KRA to address DA panel of judges

The Knysna Ratepayers have been granted permission to address the Panel of Judges in Councillor Peter Myers disciplinary proceeding on the issue of why the proceedings should be open to the public and the press. The hearing has been tentatively recheduled for Thursday, 1 March 2018, 9 am, Council Chambers, Clyde Street. We believe that excluding the public and the press from the hearing would be fundamentally wrong, contrary to the requirements of due process in a democracy, and a clear violation of the principles of natural justice. Here is our submission to the Panel, setting out our argument.

Our Ref: 23 January 2018
PMJ Open Hearing – 1

Mr Nicholas Gotsell
Manager: Federal Legal Commission & Compliance
P.O. Box 1475
Cape Town
8000

By email: nicholasg@da.org.za

RE: DEMOCRATIC ALLIANCE / CLLR PETER MYERS

Dear Mr Gotsell,

Councillor Peter Myers has been charged by the Democratic Alliance (“DA”) with various instances of misconduct. His disciplinary hearing is scheduled for 5-6 February. We would like to attend the hearing, however, we have been informed that whereas Councillor Meyers has no objection, the Panel have made a preliminary ruling that insufficient grounds have been provided why an open hearing should be held.

We believe that excluding the public from the hearing would be fundamentally wrong, contrary to the requirements of due process in a democracy, and a clear violation of the principles of natural justice.

Myers is much more than a party member. He was democratically elected by the citizens of Ward 10 to represent them on the Knysna Council. If the individuals who have laid charges against Myers have their way and the Panel of Judges votes against him, he will almost certainly be ejected from the DA. If he is ejected from the DA, he will lose his seat as a councillor.

So the potential outcome of this proceeding is much more than an internal, party matter. Instead, it will constitute a reversal of the will of the people who cast their votes for Myers in an open, democratic election. How can a proceeding that thwarts the democratically expressed will of the people, be held in secret? How can the citizens who voted for Myers be denied the right to witness his trial, and make up their own minds about the fairness of the proceedings and the outcome, whatever that may be?

It is no accident that the Bill of Rights in our country guarantees every accused person “the right to a fair trial, which includes the right-… (c) to a public trial…”. The right to a public trial is a core component of due process, enshrined in constitutions the world over. Secret trials are the hallmark of despotic regimes, not open democracies. Surely the DA does not want that sort of regime for South Africa, and would not want to set such an example with this disciplinary hearing?

A public trial is perhaps the most fundamental safeguard against judicial injustice, as was recognised by Enlightenment philosopher Jeremy Bentham, when he said: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice.”

But there are other compelling considerations as well. It is no accident that s16(a) of the Bill of Rights guarantees “freedom of the press, and other media”. Without freedom of the press, no democracy can survive.

Where trials of political figures are held in secret, the press cannot do its job of witnessing the administration of justice, and reporting on the proceedings to the public. For the press plays a vital role as the conduit through which the public receives information regarding the operation of public institutions. If Councillor Myers’ hearing is closed, the press will have to rely on hearsay for its reports on the proceedings, and for its assessment of whether justice has been done.

Although there are exceptions to the principle that trials must be public, they are limited in number, and narrowly construed. The United Nations International Covenant on Civil and Political Rights represents a widely-accepted codification of the principles of natural justice in these matters. Article 14 of the ICCPR provides:

“The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement … shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

None of these exceptions apply here. Councillor Myers is not invoking his own right to privacy to keep the hearing secret—he supports a public hearing. There are no juveniles or children involved, and there is no matrimonial dispute. To our knowledge, no one is claiming that there are special circumstances where publicity would prejudice the interests of justice.

For all of these reasons, the Knysna Ratepayers Association believes that if justice is to be seen to be done in this case, Councillor Peter Myers’ disciplinary hearing must be open to the public. Accordingly, we request that the Panel amend its initial determination, and rule that the entire disciplinary proceeding shall be open to the public, and the press. We hereby request an opportunity to make oral representations to the Panel in this regard, and ask that this submission be placed before the Panel as a matter of urgency.

The Committee

Cllrs vote to pay themselves the MAX!

COUNCILLORS VOTE TO PAY THEMSELVES THE MAXIMUM

It is official, our councillors today voted to pay themselves a handsome salary increase.

This is what they will earn:

Executive Mayor R798 913
Deputy Executive Mayor Vacant ??
Speaker R636 731
Member of MAYCO R596 936
Chairperson of MPAC/S79 R323 242
Part Time Councillors R251 877

The new salaries will be backdated to 1 July 2017. The municipality has not budgeted for these increases and the additional amount of some R500 000 will be catered for in the adjustment budget at the end of February.

They also voted for cellphone allowances of R3 500 per month.

Two councillors did not vote for these increases:
Councillor van Aswegen of COPE proposed an increase for the part time councillors only.
Councillor Myers felt that the increases were not justified, due to Knysna’s dire financial situation and much more modest salaries in the private sector and he abstained from voting.

Some councillors attempted to justify the increases by arguing that they did not determine the upper limits of their pay.

Opposition part time ward councillors argued convincingly that they worked long hours and were often contacted by constituents in the middle of the night.

We however consider the increases for the full time councillors to be unacceptable, insensitive and bordering on immoral. At a time when some fire victims cannot afford to demolish their homes, let alone build a new home, and many cannot find an affordable place to rent, those salaries are a slap in the face of ordinary Knysna citizens.

