KNYSNA NEWS - The Knysna Independent Movement (KIM) has lashed out at the municipality for allowing the suspended manager of land use, Hennie Smit, to return to work.
Knysna Municipality issued a statement on Monday 6 December confirming that Smit returned to work after the Appeal Authority upheld his appeal against an internal disciplinary procedure.
KIM said it would take the matter to the Public Protector and engage with the Human Rights Commission to ensure that there were consequences for what the party labelled "gross injustice".
In a statement the municipality said Smit appealed against the findings to the Internal Appeal Authority as per the SA Bargaining Council Agreement, that ruled in his favour. "Pursuing this case through the courts when the Appeal Authority has already vindicated Mr Smit would be a senseless and costly exercise," the statement said. "We respect the Appeal Authority's ruling."
KIM said Smit's reinstitution rests squarely on the shoulders of the municipal manager, Dawid Adonis. "We strongly condemn the decision taken by Adonis."
Taking the gap
According to KIM's statement, Smit was suspended and faced disciplinary charges for the unlawful approval of building plans for TH1 Thesen Island in 2019, as well as the removal of a condition of approval - the inclusion of 16 Gap houses - that Council imposed in 2009 when the Knysna Lifestyle Estate Development was approved.
KIM accused Smit of "taking it upon himself to personally reverse Council's decision" instead of allowing it to go through the public participation processes.
"On appeal, Smit was inexplicably found not guilty of all charges, and ordered reinstated. The appeal was decided by the presiding officer, Dawn McCarthy, on written submissions, without oral argument and without access to the recording or a transcription of the evidence that was led at the hearing. Thus, she overturned the decision on appeal without considering the evidence that was led in the underlying disciplinary hearing."
KIM said it was noteworthy that McCarthy found that Smit should not have removed the condition pertaining to Gap houses, as there had not been proper notification, but still found that his conduct did not rise to the level of gross negligence.
No review
"Following the appeal ruling, the municipality obtained legal advice on the prospects of success of taking the appeal decision on review," said KIM. "On Friday the 3rd of December 2021 Adonis, without consulting all the parties specified in the delegation, and contrary to the legal advice provided to and paid for by the municipality, made the decision not to take the appeal ruling on review and advised Mr Smit's union that he should return to work on Monday."
According to KIM, Adonis indicated that he would obtain legal advice on taking the removal of the condition relating to the Gap houses on review. The municipality learned of the removal of the condition in 2019 and the decision should have been taken on review within 180 days of it becoming known to the municipality.
"To now succeed in a review application, the municipality would have to apply for condonation and show good cause why the court should entertain the application," KIM said.
"The municipality's conduct in disregarding the legal advice, deciding to abide by the appeal ruling and instructing the offending official to return to work, may be frowned upon by a court of law and could negatively impact the prospects of success of the application for condonation."
By allowing Hennie Smit to "blithely return to work" despite his unlawful elimination of 16 planned Gap houses, the municipality has "sent a clear message that it is not genuinely committed to a fair and just society that entails acknowledgement and redress of the injustices of the past," KIM stated.
"Knysna Municipality and Adonis have failed sixteen families that could have benefited from these inclusionary housing opportunities." KIM indicated that it would call for an investigation into the municipality's failure to take Smit's unlawful decision to eliminate the 16 Gap houses on review in 2019, when the disciplinary action against Smit was instituted.
"We are committed to ensuring that real consequence management is introduced into our municipality, that our disciplinary processes are defended, and that officials who are guilty of serious transgressions are not welcomed back to work."
Adonis responded to KIM's statement as follows:
Knysna Municipality brought six charges against Mr Smit during 2018, which were dealt with in terms of the Disciplinary Code of Conduct and processes outlined in the South African Local Government Bargaining Council Collective Agreement.
Mr Smit was placed on paid suspension for 28 months at a cost to Council of R3m. He was found guilty on all counts and, in terms of the disciplinary procedures, he opted to appeal against the outcome of the disciplinary hearing.
As Acting Municipal Manager, I appointed Ms Dawn McCarthy, the Manager: Town Planning at Nelson Mandela Metro to chair the appeal process. This Independent Appeal Chairperson dismissed all charges against Mr Smit and ordered that Mr Smit should return to work on 1 November 2021.
The Director: Planning & Economic Development who was also a witness in the case, submitted a lengthy motivation to the Municipal Manager’s Office, reasoning that the outcome of the Appeal Hearing be reviewed.
