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

“New” “Top” “Team”, three adjectives that truly don’t describe the facts

“New Kouga top team to tackle challenges, but residents need to honour their obligations as well” – Kouga’s attempt to provide a non-answer

A promise was made to both demonstrators and the media that a response to the memoranda of grievances would be made within 14 days. Thus far the only response that has been brought to my attention is a statement written as a media report. The spin doctoring at Kouga appears to have taken the last two weeks to deliver a statement which is devoid of any relevance to the memoranda delivered to the mayor on the 12th September and the complaints raised on the 19th September. Clearly the mayor merely intended to take 14 days to write what could be done in 3 days.

I believe an ad seriatim commentary is in order – even if it makes for a lengthy read devoid of elegance. For numerous reasons I have decided to personally write on the response rather than have an official JBRA response – a more elegant less Paul-esque – response is probably in order for the 3rd October when we honour our responsibility towards the municipality so that quality services can be delivered by visibly denouncing the nonsense that the mayor is attempting to feed.

The grievances submitted by residents at two recent marches to the municipality’s offices in Jeffreys Bay are being addressed by the Kouga Municipality’s new top management team as a matter of urgency.

The same urgency with which correspondence is attended to? Or the Gobodo report for that matter? What new management? How has the management of Kouga changed in the last three months other than that acting appointees have been told that the appointment is final and litigation on the appointments has followed the patent misconduct of the mayoral committee?

This is the assurance of Kouga Executive Mayor Booi Koerat, who also called on residents to honour their responsibility towards the municipality so that quality services could be delivered.

Koerat has lost all credibility to make assurances by failing to deliver his promised turnaround strategy within 100 days. The JBRA echos a call to all residents to honour their responsibility towards the municipality so that quality services can be delivered. Your responsibility towards a democratic rule of law bound municipality include:

• Paying all lawfully levied rates and taxes in accordance with the law and raising any disputes concerning such levying in accordance with the legal provisions to execute such a dispute;
• Paying for any service acquired from the municipality;
• Holding those who assume power at the municipality to account for their actions or failure to act when lawfully required;
• Participating in and respecting the democratic and constitutional institutions on which the Republic rests – in particular contemptuous remarks about the institution of the Parliament of the Republic is anathema to civic responsibility, as three councillors appear to have forgotten;
• Attending some of the public meetings on subjects of concern to you;
• Critically reading media reports on the the state of the municipality and writing your views and opinions on these reports and on the municipality in general to the editors of the various media ventures in Kouga;
• Expressing, or choosing not to express, your political views in constitutional ways – in particular avoiding hate speech, and violence or the threat thereof;
• Conducting your affairs with regard or consideration for the interests, welfare and above all dignity of others.

Whilst it is obviously not a civic duty of residents of Jeffrey’s Bay to join the JBRA the JBRA is one of the voluntary organizations which people belong to or support because of a belief in the importance of fulfilling the “responsibility towards the municipality so that quality services could be delivered”. Perhaps a problem we are experiencing is that with none of the directors residing in the municipality there is a lack of responsibility to the municipality at the highest of levels.

The Mayor, his Mayoral Committee and the municipality’s new top management team met last week to discuss residents’ grievances, the challenges facing the municipality and how best to resolve these to establish a culture of service excellence in Kouga.

There is nothing new about the team. Several members of the team have been in municipal management positions for quite some time and others were municipal officials in different capacities prior to the elevation to their current positions. Fadi was involved in legal services and Burger was charged with risk management …

The Mayor said he was pleased with the outcome of the discussions.

On what basis should the mayors satisfaction present anything other than that he is a delusional puppet? More than 12 months of the mayor being pleased with progress has left us in a worse state.

“Our new directors and Municipal Manager are a formidable team. The Council is confident that they have the necessary know-how, determination and drive to help us create a better Kouga for all,” he said.

If they do not have the necessary know-how they should not have been appointed.

