OF eThekwini Council - Durban Minutes and... · PRESENTATION ON THE ANNUAL REPORT In initiating his...

- 2795 -

No. 63 MINUTES

OF

eThekwini Council

Minutes of proceedings of the Meeting of the eThekwini Council held

at the City Hall Main Auditorium, Church Walk, Durban

on Thursday, 2016-01-28T10:00

PRESENT : Councillors L Naidoo (Speaker), JS Nxumalo (Mayor), NF Shabalala

(Deputy Mayor), M Abraham, MF Adam, C Arunajallam, SV Asbury,

ME Bayeni, A Beetge, MN Bhengu, MR Bhengu, HP Biyela, WJM Burne,

SS Butelezi, I Cassimjee, Hlengiwe Cele, JN Cele, MS Cele, NT Cele,

BA Chili, AM Coen, TP Collins, RJ Crouch, P Davis, HU De Boer,

MAK Dladla, AN Dlamini, B Dlamini, CB Dlamini, JM Dlamini, NR Dlamini,

S Dlamini, HE Dube, DL Du Bois, BA Fortein, DC Gaillard, D Ganesh,

VE Gebashe, HD Goge, R Gokool, D Govender, G Govender, S Govender,

NL Graham, BT Gumede, SN Gumede, TJ Gumede, VC Gumede,

ZRT Gumede, BM Gwala, S Hansraj, PP Hlengwa, BA Hlongwa, S Hoosen,

NB Iyir, M Johnson, S Kalicharan, NG Khawula, LB Khuzwayo, VT Kunju,

CB Langa, NP Langa, RJ Lefevre, SH Lubhede, P Luthuli, MT Mabaso,

NT Mabaso, RD Macpherson, Z Madlala, T Magubane, MQ Magwaza,

NJ Makhanya-Sibiya, WL Mapena, HG Maphumulo, JL Mbongwa,

SM Mchunu, SW Mcoyi, LP Mdlalose, LM Meyer, P Mfeka, DM Mhlanzi,

SE Mhlongo, LM Mhlongo-Ntaka, AR Mitchell, MP Mkhize, NI Mkhize,

S Mkhize, BR Mngadi, NE Mnguni, LN Mngwengwe, MC Mnyandu,

SR Moodley, S Morar, FT Moyo, BE Mpungose, NE Msani, SNL Mshengu,

BA Mthembu, MK Mthembu, NE Mthembu, TM Mthethwa, BR Mtshali,

TS Mtshali, N Munien, AB Mvubu, RM Mzobe, Jane Naidoo,

Jonathan Naidoo, P Naidoo, S Naidoo, SR Naidoo, TJ Ncane, NB Ndlela,

S Ndlovu, MK Ndzimbomvu, ZS Ndzoyiya, VS Necobo, OB Ngcobo,

DL Ngema, S Ngema, BA Ngwane, LA Ngwazi, SJM Nhlapho, MS Nkosi,

NC Nofeketa, GM Noyce, B Ntshangase, MM Ntshangase, NN Nyanisa,

MS Nyawose, ZV Nzama, TT Nzuza, F Peer, RZ Phewa, BP Phungula,

JJ Pienaar, D Pillay, DR Pillay, KR Pillay, KB Pillay, Krishna Pillay, P Pillay,

GDA Pullan, VOO Qulo, S Ryley, S Shange, MT Shelembe, PN Shembe,

DM Shozi, ME Sibiya, PM Sibiya, B Singh, D Singh, EL Singh, J Singh,

PS Sishange, AD Snyman, ZR Sokhabase, JB Sosibo, BA Sutcliffe,

JC Van den Berg, MB Xhakaza, SZ Xulu, NY Young, SW Zenzile, BO Zondo,

TM Zuma, MS Zungu, P Zungu, MS Zwane, MZ Zulu and there being

1 (one) vacancy.

ABSENT : Councillors S Bhanprakash (on leave), NB Chamane (on leave), M Dasarath

(on leave - indisposed), BS Dludla, MP Gumede, NC Gumede (on leave -

indisposed), DG Hoorzuk (on leave - indisposed), SA Kaunda (on leave -

indisposed), S Khuzwayo (on leave - indisposed), SKB Kikine (on leave -

indisposed), V Lutyeku, DD Mabizela, BA Mkhize (on leave - Municipal

Business), MM Mkhize, DF Mncwabe (on leave - indisposed), ZM Mncwango

(on leave - Municipal Business), M Mngadi (on leave - indisposed),

AG Mthembu, ON Mthembu (on leave - indisposed), ZP Mthethwa,

- 2796 - eThekwini Municipality

(Council Minutes - 2016-01-28)

HM Ndlovu, LN Ndlovu, GS Ngcobo (on leave - indisposed), MC Ngcobo,

SP Ngcobo (on leave - indisposed), MM Ngiba (on leave - indisposed),

TT Ngubane (on leave - indisposed), M Nojiyeza, P Padayachee (on leave -

indisposed), BD Prinsloo (on leave), AN Shabalala (on leave - indisposed),

NP Sibiya (on leave - indisposed) and WM Thring (on leave)

AMAKHOSI

PRESENT : Inkosi VR Cele, Inkosi PP Luthuli, Inkosi EB Shozi and Induna MJ Ngcobo.

AMAKHOSI

ABSENT : Inkosi BF Bhengu (on leave), Inkosi TF Gwala, Inkosi NM Hlengwa,

Inkosi KS Makhanya, Inkosi DZ Mkhize, Inkosi TBE Mkhize, Inkosi S Mlaba

(on leave), Inkosi RF Mthembu, Inkosi MB Ngcobo and Inkosi ZA Ngcobo

OFFICIALS

PRESENT : Messrs/Mesdames S Sithole (City Manager), M Mhlongo (Deputy Head:

Litigation, Legal Services and Compliance), M Mthiyane (Deputy Head : Legal

Support, Legal Services and Compliance), BM Mhlongo (Deputy Head: Office

of the Speaker), T Ndlovu (Manager: Council Committees), KR Ramsunder

(Chief Committee Officer) and GP Ntshangase (Senior Committee Officer).

(At the commencement of the meeting 170 Councillors were present, comprising ANC - 107,

DA - 41, MF - 6, NFP - 6, IFP - 6, ACDP - 1, TA - 1, COPE - 1, APC - 0 and INDEPENDENT - 1).

_________________

1. NOTICE CONVENING THE MEETING

The City Manager read the Notice convening the Meeting as per the statutory

requirement.

2. OPENING

The Speaker declared the meeting open and thereafter extended a warm welcome to

the Mayor, Deputy Mayor; Chief Whip; Members of the Executive Committee;

Honourable Councillors; Amakhosi present, City Manager; Head: Legal Services and

Compliance; Mr B Wheeler and Staff from the Office of the Auditor-General, Media;

Distinguished Guests and Members of the Administration.

He extended his best wishes for 2016 and requested Councillors to keep in mind the

Local Government elections scheduled for this year.

3. NATIONAL ANTHEM

At the request of the Speaker the meeting stood to sing the National Anthem of the

African Union and the National Anthem of South Africa.



4. OPPORTUNITY FOR PRAYER/MEDITATION

The Speaker requested the Council to pray for peace and tolerance and remember

those who had passed on, especially Councillor BD Prinsloo who lost her mother, the

late Councillor Thami Hendrick Cele who passed away on 2015-12-15, the late

Mr. Themba Msomi (Deputy Head : Economic Development and Planning) who

passed away on 2016-01-16, the late Mr. Mondli Cele (Soccer player from

Premiership Soccer Club Maritzburg United) who passed away tragically in a motor

vehicle accident recently and the late Mr. Joe Phumla Dlamini (a former Durban

Metro Police Officer who commenced duties with the City Police in

Pietermaritzburg).

On behalf of the Council he extended deepest condolences to their families.

(At this stage of the proceedings the Speaker welcomed Mr. B Wheeler from the

Office of the Auditor-General to present the findings on the Annual Report)

5. PRESENTATION ON THE ANNUAL REPORT

In initiating his Power Point presentation, Mr. Wheeler thanked the Council for the

opportunity afforded to him to present the findings of the Municipality’s annual

report which is attached hereto as Annexure A.

He thereafter advised that the Auditor-General of South Africa had a constitutional

mandate and as the Supreme Audit Institution (SAI) of South Africa it existed to

strengthen the Country’s democracy by enabling oversight, accountability and

governance in the public sector through auditing, thereby building public confidence.

He expounded on the focus of their audit indicating that financial statements were

audited to determine that the information presented was fair and reliable whilst

annual performance reports were audited to determine whether the reported

information was reliable and credible. Audits were also undertaken to determine

whether key legislation on performance management had been complied with.

Mr. Wheeler spoke on the various categories of audit outcomes drawing comparisons

in respect of the following and elaborating thereon:

- Unqualified opinion with no findings (clean audit)

- Financially unqualified opinion with findings

- Qualified audit opinion with findings

- Adverse and disclaimed options

Speaking on the audit outcome for 2014/2015 it was advised that

eThekwini Municipality and its two Entities (i.e. Durban Marine Theme Park and the

Chief Albert Luthuli International Convention Centre) received a financially

unqualified with no other matters audit opinion (clean audit). This, he advised

reflected an improvement from the audit opinions for the previous three years as

reflected below:-

- 2013/14 : Financially unqualified with other matters (compliance findings)

- 2012/13 : Financially unqualified with other matters (compliance findings)

- 2011/12 : Financially unqualified with other matters (compliance findings



With regard to the Matters of Emphasis, Mr. Wheeler spoke at length on the

following issues, details of which are contained in Annexure A, making the point that

such issues had no impact on the audit outcome. However, attention was drawn to

significant matters that have been adequately disclosed in the financial statements.

- Significant uncertainties

- Material losses and impairments

- Material under spending of conditional grant and capital budget

Mr. Wheeler elaborated on the findings on the reporting of pre-determined

objectives, the findings on compliance with laws and regulations, the findings on

internal control, investigations and the Dash Board Report.

In conclusion, he thanked the Municipality’s Audit Committee, Internal Audit

Department, Chief Financial Officer and Staff for their co-operation and inter-acting

with his staff in an open and transparent manner. Further thanks and appreciation

were extended to His Worship the Mayor, Councillor JS Nxumalo for making time to

meet with the Office of the Auditor-General to discuss issues relating to the

Annual Report.

In addressing Council, His Worship the Mayor, Councillor JS Nxumalo first and

foremost extended his congratulations and gratitude to His Royal Highness,

King Goodwill Zwelethini for “driving” the process of the Zulu Nation celebrating

its 200th year of existence.

Thereafter, he was proud to advise that for the first time the eThekwini Municipality

and its two Entities had received a clean audit for 2014/15. This achievement had

indicated that the Ratepayers money was being appropriately utilised. The Internal

Audit Department and the City Integrity and Investigations Unit had demonstrated

the Municipality’s good governance, the fight against fraud, corruption and mal-

administration.

He extended his thanks and appreciation to the City Manager and Deputy City

Manager : Finance for the role they had played in achieving a clean audit. He

appealed that, going forward, the focus should be on maintaining this achievement

and also to minimize irregular expenditure, the goal being to reduce it to zero,

eradicate unemployment and poverty and public protests.

In concluding, he thanked Mr. Wheeler for his lucid presentation, the Municipal

Public Accounts Committee (MPAC) for their role herein and relevant staff for

working closely with the Office of the Auditor-General.

The City Manager outlined the process for the eventual approval of the Annual

Report, whereafter Councillors LM Meyer (DA), TM Mthethwa (NFP), NB Iyir

(IFP), P Pillay (MF), J Naidoo (ACDP), MF Adam (TA), F Peer (ANC) and the

Deputy Mayor spoke, inter-alia, on the Annual Report and welcomed the clean audit

that had been obtained, stressing the importance of sustaining the results.



6. OFFICIAL ANNOUNCEMENTS

The Speaker advised that he would deal with items 5 and 6 of the Order of

Procedure, relative to official announcements and his report, concurrently and

emphasized that the Rules of Order would be applied stringently in order to avoid

any disruptions. He then reminded Councillors to sign the Attendance Register which

was being circulated, advising that failure to do so would result in them being

reflected in the Minutes as having been absent from the meeting. Councillors were

requested to notify the Officials on duty if they wanted to leave the meeting for any

reason. However, Councillors were also advised that in terms of the Rules,

no Councillor should be allowed to leave the meeting when voting was in progress.

He congratulated all Councillors who were celebrating their birthdays in the month

of January.

In view of translation purposes, Councillors were requested to talk slowly and clearly

during the proceedings.

Councillors were requested to switch off their microphones after speaking as the

sound system would mal-function if microphones were left on. Councillors were

reminded and encouraged to wear their name badges when attending Council

meetings and to dress appropriately to uphold the dignity of the Council.

In view of disruptions being experienced during the proceedings as a result of cell

phones, Councillors were requested to switch them off or activate silent mode once

the meeting commenced.

Councillors were reminded to submit the SALGA’s Councillor Development Impact

Analysis Form which had been circulated to all Councillors under cover of the

Speaker’s Circular, Number 63/2015, to his Office.

Interested women Councillors were reminded to forward their applications for the

Swedish Women Politicians Scholarship before the closing date of 2016-01-31

which had been circulated under cover of the Speaker’s Circular, Number 65/2015.

In making reference to the 16 years of Local Government Celebration Programme

that was being driven by the Communications Unit, the Speaker requested

Councillors to collect their personalized desk calendars from his Office.

The Speaker congratulated the Proteas Cricket Team for winning their recent test

match against England with special praise for bowler Kagiso Rabada.

Prior to elaborating on his Back-to-Basics report, the Speaker extended the Council’s

congratulations to Councillor ZRT Gumede for being victorious in the elections for

the position of Chairperson of the African National Congress’s eThekwini Region.

He thereafter advised that as Council was in recess in December, no

Ward Committee meetings and Community Report Back meetings had been held.

However, in January 2016 twelve Community Report Back meetings had been held

in Wards PR 31, 98, 58, 72, 40, 41, 28, 16, 79, 78, 101 and 12.

The issues discussed at the aforesaid report back meetings centered, inter-alia,

around pavement upgrades, manhole covers and potholes, overgrown verges and

trees, garbage not being collected, water and sewage leakages, sanitation and

electricity, ward demarcation and IEC (Elections 2016), housing, clinics, youth

programmes and Cato Crest Housing Project.



The Speaker urged Councillors to convene their monthly meetings and submit

reports thereon to his Office as per the Back-to-Basics regulation.

Speaking on the functionality of Ward Committees, the Speaker advised that

COGTA had a role in monitoring municipalities on a continuous basis to promote the

culture of community participation through such Committees. He mentioned that the

functionality assessment was conducted on a quarterly basis and all municipalities

were required to submit reports and portfolios of evidence to COGTA indicating,

inter-alia, the following:-

- The number of functional Ward Committees

- Challenges experienced by Ward Committees

- Steps taken or to be taken to sustain the functional Committees and to assist

those that are non-functional

- Participation in Operation Sukuma Sakhe by Ward Committees and Ward

Councillors

- Number of Community meetings held.

