Local "government"

A friend of mine is a councillor in a local municipality. He recently had this to say:

Local government is entirely mis-named. It's not government at all (a good thing), but it pretends to be a government (a bad thing). After an involvement of about 20 months, I am convinced that municipalities should resume their former status of service organisations, limited in scope only to the provision of electricity and water, sewerage disposal, solid waste removal, and the maintenance of local roads, most if not all of which functions can be easily privatised. Such municipalities can be controlled by non political councils consisting of unpaid volunteers.  If a town really wants to have a mayor for ceremonial functions, let it elect to have one. I suspect that many municipalities could run well enough without councils at all.

The objective record seems to suggest that towns get on and run themselves quite well enough as long as the level of service delivery is only just a bit higher than catastrophically bad. According to the Lightstone Risk Management company, the municipality recording the highest growth in real estate value in 2010/11 throughout the whole of South Africa was Prince Albert. At that time it had a hung council which met only for the purpose of staging walk outs, and an MM who spent most of the year out of office suspended on full pay. 

I am certain that at least 80% of the time, energy and hard resources of our municipality is expended on matters that have nothing to do with the provision of essential services. It is astonishing to me that councillors and senior officials who campaign for office or who apply for jobs on the basis of their fitness for purpose, suddenly acquire the need for endless education and training on matters that extend from climate change (sic)  through AIDS counselling to LED (Local Economic Development) after acquiring office. Our  Council/municipality will spend well over half a million this year on the costs associated with education and training for people who should already be fit for purpose. Education and training incorporates such delightful perquisites as comfortable hotel accommodation, sitting doing nothing all day except doodling with partial attention on some totally inept presenter, and disproportionate vehicle mileage claims which help individual cash flow no end. In 20 months our Council has not received a single solitary report back on a training course attended.

The biggest myth of local government is that it is developmental.  I have read all the laws, statutes and SALGA position papers on the subject, and still have no clue whatsoever what distinguishes a developmental municipality from any other kind of municipality. I ask my fellow councillors the same question, the DA the same question, and any itinerant economist who wanders into our domain the same question, and I still haven't received an answer. I have developed and frequently offer to anyone who will read or listen a fully worked out and (I think!) an economically literate argument proving conclusively that "job creation" is a total, unrehabilitatable fiction, but municipalities continue to pretend that they have this legitimate mission of creating jobs, and when Extended Public Works Programmes, funded by the central fiscus provide funds, we employ scores of people whose task might be, for instance, to pick up litter that people helpfully provide by throwing it on the ground in the first place, or to sweep dust off tar roads in howling gales that blow it right back again. And this then gets claimed as a successful "Job Creation" programme.  And don't get me going on LED, currently being run in our town by a failed entrepreneur paid by taxpayer's money. In the meanwhile we produce entire forests of utterly useless documentation - annual reports, integrated develoment plans, performance reports and an utterly ghastly thing called the Service Delivery and Budget Inmplementation Plan (SDBIP) which nobody ever reads. We get terribly confused between serving the residents and ratepayers, for the one part, and the Auditor-General for the other, and default to serving the A-G, because a so-called Clean Audit looks good on a political CV. The A-G is incompetent  arrogant and prodigously expensive. The annual audit is a cost incurred outside of our control. This year it mounts to 7% of municipal revenue. Shocking. 

I have more than once asked the DA to tell me what, at policy level, would distinguish a DA council from an ANC council, and have never received an answer.

So why do I do it? I mostly think I shouldn't. The little stipend that comes with the job is not unwelcome in the household, but I bank it with a troubled conscience, which I largely assuage by telling myself that the Council is better served by a sceptic, a critic, and at times even a libertarian. I claim no other expenses to line my pocket, I read all the voluminous documentation (all in Afrikans) and I try to ask tricky questions. Sometimes in Council I have fun by inventing extravagant and far-fetched metaphors, and imagine myself in the tradition of Burke, or Churchill, or I quote Tom Paine, or the Preamble to the American Constitution, in response to which I receive at best, a muted reaction, or earn the outright suspicion of my fellow councillors.

Dogs in Kouga

PO Box 3302

Jeffreys Bay

6330.