The Mayor said the new directors, who were appointed last month, were finalising detailed strategies on how to overcome the key challenges facing the municipality. The strategies will also address the nitty-gritty of the grievances outlined in the petitions.

The key challenge facing the municipality is a dysfunctional council and a mayoral committee that which assumes powers it does not have. Unless one of the strategies involves Mr Felton bricking in the mayors office whilst the mayoral committee is sitting in the office the key challenge is outside of their hands.

The strategies will be submitted to a special Mayoral Committee meeting in October so that they can be finalised, approved and implemented.

The strategies need to be finalized and discussed in council rather than subjected to the grand incompetence of the mayoral committee – this is a core problem in Kouga, things are decided in the mayoral committee and council is treated as a circus act.

The Mayor further reminded residents that they too had a role to play in ensuring service excellence and encouraged communities to become part of the solution.

“Council and the municipal administration’s efforts will not succeed if residents do not honour their obligations as well,” he said, referring to the millions of Rands owed to the municipality in rates and service monies.

Curiously the municipality omits presenting the figure of monies it is overdue on paying its creditors …

According to figures submitted to the Council, in June this year, at the end of the 2011/2012 financial year, residents owed the municipality more than R100-million for services and rates, of which more than R90-million was debt older than 30 days.

Of course the figure of those arrears exceeding 360 days and not yet allocated as bad debt has very interesting implications for anybody interested in accounting norms and practices.

“This is R90-million that could have been put towards maintaining and improving service delivery,” he said.

Not if regard is given for the fact that the municipality only budgets 7% towards repairs and maintenance on a 95% collection rate. It is clear from the current budget that the heart of service delivery is lower on the priority list than luxury expenses for executive politicians.

He dismissed the widely-held belief that it was mainly poor communities who did not pay their municipal accounts.

The mayor is merely confirming what I wrote last year: “However the disgusting thing is that contrary to general mythmongering it is not the poor communities but rather big debtors - particularly speculative property developers and fly-by-night industrial activities - who are to blame and most municipalities could if it were not for their large recalcitrant debtors supply every household (regardless of the income of the household) with R200 prepaid electricity a month and actually function within their budgets, and more importantly providing households with electricity reduces the dependence on burning parafin etc ...”

and

“A basic survey of cases in the superior courts involving municipal accounts tells the harrowing story of developers and tycoons owing hundreds of thousands of rands and being allowed to do so for years while municipalities target ordinary and poor people on service charges, but there is a dangerous mentality towards debt collection and credit control in SA with regard to public goods - and the Joburg billing crisis shows this.”

“The wards that owe the municipality the most money are places such as St Francis Bay and the more affluent areas of Jeffreys Bay and Humansdorp. The municipality is also owed millions by people who own more than one property,” he said.

The revelation that millions are owed by owners of multiple properties in the municipality is the clearest indicator that the heart of the problem was a culture of the municipality encouraging speculative property development. The inescapable truth is that a great deal of Kouga’s financial mess is a direct result of the fact that for several years the municipality ran a development pyramid scheme with a deliberate attempt to see more high valued properties forming in Kouga such that there are larger revenues allowing a larger budget (more power, and probably more funds to skim off).

What we are left with is a municipality that has inflated staff numbers, inflated expenditure, inflated politicians egos, inflated challenges. Too much local government and not enough delivery. This can be seen in how the budget is allocated, it can be seen in the turmoil that exists on the corridors at Kouga and it can be seen

The Mayor acknowledged that there were also councillors and municipal employees whose accounts were overdue.

Now if only the councillors were not afforded the same “courtesy” that the residents of Ocean View who are alleged to have overdue accounts face.

“We’ve already dealt with those councillors who were not paying their accounts. We expect that the debt of all councillors, save two, will be paid off fully by November,” he said. “Similarly, we will be dealing harshly with municipal employees who fail to pay their municipal accounts.”

He said there were a number of other factors that impacted on the municipality’s income and damaged its capacity to render services effectively.

