Public Protector Kholeka Gcaleka has instructed the Western Cape provincial government to monitor the City of Cape Town’s compliance with her remedial action after releasing a report into several service delivery failures in the metro.
The warning is contained in Gcaleka’s report this week into service-delivery failures in Langa Flats and Khayelitsha, where the watchdog found maladministration, improper conduct and prejudice after years of complaints over sanitation, housing administration, water, electricity, public lighting, fire safety and waste management.
Gcaleka instructed Bredell “to monitor the CoCT’s implementation of remedial action on a quarterly basis” and to consider, under section 139 of the Constitution, “whether intervention may be necessary should substantial non-compliance occur”.
Section 139 is the constitutional provision that outlines the process and grounds for a provincial executive to intervene in, or place an administration over a failing municipality.
The Constitution says a province may intervene when a municipality “cannot or does not fulfil an executive obligation” in terms of the Constitution or legislation. The intervention may include “issuing a directive” to the municipal council, “assuming responsibility” for the relevant obligation, or “dissolving the municipal council and appointing an administrator” where exceptional circumstances warrant it.
Gcaleka’s remedial action effectively puts Bredell on notice that any substantial non-compliance by Cape Town cannot remain only a dispute between the Public Protector and the city.
The report says provincial governments must “monitor and support local government” and “promote the development of local government capacity” to enable municipalities to perform their functions and manage their affairs.
The city disputed several findings and argued that the report did not properly reflect “recent developments and ongoing interventions”. It also raised “operational challenges”, including funding constraints, unlawful occupation, vandalism, illegal utility connections, criminality and the statutory role of Eskom.
But Gcaleka rejected the broad defence, saying “cooperation with an investigation, while commendable, does not in itself negate a finding of maladministration” where evidence shows that constitutional and statutory duties were not fully discharged.
The report also says the city’s submissions on funding constraints “reinforce, rather than undermine” the need for stronger intergovernmental cooperation between the municipality, the province and national
departments responsible for human settlements, cooperative governance and fiscal
allocations.
Gcaleka said the city’s challenges did not “diminish the constitutional obligation” resting on organs of state to cooperate in progressively improving living conditions in communities.
The section 139 warning follows findings that the city failed to fully repair sewer infrastructure at Langa Flats, failed to regularise all leases, failed to ensure adequate water access for SST-Marikana residents, and left non-functioning high-mast lights and unresolved electricity problems affecting relocated families.
The report places immediate responsibility on mayor Geordin Hill-Lewis, who must “take note of the remedial action issued against the functionaries of the CoCT” and “ensure that it is implemented” by the municipal manager. He must table the report before the council within 60 calendar days.
The City of Cape Town said it notes the release of a Public Protector report first initiated four years ago. The city welcomes the PP’s explicit recognition of the work the city has done to attend to all of the issues raised in her report. The City also welcomes the findings against the National Treasury and the Department of Human Settlements. The report relates to three specific matters: a section of the N2 Gateway public rental housing development, the relocation of 10 families to enable the repair of an unlawfully occupied sewer line in Khayelitsha, and security measures at two of the city’s day clinics. Read more below:
The city welcomes the Public Protector’s emphasis that it has worked closely with her office to ensure all matters have been attended to.
The City can confirm that basic services are indeed provided on schedule at the N2 Gateway development, that security measures are in place at the clinics, and that 10 families relocated for a sewer repair in Khayelitsha do have access to basic services.
We are also encouraged that the PP has taken cognisance of the difficulty of providing free services without adequate support from the national state. The PP has made remedial action findings against the National Treasury and Department of Human Settlements as well, which are welcome.
The Public Protector’s investigation team found that the City indeed had plans in place for cleaning and refuse, sewer maintenance, and processes to address unlawful occupation of rental units. The remedial action orders the steps that the city has already taken.
The city can confirm:
• Refuse collection is scheduled 4 times per week and a schedule for the cleaning of public spaces in place
• Fire safety equipment is maintained by a service provider
• Sewer maintenance has long been addressed and further upgrades are planned as part of the City’s city-wide sewer upgrade focus
• Structural engineering assessments have been made
• It must be noted that the rental flats were built by national and provincial government, and the City had no part in their tenanting. For reasons unknown, the City agreed to take over this entire development under previous administrations without wide-ranging unlawful occupation issues first being addressed.
• While there are 94 valid rental agreements in place, 547 occupants have refused to enter into agreements, and 64 refuse to renew their agreements. Many do not qualify for these homes in any event under the CRU programme. The City will in all likelihood need to approach the courts to fully regularise this situation in the event agreements are not concluded.
Relocation of 10 families due to sewer repairs
The City has successfully relocated households who had unlawfully built structures on top of a sewer line requiring repair at SST, Khayelitsha.
In one instance of 10 families looked into by Public Protector officials, issues related to high mast lighting and walking distance to a standpipe were raised.
The City can confirm that access to both water and sanitation is in place, and that by mid-July a further standpipe is planned for installation to lessen walking distance of these particular families without intensifying the risk of further sewer collapse as a result.
Regarding lighting, the relocation site is in an Eskom supply area.
Eskom has committed to provide electricity for the 10 families but is concerned with potential protest by the wider community of Marikana. The City has facilitated meetings on-site with Eskom, and indeed, the public protector and Eskom have been in discussions with the community leadership in an effort to reduce risk of any unrest. The City is assisting as far as possible.
The city confirms that the two clinics in question—Matthew Goniwe CDC and Town Two clinic—both have valid fire certification and fire-fighting equipment in place. These clinics are fully compliant with national standards for fire safety at facilities of this kind. The Public Protector has ordered the installation of smoke detectors. Although fire hydrants and extinguishers are installed, smoke detectors will be installed once forthcoming planned renovations are complete.
CCTV camera installations—which the Public Protector report mandates – have been the subject of repeated vandalism and theft. Both clinics do, however, have the necessary safety plans in place with 24-hour security. CCTV cameras are also scheduled for installation once the planned clinic renovations are complete.
City fully supported the public protector’s inquiry.
The City has collaborated and cooperated extensively with the Public Protector in this lengthy investigation in good faith, clearly demonstrating that it is already taking the necessary actions in the ordinary course of City operations to deal with the various complex challenges of informality and unlawful occupation.
The City will submit a detailed response to the Public Protector’s final report in due course.
- Public Protector Kholeka Gcaleka has placed the City of Cape Town on a failing-municipality watch due to maladministration and service-delivery failures in areas like Langa Flats and Khayelitsha.
- Gcaleka directed Western Cape MEC Anton Bredell to monitor the city's compliance with remedial actions quarterly and consider provincial intervention under section 139 if substantial non-compliance occurs.
- Section 139 allows the provincial government to intervene by issuing directives, assuming responsibilities, or dissolving the municipal council if a municipality fails to fulfill constitutional duties.
- The City of Cape Town disputed the findings, citing funding and operational challenges, but Gcaleka stated these do not negate maladministration or the duty to improve living conditions.
- Mayor Geordin Hill-Lewis is tasked with ensuring implementation of remedial actions and must present the Public Protector’s report to the council within 60 days.
