The gloves are off again in the Nelson Mandela Bay metro, with city manager Noxolo Nqwazi refusing to back down from her decision to return to work this week.
Because her disciplinary hearing did not start within the prescribed three months of her precautionary suspension, Nqwazi reported for duty at City Hall on Wednesday.
But mayor Gary van Niekerk has tried to block her return, according to a leaked letter.
Nqwazi notified staff of her return in a letter circulated earlier this week.
She was placed on suspension during an emergency council meeting on October 20, and informed of the decision by Van Niekerk on October 23.
Nqwazi was accused of contravening the Municipal Finance Management Act, Municipal Systems Act and the code of conduct for staff for her role in former economic development executive director Anele Qaba’s R3m golden handshake, though the council approved it.
“As you are well aware, I was placed on precautionary suspension with effect from October 23 in terms of regulation 6(1) of the disciplinary regulations for senior managers,” Nqwazi said in the letter.
However, she said a hearing must start within three months after the date of suspension, failing which it automatically lapsed.
“It is indisputable that no disciplinary hearing has commenced within the three months on which I was suspended, hence my suspension automatically lapsed by operation of law.
“This furthermore serves to formally commend all staff for the sterling work done in the last financial year, and during the last audit process.”
Nqwazi’s lawyer, Matthew Kemp of Pagdens Attorneys, wrote to Van Niekerk on Tuesday to inform him that she would be returning to work on Wednesday.
In his response to Kemp, Van Niekerk said her suspension was before the courts.
Nqwazi failed in November to convince the Gqeberha high court that her bid to return to work needed to be heard on an urgent basis.
However, the application, which has been placed on the normal roll, is expected to be heard in February.
Van Niekerk said Nqwazi’s presence at work could jeopardise any investigation into her alleged misconduct and she could interfere with potential witnesses or commit further acts of misconduct.
“You have not provided my office with a court order or a council resolution that confirms that Nqwazi may come back to work,” Van Niekerk said in the letter.
“As the mayor, it is therefore incumbent on me to protect the interests and decisions of the council and as such I would respectfully confirm that your client may not return to the office in City Hall until we have received a proper legal opinion from our attorneys in this regard.”
Hitting back, Kemp wrote to Van Niekerk, saying Nqwazi’s court application sought to set aside the decision by the council to suspend her.
“It appears that you, in your position as the mayor, and/or council, have taken a new decision to extend our client’s suspension, in direct contravention of the disciplinary regulations for senior managers.
“So far as our client is aware, the council has not appointed a legal representative to deal with this particular matter.
“If indeed the council has appointed a legal representative to deal with this particular matter, please advise who such legal representative is.”
Kemp said the decision to extend Nqwazi’s suspension was unlawful.
“Our client is entitled to tender her services and return to work.
“Your insistence that she only return to work once you have had an opportunity to obtain a legal opinion and/or that she furnish a court order or council resolution entitling her to return to work is disingenuous and indicates a total disregard by yourself and council of the disciplinary regulations for senior managers.
“Our client reserves her right to address these issues more fully before the appropriate forum and at the appropriate time in due course, and to seek an appropriate costs order in such proceedings.
“In this regard, our client has instructed us to advise that she intends to seek a costs order against you in your personal capacity.”
Nqwazi, Van Niekerk, his chief of staff Vasu Padayachy and municipal spokesperson Kupido Baron could not be reached for comment by the time of publication.
• Nqwazi also faces charges of fraud and contravening the Municipal Finance Management Act after being arrested along with several other people in October 2022 in connection with a R24m toilet tender.
She and her co-accused have pleaded not guilty.
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