NO POWER IS UNLIMITED

Even when you’re appointed to sort out a dysfunctional municipality, you should still play by the book, as a case in the North West high court shows

As SA municipalities continue to fail because of financial chaos and service delivery collapse, a high court decision contains timely warnings for anyone brought in as an emergency municipal administrator about the limits of their powers.

During the second half of 2014, Ramachunderan Nair was appointment ed administrator of the Ngaka Modiri Molema district municipality. As he would later tell the North West high court, it was no easy situation: the municipality had been placed under administration, the local community was protesting over the lack of service delivery, municipal employees were on strike, municipal creditors had not been paid, and roads and govern- buildings were damaged along with water and sanitation service plants. Motorists driving in the area of the protests were also attacked and threatened.

Nair discovered that the existing “service delivery agents” responsible for water and sanitation feared for their lives and were not prepared to go out to the affected rural areas to repair and install water and sanitation services. Some of these service providers also complained that they had not been paid, and “withdrew their services” pending payment. As a result, water and sanitation provision was “almost nonexistent”, with “no access to basic services”.

Nair visited the affected sites with the police and concluded that the cuts to water and sanitation services posed a “real imminent threat” in relation to the health of the community. If something was not done urgently, strikes would escalate and become more violent. So he had a meeting — for which no minutes were kept — with a Mr Rajah, a member of Nair’s “intervention team”, and they decided to approach a new outfit, Moto-tech, to provide water and sanitation services and maintenance for all the municipalities in the district.

Nair signed a three-year contract with Moto-tech, but without the signatures and agreement of anyone in the municipality.

Now the question is whether that agreement was valid.

The man who was appointed acting municipal manager in May 2015, Lomax Gopane, claimed Nair’s agreement with Moto-tech was unconstitutional and against municipal supply chain management policy. The services Mototech was to supply were already “being offered and provided” to the municipality by other companies, so it involved unnecessary expenditure. In addition, Nair did not follow procedures before finalising the Moto-tech agreement.

Nair, who claimed the expenditure was subsequently “regularised”, said because of the emergency situation it was not possible for him to follow the normal route to finalise such agreements.

Supervisory role

His arguments were not accepted by the court, which found that though the council was dissolved, the municipal manager and finance officer remained in place and that Nair had a merely supervisory role with limited functions. While there was a municipal emergency needing immediate action, Nair’s actions in concluding an agreement with Moto-tech showed a “lack of transparency and accountability”.

There were, for example, municipal water officials available, unaffected by the dissolution of the council, who could and should have been consulted.

Nair “assumed the responsibilities of the accounting officers and usurped their powers and unilaterally concluded the . . . contract”. Contrary to the rule of law and the principles of legality, he was the only signatory on behalf of the municipality.

Nair, who tried to defend his actions, now has to pay the legal costs of the case.

Perhaps the most important lesson from this unhappy tale is that anyone agreeing to step in when a municipality is put under administration should have a crash course on the powers that go with the job — and the limits of those powers.

Contrary to the rule of law and the principles of legality, Nair was the only signatory