A bloody nose for Makhado's ANC caucus

By Anton van Zyl and Kaizer Nengovhela

The ANC caucus in the Makhado Municipality suffered yet another humiliating court defeat earlier this week when the High Court set aside the caucus’s decision to ignore the recommendations of a selection committee and to deploy its “own” candidate as chief financial officer (CFO).

Judge MS Sikhwari, an acting judge in the Limpopo Division of the High Court, delivered his ruling on Tuesday. He was tasked with considering a review application brought by the municipality’s legal team. The review application concerned numerous technical issues that were raised.

The case stems from a decision by the Makhado Municipal Council in August last year to appoint Ms Mulatwa Thangavhuelelo as its new CFO. She was (and still is) the Vhembe District Municipality’s CFO. The municipality’s own selection panel, however, recommended that Mr Godfrey Raliphada be appointed. Raliphada, who served as acting CFO in the Makhado municipality for some time, scored the highest in the evaluation process.

Shortly after the council decision was taken, Raliphada approached the High Court, asking it to set aside this “irrational” decision. In his court papers, he described the process as another example of cadre deployment. He also hinted that corrupt politicians were involved in the process, with their own ulterior motives for wanting to appoint a specific candidate. Raliphada was removed as acting CFO shortly after he had filed the court papers.

On 19 September, the court ordered the municipality to stop the process of appointing a new CFO immediately. It also ordered the parties to file documentation, including the necessary replying affidavits, before certain dates. The return date for the interdict was set at 1 December.

During a rather chaotic council meeting on 21 September, Raliphada was reinstated as acting CFO for three months. The decision to appoint him in this capacity was supported by a faction within the ANC that seemingly ignored the instructions from, among others, the ANC’s Chief Whip to boycott the council meeting.

The case was heard in the High Court in Polokwane on 1 December, but no ruling was made. Instead, the parties had to wait until 6 February for Judge Sikhwari to decide on the matters raised by the respondents.

From the court ruling one can clearly see the respondents, which include the council, the mayor, the Chief Whip and the municipal manager, tried to avoid debating the issues at hand but rather to focus on technicalities. “The respondent contended that this court has no jurisdiction to entertain the application as the nature of the dispute falls within the scope of labour law; and therefore, this matter should have been referred to the labour forums like Bargaining Council and/or the Labor Court,” said Judge Sikhwari. The argument raised by the respondents was that the case is about unfair gender discrimination and should be handled by the appropriate forum, which is not the High Court.

Judge Sikhwari, however, did not agree and pointed out that the case is about irrational administrative actions, rather than unfair or gender discrimination. “The gender issue is not even the most prominent one. The prominent complaint of the applicant is that the Council of Makhado Local Municipality has failed to implement the recommendation of the panel on the suitable candidate for the position of the CFO without rational explanation or [any] explanation at all in the circumstances where the said Council had no right to do so; thereby acting irrationally, unreasonably, and in conflict with the law,” the ruling reads.

The judge dismissed several matters raised, such as that Raliphada did not have the appropriate NQF 8 academic qualification (the equivalent of a master’s degree). He concluded that the council of the municipality took a decision “without observing principles of the law and fairness to the parties as well as fairness of the process itself. It borders on acting ultra vires simply because power to appoint a CFO has been bestowed on Council”.

Judge Sikhwari granted a cost order for two counsel (legal advisers) against the first six respondents.

Tuesday’s court ruling was welcomed by opposition political parties as well as labour union representatives. To view the judgement, click here.

The chairperson of the EFF in Vhembe, Adv Tshifhiwa Matodzi, said the decision to appoint Ms. Mulatwa Thangavhuelelo as CFO was not supported by many of the ANC members in the council. He believed some ANC councillors had only voted in favour of this resolution out of fear of being expelled. “The decision or judgment here is to confirm that the administration of the ANC was wrong, causing the council members to undermine the interview score and consider a candidate who was not successful and ignore a successful candidate. It is a clear indication of maladministration and corruption by the ANC government,” he said.

Matodzi added that the ANC must stop challenging court orders and abusing public funds. “They must just accept that their corrupt plan failed. We are glad and very happy. Prospects of supporting Raliphada to win this matter were high. This outcome will set a pure precedent that the Municipal Council in the future should consider recommendations from the panel,” he said.

The chairperson of IMATU, Mr Mpho Mulaudzi, said his organisation could not wait for the council to convene a special council meeting to appoint Raliphada as the permanent CFO. “We welcome the High Court’s decision to pluck the feathers of those who undermine and don’t consider a panel’s recommendations. This victory goes to our fellow employees who stood firm and courageous throughout the process,” he said.

SAMWU Secretary Mr Tsanwani Raduvha said Raliphada was the right person for the job. “He was acting in the position for many years and the municipality was performing well,” he said. Raduvha said that SAMWU would like to see Raliphada get appointed as soon as possible. “They [council] must now pay the costs as per judgment, and no municipal funds should be used to pay their costs,” he said.

A Democratic Alliance (DA) councillor in Makhado Municipality, Ms. Glenda Furumela, said they welcomed the court ruling. “We are excited to know that the legal system in our country is still there to protect individuals who are marginalised by the ANC. We are demanding a special council meeting to officially appoint Raliphada as CFO of the Makhado Municipality. The appointment of a CFO is long overdue, as Raliphada has been acting for over two years. His urgent appointment will have a positive impact on service delivery and audit opinion,” she said.

Furumela said the DA had stated their concerns regarding the misuse of money supposed to be channelled into service delivery. “We are now saying that, as per the agreement that if the CFO loses the case, he was expected to pay the legal fees, the DA is now demanding that all members of the council who opposed the appointment of the CFO must pay the legal fees back.”

Date:09 February 2024

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