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[2021] ZAWCHC 278
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Member of the Executive Council Local Government Environmental Affairs and Development Planning, Western Cape v Prince Albert Municipality and Another (A231/2020) [2021] ZAWCHC 278 (21 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
No: A231/2020
Before:
The Hon. Ms Justice Goliath (Deputy Judge President)
The
Hon. Ms Justice Fortuin
The
Hon. Ms Justice Slingers
Hearing:
23 July 2021
Judgment:
21 September 2021
In
the matter between:
THE
MEMBER
OF
THE EXECUTIVE
COUNCIL
Applicant
LOCAL
GOVERNMENT ENVIRONMENTAL AFFAIRS
AND
DEVELOPMENT PLANNING, WESTERN CAPE
and
PRINCE
ALBERT
MUNICIPALITY
First
Respondent
GEORGE
CHARLES
VAN DER
WESTHUIZEN
Second
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON 21 SEPTEMBER 2021
GOLIATH
DJP
[1]
This is an appeal
against
the
whole
of
the
Judgment
and Order
granted
by Vos
AJ
on 13 May
2020,
dismissing
the
application
in
which the Appellant, the
MEC
for Local Government: Environmental Affairs and Development Planning
("the MEC") sought to review and set aside:
1.1
The appointment of a selection panel
purportedly done pursuant to Regulation 12(4) of the Regulations on
Appointment and Conditions
of Employment of Senior Management as
promulgated by the National Minister of Co-Operative Governance and
Traditional Affairs ("the
Minister") in 2014, ("the
Appointment
Regulations")
to recruit and select an Operational Manager for the Prince Albert
Municipality ("the First Respondent");
and
1.2
The
appointment
of
the
Mr
George
Charles
Van
der
Westhuizen ("the Second Respondent"),
as the Operational Manager of the First Respondent.
[2]
The Respondents
did not participate
in the proceedings
in the court
a
quo
and
the matter was heard on an unopposed basis. This appeal was also not
opposed and the Respondents elected to abide by the decision
of the
court. The court a
quo
found
that an order aimed at setting aside the appointment
of members
of
the selection panel, would constitute a court order that was adverse
to their individual interests. The court therefore concluded
that it
was not competent to grant such order in their
absence due to their non-joinder in these
proceedings. Consequently, the Court only considered the relief
relating to the setting
aside of the appointment of Mr Van der
Westhuizen.
[3]
It is
common
cause
that
at
the
time
of
the
hearing
of
this
matter,
the
Second Respondent
was
no
longer
in
the
employ
of
First
Respondent, and
the
order
of
Vos
AJ no longer has any practical effect between the parties and has
become academic. The
appellant
asserted
that
notwithstanding
the
mootness
of
the
alleged
irregular
appointment, the relief is persisted
with
because
there
are discrete
legal i&sues
and ramifications
of
public
importance
that
would
affect
the
functioning
of
municipalities
and
operations
of
local
governments
across
the
country
in
relation
to
future appointments
of senior
managers
in
the municipality. The Appellant
argued
that
there
is an imperative
and
dire need for legal certainty in relation to the correct
interpretation of Regulation
12(4).
The
Appellant
identified
three
main
legal
issues,
which
arise
in
this appeal. Firstly, the issue of the invalidity of the Appointment
Regulations;
Secondly
the
proper
interpretation
of
Regulation
12(4)
of
the
Appointment
Regulations;
and
Third, the non-joinder of members of the selection panel.
[4]
Section 16(2)(a)(i) of the Superior Court
Act 10 of 2013 provides that where the issues in an appeal are of
such a nature that the
decision sought will have no practice effect
or result, the appeal may be dismissed on this ground alone. The
question of mootness
was repeatedly dealt with by the Supreme Court
of Appeal as well as the Constitutional Court. These cases
demonstrate that a court
hearing an appeal would not readily accept
an invitation to adjudicate on issues, which are of such a nature
that the decision
sought, will have no practical effect or result. In
National Coalition for Gay and Lesbian
Equality & Others v Minister of Home Affairs
2000(2)
SA1; 2000(1)
BCLR
39 the Court stated that "a
case
is moot and therefore not justiciable, if it no longer
presents
an existing
or live controversy, which should
exist
if
the Court
is
to avoid giving advisory
opinions
on abstract propositions
of
law."
