Abstract

Keywords

Local government; basic service delivery; municipal accountability; stormwater management; right to the environment; municipal service delivery; public participation.

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1 Introduction

The enactment of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) provided municipalities with a more significant, autonomous role in providing good governance to their communities. 1

* Henrike Saunders. BA LLB LLM. LLM Alumnus of the South African Research Chair in Cities, Law and Environmental Sustainability (CLES), Faculty of Law, North-West University, South Africa. Email: henrikesaunders@gmail.com. ORCID: orcid.org/0000-0003-3294-5554. This paper was made possible by the financial generosity of the National Research Foundation (Grant no 115581) and the Konrad Adenauer Stiftung. All views and faults remain the author’s.

1 The Constitution of the Republic of South Africa, 1996 (the Constitution); Makoti and Odeku 2018 AJPA 69.

Municipal service delivery forms a part of the municipal-community support structure necessary to ensure good health and well-being in both rural and urban residential areas. 4

4 Wall "Service Delivery Back to Basics" 33.

ensuing pollution and environmental degradation cause harm to the local ecosystems. Norms and standards for the overall regulation of municipal service delivery can be found in various provisions of South African legislation and the related policies. 10

10 Examples of relevant South African law and policy include the National Framework for Municipal Indigent Policies (Department of Provincial and Local Government 2006 https://www.westerncape.gov.za/text/2012/11/national_framework_for_municipal_indigent_policies.pdf) 14 and the MSA.

In Joseph v City of Johannesburg the Constitutional Court made the following statement with regard to the importance of municipalities providing basic municipal services:

The provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government. The central mandate of local government is to develop a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa, irrespective of whether or not they have a contractual relationship with the relevant public service provider. 11

11 Joseph v City of Johannesburg 2010 4 SA 55 (CC) para 34.

The right to basic municipal services can be linked to various constitutional provisions. The lack of fulfilment of the constitutional rights related to housing, access to sufficient food and water, and an environment which is not harmful to a person's well-being may be challenged over time by community members who allege that their basic needs are not being met by local government. 12

12 Sections 24, 26 and 27 of the Constitution.

This case note considers in more detail the case of Featherbrooke Homeowners Association NPC v Mogale City Local Municipality (hereafter the Featherbrooke case). 15

15 Featherbrooke Homeowners Association NPC v Mogale City Local Municipality (unreported) case number 11292/2020 of 25 January 2021 (the Featherbrooke case).

MCLM) and five others to court over the lack of stormwater management of a river adjacent to the estate. 16

16 Featherbrooke case para 27.

This paper is structured as follows: firstly, there is an introduction presenting the background of the case. Secondly, an analysis of municipal responsibility in service delivery is conducted, along with legislative direction to understand public accountability. Thirdly, an evaluation of the legislative provisions that support the notion of municipal accountability is provided. Finally, the paper concludes by discussing the role of municipal accountability in basic service delivery, as illustrated in the Featherbrooke case. This case note is based purely on a literature review and is informed by applicable South African legislation, the Constitution, relevant case law and other primary and secondary sources of law.

2 Facts of the case

In the case under discussion the applicant, Featherbrooke Homeowners Association, sought relief from the High Court of Johannesburg against various state entities. 19

19 Featherbrooke case para 1; the respondents included the MCLM, the City of Johannesburg Metropolitan Municipality, the Minister of the Department of Water Affairs and Sanitation, the MEC of the Gauteng Department of Agriculture and Rural Development, the Johannesburg Road Agency (Pty) Ltd and the West Rand District Municipality. See Featherbrooke case paras 3 and 4.

The applicant alleged that the respondents had neglected their duties to deliver stormwater management services of the Muldersdrift se Loop River. 21

21 Featherbrooke case para 1.

stormwater management, the river began to flood. 22

22 Featherbrooke case para 1; Nkosi 2021 https://www.iol.co.za/the-star/news/featherbrooke-wins-court-case-against-mogale-city-over-flooding-at-the-estate-760bd11a-79cf-4494-a58e-d8ee7a65dd82.

The applicant's argument was based on two legal principles. The first principle relied on the constitutional right to an environment that is not harmful to one's health and well-being and to an environment protected from pollution and degradation. 26

26 Section 24 of the Constitution.

Based on the facts above, the following discussion will consider the context of the arguments presented to the court to determine the validity of the applicant's argument and to analyse the court's decision in response to that. This discussion will consider accountability and the interpretation of the legislation relevant to municipal duty and responsibility.

3 The legal issue

In the Featherbrooke case the court evaluated the arguments presented against the backdrop of government accountability towards local communities. The central issue was whether the relevant state entities had failed to uphold their obligations to the Featherbrooke community in terms of section 24 of the Constitution. The court also considered whether this failure to provide stormwater management services had caused an

infringement upon the community's right to a safe environment which was not a hazard to their well-being.

