KNYSNA NEWS - An investigation into the conduct of Knysna councillors over the appointment of political cadres in 2022 has dropped a bombshell, recommending the removal of the Knysna mayor, deputy mayor and speaker from office.

The investigation was ordered by Western Cape Local Government minister Anton Bredell following two high court judgments which found the appointments to be illegal and which resulted in the departure of the employees.

The matter was taken to court by former councillor Julie Lopes and driven by the DA after the ANC/PBI/EFF/PA coalition made the appointments in spite of legal frailties surrounding the issues.

Ousting of DA

This followed after the coalition had ousted the DA from power in the Knysna council on 31 August 2022.

Lopes and the DA had questioned the conduct of the councillors in the saga.

The investigation committee, consisting of advocate Trisha Sarkas and Deirdré Viljoen, also found breaches of the code of conduct by councillors.

Seven councillors

The four-part, 430-page, investigation delved into the conduct of Knysna’s top three officials, as well as that of seven councillors who voted for the resolution appointing and paying eight political appointees as office-bearers.

The committee's investigation, titled “Investigation into the conduct of councillors at the Knysna municipality", also looked at serious litigation matters.

'False evidence'

It found: “There can be no doubt that the deponent councillors’ actions in giving false evidence under oath, being found to have committed a fraud on the court, and persisting with the falsities before another court, constitutes misconduct of the most serious nature.

“Such persistent dishonesty warrants removal.

“We therefore make the following recommendations on sanction in relation to the conduct that is the subject of the fourth part of the investigation: The removal of Mr (Aubrey) Tsengwa (ANC, mayor) from office; the removal of Mr (Alberto) Marbi (PBI, deputy mayor) from office; and the removal of Mr (Mncedisi) Skosana (ANC, speaker) from office."
Deputy mayor Alberto Marbi

'Financial sanction'

Recommendations are also for the top three to face a 25% “fine” from their allowances for three months “on part two and part three of the investigation”.

It is recommended that seven councillors who voted for the resolution to appoint the political appointees will also be issued with a financial sanction amounting to a 25% fine of their monthly allowance “to be deducted from such monthly allowances each month for a period of three months”.

The seven councillors are councillors Kay Andrews (ANC); Russel Arends (ANC); Beauty Charlie (PA); Mboneli Khumulwana (ANC); Neil Louw (EFF); T Matika (ANC); and Phindile Petros (ANC).

'Particular obligations'

The committee found that “organs of state, including the municipality and its councillors, have particular obligations in litigation”.

“On 16 November 2022, councillors Marbi, Tsengwa and Skosana deposed to affidavits on behalf of the municipality in the interdict application. Six months later, these affidavits also served before the court as the respondents’ evidence in the main application at the hearing on 19 May 2023.

“Both the Henney judgment and the Maher judgment conclude that these affidavits fell short of the heightened standards in litigation imposed on public litigants.

'False evidence'

“What is worse, the affidavits contained false evidence. Judge Henney characterised the content of these affidavits as ‘a fraud on the court’.

“In our respectful view, the facts are clear. The statements in the affidavits were readily capable of verification, with reference to the legal opinion for example. The deponent councillors failed to do so.

“Of particular concern is that the deponent councillors not only gave false evidence under oath, but they made no attempt to correct the falsities in their affidavits when the main application was served before Judge Maher.

'Scathing findings'

“The Henney judgment was handed down on 25 November 2022, and these affidavits still served as evidence before the Court at the hearing of the main application six months later.

“The failure to act is difficult to reconcile with the scathing findings made against them in the Henney judgment.

'Failed to act'

"Having been found to have committed a fraud on the court, it may reasonably be expected that the deponent councillors would have taken steps to address the readily apparent falsities in their evidence.

“For these reasons, we find that the deponent councillors breached… the Code of Conduct in that they failed to perform the functions of their office in good faith, honestly and in a transparent manner;… that they failed to act in the best interest of the municipality;… and that they conducted themselves in such a way that the credibility and integrity of the municipality was compromised.”

'Constitutes offence'

The findings of the report further said: “The gravity of Mr Tsengwa, as the mayor, attempting to influence the acting municipal manager not to enforce obligations in terms of the Systems Act, and other applicable legislation, is recognised in the Systems Act, which provides that such conduct constitutes an offence.

'Poses serious risk'

“Taken cumulatively, the conduct of Mr Tsengwa poses a serious risk to the proper functioning of the council and the municipality.

"In order to ensure that the public service is protected against being further misused for partisan purposes by the mayor, Mr Tsengwa, we make the following recommendations on sanction in relation to the conduct of Mr Tsengwa that is the subject of the second part of the investigation: The removal of Mr Tsengwa from office."

'Process ongoing'

The process to conclude the investigation into the conduct of councillors in Knysna still has some way to go.

Wouter Kriel, spokesperson for Bredell, said “the process has not been concluded”.

“Councillors are given the opportunity to respond on the findings and recommendations in terms of the promotion of administrative justice.

“After that the minister will apply his mind on their respective representations,” said Kriel.

All the officials have until the end of January to comment on the findings and recommendations of the committee.

Section 27 of the Structures Act regulates the vacation of office.

Electoral commission

Once the processes have been followed, and if a decision is made to remove the officials, the Independent Electoral Commission (IEC) must be informed of the vacancy and declare it, and in the case of ward councillors, a by-election must be held, and for PR (proportional representation) councillors, their party can nominate another candidate.

Knysna speaker Mncedisi Skosana said he did not “have any comment to make on this matter”.

Deputy mayor Alberto Marbi said: "At this time, I am unable to comment on the matter as it is sub judice and subject to legal review. I am taking legal advice and will respond appropriately in due course."

A request for comment has been sent to mayor Aubrey Tsengwa, and when comment from him is received, it will be published.

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