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Pretoria - Tshwane’s top three leaders “who are drunk with power” could be liable for R60 million for allowing ward committees to continue to operate despite a court order declaring them unconstitutional.
The city’s decision to ignore a court order and an appeal judgment has been slammed by Unisa’s legal and constitutional analyst, Professor Shadrack Gutto.
He said this showed poor leadership, bad governance, lack of understanding of procedures or pure defiance by the city’s leadership.
“These things happen when you have individuals who are drunk with power,” Gutto said.
The growing bill of the leaders excludes administration fees in the office of the speaker, which manages ward committees, and legal fees that may amount to more than R1 million by the time the city’s case has been concluded.
In terms of the Municipal Finance Management Act, city manager Jason Ngobeni, mayor Kgosientso Ramokgopa and speaker of council Morakane Mosupye-Letsholo will be required to repay the money if it is declared wasteful expenditure – should the city lose its legal challenge.
The act states the accounting officer – city manager – and political office-bearers or officials are liable for irregular or wasteful expenditure.
Tshwane has 105 wards of 10 members each, under the leadership of councillors. Each member receives a R1 000 stipend at monthly meetings. Backdated to 2012 when the ward committees were elected, this totalled R36m by the end of February – the third anniversary of the ward committees. The figure would have risen to more than R60m when the term ends next year if the committees are allowed to continue operating.
The court action was originally instituted by the DA, whose legal fees alone were estimated at just more than R600 000.
The city’s fees were estimated to be higher.
In March, North Gauteng High Court Judge Dawie Fourie declared the ward committees unconstitutional and therefore invalid.
Judge Fourie found they had been elected in the absence of a valid regulatory framework. He ordered the city to pay the costs.
Judge Fourie ruled the by-law used in the elections – Public Participation: Ward Committees, Petitions, Public Meetings and Hearings – was unconstitutional.
The DA argued Tshwane did not comply with statutory requirements for the adoption and promulgation of the by-law – meant to succeed the Ward Committees Document of 2001 – in providing procedure for the election of ward committees.
The party submitted that the by-law was adopted without public participation. The ANC had used its majority in the council to approve the by-law in June 2011.
However, the by-law was only promulgated – published in the Government Gazette – in February 2012. Judge Fourie described this as “bureaucratic bungling and an attempt to rectify it”.
The DA also referred the matter to the office of the public protector, which indicated this week that the matter was closed with Judge Fourie’s ruling.
In May, Judge Fourie denied the city leave to appeal.
“After advice from our legal team, we have petitioned a full bench to hear our application for leave to appeal,” said Mapiti Matsena, strategic executive head and secretariat of the council.
“The petition was filed with the registrar of the Supreme Court of Appeal on June 9. The date of the hearing has not yet been set.”
Matsena said for the purpose of service delivery the city was exercising its full rights and responsibilities by engaging ward committees, which would remain effective and operational until the case was finalised.
Lex Middelburg of the DA said the party would approach the court and ask it to force the city to comply with Judge Fourie’s ruling. The city should formulate a constitutional by-law now to ensure it was ready for next year’s ward committee elections.
Gutto warned bad governance started at lower spheres of government and then spread. Public participation was more crucial at local government level, he said.