Former eThekwini SCM deputy head loses court bid to overturn dismissal
Former deputy head of Supply Chain Management in eThekwini municipality Sandile Ngcobo. He is the fifth accused in the DSW tender fraud case, involving Zandile Gumede.
Image: Doctor Ngcobo / Independent Media
The Labour Court in Johannesburg has dismissed the application of former eThekwini municipality deputy head of Supply Chain Management (SCM) to have the municipality and City manager Musa Mbhele review their decision to fire him.
The former senior official of the municipality Sandile Ngcobo is a co-accused of the former mayor of this municipality Zandile Gumede. Gumede, Ngcobo, and 20 others are on trial for fraud, corruption, racketeering, and contravention of the Municipal Finance Management Act and the Municipal Systems Act concerning the Durban Solid Waste (DSW) tender of R300 million.
Launching his application, Ngcobo said the City had no lawful grounds to terminate his employment.
Judge Zolashe Lallie said after Ngcobo was arrested for the DSW corruption matter he was granted bail on May 2, 2019. She said that Ngcobo's bail conditions precluded him from entering the premises of the municipality or having any contact or communication with any person or subordinate there except through his legal representatives.
'The applicant's bail conditions rendered it impossible for him to perform his contractual duties,' she added.
She said Mkhize was employed to act in Ngcobo's position. In an attempt to reclaim his position, Ngcobo applied for and was granted a variation of his bail conditions by a criminal court on June 26, 2019. His union then lodged a grievance which was resolved by agreement with the City manager in September 2019.
Ngcobo submitted the agreement reached in September that he would return to work with an adjustment to his duties as deputy head of SCM. He returned to work in November 2020; however, he could not communicate with his subordinates or sign new DSW-related contracts, as that would be a conflict of interest.
As he could not perform all his duties because of the bail conditions, Ngcobo would be given additional functions related to the Radical Economic Transformation Programme (RET).
'From November 2020 the applicant (Ngcobo) has been away from work for a substantial period as he had to appear at his High Court criminal trial,' she said.
In December 2024, Ngcobo received a letter from Mbhele, requesting him to state reasons as to why he should not be removed from any SCM function and why if that was not done he should have his contract of employment terminated on grounds of supervening impossibility.
In January 2025, Ngcobo disputed that he couldn't continue rendering his services as required. On February 3, 2025, he was placed on special leave while the municipality's City Integrity and Investigation Unit (CIIU) investigated this.
On March 18, he was fired. Ngcobo did not accept that instead, he launched an urgent application, seeking relief from the specific performance of his contract of employment.
In its defence, the City said keeping Ngcobo in his position had the effect of breaching his bail conditions.
'The applicant conceded that when his contract of employment was terminated he was communicating with his subordinates and performing duties based on the RET programme. He conceded that he was acting in breach of his bail conditions,' Judge Lallie explained.
Ngcobo's justification was that in the agreement he reached with the City in settlement of his dispute, he was permitted to breach the bail conditions.
'It must be noted that when the City received more information on the criminal cases the applicant is facing in different courts including the list of witnesses realized the serious consequences to the agreement,' she said.
Judge Lallie said Ngcobo refused grade 7 positions that the City offered him. She said he was going to retain his salary and benefits. Ngcobo said accepting the positions would constitute demotion.
'Offering an employee a lesser position as an alternative to terminating his or her contract of employment constitutes a reasonable accommodation. The applicant's refusal to accept one of the positions with the retention of his salary and benefit and insisting that the first respondent should retain him in his position in contravention of his bail conditions is unreasonable,' she said.
nomonde.zondi@inl.co.za
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