When a government breaks its laws

2012-08-30 14:21

It has become quite common to find that our government has undermined the constitution, the very same government charged with the responsibility of preserving that constitution; perhaps some politicians think that because they are given the power to make laws, they are somehow exempt from complying with the law. This is demonstrated by the number of judgements the constitutional court has delivered against the State, from local government, provincial government, and national government, we have hooligans occupying public offices.

It was no surprise to see the Department of Basic Education fail to comply with a court order to deliver textbooks, they have failed many times before; back in 2003, textbooks were delivered in August at then Khayelitsha No.5 High (now known as Qhayiya High), and all the pupils failed as a result. The other question we should be asking is what kind of a government has to be ordered by the highest court in the land to do its job?

The Auditor General (AG) may have answered this question on the 2010-2011 Municipal Audits. The AG found that in most municipalities from Eastern Cape, KwaZulu Natal, Limpopo had misused public funds, in Limpopo the municipalities misused R527 million for, up from R347 million on the previous year, and this was the trend throughout provinces; this indicates that there is no hope of ever improving finance management in these municipalities, and remember that when funds are misused, government fails to fulfil its constitutional obligations of providing certain essential services because that is what the money is for, to serve the public.

This is not only the case at municipalities, but the provincial administrations also ignore legislation and fail to fulfil their constitutional obligations in the process. In the Eastern Cape where the municipalities wasted R2 billion up from R1.1 billion on the previous financial year, the provincial government did very much the same wasting R4.7 billion up from R2.9 on the previous financial year (the financial statements submitted to the AG reflected only R1 billion, the rest *R3.7 billion* was discovered during the audit process); and the provincial department of education contributed R2 billion to that waste and you wonder why they always achieve the poorest results on high school graduates at the end of the year? Also worth noting is the R1 billion worth of tenders awarded to family members of government officials, but then again the president approves of such so let’s leave that one out.

How then can the municipalities improve on their financial management when National Government and Provincial Government also waste public funds and fail to fulfil their legal obligations when it comes to service deliver? All the spheres of government are expected to provide certain services, each sphere with its own distinct role but very much related as they all strive to better the lives of the people, well that is what they are supposed to be doing. Many think that auditing looks only at numbers but the AG also identifies the causes of the non-compliances and performance of the auditees, which should be used by (a) the government officials to see their weaknesses and improve on them and (b) the voter to see whether government spends money on what it is supposed to be spent on and hold government accountable on the ballot paper on failure to deliver.

The AG identified three key trends as the causes of the audit outcomes, the first one is leadership: in all instances where there had been an improvement in performance, credit is given to leadership, if the politicians who lead public institutions are not committed to the public they are meant to serve and have their own agendas, they will surely not perform; there are cases where leadership results in improvements such as the Department of Home Affairs which received its first clean audit in 16 years. Leadership in that department had for the first time successfully implemented the recommendations on their previous audit reports, so commitment from leadership is key, not useless ‘leaders’ who are only in a position for the pay, benefits and prestige that come with being a public office bearer.

The second key contributor to the bad audit outcomes as identified by the AG is the national trend of having incompetent comrades holding key positions on many of these municipalities and unfilled vacancies at provincial and national level. This is what happens when you employ someone based on what political party they belong to, or who they know in government and not what they can demonstrate competence on. And in the end we get a clueless man holding a critical public office meaning that the municipality cannot perform some of its key functions properly and results in money being wasted. The AG stated that 2 in every 3 high ranking officials in the Eastern Cape municipalities is not competent for the position they occupy, the trend was the same in other provinces with the exception of Gauteng and Western Cape.

On the other hand, President Zuma suggests that a person should not be disadvantaged by the fact that they have a family member in government or are a member of the ruling party, this is all fair Mr President, but the comrade or pal should be qualified for the position or else they will be appointed as Chief Financial Officer (CFO) in a municipality without ever submitting a CV with qualifications relevant to the post they are applying for. We get that Zuma was appointed Finance MEC with his standard 3 qualification, no law prohibits that, but in a municipality, you need a qualified and experienced CFO or else the Auditor General’s staff will keep compiling financial statements for municipalities whilst there are comrades who are overpaid by the municipalities to do nothing, to top it all, there are little or no performance monitoring systems in place in most of these municipalities, for contractors and council staff; but then again they cannot appoint incompetent comrades and expect them to perform.