The salaries were determined by our infamous Minister, Des van Rooyen. Van Rooyen determined the maximum amount payable and our councillors sent a strong message to constituents when they grabbed every cent and voted to pay themselves backpay with effect from 1 July 2017, a mere three weeks after the devastating fire.

We would like to hear from Knysna residents whether they know of anyone in the private sector who is being paid as much as the Mayor, Speaker and the Portfolio Councillors.

To add insult to injury, no money is being budgeted for capacity building of Councillors. Anyone who has attended council meetings and witnessed the woeful proceedings will know that our councillors are in desperate need of training. Yet as Councillor van Aswegen, who is one of the hardest working and best performing councillors, pointed out, hardly any councillors attend the capacity building initiatives provided by SALGA.

To date, 97% of the people who voted in the poll on this page voted AGAINST an increase in councillors’ salaries. So it would seem that the councillors’ and their constituents’ views on this issue are diametrically opposed.

Our thanks to Knysna Politics Exposed for permission to copy this post.

Knysna Municipality’s potential liability for June 2017 fires.

Knysna Municipality’s potential liability for June 2017 fires.

“When the bill for the fires comes due…”

The figure given most often for the total damage done by the Knysna fires last June is about R4.5 billion. That’s total damage, not damages. Damages are what a court awards a winning plaintiff in a civil claim for the damage caused them by someone’s act, or in some cases, failure to act. Until a recent Noseweek article , the question of claims for damages against Knysna municipality in connection with the June fires has attracted little attention in the press.

The Noseweek article quotes Jean du Plessis, a Pretoria attorney representing a number of Elandskraal residents who lost their homes in the fire that swept through the area early in the morning of 7 June. He says he is suing Knysna municipality for R21 million in damages for his clients. A small amount, easily covered by the reported R100 million provided by the municipality’s public liability insurance policy.

But this planned lawsuit inevitably raises a more troubling question: what is the total amount of damages being claimed against Knysna municipality in connection with the June fires? Is it more than R100 million, if that is indeed the limit of the municipality’s public liability cover? And if it is, and if the plaintiffs are awarded the amount of their claims (a big if!), what does this mean for Knysna, and Knysna’s ratepayers?

No one seems to know.

And yet, Knysna municipality should have a fairly good idea of the potential liability it is facing at this point.

Attorney du Plessis says he has served ILPOSA Section 3 notices on Knysna and Eden District municipalities, advising them that he intends to institute a R21 million damages claim against them. ILPOSA Section 3(2) requires a creditor to notify an organ of state (like Knysna municipality) of intended legal proceedings within 6 months of the date a debt becomes due. Section 3(3) provides that “a debt may not be regarded as being due until the creditor has knowledge (…) of the facts giving rise to the debt”.

The earliest the Elandskraal plaintiffs could have knowledge of the facts giving rise to their claim was 7 June 2017, the day their homes and other property burned to the ground. To be safe then, an attorney who planned to claim damages from Knysna municipality in connection with the June fires would have to serve a section 3 notice by 6 December 2017— exactly six months after 7 June.

The 6 December deadline has passed, which raises the following questions, at a minimum:

– How many Section 3 notices have been served on Knysna municipality in connection with the fires of 7 June, and what is the total amount of damages prospective plaintiffs have indicated they intend to claim?

– Will Knysna municipality’s public liability insurance policy cover all those claims, and if not, what does this mean for Knysna’s financial health going forward?

– In a worst-case scenario, is it possible that Knysna municipality could be forced into bankruptcy by these claims, and if so, what would the impact of bankruptcy be on Knysna’s residents?

– Does the wording of Knysna’s public liability insurance policy get its insurers off the hook if the municipality were shown to be grossly negligent? Merely negligent (i.e. so-called “simple negligence”)?
– Do insurers who have already paid out hundreds of millions of rand to their individual policyholders also have actionable claims against the municipality?

– If potential plaintiffs who considered instituting proceedings failed to serve a section 3 notice by 6 December as a result of the conclusions reached in the municipality’s fire report, and those conclusions ultimately fail to withstand scrutiny, will the municipality condone the late service?

– How serious is the financial risk the municipality faces, based on the merits of the cases that it already knows are going to be brought?

Knysna’s ratepayers would like to know.

The Committee

The Knysna Ratepayers Association welcomes any and all comments, answers, corrections, and any information of interest to ratepayers. Please post here or send to admin@knysnaratepayers.co.za.

This article originally appeared in the Knysna Ratepayers Association’s column, on page 10 of the 18 January 2018 edition of the Knysna-Plett Herald.

Unfortunately, the municipality’s published comment on that article was unresponsive.

KRA objects to intended Cllrs salary hikes

The KRA committee is objecting to the intended increases in salary for members of the council. The KRA has sent the following via email to the Mayor and Speaker ahead of tomorrow’s meeting.

“The Knysna Ratepayers Association strongly opposes any increase in Councillors’ remuneration.

Despite repeated warnings from the Technical Services Department, Council have failed miserably to allocate sufficient funds to maintain Knysna’s infrastructure over a period of many years. The results are making themselves felt more and more each year, adversely impacting our local tourist industry, and the supply of basic services to residents. This lack of foresight should not be rewarded. Council must first demonstrate that it is capable of allocating substantial sums for the replacement of obsolete water pipes in the CBD and other heavily impacted areas, upgrading roads to compensate for a decades-long lack of funding for maintenance, and addressing the pressing problem of inadequate waste water treatment facilities and leaking sewage pipes. Then, and only then, should Council even consider increasing Councillors’ remuneration.

Kind regards,

The Committee”

You are urged to attend the council meeting to be held tomorrow (25th January 2018).