ANALYSIS

The bunfight over the City of Tshwane Metropolitan Municipality will be back in court tomorrow (Thursday, May 28), with the Democratic Alliance and the Gauteng provincial government each accusing the other of using the courts for political point scoring. 

The metro has been dysfunctional since February, after the relationship between the DA and the Economic Freedom Fighters began to sour in November. The DA is seeking a court order that would force councillors back to work, even while an appeal over putting the city under administration works its way through the courts.

In an exchange of court papers leading up to the hearing on Thursday, the DA blames the ANC and EFF for the mess and the provincial government blames the DA and EFF. With coalition politics on the rise, particularly in local government, this kind of court case will probably become more common, bringing to the surface new questions of law.

After the DA and EFF’s relationship broke down, ANC and EFF councillors simply stopped turning up for meetings. The council was then unable to achieve a quorum, leaving it hamstrung. As the politicians slug it out, residents of Tshwane have borne the brunt, including a crippling water crisis in Hammanskraal that saw residents without drinkable water for months. 

Eventually the Gauteng province stepped in and put the city under administration. But the DA went to court and this was set aside.The high court also ordered councillors back to work and to attend meetings. The order was suspended until five days after the end of the hard lockdown — so would have come into effect on May 8. One day prior, on May 7, the Gauteng government appealed, which had the effect of suspending the high court order, leaving the city under the control of an administrator.

The Constitution allows a province to put a municipality under administration but only in exceptional circumstances and only for 90 days. The DA says the “convoluted” appeal by the province and the realities of appealing to the Constitutional Court means it will take far longer than that. If the province remains under administration, an “extraordinary” amount of power would be in the hands of an unelected administrator and defeat the democratic choices of the people of Tshwane. 

The DA wants the order implemented now. “If this application is not granted, the effect will be that an unelected administrator will be in total control of every function of the municipality, for an indeterminate period of time,” said DA’s Randall Williams. “There is a real risk that he will remain in control of the municipality for the bulk of the remainder of this municipal council’s term, which is due to end when the local government elections are held in 2021.” 

On the other hand, if the councillors were back at work, the democratic choices of the people of Tshwane would be respected. 

But the Gauteng province argues that, in law, an appeal suspends a court order. An order to implement pending appeal is only granted in “truly exceptional circumstance”. There is nothing exceptional about the timeline for the appeal, in this case, says Lebogang Maile, the Gauteng MEC for cooperative government. 

Maile instead accuses the DA of “using these proceedings as a political manoeuvre. The DA is not serious about having the appeal resolved on an urgent basis. It merely uses the argument to score mileage with this court.” 

Maile also said that forcing the councillors back to work will not solve the problem. “The fact that there is a court order preventing councillors from leaving council meetings does not solve the problem of dysfunctionality. Its roots are political. They lie in the collapse of the working-together agreement between the DA and the EFF. This is not a legal problem. It is a political problem.” 

Even if councillors were forced to attend meetings, the order does not require that they vote, said Maile. But attendance is what secured a quorum, not voting, said the DA. 

Williams also said the prospects of a successful appeal are remote. “The Gauteng MEC’s affidavit in the Constitutional Court directs vitriol at the applicants and at the judgment of this court and is full of righteous outrage. But it is notable primarily because of the extent to which it is based upon misrepresentations, omissions and misunderstandings of the facts …. I am advised and submit that once those misunderstandings and misrepresentations are cleared away, very little remains of the proposed appeal.”

Maile rejects the DA’s “descent into accusations of misrepresentations … there is no basis for that serious allegation”. He says this is a novel area of law and the appeal has “excellent prospects of success”. 

The case will be heard in the high court in Pretoria tomorrow. 

Tonight on Generations The Legacy: People seem to be pitching at the commune at the worst possible time… Mavusana issues a grim warning to one of his men. Jerah is under pressure and takes it out on his ex.

Watch: Generations The Legacy latest episode – 27 May 2020

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Lesedi takes her power back. Lucy warns their big secret better not get out… or else! Mpho and Rabbit are ready to end things once and for all.

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Nontle is worried when it seems like her love potion worked. Jerah’s lies are fast catching up with him. Mazwi is furious about his brother’s betrayal.

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Disgraced former SAA chairperson Dudu Myeni has been declared a delinquent director by the high court in Pretoria, over her conduct while leading the broke airline’s board of directors.

The lifetime order means Myeni will no longer be considered fit and proper to hold the position of director of any entity, and will have to vacate several directorships she currently holds, including her position on the board of Centlec, the state-owned utility that supplies power to several municipalities, including Mangaung metro.

