In an astonishing judgment in the North West High Court in December last year, the judge ordered the imprisonment of the municipal manager of Kgetlengrivier in North West province for 90 days, suspended on condition that raw sewage spilling into the Elands and Koster rivers be cleared up within 10 days.
Justice Gura also ordered that residents association Kgetlengrivier Concerned Citizens be allowed to take control of the area’s sewage works, to be paid for by the local and provincial governments.
The municipal manager was further sentenced to imprisonment for 90 days, suspended on condition that he provides clear, potable water to the residents of Koster and Swartruggens in North West within 10 weeks of the ruling.
This is a judgment that should have officials in dysfunctional municipalities across the country quaking in their boots.
It means potential jail time for the worst offenders, and opens the door for citizens to take control of essential services in their areas.
Residents given control
Justice Gura also ordered that residents in Kgetlengrivier be given control of the area’s water works so they could appoint qualified people to run it. All this must be paid by the local and provincial government.
“Now we’ve got beautiful, clear, drinking water, and we’ve got more than we know what to do with,” says Carel van Heerden, the head of Kgetlengrivier Concerned Citizens.
“Local residents paid R7.5 million out of their own pockets, but we got the pumps repaired or replaced, we rented generators to make sure the water could continue pumping in the event of power outages, and we got the water system back in full operation in a matter of weeks.”
The local government will have to pay the residents back their R7.5 million – plus their court costs.
Read: Confirmation that municipalities are a huge burden on taxpayers
“This is unprecedented in South Africa,” adds van Heerden. “The judge in this case was incredibly brave, and we believe established a precedent for other ratepayers’ associations around the country dealing with corrupt or failing municipal leaders.”
Ministers’ reaction a sign of things to come?
In the Kgetlengrivier case, the national ministers of Environmental Affairs, and Human Settlements, Water and Sanitation were cited as respondents, but agreed to abide by the court‘s decision – perhaps signalling national government is no longer willing to back comrades found to have mismanaged at local government level.
On January 8, the municipal manager, RJ Mogale – facing jail time unless the conditions of the court order were met (and they were, but not by him) – issued a public notice claiming van Heerden “and a handful of white males” had illegally taken over the water and sanitation plants and “had disrupted the provision of water fundamentally violating the rights of residents to Kgetleng”.
Mogale goes on to advise residents that the municipality had made an application in the North West High Court to reassume control of the water and sanitation plants. That application was dismissed by the court.
‘Illegal takeover’ claim ‘despicable’
Van Heerden says Mogale’s attempt to frame what happened at Kgetleng as an illegal takeover by a “handful of white males” is racist and despicable, and a legal suit is being planned against him in the coming weeks for his incautious remarks.
The court order makes it clear that the municipality has been bypassed and rendered irrelevant, other than to pay the costs of providing water and sanitation services provided by the residents.
“We have the support of the community, regardless of race,” says Van Heerden.
“We’ve provided jobs to the local community that were not there before. And we got the job done in weeks that the municipality couldn’t get done in years.
“It took us about a week to get the sewage plant running again. People from every part of this community [were] involved in this salvage operation, and everyone is fed up with the non-delivery by the municipality.
“Many of the more affluent people in the community have joined this fight, even though they don’t rely on municipal services. They have solar panels and boreholes because they can afford them. They got involved in the fight because they wanted to ensure poorer members of the community who desperately need these services were able to survive.”
How it came to this
There is a long and storied history behind this court judgment.
In 2018, workers at the newly constructed R144 million sewage plant downed tools over a pay dispute, leaving the community without water for several days. Van Heerden says vandalism and theft of equipment was rampant, and those running the site were incompetent. Workers abandoned the site one by one until there was no one left to work it at all. The town’s taps ran dry.
Residents obtained an urgent court order to restart the plant and supply water to the community. They ran the plant for a few weeks until the municipality resumed control.
In February 2020, workers again went on strike for backpay and again abandoned the site, says van Heerden. “We again got a court order to restart the plant and we ran it for four or five weeks before handing it back to the municipality.”
Residents previously won another case against the municipality, which they claimed was unlawfully setting rates and taxes.
Yet another case interdicted Eskom from cutting electricity to the municipality, which was more than R200 million in arrears.
Read: Municipalities owe Eskom R31.5bn
Municipality must show that it’s up to the task
This time, however, the court may not be so lenient with the municipalities’ attempts to reclaim control over the water and sewage systems.
The December 2020 court order reads: “It is declared that the KLM [Kgetlengrivier Local Municipality] fails to supply potable water to the residents of Koster and Swartruggens.
“It is declared that the water purifying works at Koster and Swartruggens are in states of disrepair and are mismanaged.
“It is accordingly declared that Bojanala [Platinum District Municipality, also a respondent in the case] and the KLM are in breach of their constitutional obligations for providing potable water sustainably.”
Though an interim order, the municipalities must show by March 1 this year why this order should not be made final – meaning they will have to put a powerful case to the court that they have managed to get their act together and can do a better job than the residents.
“Civic indignation is a growing trend across the country, as shown by this event in Kgetleng,” says Tim Tyrrell, project manager at the Organisation Undoing Tax Abuse (Outa).
“In this case, residents approached the court because they were being forced to pay for services that were not being delivered. They decided to ask the court for permission to take over those services, and the court agreed.
“This is an encouraging sign that courts are alert to the problems facing communities and are trying to come up with solutions that ensure services continue uninterrupted – as required by the Constitution.”
In other parts of the country, tax revolts in dysfunctional municipalities are either underway or being contemplated. That’s the subject of the next instalment.