Today, many of the so-called "previously disadvantaged communities" remain disadvantaged as before, as many residents across South Africa continue to face socio-economic challenges like those experienced during apartheid. This is partially due to the persistent failure of municipalities to fulfil their constitutional mandate and improve the living conditions in local communities. 

Municipalities serve as the primary agents of service delivery and thus play a critical role in shaping the quality of life for their residents. Thus, the nature of local governance directly impacts the well-being and livelihoods of local communities. This is demonstrated in the case of Kunogqala Local Residents v AB Xuma Local Municipality, where local residents approached the Eastern Cape High Court to compel the Municipality to take action to construct an access road in Nogqala Village. This article provides a summary of the judgment and highlights key lessons derived from the case.  

Summary of the judgment

For several years, the residents of Kunogqala engaged in public participation processes, urging the Municipality to construct an access road. This development would be transformative, as the Kunogqala community has never had such infrastructure since the dawn of democracy. Despite the Municipality’s commitment to heed their request, no action was taken to commence construction of the access road. 

Frustrated by the Municipality’s inaction, disgruntled residents approached the Eastern Cape High Court, to compel AB Xuma Local Municipality (the Municipality) to commence with and complete the construction of the Nogqala access road, which would connect their village to the nearby towns of Ngcobo and Ugie. The applicants argued that the Municipality’s failure to construct the Nogqala access road violated their rights to human dignity, education and to practice their culture. The applicants contended that the lack of access road created hardship in trying to access the surrounding towns, where they go to shop for groceries, access banking services and work. The applicants relied on, inter alia, section 156 of the Constitution, which empowers municipalities to administer local government matters listed in Part B of Schedule 5. This Schedule confirms that "municipal road" is a local government function. 

The Municipality opposed the application on a technicality, stating that the applicants failed to identify or describe the location of the road to which they refer. However, in their opposing papers, the Municipality acknowledged that the access road to and from the Nogqala Village was in substandard condition, thus alerting the Court that the Municipality was aware of the road to which the applicants refer in their application. 

The Court held that service delivery rights encompass municipal services to all persons residing within the Municipality’s jurisdiction. The Court stated that public powers must be exercised in the furtherance of public interest. Where a statute confers a right, its provisions must be upheld and failure to do so is fatal. Additionally, the Court emphasised section 152(1)(b) of the Constitution, which mandates municipalities to ensure the provision of services in a sustainable manner, along with section 195(1)(c) of the Constitution, which requires that the public administration be developmentally orientated. In this regard, the Court stated that the Municipality has not alluded to the steps it has taken to construct the access road, despite acknowledging that the road is currently in sub-optimal condition. Therefore, the Court found that the Municipality’s conduct is not developmentally orientated and held that the Municipality’s failure to take steps to construct the Nogqala access road amounts to illegal conduct and is unconstitutional. Accordingly, the Court ruled in favour of the residents, directing the Municipality to commence the process of constructing the access road, and to report progress to the Court. 

Transformative constitutionalism in local government

The judgment emphasises the transformative role of local government which is anchored in the Constitution. Constitutionalism connotes the idea of limited government to prevent arbitrariness and uphold the rule of law (Kibet & Fombad, 2017). It aims to ensure that public powers are exercised to promote  rather than human rights.  Transformative constitutionalism thus connotes that the Constitution should be used to eradicate inequalities and take the country forward through broad scale socio-economic development. In this case, municipalities must be proactive in addressing past injustices through ensuring sustainable socio-economic development. Unfortunately, in this matter, the AB Xuma Local Municipality’s conduct was deemed unconstitutional and developmentally regressive. 

The importance of meaningful participation

While the Municipality engaged with Kunogqala local residents and held public meetings, including one in March 2023, these interactions did not yield positive outcomes. The Municipality failed to demonstrate any budget allocation or planning towards the construction of the access road, rendering the public participation processes a futile exercise. Public participation should go beyond a mere tick-box approach. The inputs made by the public should influence the formulation or revision of the Integrated Development Plan and budget allocations within a Municipality. In this regard, the Municipality’s failure to give genuine consideration to the requests made by the community demonstrated that the Municipality's engagements with the Kunogqala community were done to ensure mere compliance with legislation rather than to empower the residents to shape service delivery in their communities. This raises a critical question: What is to be done about municipal officials who fail to respond to legitimate concerns of the public? While municipalities are not expected to fulfil every request made by residents, they are obliged to engage with such request transparently and provide clear information on planning and progress. This approach is essential to ensure that municipalities are responsive to the needs and priorities of their communities. 

Accessing courts to hold municipalities accountable for poor service delivery

Accessing courts is an expensive and time-consuming process that should be avoided where possible. Residents who take legal action generally do so after exhausting all other avenues to hold their municipality accountable. In this matter, the residents first issued a letter of demand to the Municipality, which was met with opposition rather than cooperation. This adversarial approach reflected the Municipality’s reluctance to act in good faith and fulfil its commitment to construct the access road. 

While courts play a crucial role in upholding residents’ rights, litigation should not be the default mechanism for ensuring responsive service delivery in local communities. Instead of leaving residents with no choice but to approach courts, municipalities should establish effective grievance mechanisms that allow residents to promptly resolve service delivery issues at the local level. 

Conclusion

Municipalities should serve as enablers of socio-economic transformation in local communities and not  as barriers to progress. The case of Kunogqala Local Residents v AB Xuma Local Municipality demonstrate how municipalities often hinder (rather than facilitate) socio-economic development within their respective jurisdictions. Residents are increasingly turning to courts to extract performance and accountability from municipalities, indicating a lack of sound governance and responsive service delivery. If this trend continues, communities like Nogqala Village will remain trapped in cycles of poverty and inequality, thus further widening the gap between the aspirations of the Constitution and the lived reality of many South Africans. Responsive local governance is crucial to bridge this divide and ensure that local government fulfil its developmental mandate.

By Jennica Beukes, Legal practitioner and Doctoral Researcher