Home | News | LAWYERS: PHIWAYINKHOSI EXCEEDED POWERS IN MHLONGO’S CONTRACT

LAWYERS: PHIWAYINKHOSI EXCEEDED POWERS IN MHLONGO’S CONTRACT

11/11/2018 05:15:00 BY WELCOME DLAMINI

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MBABANE – Has the Mbabane Municipal Council CEO’s contractual saga taken a new twist?

This follows a legal opinion sought from Robinson & Bertram by the council to interpret a ministerial directive issued by the erstwhile minister of Housing and Urban Development Phiwayinkhosi Mendi Mcambi Mabuza on July 25, compelling the institution to renew Chief Executive Officer (CEO) Gideon Mhlongo’s contract.

He said his directive was based on the council’s refusal to renew the contract which was due to expire on July 31, 2018. Just over three months later, the legal opinion, although officially received mid last month (October 17), to be precise, had still not been debated until two days ago.
The document, which had been shown to this publication, is dated August 10, but was received by council 67 days later.

DIRECTICE MADE JULY
The former minister, who lost out on the elections to incumbent Speaker of the House of Assembly and Mhlambanyatsi MP Petros Mavimbela, made the directive in July, some few weeks before Mhlongo’s contract expired.
His decision to grant him a five-year contract extension was based on the fact that the council had refused to do so. Upon receiving the letter from the minister, the council, chaired by Mayor Zephaniah Nkambule, resolved to seek a legal opinion on the matter on August 1.

The opinion was frank in stating that the minister exceeded his powers when he ordered the renewal of the CEO’s contract, because Section 48 (1) of the Urban Act conferred those powers to the Council. While the opinion did observe that the CEO might have had valid claims to have his contract renewed when issues of performance were to be considered, it still felt that Mhlongo could have been allowed to enforce his rights, either through a declaratory order in court or through some other structures. In justifying their assertion that the minister exceeded his powers, the law firm brought to the foe the 2007 Appeals’ Court judgment in the matter between the Prime Minister vs. MPD Marketing Suppliers, when the former issued a directive banning the latter from participating in any government and parastatals tenders.

“When exercising the powers conferred on him by the Act, the minister must observe the principle of legality. This means that he may not exercise powers and perform no function beyond that which is conferred to him by the legislation,” reads part of the legal opinion.
The lawyers felt that while the actions of the minister to issue the directive might have been noble by nature, he exceeded his powers and that the proper way of dealing with the matter would have been to give the council an ultimatum to act within a specific time.

It went on to advise that failure by the council to do so, would have been done by way of censure on the council with the contractual issue pursued in court by Mhlongo, where the lawyers felt he had sufficient ground to succeed, given the expectations attached to the renewal of his contract.

The lawyers said the council was not wrong to write to the minister notifying him that they were not renewing the contract.
However, they felt that the notification by the council went further than that and solicit support and or approval.
“It is in that connection that the minister then proffered his views,” the opinion said.

While the lawyers agreed with the minister’s decision to extend the CEO’s contract, they said they did not agree with the decision to direct council to do so, but would have preferred that he only advised them.
Mayor Nkambule, when quizzed on the legal opinion, could only say council was due to meet and deliberate over it last Friday.

IGNORED QUESTIONS
He did not want to entertain further questions regarding the delay in tabling the report given its date of writing and receipt. He also opted to ignore questions on whether council eventually signed a contract for Mhlongo after the ministerial directive.
“We have received it and we are going to discuss it tonight. I am going to the office to see its contents and can only take it from there. I cannot comment further until after we have discussed it,” Nkambule said.

There is a growing concern among councillors that the tabling of the legal opinion is being deliberately delayed by the Mayor, given that the letter from the lawyers is dated August 10, but was officially received at council on October 17.
When questioned on the matter, Municipal Council of Mbabane Information and Public Relations Officer Lucky Tsabedze said the mayor had not informed the CEO about the findings of the legal opinion since it had not been presented to council.
“As stated above, I am not aware of the contents, so am not in a position to comment on the opinion,” he said.

When responding to the concerns by some councillors that the legal opinion was being deliberately delayed by the mayor, he said the matter had been slated for discussion at the end of last month’s Council in Committee, but could not be debated. He said the reason was because council lawyers were out of the country on the said day.

“The mayor has been seeking a suitable date when the attorneys can present the legal opinion. The mayor has no reason to deliberately delay the presentation of the opinion, as he wishes to focus council on the preparation of its Integrated Development Plan and budget, which are important to the people of Mbabane,” he said.

Tsabedze also disclosed that Mhlongo has an employment contract with council, subsequent to the council resolution to renew his contract of employment in line with the Minister’s directive.
Meanwhile, sources at council have disclosed that the issue regarding the delayed tabling of the legal opinion has taken centre-stage lately in the institution. What fuelled it over were the recent suspensions of four councillors for allegedly lobbying parliamentarians from the previous government on the protracted CEO contract in June.

Last week, a source disclosed that councillors had demanded that the mayor should bring the legal opinion up for deliberation.
This was after one councillor had questioned the mayor on the legality of having the CEO working without a written contract, save for the ministerial directive extending his contract by five years.
One councillor, speaking on condition of anonymity, said they were worried about the delay in getting the legal opinion tabled.

“We know that it was long released, but we are shocked as to why it has not been discussed. However, we have heard that it vindicated the council’s decision not to renew,” said the councillor. Former senator and outspoken Mbabane businessman Walter Phillip Bennett also had his voice in the whole legal opinion issue, where he punched holes at how the Mayor Nkambule applied himself in the whole issue.