12 January 2013

The Municipal Manager

Kouga Municipality

33 Da Gama Road

Jeffreys Bay.

Dear Sir

Dogs in Kouga

I am a dog-owner living in Central Jeffreys Bay. I walk my dog on or near Dolphin Beach every day, as part of my daily exercise routine. My dog is a border collie cross, one year old, well trained and very docile.

In the year in which I have owned the dog I have walked him on the beaches of Jeffreys Bay without incident.  Anyone who actually takes a dog to the beach will know that the dogs are not territorial about the beach area, and they regard a walk on the beach as an opportunity to meet new and interesting friends, much like their owners. Incidents of aggression are few and far between, and are easily dealt with.

I acquired my dog after the death of my wife. He has been an essential companion to me during a difficult, sad and lonely phase of my life. I suspect this may be the case for many other dog-owners in the retired community in Jeffreys Bay.

The Kouga Municipality, like every other municipal structure, has more than enough existing laws to deal with public nuisances, be they caused by humans or animals. Unruly behaviour, drunken behaviour, beggars and tramps, people littering and defecating in public areas (for example, outside the municipal offices at the Shell Museum), people scattering broken bottles on the beach – you have many more serious issues to deal with before you need to address the occasional dog running free on the beach. 

Banning dogs from an area such as a beach in the absence of specific cause or complaint is no different to banning people from a beach without cause, as we used to do so often in the apartheid days. Is a dog guilty without reason, just because it’s a dog? Is a man unwelcome just because of his skin colour? We have a much bigger problem than a few dogs on J Bay beaches. We have frequent, serious cases of robbery in certain areas of certain beaches. Do you suggest we ban all poor people from our beaches in order to solve this real and serious problem?

The press report concerning this proposed action refers to “numerous complaints from beach-goers about aggressive dogs”. It is a fundamental point of law that an accused is entitled to know the specific charges brought against them, and to face their accuser. Before taking any action on the matter of dogs on beaches, please publish the names, dates, and details of these “numerous” accusations, so that we may all establish whether the many law-abiding dog owners are being held hostage to a few embittered individuals.

Jeffreys Bay is a town dependent on the good will of visiting tourists for its very survival. As you state in your notice, “For many, dog-walking is an important part of their coastal experience as well as a form of social recreation.” Please do not even consider banning a key part of the experience that many tourists enjoy in Jeffreys Bay.  By all means, use the considerable powers already vested in your security staff to apprehend and prosecute public nuisances, be they dogs or people or whatever. But please do not pass a law which makes dog owners guilty for the mere act of owning and exercising their dogs.

Yours sincerely

Trevor Watkins (on behalf of Sparky)

Bypassing Government

Governments are the  most destructive force on the planet. Governments caused the premature death of  more people in the 20^th century than all other natural forces combined. Governments continue to destroy lives and wealth at a phenomenal rate in the 21^st century, and yet we love them, admire them, and die for them.

Every now and then governments become so cruel or so useless that their citizens rise up against them and try to overthrow them, often unsuccessfully and at great personal cost. However, there is an alternative to revolution – you can just bypass government, and leave it to wither on the vine for lack of attention.

This article describes an approach to bypassing local government in Jeffreys Bay, South Africa

Justification

Local governments levy rates in advance in exchange for a promise to provide specific services.  In order to live comfortably you need a reliable water and power supply, housing, road access, security, sewerage, waste disposal.  If you don’t have these minimum services your life becomes miserable and dangerous, no matter who is responsible for providing them nor how much you have already paid.

Convincing yourself that you should drink polluted water, drive through potholes, live with sewerage in the roads, just because you have paid some tax to some bureaucrats, is like cutting off your nose to spite your face. If you know how to fix your water supply, or to fix the pothole in your road, then just get on and do it and stop allowing the bureaucrats to win twice, first when you pay them and second when you suffer for the lack of a needed service.

Consider rates as just another unexplained and unexpected tax, like a transformation tax, or a fuel levy hike. Pay it for the same reason you always pay your taxes, to avoid going to jail. And having paid the tax, forget about it, just as you do for all the other taxes you already pay but for which you expect to receive nothing in return.

