Water and Sanitation Minister Senzo Mchunu is appealing a ruling made by Madam Justice Beshe of the High Court sitting in Makhanda, Eastern Cape, that his decision to remove certain members of the Amatola Water Board was not actually his to make, as it was an administrative decision, not an executive decision. Picture: File
IF YOU thought it was government ministers’ responsibility to adhere to austerity measures and prevent wasteful expenditure, you have another thing coming.
Water and Sanitation Minister Senzo Mchunu is appealing a ruling by Justice Beshe of the High Court sitting in Makhanda, Eastern Cape, that his decision to remove certain members of the Amatola Water Board was not actually his to make as it was an administrative, not executive, decision.
The leave to appeal to the Supreme Court of Appeal (SCA) was lodged five days after Justice Beshe’s May 24, 2023, judgment and order.
In court papers filed by the minister’s attorney, Mchunu argues that it was well within his ambit to fire the five board members, replacing them with his own. He cites a precedent in which the Constitutional Court found, in the Minister of Defence and Military Veterans versus Motau and Others case, that “the decision to remove board members constitutes an executive decision”.
What this in effect means is that while lawyers for the two sides trade papers, the Amatola Water Board will have an interim board in limbo.
Lulama Prince Inc argued in defence of Mchunu and the board of his choosing: “The learned judge did not review and set aside the decision of appointment of the interim board members. Accordingly, upon the reinstatement of the applicants, there will be two parallel boards for the same water board.
“Until such times as the decision taken by the minister is set aside by the above honourable court on review, the decision of the minister to appoint the members to the interim board stand, and have legal effect and produced valid legal consequences. The applicants cannot undo that.”
Bonwabile B Nyanda, acting for the applicants, said: “The minister relies on the Motau decision in support of the argument that the decision to remove the board members was an executive decision, and not an administrative decision that is susceptible to review. He argues that he has an unfettered discretion to remove board members at his whim. This position is not and cannot be sustainable in law, as even executive decisions can be reviewed and set aside on the grounds of rationality and legality.
“Motau does not suggest otherwise. But, in any event, the minister’s reliance on the Motau decision is misplaced: that decision dealt with the dismissal of a member of the Armscor board whose responsibilities included the formulation and implementation of policy. In this case the exercise of the power to remove board members has nothing to with the formulation of policy; the board members are involved in the implementation of legislation, which is distinct from the formulation of policy.
“In addition, in Motau, the minister’s power to remove board members was sourced in the Constitution, whereas in this case it is sourced in statute (namely the Water Services Act). The case is therefore distinguishable from Motau on the facts. It is more closely aligned to a series of decisions that confirm that the powers exercised by the minister are administrative in nature and can be reviewed in terms of the Promotion of Administrative Justice Act. Those cases are outlined in our heads of argument, which are attached.
“We do not argue that the removal of board members is not within the purview of the minister. Our argument is that the minister can exercise these powers, but he is constrained by the principles of rationality and legality, as well as the grounds of review as set out in the Promotion of Administrative Justice Act.
“The decision against which the minister seeks leave to appeal is grounded in well-established legal principles and is consistent with previous decisions of this nature. As such, we are of the view that there are no good prospects of the decision being set aside on appeal.
“On our understanding, the term of office of the interim board came to an end upon the reinstatement of the applicants as board members. The application for leave to appeal has, however, suspended the operation of the decision of the court a quo, which means that the interim board will remain in place pending the outcome of the application for leave to appeal and any appeal that may follow. There is, however, an interdict in place that prohibits the appointment of permanent board members until this matter is resolved.”
Nyanda said their heads of argument were part of the court papers which the court considered in arriving at its decision, which was now being appealed.
Kamogelo Mogotsi, Mchunu's spokesperson, said: “Chapter VI of the Water Services Act, 1997, contains provisions relating to water boards, inclusive of their primary activities.
“The minister has an oversight role in ensuring that entities under the portfolio carry out their duties in an ethical, responsible manner. The court will make a ruling based on the merits of the case.
“The application for leave to appeal suspends the ruling, there is only one board in place, carrying out the necessary duties.”
It appears this matter will not end anytime soon.