Municipalities cannot use financial incapacity as a scapegoat for not delivering services.
 

Author: 

J Wright
 

Summary:

South African local governments are failing to provide basic services, which are essential for realizing many socio-economic rights. Municipalities often cite financial incapacity as a justification for their failure to deliver these services. A notable example is Minister of Water and Sanitation v Msukaligwa Local Municipality, where the Municipality used financial incapacity as a defence for not meeting national water and sanitation standards. The court rejected this argument and, through a structural interdict, ordered the Municipality to comply with national standards under the supervision of the relevant Minister.  While allowing financial incapacity as a defence may seem risky—potentially undermining accountability—it remains an issue worth exploring. If courts establish clear criteria for when such a defence can be invoked, it could help address municipal passivity. Through clear requirements, courts can prevent municipalities from using financial struggles as an excuse. Instead, municipalities would be required to demonstrate how they are working toward improving their financial position to meet service delivery requirements. Consequently, the development of this defence and careful implementation thereof could be an important tool that courts can use to address local government's recalcitrance to fulfil socio-economic rights.

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