Court rules Makhado municipal CFO’s appointment is unfair
The Limpopo High Court in Polokwane has set aside a decision by the Makhado municipality to ignore the recommendation of a selection panel. The municipality had instead chosen to appoint the second-highest scoring candidate as its chief financial officer (CFO).
Acting judge Sydwell Sikhwari ruled that the decision taken by the council in August 2023 to appoint Mulatwa Thangavhuelelo as CFO was unlawful, unreasonable and procedurally unfair. The judge ordered the municipal respondents to pay the costs.
The case came before the court in an application by Godfrey Raliphada, the overlooked, top-scoring candidate.
In response, lawyers for the municipality raised technical points. They argued that the court had no jurisdiction to entertain the application and it should be referred to labour bargaining forums or the Labour court. They said Raliphada’s case was about unfair discrimination on the basis of his gender he was overlooked for the position simply because he was a man and as such he should have invoked the Employment Equity Act. They also submitted that the employment was not an administrative action, which could be reviewed by a court.
Judge Sikwari, however, disagreed.
He said the allegation of unfair gender discrimination was just one of many complaints, the most prominent being that the council had ignored the selection panel’s recommendation without rational explanation or any explanation at all, when it had no right to do so.
“This court is satisfied that it does have jurisdiction to hear the review,” he said.
On the merits, he said most issues were common cause.
In the interview process, Raliphada had scored the highest, with 86%, and Thangavhuelelo the second highest, with 69%. In a competency test, both candidates were found to be competent, though Thangavhuelelo scored higher in that round.
The selection panel was unequivocally clear that Raliphada was the most suitable candidate.
It was also common cause that he had been acting in the CFO position, during which time the municipality had obtained unqualified audits for three successive years.
The judge said Raliphada had submitted that he had brought financial stability to the municipality, whereas Thangavhuelelo, who was the CFO at the Vhembe District Municipality, had never obtained an unqualified audit during her tenure there.
Judge Sikwari said that the council had not submitted its reasons for having disregarded the recommendation of the selection panel.
“The records show that the council appointed her and mentions that she is a female candidate. It is not clear if this played a role or not in influencing the decision. But the total disregard of the selection panel’s recommendation was prejudicial to the applicant and a disregard of the law and the constitution.
“It shows an indication on the part of the council to take decisions they wish without observing principles of law and fairness to parties, as well as fairness of the process itself,” he said.
Regarding submission by the municipality that Raliphada did not possess an NQF 8 qualification, the judge said this was also not a sound reason to disregard the selection panel’s recommendation.
“If this was so, then the council should have spelt it out in the minutes of the meeting,” he said, noting that the applicant had, in law, 18 months to obtain the qualification.
In 2023, the council’s decision to overlook Raliphada sparked protests by Makhado municipal workers affiliated to the SA Municipal Workers’ Union (Samwu) and Independent Municipal Allied Trade Union (Imatu).
The unions protested outside the mayor’s office demanding answers. Samwu and Imatu therefore welcomed the court decision.
“We have long said Raliphada is the rightful person to take up the position of Makhado municipality CFO by virtue of performing well in the interview and performing well while he was acting,” said Raymond Raduvha, Makhado secretary of Samwu. Imatu chair Emmanuel Mpho Mulaudzi Khorommbi said the court set a good precedent that the rule of law must be applied. This should be an eye opener. Politicians should stay away from administration work.