Haswell and his employers

2009-12-02 00:00

I REALLY do love the law. As with any man-made thing it is imperfect. Seldom, however, is the law an ass. That moniker should usually be reserved for those who selectively quote it and deliberately misinterpret it, so as to hide their misdeeds. A rule of thumb: when somebody purports to quote a law in support of a statement which sounds unjust, illogical or just plain wrong, it usually is wrong. Dig deeper and the beauty and logic of the law will be revealed.

Let us examine the recent statements of Msunduzi Municipality personalities, Deputy Mayor Mervin Dirks and Municipal Manager Rob Haswell, citing the Municipal Systems Act. Dirks

argued that (as acting mayor) he could not act to solve the overtime abuse debacle, because the Municipal Systems Act prevents him from interfering in administration. Haswell cites the same legislation to gag municipal employees, threatening disciplinary action in his staff communiqué of November 19 (The Witness November 27).

The Code of Conduct for Councillors indeed provides, inter alia, that a councillor may not, except as provided by law, interfere in the management or administration of any department of the municipal council, unless mandated by council. However, of the many aspects of the law that Dirks omits, is his duty, required under the same code, to “act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality are not compromised”. The Municipal

Systems Act also provides, in section 51, that the council must “hold the municipal manager

accountable for the overall performance of the administration”.

Clearly, it would not be an unlawful interference in the administration of the Msunduzi Municipality for Dirks to hold Haswell accountable for the blatant flouting of council resolutions on overtime. In other words, the council, through Dirks, has the power to go as far as suspending Haswell for this serious breach of duty, with a view to instituting a disciplinary investigation. Just as clearly, Dirks washing his hands of the matter, discredits the municipality, which is portrayed as powerless to discipline its wayward employees, when the opposite is true.

Haswell cites the Code of Conduct for Municipal Staff Members in an attempt to intimidate his staff into breaching a higher law, namely the Protected Disclosures Act. This act (which is Constitutional law) recognises, in its preamble, that every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace. This act provides that a disclosure made by an employee, to any person (including the media), will be a protected disclosure, provided that at least one of a number of conditions is met.

One of these conditions is that the employee must reasonably believe that he or she will be subjected to victimisation if the disclosure is made to the employer. Another condition is where there is reason to believe that evidence will be concealed or destroyed if the disclosure is made to the employer. Given the tone and nature of Haswell’s

circular, an employee at the Msunduzi Municipality could well believe that a disclosure made through the hierarchy would

only result in the whistle-blower being punished and the wrongdoing being covered up.

Furthermore, in terms of the Protected Disclosures Act, all organs of state (i.e. the Msunduzi Municipality) must give to every employee a copy of the practical guidelines issued by the minister, which explain the provisions of the Protected Disclosures Act. Haswell’s circular should, at the very least, have mentioned the existence of the Protected Disclosures Act, but rather reveals a self-serving desire to gag

employees at all costs.

Lastly, returning to the Municipal Systems Act, Haswell need not be “warmly commended for taking the citizens of Pietermaritzburg into his confidence”. This was suggested in The Witness editorial of November 24 regarding Haswell’s article published in The Witness on November 23. On the contrary, the municipality is duty-bound by the act to observe our rights to regular disclosure of the municipality’s state of affairs, to prompt responses to our written or oral communications and to inform us of its decisions.

The law is logical. It is designed to protect the citizen from abuse of power and not to protect the powerful from scrutiny and from the negative consequences of their selfish actions. Citizens need to shake off their apathy, refuse to be conned when the powerful try to bend the law to their own ends, and to embrace this country’s generally excellent laws by setting them to work for the greater good.

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