Arguing that her suspension has become unlawful after two years without a formal hearing having begun, Nelson Mandela Bay city manager Noxolo Nqwazi intends to return to work on Friday, the second time she has invoked a delay to reclaim her post.
Nqwazi was placed on precautionary suspension pending disciplinary action in February 2024.
She was suspended months earlier in 2023, later returned to work, and was suspended again.
A disciplinary charge sheet was issued to her in April 2024, with the hearing scheduled to begin in May 2024.
In a leaked letter, her firm, Meyer Inc., wrote to mayor Babalwa Lobishe on Wednesday to inform her that she would return to work on Friday.
The firm said it received a letter on April 15 from the municipality that the hearing would proceed on May 26.
Citing various laws, the firm said municipal regulations required a disciplinary hearing for a suspended senior manager to begin within three months.
If not, the suspension automatically lapsed and could not be extended by the council, according to the letter.
In Nqwazi’s case, the firm said that though a charge sheet was issued and initial sittings were held, the hearing had not legally commenced because the charges were never formally read to her.
The firm referred to the local government disciplinary regulations for senior managers in the Municipal Systems Act.
In recent meetings, members of the ANC and the government of local unity have been divided on Nqwazi.
Some want her reinstated, while others have suggested a settlement.
Her contract ends in 2027.
Nqwazi is accused of breaching the Municipal Finance Management Act and Municipal Systems Act.
She also faces criminal charges for her role in a multimillion-rand toilet tender, which allegedly bypassed processes to award a R24.6m contract to HT Pelatona for the construction of 2,000 toilets.
Nqwazi pleaded not guilty and the case is ongoing.
According to Meyer Inc., at the initial sitting — which did not formally commence as the charge sheet was not put to Nqwazi — she raised several objections.
The matter was then postponed to allow her to obtain the documentation she had requested in preparation for the hearing.
“To date, no documents as requested were received by our client from the municipality, whilst our client remains on suspension in excess of two years pending the commencement of the disciplinary hearing.
“As such, the fact that your client, being the municipality, now wants to ‘proceed with the disciplinary hearing’ is in fact unlawful.
“In light of the above, our client hereby tenders her services to return to work as of May 1, given the above unlawful conduct of the municipality.”
The firm said that if the municipality failed to comply within three working days, they had been instructed to seek an interdict against the intended disciplinary hearing.
“The continued exclusion of our client from the office, in the absence of a lawful disciplinary hearing having commenced, is irrational, unlawful, and in breach of the Labour Relations Act, disciplinary regulations and the principle of legality.
“It goes without saying that the inordinate delay in commencing the disciplinary hearing against our client has irreparably tainted the disciplinary process.
“The municipality has, through its own inaction, forfeited any entitlement to rely on suspension as a lawful interim measure.”
The firm said her “unlawful suspension” had resulted in severe and ongoing reputational harm to Nqwazi, causing financial prejudice to the municipality and its residents.
“Our client further reserves her rights to pursue personal and institutional accountability against those persons responsible for the unlawful continuation of her suspension and/or disciplinary action, including referral to appropriate oversight bodies.”
Nqwazi could not be reached for comment.
The letter sparked heated debate ahead of Thursday’s council meeting, where councillors were overheard discussing its contents at the Feather Market Centre.
In the morning, Gary van Niekerk, acting as mayor while Lobishe was attending President Cyril Ramaphosa’s Presidential Co-ordinating Council meeting in Ekurhuleni, said the contents of the letter would be debated at the meeting.
“It will be discussed as to how to proceed further regarding this letter,” Van Niekerk said.
“It is very odd to receive a letter that is not signed.”
Van Niekerk said he had received the letter via email.
“It is not my decision whether she returns or not.
“It is the council’s decision in the end.”
At the meeting, chief financial officer Jackson Ngcelwane was appointed acting city manager for a period not exceeding three months.
His appointment came after an extensive debate behind closed doors after a report prepared by Lobishe recommended that COO Lonwabo Ngoqo’s tenure as acting city manager be extended by six months.
During the meeting, GOOD councillor Lawrence Troon tabled a motion of exigency on Nqwazi’s lawyers’ letter.
He said if the council did not respond to her, then she would go back to her office.
“Taking into account what has happened, I’m not speaking of someone I’m close to, but this is not right,” Troon said.
“It can’t be that someone has been on suspension since 2024 and nothing’s happened to her.
“Council needs to make a decision.
“This matter is here and it must be resolved.”
However, no one seconded his motion and it was not debated.
Speaker Eugene Johnson told the council that the National Treasury had instructed the municipality to finalise Nqwazi’s matter as soon as possible.
“We will be bringing an item for the city manager at the next council meeting.”
Meanwhile, Nqwazi returned to work in January 2024 after her precautionary suspension automatically lapsed because the municipality had failed to begin a disciplinary hearing within the required three-month period.
At the time, she was suspended in October 2023.
Her legal team argued that, under the municipal disciplinary regulations, the suspension automatically lapsed if a disciplinary hearing was not initiated within the prescribed three-month timeframe.
She returned to work in January 2024.
However, she was again suspended in February 2024.
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