Senzo Mchunu. File photo
Water and Sanitation Minister Senzo Mchunu’s plan to combine KwaZulu-Natal’s embattled water boards into a single entity by July may be derailed by a high court challenge brought by former members of the Umgeni Water Amanzi board.
Mchunu wants to combine Umgeni Water with Mhlathuze Water — which supplies municipalities in the north of the province — to create Umgeni-uThukela Water, supplying 11 million people with drinking water.
He believes that a single entity will reduce costs and improve efficiency in water delivery in the province, which has been plagued by outages across its 10 districts and in the eThekwini metro.
Mchunu gazetted the new entity in November, giving notice to members of both boards, which have struggled with poor corporate governance and have been the subject of investigations by the Special Investigating Unit and the Directorate for Priority Crime Investigation (the Hawks) over alleged procurement corruption.
Mhlathuze Water has also been hit by a spate of high-profile resignations in the past two months, including that of chief executive Simo Lushaba and security head Karen Johnson — and is being managed by Vusi Kubeka, a Rand Water executive seconded by Mchunu.
Lushaba, Johnson and staff members were held hostage for five hours in April by a business forum demanding that a R36 million contract for guarding pump stations in Richards Bay and Empangeni be awarded to Makadebona VIP Security Services.
Umgeni Water racked up R2 billion in irregular expenditure in 2020 and 2021, which included allegedly unlawful tenders to Raminet Technologies and MPS Strategic Solutions, companies owned by tenderpreneur Sibonelo Shinga.
Shinga, whose relationship with former Umgeni Water chief executive Thami Hlongwa saw the latter resign over an internal forensic audit, was shot dead in 2021.
But Mchunu’s plan to merge the entities and put in place a board for the new one faces a legal challenge from members of the Umgeni Water board, who have gone to the Pietermaritzburg high court to have their dismissal interdicted and declared unlawful.
The Umgeni Water board members, who were previously fired by Mchunu’s predecessor Lindiwe Sisulu, and reinstated by the court, also want Mchunu to reinstate them so that they can conclude their terms, as well as the merger process, in which they have been involved since last year.
The interdict was scheduled to be heard on 2 May, but was adjourned to 3 June by consent between the parties after the applicants, including Visvin Reddy, were furnished with new documentation which they needed time to respond to.
In his papers before court, Mchunu said that the application by Reddy and his colleagues for an interdict against the decision to dismiss them could not be granted because interdicts applied to pending actions and not those already taken.
He said they could not be reinstated by the court because their four-year term of office, which began in 2019, would have expired naturally on 30 April this year.
The water and sanitation minister said Reddy had asked the court to “usurp my powers and functions” and that the decision was made lawfully and on the basis of an investigative report by Gobodo Forensic and Investigative Accounting.
Mchunu appointed Gobodo to look into the board’s conduct in the process of recruiting a chief executive, which was found to have been carried out in an irregular manner and had ended up in a costly arbitration process.
Gobodo had recommended “remedial action” against the board over the debacle, in which recruitment agencies had been appointed without following Umgeni Water’s procurement procedures.
Mchunu said he had dissolved the board on 9 March after giving it an opportunity to provide reasons he should not do so and had then appointed an interim board at Umgeni Water to prevent a “lacuna” in leadership at the entity.
He said the fired board members had failed to prove that there was a need to hear the matter urgently and that they could bring a review application against the decision later without suffering any prejudice.
Mchunu said his decision was “rational” and that he had appointed an interim board “to ensure that there is proper governance in place pending a decision on the appointment of a permanent board”.
In his responding affidavit, Reddy said the dismissed board members would suffer harm because the review of their 2020 dismissal had taken a full nine months to be heard.
As a result of this delay, he and other board members still had an additional year to run on their contracts, which were thus valid until next year and not 1 May this year, as claimed by Mchunu.
Reddy said the court in 2020 had found Sisulu did not have powers to appoint an interim board, and that Mchunu was aware of this, but had still appointed another one.
“The applicants have brought the application seeking interim relief and to prevent an abuse of power unreasonably exercised by the minister. The abuse of power stems directly from the Act that makes no provision for the appointment of an interim board and which this court found to be the case in the 2020 application,” Reddy said.
“The minister is aware of the said judgment, and so should the minister’s legal advisers [be], and yet the minister persists with opposition in defiance of the judgment.”
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