In the upcoming municipal elections South African citizens will elect representatives for district, metropolitan and local municipal councils across the country’s nine provinces.
The Economic Freedom Fighters (EFF) is a political party formed in 2013. The EFF does not govern any of South Africa’s 278 municipalities. However, it did win seats in municipalities in the 2016 local government elections.
The EFF’s election manifesto is titled “Land and jobs manje!” It includes promises of what the party would do if it won a municipality. Manje means “now” in isiZulu.
In this report we check if the party would be able to implement their promises based on the country’s current laws. We contacted the EFF for more information on their plans but at the time of publishing had not received a response.
Promise: “To build capacity in local government, EFF municipalities will abolish tenders and insource town planners, engineers, artisans, and general workers such as cleaners, gardeners, drivers, and security guards.”
Verdict: Possible if municipalities have the money and required skilled workers.
A tender is a formal invitation put out by national, provincial and local government to procure goods and services from private suppliers. Tenders are made open and public for service providers to provide their pricing.
Section 217 of South Africa’s constitution states that if an organ of the state in the national, provincial or local sphere of government contracts for goods or services “it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”.
Each municipality must have a supply chain management policy on its website that sets out its standards for procurements.
Dr Andrew Siddle is an adjunct professor of corporate governance in the College of Accounting at the University of Cape Town (UCT). He told Africa Check that while it was legally permissible for municipalities to employ workers full time, many might struggle to find local qualified workers and find it unaffordable.
“Ideally it would be nice for municipalities to have full staff complements who can do everything for the municipality without having to contract out,” he said. “But the finances of so many municipalities are in such a mess that sustaining large staff complements like this would probably be completely impossible for many.”
He added that although there had been instances of tenders being abused, the purpose of the tender process was for government sectors to obtain goods and services at the cheapest prices.
Promise: “EFF municipalities will make it illegal for residents to be evicted from private properties unless a suitable alternative is found for them.”
Verdict: It is already a constitutional requirement for municipalities to provide temporary alternative accommodation for evictees.
Municipalities are allowed to pass by-laws but they may not conflict with national or provincial legislation.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (1998) outlines the procedures that must be followed for the eviction of unlawful occupiers. The act says an eviction order must be obtained through the court which will consider whether the eviction is “just and equitable”. The court will look at factors such as the rights and needs of the unlawful occupiers and how long they have occupied the land.
Lauren Royston is the director of research and advocacy at the Socio-Economic Rights Institute (Seri), a non-profit based in Johannesburg that provides legal assistance to protect and advance socio-economic rights.
Royston told Africa Check that the law and case law required the state to provide temporary alternative accommodation to evictees if their eviction would make them homeless.
“Municipalities are legally obliged to provide temporary alternative accommodation if the eviction leads to homelessness, no matter who runs them,” she explained. “That’s a constitutional requirement.”
The constitutional court judgement in the City of Johannesburg v Blue Moonlight Properties case found that municipalities were obligated to provide alternative housing, even in cases where people were being evicted by private landowners.
Land expropriation without compensation
Promise: “Every EFF municipality will do away with apartheid spatial planning and expropriate land without compensation closer to inner city centres to build sustainable housing for all.”
Verdict: Municipalities can expropriate land but current law states expropriation must be done with “just and equitable'' compensation.
Section 9.3 of South Africa’s Housing Act (1997) allows municipalities to expropriate land “for the purposes of housing development in terms of any national housing programme”. However, the municipality must have been unable to purchase the land through reasonable terms set by the owner and it is required to obtain permission from the member of executive council responsible for housing matters in the province.
But according to section 25 of the constitution, the state may not expropriate property without compensation.
“At the moment, as the law stands, any expropriation would have to be done subject to just and equitable compensation,” Michael Clark, a legal researcher and advocacy officer for legal nonprofit Ndifuna Ukwazi, told Africa Check.
He said that according to the constitution, the market value of property was just one of many factors that would be considered by a court of law to determine the value of property. Other factors included the current use of the property, the history of acquisition and use of the property, and the extent of direct state investment in the property.
South Africa’s parliament is undertaking a process to amend section 25 of the constitution to allow expropriation without compensation. And a new expropriation bill was gazetted in 2020 which says that “it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest”.
But Nomzamo Zondo, the executive director of Seri, told Africa Check that the current draft of the expropriation bill would not empower municipalities to expropriate land on their own.
“The current process still requires the minister of public works to execute the expropriation and this process will still be needed if the current draft of the expropriation bill is enacted,” she said.
Free basic services
Promise: “In every EFF municipality, households which depend on social grants will qualify for free basic services without having to register on the indigent database.”
Verdict: Municipalities determine indigent household funding and the database is only administrative.
Since 2001, municipalities have provided basic services such as water and electricity for free or at subsidised rates to the poorest families. These households, called “indigent households”, are required to register on a database. Municipalities are partially subsidised by the national government to cover indigent funding.
Each municipality determines its own criteria for indigent households. In 2017, 147 municipalities classified indigent households as those with a combined income of less than R3 200 per month. Eleven set the criteria lower, at a combined income of R1 600 per month. According to Statistics South Africa, 22% of households (3.51-million) were classified as indigent in 2017.
South Africa has a number of different social grants, including the child support grant, the old age pension and the disability grant. Each of these grants have their own criteria determined by the country’s social security agency which falls under the department of social development.
Dr Andrew Siddle from UCT told Africa Check that the purpose of indigent databases was for municipalities to know which households needed funding.
“If you don’t have a database you don’t know who you’re dealing with and you don’t know who you supply this to,” he said. “It’s more of an administrative issue than anything else."
Written by Naledi Mashishi, Researcher, Africa Check