‘Irrational’: Former Umgeni Water board member Visvin Reddy and others have taken the the board’s disbandment to the high court
A high court challenge to Water and Sanitation Minister Lindiwe Sisulu’s disbandment of the Umgeni Water board last year is set to be heard in Pietermaritzburg on Friday.
The challenge has been brought by former board member Visvin Reddy, a former ANC eThekwini councillor and founder of the African Democratic Change (ADeC) party, who was removed from office on July 31 last year.
Sisulu dissolved the Umgeni Water board along with those of a number of water, sanitation and housing entities falling under her department after she was appointed to the ministry by President Cyril Ramaphosa in 2018.
She argued at the time that the board’s term of office had been extended by her predecessor, Gugile Nkwinti, without the concurrence of cabinet, rendering its appointment unlawful.
Sisulu’s moves sparked claims that she was using the housing, water and sanitation entities under her control to appoint key figures from the radical economic transformation faction of the ANC as part of her bid for the party presidency in 2022.
Sisulu had contested the ANC presidency in 2017, but collapsed her campaign in the run-up to the national conference at Nasrec after it failed to gain any real traction with party branches.
In the case of Umgeni, Sisulu appointed former ANC Youth League national coordinator Magasela Mzobe, who had no previous experience in the sector, as chairperson of the 11-member interim board.
She has subsequently issued advertisements for applications from potential members of a permanent board, which is to be appointed to replace the interim board.
An application by Reddy and eight other board members to have the review of the decision to dissolve the board heard by the high court in Pietermaritzburg as an urgent matter was dismissed by the court last year.
The request that the court review Sisulu’s decision was deferred, with the date for argument set down for Friday.
In the papers before court, Reddy and the other board members asked that the decision to dissolve
the board be set aside, along with the decision to appoint an interim board.
Sisulu had, they said, acted in an “unlawful” and “irrational” manner in dissolving the board and appointing the interim structure and had gone beyond her powers in doing so.
Sisulu had, they said, dissolved the board unnecessarily, as she could have sought cabinet approval for the extension of its term by Nkwinti.
Reddy said the argument that cabinet concurrence was necessary to confirm board appointments was fallacious, as this would undermine the powers of both parliament and the individual ministries in the government.
In her responding papers, Sisulu said she was opposing the challenge because she had acted within her powers in dissolving the board, which was of an executive nature.
She said her predecessor had extended the board’s term for four years during the last week of his term of office “without following the cabinet resolution that these appointments are approved and made by the cabinet as a collective”.
Further, it was within her powers, in terms of section 35 of the Water Services Act, to terminate the tenure of board members and to appoint new ones.
Sisulu said the court was being asked to “usurp the powers of the minister”, which included exercising executive authority over the Umgeni Water board, which was “not permissible in terms of the well-known principle of separation of powers”.
“This application is a transparent attempt by the applicants to prevent the minister from exercising her powers to appoint a board for the Water board, to perform the functions in terms of the provisions of the Water Services Act.”
Umgeni Water spokesperson Shami Harichunder confirmed that the matter had been set down for argument on June 11 and said he could not comment further on the progress made in appointing a permanent board.
Harichunder said the matter was being dealt with by Sisulu’s office because powers to appoint or disband the country’s water boards lay with her.
Umgeni Water had told the court in papers that it would accept the outcome of the court case.
Sisulu’s spokesperson, Steve Motale, did not respond directly, but instead referred the Mail & Guardian to the minister’s budget speech.
In it, Sisulu said she had “strengthened and improved the governance of the water boards”.
Sisulu said the department had finalised the process for appointing boards at Umgeni and other entities. The boards would have a four-year term of office, running from the date on which each appointment received cabinet concurrence.
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