eThekwini manager charged in R430m corruption case returns to work

1 Oct 2020

In a letter written to eThekwini Mayor Mxolisi Kaunda on Monday, city manager Sipho Nzuza said that when he reported for work he found his biometric access and that of his bodyguards had been deactivated and the locks to his office ‘reconfigured’. Nzuza has been charged in connection with the R430m Durban Solid Waste fraud and corruption case.

eThekwini city manager Sipho Nzuza — charged for his alleged role in the R430-million Durban Solid Waste fraud and corruption case involving former mayor Zandile Gumede — returned to work this week after threatening to take legal action against the city if it did not allow him to do so.

Nzuza was arrested by the Hawks in early March and released on R50,000 bail.

Also returning to the metro is the former head of supply chain management Sandile Ngcobo, who will officially take up his new position in the disaster management unit on 1 October.

Ngcobo was one of the first of a clutch of 17 to be arrested and charged in the Durban Solid Waste case. He was again arrested earlier in 2020 in relation to another fraud case, in which he was charged for allegedly doling out tenders to contractors and receiving kickbacks in return — the same role he allegedly played in the Durban Solid Waste case.

Shifting Ngcobo to a different city unit allows for a circumnavigation of his bail conditions and theoretically avoids the possibility that he will interfere with witnesses at the municipal offices. The disaster management unit is situated in a different building.

Nzuza’s bail conditions are a little trickier — he is not allowed to involve himself in supply chain issues, difficult for the chief accounting officer.

Both men took “special leave” after their arrests, but in Nzuza’s case, the reason cited had nothing to do with the charges — instead, it was for alleged irregularities in appointing a consulting company.

Daily Maverick readers will remember that Gumede was also removed from her post after being arrested and charged.

At the time, the ANC also said the charges had nothing to do with her being removed. Instead, said the governing party, it was because Gumede had not performed to expected standards as mayor. She was subsequently deployed as an MPL to oversee local government in the province.

Nevertheless, a city legal representative told the full council meeting on Wednesday that Nzuza was “back in office and he has designated acting city manager [Sipho Cele] to represent him at this [council] meeting, and that is perfectly acceptable”.

It was DA caucus leader Nicole Graham who broached the issue of Nzuza returning to work.

“I would just like to understand — I know we had a conversation with the executive committee this morning — how we can have an acting city manager and a sitting city manager in office. Is it perhaps something that legal can weigh in on?” Graham had asked.

Opposition parties have long called for Nzuza to be suspended, given that numerous acts of alleged corruption took place under his watch.

Often mistakenly thought of as a Gumede ally, Nzuza made it clear at his bail hearing that he had been in contact with the Hawks regarding the Durban Solid Waste tender scandal for about a year — the inference being that he had been feeding information to investigators and would turn state witness.

He added at the same bail hearing that although his speaking to the specialised crime-fighting unit meant implicating himself in the Durban Solid Waste fraud, corruption and money-laundering case, he would continue cooperating.

Opposition parties have long called for Nzuza to be suspended, given that numerous acts of alleged corruption took place under his watch.

Nzuza tried to return to work on Monday when his special leave ended, but was denied access.

In a letter written to eThekwini Mayor Mxolisi Kaunda on the same day, which Daily Maverick has seen, Nzuza said that when he reported for work he found his biometric access and that of his bodyguards had been deactivated, and the locks to his office “reconfigured”.

According to the letter, Nzuza could not understand why Kaunda wanted him to submit a request for his special leave to be extended by a further three months.

“His Worship informed me that the request arose from a decision of political leadership that I should not return to work.

“I explained to His Worship that I am an administrator and function in a particular manner. As such, it is not convenient to deal with matters as this, informally.

“At this point, His Worship solicited me to at least apply for special leave for a period of two weeks and, I explained to him (in response), that I do not require special leave. I expressed my intention to report for duty today (28 September 2020). I then indicated that I would need to take legal advice.”

Nzuza said that while in a state of “dismay” at being denied access to his office, the mayor contacted him by phone and “inquired whether I had had a chance to consider his request…”

“I conveyed to His Worship that I was already at work and did not require special leave. I also indicated to His Worship that I was being prevented from gaining access to my office.

“His Worship indicated to me that he prefers that I do not access the office; this was ostensibly to allow him to explain to the Acting Municipal Manager that his acting term had expired and also for him to have a discussion on how he was to work with me in light of the bail conditions.

“I then inquired as to how I am to execute my roles and responsibilities without an office and the response from His Worship [was] that I should work from his boardroom.

“On several occasions during the telephonic discussion, His Worship repeated his earlier request that I should apply for special leave and comply with the political instruction. I gave the same explanations I had given to him previously. The discussion ended.

“I got the distinct impression that I was being pressured to take special leave under the pain of towing (unknown and unexplained) political line [sic]. Needless to say, I have already endured the humiliation of being locked out of my office, in a manner akin to constructive dismissal or suspension without due processes.”

At the conclusion of the four-page letter, Nzuza told the mayor:

“I am looking forward to productive engagement with you as we together discharge (as we should) our duties and functions for the benefit of our citizens.

During the council meeting, the DA called for all supply chain management functions and powers to be delegated to the city’s chief financial officer, Krish Kumar. The call was voted down by the ANC.

“I hope (and pray) that it shall not be necessary to resort to any legal recourse to achieve these laudable results. I shall be reporting for duty tomorrow and hereby tender my services to you as my employer.”

While on special leave, an investigation was to have taken place into Nzuza’s alleged misconduct, but that did not happen.

Said Graham in a statement following the council meeting:

“The regulations for the discipline of senior managers are quite clear: Council can suspend a municipal manager for three months to conduct an investigation. That investigation must be completed within 30 days for Council to make a decision.

“The reality is that the ball has been completely dropped and that the municipality has no grounds left to not allow Nzuza back to work. This is because the investigations that should have been completed have not been completed and there are no legal avenues left to keep Nzuza away from City Hall.

“Nzuza’s charges relate in part to supply chain management issues. His bail conditions preclude him from being involved in any SCM process. By its very nature, the municipal manager role is that of an accounting officer.

“The Municipal Finance Management Act and the municipality’s own SCM Policy designate extensive responsibility to the accounting officer when it comes to awards, tenders and related processes.”

During the council meeting, the DA called for all supply chain management functions and powers to be delegated to the city’s chief financial officer, Krish Kumar. The call was voted down by the ANC.

In a statement issued on Wednesday night, the city said that following the expiry of Nzuza’s special leave, he was “legally entitled to resume his duties”.

“After his arrest, Nzuza was suspended for a period of three months in accordance with the Disciplinary Regulations governing senior managers.

“This was to make way for an independent investigation by the KZN Provincial Treasury on a different matter where there were allegations of violating supply chain processes.

“According to the progress report on this investigation tabled by eThekwini Mayor Cllr Mxolisi Kaunda, there have been delays in finalising the investigation partly due to Covid-19 lockdown as well as the unavailability of some of the material documents.”

The special leave granted to Nzuza after the expiry of the suspension came to an end on 25 September.

The city said Kaunda would meet with Nzuza “to discuss how he is going to do his duties against the background of his bail conditions”. DM

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