Proposal

Just bypass the bureaucrats in local government. Stop playing their game by their rules. Write them off as the useless incompetents that they are. Begging some lazy and unmotivated municipal official to finally get around to fixing your specific problem is a shortcut to a heart attack or a nervous breakdown. 

Of course it is expensive. Of course you have a right to service for your taxes. Of course something should be done. But have you noticed that the situation has been like this for years, that it is not getting better, and that the quality of your life is getting worse? How bad does it have to get before you try a different approach?

Pay as little tax (rates) as you possibly can. Don’t waste your time begging for services. Organise yourself and your neighbours to provide the services you need, for yourselves. Farmers have been doing it for years – if your water is no good, sink your own borehole and filter it yourself. If the road outside your house is full of potholes, fix them. If your sewerage is overflowing, put in your own septic tank, or hire a private sewerage disposal company.

Strategy

There are some key issues to consider:

• Don’t try to become a parallel municipality, where now you are in charge. Everything must be voluntary, or else it is just another tax. If you can’t get enough people to support a particular idea or project, then it shouldn’t be done.
• Keep it simple. Avoid complexity.  Form small, local street committees amongst people you see everyday. Have many projects and few meetings. Plan to have fun.
• Never require payment for something in advance of its imminent delivery. Only ask for funding for very specific purposes, rather than large annual contributions for no specific project. Small projects with early completion dates costing a small amount are much better than huge projects with giant war chests which must be collected before they can even begin.
•  Don’t worry about free riders. If YOU and a few others think it is worth doing, then do it without giving a thought to others who may benefit without paying. They are free riders today, tomorrow you will free ride on them.
• Get organised. Understand the difficulties up front. Know what you are letting yourself in for. This is almost certainly not a full time job for you. Don’t be embarassed to make a profit, and pay a dividend to your members/workers, because all unpaid voluntary work ends in disillusionment after about 9 months .
•  Keep close track of the money. Disagreements over money destroy many successful relationships and partnerships. Use an accounting system.
•  Communicate often, clearly and briefly. Use technology. Don’t go dark. Advertise your successes, acknowledge your mistakes
• Be willing to cooperate as much as possible. Don’t succumb to “not invented here” syndrome, or the desire to own and control everything.
•  Be careful of democracy. Just because a majority thinks something is a good idea does not mean you can force someone who doesn’t like the idea to do it. Remember, the only power you may exercise is persuasion.

Specific ideas for Jeffreys Bay

•            Consider bringing many small projects together under one loose umbrella. You don’t need to duplicate bank accounts and charges, membership databases, accounting systems, communication and administration costs, audit fees, etc, if you can work out a fair and cooperative structure between new and existing organisations.
•       For example, consider using the Jeffreys Bay Residents Association (JBRA) or some similar existing organisation as the umbrella body.  Use its bank account, membership database, accounting system, website, and communication channels, rather than develop duplicate ones. For each street committee, project, conservancy, etc, establish a unique identity and account within the JBRA accounting system. Ringfence funds to and from these projects. Publish monthly accounts.
•             Strengthen the JBRA committee structure to incorporate all sub-structures such as Dorp van Drome, Kloof conservancy, etc. The JBRA would have no say in how these sub-structures organise themselves, but would simply provide common administrative and accounting facilities. If these are already in place, consider sharing them.
•       Beware of possible fraud and malfeasance with many new, small structures requesting funds and offering services to the community. Some sort of credibility and accountability must be provided, otherwise every chancer will start a street committee and request payment in advance, into his own bank account.
•       Allow for failures. Most good ideas degenerate rapidly into work. Very few voluntary committees keep their enthusiasm for longer than 9 months. Setup  a structure with some history, some continuity, some legal standing.

This short note outlines an alternative, non-violent and non-confrontational way of dealing with the reality of collapsing services in South Africa. Instead of burning infrastructure in violent and usually pointless confrontations with authority, simply bypass them and get on with building and repairing your own infrastructure.

Trevor Watkins

The real “state” of the municipality

The Jeffreys Bay Residents Association (JBRA) is holding a public meeting at 6pm on Monday 10^th of December 2012 in the Newton Hall in Goedehoop street. At this meeting we will discuss with concerned residents some of the burning issues flooding our small town.