In that regard the quarterly assessment for the period 1 July 2015 to 30 September

2015 had been conducted by COGTA and only two Wards, viz wards 37 and 38 had

been found to be functional. The remaining Wards had been found to be non-

functional and the main reason therefor was the lack of evidence in the form of

reports or minutes to support such functionality.

The Speaker expressed concern thereon highlighting the fact that the Municipality

was, on a monthly basis, paying out of pocket expenses to the Ward Committee

members.

The Speaker thereafter indicated that the Municipality had received a Court Order on

7 January 2016 to re-instate two National Freedom Party Councillors

(Councillors SW Mcoyi and MZ Zulu) who had been expelled from their Party in

September 2015. Such Councillors had now been re-instated.

In respect of voter registration, the Speaker advised that the Independent Electoral

Commission (IEC) had announced that the weekends of 5th to 6th March and

9th to 10th April had been set aside for voter registration. Councillors were

encouraged to motivate their constituencies to register.

In concluding his report, the Speaker made the point that despite repeated requests to

the Councillors’ Pension Fund for audited financial statements in respect of

Councillors’ pensions and considering the fact that the Councillors term of office

was coming to an end, this matter would be escalated to SALGA and the Ministers

for COGTA and Finance, respectively, for intervention. Should such intervention not

be successful then the matter would be referred to the Ombudsperson for Short-Term

Insurance.

In the interim the Speaker urged Councillors to ensure that their beneficiary status

was intact and all their SARS affairs were in order.



7. APPLICATIONS FOR LEAVE OF ABSENCE

RESOLVED:

That the following Councillors be granted leave of absence as indicated below:-

Councillor S Bhanprakash : 2016-01-25 to 29 (Personal Commitments)

Councillor HP Biyela : Request to leave at 13:00 (Doctor’s appointment)

Councillor HP Biyela : 2016-02-01 to 04-04 (Maternity leave)

Councillor NB Chamane : 2016-01-28

Councillor M Dasarath : 2016-01-28 (Indisposed)

Councillor DC Gaillard : 2016-02-01 to 05 (Indisposed)

Councillor NC Gumede : 2016-01-28 (Indisposed)

Councillor DG Hoorzuk : 2016-01-25 to 29 (Indisposed)

Councillor S Khuzwayo : 2016-01-28 to 02-05 (Indisposed)

Councillor SKB Kikine : 2016-01-28 to 02-13 (Indisposed)

Councillor SA Kaunda : 2016-01-28 (Indisposed)

Councillor BA Mkhize : 2016-01-27 to 29 (Municipal Business)

Councillor SW Mcoyi : Request to attend at a later stage

Councillor DF Mncwabe : 2016-01-21 to 30 (Indisposed)

Councillor ZM Mncwango : 2016-01-28 (Indisposed)

Councillor M Mngadi : 2016-01-25 to 02-26 (Indisposed)

Councillor ON Mthembu : 2016-01-27 to 31 (Indisposed)

Councillor S Ngcobo : 2016-01-27 to 31 (Indisposed)

Councillor MM Ngiba : 2016-01-28 (Indisposed)

Councillor TT Ngubane : 2016-01-25 to 02 (Indisposed)

Councillor P Padayachee : 2016-01-21 to 31 (Indisposed)

Councillor BD Prinsloo : 2016-01-27 to 28 (Personal Commitments)

Councillor AN Shabalala : 2016-01-28 (Indisposed)

Councillor NP Sibiya : 2016-01-27 to 30 (Indisposed)

Councillor WM Thring : 2016-01-28 (Personal Commitments)

8. CONFIRMATION OF MINUTES: Meeting held on 2015-12-03

Following the correction of minor typing errors raised by Councillor J Naidoo

(ACDP), it was

RESOLVED:

That the Minutes of the meeting of the Council held on 2015-12-03, as circulated,

and taken as read, be and they are hereby confirmed.

9. QUESTIONS IN TERMS OF SECTION 27 OF THE RULES OF ORDER

The following Questions in terms of Section 27 of the Rules of Order were

submitted:-

9.1 Questions submitted by Councillor J Singh : Budgets Allocated to Legal Department

and Court Cases Litigated (7/1/3/1 & 15/3/2):

In reference to the last Full Council meeting where the Head : Legal was requested to

offer advice on a matter on the Agenda.



I pose the flowing questions:-

Kindly answer each question listed below in respect of the financial years 2013/2014

and 2014/2015 respectively.

1. Stipulate the total Budgets allocated to the Legal Department.

2. What was the actual spend to year for the afore-mentioned financial

years?

3. Stipulate the total number of cases instituted by Council as the Plaintiff in

the High Court?

4. Stipulate the number of cases which Council successfully litigated and

stipulate the number of Council’s claims that were dismissed?

5. Stipulate the exact amount paid by Council in wasted costs / adverse cost

orders for the aforementioned financial years?

6. Stipulate the number of instances where Council was joined as a

Respondent and stipulate the number of such cases that were dismissed by

Court and stipulate the total amount of costs that Council was ordered to

pay for the aforementioned financial years?

The City Manager provided the following respective responses, it being recorded that

the answers to questions 1 and 2 above were answered by the City Manager at the

Council meeting on 2015-10-28:-

3. Forty Three (43)

4. Successfully litigated : 18

Dismissed : 13

Pending : 12

5. None

6. Cases joined as Respondent : 79

Cases Dismissed : 28

Amount of Costs Paid : R139 000-00

It is recorded that the above-mentioned answers only includes matters in the High

Court and excludes the Labour Court and Magistrate’s Court matters.

9.2 Questions submitted by Councillor NL Graham : Speeding and Traffic Accidents a

Huge Problem Along a Number of Main Roads in Glenwood (26/1/1/5/1):

For many years speeding and traffic accidents have been a huge problem along a

number of main roads in Glenwood, This has resulted in many injuries and a number

of fatalities. The roads concerned include Lena Ahrens Road, ZK Mathews Road,

Esther Roberts Road and others.



1. Will the Municipality install speed limit and warning signs along these

main roads?

2. Does the Municipality plan to install fixed speed timing devices on these

roads?

3. At problematic intersections that do not qualify for traffic signals, what

other mechanisms does the Municipality have to prevent traffic accidents?

4. Does the Municipality have any other plans to resolve these issues?

The City Manager provided the following respective responses:-

1. The general speed limit for urban areas is 60km/h as stipulated in the Road

Traffic Act. All licensed drivers are aware of this requirement as it is part of

the driver’s license knowledge and it is common knowledge. Posting of this

limit is therefore not legally nor functionally necessary as it will not assist in

lowering the operating speeds. The presence of a sign will not ensure

compliance. It should also be noted that enforcement of the general speed limit

is possible in the absence of a 60km/hr sign.

2.1. EThekwini Transport Authority (ETA) and Engineering Departments should

assist in terms of any plans of installing fixed speed timing.

2.2 On the Metro Police Department side, as an ad hoc plan of speed timing which

is a portable speed timing equipment but currently a tender for this service is

still under SCM process which is not yet approved.

3. No amount of engineering can prevent accidents. According to Councillor

Graham the problem relates to speeding which is a driver behavior issue and is

not specific or unique to roads in Glenwood. It is not possible to provide an

engineering solution to unlawful actions of motorists. This type of deviant

behavior is deliberate and prevails along the entire route of the driver. Bad

driver behavior can only be addressed by enforcement. Notwithstanding this, as

with all cases such as this matter is taken under advertisement with other

sections to establish what intervention might mitigate such deviant behavior.

4. As per question 3 above.

__________



FIRST REPORT OF THE EXECUTIVE COMMITTEE (Special Meeting held on Friday, 2016-01-22)

PRESENT : Executive Committee Members JS Nxumalo (Mayor and Chairperson),

NF Shabalala (Deputy Mayor), JN Cele, HU De Boer, SN Gumede,

ZRT Gumede, BR Mtshali, MS Nkosi and F Peer.

ABSENT : Executive Committee Member ZM Mncwango (Leave)

_____________

1. NOTING OF RULE OF ORDER 28: INTERVENTIONS BY ETHEKWINI

MUNICIPALITY TO ADDRESS DURBAN TRANSPORT CHALLENGES

(26/3/1/2)

(Page L16)

The Committee discussed disruptions in the operation of Durban Transport bus

service as a result of a strike due to non-payment of staff provident funds; salaries

and bonuses during December 2015. The disruptions affected bus commuters and

extended to motorists within some routes serviced by Durban Transport, including

the City Centre.

It was reported that the City had an obligation to intervene for the sake of the bus

commuters who had paid for the service in advance as well as other eThekwini

residents who experienced road blockages. The City was commended for exercising

responsible leadership to ensure that Tansnat staff receives their December salaries.

This resulted in Treasury facing an onerous tasks of obtaining Tansnat payroll to

ensure the funds go directly towards the payment of salaries.

The intervention by the City took into consideration the following factors:

(i) Consideration of workers who were going to lose their jobs.

(ii) Extended disruption in service provision whilst a process to appoint a

replacement and operator was undertaken.

(iii) Short period remaining before the establishment of the Municipal entity as

per the Council decision.

Following negotiations between Tansnat and the City, a decision was taken in terms

of Rule of Order 28 to pay provident fund; salaries; and bonuses for Tansnat staff in

the total amount of R33.3 million, broken down as follows:-

● Provident Funds: R16 Million

● Staff December Salaries and Bonuses: R17.3 Million

TOTAL R33.3 Million

This amount has been added to the Tansnat debt. It should be noted that funding was

sourced from the Durban Transport subsidy vote which is normally used to cover the

costs of the fleet leased by Tansnat. The City had legal basis to pay Tansnat staff in

view of a service contract through which the Provincial Department of Transport and

the City pay subsidies to Tansnat.



Tansnat and the City signed an agreement to formalise the terms and conditions for

the City's interventions. The Agreement mainly include, staff payment method;

Tansnat opening and ring-fencing account to cover its operational costs with the City

to oversee the account; the repayment plan for the amount of R33.3 million

paid to staff.

The Democratic Alliance and the National Freedom Party recorded their abstentions

until they discuss the matter with their caucuses.

With the African National Congress and the Inkatha Freedom Party supporting

the report based on sufficient and sound motivation behind the City intervening to

pay Tansnat staff,

COMMITTEE RECOMMENDS:

That the approval given by His Worship the Mayor, Councillor JS Nxumalo, in terms

of Rule of Order 28, to allocate an amount of R33.3 Million from the eThekwini

Municipality budget to pay provident funds; salaries and bonuses for December 2015

for Tansnat staff following them engaging into an indefinite strike which

inconvenienced a number of eThekwini residents, be noted.

The above-mentioned recommendation of the Executive Committee was

NOTED.

However, the Democratic Alliance NOTED the above recommendation with

reservation as it was contended that the approval of the Mayor in terms of Rule

of Order 28, to allocate an amount of R33.3 million from the eThekwini

Municipality budget to pay provident funds, salaries and bonuses for December

2015 for Tansnat staff following them engaging into an indefinite strike which

inconvenienced a number of eThekwini residents, should have been submitted

to Council for ratification.

2. PROPOSED WAY FORWARD: DURBAN TRANSPORT CHALLENGES

(26/3/1/2)

(Page L17)

Taking into account prevailing challenges within Tansnat with respect to the running

of the Durban Transport bus service, a proposal was submitted to deal with current

challenges and to stabilize Durban Transport bus service to also ensure smooth

transitional process to the new operational model to establish the Municipal entity,

as per the Council decision.

It was reported that the Municipal Entity will become operational by 2016-07-01 but

that in the meantime comments from the National Treasury and the National

Department of Transport are still pending. A proposal was made to postpone the

court date for the liquidation process and consider appointing a Mediator to obtain an

independent view on all issues involving Tansnat and the City, with the primary

issue being a counter claim by Tansnat that the City owes them money. This process

by the Mediator was to also aid the transition process when perhaps revealing some

critical issues to be addressed given the imminence of the establishment of the

Municipal Entity. A formal agreement was to be signed to serve as an interim

measure to cater for Tansnat staff salaries for January and ensuing months.

Confirmation was given that leadership has always acted in the best interest of the

City in managing Tansnat challenges.



Confirmation was given that the City in conjunction with the Department of

Transport has looked at various options to address Tansnat ongoing challenges.

The most feasible and practical option is for the Council to intervene in the

Bus Operation by appointing a Team which will manage the bus operation and the

finances of the bus operation to ensure that the service continues and all the bus

service financial obligations, including diesel and payment of staff salaries are met.

The City intervention will allow for a smooth transitional process into the new

operational arrangement that Council is presently finalising. The City is currently

negotiating agreement with Tansnat including the following aspects:-

(i) Postponement of liquidation case sine die;

(ii) Appointment of an Intervention Team to manage the operation and ensure

financial ring-fencing of the bus operation revenue;

(iii) Opening a ring-fenced account for the buses, into which all revenue

generated will be paid. Expenses to be met will be vetted by the

Intervention Team;

(iv) An Independent Mediator will be appointed to address all claims between

the City and Tansnat to determine validity and responsibility for payment;

and

(v) Agreement to be made an order of Court.

In the meantime, the eThekwini Transport Authority and Treasury have met with

Tansnat to undertake a high level financial assessment of the business to determine

essential operating costs to be met by the end of January 2016 and beyond.

The projection and cash flow indicate that some funding injection may be required to

meet the company obligations for January 2016. The proposed Intervention Team

will work with Tansnat to finalise the funding requirements.

Whilst indication has been given that all issues of conflict between Tansnat and the

City will be handled by the Mediator since further interaction between the parties

might lead to further confrontation and counter claims, the opposition parties

acknowledged the ongoing challenges but maintained that the ideal approach going

forward was to invite Tansnat Management Team to present their side of the story

and obtain a balance view on Tansnat issues. They were therefore not supporting the

recommendations put forward until the availability of Tansnat is secured.

Meanwhile, the Committee was informed that all interventions made fell within the

legislative framework. Thereafter, emphasis was put on the need to speed up the

process of establishing the Municipal Entity and set specific timeframes for this

purpose for ease of monitoring.

Thereafter, the Democratic Alliance; National Freedom Party and the Inkatha

Freedom Party recorded their abstentions on the proposed way forward to address

Tansnat challenges on the basis that a platform should be created to obtain the view

of Tansnat Management Team.

With the African National Congress supporting the proposed interventions on the

basis that it was in the best interest of Council to provide leadership on this matter,




That given ongoing challenges by Tansnat in the operation of Durban Transport bus

service, authority be delegated to the City Manager to negotiate a Settlement

Agreement with Tansnat, appoint Intervention Team as contemplated in the

Settlement Agreement, intervene and support the Intervention Team and report back

to Council on a monthly basis.

