In a recent judgment, The Hiilandale Homeowners Association and Others v The Mangaung Metropolitan Municipality and Another, the Court was asked to decide whether Mangaung Metropolitan Municipality has an exclusive right to administer refuse removal services in its area. The Free State High Court decided otherwise, leaving the Metro with no choice but to appeal the judgment.

Elevated status of local government

Under the new constitutional order, local government is an autonomous sphere of government. The source of local government‘s authority is no longer national and provincial laws, but the Constitution itself. Section 156(1) of the Constitution empowers a municipality with executive and legislative authority over matters listed in Part B of schedules 4 and 5 of the Constitution. The schedules list several matters including potable water supply, electricity reticulation, municipal planning and refuse removal. Section 229(2) of the Constitution further empowers municipalities with revenue-generating powers to enable the mobilisation of financial resources to fund the delivery of these mandates. For instance, municipalities may impose a surcharge on fees for services, such as refuse removal, provided by or on behalf of the municipality. Therefore, it follows that municipalities are the only competent institutions to undertake local government functions and exercise the associated revenue-raising powers.

The national and provincial governments are required to ensure the effective exercise of local government’s functional responsibilities. However, section 151(4) of the Constitution states that they “may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions”. This is a significant departure from the situation before 1994, when national and provincial governments could direct a municipality how to exercise its functions and approve or veto its decisions. National and provincial governments now only have a supervisory role. This judgment is thus a significant test of municipal authority.

Background

The Hiilandale Homeowners Association approached the High Court seeking an order declaring that it is competent to remove refuse within the Woodlands Hills Township, which falls within the jurisdiction of Mangaung Metropolitan Municipality (the Metro). The order would divest the Municipality of the refuse removal function in this area. In addition, the Association wanted the Metro to stop levying refuse removal fees in respect of properties in this Township. The application for the establishment of the township was approved by the Provincial Government in 2000 under provisions of the Township Ordinance of 1969. Phase 1 and 2 of the Township were incorporated into the Municipality in 2004 and 2018, respectively. The proclamations for the integration of these two phases both included several stipulations, including a provision that stated that “The Town Owner shall be responsible for the removal of household refuse in the town”. Subsequently, the Association and the Metro concluded a service level agreement (SLA) for both phases in which the Metro was charged with the provision of certain services to the Township. All along, the Metro provided refuse removal services and levied relevant fees to the Township despite the above stipulation. Before the Court, the Association wanted to enforce the condition that “The Town Owner shall be responsible for the removal of household refuse in the town”.  The Municipality insisted that it has exclusive authority to administer removal services, refuse dumps, and solid waste disposal. The Municipality argued for the enforcement of the SLA.

Judgment

The main question before the Court was whether the Municipality has the exclusive right to provide refuse removal services and impose relevant fees in its jurisdiction. The Court agreed with the Association that, while refuse removal is a Municipality’s executive and legislative competence, the Municipality does not have the exclusive right to provide refuse removal services in its area. On the question of whether the Association should have exhausted dispute resolution mechanisms provided in the SLA before approaching the courts, the Court reasoned that this was not necessary. This is because the “dispute between the parties does not arise from the interpretation or implementation of the terms of the SLA but solely on the question of whether the [Metro] is bound and should give effect to the Proclamations”.  In the end, the Court ruled that the Association has the right to undertake refuse removal services in the Township and further directed the Municipality to stop charging refuse removal fees in respect of all properties in the Township. Last, the Court imposed a cost order on the Metro.

Commentary

Municipalities in South Africa face significant challenges. Often, service delivery does not meet the expectations of communities. It is thus not surprising that the authority of municipalities to deliver services is increasingly being challenged. Other players, such as community organisations, are entering the service delivery terrain with and without the blessing of the municipality. Some of these interventions have been sanctioned by the courts, as illustrated by this judgment. In my view, the solution to the challenges in local government does not lie in divesting municipalities of their responsibilities. It is about everyone getting involved in local government so that it can work better. While national and provincial governments must supervise local government, including providing support and intervening in cases of failure, community organisations, businesses, etc, must participate in local government and partner with municipalities to solve problems in their communities.

This judgment takes us back to the past when municipalities exercised authority under the direction of the national or provincial government. The constitutionality of the two provincial proclamations which restricted the Municipality’s ability to exercise its refuse removal function in the Township is questionable. This argument was not raised during the court proceedings, which seems like a missed opportunity. Surely, the proclamations compromise or impede the ability of the Municipality to administer refuse removal services and to receive revenue from this service? Under the new constitutional order, only a municipality is competent to undertake refuse removal services and impose refuse removal fees. It can do this itself or through a service provider. In this case, if the Association wants to be appointed as a service provider in the Township, then it must engage the Municipality so that the relevant process can be followed. Thus, it is not surprising that the Municipality has appealed the judgment.

By Tinashe Carlton Chigwata