MINISTER APOLLO MAPHALALA ERRED IN GCINIWE FAKUDZE APPOINTMENT – LEGAL EXPERT
Renowned lawyer Sibusiso Nhlabatsi asserts that Minister Apollo Maphalala made a significant error when he announced the appointment of Gciniwe Fakudze as Chief Executive Officer (CEO) of the Mbabane Municipal Council.
The recruitment process for the CEO of the Mbabane City Council was conducted by SNG Grant Thornton, who submitted a report to the Council. Following this, the Council appointed a candidate who had scored lower than Gciniwe Fakudze in the assessment. This decision sparked public outcry, as many felt it was inappropriate for the Council to appoint a candidate who had received the lowest score, although a Human Resources expert who spoke on condition of anonymity to the Bridge clarified that an employer is not always obliged to pick the candidate who got first place during the interview.
Contrary to the Council’s recommendation, Minister Maphalala later announced Gciniwe Fakudze as the CEO. Notably, the Council was absent from the press conference during which the Minister made the announcement. However, Fakudze has not yet assumed her duties, as the Council has taken legal action against the Minister, challenging his decision.
Speaking to The Bridge, lawyer Nhlabatsi expressed interest in how the court would interpret the matter, as he believes the Minister made a serious administrative error that could be legally contested.
“I base this on Section 48 of the Urban Government Act, which states that the Council is responsible for appointing the Town Clerk, subject to the Minister’s approval,” Nhlabatsi explained. “In this case, the Council did not appoint Gciniwe. The Minister's role is to approve the Council’s appointment, not to appoint someone himself.”
Nhlabatsi further argued that if the Minister was dissatisfied with the Council’s chosen candidate, the proper course of action would have been to refer the matter back to the Council rather than the decision he took.
“He is now exercising powers he does not have. There is no provision that allows him to select a candidate. Having served as a Town Clerk before, I believe the Minister is well aware of this,” said Nhlabatsi. “He acted ultra vires—beyond his legal authority. Even if he believed Fakudze to be the best candidate, he had no legal right to appoint a CEO for the municipality. That responsibility lies with the councillors.”
Nhlabatsi emphasized that public officials are bound by the enabling statute, in this case, the Urban Government Act, and cannot act outside its provisions.
When contacted by The Bridge, Minister Maphalala stated that he could not comment on the matter since it is currently before the court. “I made a commitment not to comment on the matter until the court has made a decision,” he said.