Payout for senior official after suspension bungle

Bargaining Council rules that Bay municipality violated disciplinary procedures

A senior budget and treasury director will receive an early bonus this month after the municipality’s inability to defend accusations of unfair labour practice when it placed him on precautionary suspension.

Nelson Mandela Bay budget and treasury director Mnikeli “Jackson” Ngcelwane took his employer to the SA Local Government Bargaining Council after he was evicted from his office after a precautionary suspension that dragged on for months, violating the terms of the collective agreement.

He was suspended on allegations that he had a corrupt relationship with a supplier that resulted in potential financial losses for the municipality.

However, while the municipality confirmed that the investigation into Ngcelwane was ongoing, he will be getting an early payday after the bargaining council ruled he should be paid a month’s salary totalling R124,000 in April.

According to council commissioner Mandlenkosi Mini, the municipality violated disciplinary procedures by not confirming the status of Ngcelwane’s employment after he made submissions on why he should not be suspended.

Instead, he was evicted from his office for months, not knowing his status.

Ngcelwane also argued at the council that, being one step away from being an executive director, the suspension had prejudiced him because it had tainted his record as this was a matter that had to be disclosed on his CV.

Ngcelwane told The Herald he was yet to get clarity on the matter.

“Besides the vague charge sheet which was issued to me on November 20 2023, [accusing] me of fostering corrupt relations with the service provider whom I don’t know at all, nothing was ever clarified or no new charges were issued or responses to my reminders.”

Nelson Mandela Bay communications director Sithembiso Soyaya said the investigation was still ongoing.

He, however, refused to disclose information on the said service provider, whose name is known to The Herald.

“We request that we allow the investigation to proceed and conclude before speculating any further on the matter,” Soyaya said.

On November 9, the city’s chief operations officer Christopher Dyani, who was acting city manager at the time, wrote to Ngcelwane informing him that allegations of gross misconduct had been levelled against him.

Dyani instructed Ngcelwane to vacate his office and also provide a written submission detailing why he should not be placed on suspension.

“You are required to vacate with immediate effect in terms of clause 16.3 of the disciplinary procedure agreement and not report for duty, pending my decision to suspend you or not,” Dyani stated.

According to Dyani’s correspondence, allegations that Ngcelwane had fostered a dishonest and corrupt relationship with a service provider had come to light.

It was revealed in the bargaining council agreement that these allegations were made by a whistleblower who had approached the mayor’s office.

A report by investigators stated that Ngcelwane had been accused of paying an amount of R16m to a contractor despite being advised by the audit department that no services had been rendered.

In a letter sent on November 14, Ngcelwane argued that to defend the allegations against him, he needed more information.

“Please be reminded that there are too many businesses in SA with the [same] name who do business with the municipality or any organ of state,” he wrote.

“Your allegations lack clarity in as far as the above is concerned and I am unable to make assumptions that may jeopardise me in responding to your correspondence.”

He said that similar attempts had been made in 2022 to charge and suspend him, unsuccessfully, because of an equally bungled investigation.

However, no further correspondence was provided to Ngcelwane, who in two letters stated that this violated the disciplinary procedure collective agreement.

Clause 16.3 of the collective agreement for cautionary suspension states that the municipality shall make a determination within five days as to whether the employee concerned shall be suspended or not.

In January this year, Luvuyo Magalela, who had become acting city manager, instructed corporate services to inform Ngcelwane to return to work.

This was after the matter had already been escalated to the bargaining council.

Legal advice by McWilliams and Elliot Incorporated which looked into the circumstances around Ngcelwane’s suspension concluded that the process had been flawed.

It also recommended that the independent investigation be concluded urgently.

“The NMBM should act in accordance with recommendations made by Messers Kuban Chetty Inc once the investigation is concluded, and their report is available,” the opinion read.

The report stated that on November 5 2023, a whistleblower alleged that Ngcelwane had authorised payments to the said supplier totalling R16m while no services had been rendered.

The report also stated that an internal audit unit submitted another report to the city manager in December which concluded that there was a relationship with a disclosed contractor however, the cited amount was R1.6m.

“There were payments of about R1.6m made which were made out to [a contractor] in 2012, the same time that Ngcelwane had sold his house,” the extract read.

Last month, commissioner Mini at the SA Local Government Bargaining Council found indeed that the municipality had violated the labour agreement and instructed it to pay one month’s salary to Ngcelwane.

The municipality violated disciplinary procedures by not confirming the status of Ngcelwane’s employment after he made submissions on why he should not be suspended