The Labour Court has confirmed the dismissal of a municipal manager for misconduct, and remarked upon the importance of good management within municipalities
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When public servants who are guilty of malfeasance are led to feel safe in the knowledge that their misconduct will have no real consequences, service delivery is compromised and those who suffer are the vulnerable and the powerless.
These were the words of an acting judge after the now former municipal manager of the Inxuba Yethemba Municipality in the Eastern Cape was fired for misconduct.
The South African Local Bargaining Council, however, ruled that his dismissal was a too harsh sanction. While the commissioner acknowledged that the misconduct of the municipal manager, Xolola Msweli, was “rather serious,” it was ruled that his dismissal was unfair. Aggrieved with this finding, the municipality now asked the Gqeberha Labour Court to overturn the commissioner’s findings.
The charges against Msweli included approving a variation order exceeding his financial delegations and approving a service provider without following the supply chain management procedures. The arbitrator found him guilty of financial mismanagement, but concluded that he should be given a second chance.
The municipality argued that the arbitrator’s decision was unreasonable, given the gravity of the misconduct and Msweli’s position as accounting officer. It was said that an accounting officer holds a fiduciary duty to ensure proper financial management.
According to the municipality, he had fabricated a defence that he acted under regulations which permit deviations from procurement processes in exceptional cases. The evidence, however, showed that he did not report the deviation to the municipal council as required, that he remained mum about his actions, and misled stakeholders, the court found.
In upholding the municipality’s review application that the initial sanction of dismissal is the appropriate punishment, Acting Judge P N Kroon commented that public confidence in government institutions depends on the officials who are duty-bound to serve the people, doing so diligently and with integrity.
“Public servants are the stewards of the trust of the populace. Accountability, whether disciplinary, civil or criminal, is one of the measures embraced by the Constitution to combat the culture of impunity which haunts our administration,” the judge said.
He added that accountability is an antidote to the bovine apathy which casts a shadow over our State organisations. “Without accountability we see, in real time, the whittling away of the cornerstones of democracy and the inexorable descent into a regime where maladministration is normalised.”
According to the judge, the damage done by sustained unaccountability runs deep. It may take generations to undo. “Often, many years after the fact, wasteful and expensive litigation must be embarked upon to right the wrongs which mismanagement and abuse of power have left in their wake.”
In referring to the conduct of Msweli, the judge remarked that it is a story about a municipal manager who kept his misconduct secret until it was eventually discovered. “It has often been stated, in a commercial context, that a successful business enterprise operates on the basis of trust. Dismissal is not an expression of moral outrage or vengeance; it is a sensible operational response to risk management in a particular enterprise,” the judge said. He added that this applied all the more where, as in this case, the employer is an organ of State.