Details of Eastern Cape MEC and HoD fall out revealed

Details have emerged of how Eastern Cape transport bosses butted heads leading to a breakdown of relations in a department responsible for R570 million scholar transport programme.

At the centre of the conflict between transport MEC Weziwe Tikana-Gxothiwe and former head of department Irene Mpolweni was disagreement over how administrative programmes were managed.

These revelations have surfaced after the Public Service Commission (PSC) released a damning report last week detailing how officials were irregularly appointed in the department, especially in the lucrative scholar transport programme.

These officials either did not have the required experience or did not qualify for the positions, according to the PSC report.

Read: MEC in hot water as PSC report reveals rot at transport department

Under scholar transport, the department only managed to ferry 81 043 pupils while 30 084 could not be transported due to budgetary constraints in the 2019/20 financial year.

The relations between the two bosses further deteriorated, according to documents seen by City Press this week, when Mpolweni decided to place deputy director general for administration Mzwandile Sisilana, scholar transport chief director Andre de Vries, aviation director Noel Godwin and IT director Feziwe Nombutuma on precautionary suspension for their alleged role in the downgrade of the Mthatha Airport in January.

The airport was downgraded from category four to three by the SA Aviation Authority for failing to meet the requirements.

These included failing to meet rescue and firefighting services requirements and getting airport manuals approved, among others.

How Tikana-Gxothiwe clipped Mpolweni’s powers

City Press has seen a letter dated October 24 sent by Tikana-Gxothiwe to Mpolweni announcing the MEC’s decision to clip her powers as head of department.

“I write this as a sequel to numerous engagements with you, be they in the form of meetings or telephonically, on how the matters of the department are handled and your conduct in handling the administration matters of the department.

“I have noticed with dismay that you have continued to handle programmes of the department without the proper protocol having been observed by you or your office. There have been a myriad of activities wherein my office, as the executive authority as well as the political head, has not been taken into confidence or properly briefed.

“In some instances, my office advises contrary to what you sought but you proceed to do what you sought despite the advice,” the letter reads.

“I would also like to refer you to the meeting we held with premier [former premier Phumulo Masualle] and yourself included. It was agreed that we need to create stability in the department but by the look of things you have abandoned that agreement and committed by the matter in which you are currently running the department.

“I hereby, by virtue of powers contained in both the Public Service Act, as amended, as well as Public Service Regulations of 2016, hereby withdraw all delegations that I have given to you in terms of these two pieces of legislation with the effect from October 24 this year.”

City Press has also seen a letter written by Feziwe Renqe of Renqe Attorneys on behalf of Mpolweni, sent to the office of current premier Oscar Mabuyane, in which she proposes that she be released as head of department with effect from October 31.

This was partly in response to Tikana-Gxothiwe’s October 24 letter.

Renqe said Mpolweni denied allegations made by Tikana-Gxothiwe her letter.

“Our client denies all allegations contained in the letter and are, according to our client, baseless and frivolous. It should also be noted that our client reserves the right to respond more fully to the contents of the aforementioned letter at the appropriate time and forum.

“Our client has instructed us that she is employed by the department of transport as the head of department on a fixed term contract, which will terminate on November 30 this year.

“However, given the fact that the MEC has taken a decision to withdraw all the delegated powers in terms of Public Service Act 103 of 1994 and the regulations promulgated thereunder, our client is unable to perform her functions as head of the department.

“In order to resolve this issue amicably, our client proposes that she be released from her duties as the head of department, with effect from October 31 this year. Furthermore, that she be paid her full salary for the month of November or until her contract of employment comes to an end,” the letter reads.

Unathi Binqose, transport spokesperson, said Mpolweni had asked to be released from her contract a month before it expired “meaning her last day at work was October 31 instead of November 30.”

But, responding to Binqose’s statement, Renqe said Mpolweni had advised her attorneys that she left the department at the end of her employment contract on November 30.

Charges or no charges against head of department

Renqe said they have been advised by Mpolweni that when she left there were no pending disciplinary proceedings against her nor was she facing any charges.