JS NXUMALO

CHAIRPERSON

MOTION TO AMEND

In terms of Rule of Order 20(4), Councillor WJ Burne, seconded by Councillor

H De Boer, moved as a procedural motion that the above-mentioned

recommendations of the Executive Committee be amended to read as follows:

“That given the ongoing challenges by Tansnat in the operation of the Durban

Transport Bus Service, authority be delegated to the City Manager to:-

1. Negotiate a settlement agreement with Tansnat;

2. Refer the settlement agreement to Council for approval before it is

signed on behalf of the Municipality;

3. Liaise with Tansnat to agree on the identity and the appointment of an

Intervention Task Team;

4. Support the Intervention Task Team;

5. Report back to Council on a monthly basis.”

NOT CARRIED

As some Members were not in support of above-mentioned motion to amend,

the matter was put to the vote. With 166 Councillors present, 60 Councillors

(DA – 42, MF – 6, NFP – 5, IFP – 5, ACDP – 1 and COPE - 1) voted in favour

and 106 Councillors (ANC – 104, TA – 1 and IND – 1) voted against. There were

no abstentions recorded.

The above recommendation of the Executive Committee was thereafter put to

the vote. With 165 Councillors present, 110 Councillors (ANC – 104, MF – 4,

TA – 1 and IND – 1) voted in favour and 50 Councillors (DA – 42, IFP – 6,

ACDP – 1 and COPE – 1) voted against. 5 NFP Councillors abstained from

voting.

Thereafter, it was by the majority vote

RESOLVED:

That given ongoing challenges by Tansnat in the operation of Durban

Transport bus service, authority be delegated to the City Manager to negotiate a

Settlement Agreement with Tansnat, appoint Intervention Team as

contemplated in the Settlement Agreement, intervene and support the

Intervention Team and report back to Council on a monthly basis.



The Democratic Alliance requested a division and their names are recorded

hereunder:

Councillors GDA Pullan, LM Meyer, R Gokool, TP Collins, S Hoosen,

HU De Boer, HP Biyela, S Ngema, P Naidoo, P Davis, RJ Crouch, SV Asbury,

AR Mitchell, WJ Burne, M Johnson, A Beetge, S E Mhlongo, AD Snyman,

SNL Mshengu, J Singh, RJ Lefevre, D Ganesh, DL Du Bois, I Cassimjee,

JC Van den Berg, CN Nofeketa, GM Noyce, NL Graham, CB Langa,

SR Naidoo, BA Sutcliffe, S Ryley, N Munien, RD Macpherson, K Pillay,

EL Singh, AM Coen, KR Pillay, BA Mthembu, D Pillay, B Singh and DR Pillay

______________

SECOND REPORT OF THE EXECUTIVE COMMITTEE (Meeting held on Tuesday, 2016-01-26)

PRESENT : Executive Committee Members JS Nxumalo (His Worship the Mayor and

Chairperson), NF Shabalala (Deputy Mayor), JN Cele, HU De Boer, SN Gumede,

ZRT Gumede, ZM Mncwango, BR Mtshali, MS Nkosi and F Peer.

_____________

1. DETERMINATION OF UPPER LIMITS OF SALARIES, ALLOWANCES AND

BENEFITS OF DIFFERENT MEMBERS OF MUNICIPAL COUNCILS (3/5/4)

(Page 49)


1.1 That Government Notice No. 1271 placed in Government Gazette No. 39548 dated

21 December 2015, be and is hereby noted.

1.2 That the Minister’s Determination of the upper limits of salaries, allowances and

benefits as stipulated in Government Gazette No. 39548 dated 21 December 2015,

be approved.

1.3 That the provisions of Government Notice No. 39548 be implemented at the

upper limit.

1.4 That the concurrence of the MEC for Co-operative Governance and Traditional

Affairs be sought prior to giving effect to item .3 above.

Recommendation 1.1 NOTED and Recommendations 1.2, 1.3 and 1.4

ADOPTED.



2. REPLACEMENT OF COUNCILLOR ON MUNICIPAL PUBLIC ACCOUNTS

COMMITTEE (MPAC) (3/2/2)

(Page 68)


That the request by the Democratic Alliance, in terms of the letter by its Caucus

Whip, Councillor S Hoosen, dated 2016-01-14, to change its membership and

replace Councillor AR Mitchell by Councillor TP Collins on the Municipal Public

Accounts Committee, be approved.

ADOPTED.

3. RETIREMENT FUND RESTRUCTURING IN THE LOCAL GOVERNMENT

SECTOR (4/5/1/4)

(Page 75)

Given the sensitivity surrounding the proposed retirement fund restructuring in the

Local Government Sector, the importance of assessing all implications associated

therewith was stressed. As such a month was to be set aside to obtain relevant

stakeholder input on this matter.

Therefore,


3.1 That the Council’s view on the proposed Retirement Fund Restructuring in the Local

Government Sector, be canvassed.

3.2 That should the Council be against the proposals then it should join other Local

Authorities that would also be affected by collectively opposing the proposals on the

Retirement Fund Restructuring in the Local Government Sector.

ADOPTED.

4. INTEGRATION OF AUDIT AND RISK COMMITTEES (3/2/1)

(Page 117)

Authority is sought to integrate Audit and Risk Committee following an overlap

consistently identified in roles and responsibilities. It should be noted that these

Committees were previously integrated but subsequently separated to provide for a

dedicated capacity to focus solely on enterprise risk management issues.

The re-integration is proposed taking into account competency levels possessed by

both the current membership of the Audit and the Risk Committee.

Most importantly, the opportunity to address audit and risk matters in a synergistic

approach and avoid duplication of resources, amongst other things, whilst also

achieving good turnaround time in decision-making and implementation process.



The integration will result in a need to extend the term of office of the

Risk Committee members which is due to expire in March 2016, to provide for

alignment with the term of office of the Audit Committee membership. The outcome

of the consultation process has revealed that the current membership is available and

dedicated to continue providing service in advising Council on enterprise risk

management matters.

Given the circumstances,


4.1 That Council approves the implementation of the integration of the Audit and the

Risk Committees, in alignment with the requirements of Section 166 of the

Municipal Finance Management Act in respect of the role of the Audit Committee on

risk matters to deliberately enhance integrated risk oversight and enhance the

capacity of Council to see a single point of entry on risk issues and risk responses

coupled with effectiveness of the governance processes, compliance and internal

controls.

4.2 That Council approves extension of the term of office of the three (3) Risk

Committee members expiring in March 2016, for another 3-year term to further serve

and execute the risk roles within an integrated Audit and Risk Committee.

4.3 That, to cater for additional roles and responsibilities, Council approves the

amendments to the existing remuneration model as follows:-

4.3.1 Retainer and Attendance:

MEMBER ANNUAL RETAINER ATTENDANCE FEES PER DAY

Chairperson From 177 171.00 to R280 139.00 From 3 584.00 to R3 784.00

Member From 128 024.00 to R232 639.00 From R2 176.00 to R2 296.00

Note: The Annual Retainer also covers MPAC and EXCO report preparation and meeting

attendance. The above fees exclude any form of re-imbursive payments; ad hoc requests by the

City Manager and/or Deputy City Managers and additional Council work outside

Committee meetings.

4.3.2 Supplementary Fees:

Supplementary fees will be paid at a rate of R689.00 (previous rate of R652.00,

increased by 5.6% in line with the increases in the National Treasury attendance

rates).

4.3.3 Re-imbursive Payments:

Committee members will be reimbursed for reasonable travelling time for attending

committee meetings. Members not situated within a 90km radius from the meeting

venue will only be entitled to claim 3 hours travelling time. Members situated within

a 90 km radius will not be entitled to claim travelling time.

Note: the above only relates to changes. Unaffected provisions will remain the same.

ADOPTED.



5. REQUEST BY THE INDEPENDENT ELECTORAL COMMISSION FOR

SHORT-TERM LEASE : USE OF VACANT ACCOMMODATION AT UMNINI

THUSONG CENTRE AS STORAGE FACILITY FOR THE 2016 LOCAL

GOVERNMENT ELECTIONS (17/2/2/5/2)

(Page 132)


5.1 That the Head: Real Estate be authorised to enter into a lease agreement with the

Independent Electoral Commission (IEC) for the use of vacant accommodation at the

Umnini Thusong Centre as a storage facility for the period January to June 2016

for the election activities.

5.2 That the Head: Real Estate be authorised to sign all documentation on behalf of the

Municipality in respect of such lease.

ADOPTED.

6. REQUEST FOR EMERGENCY AUTHORITY TO ACTION THE EWS

EMERGENCY DROUGHT RELIEF PLAN

(Page 134)

The City is commended for implementing emergency response strategy to the current

drought crisis. Whilst the initiative is supported, Management is cautioned to

undertake cost-benefit analysis taking into account that drought is a short-term crisis.

Furthermore, that other mechanisms to promote effective water usage be considered

and implemented effectively. The installation of boreholes is amongst the options

suggested. It was noted that the procurement process will be undertaken using

Section 36 of the Supply Chain Management Regulations


6.1 Given the current drought crisis as per details contained in the report of the Head:

Water & Sanitation dated 2015-11-13 authority be granted for the Head: Water and

Sanitation to purchase two (2) Water Sachet Machines and eighty (80) Static Tanks

and stands on a quotation basis, as part of emergency Drought Relief Plan.

6.2 That authority be granted for the Head: Water and Sanitation to purchase, on a

quotation basis for a period of six (6) months or until WS-6786 Tender for purchase

is awarded, whichever is the sooner, items of small plant and equipment listed in

Annexure B attached to his report.

6.3 That authority be granted to create twenty (20) temporary Driver posts and employ

additional twenty (20) temporary Water Tanker Drivers to cover water delivery to

increasing drought affected areas between 4pm and 12pm.

6.4 That authority be granted to hire 5 (five) TLB’s and 25 (twenty five) bakkies via

quotations.



6.5 That subject to .1, .2, .3 and .4 above, savings be identified to fund these resources as

listed in Annexure A and B attached to the report by the Head: Water and Sanitation,

and that the relevant reports be submitted to Council seeking authority for the

transfer of funds and to the Bid Adjudication Committee in respect of deviation from

the normal procurement process.

ADOPTED.

7. REQUEST FOR AUTHORITY TO ENTER INTO AN AGREEMENT WITH

TONGAAT HULETT DEVELOPMENT (PTY) LTD TO REFUND TONGAAT

HULETT FOR THE INSTALLATION OF A SEWER TRUNK MAIN IN

CORNUBIA: WS 2014/210 (23/2/1/1)

(Page 142)

Confirmation was given that discussions on the contribution model in respect of

facilities were underway at National Treasury and will be implemented accordingly

by the City once approved. This was in response to a suggestion that Tongaat Hulett

should make financial contribution given that the sewer will also benefit its business.

Explanation was given that an urgent development of a retail park has necessitated

the development of trunk sewer to be brought forward. This was originally budgeted

for in future financial years. As such, Tongaat Hulett has offered to fund the

construction and the City to make reimbursement during the 2016/17 financial year.

It was confirmed that the Municipality will ensure compliance with its Supply Chain

Management Regulations when procuring for the installation of the

sewer trunk main.

In support of development and investment within the City,


7.1 That Council approves the construction of the South Eastern and Eastern Cornubia

trunk sewer at an estimated cost of R20 Million, to be funded by the Tongaat Hulett

on the basis that eThekwini Municipality will reimburse the costs.

7.2 That subject to the approval of .1 above, authority be granted to the City Manager to

enter into a Memorandum of Agreement (MOA) with Tongaat Hulett Developments

(Pty) Ltd in respect of refunding Tongaat Hulett Developments (Pty) Ltd the

reasonable and proven costs, without interest, that will be incurred in designing and

constructing a trunk sewer to serve the South Eastern and Eastern Portion of

Cornubia ahead of the original programme.

Project No.: Y8099 R20 000 000.00 (available in 2016/17 Capital Budget)

Cost centre: 65510; FC No. 65/C12

ADOPTED.



8. IMPLEMENTATION OF CURRENT AND UPCOMING CREATIVE ARTS

DEVELOPMENT PROGRAMMES FOR THE PERIOD NOVEMBER 2015 TO

JUNE 2016 (2/3/2/1/2)

(Page 144)

Great emphasis was put on the need to support cultural events, including traditional

dance (Ingoma) as part of promoting and maintaining the African culture,

in particular, which events are currently lagging behind in terms of receiving

financial support. A suggestion was made to also consider assisting women

responsible for maiden virginity testing with necessary material.

It was noted that the first three (3) events contained in the table below have already

taken place and have been approved in terms of Rule of Order 28 given that Council

was in recess. The Committee requested that in future reports should be submitted

timeously given that these are annual events thus requiring forward-planning.

Nevertheless, the interventions made by His Worship the Mayor were commended

which prevented potential cancellation of these events.


8.1 That project authority be granted to the Deputy City Manager: Community and

Emergency Services to support the events and programmes listed below as they form

part of the greater Youth Development Agenda, it being recorded that items 1 to 3

have been approved in terms of Rule of Order 28, as per the report of the

City Manager dated 2015-12-24.

8.2 That subject to the adoption of .1 above, all procurement of services follow the

eThekwini Municipality Supply Chain Management Policy, it being recorded that

specific reports in this regard will be submitted for consideration by relevant Support

Committees.

Budget Implications:

Event Name Venue Date Amount Vote Number

Umbumbulu:

Annual Ingoma

Festival

Umbumbulu

Sport

Ground

31 December R 100 000.00 15503.06151

Transfer from: 05460

Buhle Bengoma

MaQadi

Folweni

Play Ground

28 December R 100 000.00 15503.05940


Sabi Chilli Princess

Magogo

Stadium

29 December R 150 000.00 14001.04540

Street Children:

Corner to

Corner

Durban

Central

January- June 16 R 60 000.00 15503.07792

Durban Hops:

Developmental

Programme

Umlazi February 16 R 300 000.00 15503.08482/15503.08623

Durban Artery Rivertown

Beer Hall

April 16 R 200 000.00 15503.11527/06151




Event Name Venue Date Amount Vote Number

ZizeZande

Youth

Organisation

Stable

Theatre,

Umlazi High

Schools:

Various

January- June 16 R 60 000.00 15505.8623

KZN Youth

Wind Band

Programmes

Various January- June 16 R 60 000.00 15505.4115

Human Rights

Day

Sugar Ray

Xulu

Stadium

21 March R 350 000.00 14001.04540

Ethekwini

Dance-off

Competition

(Traditional and

Contemporary)

The

Playhouse,

Stable

Theatre, All

regions

(various)

January- June 16 R 100 000.00

R 50 000.00

15505.3384

15505.8623

Musho Theatre

Festival

Stable Theatre

Festival

Stable

Theatre/

Various

13- 18 January

March/April

R 250 000.00

R 100 000.00

15503.06151


Sketch Comedy

Programme

All regions:

Final Stable

Theatre

January- June 16 R 300 000.00 14001.04540

Total R2 110 000.00

ADOPTED.

