Legal opinion sought by the department of human settlements, water & sanitation has found that three top managers were irregularly appointed on inflated salaries and had their employment contracts illegally renewed — and that former minister Lindiwe Sisulu carries much of the blame.
CFO Funani Matlatsi and two deputy directors-general (DDGs) — Neville Chainee and Joseph Leshabane — were effectively fired by the department's new minister, Mmamoloko Kubayi, in a week of high drama after she sought legal opinion on the nature of their appointments.
She instructed them to stay at home and not return until their initial contracts run out. She is refusing to honour their extended contracts.
It is understood that the aggrieved officials are contemplating court action to challenge the minister’s decision.
Kubayi sought legal advice from the office of the state attorney, which briefed advocate Taki Madima SC on the alleged irregular appointments of the three top officials, plus the appointment of another eight public liaison officers who were converted into permanent employees.
The minister sought advice on whether the cabinet could approve or condone the appointments of the DDGs in question, who were remunerated above salary levels offered to other officials in similar positions.
The legal opinion found that their appointments were irregular as the posts were not advertised, interviews were not concluded, and the cabinet was not consulted and did not concur as required by law when such top posts are filled.
Responding to questions from the Sunday Times on Friday, the department said Kubayi had been alerted by whistleblowers to the problematic appointments, hence the decision to seek legal opinion. This found that public service prescriptions were not followed when the three were hired and when their contracts were extended.
It was decided by the minister that the colleagues will conclude their current contracts. However, their renewed contracts will not be implemented
— Department of human settlements, water & sanitation
“It was indeed decided by the minister that the colleagues will conclude their current contracts, which are at different stages. However, their renewed contracts will not be implemented.
A process will be initiated that complies with the public service regulations and the colleagues were encouraged to apply as well,” said the department.
Chainee, who was responsible for human settlements planning and strategy, was appointed on an initial five-year contract, which ran from April 2015 until March 2020. He had been transferred from the Ekurhuleni municipality on Sisulu’s instruction.
In October 2019, Sisulu instructed that his contract be extended by a further three years to March 2023. Chainee joined the department on a package of R1.8m a year, which at the time was the top notch of salary level 16, the remuneration level of directors-general (DGs).
Leshabane, who was responsible for project and programme management, was appointed in January 2017 on a package of R1.7m a year, which is a lower notch of salary level 16. In February this year, Sisulu directed that his contract be extended by a further three years. The contract extension came with a salary bump to just under R2.1m.
Matlatsi was appointed in March 2017 as CFO on a five-year contract which was due to expire in February 2022, on a salary of R1.4m, which was then a lower notch of salary level 16.
Her contract was extended in May 2021 but would only take effect in March 2022, a month after her initial contract was to have expired. The extension came with a salary bump to R1.9m.
The three worked for human settlements previously, but left for other jobs before being recruited back by Sisulu.
In the legal opinion, Madima found that apart from their posts never having been advertised and the cabinet consulted, the appointments of Leshabane and Motlatsi were concluded with the acting DG Mbulelo Tshangana instead of the minister as required by law, which effectively rendered them irregular.
Chainee’s employment contract was not made available to Madima, but he concluded that the same process was followed.
“The fundamental compulsory element is, of course, that the minister must have appointed the DDGs. They were not. They were appointed by an acting DG. Accordingly, their appointments do not comply with the necessary statutory prescript and are not regular,” the legal opinion found.
All three officials refused to comment when contacted on Friday.
Madima also found that the request for the minister to seek condonation of the non-compliance with the law in terms of the appointments, or to regularise them, would be unlawful as the Public Service Act did not make provision for this. He said any attempts to do this would be open to a legal challenge.
“The DDGs were not appointed by the minister as required and that, in my view, is the end of the inquiry into whether they were irregular — that single act of non-compliance is sufficient to render, in and of itself, the appointments irregular, and such non-compliance cannot be condoned to ‘regularise’ them,” he further found.
He advised the department to seek an order from the labour court setting aside the appointments.
The department refused to comment on the higher salary scales the three officials enjoyed for years, but said “relevant departments” were investigating the matter.'
Sisulu's spokesperson, Steve Motale, said Sisulu would acquaint herself with the outcome of the legal opinion.
"The culture of good governance is that the minister will consult a colleague on issues that she belives need the attention of a minister, in the same way that minister Sisulu intends to engage minister Kubayi on the corruption report against her from the Public Service Commission.
"When she has been engaged, then the media will be engaged. This is the culture of good governance that is captured in ANC ethos," he said.
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