By Libuseng Nyaka
QWAQWA – The Free State high court has given two high ranking officers of the Maluti-A-Phofung local municipality 90 days to pay back the salary hike they received unduly.
This after the court ruled in favour of Free State MEC of cooperative governance and traditional affairs when it declared the appointment of Maluti-A-phofung local municipal manager and Chief financial officer invalid.
“The appointments of both second respondent , Futhuli Thamaha as municipal manager (MM)and third respondent Chief Financial officer (CFO) by Maluti-a-Phofung local municipality (third respondent ) and Maluti-a-Phofung Council (fourth respondent ), and resultant in the March 2020 contracts of R1,987 402 and R1,596,747,00 per annum respectively is declared to be unlawful and irregular and is set aside.
It is common knowledge that the salaries contracted between the municipality and MM Tseko Futhuli Mothamaha and Chief Financial Officer Germina Mazinyo who are addressed as second and third respondents was during section 139 intervention period.
The municipality as first respondent, had no authority or leeway to contract the impugned salaries.
The high court found that Maluti-A-Phofung local municipality and Maluti-A-Phofung council acted unlawfully when they appointed MM Futhuli Mothamaha and CFO Jemina Mazinyo at ballooned salaries exceeding the stipulated amount for the municipality which was under administration and also fall under category 4 not 6.
The court also found that the MM and CFO have illegally earned salaries from an illegal raise which was implemented while the council was under administration.
The excesses in salaries earned by the MM and CFO and pursuant to the contracts in March 2020 and salaries in relevant regulations, for the period ending in March 2020, to date are recoverable in full. The repayment by both respondents to be made to the municipality within 90 days of the date this order,” the court ruled On April 28, 2022.
The respondents were also ordered to pay cost of the application, including that of the applicant’s two counsels.
According to court papers, the crucial point was for the administrator to curb the ballooning salary costs while improving performances. The remuneration is in terms of the fact that the municipality was under administration and in the discretion of the administrator. He explained how he executed his discretion and cannot default on it.
He complied with the law and circumstances that prevailed, the determination of salaries by administrator cannot be criticised as unfair of irregular.
The advertisement for the positions of municipal manager and chief financial officer which had a closing date of November 22, 2019, had the following salary offers: R1,424 447 minimum for MM; R1,705,024 midpoint and R1,987,402 maximum which is the salary that was approved despite not falling under category 6 classification.
For the CFO salary offer was R1,156,263 minimum, R1,376 ,504 midpoint and R1,508,747.
On the matter of legality of contracts, the court found that the MEC of Cogta was not involved hence the litigation.
The applicant was the MEC of Cogta Free State while respondents were Maluti-a-Phofung local municipality, municipal manager, chief financial officer, and the council of Maluti-a-Phofung.
The category of the municipality is a major factor determining remuneration levels.
The further key issue is that of municipality revenue and income generation. If a municipality has not submitted its audited financial statement for 2017/2018 year for categorizing, the 2016/2017 financial year would apply. The municipality defaulted on submitting the audited financial statements for the financial years 2016/2017, 2017/2018 and 2018/2019. Prior to 2018/2019 the municipality was categorized as level 4 and not level 6. This was the time the contracts were entered into without the knowledge of the administrator.
Both MM and CFO were employed based on their qualifications and experience of five years, had attained competent level in the prescribed assessment.
Their salaries on a category 4 were supposed to be R1,129,229 or R1,160,847 for second respondent who is a municipal manager; and R932,548 for third respondent who is chief financial officer, depending on the regulation that was applied.
The respondents have since appealed the matter and the special council sitting which was called to deliberate on the implication of the judgement was adjourned .
Head of Cooperative Governance and Traditional Affairs Mokete Duma who has also attended the meeting has this to say after meeting collapsed” I was here to advise municipality on the implication if the judgement that both MM and CFO have to pay excess money within 90 days. This does not affect their contract as our matter was not about their contracts but conditions.”
Duma said other issues that were part of the agenda include the taking over of Eskom from the municipality of discussions have already been opened following the ruling of court that Eskom must take over electricity.
He said condition put by Eskom that municipality must get a loan that cannot be allowed if needs it would be challenged in court of laws.