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Tshwane city manager Johann Mettler has hit back at the Tshwane council which adopted a report that recommended that he could have a case to answer on various misconduct allegations.
Mettler was on June 27 given seven days to respond and convince council why he should not be suspended.
Through his representative, Solidarity, Mettler declared from the onset that the contemplated suspension was unlawful and borderline premeditated.
“The fundamental defect in the present process is not one of form but of substance. Properly construed, the notice and the accompanying council resolutions reveal that council has already resolved to suspend the municipal manager before affording him an opportunity to make representations.”
He continued to pour cold water on this process, saying the regulation used by the council to arrive at this juncture has not been properly followed, referring to the language used as “unequivocal”.
“Regulation 6(2) does not contemplate such a process. It requires council first to form only a provisional intention to suspend and thereafter to afford the affected senior manager a genuine opportunity to persuade it that suspension is neither necessary nor justified.”
The city manager’s lawyers rubbished the process that Mettler has been subjected to, claiming that the council’s own document and recommendations paint a picture of a precautionary suspension pending the outcome of an investigation,
The subsequent invitation to make representations is deceptive as there has already been an expression of a concluded decision, they said.
“A decision-maker cannot lawfully invite representations whilst simultaneously communicating that the very decision upon which those representations are intended to bear has already been taken. Regulation 6 requires that a senior manager be afforded a genuine pre-decision opportunity to make representations before any suspension decision is taken.”
The Solidarity legal team referred to two previous judgments where courts held that the value of inviting representations is negated if they are not genuinely considered and if the decision-maker has effectively predetermined the outcome.
The notice remains materially defective because it fails to disclose the factual foundation necessary to justify either the contemplated suspension or meaningful representations.
— Solidarity
“Accordingly, where a notice or resolution demonstrates that council has already in substance decided to suspend before considering the employee’s representations, the process falls foul of regulation and is unlawful.”
Despite Mettler’s accusation that council had already established a predetermined outcome, he believes that the notice served to him does not disclose a legally sufficient case.
“The notice remains materially defective because it fails to disclose the factual foundation necessary to justify either the contemplated suspension or meaningful representations.”
The notice, which the Sunday Times has seen, lists 13 categories of alleged misconduct and Mettler also stands accused of bringing the municipality into disrepute.
The allegations include a failure to implement binding Public Protector remedial action and presiding over irregular and unlawful recruitment and appointment processes.
The city manager has also had fingers pointed at him for allegedly having authorised appointments to positions that did not exist on the approved municipal organisational structure and failing to maintain effective administrative control over the municipality.
He also stands accused of withholding material information from the council and the mayoral committee, failing to institute consequence management, as well as exposing the municipality to significant financial loss and liability.
Despite the litany of charges, Mettler’s legal team dismissed them as containing little more than general conclusions.
“It fails, in most instances, to identify the particular conduct attributed to our member, the dates upon which such conduct allegedly occurred, the statutory or contractual duties said to have been breached, the documents relied upon, the officials involved, or the factual basis upon which council concluded that misconduct had been committed.”
Solidarity maintained that the issue is not whether Mettler understands the broad themes underlying the allegations. Instead, they argue that the focal point is that he has not been informed of the factual case that he is required to defend himself on.
“A senior manager cannot reasonably be expected to respond to allegations expressed in broad and abstract language whilst being left to speculate about the specific incidents upon which council relies.
“The notice in the present matter suffers precisely from those defects. It catalogues allegations but does not disclose the factual substratum upon which they are founded. As a consequence, the statutory right to make meaningful representations is materially compromised.”
Solidarity also hit back at the municipality for misinterpreting the regulation relied upon, saying it does not permit precautionary suspension merely on the basis of allegations of misconduct.
According to their interpretation, the regulation imposes two distinct jurisdictional requirements.
“First, there must exist allegations of misconduct which are supported by an objectively sustainable factual foundation. Second, council must have reason to believe that the senior manager’s continued presence at work is likely to jeopardise the investigation, interfere with witnesses, endanger persons or municipal property, destabilise the municipality or result in further misconduct.”
In addition, the legal team said procedural fairness requires that an affected official be given sufficient information to understand the case in order to be able to mount a defence.
“If council relied upon reports, forensic investigations, Public Protector findings, SIU material, legal opinions, memoranda, recruitment documentation or any other evidential material, fairness required that the substance of such material be disclosed before calling upon our member to make representations.
“Without such disclosure, the statutory opportunity to respond is reduced to little more than speculation.”
The mayoral committee is expected to meet on Tuesday and this publication understands that this matter will be discussed as part of that meeting.
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