Suspended Police Minister Senzo Mchunu
Water and Sanitation Minister Senzo Mcunu’s decision to fire the Amatola Water board last year and replace it with an interim structure has been overturned by the high court.
The board, which is responsible for bulk water supply to four rural districts in the Eastern Cape, has been plagued by instability at board and executive level and corporate governance issues under a succession of water and sanitation ministers.
Mchunu plans to extend its operations to cover the entire Eastern Cape, much of which is battling with erratic water supply caused by collapsing municipal infrastructure, as part of a programme of consolidating regional water boards into provincial ones.
In March last year, Mchunu removed the entire board of Amatola Water and reversed its appointment of chief executive officer Petrus Matji, which had been endorsed by cabinet the previous month and appointed a permanent board headed by Pam Yako.
At the time, Mchunu said he had done so because of “instability and governance at Amatola Water as an entity, which in turn affected the provision of water to communities in the Buffalo City metropolitan area”.
Mchunu said the supply of water by Amatola Water had been “far below the growing demand in various parts of the province” and that this situation was “untenable”.
Buhle Tonise, Zama Xalisa and other board members approached the Eastern Cape high court in Makhanda in May last year for a review of Mchunu’s decision and an interdict to stop the minister from appointing a permanent board before the review had been heard.
The interdict against appointing a permanent board was granted by consent between the parties, with a timetable set by the court for the exchange of documents and argument in the review application.
The court also allowed Mchunu to identify potential permanent board members while the court case was going on to ensure continuity of leadership if the review application failed.
On Wednesday, the court ruled that Mchunu’s argument that he had “unfettered discretion” to remove and appoint a board in terms of the Water Services Act had “no merit”.
The concept of unfettered discretion was “hopelessly at odds with contemporary constitutionalism” because the Constitution required that there be some constraints on broad discretionary powers, the court said.
While the court did not agree with the minister’s argument that his decision was executive rather than an administrative, the applicants had failed to prove that the requirements for a fair, procedural decision had not been met by Mchunu.
Although there had been instability at the board, Mchunu had failed to demonstrate that this was at the expense of residents in the Eastern Cape.
Mchunu’s lawyers had argued that this was among the reasons the board was dissolved, but there was “no evidence” that board members had failed in their duty to ensure that water was supplied to the municipalities.
“Instead, they have demonstrated that they have made strides in achieving the objectives of the water board,” Judge Nomathamsanqa Bheshe said in the ruling.
The court was “not persuaded” that the decision to dissolve the board was “rationally connected to the purpose sought to be achieved” and set it aside as reviewed and unlawful.
Bheshe said that she could not grant the request by Mchunu that she not reinstate the board if she found in their favour.
“Acceptance of an appointment to the board of a state-owned entity presents a risk to one’s personal brand and professional image. In my view, it will not be just and equitable not to order the reinstatement of the board under these circumstances.”
The court ordered that the dissolution of the board and their dismissal be set aside and that they be reinstated with immediate effect.
Mchunu was ordered to pay the costs of the application.
His spokesperson, Kamogelo Mogotsi, said Mchunu had received the judgment and that he would discuss the matter with the department’s legal services on the course of action.
It is not clear what the implications of the ruling will be for a similar case, brought by former members of Umgeni Water Amanzi, who Mchunu removed in March this year.
Mchunu has started a process of combining Umgeni Water, which serves most of KwaZulu-Natal, with Mhlathuze Water at Empangeni, which provides water to the northernmost district municipalities.
Its members — who were fired by Mchunu’s predecessor, Lindiwe Sisulu, and reinstated by the court — have gone back to the Pietermaritzburg high court to have the decision to remove them and appoint an interim board declared unlawful and set aside.
The matter will be heard on 3 June.