MCM APPEAL: E3M DEMAND FOR GCINIWE’S SALARY, COSTS

MBABANE – Ratepayers should be prepared to fork out E3 million if the Municipal Council of Mbabane (MCM) continues to push for Gciniwe Fakudze to stay at home pending the appeal.  

The money will cater for Fakudze’s salary and legal costs in terms of the Rules of the Supreme Court, 2023 and it is to be deposited with the registrar of the High Court, before the appeal is heard. This is contained in a letter addressed to the municipal council by the attorney general (AG). The letter is in response to the letter that was addressed to the AG and Fakudze by Nkomondze Attorneys, who represents the municipal council in the matter.When the matter was argued before Judge Nkosinathi Maseko, Assistant AG Mbuso Simelane said at least four councillors were against challenging the appointment of Fakudze.

Minority

However, the MCM’s attorney, Mangaliso Nkomondze, argued that the four councillors were a minority. In this matter, the MCM is challenging Fakudze’s appointment as the Chief Executive Officer (CEO) of the MCM. On Monday, the High Court dismissed with costs the MCM’s application to set aside the decision of the Minister of Housing and Urban Development, Appolo Maphalala, to direct the council to engage Fakudze for the CEO position. Tuesday was Fakudze’s first day at work and the municipal council filed a notice to appeal the decision of the High Court. The municipal council also wrote to the AG, communicating that an appeal stays the operation of an order that is being appealed against.

The MCM’s letter, dated September 17, 2024, stated that: “As per the distilled practice and well-established rule that an appeal stays the judgment appealed against, and thus the parties are obliged to maintain the status quo pending the appeal, we are mindful that your client may wish to proceed and effect his decision and install Ms Fakudze as CEO.” The AG yesterday responded to the MCM’s letter that was signed by Assistant AG Simelane. Simelane confirmed in the letter that Fakudze started her job as CEO on Tuesday at 8am.

“...thus your reference to the effect of an appeal is not applicable as it was served one hour 29 minutes late,” reads part of the letter. He further stated: “Even if we are wrong on the analysis of appeal laws, which we deny, we still advise that our research does not prove that an appeal resuscitates a dismissed application, thus the process of applying for leave to execute is not applicable, because you failed to prove to the High Court that your client has a case against the honourable minister and CEO.  “You are restarting the process again differently and it is the Supreme Court that may entertain the proposed interdict application. We believe that you should bring an urgent appeal to the Supreme Court, because the intended application you are referring to might be trying to get the High Court to review its decision, as a disguised leave to appeal, which is not provided under our rules.”

Simelane also told the appellants that if they make an application for leave to execute, the respondents (minister and Fakudze) would demand security in the sum of E3 million, before the hearing of the appeal. “Should you apply for leave to execute a non-existent judgment, in the High Court, please be advised that we are instructed to demand security in the sum of E3 million that will cater for the CEO’s salary and legal costs in terms of Rule 41 of the Supreme Court Rule 2023, to be deposited to the registrar of High Court before the matter is heard.

“Our clients respect the Rule of Law and are appreciative that the appeal was served when the CEO was already executing her duties and you do not have any judgement reviewing the minister’s decision. In any event, your notice of appeal is a review disguised as an appeal, which offends Rule 13 of the Supreme Court rules,” further reads the letter. Simelane also explained that it is unethical to address correspondence and notices of appeal to Fakudze ‘yet we are representing her, hence may you kindly desist from doing so’. Meanwhile, the MCM stated in its letter that it would escalate costs if they were to apply to the court for an interdict to maintain the status quo and also protect the integrity of the Supreme Court.
This move, according to the MCM, could be obviated by an undertaking that the minister would heed the sub judice rule.

Undermine

“We believe that the minister, as a member of the Executive arm of government, upholds the rule of law and the integrity of the courts as well as recognises the doctrine of the separation of powers and will thus not seek to undermine these principles by going ahead with his decision yet it is subject of proceedings on appeal and may be set aside on appeal,” reads part of the letter. The council requested the respondents to obtain instructions and revert to them by noon yesterday as to whether Minister Maphalala was open to making such an undertaking, ‘failing which we will be compelled to approach the court on an urgent basis and seek an interdict’.

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