9. NOTING OF RULE OF APPROVAL GIVEN IN TERMS OF RULE OF ORDER

28: EVENTS AUTHORITY (13/2/9/2/1)

(Page 147)


That the approval given by His Worship the Mayor, Councillor JS Nxumalo, in terms

of Rule of Order 28, for the hosting of Ingoma Festival at Umbumbulu Sports

Ground on 2015-12-31 at a cost of R100 000.00 (One Hundred Thousand Rand);

Ubuhle Bengoma MaQadi at Folweni Sportsground on 2015-12-27 at a cost of

R100 000.00 (One Hundred Thousand Rand); and Sabi Chili: Music and Sports at

Princess Magogo Stadium on 2015-12-29 at a cost of R150 000.00 (One Hundred

Thousand Rand); thus making a total of R350 000.00 (Three Hundred and Fifty

Thousand Rand), and granting permission for Arts and Living Cultures Section to

procure and secure the abovementioned services and the budget thereof not

exceeding R350 000.00 (Three Hundred and Fifty Thousand Rand Only), be noted.

NOTED.



10. NOTING OF RULE OF APPROVAL GIVEN IN TERMS OF RULE OF ORDER

28: RECTIFICATION OF CITY'S FUNDING AND PARTNERSHIP WITH

DURBAN JAZZ FESTIVAL (13/2/1/2)

(Page 149)


It was reported that approval for the hosting of the Durban Jazz Festival was given

by Council at its meeting on 2015-10-28. However, the decision erroneously omitted

the approval of the amount of R250 000.00 to cover the cost of logistical support.

This therefore prompted the signing of the Rule of Order 28.

Accordingly,


That the approval given by His Worship the Mayor in terms of Rule of Order 28

rectifying the omission in approving the amount of R250 000.00 (Two Hundred and

Fifty Thousand Rand) for the eThekwini Municipality to partner with the Durban

Jazz Festival for the logistical support in respect of the 2016 Durban Jazz Festival, be

noted.

NOTED.

11. REVISED TARIFFS FOR THE USE OF VARIOUS SIZAKALA COMMITTEE

ROOMS DURING THE 2016/17 FINANCIAL YEAR (7/6/1/4)

(Page 153)


11.1 That the revised tariffs as contained in Annexure A of the Report of the Head:

Sizakala Customer Service dated 2015-11-05 be approved in principle for

implementation with effect from 2016-07-01, it being recorded that the tariff report

will be submitted for consideration by the Governance and Human Resources

Committee.

11.2 That the Conditions of Hire as outlined in Annexure B of the Report of the Head:

Sizakala Customer Service dated 2015-11-05, be noted.

11.3 That the City Manager be and is hereby mandated without delay to:-

(i) Display a copy of this resolution and the said Tariff of Charges:

(a) On the City Hall Notice Board, and

(b) Other places within the Municipality as the City Manager may

determine,

(ii) Publish in the Metro Ezasegagasini a notice in the following form:



ETHEKWINI MUNICIPALITY

Notice is hereby given that:-

(a) A resolution of the kind contemplated in Section 75 A (2) of the Local

Government: Municipal Systems Act 2000 (Act 32 of 2000) was passed by

the Municipal Council on………………………….

(b) A copy of the said resolution and annexed Tariff of Charges is available for

inspection at:

(i) City Hall, Dr. Pixley KaSeme Street, Durban and

(ii) Any other places as may be determined by the City Manager.

11.4 That the City Manager announces that the effective date for the implementation of

the said Tariff of Charges is 2016-07-01 and forward a copy of the said notice to the

Member of the Executive Council (MEC) for Co-operative Governance and

Traditional Affairs (COGTA).

ADOPTED.

12. PROPOSED TARIFFS 2016/2017: LICENSING SERVICES OUTPUT UNIT

(7/6/1/1)

(Page 159)

The Committee noted that a 5% increase is reasonable and make business sense to

enable the City to keep pace with inflation, which was standard practice in any

business environment.


12.1 That all ‘Present Tariffs’, as reflected in Annexure A (Tariffs 2015/16), attached to

the report dated 2015-11-25, as imposed by the Municipality, be hereby rescinded

with effect from 2016-07-01.

12.2 That subject to the adoption of .1 above, the ‘Proposed Tariffs including Value

Added Tax, attached to the report dated 2015-11-25 be adopted with effect from

2016-07-01.

12.3 That the City Manager be and is hereby mandated without delay to:-

(i) Display a copy of this resolution and the said Tariff of Charges:-

(a) On the City Hall Notice Board, and

(b) Other places within the Municipality as the City Manager may

determine,

(ii) Publish in the Metro Ezasegagasini a notice in the following form:



ETHEKWINI MUNICIPALITY

Notice is hereby given that:-

(a) A resolution of the kind contemplated in Section 75 A (2) of the Local

Government: Municipal Systems Act 2000 (Act 32 of 2000) was passed by

the Municipal Council on………………………….

(b) A copy of the said resolution and annexed Tariff of Charges is available for

inspection at:-

(i) City Hall, Dr. Pixley KaSeme Street, Durban and

(ii) Any other places as may be determined by the City Manager.

12.4 That the effective date for the implementation of the said Tariff of Charges is

2016-07-01.

12.5 That the City Manager seek to convey the information referred to in the said notice to

the public on East Coast and Ukhozi FM Radio Stations; and

12.6 That the City Manager sends a copy of the said notice to the Provincial Minister of

Local Government.

ADOPTED.

13. REQUEST FOR DELEGATION OF AUTHORITY TO CITY MANAGER TO

SIGN MEMORANDUM OF AGREEMENT: REQUIREMENT OF CONDITION

4.93 OF THE ENVIRONMENTAL AUTHORISATION ISSUED FOR THE

CLAIRWOOD LOGISTICS AND DISTRIBUTION PARK DEVELOPMENT

(2/2/3 & 32/3/1/R)

(Page 163)


13.1 That in terms of Section 59 of the Local Government: Municipal Systems Act No. 32

of 2000, the City Manger be delegated authority to sign a Memorandum of

Agreement (MOA) envisaged in condition 4.93 of the Environmental Authorisation

for the Clairwood Logistics and Distribution Park.

13.2 That the City Manager be delegated authority to sign, in consultation with relevant

Chairpersons, Environmental Impact Assessments arising from future developments.

13.3 That in terms of Section 59(2) of the Local Government: Municipal Systems Act No.

32 of 2000, the City Manager may sub-delegate such authority to the Head:

Development Planning, Environment and Management for future Environmental

Authorizations where relevant.

ADOPTED.



14. INTEGRATED DEVELOPMENT PLAN 2015/2016 : MID-TERM

AMENDMENTS TO THE ORIGINAL ORGANISATIONAL SCORECARD AND

SERVICE DELIVERY AND BUDGET IMPLEMENTATION PLAN (2/10/1/1/1)

(Page 235)


That the public participation process linked to the amendment of the Integrated

Development Plan 2015/16, in line with the Local Government Municipal Planning

and Performance Management Regulations, be noted.

NOTED.

15. REPORT ON AWARDS MADE BY THE CITY FOR THE MONTH OF

NOVEMBER 2015 (9/1/3)

(Page 381)


15.1 That the monthly report of the City Manager dated 2015-12-10, relative to awards

made by the City for the month of November 2015, as presented, be noted.

15.2 That it be noted that where the information is available for wards and registration

numbers, it is included in the report, as information used to compile the report is

taken from submissions made by the Units.

15.3 That the City Manager reserves the right to investigate the awards with a view to

taking disciplinary, criminal and recovery actions where willful and negligent

violation of Supply Chain Management Policies and Municipal Finance Management

Act provisions are observed.

15.4 That the City Manager shall table a report to the Committee relative to the

disciplinary, criminal and recovery actions taken, it being noted that the

City Manager can only respond when the reports are available.

Recommendations 15.1, 15.2 and 15.3 NOTED and Recommendation 15.4

ADOPTED.

16. REPORT ON AWARDS MADE BY THE CITY FOR THE MONTH OF

DECEMBER 2015 (9/1/3)

(Page 416)


16.1 That the monthly report of the City Manager dated 2016-01-13, relative to awards

made by the City for the month of December 2015, as presented, be noted.

16.2 That it be noted that where the information is available for wards and registration

numbers, it is included in the report, as information used to compile the report is

taken from submissions made by the Units.



16.3 That the City Manager reserves the right to investigate the awards with a view to

taking disciplinary, criminal and recovery actions where willful and negligent

violation of Supply Chain Management Policies and Municipal Finance Management

Act provisions are observed.

16.4 That the City Manager shall table a report to the Committee relative to the

disciplinary, criminal and recovery actions taken, it being noted that the

City Manager can only respond when the reports are available.

Recommendations 16.1, 16.2 and 16.3 NOTED and Recommendation 16.4

ADOPTED.

17. MONTHLY SALGA REPORT TO MEMBERS AS OF 16 JANUARY 2016

(14/2/1/1/1)

(Page 459)


That Council notes report received from the South African Local Government

Association (SALGA) advising that outstanding SALGA levies are now due for

those Municipality still owing as well as the dates for professional development

courses for Councillors and officials taking place between February and March 2016,

as outlined in the schedule by the KwaZulu-Natal Provincial Executive Officer

included on the Executive Committee Agenda dated 2016-01-26.

NOTED.

18. MID-YEAR BUDGET AND PERFORMANCE ASSESSMENT REPORT FOR

THE MONTH ENDING 31 DECEMBER 2015 (7/1/4) (Letter dated 2016-01-25

Circulated separately)

(Circulated Separately)


That the mid-year Budget and Performance Assessment Report submitted in

compliance with Sections 52(d) and 72 of the Municipal Finance Management Act

(MFMA) and Section 33 and 34 of the Municipal Budget and Reporting Regulations

as promulgated in Government Gazette No. 32141 dated 2009-04-17, be noted.

NOTED.

19. ETHEKWINI MUNICIPALITY ANNUAL REPORT 2014/2015 (11/1/1)

(Page 462)


That, at this stage, Council notes the eThekwini Municipality Annual Report for the

2014/15 financial year tabled in compliance with Section 127 of the Municipal

Finance Management Act, it being recorded that the Municipal Public Accounts

Committee (MPAC) will consider the report in terms of its oversight role and submit

its recommendations thereon.

NOTED.



20. PROVINCIAL QUARTERLY BACK TO BASICS REPORT FOR FIRST

QUARTER OF 2015/16 (2/3/2/1/2)

(Page 466)


That the eThekwini Municipality Back to Basics report for the first quarter of the

2015/16 financial year, submitted in compliance with the requirements of the

Provincial Department of Co-operative Governance and Traditional Affairs,

be noted.

NOTED.

21. PROVINCIAL QUARTERLY BACK TO BASICS REPORT FOR SECOND

QUARTER OF 2015/16 (2/3/2/1/2)

(Page 475)


That the eThekwini Municipality Back to Basics report for the second quarter of the

2015/16 financial year, submitted in compliance with the requirements of the

Provincial Department of Co-operative Governance and Traditional Affairs,

be noted.

NOTED.

22. MID-YEAR REPORTING: ORGANISATIONAL SCORECARD AND SERVICE

DELIVERY AND BUDGET IMPLEMENTATION PLAN: JULY-DECEMBER

2015 (2/10/1/1/1)

(Page 486 and Laid on Table Document)


That Council notes mid-year performance assessments in respect of the

Organisational Scorecard and the Service Delivery and Budget Implementation Plan

for the six (6) months ended December 2015, submitted in compliance with Section

72(1)(a) of the Municipal Finance Management Act, as per details contained in the

report by the City Manager dated 2015-01-18.

NOTED.

23. AUTHORITY TO FINANCE THE UPGRADE OF THE WAKESLEIGH ROAD

TO FACILITATE SOCIAL HOUSING DEVELOPMENT (22/7/1/1/3)

(Page L1)


23.1 That approval be granted for the allocation of an amount of R3 Million utilising the

Urban Settlement Development Grant (USDG) for the financing of the Wakesleigh

road upgrade, in order to facilitate the development of 430 social housing units by

First Metro Housing Company (FMHC), it being recorded that the expenditure in the

amount of R500 000.00 (Five Hundred Thousand Rand Only) will be budgeted for in

the 2016/17 financial year and R2.5 Million to be budgeted for in the 2017/18

budget year.



23.2 That Building Plans be approved and released to First Metro Housing Company

(FMHC) in order to proceed with the development.

ADOPTED.

JS NXUMALO

CHAIRPERSON

_______________

THIRD REPORT OF THE EXECUTIVE COMMITTEE (In-Committee meeting held on Tuesday, 2016-01-26)

PRESENT : Executive Committee Members JS Nxumalo (Mayor and Chairperson),

NF Shabalala (Deputy Mayor), JN Cele, HU De Boer, SN Gumede,

ZRT Gumede, ZM Mncwango, BR Mtshali, MS Nkosi and F Peer.

_____________

1. 2013/2014 PERFORMANCE AGREEMENTS OF CITY MANAGER AND

DEPUTY CITY MANAGERS (4/6/2)

A report detailing the 2013/2014 Performance Assessments results of the

City Manager and Deputy City Managers was presented and discussed at length

in-committee. It was noted that the former Deputy City Manager: Economic

Development and Planning, Dr Naledi Moyo had resigned in the middle of the

assessment period.


1.1 That the Performance Assessments results for the 2013/2014 financial year as

illustrated below be adopted:-

Name Designation Score

Mr. Sibusiso Sithole City Manager 4

Mr. Krish Kumar Deputy City Manager: Finance 3.9

Mr. Sipho Cele Deputy City Manager: Governance and International Relations 3.7

Dr Musa Gumede Deputy City Manager: Community and Emergency Services 3.5

Dr Naledi Moyo Deputy City Manager: Economic Development and Planning 3

Ms Dumisile Nene Deputy City Manager: Corporate and Human Resources 3.5

The above-mentioned matter was considered “In-Committee”.

JS NXUMALO

CHAIRPERSON



REPORT OF THE MUNICIPAL PUBLIC ACCOUNTS COMMITTEE

The above-mentioned Report of the Municipal Public Accounts Committee was

not Laid on Table and therefore not considered.

(At this stage Councillors ME Bayeni, Hlengiwe Cele, BA Hlongwa, RJ Lefevre,

Z Madlala, NE Msani, JL Mbongwa, ZV Nzama, S Hansraj, AG Mthembu,

HE Dube, RJ Phewa, BO Zondo, S Dlamini, HM Ndlovu, GS Ngcobo and

OB Ngcobo recused themselves from the meeting).

________________

FIRST REPORT OF THE ETHICS COMMITTEE

(Special meeting held on 2016-01-25)

PRESENT : Councillors WL Mapena (Chairperson), NL Graham, TJ Gumede, MQ Magwaza,

LM Mhlongo-Ntaka, SNL Mshengu, VOO Qulo and PS Sishange.

ABSENT : Councillors S Bhanprakash (on leave), DG Hoorzuk (apology), S Hoosen

(on leave) and DF Mncwabe (on leave - indisposed).

