Times Of Swaziland: GCINIWE’S 1ST DAY AT WORK; COUNCIL  APPEALS

GCINIWE’S 1ST DAY AT WORK; COUNCIL  APPEALS
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Kwanele Dlamini on 18/09/2024 16:04:00


MBABANE – The gloves are off once again as the Municipal Council of Mbabane
(MCM) and Minister Appolo Maphalala, continue their fight over the appointment
of Gciniwe Fakudze as CEO.
Yesterday, while Fakudze was introduced as the substantive Chief Executive
Officer (CEO)/Town Clerk of the capital city, the MCM had prepared 11 grounds of
appeal, which they filed in the Supreme Court.  The council is appealing the
decision of the High Court, which found, among other things, that the Minister
of Housing and Urban Development, Maphalala, did not act outside his powers when
he instructed the municipal council to appoint the best-ranked candidate.
Fakudze was the highest-ranked candidate during the CEO recruitment exercise.
The judgment that the municipal council is appealing against was delivered on
Monday by Judge Nkosinathi Maseko. The MCM is represented by Mangaliso Nkomondze
of Nkomondze Attorneys, while Assistant Attorney General Mbuso Simelane
represents the minister and Fakudze.
Notice
In the notice of appeal, the appellant (MCM) alleged that the High Court erred
in law and in fact, in finding that the minister did not act ultra vires
(beyond) his powers conferred upon him by the Urban Government Act of 1969,
particularly Sections 48 (3) and 47 (4). This, they said, was when the minister
issued the directive that the MCM must appoint Fakudze to the position of town
clerk/CEO, and when he sought to appoint her to the same position by invoking
Section 47 (4). Section 47 (4) provides that, where a council refuses, fails or
neglects to comply with any provision requiring it to appoint certain staff, the
minister may, after having given the council not less than 14 days’ prior
notice of his intention to do so, exercise on behalf of the council and on such
terms and conditions as he deems expedient, the powers of appointment conferred
upon the council by this Act.
In terms of Section 48 (3), the appointment of a person as town clerk, and the
terms and conditions of such appointment, is in all respects subject to the
approval of the minister. The MCM told the court that the High Court was
oblivious to the fact that the Act confers the powers of appointment of the town
clerk only on the municipal council, in terms of Section 48 (1) and ‘no other
body or person, except by the invocation of Section 47 (4) when the applicant
(council) has failed to so appoint the town clerk’.
In terms of Section 48 (1), a council shall appoint a fit person to be a town
clerk upon such terms and conditions as it may determine. They alleged that the
High Court also wrongly elevated the function of the recruitment consultant of
vetting and shortlisting suitable candidates for the position of town clerk or
CEO above the statutory discretion conferred upon them in Section 48 (1) of
appointing a fit person to the position. “Thus, the court wrongly considered
and treated the recommendation of the recruitment consultant as if it were the
ultimate power of choosing the fit person for purposes of appointment of the
town clerk.
“According to the court’s reasoning, the applicant (now appellant) was bound
to follow the recommendation of the recruitment consultant. “This reasoning
is, with respect, wrong. Should the court have properly applied its mind over
the matter, it would have come to the right conclusion that it is only the
applicant that is granted wide discretionary powers to select a fit person for
the position of CEO in terms of Section 48 (1), and, therefore, the applicant,
in casu, was not bound by the recommendation of the recruitment consultant and
that the first respondent (minister) was bound to accept the appointment made by
the applicant, unless the person so appointed was not a fit person,” reads the
notice of appeal in part.
According to the MCM, the High Court further misdirected itself in finding that
the minister did not act arbitrarily, unreasonably and unfairly in invoking
Section 47 (4), more so because the circumstances for invoking Section 47 (4)
were not present. The appellant argued that MCM had, in fact, not failed to
appoint a CEO, but only appointed ‘one who did not meet the fancy of the first
respondent - minister.  The council told the court that it had not failed,
refused and/or neglected to appoint a CEO, so as to justify the invocation of
Section 47 (4) by the minister. As such, the council submitted that the minister
ought to have been adjudged to have acted arbitrarily, unreasonably and unfairly
in invoking Section 47 (4) in the circumstances.
Challenge
The appellant further submitted that the High Court blindsided the challenge
they had raised, that the minister did not afford them a fair hearing before
invoking Section 47 (4) and thus allegedly violated a constitutionally enshrined
and protected right. It was further their argument that the High Court allegedly
committed an error, and misdirected itself, in finding that the report on the
missing funds at Matsapha Town Board was inadmissible. “Neither the
respondents objected to the admissibility of the report nor did the court mero
motu (voluntarily) raise such a challenge and invited submissions from both
counsels on the issue at the hearing.
“So important are the contents of the report to the case of the appellant such
that the court has remarked in the judgment that it is the only basis of the
appellant’s objection to the integrity of the second respondent (Fakudze).
“This recognition of the importance of the report to the appellant’s case
shows that the court ought to have not just merely discarded it mero motu
without even inviting submissions on the point. “The admissibility of the
report ought to have, at the least, been subject of a trial-within-a trial, thus
affording the appellant the right to be heard on the issue before and adverse
decision is made.”
The MCM went on to tell the court that the High Court is allegedly oblivious to
the fact that attorney general is the custodian of the report, it being a public
legal document and it would have objected to its admissibility if it was not
authentic or open to some other objectionable defect. The matter is pending in
court.