On the 26th of May 2020, Judge Nathan Erasmus, of the Western Cape High Court in Cape Town, heard the matter between #UniteBehind and the Minister of Transport, concerning the legality of the Minister’s appointment of Mr. Bongisizwe Mpondo as PRASA’s so-called “Administrator” late last year. The judge encouraged the parties to settle the matter, and undertook to withhold judgment until the parties had reverted on settlement on Tuesday, 2nd June 2020.
In the case, #UniteBehind is seeking orders reviewing and setting aside Minister Mbalula’s decision to appoint Mr Mpondo as an “Administrator” in place of permanent Board of Control at PRASA, as well as the Minister’s decision to appoint Mr Mpondo as the Acting Chief Executive Officer and accounting authority for PRASA.
#UniteBehind seeks an order directing the Minister to appoint a permanent Board of Control within three months, and an order directing National Treasury, in the interim, to appoint another functionary of a public entity as the accounting authority of PRASA (in the exercise of its powers under section 49(3) of the Public Finance Management Act).
Adv. Janice Bleazard, counsel for #UniteBehind (supported by Ben Prinsloo), argued that no law empowers Minister Fikile Mbalula to appoint an “Administrator” at PRASA or to vest accounting authority powers in any person. For PRASA to be placed under administration requires an Act of Parliament. Only National Treasury can authorise a functionary other than the PRASA Board to serve as the accounting authority in “exceptional circumstances”. It is also not open to the Minister to decide not to appoint a Board of Control at PRASA, as the Legal Succession to the South African Transport Services Act requires PRASA to have a Board with a particular composition.
The Minister also does not have the power to appoint the executive of PRASA – that is a power exclusively vested in the Board. Accordingly, in appointing Mr. Mpondo as “Administrator” at PRASA, as PRASA’s Acting GCEO and as the accounting authority for PRASA, the Minister contravened the Legal Succession to the South African Transport Services Act and the Public Finance Management Act.
Adv. Vincent Maleka SC, the Minister’s counsel, conceded that PRASA is required to have a Board of Control. However, Maleka argued that, after the Minister dissolved the PRASA Board, there was a lacuna that the Minister had to fill. The question was whether the Minister acted lawfully in doing so by his appointment of Mr Mpondo.
Before approaching the courts, #UniteBehind wrote to Minister Mbalula, urging him to correct the illegal appointment of Bongisizwe Mpondo as PRASA’s Administrator, but got no response. Many attempts to meet with the Minister in the course of 2019 were also fruitless. We hope that the Minister will now come to the table, and will finalise the appointment of a permanent Board at PRASA as he undertook to do last year. Leadership capacity and stability must be restored at PRASA as a matter of utmost priority.
We would like to thank our lawyers, Bradley Conradie Halton Cheadle (BCHC) and advocates Janice Bleazard and Ben Prinsloo for the work they have done thus far in representing us in this case.
For comment please contact Mmeli Dube on 065 869 4583.
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