We have all witnessed the back and forth between ex-Mayor Retief Odendaal, the MBDA and NMBM as each of the combatants vigorously defend their positions around the legalities of re-hiring an ex-employee – such as Anela Qaba – who have recently been given a R3 Million Golden Handshake.
Basically Qaba says that he qualifies to be re-hired and Odendaal mouths words meaning; “Poppycock”.
The reasons for Qabas dismissal are murky to say the least – save that he was given a Golden Handshake to make the problem go away and that disciplinary procedures show that he was not found guilty of what he was accused of or any form of misconduct. Part of that ‘problem’ was the chaotic council processes that appointed two Municipal Managers at the same time!
That MISCONDUCT word is of great importance here as the local Government Municipal Systems Act, 2000 (Act No. 32 of 2000) when dealing with the re-employment of dismissed persons states that; “… a person dismissed for misconduct is prohibited from re-employment in any municipality for a period as set out in column 3 of Schedule 2 in respect of such category of misconduct calculated from the date of dismissal or conviction.”
Schedule 2 itemises 11 misconduct actions and periods ranging from 2 to 10 years.
So, my non lawyer view says that Qaba is free to continue employment at the MBDA as he was not found guilty of misconduct – only ACCUSED of misconduct.
Of course questions remain around just why Qaba would accept a position back at an institution that paid him to go away and why such an institution would court controversy by re-hiring an ex-employee. On moral grounds we find ourselves at a bit of an impasse, though.
In my limited experience we NEVER re-hired an ex-employee no matter what the reason for dismissal or resignation. Okay I realise that that standard operating procedure is a bit difficult when it comes to an institution employing thousands of people and having to make sure that senior managers vote a certain way!
- The first issue is the principle of whether the municipality can give an employee a multi-million rand severance package and then the following month re-employ that same individual.
- The second issue is the loss of respect that the re-hired employee will experience followed by public questioning of whether that re-hired employee has a right thinking moral compass should they effectively be screwing their former employer by accepting re-employment.
- The third issue is that such ‘questionable’ practices of re-hiring may open a can of worms with existing and former employees who may feel aggrieved at one ex-employee being granted a ‘special favour’.
- The fourth issue is that if we didn’t have such a combative council full of greedy politicians with no regard for citizens then maybe, just maybe they wouldn’t have appointed two Municipal Managers at the same time. FRANKLY – every single one of the councillors at the time should be held personally responsible for this highly embarrassing financial and reputational mess that we as a City find ourselves in.
Some more of the letters back and forth can be seen below:
MEMORANDUM
TO: CLLR GARY VAN NIEKERK, EXECUTIVE MAYOR, NELSON MANDELA BAY MUNICIPALITY (NMBM)
COPIED: CLLR BABALWA LOBISHE, DEPUTY EXECUTIVE MAYOR, NELSON MANDELA BAY MUNICIPALITY (NMBM)
FROM: GLENDA PERUMAL CHAIRPERSON, MBDA BOARD
18 JULY 2023
SUBJECT: RECRUITMENT PROCESS // CEO MBDA // NATIONAL TREASURY CONCERNS
Dear Executive Mayor
1. Your letter dated 17 July 2023.
2. As the Board, we appreciate the opportunity to be able to respond to this matter officially, especially following several articles published between the 14th and 16th July 2023, but more particularly the article published in the Weekend Post on Saturday 15 July 2023, around the recruitment of the MBDA CEO having implications on the withholding of the grant funding by National Treasury to the NMBM.
3. There are very serious and ill-informed allegations in the article and if left unattended, will have very negative and dire consequence for the entity, and hence the need to write this letter to yourself so that the entity may be able to assist in clarifying the facts.
4. As a start, Executive Mayor, I want to put it on record that this matter, including the letter from National Treasury has never been received by the MBDA Board previously until your correspondence late on the 17th of July 2023. This is the first time that the Board has been presented with an opportunity of engaging with this correspondence. We indicate this Executive Mayor to dispel this notion in the articles that the MBDA had previously been sent this letter from the National Treasury or is aware of such letter, whether directly or through the NMBM, that is questioning the appointment of the MBDA CEO.
5. Executive Mayor, whilst we don’t deal with all averments in the letter by National Treasury attached to your correspondence, as we are of the view that they are mostly directed at the City, failure to do should not be construed as admission thereof.
6. Executive Mayor, may we from the onset address this issue. The substance of the letter from National Treasury (and the articles in the newspapers) seems to be based on the false assumption held by or communicated to National Treasury, that the NMBM was responsible for the recruitment process for the position of the MBDA CEO. The fact is that the Appointing Authority for the MBDA CEO is the MBDA Board of the entity, as per section 93J of the Municipal Systems Act 32 of 2000 as amended read together with section 93 of the Municipal Finance Management Act 56 of 2003, and not the NMBM.
