Nkungwana v Penxa (Appeal) (A27/2025 ; 4913/2024) [2025] ZAWCHC 396 (1 September 2025)
REPORTABILITY SCORE: 82/100 Local Government — Appointment of municipal manager — Competency requirements — Appellant appointed as municipal manager despite receiving a "basic" competency rating, while respondent received a "competent" rating — Respondent challenged the legality of the appointment, arguing it contravened the Local Government: Municipal Systems Act 32 of 2000 and its Regulations, which require a minimum "competent" rating for appointment — High Court upheld the challenge, ruling that the appointment was null and void as the appellant did not meet the prescribed competency requirements — Appeal dismissed with costs.
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Case Note
Mzingisi Nkungwana v Mnyamezeli Jackson Penxa
Neutral citation: Mzingisi Nkungwana v Mnyamezeli Jackson Penxa (Appeal Case no: A27/2025) [2025] ZAWCHC (1 September 2025)
Date: 1 September 2025
Reportability
This case is reportable due to its significant implications for municipal law and the interpretation of the Local Government: Municipal Systems Act 32 of 2000. The judgment clarifies the competency requirements for the appointment of municipal managers, emphasizing that only candidates rated as "competent" or higher can be lawfully appointed. This ruling is crucial for ensuring that municipalities adhere to the standards set forth in the Act, thereby promoting effective governance and service delivery.
Cases Cited
- Notyawa v Makana Municipality and Others 2020 (2) BCLR 136 (CC)
- Mawonga and Another v Walter Sisulu Municipality and Others (Case no 574/19) [2020] ZASCA 125 (7 October 2020)
- Democratic Alliance v Speaker of the Knysna Municipal Council and others (4247/2023) [2024] ZAWCHC 130 (10 May 2024)
- Dilotsotlhe v Mahikeng Local Municipality and Others North West (Mahikeng) Case No UM 130/2020, 25 October 2021
Legislation Cited
- Local Government: Municipal Systems Act 32 of 2000
- Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers published under GN 21 in GG 37245 of 17 January 2014
Rules of Court Cited
No specific rules of court were cited in the judgment.
HEADNOTE
Summary
The case revolves around the appointment of Mzingisi Nkungwana as municipal manager by the Central Karoo District Municipality, despite his competency assessment rating being "basic." The respondent, Mnyamezeli Jackson Penxa, challenged this appointment, arguing that it contravened the requirements of the Local Government: Municipal Systems Act. The court ultimately ruled that only candidates rated as "competent" or higher can be appointed, rendering Nkungwana's appointment unlawful.
Key Issues
The key legal issues addressed include: - The interpretation of section 54A(2) of the Local Government: Municipal Systems Act regarding competency requirements for municipal managers. - The implications of appointing a candidate rated as "basic" in the competency assessment.
Held
The court held that a candidate who receives a "basic" rating in the competency assessment cannot be lawfully appointed as a municipal manager over a candidate rated as "competent" or higher. The appointment of Nkungwana was deemed null and void under section 54A(3) of the Act.
THE FACTS
The Central Karoo District Municipality initiated a recruitment process for a municipal manager, resulting in three shortlisted candidates: Mzingisi Nkungwana, Mnyamezeli Jackson Penxa, and Ralph Links. Nkungwana was rated "basic" in his competency assessment, while Penxa was rated "competent." Despite this, the Municipality appointed Nkungwana. Penxa challenged this decision, leading to a review application that found the appointment unlawful.
THE ISSUES
The court had to decide whether the appointment of a candidate rated as "basic" in the competency assessment was lawful under the provisions of the Local Government: Municipal Systems Act, particularly sections 54A(2) and (3), and whether such an appointment could be made without a waiver from the Minister as outlined in section 54A(11).
ANALYSIS
The court analyzed the statutory framework established by the Local Government: Municipal Systems Act and the accompanying regulations. It emphasized that the language of section 54A(2) is peremptory, requiring that candidates for municipal manager positions must possess at least a "competent" rating. The court rejected the appellant's argument that a "basic" rating was sufficient for appointment, highlighting that such an interpretation would undermine the legislative intent to ensure competent governance.
REMEDY
The court dismissed the appeal, affirming the lower court's decision to set aside Nkungwana's appointment as municipal manager. The Municipality was ordered to comply with the statutory requirements for future appointments.
LEGAL PRINCIPLES
The judgment established key legal principles regarding the appointment of municipal managers, including: - The necessity for candidates to achieve at least a "competent" rating in competency assessments to be eligible for appointment. - The interpretation of statutory provisions must align with the legislative intent to promote effective governance and service delivery in municipalities.