“One such factor is the exorbitant amount of money the municipality has to spend on legal costs,” he said. “There is a countrywide trend to instigate litigation against municipalities, often simply for the sake of publicity. When this happens, regardless of the merits of the case, municipalities are forced to spend money on legal proceedings which could have been put towards service delivery.

The municipality wastes money in litigation because it conducts its affairs so badly. It is because of the merits of the cases against them and an appetite for impunity and litigation by attrition that Kouga is so horrendously bruised on the legal front as a cursory glance reveals:

• On the 30th November 2011 (after the start of Koerat's term of office) the SCA dismissed an appeal brought by Kouga with costs in Kouga Municipality v Bellingan (121/11) [2011] ZASCA 222 with costs. The entire matter surrounded Kouga improperly passing a trading by-law and trying to enforce their improper by-law.
  The Abdullah dismisal saga was effectively put to rest on the 2nd February 2012 with the municipality paying out the remaining term of the contract. Effectively meaning that for a period of time two people are paid for one job. Also the municipality was landed with its own litigation costs (of two counsel).
• The Dennis saga brought a major blow on the 30th September 2011 (during Koerat's term) when the High Court found that the Kouga Municipality breached its contract with Fred Dennis. The indications are that the full payout under the contract in excess of R6 mil are now liable to the municipality.

I can't seem to hunt down the articles in the press setting the figure to 6 million on his salary but I seem to think Die Burger reported on the matter. With both Abdullah and Dennis you have a failure of the Koerat administration to ensure that the alleged corruption and mismanagement to be properly addressed.

• On the 4th March 2010 Kouga landed itself with a costs order on an attorney client scale (which is fairly adverse) in Robcon Civils/ Sinawamandla 2 Joint Venture v Kouga Municipality and Another (2106/09) [2010] ZAECPEHC 8. This case arose because of mishandling of tendering processes. The courts remarked:
  "In the present matter, it is of course not merely reasonable courtesy which is in issue but indeed the first respondent's flagrant disregard for its constitutional obligations."
  This flagrant disregard for constitutional obligations is the hallmark of the Kouga Municipality.
  
• On 31st May 2011 Kouga was dealt a major blow by the SCA in Eedenprop v Kouga Municipality (541/10) [2011] ZASCA 92 as Kouga was landed with a costs order on a matter that went to the SCA (meaning both High Court costs and appellate costs) and a contract that they had tried to get out of was found binding with an Order:
  "(a) The agreement concluded between the appellant and the Jeffreys Bay Transitional Local Council (the predecessor in title of the respondent) on 24 October 2000 is declared to be of full force and effect.
  (b) The respondent is ordered to pay to the appellant all amounts due in terms of chapter VI of such agreement, including interest at the legal rate from the date upon which such amounts were due and payable, to the date of payment thereof."
  The liability from this contract is millions of rands, and litigation appears to have arose because of poor management from Kouga.
  

These are simply the reported superior court cases lost by the municipality since January 2010. They do not include unreported matters such as the High Court interdict (and costs order) which I as a private individual secured against Kouga for an unlawful termination of electricity supply in 2012 (order absolute on 26 January 2012) or the pre-trial litigation currently in place by both creditors of the municipality and businesses and individuals harmed by municipal
mismanagement, and the DA's suit involving misconduct in appointments by the Mayoral Committee (which could be entirely avoided by the mayoral committee taking responsibility for their abuse of office). Nor does it include the current Application arising from their unlawful prohibition of a gathering on the lawns (which can similarly be avoided by Director Jansen ceasing to conduct himself in contravention of the Regulation of Gatherings Act).

He said that the municipality was also being forced to incur excessive legal fees because of community conflicts.