Water
We seem to always have too much or too little of this vital fluid, in the wrong places, of the wrong colour and content, and at the wrong times.

The borehole water supply to Wavecrest is totally unacceptable. It is polluted with manganese and iron, it frequently comes out brown or worse, it is undrinkable, destroys clothing washed in it, and clogs up filters within hours.  An expert from the Department of Water Affairs (DWAF) was contacted by the JBRA. He has investigated the borehole supply and will be submitting a report to DWAF and the JBRA shortly. His preliminary conclusions indicate that the brown water problem is due to inadequate filtering at the pump station, inadequate settling time in the reservoir, resulting in manganese precipitating out in the Wavecrest pipes themselves, leading to the regular incidents of discoloured water. The solution is to reduce the load on the existing boreholes by sinking more boreholes, by ensuring that all filters are adequately serviced, washed and in use, and to allow more time for the heavy metals to settle out of the water before being pumped into the pipe network. All of this will take money and will from the municipality, which is in even shorter supply than drinkable water in Wavecrest.

A major sewerage leak into a public road outside the Waste water treatment works behind the mall has been going on unchecked for months. A resident brought this situation to the attention of a JBRA committee member, who confirmed the spill and photographed it. This spill was shown to the expert from DWAF, who was horrified. He found that the spill was caused by a blocked drain at the treatment plant.  He contacted the responsible department at the municipality immediately, and received the assurance the problem would be fixed. For  3 subsequent weeks the JBRA committee member checked and photographed the flow continuing as before. Finally the DWAF expert visited the scene personally again and held a meeting with municipal officials immediately thereafter. Finally, this flow has stopped and the stream of sewerage in the road has dried up.

Although there have been no recent sewerage leaks onto main beach, the stormwater drain next to the ski boat club continues to look like a cess pit. Apparently the aging pumps here have been replaced.

The DWAF expert took samples of the permanent water from the side of the Aston Bay road below Ocean View and found this to be essentially raw sewerage with an e-coli count in the millions. This constitutes a massive health hazard to the local residents, and any passers-by. DWAF has issued an instruction to the municipality to resolve this situation immediately. So far, no progress has been reported.

The recent heavy rains caused many new potholes to emerge in our roads. The council has fixed some, the residents have fixed many others, and some whoppers still remain. Although serious, we are better off than our neighbours in Aston Bay and Paradise Beach, where some roads are still underwater or unnavigable. The only long term solution to this problem is to resurface the affected roads.

Kouga continues to use a bucket system for sewerage collection in our townships, despite claims to have eliminated it. This is a disgrace and discredit to our region.

Disaster Management

Kouga has had its fair share of disasters this year, and we have not coped well. Floods have knocked out the bridge to St Francis twice, fires in St Francis have destroyed half a billion rands worth of value, sewerage spills on main beach cost us our Blue Flag status for awhile, and may have cost us the Billabong. Crime continues to plague our residential areas.

When asked, the municipality was unable to produce a current disaster plan, despite having a disaster planning manager.  The fire services in St Francis were terminated against the objections of the residents. The Humansdorp fire department took 15 minutes to get to St Francis, and had to negotiate a temporary sand bridge to get there with their trucks.  If another fire broke out in St Francis on a windy day, or a fire amongst the upmarket thatch houses in Jeffreys Bay, would the results be any different now?

Financial Situation

According to reliable reports, the financial situation of the municipality is getting worse, not better. The level of collections is closer to 60% rather than the 90% so optimistically forecast. Major creditors such as NMMC water and Eskom remain on the books. The salary bill remains sky high. The public financial watchdog committees do not meet or report.

There is a real possibility that the Kouga Municipality may be held liable by the insurance companies and property owners for some of the losses sustained in the St Francis fire. If that is the case, then we can only expect a massive increase in rates to pay for the losses, or the court case to avoid paying.

Densification

The Kouga Municipality is proceeding with its plan to add 2,500 houses to the area between Ocean View and Aston Bay, despite its complete inability to deal with sewerage overflows in that area from the current housing. Without adequate planning and infrastructure, this scheme will be just one more disaster to add to the Kouga Municipality’s already impressive record. The JBRA has been enrolled as an interested and affected party in all future planning in this area.