_____________

FINDINGS AND RECOMMENDATIONS IN RESPECT OF COUNCILLOR ATTENDANCE :

QUARTER ENDED JULY 2015 TO AUGUST 2015 (3/5/1/1)

Hearings in respect of the undermentioned Councillors:-

Councillors ME Bayeni, Hlengiwe Cele, BA Hlongwa, RJ Lefevre, Z Madlala, NE Msani,

BA Mkhize, MM Ngiba, AN Shabalala, WM Thring, JL Mbongwa, ZV Nzama, M Dasarath,

S Hansraj, AG Mthembu, HE Dube, RJ Phewa, BO Zondo, S Dlamini, HM Ndlovu,

GS Ngcobo and OB Ngcobo.

1. INTRODUCTION

“In every practical discipline, the expert aims at a mark and uses right reason to avoid

the twin extremes of excess and deficiency” Aristotle.

Councillors are public office bearers elected to represent local communities and to

ensure structural mechanisms of accountability through facilitation of community needs

with the Council. In order to fulfill this obligation Councillors are required to attend

Council and its Committees at all times except wherein Application for Leave of

Absence is submitted.

No men is infallible, but great character is judged by how you react to your mistakes or

error of judgment on how you take responsibility thereof.

“Remorse is virtue’s root; its fair increase are fruits of innocence and Blessedness”

William Cullen Bryant

2. BACKGROUND

The Local Government Municipal Systems Act 32 of 2000, Item 3 of Schedule 1

indicates that: “A Councillor must attend each meeting of the Municipal Council and of

a Committee of which that Councillor is a Member, except when- (a) leave of absence is

granted in terms of an applicable Law or as determined by the Rules and Orders of the

Council; or (b) that Councillor is required in terms of this Code to withdraw from the

meeting.”



Chapter 4, Item 9 of the Rules of Order By-Law, 2014 states that:-

“(1) If a Councillor-

(a) is unable to attend a meeting for which notice has been given;

(b) is unable to remain in attendance at a meeting; or

(c) will arrive after the stipulated commencement time of a meeting. the

Councillor must, as soon as is reasonably possible and prior to that

meeting, lodge with the Speaker an application in writing for leave of

absence with reasons from the whole or part of the meeting concerned.

(2) A leave of absence may not be granted in such a manner as to leave the meeting

inquorate.

(3) Notwithstanding sub-rules (1) and (2) above, an application for leave of absence

from a meeting is deemed to have been granted if the Council has delegated the

relevant Councillor to represent the Council elsewhere.

(4) The Council or a Committee may, subject to sub-rule (1) and (2) above, grant

leave of absence to a Councillor for the following reasons, which may include-

(a) illness of a Councillor;

(b) the essential business, personal commitments or personal circumstances of

the Councillor;

(c) where the notice of a special or urgent Council meeting was delivered in

less than the time stipulated in this By-Law, unless the failure to deliver was

occasioned by the Councillor’s own failure to keep the Speaker’s Office

informed of his or her updated contact details;

(d) any circumstances beyond the control of the Councillor which prevented

attendance at the meeting or;

(e) any other circumstance where the Councillor is prevented by law from

attending the meeting.

(5) The Speaker must keep a record of all incidents in respect of which Councillors

have been found to have been absent without leave or without good cause.

(6) The Speaker must advise the relevant Whip if a Councillor has been absent

without leave or without good cause from a meeting.

(7) Where a Councillor has been absent without leave or without good cause for 3 or

more meetings, the Speaker must submit a report to Council and recommend that

the matter be referred to the Ethics Committee.”

On 2015-09-08, the Ethics Committee received a report from the Office of the Speaker on possible

non-compliance relative to non-attendance of meetings by Councillors who did not submit the

necessary leave application forms. Hence, in this regard the Ethics Committee resolved to conduct

hearings on 2015-11-23, 2015-11-24 and 2015-11-25 respectively in dealing with the alleged

non-compliance of the Code of Conduct for Councillors to ascertain the reasons

contributing thereto.



3. HEARINGS

The Hearings were held pursuant to Item 3, Schedule 1 of the Local Government

Municipal Systems Act 2000 and Item 9, Sub-Section 4 of the Rules of Order By-Law,

2014 as gazetted in the Extraordinary Provincial Gazette of KwaZulu-Natal dated

11 January 2014.

The Ethics Committee wishes to record that at the outset, it applied the principles of

natural justice that espouses the values that:-

(a) There is a formal procedure;

(b) There is a just and fair procedure;

(c) The presumption of innocent until proven guilty; and

(d) The principle of audi alteram partem rule.

4. COUNCILLOR HLENGIWE CELE

4.1 Breach One

It is alleged that Councillor Hlengiwe Cele has failed to attend the ordinary Council

meeting held on 30 July 2015 without submitting an application for leave of absence

which is a contravention of Item 3(a) of Schedule 1 of the Local Government :

Municipal Systems Act of 2000.

4.2 Plea on breach by the Councillor

In plea to the allegations that she has failed to attend the ordinary Council meeting held

on 30 July 2015 without submitting an application for leave of absence as stated under

breach 4.1 above, Councillor Hlengiwe Cele pleaded GUILTY.

4.3 Representation by the Councillor

Councillor Cele informed the meeting that she did not attend the Council meeting

scheduled for the 30th of July 2015 as she was unwell from the 29th to 30th July 2015. In

support of her defence, she stated that she did submit a sms to the Committee Whip and

the Caucus Secretary advising of her non-attendance and for an apology to be tendered

on her behalf. However, she confirmed that this was not communicated accordingly.

The Councillor also clarified that she was in possession of a medical note to support her

ill health from the 29th to 30th July 2015.

4.4 The Presence of Aggravating Factors

4.4.1 The Councillor holds an office that require trust, honesty and accountability.

4.4.2 Councillors are expected to be custodians of the Rules and Regulations of Council.

4.4.3 Non-Attendance to meetings of which a Councillor is a member without requisite leave

of absence, is a serious transgression or a violation of the Councillors Code of Conduct.

4.4.4 It was submitted that the offence committed was serious. In deciding on an appropriate

sanction, it was recommended that the Councillor be issued with a formal written

warning for having breached the provision of the Code of Conduct for Councillors.



4.4.5 In considering whether there were any previous findings against the Councillor in

relation to the non-attendance of meetings, it was noted that the Councillor Cele was a

first offender.

4.5 The Presence of Mitigating Factors

Councillor Cele stated that she did not undertake the relevant follow ups to ascertain the

reasons for the non-submission of her leave application or apology to the

Council meeting.

Having considered all factors, the Committee noted that the Councillor Cele did not

demonstrate any form of action taken in conducting follow ups of her apology to the

Council meeting or with the relevant persons mentioned above. Furthermore, the

Councillor did not furnish the Committee with supporting documents to substantiate her

ill health for the 29th and 30th of July 2015.

4.6 Factors taken into consideration in deciding an appropriate Sanction

In deciding an appropriate Sanction, the Ethics Committee took into consideration:-

Section 4 of Schedule 1 of the Municipal Systems Act 32 of 2000 indicates that: “(1) A

Municipal Council may impose a fine as determined by the Standing Rules and Orders

of the Municipal Council on a Councillor for: (a) not attending a meeting which that

Councillor is required to attend in terms of item 3; or (b) failing to remain in

attendance at such meeting”.

4.7 Sanction

In terms of the Local Government: Municipal Systems Act 32 of 2000 (Schedule 1)

Section 4 (1) A Municipal Council may impose a fine as determined by the Standing

Rules and Orders of the Municipal Council on a Councillor for: (a) not attending a

meeting which that Councillor is required to attend in terms of item 3; or (b) failing to

remain in attendance at such meeting (2) A Councillor who is absent from three or more

consecutive meetings of a Committee, which that Councillor is required to attend in

terms of item 3, must be removed from office as a Councillor, (3) Proceedings for the

imposition of a fine or the removal of a Councillor must be conducted in accordance

with a Uniform Standing Procedure which each Municipal Council must adopt for the

purpose of this item. The Uniform Standing Procedure must comply with the "Rules of

Natural Justice”.

4.8 Right to Appeal

Schedule 1, Section 14(3)(a) of the Local Government : Municipal Systems act 32 of

2000 stipulate that:

“(3)(a) Any Councillor who has been warned, reprimanded or fined in terms of

paragraph (a), (b) or (d) above, may within 14 days of having been notified of

the decision of Council appeal to the MEC for Co-operative Governance and

Traditional Affairs (COGTA) in writing, setting out the reasons on which the

appeal is based.

(b) A copy of the appeal must be provided to Council.



(d) The MEC for Co-operative Governance and Traditional Affairs (COGTA)

may, after having considered the appeal, confirm, set aside or vary the decision

of the Council and inform the Councillor and the Council of the outcome of the

appeal.”

Having duly considered and deliberated on all submissions,


4.8.1 That in respect of breach one relative to the failure to attend the ordinary Council

meeting held on 30 July 2015, Councillor Hlengiwe Cele is in breach of Item 3,

Section 1 of the Local Government : Municipal Systems Act 32 of 2000.

4.8.2 That in terms of the Local Government : Municipal Systems Act 32 of 2000

(Schedule 1) of Section 14(2), Councillor Hlengiwe Cele be issued with a formal

written warning for having breached the provision of this Code.

ADOPTED.

5. COUNCILLOR BHEKISISA ANDREAS HLONGWA

5.1 Breach One

It is alleged that Councillor BA Hlongwa has failed to attend the ordinary Council


which is a contravention of Item 3(a) of Schedule 1 of the Local Government:



In plea to the allegations that he failed to attend the ordinary Council meeting held on

30 July 2015 without submitting an application for leave of absence as stated under

breach 5.1 above, Councillor BA Hlongwa pleaded NOT GUILTY.


Councillor Hlongwa informed the meeting that he did not attend the Council meeting

held on 30 July 2015 as he had to attend to a service delivery protest in his Ward which

took approximately an hour to subside. He admitted that he arrived an hour late for the

Council meeting, however did not sign the attendance register circulated by the

Secretariat.

Having duly considered and deliberated on all submissions, the Committee noted that

from the evidence provided, the attendance register of the ANC Caucus did correspond

with the meeting.




meeting held on 30 July 2015, Councillor Bhekisisa Andreas Hlongwa is not in breach

of Item 3, Section 1 of the Local Government : Municipal Systems Act 32 of 2000.

ADOPTED.



6. COUNCILLOR RIVALZ JETHRO LEFEVRE

6.1 Breach One

It is alleged that Councillor RJ Lefevre failed to attend the ordinary Council meeting

held on 30 July 2015 without submitting an application for leave of absence which is a

contravention of Item 3(a) of Schedule 1 of the Local Government : Municipal Systems

Act of 2000.




breach 6.1 above, Councillor RJ Lefevre pleaded NOT GUILTY.


Councillor Lefevre informed the meeting that he did not attend the Council meeting

held on 30 July 2015 as his relative passed on 9 July 2015 and he had to attend to

funeral arrangements. He submitted that his relative's funeral took place on the day of

Council meeting, hence his non-attendance to the meeting. The Councillor further

informed the meeting that he had to await the autopsy results to determine the cause of

his relative’s death which took approximately two weeks to be completed. He indicated

that he had to contact his relatives abroad to inform them of the death of his relative and

he had to attend to arrangements for his relatives overseas to attend the funeral.

He mentioned that a greater part of his time was spent in the planning process of his

relative’s death and he could not establish the precise date as to when the autopsy

results would be concluded.

In responding to the submission of a leave application for the Council meeting,

the Councillor stated that given the circumstances he was placed in to attend to the

funeral arrangements, the thought of the Council meeting did not occur to him. Hence,

was reminded by the Office of the Speaker to submit a leave application form.

He indicated that he did notify the Office of the Speaker of his situation after the

Council meeting. He verified that he did submit a leave application form via. E-mail

after he received a telephone call from the Office of the Speaker and this was after the

Council meeting. He further confirmed that his leave application form was submitted to

the Office of the Speaker during the month of August 2015. Councillor Lefevre stated

that whenever he was absent from Council or Committee meetings, he always ensured

completion and submission of a leave application form.




6.4.3 Non-attendances to meetings of which a Councillor is a member without requisite leave

of absence is a serious transgression or a violation of the Councillors Code of Conduct.



6.4.4 The Councillor was not remorseful in his actions. In noting that Councillor Lefevre was

aggrieved by his relative’s death, it was pointed out that he could have contacted the

Office of the Speaker to report his situation, however the Office of the Speaker

contacted him to submit his leave application.

6.4.5 It was submitted that the offence committed by the above Councillor was serious and

that he should be found guilty. It was further submitted that an appropriate sanction

should be imposed upon the Councillor.

6.4.6 In considering whether there were any previous findings against Councillor Lefevre in

relation to the non-attendance of meetings, it was noted that Councillor Lefevre was a

first offender.


Councillor Lefevre accepted the fact that he did not attend the Council meeting but did

submit a leave application form. In being informed of the Prosecutor’s findings, the

Councillor indicated that he did not believe that he was guilty to have transgressed the

Code of Conduct. However, given the circumstances he was placed in, he stated that he

was more concerned about the wellbeing of his family. He made the point that in any

job situation, i.e. private or public sector, the well being of one’s family always took

precedence and should be prioritised.

The Councillor also accepted that he did not know about the Council meeting and did

not check his pack containing meeting notifications. He submitted that had he not

received a telephone call from the Office of the Speaker, he would not have known

about the Council meeting. The Councillor pleaded with the Committee to be

sympathetic towards his situation given the reasons furnished hereto.

6.6 Factors taken into consideration in deciding an appropriation Sanction

6.6.1 Having considered all factors, the Committee was not convinced that the funeral took

place on the day of Council meeting and felt that further evidence was required to the

support his case. It should be noted that Councillor Lefevre did not furnish the

Ethics Committee with supporting documentation to confirm that there was a funeral

held on the day of Council meeting.

6.6.2 The Committee further noted that Councillor Lefevre only produced a copy of the Death

Certificate to confirm the date of this relative’s death; he ridiculed the Committee;

that he was the only person in his family to attend to funeral arrangements and

displayed no seriousness in being absent from the Council meeting.

6.6.3 The Committee was also not convinced that Councillor Lefevre took the initiative upon

himself to inform the Office of the Speaker of his relative’s death and absence from the

Council meeting. However, the Office of the Speaker took the initiative to contact the

Councillor for his leave application. Furthermore, by virtue of Councillor Lefevre being

absent from the Council meeting without the submission of a leave application form,

it was noted that Councillor Lefevre was in contravention of Item 3 of Schedule 1 of the

Local Government : Municipal Systems Act of 2000. Therefore, for the reasons stated

by Councillor Lefevre, the Committee noted that his statement did not warrant the

acceptance of his plea of not guilty.



6.6.4 It should be noted that after the said Inquiry, the Ethics Committee was furnished with

an e-mail dated 2015-07-30T16:55 from Councillor Lefevre which confirmed that he

had a minor surgery of his foot on Wednesday, 2015-07-29 and was unable to drive his

vehicle to the Council meeting. On that basis, the Committee noted that the Councillor’s

e-mail of apology was valid, in that, it was submitted timeously, however was not

communicated to Council. Therefore, the plea of not guilty submitted by

Councillor Lefevre was justified.