This was contrary to what Binqose told City Press last week. He said Tikana-Gxothiwe was “shocked” when Masualle withdrew Mpolweni’s suspension in April considering the “seriousness of the allegations against her”.

“However, due to the fact the premier was within his rights to do so, the decision was accepted with an understanding that disciplinary processes will ensue while the former head of department performs her duties,” Binqose said.

Binqose sent City Press a list of alleged charges that Mpolweni faced, but she denied all of them saying these were “unfounded allegations” which amounted to defamation.

How did Masualle get involved

Before Mpolweni left the department, she and Tikana-Gxothiwe wrote letters in February begging Masualle to the resolve their squabble.

Mpolweni accused Tikana-Gxothiwe of interfering with her administrative decision to suspend Sisilana, de Vries, Godwin and Nombutuma.

But Tikana-Gxothiwe lifted their suspensions and asked Masualle to discipline Mpolweni.

Sources claimed that what irked Tikana-Gxothiwe about the suspensions was that Mpolweni suspended Sisilana, who last week was also found to have been irregularly appointed by the PSC.

However, Binqose denied that the MEC was protecting Sisilana. “The charges that the former head of department faced were serious and had no relationship with her actions against the deputy director general,” Binqose said.

However, according to a letter which City Press has seen that Tikana-Gxothiwe addressed to Mpolweni on February 2, the MEC said it had come to her attention that the head of department was subjecting the four officials to a disciplinary hearing.

“As a matter of urgency, I would like you to appraise me on this matter before the end of business of February 4. No further action you must take in disciplining these officials until you have appraised me of the circumstances and rationale behind your decision to act,” the letter said in part.

Then Tikana-Gxothiwe wrote another letter on February 4, addressed to Mpolweni, indicating that she had advised Masualle to consider instituting a disciplinary hearing against her after the downgrading of the Mthatha Airport and procurement issues of the Bailey bridges.

City Press has also seen a letter Mpolweni wrote to Masualle on February 20 requesting the former premier to intervene.

“At the time when the honourable MEC wrote a letter dated February 17 and received by my office on Monday February 18, I was not aware that she had already served the suspended officials with letters purporting to uplift their suspensions. When the information came to my attention, this prompted me to solicit a legal opinion in this matter through the office of the state attorney,” Mpolweni wrote.

When she suspended the officials, Mpolweni said she had exercised her powers in terms of section 7(3) of the Public Service Act, 1994 (proclamation 103 of 1994), as amended, which provides that head of department shall be responsible for efficient management and administration of discipline.

“In light of the above provision, I acted in terms of the empowering provision and the suspension of the officials in question cannot be unlawful unless challenged and a finding is made by a proper forum or a body as prescribed in terms of the Labour Relations Act. I therefore, humbly plead with the honourable premier to intervene in this situation. In particular, to request the honourable MEC for transport to refrain from interfering with my bona fide exercise of administrative powers of the head of department in enforcing discipline against the four officials of the department.

“I accordingly submit that it is not the competence of the honourable MEC to lift suspensions and I believe her conduct undermines the justice system, it is a serious case of interference with administrative powers. She has therefore acted ultra vires,” Mpolweni wrote.

Mpolweni attached the state attorney’s legal opinion.

The first state attorney’s legal opinion

According to the legal opinion dated February 19 compiled by Advocate M Simoyi in the East London chambers sent to state attorney M Govender, which City Press has seen, Tikana-Gxothiwe had on February 17 written to Mpolweni citing her “shock and dismay” in respect of the officials’ alleged unlawful suspension.

“She recorded that the head of department has violated the rules and regulations, which are not mentioned in the letter in question and advised her that she will be lifting the suspension of the employees with immediate effect. She also stated that she will be instituting an investigation against the head of department regarding the unlawful suspension of the employees,” Simoyi wrote.

Govender had requested an opinion from Simoyi on the lawfulness of Tikana-Gxothiwe’s decision to lift the suspension of the four officials.

In his legal opinion, Simoyi detailed letters written by Tikana-Gxothiwe dated February 2 to Mpolweni seeking clarity regarding the disciplinary process she instituted against the officials without being appraised of such action.