The C Place office

A small item of good news. The JBRA and other organisations has long battled to find a reasonable place in which to hold its meetings, begging space from local sports clubs and bars when needed. Following an initiative from Trevor Watkins, the ward 11 council office in Kwagga Street is now available for meetings, and is being setup as a local community office. Despite frequent requests, the Kouga Municipality was unable or unwilling to supply furniture for this office, so a cheap desk and chairs has been purchased and installed. If anyone needs a venue for a meeting, please contact Trevor on 042 293 1405 or 083 4411 721.

The residents association

The JBRA has had an interesting year. We have been active participants in 3  succesful marches on city hall to protest the lack of service delivery. Arising from these marches we have taken our right to march and assemble to the high court in Grahamstown, which found that the municipality did not adhere to the law.  We have participated in numerous meetings, including on the financial oversight committee and district roads forum and on proposed changes to the liquor trading hours. Our JAG1 email discussion group has finally gained some traction and is now a regular conduit for information to residents. Our chairman has had a number of articles published in the local press.

Unfortunately we have not focussed strongly on increasing paid membership during the year,  which languishes around 50 paid up members. We are hoping that more paid-up members will join at our forthcoming general meeting on the 10^th.

In order to be effective, the JBRA requires a full and functional committee. We have battled through the year without even a secretary, which means that the chairman must pick up a great deal of the load.  The need for an active and aggressive residents association has never been greater, but this can’t happen without commitment from members. We appeal to residents with some time and energy to spare to contact the chairman Paul Hjul as soon as possible on 042 293 3167 or 071 956 5953.

During 2011 the JBRA floated the idea that residents should take the maintenance of the town into their own hands. This idea has taken off wonderfully with the formation of the Dreamers by Ernst Marais and others. They have got themselves organised, can be seen doing great work all over town, and have even bigger plans for the New Year. The JBRA salutes these Dreamers, and wishes them the very best for the future.

Please plan to attend our public meeting on Monday 10^th December at 6pm at the Newton Hall.

The St Francis Bay Fire Crisis: Its Causes and Cures

The following article is copied, with permission, from chrislbecker.com, a blog dedicated to Liberty, Private Property, & Voluntary Exchange

By now most news readers will know that some 75 homes burnt to the ground in a raging fire in St Francis Bay over the weekend. As sad as this story is (this writer has spent at least 15 pleasant Christmas holidays in St Francis Bay), this is a crisis that has been waiting to happen, that  residents of St Francis Bay were aware of.

On August 16, 2010 the St. Francis Bay resident’s association (SFBRA) sent a Notice of Disputeto the Kouga Municipality (KM).

The Notice of Dispute starts off with:

NOTICE OF DISPUTE

A. DECLARATION OF A DISPUTE (“DISPUTE”) BETWEEN THE ST. FRANCIS BAY RESIDENTS ASSOCIATION (“SFBRA”) AND THE KOUGA MUNICIPALITY. (“KM ”)

B. THIS DISPUTE IS A DISPUTE REFERRED TO IN SECTION 102(2) OF THE MUNICIPAL SYSTEMS ACT 32 OF 2000.

C. THIS NOTICE OF DISPUTE IS SERVED IN RESPECT OF GROSS MISMANAGEMENT OF RATEPAYERS FUNDS AND FAILURE OF THE MUNICIPALITY TO DELIVER EFFECTIVE
SERVICES. MUNICIPAL SYSTEMS ACT 31 OF 2000 73 (1) & (2).

D. THIS NOTICE PROVIDES THAT UNLESS THE DEMANDS CONTAINED IN THIS MEMORANDUM ARE COMPLIED WITH BY THE MUNICIPALITY BY 1 DECEMBER 2010, MEMBERS OF THE SFBRA INTEND TO WITHHOLD RATES AND ONLY MAKE PAYMENT FOR SERVICES.

etc.

