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Drewan Baird. Oudtshoorn. 28 June 2013. 05h45. Counsel for the municipality Hardy Mills yesterday fired off a letter to Premier Helen Zille after first her Minister or Local Government, Anton Bredell, typically fell over his own feet firmly entrenched in his mouth; and then her Minister of Finance, Alan Winde, vainly attempted to throw his weight around in the abject absence of even a single Higgs Boson; after which some Bredell legates got their noses bloodied on the top floor of Verwoerd Sq.
As the lawyers say, the contents are self-explanatory…
Dear Premier Zille
COMPLAINT AGAINST THE MEC OF FINANCE, ECONOMIC DEVELOPMENT AND TOURISM, MR ALAN WINDE – OUDTSHOORN MUNICIPALITY
Kindly take note that I act on behalf of Oudtshoorn municipality herein.
The purpose of this letter is firstly to avoid an illegal intervention in terms of Section 139(4), and secondly to bring to your attention the recent conduct of Mr Winde, which we believe to be unethical, unconstitutional, and in clear violation of the Western Cape Provincial constitution as well as the law of the Republic of South Africa, and in particular the Municipal Finance Management Act 56 of 2003 (the MFMA).
I am sure that you are aware of the events that took place on 31 May 2013 when the DA/COPE councillors attempted to take control of the town in collusion with five ANC councillors who joined the DA on the same day.
I think that it is safe to state that it is common cause today that the abovementioned attempt was unlawful. After this unsuccessful endeavour, two further attempts followed which also proved to be unlawful and in consequence did not succeed.
Judging by the planning that preceded this attempted “take over”, as well as the various media statements which followed declaring the DA victory in Oudtshoorn, it is understandable that everyone involved in this, with respect, disastrous manoeuvre, will do anything humanly possible to mitigate the damage and embarrassment caused to the party as a result thereof.
More conspicuously, documentation that came to my client’s attention, statements made by various DA members, and the opposing papers filed in the current litigation in the Western Cape High Court, all indicate the undeniable fact that the DA desperately wants to be in power of the council before the three by-elections on 7 August 2013. Disturbing facts came to my client’s attention which explains this unabated drive to take control of the municipality at all cost. My client is in the process of drafting a report in this regard. The report will be made public as soon as it is finished. It will reveal exactly what the DA planned to table and approve with their majority vote at council level.
It will also explain the reason why they are not prepared to wait for the results of the by-elections to take control of the council, should they win. The risk of losing is too severe.
When all the attempts to achieve their objective failed, plan “B” kicked into action. Plan “B” is to prevent the approval of the budget before the end of the financial year so that the MEC of Local Government can dissolve the council and place the municipality under administration.
Plan “B” was however ruined when the MEC of Local Government intervened and extended the deadline stipulated in section 26(1) of the MFMA, till after the by-elections.
This decision was clearly made after the careful consideration of the current circumstances, the relevant legislation, and the applicable case law.
It was without a shadow of doubt the appropriate and logical intervention as contemplated and intended in the legislation and cannot be faulted.
This brings me to the consequential actions of Mr Winde.
I attach hereto two letters addressed to the executive mayor of my client dated 24 and 26 June 2013 respectively, from Mr Winde, the contents of which is self-explanatory.
I also attach hereto my client’s reply to the first letter wherein he refers to, and attaches his letter dated 24 June 2013, addressed to MEC Bredell, the content of which is also self-explanatory. He ends his letter by trusting that Mr Winde will be guided accordingly.
Unfortunately Mr Winde took it upon himself to disregard Mr Bredell’s intervention, and clearly states that he will dissolve the council and appoint an administrator.
This decision is based on erroneous interpretation of the legislation and more over directly contradicts the decision of Mr Bredell.
Please find attached hereto the following case law which directly addresses the issue at hand:
• The Premier of the Western Cape v Overberg District Municipality.
• Mnquma Local Municipality v The Premier of the Eastern Cape.
It is my submission that Mr Winde’s conduct is not only unlawful, but clearly male fide in a desperate attempt to achieve ulterior objectives under the banner of his “super visionary duties”.
I also submit that his actions are in direct violation of the following stipulations contained in the Constitution of the Western Cape Province:
7.As part of the provincial sphere of government of the Republic of South Africa, the Western Cape government must—
(a)act in accordance with the principles of co-operative government and intergovernmental relations set out in the national Constitution in all its dealings with the national government, the other provincial governments and the municipalities in the Western Cape;
(b)participate in structures and institutions to promote and facilitate intergovernmental relations, established in terms of the national Constitution; and
(c)make use of mechanisms and procedures for the settlement of intergovernmental disputes, established in terms of the national Constitution.
Accountability and responsibilities
(1)The Provincial Ministers are responsible for the functions of the executive assigned to them by the Premier.
(2)Provincial Ministers are accountable collectively and individually to the Provincial Parliament for how they exercise their powers and carry out their functions.
(3)Provincial Ministers must—
(a)act in accordance with the national Constitution and this Constitution; and
(b)provide the Provincial Parliament with full and regular reports concerning matters under their control.
Conduct of members of the Provincial Cabinet
(1)Members of the Provincial Cabinet must act in accordance with the code of ethics prescribed by national legislation.
(2)Members of the Provincial Cabinet may not—
(a)undertake any other paid work;
(b)act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c)use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
Transfer of functions
47.The Premier by proclamation in the official gazette of the Province may transfer to a member of the Provincial Cabinet—
(a)the administration of any legislation entrusted to another member; or
(b)any power or function entrusted by legislation to another member.
Temporary assignment of functions
48.The Premier may temporarily assign to a member of the Provincial Cabinet any power or function of another member who is absent from office or is unable to exercise that power or perform that function.
Supervision of local government
(1)When a municipality in the Western Cape cannot or does not fulfil an executive obligation in terms of legislation, the Provincial Cabinet may intervene by taking any appropriate steps to ensure fulfilment of that obligation, including—
(a)issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations; and
(b)assuming responsibility for the relevant obligation in that municipality to the extent necessary—
(i)to maintain essential national standards or meet established minimum standards for the rendering of a service;
(ii)to prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the Western Cape as a whole; or
(iii)to maintain economic unity.
(2)If the Provincial Cabinet intervenes in a municipality under subsection (1)(b)—
(a)the intervention must end unless it is approved by the national Cabinet member responsible for local government affairs within 14 days of the intervention;
(b)notice of the intervention must be tabled in the Provincial Parliament and in the National Council of Provinces within 14 days of their respective first sittings after the intervention began; and
(c)the intervention must end unless it is approved by the National Council of Provinces within 30 days of its first sitting after the intervention began.
I furthermore believe that Mr Winde broke his oath to which he swore when taking office as a MEC.
The oath reads as follows:
I swear that I will be faithful to the Republic of South Africa and the Province of the Western Cape and will obey, respect and uphold the national Constitution, the provincial Constitution and all other law of the Republic, and I undertake to hold my office as Provincial Minister of the Western Cape with honour and dignity, to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the function of my office conscientiously and to the best of my ability.
In closure I hereby state that should my client be dissolved by any executive decision taken by Provincial Government, such dissolvement will be illegal and of no force or effect.
Please take note that when public officials have been found guilty of acting in bad faith, courts have been prepared to make awards against them in their personal capacity – that is award the costs de bonis propriis against them.
I trust that you will be guided accordingly and that the appropriate action will be taken against Mr Winde.
Kindly acknowledge good receipt hereof.
DREWAN BAIRD COMMUNICATION – Sensaytional – 076 349 6316
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