Although the order is for the rest of Myeni’s lifetime, she can apply to have it suspended after three years if she has rehabilitated, high court Judge Ronel Tolmay said.

During her tenure as chairperson of SAA’s board, Myeni, a close friend of former president Jacob Zuma and current chairperson of his foundation, presided over some of the airline’s most disastrous years, which have led to the airline being on the brink of falling over.

So precarious is the state of SAA, which has received no less than R50-billion in government aid since 2009, that its government shareholder sees no other option but shut it down and start over, while the business-rescue practitioners appointed to try to save it see closure and sale of its assets as the only viable way out. 

“It will not be inappropriate for this court to take judicial notice of the immense harm done to the country and its people in the last years due to the mismanagement, not only of SAA, but also other SOEs [state-owned entities] and the suffering that it brought and continues to bring millions of South Africans,” Tolmay said.

“To serve on the board of an SOE should not be a privilege of the politically connected. Government has, as a custodian of the common good, an obligation to ensure that suitably qualified people with integrity are appointed in these positions,” she added.

In her 114-page judgment on the matter, which was brought by the Organisation Undoing Tax Abuse (Outa) and the South African Pilots Association (Saapa), Tolmay labelled Myeni “dishonest”, reckless, and grossly negligent. 

“Myeni not only proved to be dishonest in her dealings at SAA, but he has also been dishonest with this court,” Tolmay said of Myeni’s conduct since the matter was enrolled before the courts in 2015. 

She also ordered that Myeni pay her legal costs, as well as those of the plaintiffs on an attorney and client scale, including the costs of two counsel. In addition, she ordered that the judgment, as well as evidence led during proceedings, be referred to the National Prosecuting Authority for investigation for possible criminal conduct.

Myeni’s trial was not without drama and has seen several delays, including when she did not attend court, arguing that she did not have money to travel from Richards Bay, where she stays, to Gauteng to attend trial. 

At the time, Tolmay noted in her judgment, Myeni was sitting on the boards of several companies, including Centlec, and earned hundreds of thousands of rands in fees. At SAA she earned R4.3-million in directors fees, and another R3.5-million in fees at the Mhlathuze Water Board. 

“She claimed that it was unfair to expect her to spend her own money on litigation, in circumstances where she believed that SAA’s insurers ought to have paid for her costs. This entirely contradicts previous pleas of poverty, demonstrating that she perjured herself [in an affidavit. She admitted that she exercised a deliberate choice not to come to court,” said Tolmay. 

“Such dishonesty and disrespect of the court’s processes is worthy of the punitive costs order,” she added. 

Myeni also unsuccessfully attempted to have the courts declare that Outa has no standing to bring a delinquency application against her. 

Her trial, in which four former SAA executives — Nico Bezuidenhout, Wolf Meyer, Thuli Mpshe, and Frenchman Sylvain Bosc — gave evidence, centred on two incidents when she willingly broke corporate governance rules and interfered in the running of SAA, to the detriment of the airline. 

Evidence led by the four painted a picture of an environment of fear and intimidation at the airline under Myeni’s tenure, including one meeting to which Myeni allegedly brought armed guards, and from which executives who defied her instructions or were seen to be in her way were removed. 

Myeni was also accused of using her relationship with Zuma to have her way, including using his name to pressure former SAA chief executive Bezuidenhout into pulling SAA out of a memorandum of understanding with Emirates airways that would have earned SAA R1.5-billion in revenue a year. 

In another example, Myeni brought the country within hours of a cross default — which would have had severe implications for the fiscus — when she failed to call an urgent board meeting to agree on an aircraft-swop deal that would have averted the airline defaulting on R1.6-billion in pre-delivery payments for aircraft it could not longer afford. 

A cross default is a provision in a loan agreement that stipulates that should a borrower default on one loan, they are considered to have defaulted on all their loans. With the government guaranteeing SAA’s debt, this would mean it would have to pay all of it immediately, or face the possibility of the default triggering debt held by other creditors. That would have had huge implications across the entire economy, particularly at power utility Eskom.    

In a statement issued on its website, Outa chief legal officer Stephanie Fick said: “We are extremely pleased to see justice meted out in a prominent matter related to state capture.

“When we set out on this matter three years ago, we knew it would take time and would be very costly. But every minute and every rand spent was worth it.

“We believed then, as we do now, that it is important to hold people like Ms Myeni to account, as opposed to seeing them get away with acts of gross misconduct, year after year,” she added.