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Tshwane city manager Johann Mettler has approached the Pretoria high court on an urgent basis to interdict the council’s decision to place him on precautionary suspension.
Mettler’s application is in two parts. In Part A, Mettler also wants, pending the final determination of review proceedings to be instituted in Part B, an order suspending the suspension letter addressed to him on July 10 and the decision to designate Dr Musa Khumalo as city manager.
He is also seeking an order directing the city and council to restore him to his position and functions as municipal manager.
He also sought an order restraining the council from preventing him from entering or attending his office or performing his statutory functions.
Mettler was suspended during a special council meeting on Thursday, two weeks after the council presented him with 13 allegations of wrongdoing.
He had previously submitted representations to Tshwane mayor Nasiphi Moya after receiving a letter dated June 27 setting out the allegations against him.
In his affidavit filed on Tuesday, Mettler, a former Nelson Mandela Bay city manager, said the challenged decision had to be set aside and reviewed for two reasons.
One ground was that the vote taken on July 9 was unlawful and the manner in which it was conducted exceeded the speaker’s powers.
The other was that the disciplinary process leading up to the vote of July 9 was procedurally unfair and fatally flawed, chiefly in that the city and the council had at no stage established the necessary jurisdictional facts required to lawfully place him on precautionary suspension.
Mettler said a suspension decision founded on a resolution which might not lawfully exist cannot be permitted to operate pending review.
He would suffer irreparable harm if interim relief was refused, he said.
“The fact that the suspension is on full pay does not answer the harm. The harm lies in removal from office, impairment if statutory authority, reputational damage, public stigma and the substitution of an acting functionary under a contested resolution.”
Mettler said the harm was also institutional.
“A metropolitan municipality cannot be treated as if the validity of its head of administration is a private employment issue,” Mettler said.
The DA also announced on Tuesday that it had gone to the same court on an urgent basis to set aside the council decision to suspend Mettler and to classify the alleged misconduct of CFO Gareth Mnisi as “less serious”.
In a statement, the DA said during the special council meeting on July 9, the Tshwane speaker allegedly rigged the votes that produced these outcomes.
“After councillors had cast their votes, the speaker deliberately subtracted votes and reversed the results to achieve predetermined outcomes — suspending a city manager who stood in the way of corruption while letting the CFO off lightly,” Tshwane DA leader Cilliers Brink said.
Cilliers said those entrusted with upholding the democratic processes of council had acted unlawfully by overturning the votes of elected public representatives.
“This was a blatant abuse of power and a complete disregard for the rule of law and democratic processes.”
Cilliers said on the suspension of Mettler, 92 councillors had voted in favour and 95 voted against. The motion to suspend him had therefore failed.
“However, after the speaker deducted 13 votes from those who voted against the suspension, the result was changed to 92–82, and Mr Mettler was suspended.”
The DA said it was asking the court to set aside the results produced by the speaker’s unlawful deduction of votes and give effect to the votes actually cast by councillors; and to declare that Mettler was not suspended and the allegations against Mnisi were classified as serious misconduct.
“Alternatively, we are asking the court to order that a new council meeting be properly convened to decide these matters, with the votes of councillors properly counted and recorded.”