Upon receipt of the Director’s submission, I requested that a legal opinion should be obtained in this regard. The legal opinion of Cliffe Dekker Hofmeyr Attorneys (CDH) was in agreement on five of the six ‘not-guilty findings’ of the appeal hearing.
It is important to note that, in terms of Clause 17:10 of the Collective Agreement, “the Presiding Officer of the Disciplinary Appeal Hearing shall have the power to set aside any decision, determination or finding and to confirm, set aside or reduce a sanction imposed by the Presiding Officer of the Disciplinary Hearing”.
Clause 17:15 of the Collective Agreement specifies: “the determination of the Presiding Officer of the Disciplinary Appeal Hearing cannot be altered by the Municipal Manager or any governing structure (my emphasis) and shall be final and binding on the Employer subject to any remedies by Law”.
The Delegation K2 (Powers of Decision Making) was approved by Council on 29 October 2020 and reads as follows: “The Municipal Manager has the authority, in consultation with the Manager: Legal Services, the Executive Mayor, the relevant Portfolio Chairperson and the relevant Director, in regard to legal actions and proceedings by the Council, to deal with legal action including the initiation of legal action”.
The Acting Municipal Manager and Manager: Legal Services consulted with the Executive Mayor on Tuesday, 23 November 2021, just after his election as Executive Mayor. He had not yet appointed the Mayoral Committee members. The Executive Mayor requested that a consultation session should be arranged with the legal team who submitted the legal opinion and all the functionaries involved in the aforementioned Delegation K2. A total of three consultations were held in terms of the delegation.
As the Director: Planning & Economic Development instituted the disciplinary procedures against Mr Smit, was a witness in the matter, and made a submission after the determination of the Appeal Hearing, I deemed her involvement as a conflict of interest and instead included the Manager: Legal Services, Ms Paulsen, who is currently also the Acting Director: Corporate Services in the consultations.
Upon conclusion of these consultation sessions the Executive Mayor submitted his views as follows:
“1. We should proceed with a judicial review of the decision made. This is based on the legal opinion and our Constitutional obligation.
2. We should comply with the competent Authority that ruled that Mr Smit must return to work.
3. Measures need to be put in place to prevent these type of decisions from happening again.”
I requested the Manager: Legal Services to put the Executive Mayor’s view in writing to the Deputy Mayor. The Deputy Mayor responded in writing, indicating that he held the view that Council should review the finding of the Appeal Chairperson (application to the Labour Court) and the removal of the condition.
The legal opinion received from CDH reads as follows (paragraph 145): “As set out above, the success or otherwise of an application to the Labour Court to review Ms McCarthy’s decision in relation to Charge 6 will depend, at least in part, on whether it can be shown that Mr Smit bore a duty to ensure that the application to remove the conditions was advertised externally and that the evidence was placed before Ms McCarthy. In addition and as set out above, the fact that, to date, the Municipality has not challenged the decision taken by Mr Smit by way of a judicial review, will in all likelihood be raised in the Labour Court and the question asked as to how the Municipality can justify Mr Smit’s dismissal in the absence thereof. This may impact negatively on the success of a review application before the Labour Court”.
In paragraph 146 the legal opinion states: “As set out above and subject to the points summarised in 145 above, it appears that the Municipality may have limited to reasonable prospects of success in reviewing Ms McCarthy’s findings in respect of charge 6 before the Labour Court”.
The decision for Mr Smit to return to work was taken by the Acting Municipal Manager, in consultation with the Executive Mayor, the Deputy Mayor, Cllr Campbell and Manager: Legal Services.
The Acting Municipal Manager and Executive Mayor both agreed to have Mr Smit return to work and to proceed with judicial review pertaining to the withdrawal of the conditions relating to 16 GAP housing.
The Municipality is taking the decision with regards to the removal of the conditions pertaining to 16 GAP housing on review and is not disregarding its obligation to do so. The Acting Municipal Manager is already looking into the delay in bringing the review application by the relevant directorate and CDH has been briefed in relation to the judicial review application.
In the matter of the Labour Court review to set aside the finding of the Appeal Authority, which set aside the guilty finding of Mr Smit, the KIM Councillors did not agree with the views of the Acting Municipal Manager and the Executive Mayor.
There was, however, consensus to take the withdrawal of the conditions regarding 16 GAP housing on judicial review. CDH has been briefed in this regard.
I reiterate my and the municipality’s commitment to good and transparent governance and the implementation of consequence management. As Acting Municipal Manager, I have always acted with the best interest of this municipal area and all its residents as my top priority – and will continue to do so.
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