[5]
However, it is well established that the
court has the discretionary power to entertain a matter considered to
be moot. This discretion
was applied in a limited number of cases
where the appeal, though moot, raised a discreet legal point, which
required no merits
or factual matrix to resolve. In
Independent
Electoral Commission v Langeberg Municipality
2001(3)
SA 925 (CC) at paragraph 9 the Constitutional Court reaffirmed the
discretionary powers of the Court to decide on issues
on appeal even
if they no longer present existing or live controversies. In
paragraph 11, the Court stated that:
"...
That
discretion must be exercised according to what the interests of
justice require. A prerequisite for the exercise of the discretion
is
that any order which this court may make will have some practical
effect either on the parties or on others. Other factors that
may be
relevant will include the nature and extent of the practical effect
that any possible order might have, the importance of
the issue, its
complexity
and the fullness
or otherwise
of the argument
advanced."
[6]
In
South
African
Reserve
Bank
and
Another
v
Shuttleworth
and
Another
2015
(8) BCLR 959
(CC) at paragraph 27 the Court stated:
"to
the extent that it may be argued that this dispute is moot
...
the court has a discretion whether to
hear the matter. Mootness does not, in and of itself, bar this court
from hearing this dispute.
Instead, it is the interests of justice
that dictates whether we should hear the matter."
[7]
The interpretation of Regulation 12 (4) is
a central feature of the dispute in this matter, more particularly,
the composition of
the selection panel for the appointment of a
manager who is accountable to the municipal manager. The appellant
essentially argued
that this matter should be heard for the purposes
of a litmus test case to set a precedent,
and provide
guidance
and
direction
on
a
clearer
interpretation of Regulation 12(4). I am in
agreement with the Appellant that a discrete legal issue of public
importance
arose,
and the
outcome
of the case
will
have
significance
not only for the appellant, but will be
useful to establish legal rights and principles for similar cases in
the future. Furthermore,
I am satisfied that this case has a
significant wider public interest beyond those directly involved.
Consequently, the question
then arises as to whether it is in the
interests of justice for this court, in the exercise of its
discretion, to entertain the
appeal
against
the admittedly
moot order of Vos AJ.
[8]
The appointment of Mr Van der Westhuizen as
Operational Manager of the Municipality is governed by the provisions
of the Local Government:
Municipal Systems
Act, No.
32
of 2000 ("the Systems
Act").
The Systems
Act
was
assented
to on 14 November 2000, and the date of
commencement is 1 March 2001. The First Respondent's appointment as
Operational Manager
fell within the ambit of "a
manager
directly
accountable
to its
Municipal
Manager".
The
court
a
quo
considered
section 56 of the Systems Act as the
starting point, because it deals with the appointment of managers,
and provided that:
"56
(a)
a
municipal
council, after consultation with the Municipal Manager, appoints
a
manager directly accountable
to the Municipal Manager; and
(b)
a
person
appointed
as a
manager
in terms of paragraph (a), must have the relevant skills, and
expertise to perform the duties associated
with the post in question, taking
into account
the
protection
or
advancement of persons or categories of persons disadvantaged by
unfair discrimination."
[9]
The
Court
pointed
out
that
section
56
of
the
Systems
Act
did
not
provide
for
any selection panel
to advise the Municipality on the appointment of an Operational
Manager. The Court identified the provisions
of Section 72 and 120 of
the Systems Act to be relevant to the appointment of Second
Respondent.
Section
72(1) of the Systems Act provides inter alia, as follows:
"(1) The Minister
may, subject to applicable labour legislation and after consultation
with the bargaining council established
for municipalities and the
Minister for the Public Service and Administration, for the purposes
of this Chapter make regulations
or issue guidelines in accordance
with section 120 to regulate or provide for the following matters:
(a)
The setting of uniform standards
for-
(i)
Municipal
staff establishments;
(ii)
Municipal staff systems and
procedures
and
the matters that must be dealt with in such systems and procedures;
and
(iii)
Any
other
matter concerning municipal personnel administration."
[10]
Section 120 (1) of the Systems Act empowers the Minister of
Co-Operative Governance and Traditional Affairs
to make regulations
or issue guidelines concerning:
(a)
The matters listed in
sections
22,
37, 49,
72,
86A
and 104;
(b)
Any matter that may be
prescribed
in
terms of [the Systems
Act];
(c)
Any matter that may
facilitate the application
of
[the Systems Act].