“An example here would be the debate around the dune spit at the St Francis canals. One stakeholder group believes rock revetments should be used to strengthen the spit but they are being vehemently opposed by another group. The municipality has been trying to find a solution acceptable to both parties but, at this stage, it seems inevitable that whichever group doesn’t get its way will be taking the municipality to court, again forcing us to hand over money to the courts that we could be using for service delivery instead,” he explained.

Having observed the council meetings concerning this matter, I can honestly state that the municipality has demonstrated that where multiple idiotic courses of approach are available they will adopt the most idiotic course available. A result of municipal mismanagement is that no less than 4.5 million rand which is unbudgeted has to be built into the budget and that is before legal fees and other wasteful expenditure enters the mix. One has to wonder whether the municipality ever considered giving intention to abide by a decision of the court.

He acknowledged that in other instances the municipality was facing litigation because weak internal controls in the past had resulted in service providers being appointed without the proper procurement process being followed.

“We have already tightened the controls to prevent this from happening again but, regardless of whether the mistakes were made by this or the previous Council and management, we have to take responsibility and fix those mistake. This means incurring further legal costs,” he said.

The incurring of legal costs is higher in orders of magnitude when you seek to hide the true cause of the error. Presumably the mayor has Robcon Civils and the Kouga Valuators matters in mind here. The valuation of properties issue is something I haven’t touched on yet but it carries great significance. Many properties in Kouga are improperly valued (with certain areas being grossly over-valued) No doubt valuation problems lead to declared disputes and property owners refusing (rightfully) to pay rates on the wrong assessment, quite certainly a few million rand in rates falls into the bracket of inflated (and disputed) rates.

The Mayor asked residents to bear in mind that some of the grievances in their petitions, for example, education and health, fell outside the powers and functions of the municipality.

“What we can do in these instances, is limited. However, as the sphere of government closest to the people, we will continue engaging with the relevant state departments to try and help communities,” he said.

Having seen the SFBRA petition, having drafted the JBRA petition and having heard the Ocean View petition I can affirm that beyond the responsibility of the municipality to create the proper environment for the provision of education. A particular concern of the municipality hindering the provincial authorities in fulfilling their mandate arises – and of course the Eastern Cape education authorities do not need more challenges than the hand they have already been dealt)

Further primary healthcare and ambulance services are a municipal competence (shared with province) at this point in time.

He said the municipality also lost valuable income due to the theft of electricity and water.

“This practice is rife in communities such as Ocean View, whose residents participated in the second march to the municipality. We appeal to law-abiding residents in these communities to discourage such behaviour and to report transgressors,” he said.

“Not only does it rob the municipality of income that could have used to improve services to these areas, it is also dangerous and result in the loss of lives.

Invariably a large number of people resort to unlawful connections when the municipality fails to deliver lawful options for access. There is also ample evidence of the municipality effecting unlawful denials of access so there is a great deal of pot calling the kettle in this instance (except that those persons unfortunate enough to live in Ocean View on the fat cats estimate have no right to have a working electric kettle).

The Mayor acknowledged that the municipality’s salaries and wages bill was still not realistic when compared to its monthly cash-flow despite the contracts of contract workers not being renewed.

“We would like to assure residents that the further reduction of our salaries bill remains a priority and is being addressed in conjunction with the Development Bank of South Africa and the Department of Local Government and Traditional Affairs,” he said.

I fail to see how the DBSA is a stakeholder able to assist in reducing the salaries bill. I suspect that what is actually at play is that the DBSA more than the residents find Kouga’s grossly high salaries bill a serious threat

When is the mayor taking a pay cut?

In closing, the Mayor emphasised the commitment of both Council and the municipal administration to turn Kouga around and create a better life for all.

“Our success, however, depends as much on our communities as it does on us. Please do not purposefully try to sabotage the municipality, especially not for political gain such as the calls to have the municipality placed under administration tend to be.

“Please bear in mind that should the municipality be placed under administration, it will not resolve our cash-flow problems. It will, in fact, lead to a further waste of funds since our new directors will still have to be paid despite their work, in effect, being taken over by an outsider. Allow them the opportunity to show us what they can do.”

