Former Johannesburg mayor Kabelo Gwamanda (Photo: Luba Lesolle)
Johannesburg councillors believe that former mayor Kabelo Gwamanda will be wasting time and money by challenging in court his removal as MMC for community development over his arrest for fraud.
Mayor Dada Morero removed Gwamanda after he was arrested in connection with an alleged funeral policy scam that he ran in Soweto in 2011 and 2012, but the Al Jama-ah councillor has since threatened to take the mayor to court.
Gwamanda’s lawyers issued Morero with a letter of demand last week, threatening him with court action should he not be reinstated to the position by 14 November. At the time of writing, further papers had been served on the municipality, but Gwamanda’s spokesperson said on Monday that they were meeting their legal team “soon”.
In the letter to speaker Nobuhle Mthembu, Gwamanda’s lawyers said should he not be reinstated, they would approach the Gauteng high court for an interdict against the council.
They said his removal was not procedural and did not comply with section 53 of the Municipal Structures Act. Gwamanda was not given prior notice or opportunity to respond to the allegations against him before he was removed, they added.
“Our client’s dismissal was announced publicly via a media statement from the executive mayor’s office without any formal notification or engagement,” Gwamanda’s lawyers said.
“This approach reflects a substantial procedural flaw, as it bypassed essential internal processes, including the referral to the ethics committee or the integrity commissioner, that should have been initiated before any public announcements or dismissals were made.”
They requested that the relevant coalition partners and political parties be allowed to resolve this matter politically, thereby allowing for Gwamanda to be reinstated.
“We urge you to consider these points carefully and to address the issues raised herein to ensure that the principles of fairness and equality are upheld within the council’s practices.”
But Anisa Mazimpaka, who is acting as Gwamanda’s spokesperson, said there had been “fundamental misconduct” on the part of Mthembu who had contravened five or six council standing rules in dismissing Gwamanda.
“The legal papers are but just one form of accountability that councillor Gwamanda has taken that exists within his reach. We would like to reiterate that this is a battle for constitutionality and upholding the standing rules of the council in conjunction with the law, rather than a political battle,” she said.
She said Gwamanda also “fully understands that some measures and mechanisms were put in place to surpass even his reign as the mayor”.
“The council house is guided by standing rules which all councillors must abide by. The speaker is not immune to those too, in fact, she is the custodian of those standing rules to ensure that they’re applied equally across the board.”
Mazimpaka said it could not be correct that Mthumbu — who is meant to uphold the decorum of the council and its rules and to maintain neutrality — would go on what she called a mission to completely disregard those rules.
She said Mthembu had traded “her fiducial impartiality and neutrality for a seat in a news studio rendering a distorted opinion on matters she doesn’t even understand and directly implicating councillor Gwamanda in alleged criminal activities without a formal ruling by the ethics committee nor the courts of law as a result predetermining his guilt in the eyes of the public”.
But former MMC for community development and African Transformation Movement councillor Lubabalo Magwentshu said Gwamanda had not been advised prior because it is the prerogative of the mayor to remove or appoint any MMC.
“I think he [Gwamanda] is not informed properly. His lawyers need to get their act together. When it comes to this, they are mistaken. There is no fault on the part of the executive mayor. He has those powers. In court this is going to be dismissed, it’s just a waste of their money,” Magwentshu said.
“The MMCs are just an extension of his [the mayor’s] office and they still account to him. The hiring of MMC has nothing to do with labour laws because there’s not even a job advertised. You don’t go and advertise MMC positions so people can apply so the labour law processes do not apply.”
Several sources in the City of Johannesburg said labour laws were not applicable in Gwamanda’s case and therefore he could not claim that he was unfairly dismissed. One said Gwamanda’s decision to threaten court action was more “psychological” than logical as he did not believe there was a chance of a winnable case in court.
Morero did not even have to consult Gwamanda before removing him, the city official said, adding: “The government of local unity has no say in this. Let’s say the mayor apologises, he is still not going to be reinstated because it is the mayor’s prerogative on who serves in his executive.
“Jacob Zuma removed Des van Rooyen two days after he made him finance minister; you did not hear him run to court. In the political office, labour laws do not apply. The president, premier and mayor can fire whoever is in their executive. [Gwamanda] is wasting money going to court, he could be paying back his victim with that money.”
Another city source said Gwamanda had become a “liability” to the executive and should not be reinstated.
“He was not participating even as an MMC for community development. Where have you seen him? We have had so many programmes centred around the portfolio but he was nowhere,” they said.
“He was a liability because how do you explain an MMC who is forever not there to provide the political leadership and whip the officials in terms of implementation.”
The source said Gwamanda had missed several international trips on which he was meant to represent Johannesburg abroad.
“He was expected to go to Russia and he cancelled the trip a day before he was supposed to travel. It means he has also cost a wasteful expenditure to the city because you get booked by the city for travelling and accommodation.”
Even if Gwamanda’s scandals had not resurfaced in public, Morero still had the right to remove him if he felt he was not performing, the source added.
Questions had been raised about Gwamanda — a compromise candidate between the ANC and Economic Freedom Fighters (EFF) — before he was appointed as mayor, the source said. There were also questions as to whether he had been vetted, because the city should have picked up the alleged funeral cover scam he ran in Soweto.
“The ANC wanted Johannesburg and the EFF wanted Ekurhuleni, so we agreed that in both municipalities we are going to put a minority mayor and that was a temporary agreement. Gwamanda overstayed his welcome as a mayor. He was never supposed to be there forever,” they said.
The source said after Gwamanda was removed and replaced by Morero as mayor, Al Jama-ah had demanded that the vacant MMC position be given to the party. Thereafter followed a contest between Gwamanda and his predecessor Thapelo Amad, who was also removed as mayor, for the MMC post, but Gwamanda prevailed at the time.