‘Still Grounded’October 2, 2019
Plett RPA calls for barring of Bitou Municipal Manager Ngoqo pending outcome of litigationOctober 11, 2019
Sometimes, the actions of our government can convince one that we have slipped down the rabbit hole and are living right next door to Alice in Wonderland. It would be funny if the implications, financial and otherwise, for our town and country were not as serious as they are.
Over the past year we have experienced some irrational and even bizarre decisions from Bitou Municipality (Plettenberg Bay) and our council. The irrationality of past decisions is what has forced us, as Plettenberg Bay Ratepayers and Residents Association, to start playing an active role in the governance.
It has been an uphill battle. Critical information is kept secret, even information that is required by law to publish, forcing us to enter into expensive and time-consuming litigation even to obtain information that MUST be (but is not) published on the municipal website. Needless to say, the officials vigorously oppose our efforts using municipal funds in the process.
Pleas to other government departments to either provide information or step in as is required of them by law have had a similar result.
Sometimes, however, our council’s actions are just too bizarre to be ignored and even those who would normally avoid taking note, are forced to take action. Just such an event transpired in February 2019, when the council appointed a “new” Municipal Manager under the most bizarre circumstances imaginable, stimulating the Provincial MEC to action.
Rewind to 2012.
Disciplinary charges were brought against the then Municipal Manager, Lonwabo Ngoqo. The disciplinary hearing was chaired by a highly experienced and respected retired judge, Peter Combrinck.
He found, inter alia, that Ngoqo was guilty of serious financial misconduct, but what is of more importance under the current circumstances is that Judge Combrinck found that Mr. Ngoqo was unfit to be municipal manager of Bitou based on his record of performance. He further found that he is not a fit person to be in a position of trust. Consequently, Ngoqo was dismissed.
In the run-up to and during the disciplinary procedure Ngoqo had been on suspension and just before the decision was made, he accepted employment as municipal manager of Sunday’s River Municipality.
Nonetheless Ngoqo appealed the decision to the South African Local Government Association’s Bargaining Council and, its officials in another bizarre twist, found that the highly experienced Judge was wrong. That decision was then taken on review to the Labour Court and overturned. Ngoqo indicated that he would appeal the Labour Court’s decision but never did so.
Fast forward to February 2019.
Ngoqo applied to be appointed as Municipal Manager of Bitou Municipality, the very municipality that he had been found in 2012 to have harmed and to be unfit to manage. The Bitou Council via their Executive Mayor, Peter Lobese, appointed Ngoqo to the position.
But the bizarreness did not stop there. On 21 February 2019, Mayor Lobese entered into a sweetheart deal with Ngoqo. Committing that the municipality abandons the earlier judgment against Ngoqo, and that the municipality pays Ngoqo the following by 28 February 2019.
- R 325 000 in respect of the balance of his contract from his dismissal on 6 February 2012 to 28 February 2013 when his contract would have expired but for his dismissal. (Less his salary from Sunday’s River.)
- R 127 000 in respect of a performance bonus that would have been earned in that period.
- R 83 835 in respect of 24 leave days that would have accrued.
- R 781 184 in respect of legal costs arising out of his unsuccessful challenge of his dismissal.
After adjustments per 1 above, an estimated total of R 1 092 000.
In terms of legislation a municipal manager who is found by a disciplinary hearing to be guilty of serious financial misconduct must be placed on a register and is not allowed to be appointed as a municipal manager for the next ten years. Inexplicably that was not done.
In terms of legislation, as a check and balance, the appointment of a municipal manager must be approved by the relevant MEC for Local Government. The MEC objected to the approval but the Council resisted. This forced the MEC to enforce his decision via the Courts.
The matter came before the Labour Court in July 2019, and the Court found in favour of the MEC on highly technical grounds which we will not go into here. Suffice to say the Ngoqo’s appointment was set aside by the Labour Court.
True to form the Council has applied for leave to appeal and the MEC for obvious reasons is obliged to oppose. The normally unavoidable consequence of the application for leave to appeal is that the decision under appeal is suspended until the appeal process is finalised, meaning Ngoqo remains ensconced until the appeal process has run its course. That could take years.
There is however a legal solution available, in that the MEC may under exceptional circumstances apply, and has indeed applied, to the Court that the decision under appeal be enforced in the interim.
In April 2019 already the PBRRA informed the MEC of our concerns and offering to assist in any way we could. We received no response and it was only last week that rumours emerged that the MEC had brought an application to enforce the judgement.
Fortunately, PBRRA committee member Len Swimmer was able to call on his extensive connections and obtain the relevant documents.
Consequently, the PBRRA took legal advice over the weekend and a decision to intervene in the matter was taken. We are represented by well-known local attorney, Martin Hurwitz who has appointed renowned Advocate Martin Brassey SC.
Explaining what exactly is to follow and why, is best done by quoting directly from Mr Hurwitz’s notice to the respective parties’ attorneys that the PBRRA is to apply to the court to enter the fray as Amicus Curiae (Friend of the Court).
“The interests (of the Bitou ratepayers) are recounted at some length in the submissions of the MEC, but he operates at one remove from the Municipality and so is unable to speak to local concerns directly. The submissions of the Municipality, for their part, regrettably show little concern for the interests of residents, but are devoted to a defence of the Council’s manoeuvres and the advancement of Ngoqo’s interests. By concentrating on legal technicalities, they show a distressing reluctance to engage with the central issue, which is whether their appointee can lawfully occupy a position of trust within this local authority.
The PBRRA will, if admitted as an amicus in the application for leave to appeal, present argument on the merits of the application for leave to appeal by considering the import and effect of the order made by Lallie J and the extent to which it could be superseded by agreement. It will, in addition, consider to what extent the further grounds on which the MEC’s application was founded have prospects of success on appeal.
If admitted as amicus in the application to enforce the order, the PBRRA will make submissions on whether, pending the outcome of the appeal (supposing leave is granted), the Municipality can legitimately implement the contract of employment that it must, at least for the interim, concede is unlawful. The PBRRA will also wish to make submissions on the consequences of placing Ngoqo back in a position of trust when he has previously been dismissed for serious misconduct. Finally, it will deal in general with the relative levels of prejudice that would ensue were an order to enforce the court’s judgment to be granted.”
Doing so will be costly and considering that the PBRRA is currently committed to other costly litigation to obtain information, considerable additional funds had to be raised urgently to cover these costs.
Calls were made and as a consequence a special trust to house and manage the funds raised through generous donations for this purpose is in the process of being established.
The matter comes before the Court on 25 October 2019 and we are confident that the Court will accept our offer and allow us to participate directly to provide not only our members but all the residents of Plettenberg Bay with the best possible representation in this matter.
Anyone who is willing to donate to this worthy cause can contact Wayne Turner at email@example.com for the necessary information.
Chairman, Plettenberg Bay Ratepayers and Residents Association.
8 October 2019
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