The municipality previously denied the extent of its cash flow problem. The concept that an administrator would be an outsider is a curious argument considering that the directors are themselves outsiders. We already know with the mayoral committee steering the sinking ship that the directors are impotent to accomplish anything: The CFO has shown us what she can do (within the political landscape)– see an inchoate budget; the MM has shown us what he can do – or more to the point what he can’t do, he can’t turn around the municipality despite all protestations to the contrary. What we don’t know is whether the fault lies with the acting directors or with the politicians (or with both), what we do know is that the executive politicians are by law and convention accountable for the state of affairs. If the mayoral committee had any concern for fairness to the directors the mayoral committee would resign or seek the dissolution of council (which would in any event result in an administrator) and allow the administrators and managers (the directors) to get on with their jobs.

Kouga’s new team of directors, headed by Municipal Manager Sidney Fadi, are Carleen Arends (Tourism, Creative Industries and Local Economic Development), Carlien Burger (Finance), Victor Felton (Infrastructure, Planning and Development), Japie Jansen (Social Services) and Thobeka Tom (Administration, Monitoring and Evaluation).

Is it not premature to announce the “new team” when a suit is still pending and contracts of appointment and finalization of delegations are still uncertain.

A brief word on public protests in Kouga

The residents of Ocean View are holding a march to the municipal offices tomorrow. This march is protected in terms of the Regulation of Gatherings Act and has been organized in accordance with the law. The main grievances of the residents of Ocean View relate to an absolute failure of the municipality to deliver basic services to this area. The residents of Jeffrey’s Bay have been invited to stand in solidarity with the residents of Ocean View tomorrow. Their march will begin at 8:00 (am) starting at the Tokyo Sexwale stadium. I believe that we should support this initiative both from the perspective of the right of a community to protest and from the perspective that it is generally the poor who suffer the most from municipal non-delivery and malfeance. I will therefore be attending this march and extend the invitation to members of the JBRA and residents of Jbay who are not yet members of the JBRA.

 

Turning to an update on the march that took place on the 12th September. I was personally amazed at the wonderful turnout of the march and believe that it was one of the most successful instances of a community engaging forcefully with government in South Africa. I am proud and believe that every resident of Jeffrey’s Bay should be proud of what we demonstrated can be accomplished by a community. It is unfortunate (but understandable) that my application to the High Court was not heard by 11:00 in order to ensure that the wrongful exclusion of people from public space could be set aside, however it remains before the court. I will be in the Grahamstown High Court on Thursday 27th September for a hearing on the original application (for those fluent in legalese I have had the matter removed and reinstated on the roll for the 27th September) with the objective of securing a setting aside of the purported prohibition against entering the courtyard (and again for those unfortunate enough to be fluent in legalese relief is sought on the prohibition in terms of the RGA s6(5) which is final relief and against the policies by way of a rule nisi which will see the matter back at court on a return day). If I secure the sought Order it will be entirely impractical for the Kouga municipality to attempt to keep the people of Kouga from demonstrating in the courtyard when they follow the legislated procedures and maintain a peaceful demonstration.

A march and demonstration is therefore being planned for the 3rd of October 2012 where we intend to enter the courtyard in an orderly fashion. This date is after the expiry of 14 days by any system of reckoning which the mayor may fall back on. I believe that the issue of the municipality seeking to monopolize the courtyard space and to lock out residents is of sufficient importance both in principle and in the effect of winning the principle that it is worth pursuing as aggressively as the law permits. Fortunately because the matter arises out of a fairly specific statutory framework I am able to litigate on the matter without incurring a great deal of costs, the same is not true about many of the other issues where litigation against the municipality may be warranted. Despite (or perhaps because of) my limited knowledge of law and litigation I am generally of the view that the litigation is generally not a course available to the JBRA and carries the disadvantage of frequently causing the municipality to use our money to fight us.

