Oudtshoorn and Tlokwe court cases – important differences

It’s similar, but different

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Drewan Baird. Oudtshoorn. 4 August 2013. 08h40. Judging by the proverbial word on the street, most always a threat to veracity, it is necessary to indicate the important differences between the Oudtshoorn and Tlokwe (Potchefstroom) law suits on Council political control. The faulty comparisons between the court cases may be the result of ignorance, malevolence, political expediency, or a combination of the above.

The mayor issued a media statement last night to clarify the matter.

In Tlokwe, proper notice had been given of a motion of no confidence and the item had been placed on the agenda, and the agenda circulated among councillors. Not so in Oudtshoorn, where no notice had been given, and the item was not included in the agenda.

The DA, in Oudtshoorn, brought a motion of no confidence in the Speaker as a motion of exigency in terms of the Rules of Order. “Exigency” means urgent, as in action required to react to a crisis.

In the Tlokwe case the Court ruled that an emergency would be, for example, “a fear that a bomb had been planted in the council chamber”. No such urgency was present in Oudtshoorn.

In Tlokwe, there was an attempt to cancel the duly scheduled Council meeting one day prior to the meeting. In Oudtshoorn, the meeting was obviously not cancelled in advance, but instead adjourned in accordance with the Speaker’s inherent powers in case of disorder.

The reason for the postponement or cancellation of the scheduled Council meeting in Tlokwe was alleged to be an emergency. Disciplinary proceedings were taking place on the same day and the mayor deemed it necessary to cancel the Council meeting. The Court found this reason to be unconvincing, and held that the true reason was a political attempt to avoid a debate on the motion. The Court ruled that the Speaker was not entitled to postpone or cancel the meeting “at her own will and pleasure”. In Oudtshoorn, the motion was similarly not concerned with an emergency, and there is no reason why the required notice could not have been given, especially as it seems the DA had been planning the motion well before the meeting.

The Oudtshoorn case is clearly altogether different to the Tlokwe case.

It is also important to consider the cost of the Oudtshoorn case and measures to ensure that ratepayer money is not used to pay for the DA’s political adventures and kansvattery.

In Tlokwe, the Court held that “public money should not be used to resolve a political dispute and should not, in a local government context, be diverted from its proper purpose of building communities and supplying them with resources.”

The DA’s actions on May 31, when the DA unsuccessfully attempted to take over control of the Oudtshoorn Council, can be described as an ambush; “political nudging and elbowing”. During the Council meeting of May 31, the DA councillors were repeatedly reminded that no prior notice of the motion of no confidence was given. The Structures Act demands that prior notice be given.

Yet the DA councillors ignored the warnings and several of the DA councillors repeatedly challenged the Speaker to “test” the issue in court.

It was pointed out to the DA councillors that ratepayer money should not be wasted on legislation, but the DA ignored this warning also.

On the very day after the DA’s irresponsible and illegal antics in Council, the Speaker asked the DA councillors, in writing, to acknowledge the mistake of May 31 and avoid legal costs. The DA rejected the proposal. Not once, and not twice, but on no fewer than three subsequent occasions did the Speaker plead with the DA to avoid further legal costs and on each an every occasion the DA refused to spare the ratepayers.

In an ironic twist, the DA councillors are now also implicated in an apparent fraudulent settlement agreement, in terms of which certain DA councillors agreed that the costs in the Pierre Nel v Oudtshoorn Municipality matter should be paid by the ratepayers, despite the fact that the Municipality had two costs orders in its favour. Clearly the DA is prepared to squander ratepayer money at will in attempts to gain political control and avoid paying its own bills and generally to benefit from the flippant use of ratepayer money. The ease with which the DA litigates, assuming that the public would foot the bill, is astounding.

Clearly the Oudtshoorn DA has an attitude of flagrant disregard of the rule of law.

The Speaker has therefore asked the Court to punish the DA councillors personally.

The DA has left the Speaker with no choice but to go to court at high cost.

There can be no doubt that the DA in Oudtshoorn acted unlawfully and there can be no doubt that the DA in Oudtshoorn is absolutely determined to use ratepayer money for its own benefit and the benefit of DA councillors.

The Speaker is asking the Court to order the DA councillors and the DA to pay all costs relating to all legal action following the DA’s illegal antics on May 31 so that Oudtshoorn’s ratepayers do not have to pay for the DA’s scandalous adventure in Council and the DA’s disgraceful attempt to have Oudtshoorn’s ratepayers foot the bill for Pierre Nel’s expensive law suit against the Municipality.

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2 thoughts on “Oudtshoorn and Tlokwe court cases – important differences

  1. There is one area, however, where the two are identical and that is the cause leading to the litigation/legal costs. Both stem from political scrap between the DA and ANC or the ANC and DA. It is in relation to this that the costs order part of the judgement, specifically applies to the ODN situation. In both instances it is purely about a scrap between the politicians and has little or nothing to do with service delivery as per section 152 of the Constitution.

    In the Tlokwe situation it is clear that it was the ANC councillors’ political games that gave rise to the need for litigation and in Oudtshoorn’s case, the misbehaviour of the DA councillors precipitated the litigation. All one has to do is read the transcript of the original 31 May meeting to know where the need to adjourn the meeting arose.

    We can only hope that other judges will take note of the judgement and take these factors into consideration when state funds are used to fund this kind of litigation. Once it becomes practice for Judges to consider what gave rise to the litigation in the first place this kind of litigation will certainly diminish. It may even be a good idea for the A-G to assess legal costs as part of the annual auditing process and to weigh it against the “fruitless and wasteful” definition of the MFMA.

    But, O!O, lets be fair. It was not “…Nel’s expensive lawsuit against the municipality.” We all know, and the evidence is there to back it up, that the litigation was to the benefit of the DA, approved at the highest level and funded by them. Nel was just their useful idiot, not unlike like the Foolish Five.

    I cannot help but agree with IP’s apparent sentiments that party politics has become the de facto focus of local government councillors and stands firmly in the way service delivery and the best interests of the individual towns and their residents.

  2. Dankie OO, baie insiggewend
    Krap hierdie korrupsie asb oop tot op die been sodat die DA dit nooit ooit weer sal waag om huigelagtig te wees, een ding te se aan die niksvermoedende publiek en iets heel anderds agter hul rugge gaan aanvang.

    Kyk, ons weet die ANC doen dit al vir 19 jaar, maar as die DA dink hul kan dit ook doen, is ODN totaal beter af sonder enige, SONDER ENIGE politieke verteenwoordiging, maar eerlike onafhanklike onselfsugtige publieke diennaars wat geen politiek of velkleur raaksien en toegespits is op slegs GOEIE DIENSLEWERING AAN ALMAL !!. Politici meestal n spul korrupte selfsugtige trogvretende leunaars !

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