Several disputes were lodged, but on page 8 under the heading “ISSUES RELEVANT TO THE NOTICE OF DISPUTE”, is a subheading “3.8. Fire Protection.” It reads (emphasis as found in original):

(a) The Fire Hazard in St. Francis is life threatening and of grave concern to residents, yet in spite of the fact that SFB have thatch on the majority of homes, the SFB Fire Fighting Unit was withdrawn from the town. This has already led to the fact that 2 years ago a home was burned to the ground, as the Fire Engine was not able to reach it on time. See Appendix 32 third row. On the 3rd of August this year, a home was saved from fire by locals who ripped out burning thatch from its roof. The fire engine eventually arrived. Major fires have threatened homes and lives over the last two years (See Appendix 32).

(b) There is an urgent need for maintenance of fire fighting equipment.

(c) Public Open Spaces need to be cleared of Bush and the KM needs to monitor property owners with regards to keeping their plots free of alien vegetation. Currently it only happens sporadically and follow up is inadequate.

The seeds of this crisis were sown because local government was responsible for fire fighting in SFB. Because local government has monopolised the provision of fire fighting services, it has tended to reduce the quality of the product that it provides, while still charging the same amount. This can be compared with Eskom, the government monopoly that advertises for its clients to use less of its product, while hiking prices.

Instead of employing a private fire fighting company to clear public spaces of bush, and to be ready to respond to fire emergencies, the SFBRA attempted to force government to provide services by withholding taxes. This strategy failed. The government fire fighters could not be dispatched from Humansdorp in time, and this gave the fire just enough time to get out of control.

The lesson of this fire is that private citizens must do more than merely withhold taxes to try and pressure government into providing services. In fact, communities should not want government to provide any services at all. Communities should take it a step further and withhold taxes while taking back the responsibility of managing these services as well. This means communities should employ private fire fighting units to take the necessary preventative steps, such as clearing public spaces, and also responding to emergencies.

There is a place for the insurance industry in this process as well. It would have cost the insurance industry a fraction of what it will cost them now to rebuild these homes if they had maintained a private fire fighting unit in St Francis Bay since its disbandment several years ago.

Do the math: A capital outlay of two fire engines costing about R150,000 each, plus a fire station costing R1,000,000 or less. Total capital outlay R1.3 million. Ongoing costs of four stand-by fire fighters at salaries of about R250,000 each per year, R1 million per year.

Estimating a cost of damages of 75 homes with an average rebuild cost of R3 million plus household contents of R1 million, and the cost to rebuild this section of St Francis Bay to insurers will be about R300 million (very rough estimate).

With a capital outlay of less than R2 million and an ongoing annual cost of R1 million, SFBRA and their insurers could have had a private fire fighting and prevention unit operating for nearly 300 years.

Of course, the costs could have been split between the residents and also insurance firms and paid for on an ongoing basis. The fire fighting unit could also be tasked with doing more: think crime prevention, sea rescue, to mention two other responsibilities it could take on. Furthermore, there would not only need to be one such private fire fighting units, but two or even three could compete to provide these services, which incentivises better quality service at the lowest possible cost.

I want to end with the following: the South African government cannot be blamed for their failures. As the greatest economist who ever lived taught in his book “Socialism”, government has no way to tell whether it is doing a good job or not, as there is no profit and loss signals to communicate success or failure to them. Therefore governments are doomed to fail at delivering services. “Market failures” are therefore inevitable wherever government is involved. It is time the people of South Africa learnt this lesson, and started taking back the full responsibility for running their communities.

h/t David Joffe for the SFBRA Notice of Dispute.

 

Teetotaling after midnight

The Kouga Municipality has amongst other mishaps landed itself in a situation where it is in default of the provincial liquor trading laws by not having a valid trading hours by-law. It is a requirement that trading hours be set by the municipality and although this power seems to be historically misunderstood by municipalities resulting quite often in protracted litigation and animosity between legitimate business owners and municipal authorities. In Kouga’s case the municipality introduced proposed liquor trading laws several years ago and ultimately managed to bungle up the public participation process to the extent that the 2006 by-law was legally assailable and when certain publicans were brought to prosecution under the by-laws the High Court was asked by them to set aside the by-law for want of legality – which happened much to the municipalities embarrassment. For whatever bizarre and ill advised reasons the municipality appealed. In November 2011 the Supreme Court of Appeal dismissed with costs the municipality’s appeal although it modified the High Court Order to specifically protect the license holders against being prosecuted (Kouga Municipality v Bellingan and Others (121/11) [2011] ZASCA 222)*.
This litigation came at a great cost to Kouga residents as ultimately the officials and politicians involved in creating the mess were never held accountable. The costs in litigation ultimately were born by Kouga ratepayers and the publicans themselves (as full costs are never recovered).