 

The mayor has made several scandalous and defamatory remarks, particularly during the attempted stage management of the media inside the courtyard from which Kouga unlawfully kept its residents: For one thing he described us as effluent people – and while this may have been a simple pronunciation error I think it should be treated as Freudian slip, after all one of our principle complaints is Kouga’s unlawful charging of poor residents for using the “bucket system”. Additionally the mayor attempted to portray Kouga’s problems as a product of ratespayers not paying their rates rather than a product of systemic mismanagement and presented the figure of R120 mil as outstanding. The truth of the matter is that Kouga is in such a perilous state of financial management and has adopted such a flawed and irregular budget that the Provincial authorities have no option but the intervene as demanded by the Constitution. At this juncture I am not ready to deliver a press statement in response to the mayor’s remarks and believe that one should only be prepared after hearing his further remarks after tomorrow's protest (I doubt he will be sufficiently brazen to use the term effluent tomorrow).

 

In addition to the  mayor we have been criticized by the ANC Youth League who have rather predictably lodged the accusation that the protest action was orchestrated by the Democratic Alliance. The accusation is so patently and manifestly dishonest and opportunistic that I fear responding comprehensively is to give the accusations more regard than they deserve. Put differently I believe it is best to disregard their accusations with the contempt they deserve.

 

Ultimately I would like to thank everybody who participated in the gathering whether in person or in thought (understandably many people were unable to attend). I’d particularly like to thank the SAPS and Kouga Traffic Service for commendable policing as well as the marshals for assisting in keeping order, I believe that as a nation we sometimes need to remind ourselves of our capacity to express ourselves freely and peacefully. I’d also like to thank the SFBRA for taking the initiative in calling and largely organizing the gathering. On Thursday there is a Council Meeting and perhaps a sense of the anxiety will be observable at the meeting. We can only hope that the Council recognizes the elephant in the room and sends the worst excesses of the previous and current administration to the man out of the mayoral committee.

March to Kouga Municipal Offices

This email is to remind Jeffreys Bay and Kouga residents about the service delivery protest march taking place on Wednesday morning, 12th September 2012 starting at 9.30am in the vacant parking area in front of the Tampa Bay Spur.

I would like to give everyone an update on what has been happening in the last few days - which I hope will also make people more at ease and happy to join us as a community in standing up for service delivery and transparency in our area.

I have meticulously followed the Regulation of Gatherings Act (205 of 1993) in organizing this march. The Kouga Municipality has however not followed the Act and instead has tried to undermine our rights given under the law with regard to assembly and free expression. Sadly this problem is not unique to Kouga.

At this point the municipality has taken a decision to restrict our right to peacefully assemble on the open air space inside the gates in front of the municipal headquarters. In my view this restriction is  imposed by a previous generation of municipal policy makers (and desired by a current collection of nefarious figures trying to control Kouga) due to the fact that it forces a segregation of protesters from the political process. I believe that by peacefully assembling in our public space we are affirming that the municipality is accountable to us as the people of Kouga. By locking the gates and keeping the residents out of the public space the politicians and bureaucrats reinforce their power and trample over the rights of residents. For this reason I have expended considerable energy - possibly at the expense of more ably marketing the gathering or preparing banners and posters and so on - towards ensuring that the Regulation of Gatherings Act be applied properly and that Kouga not override the law.

Currently an urgent application has been laid before the duty judge of the High Court and I anticipate that we will hear more about the application tomorrow morning.  The route of the march has been extensively discussed and planned as an alternative with the SAPS. While there is great importance in this application and the law prescribes that it be addressed urgently it is possible that other matters on a busy court schedule will make it impossible for the matter to be finalized before the end of our march.

In the event that the High Court Order is not forthcoming I ask that everybody observe the restriction imposed unlawfully by an official

from Kouga and that we keep to the alternate route arranged with the SAPS and assemble outside the gates. More importantly, if we are able to enforce the law (either through a Court Order, or a municipality decision to follow the Act), we must peacefully assemble within the courtyard of the municipality.