“The head of department was instructed not to take further action against the employees until she has briefed the MEC of the circumstances surrounding the institution of the disciplinary action in question. By the letter dated February 4 the MEC wrote a further letter to the head of department regarding the implementation of consequence management in respect of the downgrade of the Mthatha Airport and irregular expenditure relating to Bailey bridges project. In this letter the MEC informed the head of department that she had advised the premier to take disciplinary steps against her,” Simoyi wrote.

He also made reference to the letter the head of department wrote on February 17 in which Mpolweni indicated that she served the officials with letters of her intention to suspend them on January 30 and invited them to make representations.

Simoyi also mentioned a letter that Mpolweni wrote disagreeing with Tikana-Gxothiwe’s view that she was not briefed about the suspension of employees and indicating that the suspensions were unlawful. “She further informed the MEC that she had sanctioned an investigation to be conducted by a firm of attorneys, Mageza Raffee Mokoena Inc.,” Simoyi wrote.

In summary, Simoyi found that Mpolweni exercised her powers in compliance with the law and the Constitution in suspending the employees in question. “In terms of clause C (5) of the rules dealing with the grievances of employees in the public service (“the grievance procedure”), if disciplinary action is being taken against an employee, utilisation of the grievance procedure by the employee shall not halt the disciplinary procedure. It follows that the MEC cannot interfere with the disciplinary process whilst the head of department is still investigating to establish whether the employees committed misconduct or not. That applies irrespective of whether the employees lodged a grievance against her or not,” Simoyi’s legal opinion reads.

In addition, Simoyi wrote: “In this case the head of department suspended the employees in terms of the PSA, after due process. The MEC lifted the suspension on the basis that it was unlawful. The head of department is entitled to lodge a grievance with the premier in terms of the grievance procedure and seek appropriate redress.”

Enters the second state attorney’s legal opinion

City Press also learnt that Tikana-Gxothiwe sought a legal opinion on misconduct cases, which include that of the four officials and that of Mpolweni, that were dealt with in the first legal opinion of February 19.

This second legal opinion was compiled by Advocate T Mqobi on October 3.

According to Mqobi’s opinion, which City Press has seen, he said at the time of compiling the opinion into disciplinary cases in the department, Mpolweni had not faced any charges.

“There are no pending disciplinary charges against Ms Mpolweni according to the information at my disposal,” Mqobi wrote.

Mqobi also stated that Mpolweni was suspended on February 4 by Masualle based on recommendations by Tikana-Gxothiwe for alleged poor performance and negligence linked to the downgrade of the Mthatha Airport.

But, Mqobi said Masualle lifted Mpolweni’s suspension on April 4 citing that disciplinary process for the Mthatha Airport downgrade should proceed against relevant managers and had determined that the disciplinary hearings should proceed against Sisilana, De Vries and Godwin.

An investigation that was undertaken also cleared Nombutuma, according to Mqobi’s opinion.

Binqose said Mqobi’s legal opinion was commissioned at the request of the department. “We therefore have no obligation to respond to Advocate Mqobi, instead the department must decide on how to move forward on these matters.”

When asked if Mpolweni was ever presented with charges, Binqose said she was suspended based on several allegations against her.

“The premier decided to withdraw the precautionary suspension with an understanding that disciplinary processes would ensue while the former head of department performs her duties. In terms of the applicable regulations, heads of departments are appointment by the premier and therefore their entry and exit from the public service.”

Mqobi’s opinion, transport portfolio committee chairperson Xolani Malamlela said, is scheduled to be discussed with transport authorities on Wednesday. “We have received the report from the department but we have not yet have time to discuss it as a committee as we were busy with other matters if the department is available on the date. It is after this meeting when we can be able to answer your questions,” Malamlela said.

Veliswa Mvenya, standing committee on public accounts provincial chairperson, said they have also received Mqobi’s opinion from both the MEC and the former head of department.

“Obviously, we are not going to discuss their conflict because the head of department is no longer in the department. We are going to discuss irregular expenditure and consequence management.”

Msindisi Fengu Journalist | City Press

+27 11 713 9001 Msindisi.Fengu@citypress.co.za Media Park, 69 Kingsway Road, Auckland Park

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