7. It is common cause that the Board of the MBD Ahas now concluded the recruitment and selection process. We want to assure you Executive Mayor that the Board conducted its due diligence in the process to ensure that there is no governance failure in this appointment. During the recruitment process, Mr Qaba was engaged about the termination of his employment with the NMBM and the circumstances around that. He submitted to the Board, through the panel, that he had been cleared by the disciplinary board on the allegations that were levelled against him that resulted into his suspension. He further indicated that as part of his settlement agreement with the City, all charges against him were withdrawn.
8. Executive Mayor, beforec onfirming his appointment the Board went as far as requesting a commitment from the candidate, Mr Qaba, to confirm that there is nothing in the settlement agreement with the NMBM, nor to his knowledge that would prohibit his appointment to this position. Mr Qaba in writing provided this assurance that there is none.
PERTINENT INFORMATION AS REQUESTED BY NATIONAL TREASURY
9. Executive Mayor, the MBDA Board is quite eager to bring this matter to finality and is also willing to assist the NMBM respond to National Treasury, and in doing so would like to respond to the issues raised in paragraph of the letter from National Treasury as follows:
a. “The City must provide more insight information in the form of reports on what caused Mr Anele Qaba’s suspension and how far the investigation as it relates to the allegations cited by the City. The information is key in understanding and guiding the City on how best the matter should have been handled”. – To our knowledge, and based on public reports, the Metro Council was seized with this matter and concluded on it. The NMBM is best placed to respond further on this.
b. “The City must provide information on the grounds for the golden handshake between the City and Mr Qaba”. – To our knowledge, and based on public reports, the Metro Council was seized with this matter and concluded on it. The NMBM is best placed to respond further on this.
c. “The City must provide information about Mr Qaba’s formal qualification and whether he complied with Municipal Regulations for minimum competence levels.” – The MBDA Board performed a proper due diligence in ensuring that the candidates in the recruitment process meet the necessary requirements as per the advert and applicable legislative provisions. The MBDA Board can confirm that Mr Qaba possesses the necessary formal qualification(s) required. Further, the MBDA appointed as part of the panel, the MBDA Audit Committee Chairperson, who is also the Chairperson of the NMBM Audit Committee, to provide expert advice during the recruitment and selection process. The advert requested the following as Essential Requirements of the CEO vacancy:
i. At least a bachelor’s degree or a relevant qualification registered on the National Qualifications Framework at a NQF level 7 with a minimum of 360 credits – Mr Qaba has a BTech qualification which is NQF 7.
ii. A Post Graduate qualification will be advantageous – Mr Qaba holds a Masters in Business Leadership (MBL) qualification at NQF 9.
iii. A certificate of minimum competencies from an accredited institution, and a person who does not meet the minimum competency level must attain that minimum competency level within 18 months from the date of appointment – Mr Qaba has provided evidence of completed unit standards and has 18 months to complete all outstanding units as per advert.
Over and above the information on Mr Qaba’s qualification, he holds several nationally recognised qualifications and industry certifications. Mr Qaba also has more than 8 years’ experience in executive management, including a several stints as Acting City Manager, making him more than suitably qualified for the role.
d. “The City must provide a council resolution for the appointment of Mr Anele Qaba as the CEO of the MBDA.” – The MBDA Board is the appointing authority in relation to the appointment of the CEO of the entity. No council resolution is required. Your attention is drawn to the provisions of section 93J of the Municipal Systems Act 32 of 2000 as amended read together with section 93 of the Municipal Finance Management Act 56 of 2003.
10. Executive Mayor we trust that this brings this matter to finality. Yours faithfully
_____________________
MS GLENDA PERUMAL
MBDA BOARD CHAIRPERSON
MBDA PRESS RELEASE:
MBDA’s comprehensively responds to the Nelson Mandela Bay Municipality.
Statement from MBDA Board Chairperson, Mrs Glenda Perumal.
19 July 2023, the Board of the MBDA has on Tuesday 18th July comprehensively responded to the matters raised by the Shareholder, the Nelson Mandela Bay Municipality in relation to the appointment of Mr Qaba to the position of MBDA Chief Executive Officer.
1. POWERS TO APPOINT A CEO OF A MUNICIPAL ENTITY.
The MBDA is a Municipal Entity governed by the Municipal systems Amendment Act and the Municipal Finance Management Act. Both pieces of legislation make it clear who must appoint the Accounting Officer of a Municipal Entity. These pieces of legislation guide the decisions and actions of the Board. Further, the entity operates with a Memorandum of Incorporation (MOI).
(i) Memorandum of Incorporation (MOI)
Clause 5.3.2 of the MOI specifically dictates that the directors of the company (the board) may from time to time appoint a suitable person to the office of chief executive officer for such period and on such terms as they may think fit. The appointment of a chief executive officer shall be determined at any meeting of directors where they shall determine his tenure of office as chief executive officer.
