An eThekwini Municipality employee, who challenged the appointment of eThekwini municipal manager Musa Mbhele based on alleged irregularities in the hiring process, is seeking leave to appeal in the Constitutional Court after the high court dismissed his case.

The Pietermaritzburg High Court had dismissed the application. Joseph Mabaso is challenging the appointment of the city manager, arguing that it is irregular and non-compliant with the law, and has filed an application for leave to appeal with the Constitutional Court.

His application was based on concerns that there were more councillors involved in the process than permitted by regulations. But the high court said that argument was not grounds to nullify the appointment.

The court added that the appointment had not been challenged by the city’s council or the Department of Cooperative Governance and Traditional Affairs (Cogta) within the 14-day period after the appointment.

Delivering its judgment, the Pietermaritzburg High Court stated, “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.”

Mabaso’s lawyer, Titus Mpho, confirmed that they are now seeking leave to appeal and direct access to the Constitutional Court.

He stated that the high court judgment could essentially allow councillors not to follow the law; where there are violations, they could simply ignore them for 14 days, and after that, those violations would be considered legal.

“We are appealing before the Constitutional Court to clarify issues that we believe are constitutional violations. One of the concerns we are raising with the Constitutional Court directly is the principle of legality, which asserts that if something is illegal, it should be viewed as illegal irrespective of time.” He noted that they are taking issue with the fact that the judgment has stated that because the appointment of the city manager had not been challenged by Cogta or the council, despite there being irregularities after 14 days, it is now considered legal.

“We believe that this could open the door to widespread illegalities where councillors would simply ignore irregular appointments for 14 days and not challenge them. After 14 days, that irregular appointment is now legal. Imagine the chaos that could ensue for hundreds of municipalities. We want the court to clarify this so we know exactly where we stand, whether illegality should be challenged or we should fold our arms.”

In the court papers before the ConCourt, Mabaso states in an affidavit that the public’s right to approach the courts in instances where public officials refuse to comply with their legal duty must be protected.

The eThekwini Municipality mayor’s office had not responded to requests for comment.

THE MERCURY

Source link