Major Legal Victory for Makhanda Residents

September 22, 2021 admin 0 Comments

Legal victory for residents of Makhanda
“In another major legal victory for residents of Makhanda, the High Court has ordered the municipality to start a regular waste collection and provide sufficient refuse bags or wheelie bins to households. ” – Daily Maverick

I really hate to rain on the Makhanda Community’s parade. But while this is a significant legal victory for communities in this country, it is a sign that environmental governance in South Africa has all but collapsed.

Let us ask ourselves the following questions:

  • Why did the provincial Environmental Affairs Department and the Cooperative Governance and Traditional Affairs Department not take action against the Municipality ?
  • If they failed (which they clearly did, in this case), why did the National Department of Environmental Affairs not intervene?
  • Why did the community of Makhanda have to go to court to force the Municipality to do its job? Surely the provincial or national departments could have done so?

The Intergovernmental Relations Framework Act 13 of 2005 does not prohibit judicial action between organs of state, but it does lay down dispute resolution mechanisms for organs of state. If these fail, then judicial action is justified.

But even prior to that, the dereliction of duty by the Municipality in this case translates into a clear breach of environmental law, which demanded that the provincial environmental department take enforcement action. Failure to comply with a directive or notice from the provincial authority, would be a criminal offence.

Yes, communities are winning at court against recalcitrant municipalities. But in the broad scheme of things, we are winning the running battles, but we are losing the war. Why? Because these legal victories fail to deal with the elephant in the room – the systemic breakdown in co-operative environmental governance.

Co-operative environmental governance forms the very foundation of our environmental law. 

But in reality, we don’t see it working.

Adv K Samie 

Environmental Lawyer