Durban – Human Settlements, Water and Sanitation Minister Lindiwe Sisulu has opposed a Pietermaritzburg High Court application to interdict the interim Umgeni Water Board from assuming office and to reinstate the board she fired last month.
In court papers filed on her behalf this week, director-general Mbulelo Tshangana opposed the application filed by nine former board members, saying the matter was not urgent and the applicants were “impermissibly asking the court to usurp the functions of the minister”.
Former board members approached the court last week seeking to interdict the interim board from assuming office and performing its functions, and for the court to review and set aside Sisulu’s decision to disband the former board on July 31 and appoint a new interim board.
Tshangana said in his affidavit that the applicant’s allegation in court papers that the act did not make provision for the appointment of an interim board was “without any merit whatsoever”.
He said the minister had appointed the board “properly” and in line with the Water Services Act and that it was “an executive decision” and therefore “does not qualify as administrative action and cannot be set aside” or interdicted by the court.
“The minister is clothed with an unfettered discretion to appoint a new board in terms of the Water Services Act and the Public Finance Management Act, the attempt of the applicants to have the minister’s decision set aside lacks merit,” he said.
Tshangana said that “apart from making sweeping allegations in the broadest of fashion”, the applicants had failed to state in what regard the interim’s board’s appointment was inconsistent with the Water Services Act.
“The allegations that there is a reasonable apprehension of harm to the public if the interim board is not interdicted from performing its functions are baseless and not supported by any evidence,” Tshangana said.
“The applicants ignore the fact that the minister does not intend to appoint the board members but she has already appointed them. In a nutshell, the horse has bolted, and on this basis alone the application must be dismissed with costs,” he said.
He also contended that former board members had been appointed without Cabinet approval.
Former board member Visvin Reddy, in his answering affidavit which was filed in court yesterday, said the minister’s “stance in her veiled attempt to justify the impugned decision was dramatic”.
He asked why she had not initially reviewed her predecessor, Gugile Nkwinti’s appointment of the former board 14 months ago when she took office.
“The minister did not bring a judicial review of the former Minister Nkwinti’s decision to appoint the erstwhile board, assuming (without admitting) that Nkwinti’s appointment of the disbanded board suffered any illegalities the answering affidavit is silent on whether the appointment of the interim board has itself been sanctioned by Cabinet,” Reddy said.
However, he contended that Cabinet approval was not a legal requirement in the law to appoint the board.
“Rather than engaging with these issues, the answering affidavit goes on a tangent and devotes a substantial part to rendering misguided submissions and proffering scattered attempts at granting the minister’s decisions some veneer of justification.”
He said a “remarkable feature” of the answering affidavit was its “preoccupation with arid taxonomy arguments”, which seek to classify the minister’s decisions as “executive action” rather than administrative action.
“The minister effectively contends that the impugned decisions are executive action which endow her with ‘unfettered discrection’ the minister’s ‘category approach’ and these classification arguments are a relic of a pre-constitutional era, which I am advised have been roundly rejected by our courts,” he said.
Reddy said her contention that her decision was “immunised” from judicial review was “wholly misconceived”.
The matter is expected to be heard in court on Friday.