Co-operative governance and traditional affairs (Cogta) MEC Zolile Williams has entered the fray over suspended city manager Noxolo Nqwazi, urging the Nelson Mandela Bay municipality to accept that her precautionary suspension has lapsed.
On Tuesday, Williams wrote to mayor Babalwa Lobishe advising that Nqwazi be allowed to resume her duties.
“In the circumstances, the municipality is advised to accept that the precautionary suspension of Nqwazi has lapsed and she must be permitted to resume her duties,” he said.
“The municipality may continue with the disciplinary hearing but there are no legal grounds to continue with the precautionary suspension.”
His response comes after Nqwazi vowed to return to City Hall on Friday last week, arguing that her suspension had become unlawful two years after a formal hearing failed to start.
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.
Her firm, Meyer Inc, wrote to Lobishe on Wednesday last week to inform her that she would return to work on Friday.
The firm said it had received a letter on April 15 from the municipality stating 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.
Williams said the complaint by her attorneys was that the disciplinary hearing had not commenced within three months of the council’s resolution to start disciplinary action.
“It is not disputed that at some point there were sittings of the disciplinary inquiry.
“The attorneys, however, contend that these sittings did not amount to commencement of the disciplinary hearing because charges were never put to their client.
“The sittings were meant to deal with preliminary issues, specifically some documentation which was sought.”
He said in terms of regulation 10 (1)(a) of the local government disciplinary regulations for senior managers, the disciplinary hearing had to commence within three months of the resolution to institute disciplinary action.
“In terms of regulation 10(3)(a) of the same regulations, the officer leading evidence must commence the disciplinary hearing by reading out the charges to the senior manager.”
Williams said that in 2024, the Labour Appeal Court had to determine whether a disciplinary hearing commences when a municipality serves an employee with charges, or only when the officer leading evidence reads out the charges at a convened disciplinary hearing.
“The court drew a distinction between a disciplinary hearing and disciplinary proceedings.
“It was held that the regulation referred to a disciplinary hearing.
“The court accepted an argument that a disciplinary hearing commences when charges are read out by the officer leading the evidence.”
He said the municipality had not then started the hearing within three months.
“The precautionary suspension of Nqwazi as the city manager has indeed lapsed as contended by her attorneys.
“It is worth mentioning that where time limits have been set within which to institute disciplinary actions, delays beyond the period set have been ruled fatal by the courts.”
ANC regional secretary Siphiwo Tshaka said the party would meet at 8pm on Tuesday to discuss the letter.
During Thursday’s council meeting, GOOD councillor Lawrence Troon tabled a motion of exigency to discuss Nqwazi’s lawyer’s letter informing the city she planned to return to work on May 1.
However, without a seconder, his motion could not be debated.
Asked to confirm the legitimacy of the letter, Williams said he wrote to the council and not the media.
“Whoever has leaked the letter may be between the mayor’s office and the speaker’s office.
“It is so unfortunate that council correspondence is in the public domain before the council itself has conceptualised the contents of the correspondence.
“I can’t talk to the media before the council addresses the contents of my letter.
“Let’s be patient and allow council time to process my correspondence,” Williams said.
Lobishe had not responded by the time of publication.
ACDP councillor Lance Grootboom said Nqwazi’s prolonged suspension was another example of how the ANC-led coalition had failed to govern the metro with discipline, urgency and accountability.
“For years, Nelson Mandela Bay has been left without a properly functioning city manager, while the suspended city manager has reportedly been paid more than R2m per year to sit at home,” Grootboom said.
“At the same time, the municipality has been forced to rely on acting appointments, acting allowances and additional administrative arrangements, including Section 154 support.
“This has created more cost, more confusion, and more instability in a city that is already struggling to deliver basic services.
“The MEC’s letter confirms that the municipality failed to commence the disciplinary hearing within the required three-month period, and that the precautionary suspension has now lapsed.”
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