eThekwini council must act against Gumede
The lack of any form of oversight undertaken by the eThekwini Metro against the criminally charged Mayor Zandile Gumede and her co-accused, is an insult to city residents and if action is not taken soon OUTA will explore legal recourse to hold the eThekwini council to account.
The Organisation Undoing Tax Abuse (OUTA) has written to the city’s members of the Executive Committee on 1 July 2019 and informed them that if they do not act, it will amount to a dereliction of duty and that OUTA reserves the right to approach and exercise its rights in all legal forum for the community’s best interests to prevail.
OUTA provincial manager Tim Tyrrell said there is a substantial body of evidence in both the public and private domain to suggest that Gumede and co-accused executive committee councillor Mondli Mthembu have breached the Code of Conduct for Councillors, as set out in the Municipal Systems Act, Schedule 1, paragraph 11.
“The Speaker and the Council have a legislative duty to act in the best interest of the community, which includes but is not limited to, taking the appropriate steps against councillors and officials suspected of unethical and improper conduct,” said Tyrrell.
The body of evidence referred to includes:
• The charge sheet, filed with the Durban Specialised Commercial Crimes Court implicating Gumede, Mthembu and the remaining 10 accused for their role in a R208-million tender irregularity.
• A supporting affidavit by the HAWKS investigating officer Lt-Col. Ngoako Mphaki handed to the same court during Gumede and Mthembu’s bail application on 14 May 2019.
• An internal confidential report, of which the City Manager has access to, compiled by the city’s Head of the City Integrity and Investigations Unit that led to the criminal investigation.
OUTA found at least four instances of a possible breach of the Code of Conduct for Councillors by Gumede and Mthembu in the publicly available documents where accusations are listed.
• Sitting in and interfering with the various Supply Chain Management committees and instructing its members to award contracts to certain companies.
• Interfering with various levels of the administration and making them act unlawfully.
• Forcing the contractors who stand accused with Gumede and Mthembu to sub-contract to certain suppliers thus interfering with Supply Chain Management protocol.
• Inciting a march on 16 April 2019 to Durban City Hall requesting the removal of the City Manager from office claiming he refuses to take orders from the mayor to make irregular payments
This is not OUTA’s first engagement with the Council. On 21 May 2019, OUTA wrote to Speaker William Mapena and reminded him of the Council’s legislative duty. OUTA said that judging by the seriousness of the charges being faced by Gumede, the Council should investigate and take appropriate steps against the Mayor.
On 23 May 2019 Mapena replied and declined to take any action citing that his office, “Save for being arrested”, did not possess any information against Gumede upon which a “reasonable suspicion can be formed that there has been a breach of the Code of Conduct for Councillors or otherwise any legal duty or standard”.
He said caution should “be exercised against the temptation to interfere with the criminal investigations”.
OUTA has reminded the Speaker and Council that:
• Taking disciplinary steps against a councillor does not automatically amount to an interference in a criminal investigation.
• The law makes provision for civil and criminal proceedings to run concurrently and require different burdens of proof.
• A criminal conviction does not amount to a breach of a civil code of conduct and vice versa- thus two independent enquiries are required.
Tyrrell has further requested the Council to proceed with disciplinary action against two city officials, as required by the Municipal Finance Management Act, and implicated alongside Gumede. They are Robert Abbu (Durban Solid Waste: Deputy Head for Strategic and New Developments) and Sandile Ngcobo (Deputy Head for Supply Chain Management Unit).
“In taking steps the Council must also account to the public as to what course of oversight it has or will implement for all those implicated and reaffirm the community that it has their best interest at heart,” said Tyrrell.