In conclusion and in sum, the following:
· In terms of sections 40, 41, 43, 151, 205(1), 214(1), 215(2)(c), 238 and 239 of the Constitution, Kouga Municipality has to bring the decision-making processes closer to the local residents and ensure access to the process in order to provide a dedicated democratic and accountable local government to ensure service delivery in a safe and healthy environment with the involvement of community organisations. It is a factual question whether the Kouga Municipality complies with this general constitutional obligation and it is significant to investigate.
· Apart from the above general constitutional duties, the Kouga Municipality is also constitutionally obligated in terms of section 153 of the Constitution to fulfil certain developmental duties, for instance, sustainable household infrastructure and services, integrated development planning, budgeting and performance monitoring and municipal performance management. Again, it is a factual question whether the Kouga Municipality complies with section 153 of the Constitution and it is significant to investigate.
· Taking the de facto level of service delivery to the ratepayers in Oyster Bay into account, it is doubtful whether the Kouga Municipality complies with its duties as legally directed by sections 4, 5, 6, 51(a)-(m), 95(1)(a)-(i) and Chapter 4 of the Local Government: Municipal Systems Act, 32 of 2000 (see 4.1 to 4.6 above). A municipality’s responsibilities in the exercise of its executive or legislative authority to respect the rights of citizens and those of other persons that are protected by the Bill of Rights, have already been confirmed by the courts and ratepayers therefore had a sufficient interest in seeking to impugn those decisions of a municipality impacting on the utilization of ratepayers’ funds which they contended to be unlawful (see Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) and Kempton Park/Tembisa Metropolitan Substructure v Kelder 2000 (2) SA 980 (SCA)). The Supreme Court of Appeal also endorsed the principle that in a broad sense there is a fiduciary relationship between a local authority and its ratepayers.
· From the de facto situation in Oyster Bay it is evident that the Kouga Municipality blatantly neglects to perform its functions and duties in terms of sections 152(2) and 153(a) of the Constitution in so far as there is no storm water management system in place, water and sanitation services are for all practical purposes non exciting, the beach facilities are neglected, no control and management of the local beach is exercised and the municipal roads are not maintained in Oyster Bay (see 5 above). The Oyster Bay Ratepayers Association, its members, the ratepayers and residents of Oyster Bay should consider it to approached national government in terms of section 44(2) of the Constitution in this regard.
· It is also patently clear that the Kouga Municipality do not apply the compulsory principles laid down by section 152(1)(a)-(e) of the Constitution and sections 73(1)(a)-(e) and 74(2)(a)-(i) of the Local Government: Municipal Systems Act, 32 of 2000 in order to achieve optimal service delivery (see 6 above).
· It is also significant to investigate whether the Kouga Municipality act consistently in accordance with the strict requirements of the Municipal Finance Management Act, 56 of 2003 as amplified in 7 above.
· Regarding the resent flood damage in Oyster Bay and the Kouga Municipality’s omission to act, it is significant to investigate whether the Kouga Municipality complies with the following mandatory obligations, namely:
Ø If a framework for disaster management, comprising of the necessary role players, in terms of section 42(1) of the Disaster Management Act, 57 of 2002, is appropriately established and implemented.
Ø If the powers and duties of the disaster management centre for Kouga Municipality are adequately implemented in terms of section 44 read with sections 47 and 50 of the Disaster Management Act, 57 of 2002. It is also recommended to liaise with the head of the municipal disaster management centre, who should be appointed in terms of section 45 of the Disaster Management Act, 57 of 2002 and the municipal disaster management advisory forum, appointed in terms of section 51 of the Disaster Management Act, 57 of 2002.
Ø If a municipal disaster management framework, within the scope of a disaster management plan, was prepared in terms of section 52 read with section 53 of the Disaster Management Act, 57 of 2002.
Ø If the guiding principles in the event of a disaster as specified in terms of section 56 of the Disaster Management Act, 57 of 2002 had been adhere to.
Ø What financial assistance is available vis-à-vis the availability and application of insurance payouts (and if not, the reasons for the absence of inadequacy of insurance cover), financial assistance available from community, public or other non-governmental support programmes, the financial capacity of the victims of the disaster and their accessibility to commercial insurance and in general the financial assistance provided for in terms of section 56 of the Disaster Management Act, 57 of 2002.
(Signed on 2012-08-13)
Compiled by Prof Dr DJ Lötz (BIur, LLB, LLM, LLD)
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