Pietermaritzburg High Court dismisses challenge to eThekwini city manager Musa Mbhele's appointment

The Pietermaritzburg High Court has dismissed an application that sought to challenge the appointment of Musa Mbhele as the city manager for the eThekwini Municipality.

But this fight is not over and is likely headed to the Constitutional Court. The application had been brought by Bheki Mabaso, and the judgment was handed down last week.

In the court papers, Mabaso was listed as a principal clerk employed by the municipality and had brought the application on the basis that, as an employee of the municipality, he had an interest in whether Mbhele was lawfully appointed.

It was not clear yesterday whether Mabaso was still employed by the city. This battle to unseat the city manager has been ongoing for the past few months. The municipality was listed in the court papers as the first respondent, and Mbhele was listed as the second respondent.

Mabaso launched a court bid and challenged the appointment of city manager Mbhele on the grounds that the appointment had been irregular. At the heart of the allegations, the applicant stated that the fact that there were more councillors as part of the selection panel than are permitted by law made the process invalid, and it should therefore be set aside.

In his application, he had asked for the review and setting aside of the selection panel, as well as of the appointment of Mbhele as the municipal manager for the municipality.

The court, however, dismissed the case, arguing that the section of the regulations used to challenge the appointment did not refer to municipal managers but to senior managers.

The court found that the appointment of the municipal manager could not be attacked on the basis that one more person was present in the selection panel that interviewed candidates for the post, especially since the other entities, the eThekwini Municipality and the Co-operative Governance and Traditional Affairs department, had not challenged the process.

Delivering its judgment, the court said: “It would appear that even though there may have been more members of the committee dealing with the elections process, as neither the first respondent nor the minister took further steps after being informed of the panel and of the appointment, the appointment of the municipal manager in terms of Section 54A (10) was therefore deemed to be in compliance with the act, and the appointment cannot therefore be attacked on the basis of the selection committee having one person more than was allowed.”

“The application also based his relief (sought) on regulation 12(4), which does not refer to municipal managers.”

Mpho Titus, the lawyer for the applicant, said they would be appealing the matter. “By Monday, we will be preparing papers to approach the Constitutional Court directly,” he said.

The outcome has been welcomed by city councillors. DA leader in the eThekwini Municipality, Thabani Mthethwa, said: “The DA’s focus is for the people of eThekwini to receive the service delivery that they deserve. We therefore appeal for stability and focus on service delivery.”

IFP councillor Mdu Nkosi expressed satisfaction that this matter had finally been closed by the courts.

“I was still surprised at the claim made because when we engage in such processes, there is a legal team that is assisting the council, including the Department of Co-operative Governance and Traditional Affairs, that is informed about this process.

“We are happy that this matter is over. We hope the applicants do not come up with another leg because it is clear that there are these fights happening, and we have no idea what they are about and what their purpose is. All we really want is to see the municipality working to deliver services,” Nkosi said.

THE MERCURY