Tomorrow morning provides an opportunity for Kouga residents to join together to demonstrate our community spirit and

opposition to poor-governance. I can report that a great deal of media coverage has been forthcoming for this gathering.

Paul Hjul

Chairman, Jeffreys Bay Residents Association

071 956 5953

Kouga Municipality - Conclusions

CONCLUSION

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)

Brooklyn Court, Block A, 1^st floor, 361 Veale Street, Brooklyn

Borchardt & Hansen Inc

Kouga Municipality’s environmental and disaster management duties and obligations

8 What are Kouga Municipality’s environmental and disaster management duties and obligations?

In terms of section 42(1) of the Disaster Management Act, 57 of 2002, each district municipality must establish and implement a framework for disaster management in the municipality aimed at ensuring an integrated an uniform approach to disaster management in its area by, inter alia, including the following role players, namely:

• All statutory functionaries of the municipality;
• All municipal entities operating in its area;
• All non-governmental institutions involved in disaster; and
• The private sector.

Such disaster management framework must be consistent with the provisions of this Act, the national disaster management framework and the disaster management framework of the province concerned.

Section 42 of the Disaster Management Act, 57 of 2002 further demands that each district municipality must establish a disaster management centre for its municipal area. The powers and duties of such disaster management centre, inter alia, include the following (section 44 read with sections 47 and 50), specifically to:

• Promote an integrated and co-ordinated approach to disaster management in the municipal area, with special emphasis on prevention and mitigation;
• Act as a repository of, and conduit for, information concerning disasters, impending disasters and disaster management in the municipal area;
• Make recommendations regarding the funding of disaster management in the municipal area, and initiate and facilitate efforts to make such funding available;
• Promote the recruitment, training and participation of volunteers in disaster management in the municipal area;
• Promote disaster management capacity building, training and education, including in schools, in the municipal area;
• Promote research into all aspects of disaster management in the municipal area;
• Give advice and guidance by disseminating information regarding disaster management in the municipal area, especially to communities that are vulnerable to disasters;
•   Determining levels of risk;
•   Assessing the vulnerability of communities and households to disasters that may occur;
•   Increasing the capacity of communities and households to minimise the risk and impact of disasters that may occur;
•   Monitoring the likelihood of and the state of alertness to disasters that may occur;
•  The development and implementation of appropriate prevention and mitigation methodologies;
•  The integration of prevention and mitigation methodologies with development plans, programmes and initiatives;
•  Promote formal and informal initiatives that encourage risk-avoidance behaviour by organs of state, the private sector, non-governmental organisations, communities, households and individuals in the municipal area;
•  Submit a report annually to the municipal council on -

•  Its activities during this year;
•  The results of the centre’s monitoring of prevention and mitigation initiatives;
•  Disasters that occurred during the year in the area of the municipality;
•  The classifications, magnitude and severity of these disasters;
•  The effects they had;
•  Particular problems that were experienced in dealing with these disasters;
•  The way in which these problems were addressed and any recommendations the centre wishes to make in this regard.

Section 45 of the Disaster Management Act, 57 of 2002 also requires a municipal council to appoint a person as head of its municipal disaster management centre who is responsible for the exercise by the centre of its powers and the performance of its duties.

In terms of section 51 of the Disaster Management Act, 57 of 2002 Kouga Municipality may establish a municipal disaster management advisory forum consisting, inter alia, of:

• The head of the municipal disaster management centre;
• A senior representative of each department;
• Organised business;
• Relevant community-based organisations;
• The insurance industry in the municipality; and
• Representatives of the agriculture sector.

