R10 million saved in Nelson Mandela Bay

The following letter is a good example of what an active and alert Residents association is capable of. In this case, a completely unnecessary expenditure of R10 million of council funds on an "Election Mobilisation" campaign was avoided, although it required a lawyers intervention to do so.

The Executive Mayor

Nelson Mandela Bay Metropolitan Municipality

Town Hall

PORT ELIZABETH

Dear Sir

We act on the instructions of the RATEPAYERS ASSOCIATION OF THE NELSON MANDELA BAY METROPOLITAN MUNICIPALITY, civic organization acting in accordance with section 5 of the Municipal Systems Act No 32 of 2000.

This letter is addressed to you in your official capacity and for the attention of all the members of the Municipal Council.

Our client has noted various announcements regarding your council’s “resolution” on Thursday 24 February 2011 to vote an amount of R10 million to implement a 2011 municipal election mobilization programme, including a circular on “Groupwise” to all staff and councilors, a formal press release by the municipal spokesman and subsequent media stories. 

Please take note that our client believes that the purported “resolution” was not in fact carried, given that after the votes were cast and counted, the Speaker ruled that the resolution was lost. Our client contends that once such an announcement was made and the meeting adjourned, the ruling by the Speaker stands as the official result of the voting. Neither you, the Acting Municipal Manager, nor any other official or councillor for that matter, can legally change that ruling. This is ostensibly what has happened in the instant matter.

Please note that any attempt to implement this so-called resolution, in any manner, whether by allocating funds or by procuring goods or services, would be ultra vires and we hold instructions to apply to the High Court, if necessary as a matter of urgency, to interdict any such attempt at implementation.

FURTHERMORE and in any event, our client contends that a vote to allocate the amount of R10 million (or any other amount) from the municipal coffers for the purpose afore stated, would be ultra vires the powers and duties of the Council.

It is common knowledge that this item does not form part of the budget or of any adjustment budget. It has furthermore been publicly admitted by spokespersons of the Council that the municipal budget has been over extended; it is contended that there are in fact no surpluses in any vote to fund the R10 million.

Our client has noted with concern that in the Acting Municipal Manager’s report to the Council he has sought the Council’s approval for the municipality to “provide logistical, advocacy and publicity support to the Independent Electoral Commission (IEC) in ensuring free, fair and democratic local government elections in 2011” This is stated while the IEC itself has clearly and unequivocally denied that a need for such support exists. It thus cannot by any stretch of the imagination be argued that the need for such expenditure is either unforeseen or unavoidable (the only basis provided in the MFMA for unbudgeted expenditure).

In the light of the above our client maintains that there is no basis upon which the council may legally expend any sum on “support to the IEC”. Our client has given firm instructions to us to lodge an application for a High Court interdict, should your Council proceed with this course of action,

 We are also instructed to refer you and all councillors to the provisions of the MFMA and other relevant legislation that imposes a duty on councillors and officials to act strictly in accordance with the laws pertaining to the expenditure of revenue. Our client maintains that voting an amount of R10 million (or any other sum) for this purpose, would constitute irregular expenditure. Our client wishes us to make it clear that it shall not hesitate to reclaim, on behalf of the ratepayers of the municipality, any sum regarded as irregular expenditure from the councillors and officials that are involved in the decision making, personally.

Kindly confirm by return of mail that you concede that no valid resolution exists in relation to the abovementioned purpose. In the absence of such confirmation, our client will be forced to conclude that you intend to implement as if it had been validly passed and to pursue the necessary court action.

We once again request you to bring the content of this letter to the attention of all councillors in order that they are informed of our client’s intentions. A copy of this letter will be delivered to the Acting Municipal Manager. 

Yours faithfully,