The dissolution of the Nelson Mandela Bay council would be irrational and unlawful, acting mayor Thsonono Buyeye said in a letter to Eastern Cape Cooperative Governance and Traditional Affairs (Cogta) MEC Xolile Nqatha.

This came after Nqatha wrote to the municipality in July and instructed it to give reasons within seven days as to why he should not place it under administration. In doing so, he will invoke Section 139(1) of the Constitution.

In the letter, which News24 has seen, Nqatha said the decision was based on the persistent failure of the metro to fill the mayoral position that was vacant for more than six months.

Other reasons included the appointment of an unqualified official to act as municipal manager, and National Treasury's impending invocation of Section 216(2) of the Constitution.

In response, Buyeye has denied the municipality cannot or did not fulfil the executive obligations in terms of the Constitution or legislation.

Buyeye said Section 55(2) of the local government structures act stated that a vacancy in the office of the executive mayor must be filled when necessary.

He said the fact that the council had to date not filled the position of executive mayor, was a clear indication that it had not yet found it necessary to do so.

"Suffice it to say that council has clearly acted within its right and within the law in this matter in terms of the municipalities powers of delegation read with Section 56 (6) of the structures act. I have all powers and duties of the executive mayor and hence there is no vacuum in which the municipality is currently operating. In short it would be mischievous in the extreme for anyone to suggest that the municipality is operating in a vacuum," he said. 

The metro has been without a mayor since the United Democratic Movement's (UDM's) Mongameli Bobani was booted out via a vote of no confidence in December 2019. Bobani was removed after his alliance with the African National Congress (ANC) and the so-called black caucus coalition - made up of the UDM, African Independent Congress, Economic Freedom Fighters, United Front and the Patriotic Alliance - fell through. 

His removal led to the ANC voting in his deputy, Buyeye, as acting mayor.

"It is also denied that the alleged non-filling of the position of executive mayor as alluded to in your letter has a bearing on the fulfilment of the responsibilities that are outlined in Section 56 of the structures act given the express provisions of Section 56 (6) of the said act.

"I would observe in passing that I am aware of other municipalities that have acting executive mayors for quite a while too, yet those municipalities are not addressed in the same manner as we are herein," he said.

The metro has always been in hot water with National Treasury.

In a letter to the mayor in June, deputy finance minister David Masondo said Treasury would withhold its grant to the metro after the council elected an unqualified acting city manager Mvuleni Mapu. 

He said Treasury was informed that, in 2015, Mapu - based on prima facie evidence of wrongdoing - had been suspended and charged with acts of misconduct, City Press reported earlier.

He said this included alleged supply chain policy violations in respect of various housing projects in the municipality.

As a result, the metro had allegedly incurred unauthorised, irregular, fruitless and wasteful expenditure. This was also flagged by Nqatha in his letter of intent.

The ANC's regional task team, as well as the Democratic Alliance, had disapproved of Mapu's appointment. However, the ANC caucus went against instruction and voted him in as acting city boss.

Buyeye denied any wrongdoing by the council in the election of Mapu. He said at the time of the appointment, Mapu was acting executive director, reporting to the municipal manager (MM).

He said Mapu had the necessary qualifications relevant to municipal regulations on minimum competency levels.

"Before I step away from the appointment by council of Mapu as the acting MM of the municipality, I would ask you to bear in mind that in terms of Section 151 of the Constitution, the executive authority of a municipality vests in its council and that the municipality has the right to govern according to its own initiative," Buyeye wrote.

"In this regard, it is also important to bear in mind that all spheres of government must observe and adhere to the principles of cooperative government and must conduct their activities within the parameters of cooperative government.

"They must exercise their powers and perform their functions in a manner that does not encroach on the functional or institutional integrity of government in other spheres."

He added the issue did not sustain an allegation that the municipality did not fulfil an executive obligation in terms of the Constitution or legislation.

Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has also expressed concern over the situation in the metro. She wrote to Nqatha in June and instructed him to report back within seven days on why there had been a vacancy for the mayoral position.

Buyeye said he had written to Treasury and anticipated a favourable response.

"In conclusion I respectfully submit that it would be both irrational and unlawful for the provincial executive to intervene in the affairs of the municipality for reasons stated herein above. Based on these reasons raised by you in your letter under reply which do not fall within the ambit of Section 139 (1) of the Constitution being the relevant empowering provision authorising such conduct."