6.6.5 Furthermore, the Committee also accepted the new evidence provided by Councillor

Lefevre relating to the minor surgery of his foot and disregarded prior reasons provided

for the non-attendance to the Council meeting held on 30 July 2015. However,

the Ethics Committee wishes to place on record that Councillor Lefevre misled the

Committee with information in attempt to support his case.

Accordingly,


6.6.5.1 That in respect of breach one relative to the failure to attend the ordinary Council

meeting held on 30 July 2015, Councillor RJ Lefevre is not in breach of Item 3,


6.6.5.2 That given the sequence of events submitted by Councillor Lefevre and with there being

deliberate fabrication of evidence, the above matter be referred to the Speaker to

investigate the circumstances of evidence, it being noted that the outcome of above

investigation be submitted to the Ethics Committee.

ADOPTED.

7. COUNCILLOR ZIMISELE MADLALA

7.1 Breach One

It is alleged that Councillor Z Madlala has failed to attend the ordinary Council meeting



Act of 2000.




breach 7.1 above, Councillor Z Madlala pleaded GUILTY.


Councillor Madlala informed the meeting that he did not attend the Council meeting as

he was involved in a motor accident and situations were beyond his control.

He indicated that he had to make arrangements for assistance as the vehicle which

collided with him, left the scene without stopping. In his defence, he stated that he tried

to contact the Cluster Whip to report his situation, however was unsuccessful.

He advised that given his situation, he did not make contact with any fellow Councillors

to report his accident or to submit a leave application/apology on his behalf.

He mentioned that his absence from the Council meeting was not intentional to disobey

the Rules of Council. Councillor Madlala informed the Committee that he had been a

Councillor for the past five years and did not transgress the Rules of Council.












respect of the non-attendance of meetings, it was noted that this was the first appearance

of Councillor Madlala to the Ethics Committee.


Given the Councillors years of experience in the Municipality, he requested that the

Committee be lenient towards him when imposing sanctions as it was not his intention

to disobey the Rules of Council.



Section 4 of Schedule 1 of the Municipal Systems Act 32 of 2000 indicates that: “(1) A



Councillor is required to attend in terms of item 3; or (b) failing to remain in attendance

at such meeting”.

7.7 Sanction









with a uniform standing procedure which each Municipal Council must adopt for the

purpose of this item. The uniform standing procedure must comply with the "Rules of

Natural Justice”.

7.8 Right to Appeal







appeal is based.







appeal.”




meeting held on 30 July 2015, Councillor Z Madlala is in breach of Item 3, Section 1 of

the Local Government : Municipal Systems Act 32 of 2000.


(Schedule 1) of Section 14(2), Councillor Z Madlala be issued with a formal written

warning for having breached the provision of this Code.

ADOPTED.

8. COUNCILLOR NJABULO EUGENE MSANI

8.1 Breach One

It is alleged that Councillor NE Msani has failed to attend the ordinary Council meeting



Act of 2000.


In plea to the allegations he failed to attend the ordinary Council meeting held on


breach 8.1 above, Councillor NE Msani pleaded GUILTY.


Councillor Msani informed the meeting that he did not attend the Council meeting due

to a bereavement in his family and had to attend to funeral preparations. In his defence,

the Councillor stated that he tried to contact Councillor LN Ndlovu to submit a leave

application on his behalf and thought that his leave application was in order. However,

he submitted that upon receipt of a notification to attend an Inquiry with the

Ethics Committee, he discovered that no leave application or apology were tendered on

his behalf.












respect of the non-attendance of meetings, it was noted that this was the first appearance

of Councillor Msani to the Ethics Committee.


In noting that the above circumstances were beyond the control of the Councillor, he

requested that the Ethics Committee be lenient towards him in deciding an appropriate

sanction.

Having considered all factors, the Committee was furnished with a copy of the Death

Certificate which confirmed that the death was on the 28th of July 2015.



Section 4 of Schedule 1 of the Municipal Systems Act 32 of 2000 indicates that “(1) A





8.7 Sanction











Natural Justice”.

8.8 Right to Appeal







appeal is based.







appeal.”




meeting held on 30 July 2015, Councillor NE Msani is in breach of Item 3, Section 1 of



(Schedule 1) of Section 14(2), Councillor NE Msani be issued with a formal written


ADOPTED.

9. COUNCILLOR BONGUMUSA ANTHONY MKHIZE

9.1 Breach One

It is alleged that Councillor BA Mkhize has failed to attend the special Council meeting

held on 13 August 2015 without submitting an application for leave of absence which is

a contravention of Item 3(a) of Schedule 1 of the Local Government : Municipal

Systems Act of 2000.


In plea to the allegations that he failed to attend the special Council meeting held on

13 August 2015 without submitting an application for leave of absence as stated under

breach 9.1 above, Councillor BA Mkhize pleaded NOT GUILTY.


The Committee was of the view that the conduct of Councillor Mkhize was

disrespectful towards the meeting. Upon the Committee raising this matter with him,

he apologized and indicated that it is his character and the Committee accepted

his apology.

Councillor Mkhize thereafter informed the Committee that since 2011, he was subjected

to ongoing threats and attacks to Government buildings in his Ward. Given the

circumstances in his Ward, the Councillor submitted that he sought the assistance of the

South African Police Services (SAPS) and Metro Police between the 13th to 15th August

2015 to bring matters under control. He further submitted that on the day of the special

Council meeting, he had to attend to situations in his Ward at KwaXimba Community

as well as Induna’s in his Ward, hence his non-attendance to the special Council

meeting.





9.3.1 That in respect of breach one relative to the failure to attend the special Council meeting

held on 13 August 2015, Councillor BA Mkhize is not in breach of Item 3, Section 1 of


ADOPTED.

10. COUNCILLOR MKHIPHENI MZIMUNI NGIBA

10.1 Breach One

It is alleged that Councillor MM Ngiba has failed to attend the special Council meeting







breach 10.1 above, Councillor MM Ngiba pleaded GUILTY.


Councillor Ngiba informed the meeting that he could not attend the special Council

meeting due to electricity outages experienced in his Ward. As such, he confirmed that

the situation needed to be addressed accordingly as the Community threatened to protest

in his Ward.

In his defence, the Councillor stated that he extended his apology to the ANC Caucus

for his non-attendance and that he would be joining the meeting late. However, given

the circumstances in his Ward, his meeting with the Community took longer than

anticipated. Regarding the submission of his leave application, the Councillor stated that

he tried to make contact with two fellow Councillors to report his situation, however

they were unreachable as he believed they were at the Caucus meeting. He, however

confirmed that he was successful with another Councillor to submit his leave

application on his behalf, only to realize that no submission had been made and he was

subsequently marked absent in the Council minutes.












respect of the non-attendance of meetings, it was noted that the above Councillor was a

first offender.


Councillor Ngiba apologised to Council for the transgression and requested that the

Committee be lenient towards him in granting a sanction.








10.7 Sanction











Natural Justice”.

10.8 Right to Appeal







appeal is based.





appeal.”






held on 13 August 2015, Councillor MM Ngiba is in breach of Item 3, Section 1 of the

Local Government : Municipal Systems Act 32 of 2000.


(Schedule 1) of Section 14(2), Councillor MM Ngiba be issued with a formal written


ADOPTED.

11. COUNCILLOR ABEGAIL NOMTHANDAZO SHABALALA

11.1 Breach One

It is alleged that Councillor AN Shabalala has failed to attend the special Council

meeting held on 13 August 2015 without submitting an application for leave of absence




In plea to the allegations that she failed to attend the special Council meeting held on


breach 11.1 above, Councillor AN Shabalala pleaded GUILTY.


Councillor Shabalala informed the meeting that she was unwell on the day of the special

Council meeting and was booked off sick by her Medical Practitoner. She confirmed

that she did not apply for leave on this day. She, nevertheless apologised to the

Ethics Committee for her non-attendance to the meeting.











first offender.




Having considered all factors, the Committee noted that Councillor Shabalala failed to

furnish a copy her medical note to confirm her non-attendance to the above meeting.








11.7 Sanction











Natural Justice”.








appeal is based.





appeal.”

Having duly considered and deliberated on all submissions, the Committee noted that

the failed to furnish a copy her medical note to confirm her non-attendance to the above

meeting.



held on 13 August 2015, Councillor AN Shabalala is in breach of Item 3, Section 1 of





(Schedule 1) of Section 14(2), Councillor AN Shabalala be issued with a formal written


ADOPTED.

12. COUNCILLOR WAYNE MAXIM THRING

12.1 Breach One

It is alleged that Councillor WM Thring has failed to attend the special Council meeting







breach 12.1 above, Councillor WM Thring pleaded GUILTY.


Councillor Thring informed the meeting that he did not attend the special Council

meeting as he was requested by his Party to undertake disciplinary work relating to one

of their errant Councillors based in the Eastern Cape which subsequently coincided with

the special Council meeting. He submitted that at point in time, he was subjected to

undue pressure which needed to be attended to. The Councillor indicated that this was

the first time he was absent from a Council meeting with no leave application or

apology during his 15 years of service in the Municipality.










respect of the non-attendance of meetings, it was noted that the first appearance of

Councillor Thring to the Ethics Committee.




Councillor Thring, in his defence submitted that he sought the assistance of his Party

Whip to submit a leave application on his behalf for this meeting, however upon

enquiry with his Party Whip, it was established that his Party Whip did not have any

recollection of receiving his message, hence no leave application was submitted.

The Councillor, nonetheless apologised for the transgression caused in the above regard.

Having considered all factors, the Committee noted that the Councillor’s submission

was justified and supporting documentation was made available.








12.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






held on 13 August 2015, Councillor WM Thring is in breach of Item 3, Section 1 of the

Local Government : Municipal Systems Act 32 of 2000.


(Schedule 1) of Section 14(2), Councillor WM Thring be issued with a formal written


ADOPTED.

13. COUNCILLOR JABULISILE LORAINE MBONGWA

13.1 Breach One

It is alleged that Councillor JL Mbongwa has failed to attend the Economic

Development & Planning Committee meeting held on 23 July 2015 without submitting

an application for leave of absence which is a contravention of Item 3(a) of Schedule 1

of the Local Government : Municipal Systems Act of 2000.


In plea to the allegations that she failed to attend the Economic Development &

Planning Committee meeting held on 23 July 2015 without submitting an application

for leave of absence as stated under breach 13.1 above, Councillor JL Mbongwa

pleaded GUILTY.


Councillor Mbongwa informed the meeting that she did not attend the Economic

Development & Planning Committee meeting held on 23 July 2015 as she was

attending to a case relating to the abandonment of orphans in her Ward. In her defence,

she stated that in the morning of her Committee meeting, she was informed that there

were situations out of control in Moliper Road, Chesterville which required her urgent

attention and intervention. She thereafter reported of an Eviction Order that was

obtained by the Owner of the property to have the orphans evicted from her home. As

such, she felt that as a Ward Councillor of the area, she needed to ensure that the

residents of the area understood the importance of the orphans requiring shelter.

The Councillor submitted that given the seriousness of the situation in her Ward and

with her involvement in this regard, she did not notice that she had a Committee

meeting scheduled on that day. She clarified that she only recalled an hour later that she

needed to report her situation. The Councillor stated that she reported her absence from

the meeting to Councillor Cele with a view to her communicating same to the Economic

Development & Planning Committee, however this was not recorded, hence her

appearance before the Ethics Committee.













first offender.


The Councillor accepted that she was guilty in not following due processes by not

submitting her leave application timeously, however she stated that although she was

not in attendance at her Committee meeting, she nevertheless undertook work

for the City.

Having considered all factors, the Committee noted that there was a non-compliance of

the Code by the Councillor as she failed to submit a leave application form to the

meeting on the day of the meeting or prior to the meeting. Furthermore, the Councillor

did not undertake a follow up to ensure that her absence was communicated by

Councillor Hlengiwe.








13.7 Sanction











Natural Justice”.



2000 stipulate that:-







appeal is based.





appeal.”



13.8.1 That in respect of breach one relative to the failure to attend the Economic Development

& Planning Committee meeting held on 23 July 2015, Councillor JL Mbongwa is in

breach of Item 3, Section 1 of the Local Government : Municipal Systems Act 32

of 2000.


(Schedule 1) of Section 14(2), Councillor JL Mbongwa be issued with a formal written


ADOPTED.

14. COUNCILLOR ZIPHATHELE VINCENT NZAMA

14.1 Breach One

It is alleged that Councillor ZV Nzama has failed to attend the Economic Development

& Planning Committee meeting held on 23 July 2015 without submitting an application

for leave of absence which is a contravention of Item 3(a) of Schedule 1 of the Local

Government : Municipal Systems Act of 2000.


In plea to the allegations that he failed to attend the Economic Development & Planning

Committee meeting held on 23 July 2015 without submitting an application for leave of

absence as stated under breach 14.1 above, Councillor ZV Nzama pleaded

NOT GUILTY.


Councillor Nzama informed the meeting that he was not aware that he was scheduled to

attend the Economic Development & Planning Committee meeting on that day.

He submitted that he only received his package after he arrived at his home that

afternoon. He submitted that upon receipt of his package and in noting that the

Economic Development & Planning Committee meeting was scheduled for that day,

he immediately informed his Committee Whip and the Chief Whip of his

non-attendance. The Councillor stated that it was not intentional for him not to attend



the meeting as he had no knowledge of the meeting in question. He indicated that he

respects the Economic Development & Planning Committee meetings and clarified that

if he known that the meeting was scheduled for that day, he would have attended.

The Councillor nonetheless extended his apology to both the Ethics Committee and the

Economic Development & Planning Committee for not attending the meeting on the

scheduled date.



14.3.1 That in respect of breach one relative to the failure to attend the Economic Development

& Planning Committee meeting held on 23 July 2015, Councillor ZV Nzama is not in

breach of Item 3, Section 1 of the Local Government : Municipal Systems Act 32 of

2000.

ADOPTED.

15. COUNCILLOR MADHANLALL DASARATH

15.1 Breach One

It is alleged that Councillor M Dasarath has failed to attend the Finance & Procurement


absence which is a contravention of Item 3(a) of Schedule 1 of the Local Government:



In plea to the allegations that he failed to attend the Finance & Procurement Committee

meeting held on 23 July 2015 without submitting an application for leave of absence as

stated under breach 15.1 above, Councillor M Dasarath pleaded NOT GUILTY.


Councillor Dasarath informed the meeting that he did not attend the Finance &

Procurement Committee meeting held on 23 July 2015 for reasons being that he

attended the Governance & Human Resources Committee meeting scheduled for the

same day and time. In view of the clash in meetings, he indicated that he chose to attend

the Governance & Human Resources Committee meeting instead. However,

he recorded his displeasure for not being officially informed on the correct Committee

he was to serve on by his Party Caucus as well as his Party Whip. He further recorded

his sentiments in that the dual membership of Committees created a grave amount of

confusion in the attendance of meetings.

Having duly considered and deliberated on all submissions and with the evidence before

the Committee, the Committee noted that the Councillor did attend the Governance &

Human Resources Committee meeting scheduled for 23 July 2015 and was therefore not

in breach of the Code.

