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Warning over filling city manager post: Experts advise that eThekwini Municipality should wait for outcome of legal action

Durban City Hall. Picture: Terry Haywood

Durban City Hall. Picture: Terry Haywood

Published May 19, 2022

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DURBAN - LEGAL experts have advised that the eThekwini Municipality should not permanently fill the position of city manager until the legal challenge by one of the potential candidates is settled.

The labour lawyers said while there was nothing preventing the city from filling the position, it could find itself stuck with two city managers if it made an appointment and then lost the court action.

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Max Mbili, a municipal manager in the Ray Nkonyeni municipality on the South Coast, who was shortlisted and was the front-runner for the position, is taking the municipality to court after it informed him that the council had rejected his appointment.

The case is to be heard at the Durban High Court on August 3.

Mbili’s appointment collapsed at the last hurdle after it was alleged that the ANC may have interfered with the selection process.

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It was alleged that the ANC had demanded that Mbili get the top job, and when the interview panel confirmed that he was the preferred candidate, opposition parties cried foul and blocked the appointment in early April.

The council resolved that the appointment process should be restarted.

In his application before court, Mbili wants the court to declare that the reasons for his non-appointment by the municipality are irrational, unjustifiable and unreasonable.

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He also wants the court to order the council to reconsider its decision.

Michael Maeso, partner and head of Employment Law at law firm Shepstone & Wylie, said while it was difficult to speak authoritatively on the matter without sight of the court papers, there was nothing legally preventing the municipality from filling the position, but it might want to wait until the court process was finalised.

“The municipality could wait and do nothing until the court process is finalised or they could fill the position with an acting person or appoint someone on a fixed term contract pending the legal action,” said Maeso.

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He said this was a prudent thing to do because, “if they fill the position and the court action is successful, what happens to the person in the position”?

This view was echoed by another labour lawyer, Michael Bagraim, who said the city could leave the position vacant, but if it was necessary to fill the post, it must be on a temporary basis or on contract pending the legal action.

Bagraim, who is also a DA MP and member of the National Assembly committee on employment and labour, said: “If you hire someone on a full-time basis, and lose the court case, you will have to get rid of that person that was hired and they will have a claim against you,” he said.

The news of Mbili’s legal action against the municipality stunned and irked some councillors who are members of the executive committee and only learnt about it during a confidential meeting yesterday.

DA councillor Nicole Graham said her issue had always been with the process, not Mbili, and making sure that it was free and fair.

“Mbili is entitled to do what he chooses, we have been clear that we want the process to be restarted by the end of this month, we want to be represented (as opposition) and we don’t want that process to be dominated by the ANC,” she said.

IFP councillor Mdu Nkosi said the court action would cause further delays in the filling of the vacancy, adding that they had only learned during the executive committee meeting that Mbili was taking the council to court.

He said they were still waiting to be briefed on what grounds Mbili was taking the municipality to court, as this was a decision of the council, which is authorised for such action.

“We hope the council lawyers will defend the council decision.

“It is surprising that he has taken this action.

“We were told that he was the best candidate among those that were interviewed, if that was indeed the case, the candidate should easily come out on top if the process to interview is started afresh,” Nkosi said.

EFF councillor Thabane Miya said they were shocked to learn that the municipality was being taken to court.

“We are leaders of the municipality and yet we knew nothing of this, we felt undermined as opposition. Mbili should not force the issue, it will not help him to try to force his way into that position.

“We had raised concerns about the process that was followed that we felt was tainted,” said Miya.

The municipality declined to comment further on the issue, saying it stood by its statement issued on Tuesday, when it said the issue of the appointment of the city manager was on track and it would communicate its next course of action in due course.

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