As of November 2011 therefore liquor establishments in Kouga cannot be prosecuted for trading outside of the hours prescribed by the municipality in the invalid by-law. The municipality must pass a new by-law and has taken more than a year to get to the point of having public meetings to get Kouga in compliance with the provincial statute. The fact that the municipality was unable to achieve compliance in almost a year is yet another indictment against the competence and diligence of various people.
Therefore when I saw a notice concerning the setting of the trading hours I wasn’t particularly concerned, I had assumed (wrongly it turns out) that what would occur is that the status quo trading hours would be put into the necessary format and that the expensive lesson from the courts would have been learnt. Naivety knows no bounds and despite knowing how dangerous Kouga’s approach is to the Rule of Law I frequently find myself affording the benefit of the doubt to the municipality. On it emerging that liquor licence holders were specifically being invited and handed copies of the draft document my personal interest (having witnessed the folly in Makana in 2007) my personal attention was captured and I decided it best to attend the meeting as part of my responsibilities to the municipality.

As a rule I am of the view that the Association needs to apply an approach that our first concern with municipal decision making is legality and democracy, particularly when the decisions are of a divisive or political nature. I believe that the JBRA must have four requirements be met in everything the municipality does (a four way test as it were):

1. The municipal action or by-law must in and of itself be procedurally lawful (in particular it must be intra vires and have been authorized in accordance with the relevant statutes)
2. The municipal action or by-law must serve a rational purpose
3. The municipal action or by-law must have been preceded by proper and appropriate public consultation
4. The municipal action or by-law must pass section 36 (of the Constitution) muster if it limits constitutional rights

Whilst our Constitutional jurisprudence has developed such that the tests presented may be merged under a general rubric of “legal and fair” there are practical and theoretical reasons to avoid conflating issues. If a municipal action or by-law violates any of the four tests the JBRA simply cannot support the decision as it would not be in the interests of residents. In addition to these tests municipal action also needs to be in the interests of residents generally and a few principles of decision making ensure that this occurs:

1. Any course of action which places the municipality at great risk of litigation (and the dangers arise from litigation) should be subject to heightened scrutiny.
2. The person who wishes to change the status quo has the responsibility to demonstrate that the change is beneficial.
3. Every decision must have sustainable results. The municipality cannot spend money it does not have in the hope that magically the money will arrive, nor can it allow construction without infrastructure or act as a costly buffer against the inevitable.

At the presentation of the by-law the municipality absolutely avoided answering the question “what is wrong with the status quo” the closest thing to an argument is that there is a requirement to have a by-law but that merely advances the argument to formalize the status quo into a by-law it does not explain the municipalities proposals, some of which are highly irrational. By way of example the by-law has later trading hours in purely residentially zoned areas than in mixed use areas. The by-laws will allow for champagne breakfasts but not the service of beer (umqombothi or "classic") with a meal before 11:00 in the morning.

The proposed by-law fails in so many respects to be good at law or practice that regardless of what liquor trading hours a person would like to see the Draft Liquor Trading and Hours Bylaw is likely to be a disaster in the making. At the public meeting the Director responsible for the process undertook to receive written representations of the draft for a period of two weeks (which ends next week Thursday) and that interested parties would be able to motivate to present to Council who actually make the decision at the December meeting. Hopefully the publicans, liquor store owners and guesthouses will amongst themselves make good submissions and take up the opportunity to present to Council to avoid the municipality again making a decision without the necessary information. As the JBRA we will need to decide whether we actually have a sufficient interest to present a case orally – and what that case would be. My view is that our primary duty is discharged by fighting for public consultation and a transparent process and that we can confine ourselves to written submissions, however we certainly do have the competence to present (sadly the JBRA may actually be more competent than the municipality).