Furthermore, section 52 read with section 53 of the Disaster Management Act, 57 of 2002 requires that each municipal entity indicated in the national or the relevant provincial or municipal disaster management framework must prepare a disaster management plan setting out:

• The way in which the concept and principals of disaster management are to be applied in its functional area;
• Its role and responsibilities in terms of the national, provincial or municipal disaster management frameworks;
• Its role and responsibilities regarding emergency response and post-disaster recovery and rehabilitation;
• Its capacity to fulfil its role and responsibilities;
• Particulars of its disaster management strategies;
• Contingency strategies and emergency procedures in the event of a disaster, including measures to finance these strategies;
• Prepare a disaster management plan for its area according to the circumstances prevailing in the area;
• Co-ordinate and align the implementation of its plan with those of other organs of state and institutional role-players;
• Regularly review and update its plan; and
• Through appropriate mechanisms, processes and procedures established in terms of Chapter 4 of the Local Government: Municipal Systems Act, 2000 (Act No. 23 of 2000), consult the local community on the preparation or amendment of its plan.

A disaster management plan for a municipal area must:

• Form an integral part of the municipalities integrated development plan;
• Anticipate the types of disaster that are likely to occur in the municipal area and their possible effects;
• Place emphasis on measures that reduce the vulnerability of disaster-prone areas, communications and households;
• Seek to develop a system of incentives that will promote disaster management in the municipality;
• Identify the areas, communities or households at risk;
• Take into account indigenous knowledge relating to disaster management;
• Promote disaster management research;
• Identify and address weaknesses in capacity to deal with possible disasters;
• Provide for appropriate prevention and mitigation strategies;
• Facilitate maximum emergency preparedness; and
• Contain contingency plans and emergency procedures.

Section 56 of the Disaster Management Act, 57 of 2002 set down the following guiding principles when a disaster had occurred:

• National, provincial and local organs of state may financially contribute to response efforts and post-disaster recovery and rehabilitation; and
• The cost of repairing or replacing public sector infrastructure should be borne by the organ of state responsible for the maintenance of such infrastructure.

Any financial assistance provided by a national, provincial or municipal organ of state must be in accordance with the national disaster management framework and any applicable post-disaster recovery and rehabilitation policy of the relevant sphere of government, and may take into account:

• Whether any prevention and mitigation measures were taken, and if not, the reasons for the absence of such measures;
• Whether the disaster could have been avoided had prevention and mitigation measures been taken;
• Whether it is reasonable to expect that prevention and mitigation measures should have been taken in the circumstances;
• Whether the damage caused by the disaster is covered by adequate insurance, and if not, the reasons for the absence of inadequacy of insurance cover;
• The extent of financial assistance available from community, public or other non-governmental support programmes; and
• The magnitude and severity of the disaster, the financial capacity of the victims of the disaster and their accessibility to commercial insurance.

Given the above contexts, the Oyster Bay Ratepayers Association is advised to contact the head of the Kouga Municipality and or disaster management centre regarding the flood damage in Oyster Bay, vis-à-vis:

• The framework for disaster management in the municipality in terms of section 42(1) of the Disaster Management Act, 57 of 2002;
• The powers and duties ( see section 44 read with sections 47 and 50 above) of the disaster management centre of Kouga Municipality established in terms of section 42 of the Disaster Management Act, 57 of 2002;
• The municipal disaster management advisory forum, if established in terms in terms of section 51 of the Disaster Management Act, 57 of 2002;
• The disaster management plan in terms of section 52 read with section 53 of the Disaster Management Act, 57 of 2002;
• The guiding principles set out in section 56 of the Disaster Management Act, 57; and
• The financial assistance provided for in terms of section 56 of the Disaster Management Act, 57 of 2002, in particular –
 If prevention or mitigation measures were taken or should have been take; and
 Whether the damage caused by the disaster is covered by adequate insurance, and if not, the reasons for the absence of inadequacy of insurance cover.


Compiled by Prof Dr DJ Lötz (BIur, LLB, LLM, LLD)
Brooklyn Court, Block A, 1st floor, 361 Veale Street, Brooklyn
Borchardt & Hansen Inc