Accordingly,




15.3.1 That in respect of breach one relative to the failure to attend the Finance & Procurement

Committee meeting held on 23 July 2015, Councillor M Dasarath is not in breach of

Item 3, Section 1 of the Local Government : Municipal Systems Act 32 of 2000.

ADOPTED.

16. COUNCILLOR OBED BHEKISANI NGCOBO

16.1 Breach One

It is alleged that Councillor OB Ngcobo has failed to attend the Human Settlements &

Infrastructure Committee meeting held on 21 July 2015 without submitting an

application for leave of absence which is a contravention of Item 3(a) of Schedule 1 of

the Local Government : Municipal Systems Act of 2000.


In plea to the allegations that he failed to attend the Human Settlements & Infrastructure


absence as stated under breach 16.1 above, Councillor OB Ngcobo pleaded GUILTY.


Councillor Ngcobo informed the meeting that he did not attend the Human Settlements

& Infrastructure Committee meeting held on 21 July 2015 as he had to attend to a

service delivery protest march in his Ward. He stated that the situation was beyond his

control on that day and he sought the intervention of the South African Police Services

(SAPS) to assist in calming down situations in his Ward.











first offender.


The Councillor submitted that he tried to contact the office of the Chairperson of the

Human Settlements & Infrastructure Committee to report his situation in his Ward,

however was unsuccessful. He indicated that he also tried to seek the assistance of his



Body Guards to report his non-attendance to the meeting and was also unsuccessful as

the meeting had already commenced. He requested that the Committee be lenient

towards him when imposing sanctions as situations in his Ward were beyond his

control.

Having considered all factors, the Committee noted that the transgression committed by

Councillor OB Ngcobo was serious and that a warning be issued against him.








16.7 Sanction











Natural Justice”.








appeal is based.





appeal.”



16.8.1 That in respect of breach one relative to the failure to attend the Human Settlements &

Infrastructure Committee meeting held on 21 July 2015, Councillor OB Ngcobo is in


2000.




(Schedule 1) of Section 14(2), Councillor OB Ngcobo be issued with a formal written


ADOPTED.

17. COUNCILLOR SHANE HANSRAJ

17.1 Breach One

It is alleged that Councillor S Hansraj has failed to attend the Community & Emergency

Services Committee meeting held on 6 August 2015 without submitting an application




In plea to the allegations that he failed to attend the Community & Emergency Services

Committee meeting held on 6 August 2015 without submitting an application for leave

of absence as stated under breach 17.1 above, Councillor S Hansraj pleaded

NOT GUILTY.


Councillor Hansraj informed the meeting that he did not attend the Community &

Emergency Services Committee meeting held on 6 August 2015 as he did not receive

his Agenda. He further informed the meeting that there were ongoing challenges in the

delivery of Agendas as they were often delivered above road levels and created an

inconvenience.

He submitted that he did inform the Chairperson of the Committee of his

non-attendance to the meeting due to the non-receipt of the Agenda. He indicated that

he maintained a diary for Committee meetings, however the Community & Emergency

Services Committee meetings were not convened on scheduled dates and often changed.

He indicated that his Party did not caucus regularly on Committee meetings other than

matters for full Council.











first offender.




Councillor Hansraj, in his defence, he stated that in view of the number of years of

service maintained within the Municipality, this was his first incident for having missed

a Committee meeting. He submitted that his non-attendance to the Community &

Emergency Services Committee meeting was not due to negligence or having a

disregard towards the Committee.

Having considered all factors, the Ethics Committee noted that the Councillor was

negligent in his duties as Councillors were expected to uphold the dignity of the

Municipality, to lead by example and were custodians of the Rules and Regulations of

Council. The Committee also noted that for scheduled meetings, there were various

forms of notifications sent to Councillors advising on meetings and change in meeting

details. However, in this regard, it has been observed that there were no sense of

obligation displayed on the side of Councillor Hansraj to ensure correct correspondence

was received from the Municipality.






Councillor is required to attend in terms of item 3; or (b) failing to remain in attendance

at such meeting”.

17.7 Sanction











Natural Justice”.








appeal is based.







appeal.”



17.8.1 That in respect of breach one relative to the failure to attend the Community &

Emergency Services Committee meeting held on 6 August 2015, Councillor S Hansraj

is in breach of Item 3, Section 1 of the Local Government : Municipal Systems Act 32

of 2000.


(Schedule 1) of Section 14(2), Councillor S Hansraj be issued with a formal written


ADOPTED.

18. COUNCILLOR ANGEL GENQE MTHEMBU

18.1 Breach One

It is alleged that Councillor AG Mthembu has failed to attend the Community &

Emergency Services Committee meeting held on 6 August 2015 without submitting an




In plea to the allegations that she failed to attend the Community & Emergency Services


of absence as stated under breach 18.1 above, Councillor AG Mthembu pleaded

NOT GUILTY.


Councillor Mthembu informed the meeting that she submitted her leave application

form on the day of the Community & Emergency Services Committee meeting to the

Office of the Speaker for submission to the Committee meeting. However, it was noted

that no submissions had been made to the Committee.

In her defence, she indicated that she was unable to attend the above meeting for

reasons being that her son had taken ill on that day and she was attending to him.

She stated that she always ensured compliance of the Rules of Order by submitting the

necessary leave application form timeously.

Having duly considered and deliberated on all submissions, noted that the reasons

furnished by Councillor Mthembu was justified.

Accordingly,




18.3.1 That in respect of breach one relative to the failure to attend the Community &

Emergency Services Committee meeting held on 6 August 2015, Councillor

AG Mthembu is not in breach of Item 3, Section 1 of the Local Government: Municipal

Systems Act 32 of 2000.

ADOPTED.

19. COUNCILLOR HLONIPHANI EMMANUEL DUBE

19.1 Breach One

It is alleged that Councillor HE Dube has failed to attend the Governance & Human

Resources Committee meeting held on 23 July 2015 without submitting an application




In plea to the allegations that he failed to attend the Governance & Human Resources


absence as stated under breach 19.1 above, Councillor HE Dube pleaded GUILTY.


Councillor Dube informed the meeting that he did not attend the meeting as he received

his package a day before the Governance and Human Resources Committee meeting. In

his defence, he stated that he tried to contact a member of the above Committee in the

morning of the meeting to submit a leave of application form on his behalf, however

was unsuccessful.

He further informed the meeting that he also made several attempts to contact the

Officials from the City Hall from as early as 07:30 to submit a leave application on his

behalf but to no avail. He indicated that he also tried to contact other Officials at 09:30

within the City Hall and was advised that both the Governance and Human Resources

Committee Members and Officials had left to the venue based at Pinetown Civic Centre.

Hence, his non-submission of a leave application for the Governance and Human

Resources Committee meeting on 23 July 2015.













first offender.


The Councillor submitted that he did inform the Whip of his non-attendance to the

above meeting. He mentioned that he was not aware that he could submit his leave

application after the Governance and Human Resources Committee meeting.

Having considered all factors, the Committee noted that the Councillor did not have any

previous incidences of non-attendances to meetings. In this regard, it was proposed that

a formal written warning be issued against the above Councillor.








19.7 Sanction











Natural Justice”.








appeal is based.







appeal.”



19.8.1 That in respect of breach one relative to the failure to attend the Governance & Human

Resources Committee meeting held on 23 July 2015, Councillor HE Dube is in breach



(Schedule 1) of Section 14(2), Councillor HE Dube be issued with a formal written


ADOPTED.

20. COUNCILLOR RICHARD ZIBANI PHEWA

20.1 Breach One

It is alleged that Councillor RZ Phewa has failed to attend the Governance & Human







absence as stated under breach 20.1 above, Councillor RZ Phewa pleaded GUILTY.


Councillor Phewa informed the meeting that during the month of July 2015, he had

numerous protests in his Ward, hence needed to attend to such matters. He indicated

that in view of the number of ongoing protests in his Ward, he was unable to recall the

meeting date, hence his non-attendance to the meeting.













first offender.


The Councillor acknowledged that his transgression was unjust and apologised to the

Committee for having breached the Code in not attending the Governance and Human

Resources Committee meeting held on 23 July 2015.


previous incidences of non-attendances to meetings and had accepted his transgression.

Therefore, in view of the seriousness of the transgression, it was proposed that the

Councillor be issued with a formal written warning.








20.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






Resources Committee meeting held on 23 July 2015, Councillor RZ Phewa is in breach



(Schedule 1) of Section 14(2), Councillor RZ Phewa be issued with a formal written


ADOPTED.

21. COUNCILLOR BONGUMUSA OSCAR ZONDO

21.1 Breach One

It is alleged that Councillor BO Zondo has failed to attend the Governance & Human







absence as stated under breach 21.1 above, Councillor BO Zondo pleaded GUILTY.


Councillor Zondo informed the meeting that during the months of June, July and

August 2015, he had to attend to serious matters in his Ward. He submitted that a

member of his Ward Committee was murdered and he had to attend to this matter.

He further submitted that on the day of the Governance and Human Resources

Committee meeting, he had to remain in his Ward to assist in the releasing of members

who were kept in a hostage situation.











first offender.




The Councillor indicated that although matters are still ongoing in his Ward, however

situations have since improved. With regard to his non-attendance to the Governance

and Human Resources Committee, the Councillor apologised for his transgression and

indicated that it was not intentional to have missed the above meeting.


record of previous incidences of non-attendances to meetings and he had accepted his

transgression. In this regard, it was proposed that in view of the seriousness of the

transgression, that a formal written warning be issued against the above Councillor.








21.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






Resources Committee meeting held on 23 July 2015, Councillor BO Zondo is in breach



(Schedule 1) of Section 14(2), Councillor BO Zondo be issued with a formal written


ADOPTED.

22. COUNCILLOR SIPHO DLAMINI

22.1 Breach One

It is alleged that Councillor S Dlamini has failed to attend the Governance & Human

Resources Committee meeting held on 6 August 2015 without submitting an application






of absence as stated under breach 22.1 above, Councillor S Dlamini pleaded GUILTY.


Councillor Dlamini informed the meeting that he did not attend the Governance &

Human Resources Committee meeting held on 6 August 2015 as he had an emergency.

He submitted that he did try to send a sms to the Committee Whip and had discovered at

the following meeting that both the cell phone numbers of the Committee Whip had

changed.











first offender.




Councillor Dlamini indicated that his absence from the Governance & Human

Resources Committee meeting was not deliberate and unintentional.

Having considered all factors, the Ethics Committee was not satisfied with the response

provided by the Councillor as it was believed that changes pertaining to contact

numbers by the Committee Whip would have been communicated to all Members

respectively. Therefore, the submission made by Councillor Dlamini was unjustifiable.








22.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






Resources Committee meeting held on 6 August 2015, Councillor S Dlamini is in


2000.


(Schedule 1) of Section 14(2), Councillor S Dlamini be issued with a formal written


ADOPTED.

23. COUNCILLOR HALALISANI MANQOBA NDLOVU

23.1 Breach One

It is alleged that Councillor HM Ndlovu has failed to attend the Human Settlements &







absence as stated under breach 23.1 above, Councillor HM Ndlovu pleaded GUILTY.


Councillor Ndlovu informed the meeting that he did not attend the Human Settlements

& Infrastructure Committee meeting held on 21 July 2015 as he was unwell on that day.

He stated that he reported his non-attendance to Councillor Ngema, however had

forgotten to request him to complete and submit a leave application on his behalf to the

Human Settlements & Infrastructure Committee. He submitted that he also did not

inform the Office of the Speaker of his non-attendance to the Human Settlements &

Infrastructure Committee meeting.











first offender in the non-attendance of meetings.




The Councillor stated that he was not aware that he could submit his medical note to the

Office of the Speaker. As this was his first transgression in the non-attendance of

meetings, he requested that the Ethics Committee be lenient towards him in granting a

sanction.

Having considered all factors, the Committee noted that the Councillor’s

non-attendance to the Human Settlements & Infrastructure Committee for meeting held

on 21 July 2015 was justifiable as he did produce his medical note to confirm that he

was unwell on the day of the above meeting. Furthermore, the Committee also noted

that this was the Councillor Ndlovu’s first transgression in the non-attendance of

meetings and appearance before the Ethics Committee.








23.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






Infrastructure Committee meeting held on 21 July 2015, Councillor HM Ndlovu is in


2000.


(Schedule 1) of Section 14(2), Councillor HM Ndlovu be issued with a formal written


ADOPTED.

24. COUNCILLOR GREGORY SIKHUMBUZO NGCOBO

24.1 Breach One

It is alleged that Councillor GS Ngcobo has failed to attend the Human Settlements &







absence as stated under breach 24.1 above, Councillor GS Ngcobo pleaded

NOT GUILTY.


Councillor Ngcobo informed the meeting that he attended the Human Settlements &

Infrastructure Committee meeting held on 21 July 2015 late as he was unwell on that

day. He stated that he had informed the Whip of his late attendance to the meeting.

He indicated that due to his late arrival at the meeting, he was prohibited from signing

the Attendance Register by the Whip.










respect of the non-attendance of meetings, it was noted that Councillor Ngcobo was a

first offender.




Councillor Ngcobo stated that in view of him being unwell on the day of meeting, he

sent a message to a fellow colleague to report his non-attendance. He was remorseful

for his late attendance to the meeting. He requested that the Ethics Committee be lenient

towards him when granting an appropriate sanction.

Having considered all factors, the Committee noted that the Councillor’s late attendance

to the meeting was unacceptable and was not in accordance with the Rules of Order and

the Code. It was further noted that the Councillor Ngcobo’s defence was not

substantiated as he did not follow proper processes to obtain a witness to motivate his

case.








24.7 Sanction











Natural Justice”.








appeal is based.





appeal.”






Infrastructure Committee meeting held on 21 July 2015, Councillor GS Ngcobo is in


2000.


(Schedule 1) of Section 14(2), Councillor GS Ngcobo be issued with a formal written


ADOPTED.

25. COUNCILLOR MDUDUZI ENOCK BAYENI

25.1 Breach One

It is alleged that Councillor ME Bayeni has failed to attend the ordinary Council







breach 25.1 above, Councillor ME Bayeni pleaded NOT GUILTY.


Councillor Bayeni informed the meeting that he did file his leave of application form

two days prior to the two Committee meetings that he was scheduled to attend. It should

be noted that a copy of leave of application form was made available to the

Ethics Committee.

Having considered all factors, the Committee noted that there was an oversight in the

filing of Councillor Bayeni’s leave of application form by the Secretariat and the Office

of the Speaker as the Councillor did submit his leave of application form well in

advance. In this regard, the Committee extended its apology on behalf of the above

Offices to the Councillor for the late submission of his leave application to the relevant

Sections and for the inconvenience caused in having to appear before the Ethics

Committee.

The Committee further extended its appreciation to the Councillor for having honored

its request in attending the said Hearing given the fact that he has just been discharged

from the hospital.

Accordingly,



meeting held on 30 July 2015, Councillor ME Bayeni is not in breach of Item 3,


ADOPTED.



