COURT RULES: GCINIWE MBABANE CEO

MBABANE – The councillors who challenged the appointment of Gciniwe Fakudze as CEO yesterday bit the dust in their bid to set aside her selection.

The High Court found that the Minister of Housing and Urban Development, Appolo Maphalala, acted within his powers when he instructed the Municipal Council of Mbabane to appoint the best-ranked candidate. Fakudze ranked highest among the candidates. The judgment means that Fakudze can now begin her duties as the Chief Executive Officer (CEO) of the MCM. Judge Nkosinathi Maseko dismissed with costs the entire application filed by the MCM at the High Court after Fakudze’s appointment. They wanted the court to declare the directive of the minister, dated February 7, 2024, directing the municipal council to engage Fakudze for an employment contract to beyond his powers as conferred by the Urban Government Act No.8 of 1969, and, therefore, unlawful.

Correction

They also sought a review, correction and setting aside the decision of the minister to appoint Fakudze as Town Clerk/CEO.  The councillors prayed that the court should order or be compel the minister to approve the appointment of Fik’sile Dlamini, the lowest-ranked candidate, as the town clerk/CEO, among other prayers. The municipal council was represented by Mangaliso Nkomondze of Nkomondze Attorneys. Assistant Attorney General Mbuso Simelane appeared for the minister.  In the judgment, Judge Maseko stated that Fakudze scored the highest points, 175, and was designated as the best candidate on the list, which was submitted to the municipal council.

The municipal council, in turn, decided to appoint the third-ranked candidate, Fik’sile, who scored 98.5 points, ignoring its laid down policies - being Article 8 of the Governance Performance Assessment of the Urban Local Government, which dictates that the CEO is appointed on the basis of merit and the points obtained during interviews. This means that the best-ranked candidate shall be appointed by the municipality, according to the court. The court heard that when the applicant (MCM) submitted Fik’sile as its preferred candidate, who was the lowest-ranked, to the minister, he declined to approve their choice on the basis of Section 48 (3) of the Act.

The minister insisted that the municipal council appoints the best-ranked candidate, as dictated by Article 8 of the Governance Performance Assessment and also supported by the consultant’s report. The court noted that it was common cause that the applicant failed, refused or neglected to carry out the 1st respondent’s instruction. “The question then becomes, did the first respondent (Minister Maphalala) act ultra vires (beyond) the powers conferred upon him by the Act when he eventually appointed Fakudze? “My view is that the first respondent acted within his powers when he instructed the applicant to appoint the best-ranked candidate in accordance with the consultant’s report and in compliance with Article 8 of the Governance Performance Assessment of the Urban Local Government.  “The first respondent acted lawfully and within his statutory powers as conferred upon him by Section 47 (4), read together with Section 48 (3) of the Act.

Appoint

“The first respondent did not appoint any person who is not in the consultant’s report, nor did he instruct the applicant to appoint the second ranked candidate, instead he instructed the applicant to comply with Article 8 of the Governance Performance Assessment of the Urban Local Government by appointing on merit the best-ranked candidate, being the second respondent (Fakudze),” reads the judgment. Judge Maseko also stated that it must be borne in mind that the minister was never involved in the appointment of the consultant, SNG Grant Thornton, which conducted the recruitment exercise. The minister, according to the court, was also not involved in the advertisement, and during the shortlisting of the candidates, as well as the interviews on January 20, 2024.

“He was only furnished with the consultant’s report, minutes of the ad hoc committee and minutes of the special council meeting in a letter dated January 31, 2024.  “Upon perusal of same, he then addressed Annexure ‘MMC 5’ on February 7, 2024, directing the applicant (MCM) to comply with the consultant’s report because he found no plausible reason as to why they deviated from the consultant’s report, which placed the second respondent as the best ranked candidate,” further reads the judgment. Judge Maseko said it was, therefore, unfair for the municipal council to allege that the minister acted beyond his statutory powers when he was calling the applicant to order and to comply with the laid down policies. The judge said even the Acting CEO, Bongani Dlamini, had advised the council that the Governance Performance Assessment of the Urban Local Government dictates that the best-ranked candidate must be appointed to the position of CEO. However, his advice was not heeded.

Unreasonable

“The actions of the first respondent can never be said to be unreasonable, unlawful and ultra vires his statutory powers in these circumstances. The first respondent sought to enforce transparency, fairness and integrity in the recruitment process of the CEO, by ensuring that the best-ranked candidate is appointed as CEO on the basis of merit. “The first respondent acted in a fair and procedural manner. He afforded the applicant the opportunity to correct its improper actions by complying with the consultant’s report as well as complying with the Urban Local Government - Governance Performance Assessment, in particular Article 8.

“However, the applicant did not comply with his advice. The first respondent was pushed by the applicant to invoke Section 47 (4) when the applicant refused to comply with the first respondent’s lawful instructions to appoint the second respondent, who is the best ranked candidate in terms of the SNG Grant Thornton’s report,” said the judge. Efforts to get comment from Fakudze, hit a snag, as her phone rang unanswered, the last call was made at 8:43pm.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: