The Municipal Systems Act was amended two years ago to try to stop municipalities from selecting incompetent managers.
The new legislation is aimed at preventing municipal managers who fail to perform satisfactorily, from moving to new posts with impunity.
In a case that could make a difference to many municipalities, the Merafong City Local Municipality was last week restrained from appointing Nhlanhla Mabaso as its municipal manager after he had been deemed unsuitable for the job.
The South African Municipal Workers' Union (Samwu) had challenged Mabaso's appointment on the ground that the municipality had failed to consider the auditor-general's findings over his stint as municipal manager of Sisonke District Municipality in KwaZulu-Natal.
The attorney-general had found Mabaso had neglected his responsibilities over Sisonke's finances.
Samwu submitted that Mabaso was not appropriate for the position based on Section 54 A(4) of the Municipal Systems Act which requires the council to appoint a "suitable" person.
Samwu said while a "suitable person" was not defined in the act, for a suitable person to be appointed, that person needed to show they had the ability to do the job, integrity and also that they were appropriately qualified.
The municipality's counsel withdrew from the review application after his request for the postponement of the application on 29 January was refused.
The Labour Court only heard submissions from Samwu's counsel Tembeka Ngcukaitobi.
Judge Zolashe Lallie was given the attorney-general's reports on Sisonke, which reflected the financial position as at June 2010 and June 2011.
"The contents of the attorney-general's reports are self-explanatory. They reflect that for both financial years Mabaso failed to perform his duties in terms of section 55 (2) of the Act.
"As the accounting officer he neglected his responsibilities for the expenditure of Sisonke," Judge Lallie said in her judgment.
She said the attorney-general's report showed that expenditure had been made in vain and could have been avoided.
"This reflects that Mabaso did not ensure compliance with the procurement policy which cost the municipality (a) substantial amount," Judge Lallie said.
She said when the contents of the attorney-general's reports were considered against the constitutional right and duties of municipalities and the minimum requirements for appointment as a municipal manager, the only reasonable inference to be drawn was tha Mabaso was not suitable.
The judge also said the union had proven that Mabaso was not a suitable person at the time of his appointment and that the municipality had appointed him contrary to the provisions of the Municipal Systems Act by not establishing his suitability beforehand.
"The municipal council's omission denied Mabaso an opportunity to comment on the auditor-general's reports and possibly provide reasonable explanations which could prove he was a suitable to be appointed," Judge Lallie said. The court ordered that the municipality pay the union's legal costs.
Source: Business Day via I-Net Bridge
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