NMB council's ANC caucus accused of misconduct after walkout to avoid city manager discussion

Daily Maverick

4 days ago

The Democratic Alliance has asked the speaker of the Nelson Mandela Bay Metro council to take action against members of the ANC caucus who left a city council meeting on Thursday, collapsing an urgent discussion on the fate of the suspended city manager.
The Democratic Alliance has urged the speaker of the Nelson Mandela Bay City Council, Eugene Johnson, to take disciplinary steps against the members of the ANC caucus who walked out of an official council meeting.
On Thursday, ACDP councillor Lance Grootboom, seconded by the DA's Rano Kayser, proposed a motion that a legal opinion – which concluded that disciplinary action against suspended city manager Dr Noxolo Nqwazi should be abandoned as the charges could not be sustained – should be tabled before council.
This video of the walkout was recorded by ACDP councillor Lance Grootboom
Both Grootboom and Kayser insist that the motion passed and that what followed was a walkout of the ANC caucus, led by Executive Mayor Babalwa Lobishe, that collapsed the city council meeting. Lobishe did not hold her usual post-council press conference, but instead posted a statement to residents, not to the media, stating that the motion had not passed. She did not respond to further questions.
This is the second time in a week that Lobishe has exited a council meeting without dealing with the issue of the suspended city manager. Last week, she arrived late for a council meeting, announced that reports 'were not ready' and adjourned the meeting – at a cost of around R25,000 to ratepayers.
Nelson Mandela Bay Deputy Mayor Gary van Niekerk said on Thursday night that 'she didn't have the votes'. He, too, said the motion had passed. 'The meeting was adjourned. The members of the ANC left. The speaker then called them back,' he said. 'But most of them had already left. So when the ACDP's motion was put to a vote, we (the coalition government to which Van Niekerk belongs) didn't have the numbers,' he said.
Disciplinary action
DA councillor Morne Steyn wrote to Johnson on Friday, asking her to investigate and institute disciplinary proceedings against the councillors who had left the meeting 'unlawfully and illegally' and to refer the matter to the rules and ethics committee.
According to the video recording of the meeting, it had not adjourned, but went into a closed meeting, so it remains unclear why the ANC caucus left.
In his letter, Steyn quoted from a 2015 ruling by the Constitutional Court that it was unlawful for councillors to stop the work of a council when the 'political tides' were against them.
In this ruling, the Constitutional Court said:
'Councillors are elected to undertake the work of the council on behalf of the whole citizenry. Sometimes the tides of politics will place one party in the majority and sometimes another.
'But it remains the duty of all councillors to facilitate and not obstruct the workings of the council. For councillors to continue to draw their salaries, while refusing to attend meetings and seeking thereby to stultify the working of a council would be a breach of their obligations as councillors. It is a breach of the Code of Conduct that binds all councillors and obliges them to attend all meetings of the council and of committees of which they are members.'
Steyn warned that if Johnson refused to act, the DA would approach the Eastern Cape MEC of Cooperative Governance and Traditional Affairs, Zolile Williams, to intervene.
'The walkout staged by the members of the governing coalition in the meeting of 24 July raises grave concerns. Aside from the undemocratic actions of said individuals staging a walkout subsequent to a loss in the consideration of a motion, this action is legally [precluded],' Steyn wrote.
He said that another ruling by the Gauteng Division of the High Court stated:
'… the importance of serving in a municipal council is that party political affiliation and agendas are eschewed for the greater good of the communities served by those councils. … [E]very municipal councillor must comply with the constitutional injunction to municipalities, to prioritise the basic needs of local communities and to provide the basic minimum services to all members of such local communities.'
Steyn said, 'These strong words of the [Gauteng] Judge President, together with the earlier strong remarks by the Constitutional Court, put to rest any debate about this issue. Walkouts are illegal.
'No matter how strongly a councillor disagrees with the proceedings in a meeting, there is no 'right to walk out', ' Steyn said. 'Councillors are expected (and paid) to attend council and committee meetings.'
Walkout costs 'should be recovered'
He said the wasted costs of the meeting should be recovered from the councillors involved.
'Such a walkout forces the municipality to convene another meeting. The municipality thus incurs fruitless and wasteful expenditure on a meeting that was entirely avoidable if everyone had simply obeyed the law. The municipal manager will be forced by law to recover these costs from the councillors [who] walked out and caused the meeting to collapse.
'The new powers of the Auditor-General have made this threat even more real than it was before. If the municipal manager does not make an effort to recover these costs from the councillors, the Auditor-General may come for the municipal manager and issue a certificate of debt to the municipal manager.
'So a diligent and careful municipal manager will not hesitate to recover the costs from the councillors, even if only to protect him or herself from individual liability. There could also be individual liability for the councillors who walked out,' Steyn said.
Nqwazi's precautionary suspension
Nqwazi was put on precautionary suspension in late 2023 and again in early 2024, pending disciplinary action which had been instituted against her.
In his legal opinion, senior counsel Olav Ronaasen said he had been asked to advise on the viability of the disciplinary proceedings against Nqwazi and the status of the criminal proceedings against her to enable the council to reach an informed decision on whether it should persist with the disciplinary proceedings or withdraw them and continue to pursue a settlement with her, in terms of which her employment with the municipality would terminate.
The National Treasury has refused to approve a departure which would allow a settlement to be paid, suggesting that the disciplinary proceedings should first be pursued to completion.
But Ronaasen said in his analysis of the charges against Nqwazi, the disciplinary action was likely to fail as all the allegations against her neglected to take into account that she had been carrying out instructions from the city council.
Lobishe has not responded to questions sent by Daily Maverick to her and the metro's director of communications.
Despite weeks of pleas from business and civil society for improved service delivery and leadership stability, she has failed to explain her conduct on the city manager issue. The metro is facing a precarious time as tariffs imposed by President Donald Trump are set to come into operation on Friday.
Nqwazi was arrested by the Hawks in September 2022, along with the metro's former human settlements director Norman Mapu, businessman Xolani Masela, his spouse Nwabisa, former Democratic Alliance councillors Trevor Louw, Neville Higgins and Victor Manyathi, and Nelson Mandela Bay ANC secretary Luyolo Nqakula.
They face charges of corruption, money laundering, fraud and contravening the Municipal Finance Management Act. It is alleged that kickbacks for a toilet tender awarded during the 2020 Covid-19 pandemic were used to reward Louw, Higgins and Manyathi for voting for a motion of no confidence against former DA mayor Athol Trollip.
However, an application is pending for Nqwazi to be discharged after the close of the State's case, with her legal team arguing that the State had failed to lead any evidence against her. DM