If the council decides to push for Nelson Mandela Bay city manager Noxolo Nqwazi to vacate her post, the cost of any settlement agreement would come from the pockets of any councillors that voted in favour of the decision.
This was the warning circulated to councillors in a legal opinion leading up to the debate on Nqwazi’s fate during a late-night council meeting on Thursday.
The meeting was scheduled to start at 2pm but only began at about 5pm due to the late arrival of co-operative governance official Mzwakhe Clay.
He eventually presided over the election of an acting speaker, which saw public health portfolio head Thsonono Buyeye elected as interim speaker.
The DA had nominated party member Heinrich Muller to act as speaker but lost when it came down to voting.
The meeting was called to debate a PwC forensic report into the city’s contracts with Moximark (Pty) Ltd, trading as SK Business Consultants (SKBC), for the provision of socioeconomic consultancy services, along with an alleged bid-rigging scheme that resulted in a Gauteng company applying for two similar tenders for advisory services on development projects.
However, shortly after the meeting got under way, a motion of exigency was tabled by the UDM calling for Nqwazi’s appointment to be rescinded.
In the motion, UDM councillor Luxolo Namette also called for Nqwazi to be placed on special leave.
He further called on mayor Eugene Johnson to table the report on the recruitment and appointment of a city manager again.
Namette also wanted Anele Qaba’s appointment as acting city manager to be confirmed as lawful.
The council then adjourned at 6.30pm and had yet to reconvene by the time of going to print.
The legal opinion was obtained by Johnson through advocate Graham Richards who was tasked with looking at the implications of a separation agreement with Nqwazi, including whether councillors who took the decision would be held liable for the costs.
He said any attempt by the council to “vary or revoke” the decision to appoint Nqwazi would be unlawful and could be set aside by a court.
“The employment relationship between [Johnson] and Nqwazi is regulated by the employment contract concluded between them,” Richards said.
He said any settlement agreement cost would be classified as irregular expenditure.
“Should a majority of councillors resolve to incur expenditure which is found to fall within the definitions of irregular expenditure or fruitless and wasteful expenditure in circumstances where they have been advised that the expenditure it is sought to approve is likely to result in such irregular or fruitless and wasteful expenditure, in my view the councillors so resolving would be liable for such expenditure and [the municipality] would be obliged to recover it from them.”
Richards said the contract could be terminated based on a “consensual cancellation” and that since the council employed a city manager it would also be obliged to approve any such agreement.
“That said, however, I am advised that there is no consensus on the basis of any such agreement, but that if an agreement is to be reached, this would inevitably involve the payment to Nqwazi of some form of consideration.”
This, he said, would probably be calculated on the basis of the remuneration she would lose out on, or a portion of it.
“I am further advised that any such consideration has not been pertinently budgeted for and it would be necessary to find the means to provide for such expenditure.”
Richards said any such move would mean the council would then have to appoint an acting city manager who would be paid an allowance while the council incurred costs should it restart the recruitment process.
“It seems to me for the above reasons, that any such expenditure would be irregular expenditure [according to the Municipal Finance Management Act] and also fruitless and wasteful expenditure,” Richards said.
Before the meeting started, the doors to the Feather Market Centre were locked by security staff who blocked a group of municipal workers demanding they get a chance to address the council.
HeraldLIVE