At a media briefing in Cape Town on 3 March 2010 the Minister of Co-operative Governance and Traditional Affairs, Sicelo Shiceka complained about ratepayers’ associations, over 280 of them, which have created what he called “a parallel government” in municipalities around the country.

It is beyond dispute that the dysfunction in the municipal sphere of government is endemic. If a municipality as acclaimed as Cape Town can not provide 100,000 of its residents with any form of sanitation, smaller and less well endowed municipalities have bigger problems. The fact that only 32 out of 970 sanitation works in the country are actually functioning satisfactorily says it all.

The around 280 ratepayers’ associations have, according to the Minister, placed their money for municipal services in private trust accounts instead of paying it to municipalities. His complaint is that this action undermines the ability of municipalities to deliver services. The antecedent question, which he does not directly address, is whether these municipalities have any ability to deliver services in the first place. The mere fact that the Minister is promoting a “turnaround strategy” suggests that the answer to the antecedent question is in the negative. President Zuma himself has complained recently of cynicism, laziness and incompetence in the public administration. These characteristics, which, many observers agree, accurately describe the situation on the ground in municipalities everywhere, strongly suggest that the incompetent and lazy cynics in their employ lack the ability to deliver municipal services in the first place.

This is what has spawned the National Taxpayers Union. It takes the attitude that the municipal employees so accurately described by the President are beyond redemption and it organises alternative ways of ensuring that its affiliates get the services that they need in order the keep their towns and villages from collapsing into free flowing raw sewage running down potholed roads.

The Minister invites those unhappy about potholes and lack of service delivery to “let us discuss that”. What the National Taxpayers Union has decided, after years of endeavouring to discuss problems at municipal level, seems to be that the time for discussion with lazy, incompetent cynics is long past and that peaceful self help is the only effective way to address the parlous state of levels of non-delivery which they experience in their various municipalities.

The better advised ratepayers’ associations have declared individual disputes with their municipalities because of the failures in delivery of the basic services for which municipalities are responsible. As the Minister correctly observes, they are depositing their money for the services in question into trust accounts. This is an indication that their aim is not anarchic or even to create a parallel government, but to give the authorities a good tangible reason to turn municipalities around by withholding their taxes.

In a radio debate recently the leader of the National Taxpayers Union sought to justify the retention of money for municipal services in this way on contractual grounds. The exceptio non adimpleti contractus is a rule of contract law that entitles a contracting party to withhold payment until the services covered by the contract are completed. The flaw in the argument is that when it comes to municipal services, there is no contract. Instead the Municipal Systems Act regulates the relationship between municipalities and ratepayers in a statutory rather than contractual way.

This does not however mean that in any situation in which individual ratepayers are genuinely in dispute with the municipality over the amounts being claimed for payment by the municipality, there is still an obligation to pay for municipal services whether or not they are being delivered. In Brits, for example, the municipality charges for collecting refuse four times a month but, according to an irate resident interviewed on television, only collects once a month. This would naturally afford a basis for disputing liability to pay for a service actually delivered at a quarter of the rate being charged.

The provisions of section 102 of the Municipal Systems Act are instructive in this regard. Subsections (1) and (2) read as follows:

Accounts

A municipality may –
(a) consolidate any separate accounts of persons liable for payments to the municipality;
(b) credit a payment by such a person against any account of that person; and
(c) implement any of the debt collection and credit control measures provided for in this Chapter in relation to any arrears on any of the accounts of such a person.
Subsection (1) does not apply where there is a dispute between the municipality and a person referred to in that subsection concerning any specific amount claimed by the municipality from that person.
It is the provisions of subsection (2) that the aggrieved members of ratepayers’ associations who pay amounts of municipal accounts into trust instead of paying for services not delivered by their municipality will rely on if there is litigation over their withholding of municipal charges. The litigation will be novel as the provisions quoted above do not yet appear to have been tested in the courts.

What the Minister should know by now is that the ratepayers’ associations will grow and prosper while corruption, incompetent cadres and lack of capacity persist in the local sphere of government. The poor, who do not pay rates, will continue to torch tyres, barricade roads with boulders and incinerate infrastructure until they are the recipients of proper service delivery.

There is nothing to discuss; not until corruption is dealt with in the criminal courts, cadre deployment in the public service is abandoned for the illegal stratagem that it is and capacity is built through sound human resource management practices as prescribed in section 195 of the Constitution. There is precious little that ratepayers’ can contribute on these three fronts and even less that the poor service delivery protesters who keep the police busy with their violence, disruption and arson can do other than to persist in the tactics they have already adopted to get the attention of those in authority.

The remedy begins with good human resource management. Unfortunately this is conspicuously absent in the municipalities in which violent protests take place and from which ratepayers are withholding money. Cadre deployment is persisted in despite the findings of the High Court that it is unconstitutional to deploy loyal party cadres in the public administration instead of employing professional and ethical public servants. The divided loyalties of the cadres, their accountability to the cadre deployment committees that deployed them instead of to the employer that employs them and the concomitant undermining of authority structures put in place in the public administration all serve to perpetuate the sorry state of affairs in the municipalities.

When the Minister has actively addressed the illegalities and shortcomings in the municipalities, perhaps then the discussion he desires will be unnecessary as the dysfunction will disappear and the turnaround will actually happen instead of just being discussed.

Paul Hoffman SC
4 March, 2010.