Pretoria – Should the Gauteng High Court, Pretoria, declare unlawful the decision by Tshwane head administrator Mpho Nawa to approve the metro’s annual budget, it would have serious ramifications for service delivery.
This was part of the argument presented yesterday by advocate Albert Lamey SC, who represented civil rights group AfriForum in the court application it brought against Nawa and the provincial executive under Premier David Makhura.
Nawa, whose name featured prominently during court proceedings, is accused of having acted outside the scope of his executive powers by passing the City’s annual budget, which came into effect on July 1. Lamey questioned the powers vested in Nawa when he was appointed by the provincial executive as the chief administrator in March, saying that as “a temporary caretaker” of the executive office, he was not legislatively empowered to approve the budget.
“The appointment of the administrator is supposed to be a temporary caretaker of the executive function,” he said.
According to Lamey, the powers to pass and approve the budget rested with the municipal council. He cited that in the normal workings of the municipality, the executive mayor would have carried out the executive function by tabling the budget in council, which would in turn decide on whether it wanted to approve it or not.
Lamey argued that in the instances whereby the council was unable to approve the budget, the MEC for local government, Lebogang Maile, could fulfil such a function after a request to intervene by the mayor.
“The administrator executed the constitutional powers that he does not have,” he said.
Should the court grant a favourable judgment to AfriForum, it would have serious ramifications, which “goes to the heart of service delivery”. Lamey also questioned the process of passing the budget, saying it excluded public participation, which was key to the democratic process.
Nawa also came under fire for raising rates and taxes, which were said to be powers only within the ambit of council.
He said the provincial executive should not have envisaged that the administrator’s term in office would extend to the period in which a budget had to be tabled and passed.
After council was dissolved in March and Nawa was appointed it was expected that the Electoral Commission of South Africa would, after 90 days, host the municipal-wide elections in Tshwane to allow the election of new councillors.
However, that never happened due to the dissolution of council being the subject of court challenges.
The DA successfully challenged the decision to disband council at the high court, but the provincial executive appealed the judgment at the Supreme Court of Appeal and Constitutional Court. Both judgments are still pending.
Advocate Tshidiso Ramogale SC, who represented Makhura, argued that Nawa’s powers were drawn from the terms of reference set out by the MEC.
He accused AfriForum’s legal representative of basing the question on whether Nawa has powers to pass a budget or not on “incorrect understanding of the law”.
Ramogale said it was not a given that Maile should have intervened by passing the budget without a valid reason. “It is only when the municipality had failed to pass the budget that the provincial government could act,” he said.
Timothy Bruinders SC, representing Nawa, said that by passing the budget the administrator was exercising the powers aimed at making sure there was service delivery to all Tshwane residents.
He said for services to be delivered the municipality ought, among other things, to collect revenue, adding that “that is what a budget is all about”.
Judgment was reserved.