A former ANC councillor in the Eastern Cape has hauled the party to the Constitutional Court after it forced him to reject his successful appointment as municipal manager of the Makana local municipality.
Lawyer Paul Notyawa wants the municipality in Makhanda (formerly Grahamstown) to honour its March 2015 resolution to appoint him and is accusing former Eastern Cape co-operative governance and traditional affairs MEC Fikile Xasa of intervening politically and abusing his powers.
“The (former) MEC admitted to his part in political intervention and his ipse dixit (an assertion made without proof) that his involvement did not impact on his decision and statutory responsibilities must, with respect, be treated with the utmost caution and be viewed contextually against the background of events that unfolded,” reads Notyawa’s founding affidavit filed at the court.
According to Notyawa, he qualified for the position, has the relevant skills and expertise to perform the duties associated with the post and meets all the minimum requirements as prescribed in the Municipal Systems Act.
He said the claim that he lacked the required qualifications is no more than an ex post facto attempt to obfuscate the real motive, namely political interference.
“It is my respectful submission that he abused his powers and that I was removed purely on the basis of political expediency and not as a result of any lack of qualification,” Notyawa insisted.
Court papers detail how Notyawa was summoned to a meeting with former Water and Sanitation Minister Nomvula Mokonyane and Xasa where he was told that ANC councillors had collaborated with their DA counterparts to have him appointed municipal manager.
They slammed him for not standing down and informed him that his candidacy was not supported by the ANC.
Xasa told Notyawa that he should write a letter declining the appointment because he was an ANC deployee.
“I was told that senior members of the ANC did not support my candidacy,” he explained.
Notyawa said he wrote the letter under duress and did not deliver it to the municipality but instead sought legal advice.
He also told Xasa that if he received a copy of the letter he should ignore it because it did not reflect his intentions.
Notyawa said Mokonyane advised him that the “easiest” way out would be to withdraw his candidacy which he initially did, but withdrew.
The withdrawal led to him being disciplined and suspended from the ANC, a decision which was overturned on appeal to the national office bearers.
Notyawa said in February 2015, a few weeks before his appointment, he was told to withdraw his candidacy at a meeting with controversial ex-ANC Youth League deputy president Andile Lungisa and former ANC Eastern Cape MPL Viola Mtongana which was called by former Makana mayor Zamuxolo Peter.
After realising the municipality and Xasa were frustrating his chances of getting the job, Notyawa approached the Eastern Cape High Court. In August 2017, Judge Judith Roberson dismissed his application to review and set aside the re-advertisement of the position and declared he was the lawfully appointed municipal manager.
Notyawa’s application for leave to appeal to the Supreme Court of Appeal was unsuccessful in March last year. He is now approaching the Concourt, which is expected to listen to arguments in September.
The municipality is opposing Notyawa’s application, stating that its failure to appoint a permanent municipal manager has been hindered since 2015 by its inability to conclude the litigation.