Hands legally tied: Why KZN ANC is unable to oust murder-accused councillor

The ANC in KwaZulu-Natal on Wednesday said for now its hands are legally tied on the matter of a councillor accused of murder who has been earning a salary while in jail. 

The party said it was hopeful that Thabani Nyawose, the speaker of the eThekwini metro — the municipality that continues to remunerate the ANC councillor, who has been in jail awaiting trial for the past 10 months — will seek a legal opinion on how to proceed.

Mzimuni Ngiba, a councillor of Ward 101 in Cato Crest, has been charged in connection with the murder of ANC councillor candidate Siyabonga Mkhize, which took place in November 2021.

The party, according to provincial secretary Bheki Mtolo, will also receive a report from eThekwini speaker Thabani Nyawose regarding the matter. 

In the meantime, Mtolo said there were no mechanisms to recall Ngiba, as he has not been found guilty of a crime and is understood to have missed council meetings due to being in prison. 

“The only way an elected councillor loses a seat is to resign, die or be expelled by his political party, or if they are found guilty and are sentenced to 12 months in prison or more,” Mtolo said.

“The ANC constitution also expels you if you are found guilty of a crime and are sentenced to 12 months or more without an option of a fine.”

While the ANC’s step-aside rule kicks in for charges relating to serious crimes, Mtolo emphasised that a councillor would still remain in office, according to the law. 

Another means to remove an elected councillor is when they miss three consecutive council meetings. However, Mtolo said legal procedure dictates “that removal must follow the process of natural justice, meaning that person must defend themselves — if they are missing council because they are in jail and attending trial, not that they did not want to come to council”. 

To emphasise his point, Mtolo recalled another councillor from the same municipality who faced similar circumstances. “The PEC [provincial executive committee] asked him to resign, he refused and said he was innocent — then his charges were withdrawn.”

Mtolo, who is a former mayor, admitted that having a murder-accused councillor on eThekwini’s payroll “does not look good” for the municipality. He emphasised that the council should still follow the law.

“The speaker cannot undermine the law — the speaker must act on legal advice. The question is why he has waited so long — that he must answer for himself,” he added. 

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