GCTCA officially appeals approval of City of Cape Town Budget 2012/2013

 

June 6th, 2012

The City Manager, City of Cape Town
Mr Achmat Ebrahim
5th Floor, Podium, Civic Centre, Cape Town, 8001
By E-mail: city.manager@capetown.gov.za

Dear Sir

INVALID APPROVAL OF THE BUDGET OF THE CITY OF CAPE TOWN FOR 2012/2013 ON 28 MAY 2012

The Greater Cape Town Civic Alliance (‘GCTCA’), a voluntary association of residents’, ratepayers’, civic and other interest groups within the City of Cape Town municipal area, has over the past 2 months attempted to participate in the budget process as envisaged in the Constitution of the Republic of South Africa 108 of 1996 (‘the Constitution’), Local Government: Municipal Systems Act 32 of 2000 (‘Municipal Systems Act’), Local Government: Municipal Finance Management Act 56 of 2003 (‘Municipal Finance Management Act’), with very limited success due to the indifference of the City of Cape Town’s management, and its refusal to communicate and consult with the GCTCA regarding information requested and objections raised.

On 5 April 2012 the GCTCA submitted a request for information to enable it to inform itself in order to meaningfully participate in the budget process. Limited and in some instances incomplete information was provided by the city.

On 24 April 2012 the GCTCA submitted a list of objections to the draft budget as tabled in council. City management chose to ignore these objections by not communicating with the GCTCA at all.

Because of the City’s failure to communicate, or its disinterest, the GCTCA on 24 May 2012 rejected the draft budget outright.

Despite all the above attempts to engage in meaningful discussions with City management regarding the GCTCA’s concerns with the budget, and despite the most forceful form of protest by its rejection thereof, the City blithely went ahead and approved the budget for implementation on 1 July 2012.

Section 23 of Municipal Finance Management Act provides for a compulsory public participation process. It COMPELS (our emphasis) the municipal council to consider the views of the local community (section 23(1)(a)), and COMPELS (our emphasis) the council to give the mayor an opportunity to respond to the submissions (section 23(2)(a)) and amend the budget if deemed necessary (section 23(2)(b)).

Public participation in local government matters is a value enshrined by the Constitution in terms of section 152(1)(e) of the Constitution. It is evident that adherence to the spirit and not just the letter of legislation dealing with public participation is what is envisaged and in fact required by the provisions of the Constitution and section 23 of the Municipal Finance Management Act. It is our submission that the City failed to substantively and meaningfully engage with the GCTCA’s objections and failed to respond to our questions in a meaningful manner.
As such it cannot be said that the requirements of section 23(1)(a) have been complied with, as the City cannot conclusively argue that it had considered our views. Whilst the wording of section 23(2)(b) seems to suggest that a response from the mayor is not compulsory as it merely requires the municipal council to afford the mayor an opportunity to respond, and as such the City could argue that there has not been non compliance as a response by the mayor is not compulsory in terms of that section.

We reject such an interpretation on two grounds: Firstly, applying the rules of statutory interpretation it is nonsensical to make it compulsory in section 23(2)(b) that the municipal council must give the mayor and opportunity to respond, whilst at the same time then argue that the mayor has a complete and unfettered discretion as to elect whether to respond or not; secondly we submit that given the extent and magnitude of our comments, objections and questions, a failure to respond as is the case cannot be reasonably interpreted as constituting compliance with section 23(2)(b).

We are of the view that the failure by the City to meaningfully respond to our written communications constitutes a fatal flaw that results in the invalid approval of the City’s budget on the basis that such a failure is of a substantive and not merely procedural nature, given the Constitutional importance attached to public participation.

We are of the view that the City’s Budget has not been validly approved and is currently null and void.

In the alternative, we submit that the provisions of section 23(2) of the Municipal Finance Management Act provide that the municipal council must give the mayor an opportunity to respond to the submissions and to amend the budget if needed. We submit that such obligation to afford the mayor an opportunity to respond was not adhered to on the basis that our objections and comments were not adequately responded to. Given that such power afforded to the mayor in terms of section 23(2) of the Municipal Finance Management Act constitutes a delegated authority as contemplated in section 62 of the Municipal Systems Act, it is subject to appeal in terms of that section.

We accordingly submit that the failure by the mayor to adequately respond to our questions and objections was a decision taken (ie a decision not to respond) which has adversely affected our rights and hereby lodge an appeal against the approval of the budget that was taken in consequence of a failure to exercise the duties conferred on the mayor in terms of section 23(2)(a) of the Municipal Finance Management Act.

 

Henri Wolfaardt

Henri Wolfaardt
For: The Greater Cape Town Civic Alliance
Cape Town
06 June 2012

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