There was never threat to dissolve Bay council, MEC tells court

Eastern Cape co-operative governance and traditional affairs MEC Xolile Nqatha has told the Port Elizabeth High Court there was never any threat to dissolve the Nelson Mandela Bay council.

Nqatha was responding to the DA’s urgent court application filed on July 31 to compel council speaker Buyelwa Mafaya to convene a council meeting and elect a new mayor and to interdict Nqatha from dissolving the council.

Cited as a first respondent in the court application, Mafaya said it was not necessary to elect a new mayor yet as there was no vacuum in the council.

In his responding affidavit filed on August 6, Nqatha told the court there was no threat to dissolve the council and he could not simply dissolve the municipality.

“Any attempt on my part to dissolve the council, which is, for reasons already canvassed, not possible, without exhausting measures which are less destructive to democracy, such as issuing directives in terms of Section 139(1)(a) of the constitution, which would obviously be unlawful.

“Apart from the fact that, as a matter of law, I cannot dissolve municipal councils and [have] not threatened to do so, there was never any reason to come to such a conclusion,” Nqatha said.

On July 21, Nqatha wrote to acting mayor Thsonono Buyeye and gave the metro seven days to convince his department why the provincial government should not intervene.

Nqatha told Buyeye that he intended to recommend to the provincial executive committee that Section 139(1) of the constitution be invoked which would see the city placed under administration.

He said his decision to recommend that the city be placed under administration stemmed from a failure to fill the mayor’s position and the appointment of Mvuleni Mapu as acting city manager.

 Probed a few days later on which section of the constitution he was referring to, Nqatha said the department of co-operative governance had reached a point of no return and he would approach the province’s executive council to request that the metro council be dissolved.

However, he said this would depend on the council’s response on why the metro should not be placed under administration.

The council has not sat since Nqatha’s letter.

After the DA turned to the courts, Mafaya agreed to hold a meeting on Thursday this week but changed her mind last week. .

In the DA’s founding court application, the second applicant, councillor Morne Steyn, said the party had submitted several petitions calling for a council meeting and for the item relating to the election of a new mayor to be added on the agenda.

Steyn said since the start of the year, the metro has held six council meetings and failed to add the items on any of the agendas.

Buyeye has been acting mayor since the UDM’s Mongameli Bobani was ousted as mayor through a no-confidence motion at a council meeting on December 5. .

In her responding papers filed on Wednesday, Mafaya said there was never a vacuum in the office of the mayor and service delivery, even during the lockdown period, as it was at “all material times” filled by Buyeye, who is the deputy mayor.

Mafaya said there was no doubt that there would be more than one mayoral candidate nominated during the election process and this meant voting would have to be done by secret ballot, which would be difficult under the lockdown.

“The complexity we currently have is that remote council meetings cannot accommodate a voting process by way of secret ballot, given the nature of the process and procedure of a secret ballot vote.

“For this reason, I am of the view that it is neither necessary nor practical under present circumstances, to elect an executive mayor, this is moreover so since the deputy mayor is currently adequately fulfilling the functions and duties of the executive mayor,” she said.

Regarding a special meeting initially scheduled for March 12, after the DA delivered a petition supported by a majority of councillors calling for the meeting, Mafaya said the United Front withdrew its signature from the petition and one councillor from the DA resigned.

On legal advice she obtained, the meeting did not proceed due to the petition no longer conforming to the requirements of  Section 29(1) of the Structures Act — meaning the majority of councillors no longer supported the meeting.

However, Steyn said the speaker’s reasoning was incorrect.

“When the petition was delivered it had the support of a majority of councillors and, thus, the speaker was required to hold the meeting,” he said.

In relation to the other requests for meetings, Mafaya said: “Unfortunately, due to the Covid-19 pandemic and the National State of Disaster being declared, we went into lockdown with immediate effect from midnight March 25, hence no council meetings could be held due to the said lockdown.

“The DA coalition once more on June 8 sought, by way of a petition, a council meeting to be held on June 25.

“This petition was supported by 61 signatures.

“Once more, prior to June 25, the two UDM councillors who formed part of the signatories to the meeting requested, informed me in writing that the UDM no longer supports the meeting request.

“I find it prudent to mention that the conduct of political parties to initially support the call for council meetings and then withdraw such support is, unfortunately, the nature and making of coalition governments, where the smaller parties negotiate with other parties for specific and or beneficial outcome.” 

— HeraldLIVE