(ii) Municipal Systems Amendment Act
Section 93 J of the Municipal systems Amendment Act reads as follows:
“(1) the board of directors of a municipal entity must appoint a chief executive officer of the municipal entity.
(2) the chief executive officer of a municipal entity is accountable to the board of directors for the management of the municipal entity.”
It is therefore clear that the MBDA Board acted within the prescripts of the law and its delegated power to appoint a CEO. Odendaal continues to peddle lies that the MBDA was warned not to appoint Qaba and has yet to provide any evidence of such.
2. SUSPENSION AND EVENTUAL SETTLEMENT WITH MR QABA BY THE NMBM.
It is public knowledge that the former Executive Mayor Retief Odendaal oversaw the process that led to him tabling an item in Council to settle with Mr Qaba after the NMBM Disciplinary Board had cleared Qaba of any wrongdoing.
Councillor Odendaal, had he felt obliged to advise Council of any grounds in the settlement agreement that would prevent Mr Qaba from assuming any further employment within the Municipality or its Entity, should have done so.
Councillor Odendaal is diverting attention from his failure to ensure, if it was necessary that such preventative clauses were inserted in Mr Qaba’s settlement and communicated to the Entity. The Board is satisfied that all due diligence was performed during the recruitment process.
Councillor Odendaal must account to the ratepayers of the Metro for his inaction as Executive Mayor because it appears that he may have misled Council when he tabled the item to settle with Mr Qaba.
3. SUITABILITY OF MR QABA FOR THE POSITION OF CEO.
The Board is satisfied that Mr Qaba met all the requirements of the job and exceeded them. It must be noted that Mr Qaba during his stint as Executive Director and Acting City Manager, was responsible for the affairs of the MBDA. The entity reported into the City through Mr Qaba.
The CEO recruitment advert requested the following as Essential Requirements of the CEO vacancy:
i. At least a bachelor’s degree or a relevant qualification registered on the National Qualifications Framework at a NQF level 7 with a minimum of 360 credits – Mr Qaba has a BTech qualification which is NQF 7.
ii. A Post Graduate qualification will be advantageous – Mr Qaba holds a Masters in Business Leadership (MBL) qualification at NQF 9.
iii. A certificate of minimum competencies from an accredited institution, and a person who does not meet the minimum competency level must attain that minimum competency level within 18 months from the date of appointment – Mr Qaba has provided evidence of completed unit standards and has 18 months to complete all outstanding units as per advert.
Over and above the information on Mr Qaba’s qualification, he holds several international and nationally recognised qualifications and industry certifications.
Further, the MBDA appointed as part of the panel, the MBDA Audit Committee Chairperson to make sure that there were no governance gaps in the process.
4. PERFORMANCE OF THE MBDA.
Councillor Odendaal appointed the current Board in November 2022, and since then, the Board had several engagements with the former Mayor, and he was pleased with the trajectory the new Board was taking.
At no point during interactions with the former Mayor did he raise the concerns he is reported to be putting up now. Contrary, Councillor Odendaal leaned on the MBDA during his tenure on several occasions, matters which this Board is currently investigating. Had Councillor Odendaal felt the MBDA was not up to task, then it is bewildering to understand why he did nothing during his tenure, a mere two months ago.
The Board is not wasting any more time on this matter and is currently focused on the full implementation of its five-year plan which is contained in the Municipal IDP championed and supported by the former Mayor.
Through initiatives led by thy this Board, the MBDA is poised to double its Budget Performance for the year that ended in June 2023 and simultaneously achieve an estimated 80% of its Key Performance Indicators. It is this Board that handed over a Clean Audit report to the NMBM and one which the former Mayor wrote a glowing foreword.
5. WITHHOLDING OF FUNDS.
The instruction given by the former Mayor to the City Manager is tantamount to illegal action as the City Manager cannot overturn a Council approved Service Delivery Agreement without valid reasons. The city has a functioning Political Leadership including the Executive Mayor, and a Deputy Executive Mayor who has the oversight responsibility over the MBDA. Councillor Odendaal must not drag the MBDA through the mud for political expediency and relevance.
It will be interesting if the City Manager or any official of the Municipality will adhere to Councillor Odendaal’s instruction, as that will tell who exactly is in charge at City Hall. Is it Retief Odendaal or the Executive Mayor and his current political leadership.
It appears that this prolonged political campaign by Odendaal is more personal than legal or for the interest of the city.
The Board has noted the continuous threats by Retief Odendaal to go after Board Members on their personal capacity due to the decisions they have made for the benefit of the entity. We are looking forward to dealing with such threats in a legal platform, and we reserve all our rights. As a warning, he must ensure that he has all the legal facts pertaining to this matter, not just unfounded allegations that cannot be tested in any formal platform.
Related Thread: AQaffair
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