Warning to metro on move to reinstate staff
Halting of disciplinary cases ‘wasteful expenditure’
A Port Elizabeth law firm has warned the Nelson Mandela Bay municipality of “the grave financial and criminal consequences” facing the city, its officials and councillors if they halt all disciplinary matters.
In a series of letters to interim administration heads, Gray Moodliar Attorneys has cautioned the municipality against stalling all disciplinary matters, saying it could result in the reinstatement of staff who are fighting their dismissals at the SA Local Government Bargaining Council.
Gray Moodliar is representing the city in several disciplinary cases and arbitration proceedings involving former staff.
The warning comes as acting city manager Peter Neilson will this week have to decide whether the city should continue with its legal bid to overturn an SA Local Government Bargaining Council decision reinstating legal services official Nobuntu Mgogoshe.
Neilson will also have to decide if the municipality should oppose a Labour Court application by former corporate services boss Mod Ndoyana, who wants his dismissal declared procedurally and substantively unfair and that he should be reinstated.
Neilson said a third-party law firm, which is reviewing the longstanding disciplinary matters and deciding whether or not the municipality should continue, would give him feedback on Monday on how to proceed with Mgogoshe and Ndoyana’s cases.
“The thought process is that the cases of those who won their arbitration award [with the bargaining council] should be reviewed first.
“But there’s the priority of cases that are coming up this week and we have to decide if we should postpone or lift the decision to hold matters in abeyance.
“I’ve asked for that review decision to be in by 12pm on Monday,”
Neilson said he had held meetings with lawyers representing the municipality in several cases on Friday, including senior counsel and third party attorneys brought in to review the strength of all the matters.
“The decision from Friday is that the lawyers should talk to each other and that the attorneys doing the reviews should be given the files to look through,” Neilson said.
Meanwhile, in letters seen by The Herald, dated November 15, 16 and 29, attorney Wayne Gray spells out the repercussions, saying there would be “grave financial and criminal consequences”.
The firm is acting on the city’s behalf in the disciplinary cases of internal audit director Bonnie Chan, chief forensic auditor Werner Wiehart and director of housing delivery Mvuleni Mapu, who are all on suspension, as well as assistant director of forensics Siya Gwija, who was not suspended.
It is also defending the metro in matters before the SA Local Government Bargaining Council of staff who are fighting their dismissals, including Ndoyana, ex-supply chain director Ndimphiwe Mantyontya and director of human resources Chris Jamda.
In review applications before the Labour Court, Gray Moodliar is representing the city in a bid to overturn bargaining council decisions against Mgogoshe, supply chain contracts controller Sox Nkanjeni and former metro police chief Pinkie Mathabathe.
Gray has warned that, should the municipality not pursue or defend all the cases, the fired staff could be reinstated while the suspended officials could win their cases and return to work.
Wiehart and Mapu’s hearings had to be postponed in November following the instruction to hold all matters in abeyance, he said.
“If the municipality instructs us to hold the matters referred to herein in abeyance, all of the costs incurred thus far, and those which will be incurred in terms of adverse orders made by the Labour Court or [the bargaining council], will amount to fruitless and wasteful expenditure as defined in the MFMA [Municipal Finance Management Act],” Gray wrote in a letter to Neilson on Thursday.
“We draw to the acting city manager’s attention that the MFMA also provides that fruitless and wasteful expenditure made by a city manager or official must be recovered by the municipality from that city manager or official.”
In a letter two weeks ago to then acting city manager Noxolo Nqwazi, Gray also warned of the serious consequences of not proceeding with the cases.
“It is our duty as the municipality’s attorneys to protect the interests of the municipality and therefore advise fully on the severe prejudice the municipality will suffer should the municipality instruct us to hold in abeyance the disciplinary matters ...
“In part-heard internal disciplinary inquiries, the municipality as employer must act fairly and consistently.
“The failure to proceed with current charges against employees will result in those employees who have committed serious misconduct being retained in the service of the municipality.
“In addition, this will offend against the principle that an employer must act consistently, and in future disciplinary inquiries, other employees will rightfully be entitled to claim that it is unfair to charge them for the same offence for which the employees in the matters referred to ... have not been prosecuted,” Gray wrote.
Last week, mayor Mongameli Bobani announced that all suspended officials whose cases had been dragging on for longer than three months would be back at work this week.
Bobani said dropping the charges was to avoid any further wasteful expenditure, adding that the disciplinary hearings would continue but with the staff back at work.
Mgogoshe was fired in December 2017 for alleged misconduct after she gave what the municipality viewed as irregular legal advice regarding payment to a company doing work for the bus system.
After the bargaining council ruled she must be back at work and paid backpay, the metro went to the Labour Court to review the arbitration award.
Gray wrote in his letter to Neilson that the municipality is required to file a supplementary founding affidavit by Thursday this week in the Mgogoshe review application.
“[The municipality] will be severely prejudiced and you will be required to explain on oath to the Labour Court the reasons for the municipality’s failure to file timeously.
“The case of Mgogoshe is the very same one in which the city manager, Mr Johann Mettler, has laid criminal charges against the executive mayor [Bobani] for attempting to influence an agent of the municipality [Absa bank] not to enforce a decision of the council of the municipality,” Gray wrote.
Gray referred all questions to Neilson.