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AfriForum loses bid to declare budget approved by former Tshwane administrator unconstitutional

Former City of Tshwane head administrator Mpho Nawa. Picture: Jacques Naude/African News Agency (ANA)

Former City of Tshwane head administrator Mpho Nawa. Picture: Jacques Naude/African News Agency (ANA)

Published Jan 3, 2022

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Pretoria - Civil rights organisation, AfriForum, has lost another legal bid to declare unconstitutional the approval of the 2020/21 annual budget by former Tshwane administrator Mpho Nawa after the Supreme Court of Appeal (SCA) dismissed its application with costs.

AfriForum elevated the matter to the SCA on appeal after the Gauteng High Court, Pretoria had ruled against its urgent application in which it argued that Nawa overreached his authority by approving the final budget and that the correct processes were not followed in approving the budget.

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The organisation also contended that there was "a fundamental difference between the executive and the legislative powers of a municipal council. The administrator is only an interim custodian and cannot execute legislative decisions such as approving a budget”.

The civil rights group wanted the court to set aside the budget approved by Nawa, who was appointed by the Gauteng executive council under Premier David Makhura in terms of Section 139 (1) (c) of the Constitution.

Nawa was appointed on March 5 2020 following the dissolution of the Tshwane municipal council by the provincial executive council on the grounds that it was dysfunctional and impacted negatively on service delivery.

In court papers, AfriForum contended that the passing of the budget was unconstitutional and therefore invalid.

Contacted for comment, AfriForum’s manager for local government affairs, Morné Mostert, said: "At this stage our attorneys are studying the judgment closely and they will also be making recommendations on how we should proceed."

Mostert did not want to dwell on possibilities of taking up the matter with the Constitutional Court, saying the way forward would be determined by recommendations by AfriForum's legal team.

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Nawa expressed happiness with the judgment, saying it was also educational in terms of what constituted Section 139 of the Constitution.

"It is a good decision of the court because we have tried to explain to AfriForum what constitutes Section 139 that as the administrator you assume all the executive obligations of the municipality and at that point we were responsible for that. The municipality would not have provided services if the adjustment budget was not approved," Nawa said.

The SCA judgement noted that the budget which Nawa approved on June 30 2020, was ratified by the council upon its reinstatement by the full court in October 2020.

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Part of the ruling pointed out that the clear purpose of the administrator's appointment was "to ensure the continued functioning of the municipality".

"The administrator does so as the legal substitute of the municipal council. This leads to two important consequences. First, the administrator could hardly fulfil this function without an approved budget. It follows that if an administrator is in office when the aforesaid legislative provisions oblige the approval of a budget, the approval thereof by the administrator would accord squarely with the very purpose of the appointment of the administrator," the judgement read.

The court also said a fundamental flaw in AfriForum's case was that "it assumed that whenever a municipal council is dissolved, regardless of the basis for the dissolution or the power invoked, it is only the provincial executive that is empowered to adopt the budget".

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