Brian Hayward email@example.com
THE fight by Nelson Mandela Bay municipal manager Graham Richards to be given access to a forensic report commissioned by Local Government MEC Sicelo Gcobana which is understood to exonerate him on charges of mismanagement, suffered a setback yesterday.
Richards has been on paid special leave since August last year while charges of mismanagement against him are investigated by the municipality.
In the latest move, he brought a High Court motion which was to be heard yesterday to force Gcobana to release the report in terms of the Access to Information Act.
But a late scramble by the state to oppose the motion saw the hearing postponed until Tuesday.
Should the state be given the go-ahead to oppose the motion, Richards could face waiting several more months for the decision he was hoping to get yesterday.
Richards’s motion follows several months of trying to engage with the department to release the forensic report, which Gcobana commissioned East London forensic investigations firm Kabuso CC to compile in August last year.
Richards had done so without success, according to his affidavit.
The suspended executive also argued that Gcobana was further obligated, under the Municipal Systems Act, to table the findings of any investigation commissioned within the ambit of the act in the Provincial Legislature within 90 days of its commissioning. The Kabuso report fell under this act, it was argued.
Senior provincial government officials, who asked not to be named, said it was “common knowledge” that the ANC had instructed Premier Noxolo Kieviet to ensure the report did not see the light of day, despite its completion.
The Herald understands that the report exonerates Richards and former Bay mayor Nondumiso Maphazi – who was redeployed late last year after she lost favour with the ANC’s regional executive committee (REC) – of any wrongdoing during their tenure.
But former Bay mayor and REC chairman Nceba Faku is apparently slated by investigators for flouting procedure.
Provincial spokesman Mzukisi Ndara could not be reached for comment on the matter.
The respondents in the case – among them the MEC, the Local Government and Traditional Affairs Department and the Nelson Mandela Bay Municipality – were originally given three weeks to oppose an order that Richards be given access to the report.
But they had not done so by yesterday.
However, what was claimed to be an “unprocedural” last-minute scramble was made by the state, resulting in Judge Mandela Makaula granting a stay. He gave the state 24 hours, to midday today, to compile a thorough application for the court’s permission for it to oppose the motion.
The judge ordered that not only must the state – under Advocate Ashley Moorehouse – prove substantially why it wants to keep the report under wraps by opposing Richards’s motion for it to be released, but it must also prove it stands a reasonable chance of succeeding in its opposition.
Richards has argued that “a refusal of access to the outcome of an investigation that directly addresses specific allegations against me will prejudice me in my right to receive a fair hearing” at a disciplinary inquiry.
Meanwhile, if the judge next Tuesday approves the state’s opposition to the motion for the report to be released, it will be given more time to draft its opposition papers,
This would delay the hearing. which should have been held yesterday, by several months.
If the state is unsuccessful, Richards’s team will immediately ask the court to consider its motion to release the report. Richards is already awaiting another High Court hearing relating to a separate investigation into allegations against him.
In a hearing scheduled for November 12, he will request that the High Court rule null and void the appointment of forensic investigators Ramathe Fivaz to probe various aspects of service delivery in the metro.
The reason is the appointment “did not comply with the requirements of the Constitution” as it did not go out to tender, according to papers served.