COMMENT

Makhanda is a shadow of its former self. Gaping potholes yawn menacingly at pedestrians and motorists. You’re lucky if water comes out of a tap. You’re even luckier if the water that does come out of the tap is safe to drink. Refuse removal isn’t guaranteed, and landfills are a health and environmental hazard. Raw sewage is running into the streets.

The timely maintenance of critical infrastructure, as well as new-build programmes, do not happen. The levels of unemployment are higher than that of most other cities (it’s more than 40%). The city is cash strapped.

The parlous state of local government exacerbates the hardships of its residents.

All of this is a pitiful shame. Makhanda (previously called Grahamstown), is an important Eastern Cape city. For tens of thousands of South Africans, and students from around the world, the city’s schools and Rhodes University trigger beautiful memories of a place that gave them a world-class education, and memories they carry deep into the next phase of their lives.

This little outpost, with its complex colonial and anti-colonial histories, has played its role in developing the consciousness of countless citizens who went on to slot into the struggle for a just South Africa. Many a book has been written about young white English liberals grappling with their moral duties in a time of apartheid racism on Rhodes campus. Many more books have yet to be written about the bravery of black children in the townships in the 1980s resisting and opposing the racist apartheid state and the local police in particular. As a city along the N2, Grahamstown was also perfectly placed as a hiding place for comrades en route to other destinations.

Even the design of this fascinating city carries important historical pain. There are hills everywhere and from atop most of the hills, you can see what apartheid geography looked like, because the design is that visible and that crude, courtesy of the racist urban planners of Grahamstown.

Culturally, it also punches way above its weight: from science festivals and eisteddfods to the famous National Arts Festival, Makhanda cannot be left out of any serious documentary of South African cultural lore.

As if these accolades aren’t enough, the city has also been a critical site of progressive jurisprudence, courtesy of a high court that often delivers judgments that have gone on to entrench our normative constitutional values. It is therefore unforgiving that the Makana council is so shamelessly useless, ignoring its constitutional duties and risking all that is beautiful, brilliant and important about Makhanda.

But perhaps, tragically, the most urgent truth about what is happening in Makhanda is that we are seeing the connections between political sins at the local government level and the biggest faultlines in our democracy. Makhanda isn’t only a case study of what bad local governance looks like, it is also a metaphor of what disregard for constitutionalism looks like.

Despite the historical prominence of Makhanda, neither the provincial government nor the national government appear embarrassed by what is (not) happening. That’s reminiscent of how indifferent our government has become to the cries of citizens everywhere.

Makhanda echoes QwaQwa. Makhanda echoes Queenstown (now Komani). Makhanda echoes Diepsloot. Makhanda echoes villages, dorps, towns and cities across Mzansi.

On January 14, the high court ordered that the Makana local municipality be dissolved, because it is failing to provide basic services to citizens. Instead of being ashamed, the provincial government is appealing that judgment.

On one level, the appeal is to be welcomed: the decision of a higher court will allow us to have legal clarity and certainty about when and under what circumstances a court can order a provincial government to dissolve a local municipality. It is obviously not desirable for courts to routinely make such judgments, because we want the political arena to be subject to political judgments. It is preferable, if a council should be dissolved, that that decision should emanate from the provincial government. So it is unsurprising that Bhisho, the capital of the Eastern Cape, is claiming that the high court in Makhanda has overreached in the exercise of its judicial powers. An appeal will settle the legal dispute. That will be useful.

That said, the appeal is also disingenuous for two sets of reasons.

First, the court was thorough in examining the facts. There is a five-year timeline that shows how, time and again, the Makana council has failed to comply with a range of laws related to local government.

The Unemployed People’s Movement is the civil society organisation that took the matter to court. The case was so well prepared that the other side couldn’t, and didn’t, contest some crucial evidence about the state of the municipality, including the debt that had spiralled out of control. But for residents’ intervention, even the lights would have been switched off by Eskom a few years ago. By 2014, Makhanda owed Eskom more than R57-million.

An appeal from Bhisho will be difficult to sustain in the face of established facts.

For example, an administrator appointed by Bhisho in 2014, Pam Yako, made no difference to the project of repairing local government. The municipality also lost a case in 2015 when residents took it to court to manage an unmanaged landfill site. It didn’t bother to comply with the judgment.

Second, the outcome of the court case is unprecedented, but that fact alone doesn’t mean it is a case of judicial overreach. The court was nuanced in laying out which sources of law it was applying the facts to.

The Constitution, for example, makes clear what the obligations of local government are. Section 139 outlines when a local council can be placed under administration. The same is true of the statutory requirements for finances to be managed lawfully, as outlined in the Municipal Finance Management Act.

The provincial government will have its legal work cut out for it because it will have to show that the courts do not have the authority to enforce legal duties of councils in respect of their residents.

That is where the linkages between law and politics come into play. While the main mechanism for holding useless local councils — as well as useless provincial and national governments — is a political mechanism (voting them out), it is also true that we are allowed simultaneously to enforce the legal duties of government through the courts. That is the very meaning and purpose of the principle of constitutional supremacy.

So while many a lawyer will fancy their chances of a successful appeal, it is a tall order. The doctrine of separation of powers isn’t undermined when a court tests whether a local municipality is complying with the laws that govern local government, and remedies any legal waywardness with a court order that aims to restore compliance with the laws being trampled on.

Third, the crisis in Makhanda is also a lesson in cross-class solidarity that should be restated. Makhanda is a divided city in many ways. It shouldn’t be romanticised. Even when the council did function, Grahamstown was a deeply unequal city in which the quality of your life, and your chances of flourishing, depended on the arbitrary fact of where you are born.

If you’re from Joza township, you would be lucky to end up with opportunities to flourish, and to reach your potential in life. If you’re born into a family from one of the pristine suburbs, across the buffers and bridge that divide the poor and middle-class, you’re more likely to end up with a world-class education and prospects of reaching your life’s potential.

(That is why, even as a proud alumnus of Rhodes University, I do not share many of the political convictions of some of my former colleagues and teachers, and even some friends. I know the journey I had to travel, literally and figuratively, from the other side of the Grahamstown tracks to get to Rhodes University.)

Nevertheless, it is fantastic to see how differences have been set aside by the residents of Makhanda — in both the townships and in the suburbs — to fight a useless council. History demands of South Africans to learn to co-operate strategically, across our differences, to hold the powerful to account.

