The financially strapped Beaufort West Municipality technically has two municipal managers, adding to its financial and governance woes.
A ruling by an independent presiding officer, Helena Jacobs, in the disciplinary hearing of suspended municipal manager Jackson Penxa advised that it would be unlawful for the municipality to proceed with the hearing as the process was flawed.
The ruling effectively terminated the mandate of acting municipal manager Goodwill Nyathi and Penxa resumed his duties on November 2.
However, according to insiders on Penxa’s return he was asked to take a special two-day leave until November 4.
“They will now have to explain to the auditor-general why they kept two municipal managers following the ruling, as this might constitute wasteful and fruitless expenditure,“ one insider said.
A letter by Penxa's lawyers to the municipality noted that as the municipality could only suspend a senior manager pending a disciplinary hearing, the ruling nullified it.
The municipality was then obliged to convene an urgent special council meeting to lift Penxa’s suspension and terminate the appointment of Nyathi as acting municipal manager.
Mayor Thershia Prince said Penxa was “still deemed to be suspended” until the council, which would need to lift the suspension, was “properly informed of the outcomes of the presiding officer”.
Penxa was appointed on contract in February 2021 and it is due to expire on November 8.
However, he has been suspended three times since February, facing a slew of allegations that ranged from misconduct to insubordination.
Penxa would not be drawn into the reasons behind the suspensions but welcomed the latest finding by the presiding officer.
“The allegations and the suspensions could damage my career. I challenged them to clear my name. I have done no wrong,“ he told the Weekend Argus.
Jacobs also found that the process followed by the municipality in the disciplinary process was flawed and in violation of the intention of the Financial Recovery Plan (FRP) implemented by the provincial government to get the municipality in a sound financial and governance position.
“To ensure the stability and the alignment of senior management changes to the implementation of the FRP, the appointment, suspension or any disciplinary action related to any director or appointee should take place after consulting the MEC for local government,“ read Jacob’s findings.
The report noted that in the minutes of the two meetings held by the council regarding the suspension and disciplinary action against senior managers, the officer could find no reference to that process being followed.
“Therefore I can only find that the process followed to date is not compliant with a contractual obligation, making the process unlawful.”
Nyathi’s extension of the time frames for the tabling to the council of a report prepared by an investigator probing the allegations against Penxa was also found to have been “unlawful”.
“What should have happened is that the report is taken to the council with an indication that it was not completed and consulting with the MEC on any extension.”
Beaufort West municipality’s speaker, Noel Constable confirmed that Penxa's contract would end on November 8.
“I really don’t see any reason for the municipality to respond to any queries regarding him,” he said.
Constable said a special council meeting would be held on November 10 to consider its options.
“For now it’s up to Penxa what he wants to do and how he wants to spend his time until 8 November.”
Constable said that Prince had informed all the municipality’s directors through an email that Nyathi remained the acting municipal manager until a decision was taken by council on Thursday next week.
“As a municipality, we are still looking at the papers of the presiding officer and consulting with lawyers,” said Constable.
A recent report on the intervention at the municipality found that the council remained in a financial crisis, a position that was confirmed by MEC for finance and economic opportunities, Mireille Wenger.
Wenger said while the municipality previously relied on an “overdraft” to cover its operating costs, it now depended on revenues from property rates and “intergovernmental transfers” to operate.