26. REVIEW OF PROCESSES : COUNCILLORS LEAVE APPLICATION FORMS

Arising from the findings of Hearings held pursuant to Councillors non-attendances,

it has become apparent that there are gaps in the management of Councillors Leave

Records by the Office of the Speaker. It has been observed that Councillors do submit

their leave application forms to the Office of the Speaker prior to Committee/Council

meetings, however such leave application forms are not being submitted timeously to

Committee meetings.

In this regard,


26.1 That given the gaps identified in the submission of leave application forms, the Office

of the Speaker reviews the current leave record system to ensure that all leave

application forms submitted by Councillors are officially stamped prior to submission to

the Records Section and Secretariat.

26.2 That subject to the adoption of .1 above, a timeframe be identified for the submission of

leave application forms from the Office of the Speaker to the Records Section and

Secretariat to ensure timeous submission to Committee and Council meetings.

26.3 That the Speaker as part of his Whippery meetings, inform Councillors absent from

meetings to verify their leave records with minutes of meetings and to report

discrepancies accordingly.

ADOPTED.

27. APPROVAL OF THE ETHICS COMMITTEE REPORT : MEETINGS HELD ON

2015-11-23, 2015-11-24 AND 2015-11-25


That the Report of the Ethics Committee in respect of the Findings and

Recommendations relative to Councillor Attendances : Quarter Ended July to August

2015, be adopted and a copy thereof, be submitted to the MEC for Co-operative

Governance and Traditional Affairs for information.

ADOPTED.

WL MAPENA

CHAIRPERSON

(At this stage Councillors ME Bayeni, Hlengiwe Cele, BA Hlongwa, RJ Lefevre,

Z Madlala, NE Msani, JL Mbongwa, ZV Nzama, S Hansraj, AG Mthembu,

HE Dube, RJ Phewa, BO Zondo, S Dlamini, HM Ndlovu, GS Ngcobo and

OB Ngcobo re-entered the meeting).



SECOND REPORT OF THE ETHICS COMMITTEE (Meetings held on 2015-11-30 and 2015-12-01)

PRESENT : Councillors WL Mapena (Chairperson), NL Graham, TJ Gumede, MQ Magwaza,

LM Mhlongo-Ntaka, SNL Mshengu, VOO Qulo and PS Sishange.

ABSENT : Councillors S Bhanprakash (on leave), DG Hoorzuk (apology), DF Mncwabe

(on leave - indisposed), and S Hoosen (on leave).

FINDINGS AND RECOMMENDATIONS : ALLEGED FAILURE TO DECLARE

BUSINESS INTEREST : INV173/03/2015 (3/5/1)

Hearing in respect of Councillor SKB Kikine in relation to the Alleged Failure to Declare

Business Interest.

1. INTRODUCTION

“Virtue, then, being of two kinds, intellectual and moral, intellectual virtue in the main

owes both its birth and its growth to teaching (for which reason it requires experience

and time), while moral virtue comes about as a result of habit.” Nicomachean Ethics,

Aristotle.

When we are entrusted with the office of responsibility we should at all times be bound

by what is true. We should live by the virtue of what is morally right and expected of us

by society even although societal expectations are subjective in nature. We should stand

for what is right and our actions should be regulated laws and its prescripts.

“I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am

bound to live by the light that I have. I must stand with anybody that stands for what is

right and stand with him while he is right and part with him when he goes wrong.”

Abraham Lincoln.

On 2015-02-12, the Municipal Public Accounts Committee received a list of audit

findings from the 2013/2014 Auditor-General’s Report in relation to the possible non-

compliance for the failure to complete, sign and submit Declaration of Interest forms to

declare their interest and connection in Suppliers of other State Institutions. On 2015-

02-13, the above matter was subsequently referred to the Speaker for attention and

action.

Legislation

Item 1 of Section 2 of the Local Government Municipal Systems Act 32 of 2000 states

that:-

“A Councillor must:

(b) at all times act in the best interest of the Municipality and in such a way that

the credibility and integrity of the Municipality are not compromised.”

2. BACKGROUND



Item 7(1) of Schedule 1 of the Local Government Municipal Systems Act 32 of 2000

states that:-

“(1) When elected or appointed, a Councillor must within 60 days declare in

writing to the Municipal Manager the following financial interests held by that

Councillor:

(a) shares and securities in any company;

(b) membership of any close corporation;

(c) interest in any trust;

(d) directorships;

(e) partnerships;

(f) other financial interests in any business undertaking;

(g) employment or remuneration;

(h) interest in property;

(i) pension; and

(j) subsidies, grants and sponsorships by any organisation.”

(2) Any change in the nature or detail of the financial interests of a Councillor

must be declared in writing to the Municipal Manager annually.”

On 2015-08-31, the Ethics Committee received an e-mail from the City Manager on the

possible non-compliance by Councillor SKB Kikine in relation to the alleged failure to

declare business interests and resolved to conduct Hearings in dealing with the

non-compliance of the Code of Conduct.

3. HEARING

The Hearings were held pursuant to Item 1 of Section 2 and Item 7(1) of Schedule 1 of

the Local Government Municipal Systems Act 32 of 2000.

The Ethics Committee wishes to record that at the outset, it applied the principles of

natural justice that espouses the values that:-

(a) There is a formal procedure;

(b) There is a just and fair procedure;

(c) The presumption of innocent until proven guilty; and

(d) The principle of audi alteram partem rule;

(e) The right to appeal.

4. ALLEGATIONS IN RESPECT OF COUNCILLOR SKB KIKINE

4.1 Breach One

The Confidential Disclosure Section completed by Councillors on appointment requires

for Councillors to make disclosures on the following aspects namely:-

(1) Shares and Financial Interests in Public or Private Companies and other

Corporate Entities - immediate Family (Where Known);

(2) Value of Financial Interests in a Corporate Entity other than a Public or Private

Company - Councillor only;



(3) Remunerated Employment outside the Council - Councillor only;

(4) Directorships and Partnerships - Councillors only;

(5) Directorships and Partnerships - Immediate Family (Where Known);

(6) Consultancies and Retainerships - Councillor only;

(7) Consultancies and Retainerships - Immediate Family (Where Known);

(8) Sponsorships - Immediate Family (Where Known);

(9) Gifts and Hospitality - Immediate Family (Where Known)

(10) Other Benefits of a Material Nature - Immediate Family (Where Known)

(11) Confidential Foreign Travel - Councillors Only

(l2) Ownership of and other Interests in Land and Immovable Property (Private

Residence only) - Councillor Only;

(13) Ownership of and Other Interests in Land and Immovable Property -

Immediate Family (Where Known)

(14) Value of Pension - Councillors Only.

Councillor SKB Kikine completed a Confidential Disclosure Form on 23rd March 2012

thereby declaring that he made a full, complete and honest disclosure of all registrable

interests referred to in Schedule 1 : Code of Conduct and Ethics. He also made an

undertaking to make full and proper disclosure as required.

It is alleged that Councillor SKB Kikine has been a member of Dynamed Medical and

Pharmaceuticals (Pty) Ltd, an entity which is a private company since 16 February 2001

and did not declare his business interest in the said entity, thereby contravening Item

7(1) of Schedule 1 of the Local Government : Municipal Systems Act 32 of 2000.

4.2 Plea on the Breach by Councillor SKB Kikine

On 2015-09-09 and 2015-09-10, the Ethics Committee resolved to conduct its Hearings

in relation to the alleged breach of Councillor SKB Kikine : Failure to disclose Business

Interest in the entity, Dynamed Medical and Pharmaceuticals (Pty) Ltd. The Committee

having noted the unavailability of Councillor Kikine for this Hearing and given the

reasons provided that he visited the Dentist to have his tooth extracted, resolved that the

said Hearings be re-scheduled to 2015-11-30 and 2015-12-01, respectively.

The Ethics Committee further resolved that a letter of postponement of Hearings be

issued to Councillor Kikine, it being recorded that the said letter was to indicate the

reasons for such postponement of Hearings and to request Councillor Kikine to furnish

the Ethics Committee with a copy of his medical note to confirm his attendance to the

Dentist. Councillor Kikine accepted the aforementioned letter and confirmed that he

would be in attendance at the new dates scheduled by the Ethics Committee.



On 2015-11-30 and 2015-12-01, the Ethics Committee re-convened its proceedings.

The Committee waited for a period of fifty (50) minutes to allow for the attendance of

Councillor Kikine. After the expiry of fifty (50) minutes, the Committee noted that there

was no indication from Councillor Kikine as to his attendance to the said Hearing.

The Notice of Inquiry stipulates that:

“Kindly note that if you or your Representative fails to attend the Hearing without any

good cause and after proper service of this Notice, the Inquiry may proceed in your

absence.”

The Ethics Committee applied the principle of natural justice to ensure that there was a

formal, just and fair procedure. Given the absence of Councillor Kikine, the Ethics

Committee resolved to proceed with the said Hearings in the absence of Councillor

SKB Kikine.

4.3 Arising from the findings of Prosecution and with due consideration having being given

to the supporting evidence, the Committee found Councillor SKB Kikine to be

GUILTY.

4.4 Aggravating Factors:

4.4.1 Councillor Kikine is a member of Dynamed Medical and Pharmaceuticals (Pty) Ltd

which has been registered on 16 February 2001 and is still in business.

4.4.2 Councillor Kikine only disclosed his shares and financial interests with the entity,

Luthuli Detachment.

4.4.3 The Councillor was not charged for conducting business with the State, however from

the evidence emanating from the Auditor-General’s report for the 2013/2014 financial

year, it has revealed that Dynamed Medical and Pharmaceuticals (Pty) Ltd of which

Councillor Kikine is a member of, conducted business with the KZN Health Department

to the value of R674 933.

4.4.4 The Councillor signed the Disclosure form and did not indicate his full names on the

form.

4.4.5 Schedule 1 of the Local Government : Municipal Systems Act requires Councillors to

declare their membership and financial interests in any Company, however in this

regard, Councillor Kikine failed to declare his Company and financial interest in

Dynamed Medical and Pharmaceuticals (Pty) Ltd, which is in contravention of the Code

of Conduct and compromises the credibility and integrity of the Local Government:

Municipal Systems Act.

4.4.6 The Councillor did not show any remorse for his conduct for the following reasons:-

4.4.6.1 In view of the said matter being set down for hearing on the 9th and 10th of November

2015, Councillor Kikine failed to appear before the Ethics Committee as per the Notice

of Inquiry. It should be noted that a new date had been arranged for him to re-appear

before the Ethics Committee on 2015-11-30 and 2015-12-01, however he failed to

appear without any good cause. He also did not furnish the Ethics Committee with

reasons for his non-appearance to the Hearing. His conduct revealed his disrespect for

the Ethics Committee and fellow Councillors.



4.4.6.2 When Councillor Kikine acknowledged receipt of his Notice of Inquiry, he made

remarks which was disrespectful and compromised the integrity of the

Ethics Committee. The Councillor made remarks in isiZulu stating that the

Ethics Committee took him for granted as he did report to the Municipality that he was

a “Soldier” and was being undermined by the Committee in having to appear for the

proceedings.

4.7 Factors taken in to consideration in deciding an appropriate Sanction

In deciding an appropriate sanction, the Ethics Committee took into consideration the

following factors:-

4.7.1 Councillor Kikine, being a Councillor for ten years, is familiar with the Code of

Conduct for Councillors, did not declare his business and financial interests in Dynamed

Medical and Pharmaceuticals (Pty) Ltd.

4.7.2 Councillors are expected to update their Disclosure of Interest forms annually, however,

it was noted that Councillor Kikine did not ensure compliance.

4.7.3 Councillor Kikine had undermined the Committee in being disrespectful and did not

take the Committee seriously.

4.7.4 Councillor Kikine did not furnish the Ethics Committee with a copy of his medical note

to corroborate his visit to the Dentist.

4.8 Sanction

In terms of the Local Government : Municipal Systems Act 32 of 2000 (Schedule 1)

Section 14(2) should the Council or a special Committee finds that a Councillor has

breached a provision of this Code, the Council may:-

(a) issue a formal warning to a Councillor;

(b) reprimand a Councillor;

(c) request the MEC for Local Government in the Province to suspend a

Councillor for a period;

(d) fine a Councillor; and

(e) request the MEC to remove a Councillor from Office.

4.9 Right to Appeal

Schedule 1, Section 14(3)(a) of the Local Government : Municipal Systems Act 32 of

2000 states that:-




Traditional Affairs (COGTA) in writing, settling out the reasons on which the

appeal is based.


(c) The MEC for Co-operative Governance and Traditional Affairs (COGTA)



appeal.”



Accordingly,


4.9.1 That in terms of Item 7(1) of Schedule 1 of the Local Government Municipal Systems

Act 32 of 2000, Councillor SKB Kikine is GUILTY.

4.9.2 That in terms of Item 1, Section 14(2) of the Local Government Municipal Systems Act

32 of 2000, Councillor SKB Kikine be reprimanded.

4.9.3 That the matter relative to Councillor SKB Kikine for doing business with another

sphere of Government be referred to the Speaker in the first instance for investigation,

it being recorded that pending the conclusion of the aforementioned investigation, the

matter be referred back to the Ethics Committee to proceed with the said Inquiry.

ADOPTED.

5. APPROVAL OF THE ETHICS COMMITTEE REPORT : MEETINGS HELD ON

2015-11-30 AND 2015-12-01


That the Report of the Ethics Committee relative to the alleged Failure to Declare

Business Interest by Councillor SKB Kikine, be adopted and a copy thereof,

be submitted to the MEC for Co-operative Governance and Traditional Affairs for

information.

ADOPTED.

WL MAPENA

CHAIRPERSON

______________

REPORT OF COMMITTEE DECISIONS

Decisions of Committees reflected below have been reported to Council by way of circulating

minutes of such Committees to each Member of the Council:-

1. COMMUNITY AND EMERGENCY SERVICES COMMITTEE

Meeting held on : 2015-11-20

2. ETHEKWINI MUNICIPALITY INFORMAL ECONOMY FORUM (EMIEF)


3. EXECUTIVE COMMITTEE




4. GOVERNANCE AND HUMAN RESOURCES COMMITTEE


5. HUMAN SETTLEMENTS AND INFRASTRUCTURE COMMITTEE


6. LOCAL LABOUR FORUM: GOVERNANCE AND CORPORATE HUMAN

RESOURCES CLUSTER


7. LOCAL LABOUR FORUM: HEALTH UNIT


8. LOCAL LABOUR FORUM: HUMAN SETTLEMENTS AND INFRASTRUCTURE

CLUSTER


9. LOCAL LABOUR FORUM: TREASURY AND OFFICE OF THE CITY MANAGER


10. LOCAL LABOUR FORUM: WATER AND SANITATION UNIT


NOTED.

_______________

ITEMS FOR NOTING

The items for noting, as reflected on Pages 7 and 8 of the Agenda were NOTED. __________________

The meeting terminated at 13:30.

CONFIRMED AT THE MEETING OF THE ETHEKWINI COUNCIL ON 2016-02-24

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