22 May 2019

South Africa: Tshwane Municipality 'Irregularly' Paid for City Manager's Legal Fees in Glad Africa Report Dispute

The City of Tshwane picked up the tab for its embattled municipal manager, Moeketsi Mosola's legal fees when he wanted to interdict the release of a report showing irregularities in the awarding of the GladAfrica tender, News24 can reveal.

That the municipality has covered Mosola's fees in the case against it has been something of an open secret for some time. But News24 can for the first time reveal that this was confirmed in writing in internal municipal communication.

There is fierce disagreement among senior municipal officials over the legality of the assistance provided to Mosola. There is even fiercer disagreement over the ethics of the issue, given that it was Mosola who took the City to court of his own volition.

The case is central to the fight over whether Mosola should keep his job. His detractors have tried to have him suspended because of his role in signing off the Glad Africa project management tender, which was found by the Auditor-General to be irregular.

Law firm Bowmans was appointed to probe the Glad Africa tender last year, and found there were irregularities in the procurement process.

But before that report could be tabled in the Tshwane council, Mosola obtained an interdict in the Labour Court stopping its release, in October 2018.

At issue was whether former mayor Solly Msimanga, the City and the Speaker of the Council had taken the correct technical and procedural steps in their efforts to have Mosola suspended over his role in approving the Glad Africa tender.

Only the city council can suspend the City Manager, and so the tabling of the Bowman's report in Council was important for those who wanted to remove him.

Correspondence seen by News24 illustrates how a legal advisor in Msimanga's office questioned whether it was proper for the municipality to pay Mosola's legal fees last year, and again in February this year. Mosola has been using the services of private Johannesburg-based law firm, Leslie Cohen & Associates.

The correspondence shows that the advisor wrote to Marna Kock, Tshwane's Group Head for Legal Services and Lorette Tredoux, Governance and Support Officer, in October 2018, asking whether Mosola was receiving legal assistance from the municipality.

Kock responded saying that, as Chief Legal Counsel at the municipality, she had decided to grant Mosola legal assistance in terms of Section 109a of the Municipal Systems Act. That section says that a municipality may provide assistance to an employee if action has been taken against them over something that occurred during the course of their duties. Legal assistance can also be provided to an employee if they are summoned to an inquest or inquiry stemming from the performance of their duties.

But the advisor disagreed with Kock, and said that the legal assistance to Mosola fell outside the scope of that section, and was "irregular and unlawful".

"No legal proceedings have been instituted against (Mosola) nor has he been summoned to attend any inquests or inquiry. In fact, (Mosola) is acting in his personal capacity for private purposes against the City ... all expenses paid in this regard will constitute irregular expenditure," the advisor warned.

In February, he further warned that there was a raft of statutory, regulatory provisions and labour agreements, which he explained in detail to Kock, showing that the City Manager did not qualify for legal assistance.

He wrote: "Disciplinary matters do not fall under the proceedings as envisaged by Section 109a. It would in fact lead to an absurdity if every employee against whom disciplinary investigations and procedures are instituted is entitled to City legal aid/assistance/representation."

Kock replied that any concerns over the exercise of her duties should be taken up with Mosola and Tredoux and that she reserved her rights, in the event that the email exchange was used in any future disciplinary action against her.

News24 was reliably informed that the municipality had a budget of R66 million for legal fees for the 2018/19 financial year, as of June 2018. At the time of writing, the municipality had spent about R61 million of this budget.

It is not clear how much of this pertains to Mosola's own legal costs. As is the case with most municipalities, Tshwane is involved in several other legal disputes, including one over the controversial Peu Smart Meter systems - a dispute which began in the previous administration but was only resolved in court late last year.

There has been no final judgment in Labour Court case, and News24 was reliably informed that the parties are in talks to possibly reach an out-of-court settlement. The municipality did not respond to a formal request for an update on the case.

In response to an SMS asking whether settlement talks were underway, Tshwane Mayor Stevens Mokgalapa said: "Receiving legal opinion and legal advice".

The Tshwane municipality had not responded by the time of publication. This article will be updated to reflect its response once it has been received.

Source: News24

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