So now there is the opportunity for residents to formulate and express their views on liquor trading hours. The options should range from almost unlimited trading hours with businesses determining their own trading hours individually – what makes this option attractive for Jeffrey’s Bay town is that it could be a tourist statement – through to very restrictive conditions based on what residents want with middle options such as properly designating areas where trading hours are short and areas where trading hours are long. Many residents and residential areas may wish for early hours primarily in the hope of noise reductions or other reasons** however what is worrying is that the municipality has attempted to claim that it has thousands of complaints yet I have not received a single complaint about liquor trading hours being what they are. It is possible though that with so many other problems in Kouga liquour trading hours will only become a question when asked, which is what is happening now.


As such at this juncture because of the bad foot on which the municipality is proceeding the JBRA as a matter of principle cannot support an illegitimate process which will harm jobs and damage businesses, what we can hope for is that the Council recognizes what its actual responsibility is. A discussion about what residents want - what areas should have what trading hours - is a difficult one to hold but if it isn't held then politicians will make the decisions without proper information.

* Technically only the Applicants (the three licence holders who approached the High Court), however any prosecution for trading outside of hours in Kouga would fail because of the declaratory order.
** Municipalities often seriously misconstrue what their powers on liquor trading under the Act are and mistakenly assume the relevant section of provincial legislation to be a power to determine all manner of things such as the hours during which a licensed premises may operate (the Makana municipality attempted to dictate the closing hours of pubs and restaurants in Grahamstown using the liquor trading hours provision, after High Court litigation they like Kouga were forced back to the drawing board on liquor trading hours), and if the municipality is not held to check – if we let moralist sentiments against alcohol trading, or not-in-my-back-yard early closing hours approaches dominate – a costly and futile exercise could easily occur. Uncertainty in the industry places many jobs and risk and invariably if liquor stores are required to shorten their hours their staff will simply be underemployed and effectively be paying a tax in the form of lost wages, similarly if business owners need to defend their businesses through legal channels they will incur costs and so will the municipality. The truth is that experience shows that shorter and more restrictive trading hours often result in more noise and noise nuisance is best addressed in other by-laws.

The significance of the JBRA march on 3rd October 2012

Approximately 100 people participated in the Jeffreys Bay Residents Association march on the Kouga Municipal offices on Wednesday, October 3^rd 2012.  Although a much smaller march than the 12^th September affair, this was still a good turnout for a single residents association in Kouga. This civil protest had unusual significance.

This march was surrounded by controversy. The municipal manager of the Kouga Municipality(KM) refused permission for the march to proceed in a letter received the day before the march.  The KM did not attend the police briefing sessions required by law, and did not respond to several communications regarding the march. Attempts were made to sow disinformation in the community by sending SMS’s stating that the march had been cancelled.

This march re-affirmed that South Africa is a country governed by law and a constitution, and not by men.  These marchers had much in common with those farmers in 1899 who stood up to the might of the British Empire for the sake of their freedom, with those students in Soweto who defended their rights as citizens against an all-powerful state, with those Germans who tore down the wall dividing them in 1989. Despite an order banning the march, these brave people gathered and walked because the law gives them the right to peacefully express their opinions.  On behalf of all the citizens of Kouga, these 100 people demonstrated that the officials are not our masters, that they do not have the final word on what happens in our district, or our country. From now on, everything this municipality does is subject to the law and to the constitution.

These 3 recent marches have awoken a new sense of solidarity and determination amongst the citizens of Kouga. The marches were not about politics, or power, or advantage. Citizens, rich and poor, black and white and coloured, old and young, came together peacefully and in good spirits to demand that the civil servants simply do their job, earn their large salaries, look after and develop our beautiful region. These marches made it clear that people of influence and power in the administration will be held to account, individually, for the shortcomings in the performance of their duties.  After years of corruption, waste and incompetence the citizens have finally had enough, and are stepping up to make their voices heard. “Shape up or ship out” is the clear message.

It was Abraham Lincoln who said “You can fool all of the people some of the time, and you can fool some of the people all the time, but you can’t fool all the people all the time”. Our administrators and officials in Kouga should take note.

Trevor Watkins