edinburgh. She is a local government senior researcher at the Public Affairs Research Institute.