Councillors who negligently voted for the above-threshold salary package of the late Sedibeng municipal manager Stanley Khanyile will have to pay back about R1.2m he illegally benefited from for two years.
In a precedent-setting decision yesterday, Gauteng cooperative governance and traditional affairs MEC Lebogang Maile said councillors at the district municipality will have to give reasons why they should not be held financially liable for money lost through Khanyile's illegal salary package.
Maile released a report following investigations conducted by advocate William Mokhare, SC, on allegations of collapse of governance at the municipality. Based on the report, Maile has placed the municipality under administration.
Mokhare found that the Sedibeng council appointed Khanyile unlawfully and paid him a salary package of R1.8m a year, which was beyond the threshold of R1.2m. This was despite the R1.2m package advertisement for the position. He was paid the illegal amount from 2018 when he got the job until this year when he was shot dead.
According to section 32 of the Municipal Finance Management Act (MFMA), any political office bearer or official of a municipality who deliberately or negligently made or authorised a fruitless and wasteful expenditure is liable for that expenditure.
Local government expert Jaap de Visser from the University of the Western Cape said the MFMA empowers whoever Maile has appointed as administrator to recover the money from the councillors.
He said there have been some precedents where the courts held councillors liable for the mess that has been taking place within municipalities. “We’ve seen courts saying at the end of the judgment that hang on, this was a big mess...everybody knew it was illegal, the councillors voted in favour of this decision, why must taxpayers pay for this...?” he said.
“The principle that he [Maile] is raising is very valid and there is precedent for it…There is an illegal decision that council has made. Councillors who voted for that decision would have voted for an illegal resolution, particularly if they knowingly did so, they can be held individually liable."
The Mokhare report found that Khanyile also irregularly appointed Mafoko security guards to provide him with personal security. He could not produce evidence that he paid for the service personally.
Khanyile was also found to have unlawfully tampered with the minutes of the council meeting of May 27 2020.
In the instances, the report found that the council failed to hold him accountable. Maile said the lost money from the council is to be recouped from individual councillors.
"In accordance with the audit rules, each of the councillors will be required to make representations as to why they should not be held individually or jointly liable for the irregular and unlawful payment of the salary to the municipal manager," he said.
“It may be that some councillors are able to show that they should not be held liable. If they do, then they should not be held liable. Only those who are found to have been complicit in the unlawful payment of the salaries of the municipal manager and section 56 managers should be liable.”
The DA, however, said its councillors cannot be held liable for Khanyile’s appointment as they opposed his package and demanded answers. “We were made aware that the council is proposing for the municipal manger to get [paid] above the threshold. We said it is wrong. We were told that this is the amount he was earning from a municipality he was working for in the Eastern Cape. I questioned this decision but I did not get the answers,” said Dady Mollo
“The ANC used its majority and approved the decision, saying the MEC would agree. We followed up asking for confirmation that the MEC had approved, still today we have no response,” Mollo said.
The ANC in Sedibeng said it would cooperate with the decision of the MEC.
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