The third and final contributor to the adverse audit opinions we keep seeing is inadequate financial and management control measures, this means that the incompetent comrades are there to distribute tenders to comrades without expecting them to actually deliver, just make payment on receipt of an invoice. And you wonder why residents get fed up and toy toy? But this goes back to the previous issue of hiring incompetent comrades, how would they design management systems when they are not even qualified for the positions they hold? I should hope we are not going to blame Bantu Education for the incompetent comrades too. Interesting to note that one of the resolutions at the 2007 ANC conference was to find ways of getting public funds into political party coffers, nothing about how to get skilled comrades in key positions so that the municipalities can actually perform, as if this is done deliberately, it would not be a surprise if it was done deliberately because the ANC knows that even though municipalities fail to deliver services, they still get the votes on election day, so why would they care if services actually get delivered?

In other democracies parties that do not deliver get voted out of office, some will demand a resignation from a public office bearer for cheating on their spouse as if that somehow affects their performance at work but in South Africa we tolerate everything hence politicians find it so easy to get away with everything. Then there is the question of opposition parties, why not challenge the ANC if it’s so bad at governing? There are over 100 opposition parties and still growing but unfortunately they cannot do much, they can only speak out on matters.


So government has in many instances undermined the constitution and the rights of citizens, not only that but also degrading the natural environment while pretending to care for the environment. In Delft the City of Cape Town was required to declare an area that was identified during the Environmental Impact Assessment on the N2 Gateway Housing project back in 2005. The municipality was also required to fence the nature reserve, create a fund to manage the nature reserve, draft and implement an Environmental Management Plan for the area, and educate the surrounding communities on the sensitivity of the nature reserve and its conservation value. All of this was to be done before carrying out the development they sought but over 6 years on, none of that happened, instead of doing that, the municipality degraded the nature reserve by developing even though they were given clear instructions not to develop the area until all the conditions of the Record of Decision had been fulfilled, tons and tons of contractors rubble dumped in the nature reserve as a result. The City of Cape Town undermined section 24 of the constitution of the republic and continues to make excuses for not fulfilling their legal obligations, instead of taking responsibility, they blame the provincial Department of Human Settlement as the City of Cape Town transferred ownership of the project to province in 2008, but the municipality had already carried out extensive development in the area without fulfilling its legal obligation.

What is even worse is that the provincial department of Human Settlements also has excuses for not fulfilling their legal obligations. But the provincial Department of Environmental Affairs and Development Planning (DEADP) had committed itself to monitoring compliance on the project as it’s their constitutional responsibility to do so, after working on the project for 4 years, I have never seen one person from DEADP; perhaps they monitor projects while sitting in their offices on Dorp Street in Town. I was surprised when I visited their offices to read all the documents they had on the project after a lengthy application process to access the information; that the City of Cape Town and the project ECO’s had in the past written to DEADP notifying them of non-compliances on the project, the municipality notified DEADP of non-compliances and Chand (ECO) provided proof of compliance to some of the conditions of authorisation on the ROD but no action was taken by DEADP on non-compliances.

The ROD reduced the number of housing units that the City of Cape Town wanted to build by 1400 which would have been built on the nature reserve but due to environmental conservation activism the area was saved. Why would three government institutions undermine the constitution of the republic? The answer is simple; politicians have their own agendas to fulfil. Contrary to what the Madam would have us believe that “the DA takes its constitutional responsibility seriously”, only when it suits them judging by the look of things. The ROD on the N2 Gateway Housing Project had clear instructions that were deliberately ignored, why would the City of Cape Town, provincial Department of Human Settlements, and the Department of Environmental Affairs and Development Planning deliberately undermine the constitution? Because they want to use the land for their original intentions that are currently prohibited by the ROD. The thing about RODs is that they can be amended just as the City of Cape Town wants to amend the Greenpoint Stadium ROD to resume an activity that is currently prohibited and the excuses make “perfect sense”.

The Greenpoint Stadium ROD limits commercial activity on the stadium precinct; this is due to strong opposition by residents during the initial public participation process. So to allow for construction of the stadium because well… FIFA and SAFA wanted the stadium built, the ROD prohibited commercial activity, now the municipality failed to manage the stadium as it said it would, they must go back to their original intentions with the project. Incredible that government can deliberately fail to perform to manipulate the situation in order to achieve their desired results; in this case, it’s the nature reserve that will in the future become a shopping mall, business park or residential area, and the commercialisation of the Greenpoint stadium because that is what government wanted in the first place, to hell with the views of those who care for the environment, plants & animals cannot speak for themselves and when people speak, they are only listened to as a formality; not that their views mean anything. Government will always do what government wants, regardless of how many rights will be undermined as a result, and as Dr Mamphela Ramphele said “we tolerate it like loyal subjects to authoritarian rule”. Accountability to the public, preservation of constutional rights, and conservation of the environment mean nothing to government.


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