4 The judgment

The applicant in the case sought relief in the form of a structural interdict against the various respondents. 29

29 The request for such an interdict is based on the notion that the court has the necessary powers to order mandatory structural interdicts. These court orders ensure that the courts themselves play an active role in monitoring the enforcement of their orders to ensure accountability in government structures. See Featherbrooke case paras 52-53.

After the above-mentioned issues had been dealt with, the court ruled that the first respondent had a duty to provide adequate services for stormwater management. 33

33 Featherbrooke case para 57.

5 The ratio decidendi

The court ruled in favour of the applicant's argument that the first respondent had infringed on the community's constitutional right to an environment that

is not harmful to their health or their well-being. 38

38 Section 24 of the Constitution; Featherbrooke case para 49.

The basis of the court’s ruling was that the estate had experienced flooding of the river since 2010 due to the inadequate and compromised stormwater system. 41

41 Featherbrooke case para 48.

The court found that the stormwater system had been jeopardised by the first respondent's inadequate management and that a critical health hazard now threatened the estate's residents. 47

47 Human 2021 https://krugersdorpnews.co.za/452810/its-featherbrooke-vs-mogale-high-court-decides/.

According to Judge Mahalelo, the evidence presented showed that the Respondents had not taken any steps to resolve the issue. 51

51 Featherbrooke case para 48.

adequate municipal services. 52

52 Featherbrooke case para 48.

6 Case analysis

6.1 Accountability of the municipal sphere in service delivery

To understand local government's responsibility towards communities, one must first understand the concept of accountability in the public sphere. Public accountability refers to the assurance that state entities responsible for the provision and management of state resources are held accountable for their actions. 55

55 Rulashe and Ijeoma 2022 APSDPR 2.

The provision of adequate services must be based on accountability and transparency as well as combatting corruption and poor public administration. 59

59 Rulashe and Ijeoma 2022 APSDPR 2.

as it may be utilised to foster a healthy relationship with the community and ensures municipal integrity. 63

63 Karsten Local Government Accountability 88.

In the Kgetlengrivier case the local municipality was accused of failure to provide residents with potable water and that the water purifying systems were unmanaged and damaged, leading to a raw sewage overflow in the area. 66

66 Cowan-Harper-Madikizela Attorneys 2021 https://www.chmlegal.co.za/cautionary-tale-to-municiplities.

While it may be accepted that municipalities should be operational enough to function autonomously (as indicated by the Constitution), accountability in the local sphere does not necessarily end with local government. 69

69 Section 41(1) of the Constitution.

For instance, in the Makana case an application was brought against the Makana municipality for its failure to maintain its financial obligation to the community and to provide sustainable, basic service delivery, a failure

which impacted on the health and safety of the local community. 71

71 The Makana case para 4.

It is worth noting that alternative recourses are available to communities to address underperforming municipalities. 75

75 Gladwin-Wood and Gohl 2021 https://www.schindlers.co.za/news/what-do-residents-do-when-a-municipality-is-infringing-on-their-rights/.

The Featherbrooke case provides further guidance on multi-sphere accountability in local service delivery matters. The applicant's argument was brought before the High Court against multiple state organs, ranging from various levels of government to city-level entities. 77

77 Featherbrooke case paras 3-4.

judgement order was placed solely on the first respondent, as the accountable party in this matter. In this author's opinion this was a missed opportunity to hand down a decision which might have contributed to how cooperative governance or provincial interventions may be interpreted in future cases. 79

79 Although the Featherbrooke case makes no reference to the usage of provincial interventions, it is still an important South African government tool that should be discussed and considered. See Wright, Dube and Du Plessis 2022 World Comparative Law 109-111.

6.2 A matter of interpretation

The arguments presented to the court by the respondents focussed on blame-shifting - which is a tactic commonly used by state entities when discussing inadequate service delivery. 80

80 Pieterse 2020 Urban Forum 13.

Schedule 4B of the Constitution is an essential provision as far as the power and functionality of municipalities are concerned. 83

83 The Constitution is the highest law in the land and all other laws, legislation and policies stem from it. Schedules 4B and 5B of the Constitution are therefore central when discussing the functional areas of municipalities as well as their powers and duties to these areas. See the Preamble and Schedules 4B and 5B of the Constitution; Fuo 2022 Stell LR 486.

