There are only two options in the case of Nelson Mandela Bay municipal manager Noxolo Nqwazi — reinstate her or pay her out.
These are the recommendations in a legal opinion that found the charges against her baseless and raised serious doubt about the validity of her suspension.
Nqwazi has been drawing a full salary since she was suspended almost two years ago.
The opinion, written by advocate Olav Ronaasen SC, was commissioned by the council to deal with the long-running disciplinary case against her.
It was meant to be debated at a council meeting last week but was never tabled, and copies were not formally given to councillors or coalition parties.
This is reportedly because some of the city’s top political leaders were unhappy with the opinion’s recommendations.
However, a leaked copy of the July 17 opinion said it would be financially irresponsible to pursue prolonged disciplinary proceedings.
“I suggest that this opinion be submitted to the National Treasury as part of the municipality’s motivation as to why the disciplinary proceedings should be withdrawn,” Ronaasen said.
“To achieve the foregoing, a fresh approach should be made to the National Treasury for its consent to withdraw the disciplinary proceedings, as those proceedings are unlikely to result in a conviction against the municipal manager, given what is set out above.”
Instead of answering questions, mayor Babalwa Lobishe responded with her own.
She asked:
- Has The Herald sought an opinion on Nqwazi’s status?
- What is The Herald’s interest in the reinstatement of a criminally charged accounting officer? and
- Can The Herald share the opinion with the municipality?
An earlier R5m settlement offer was rejected by the Treasury, which questioned the city’s decision not to proceed with the disciplinary action.
Nqwazi was appointed in March 2022 on a five-year contract and has 18 months left before her term expires.
Ronaasen recommended that the council set a 30-day turnaround time to implement the proposed steps.
Nqwazi has been on suspension since October 2023 and is accused of breaching the Municipal Finance Management Act and Municipal Systems Act while allegedly exhibiting gross dishonesty.
She also faces allegations of violating the municipal regulations for senior managers.
The allegations include failing to prevent irregular, fruitless and wasteful expenditure in the settlement agreement with former economic development executive director Anele Qaba.
He was later appointed chief executive of the Mandela Bay Development Agency.
The council, though, had approved a R3m golden handshake for Qaba earlier in 2023.
Nqwazi was also criminally charged for her role in a multimillion-rand toilet tender that allegedly bypassed processes to award a R24.6m contract to HT Pelatona for the construction of 2,000 toilets.
She pleaded not guilty. The state closed its case on July 15.
In his opinion, Ronaasen said the city’s investigation was cursory and lacked all the relevant facts.
“This resulted in unfounded allusions as to misconduct on the part of [Nqwazi], which alleged misconduct did not ultimately feature in the disciplinary charges brought against her.
“These unfounded allusions contributed to the decision to place her on precautionary suspension, which places a serious question on the veracity of that process.
“Thus, for the municipality to abandon disciplinary proceedings against the municipal manager with a view to a settlement, the authority of the National Treasury is required in terms of Section 170(1) of the MFMA,” Ronaasen wrote.
A council meeting has been scheduled for Thursday to deal with the matter.
Deputy mayor Gary van Niekerk said he had not seen the legal opinion because it had not been formally presented to the troika, mayoral committee or coalition partners — known collectively as the government of local unity (GLU).
The ANC governs with the EFF, DOP, UDM, AIC, PAC, AIM and the National Alliance.
“In the GLU, items can’t be served before the council if they have not been served before these other structures,” he said.
“What happened in council on Thursday is that there was a green item that talked about a report on Nqwazi.
“I was dumbfounded because how can a legal opinion come and no-one knows who briefed the advocate?
“The advocate can only form a legal opinion when briefed.”
Van Niekerk said Nqwazi had caused the delays in her disciplinary case.
“She came with three or four sick notes and changed attorneys.”
Nqwazi changed lawyers after the law firm representing her was put on the city’s legal panel.
“There was only one delay caused by the city, which was when the attorney went for a life-saving operation,” Van Niekerk said.
Coalition partners are expected to meet on Monday to discuss the opinion.
An insider said they hoped it would be presented.
“We have all seen this legal opinion, and we suspect it’s being deliberately withheld because it’s not saying what some would like it to say.
“However, if a different legal opinion is presented at the meeting tomorrow, then we’ll expect to be balanced and shown how and why there are changes.”
A second insider said the July 17 opinion was a revised version.
“We understand the mayor and acting city manager met the legal team, and we were given a hard copy, but they had clarifications.
“The legal team was asked to make those clarifications. However, we don’t know the details of what the clarifications are or what the opinion said.”
It is understood that Lobishe was unhappy with the initial version because its sole recommendation was to reinstate Nqwazi.
The opinion was changed to include the offer of a settlement.
“Unfortunately, our meetings and movements are being dictated by the ANC regional conference politics because even within the GLU, people are on opposing factions,” the second insider said.
Nqwazi did not respond to telephone calls or WhatsApp messages.
Meanwhile, Ronaasen wrote that the disciplinary proceedings against Nqwazi were put on hold due to the settlement offer after the council requested negotiations to start.
“The National Treasury has refused to approve a departure which would allow the settlement, suggesting that the disciplinary proceedings should first be pursued to completion.”
Regarding Nqwazi’s criminal case, Ronaasen said her lawyer had informed him that no evidence was presented during the proceedings that could support a conviction.
“The senior forensic investigator employed by the National Treasury gave evidence in the proceedings, in which the municipal manager’s version of events as to her conduct was put to him in minute detail, as a result of which he conceded that the municipal manager’s use of a deviation to appoint a contractor to supply the mobile toilets had not been fraudulent and that the municipal manager had been justified in using a deviation to appoint the contractor concerned.
“Given the emergency created by the pandemic [Covid-19] ... the criminal proceedings will now be adjourned to allow for the defence to apply for a discharge of the municipal manager in terms of Section 174 of the Criminal Procedure Act on the basis that no evidence has been presented which could secure a conviction on any of the charges she faces.
“I must emphasise that the criminal proceedings against the municipal manager were never the subject of any investigation by the municipality as to financial misconduct on her part, did not lead to her suspension, nor were any internal disciplinary proceedings initiated against her as a result of the criminal charges,” Ronaasen said.
The Herald
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