A CEO of a state agency in the Eastern Cape was fired a day after the Makhanda High Court temporarily uplifted his suspension.
City Press has seen judge Gerald Bloem’s order, dated January 24, following an application made by Buffalo City Metropolitan Development Agency CEO Bulumko Nelana.
The agency, which is located in East London, has the mandate to attract investors and increase economic development and tourism, among others.
According to documents seen by City Press, the interim board terminated Nelana’s contract on January 25.
The agency then announced to staff that another interim board member, Mxolisi Sibam, had been appointed as an interim CEO.
In that announcement, the interim board said it had rotated the acting CEO role to Sibam for the next three months.
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This followed Noel van Wyk’s and Nolitha Pietersen’s stints.
Nelana had challenged his suspension against the agency’s interim board chairperson, Nolitha Pietersen, the agency, the metro’s council speaker Humphrey Maxengwana, mayor Xola Pakati, the metro and the agency’s interim board members, who also acted as CEOs and Van Wyk, who he cited as first, second, third, fourth, fifth, sixth and seventh respondents, respectively.
The stand-off between Nelana, the agency and the metro has led to two court cases [main case and counter-application] against each other.
Bloem’s interim order reads:
Nelana declined to comment on Wednesday, saying the matter was still pending in court.
The agency's spokesperson, Oyama Makalima, said Nelana’s suspension and termination of his contract were two different things, which should not be conflated to cause confusion.
Makalima denied that Nelana was dismissed while the court matter was not finalised, adding:
He said the court recognised that the agency’s basis for Nelana’s suspension was to allow for the investigation regarding the flouting of processes leading to his five-year contract to be free from potential influence by him.
“The investigation had just concluded a few days before the court date,” he said.
The court, Makalima said, recognised that Nelana would no longer pose a threat to the investigation because it was finalised.
“That is the basis for him coming back to work, not because the board had illegally suspended him,” Makalima explained.
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The board, he stated, allowed Nelana to come back to work so that the matter of his suspension was finalised, closed and laid to rest.
“The termination of his employment contract is another matter which is now sub judice and we therefore cannot comment on it further.”
He said Nelana was fully aware of the extensive process followed that resulted in the termination of his contract.
Bloem ordered respondents to show cause at 9.30am on July 20 2023 at their next hearing as to why a final order should not be made declaring inconsistent with the Constitution, invalid and set aside:
* The decision taken by the agency's interim board on November 1 2022 to suspend Nelana;
* The metro council's decision taken on September 1 2022 to appoint the agency's interim board and its subsequent decisions;
* The decisions taken by the agency on November 1 2022 to appoint Van Wyk as acting CEO and Van Wyk's subsequent decisions;
* The meeting held by the interim board on October 21 2022 and any resolution taken at that meeting; and
* Any meeting of the interim board between September 1 2022 and the date of the order, which were not recorded in any format, and resolutions taken.
Process going forward
Bloem said the main application and the counter-application were postponed to July 20 and the costs for the January 24 hearing were reserved.
With respect to the main application, Bloem said Nelana would deliver his supplementary founding affidavits, if any, by February 10 while the respondents were scheduled to file their replying affidavits, if any, by March 31.
With regard to the counter-application, Bloem said the metro was scheduled to deliver its supplementary founding affidavits, if any, by February 10 and for Nelana to deliver his answering affidavits, if any, by March 10.
The metro is expected to file its reply affidavit by March 31.
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For both cases, Nelana was expected to deliver his heads of argument by June 29 and for the metro to do so by July 16.
Makalima said there was no declaratory order in relation to Bloem’s interim order.
He said Van Wyk’s appointment was done in line with the existing recruitment policy of the agency, which was approved by the erstwhile board and signed off in 2017 by Nelana and former board chairperson Tembinkosi Bonakele.
Van Wyk and Pieterson’s appointment, he said, would be considered by the court when the matter was heard in July.
Asked what the status of the interim order was considering that Nelana has been dismissed, Makalima answered: “There is no declaratory order in this regard. The termination of his employment contract is sub judice. We cannot comment further.”