(1) A municipality has executive authority in respect of, and has the right to administer—

(a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and

(b) any other matter assigned to it by national or provincial legislation. 87

87 Section 156(1)(a) and (b) of the Constitution.

The MCLM argued that Schedule 4B places an obligation in terms of stormwater management on municipalities only in built-up areas and not in general. 88

88 Featherbrooke case para 29.

6.3 Legislation supporting municipal accountability in service delivery

In evaluating the case at hand the court focussed on numerous legislative provisions and court cases related to service delivery, municipal governance and the affected community's rights. 93

93 Featherbrooke case paras 32-49.

Instead, the arguments presented had focussed on blame-shifting to other government departments, budgeting restrictions and irrelevant legislation. 96

96 Featherbrooke case para 29; Human 2021 https://krugersdorpnews.co.za/ 452810/its-featherbrooke-vs-mogale-high-court-decides/.

Before making the court's order Judge Mahalelo focussed on the legislative provisions related to the community, disaster risk management and the municipal sphere of government. 97

97 Featherbrooke case paras 34-47.

Although the court referred to section 24, the accountability may be viewed more precisely in the light of subsections (a) and (b)(i). 99

99 Section 24(a) and (b)(i) of the Constitution.

It is important to reiterate that the Featherbrooke case focussed on the lack of maintenance and damage to the stormwater management system. 101

101 Featherbrooke case para 1.

The rights contained in the Bill of Rights create a constitutional duty on all spheres of government to protect and promote the fundamental rights of all those who reside in South Africa. 104

104 Section 7(2) of the Constitution.

Although the MCLM was held responsible, the Featherbrooke case provided little information on the legislative duty placed on municipalities to provide effective and efficient local governance 105

105 Featherbrooke case para 47.

by regulatory frameworks such as the MSA. 106

106 Preamble of the MSA.

Concerning the prevention of floods and similar disasters, the DMA provides guidelines on managing infrastructure related to disaster prevention and mitigation strategies. 107

107 Featherbrooke case para 42.

6.4 The value of public participation in service delivery

Public participation is a powerful tool in providing essential services to the community. 113

113 Chapter 4 of the MSA; s 152(1)(b) and (e) of the Constitution; Fuo Local Government's Role 201; De Villiers, Van As and Botha 2020 Stell LR 337.

Chapter 4 of the MSA addresses community involvement in depth and states that local government has a duty to develop a municipal governance culture based on community participation. 118

118 Chapter 4 and s 16(1)(a) of the MSA.

The Featherbrooke case is indeed a clear example of communities holding state entities accountable for their actions. The applicant sought to prove a dereliction of duty by the respondents to protect the community's right to an environment that is not harmful to their health and well-being. 119

119 Featherbrooke case para 1.

To support the applicant's argument, evidence was presented to support the claim of poor service delivery and inadequate maintenance of the stormwater management system. The applicant submitted numerous reports and had meetings with the respondent to request assistance in mitigating the risk to public health and safety, but to no avail. 121

121 Featherbrooke case paras 15, 16, 23, 24 and 48.

7 Conclusion

This case note attests to the importance of local government accountability in providing basic municipal services to communities. It has found that basic municipal service delivery is essential to ensuring community well-being in the South African context. The case at hand does not argue for the development of legislation relevant to municipal accountability or responsibility. Instead, the argument is based on enforcing pre-existing obligations on local government to ensure the delivery of basic municipal services and the maintenance of relevant state infrastructure. In order to fulfil these obligations, local government accountability must be enforced

under section 156(1)(a) and Schedule 4B of the Constitution, as well as the relevant provisions of the MSA.

The Featherbrooke case reiterates the role that communities play in holding local government accountable for the lack of adequate municipal service delivery. The case note further contributes towards the discussion on municipal responsibility for the environment under section 24 of the Constitution. It has been established that there is a constitutional and legislative obligation on municipalities to prevent environmental degradation that has the potential to affect the well-being of communities negatively. A further contribution has been made in response to the role of the courts in promoting municipal accountability by handing down mandatory supervisory interdicts. This paper found that while the order given by the court did not create a new objective for the MCLM, instead it was mandated that a pre-existing obligation be fulfilled.

The judgement of the Featherbrooke case confirms the duty that is placed on local municipalities to act in the community's best interest and maintain the state infrastructure for which it is responsible. This paper has argued that municipalities must provide for the basic needs of the communities, and that a narrow interpretation of municipal functional areas may have profound implications that could hinder public well-being. Furthermore, it has found that communities play an important role in holding state entities responsible for the infringement of their constitutional rights.

In this author's opinion the court provided a necessary judgement in confirming municipal accountability related to service delivery and provided a straightforward discussion supporting this judgement. In future cases one would hope for a more detailed judicial analysis of cooperative governance and provincial interventions in matters that concern basic municipal service delivery in South African cities.

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List of Abbreviations