[11]
On 5 July
2011,
the Local
Government
Municipal
Systems
Amendment
Act
7 of 2011 ("the Amendment Act") was promulgated. The
Amendment Act impacted on provisions
of
the Systems Act. Section 3 of the Amendment Act substituted
section 56 of the Systems
Act with, inter alia, the following:
"(1)(a) A
municipal council, after consultation with the Municipal Manager,
must appoint-
(i)
A manager directly
accountable
to the Municipal Manager; or
(ii)
An acting manager directly
accountable to the municipal manager under circumstances
and for a period
as
prescribed.
"
(b)
A person
appointed
in terms of paragraph
(a}(i}
must at least have the skills,
expertise, competencies
and
qualifications as prescribed."
[12]
Sub-section (4A) (a) of the amended section
56 also permitted the Minister to prescribe the process by which a
municipal council
was required to inform an MEC for local government
of any appointments made under the section. Section 28 of the
Amendment
Act
amended section 120(1)(a) expanding the number of sections to which
it applied and now read as follows:
"The
matters
listed
in sections
22,
37, 49, 54A, 56,
72,
86A and 104."
[13]
On 17 January 2014, the Minister,
exercising his powers under section 120,
read with section 72 of the Systems Act,
published the Local Government: Regulations of Appointment and
Conditions of Employment
of Senior Managers, 2014. ("Appointment
Regulations").
Regulation
1 of the Appointment Regulations defines
"senior
manager'
to include "a
manager
directly accountable to a Municipal Manager appointed in terms of
section 56 of the
[Systems Act].
Regulation 2(2)(a) of the Appointment
Regulations deals with the
"Scope
of application"
of the Regulations
and states the following:
"(2)
These regulations must be read in conjunction with-
(a)
Any
regulations
or
guidelines
issued
in
terms
of section
120
of the Act concerning
matters
listed in section 54A, 56, 57A and
72."
[14]
Regulation 12, which forms part of Chapter
3 of the Appointment Regulations, prescribes the procedure for the
appointment of managers
directly accountable to Municipal Managers.
Regulation 12 (4) of the Appointment
Regulations provides that:
"The selection
panel for the appointment of a manager directly accountable to the
municipal manager must consist of at least
three and not more than
five members, constituted as follows:
(a)
The municipal
manager, who will be the
chairperson;
(b)
A member
of the mayoral
committee
or councillor who is the portfolio
head of the relevant portfolio; and
(c)
At least one
other
person, who
is not a councillor
or a staff
member
of
the municipality, and who has
expertise, expertise, or experience in the area of the advertised
post.
"
[15]
On 9 March 2017, the Constitutional Court
in
SAMWU v Minister of Co Operative
Governance and Traditional
Affairs
2017 (5) BCLR 641
(CC) declared
the
Amendment
Act
unconstitutional and invalid
in its
entirety.
The
Court
found
that
the Amendment Act was incorrectly promulgated in terms of section 75
of the Constitution, which regulates ordinary Bills not
affecting
provinces,
instead
of a section 76. Consequently,
the
failure to comply with procedures
as
set out in section 76 of the Constitution, the Bill was rendered
invalid. The Court held that the declaration of invalidity would
operate prospectively and the declaration of invalidity was suspended
for a period of 24 months
to
allow the legislature
an
opportunity
to
cure the defect.
[16]
The period of suspension ended on 9 March
2019, without any new legislation being introduced, or any other
regulations being published
in its stead. An Amendment Bill was
tabled 6 February
2019,
but Parliament has not yet passed legislation to correct the defect.
The Minister requested the Constitutional Court to extend
the 24-
month period with an additional 12 months, which was dismissed by the
Constitutional Court.
Resultantly,
the Amendment
Act
has been declared
unconstitutional
and invalid, and cannot be enforced.
[17]Significantly,
the
Constitutional
Court
in
South
African
Municipal
Workers' Union v Minister of
Co-Operative Governance and Traditional Affairs
(supra)
at
paragraph 4
recognised
the
purpose of the Amendment
Act
as being to:
"inter alia, to
address what was perceived to be an alarming increase in the
instances of maladministration within municipalities.
The Amendment
Act introduced measures to ensure that professional qualifications,
experience and competence were the overarching
criteria governing the
appointment of Municipal Managers or managers directly accountable to
Municipal Managers in local government,
as opposed to political
affiliation."
[18]
The court a quo had regard to the ·purpose
of the Amendment
Act
and found that prior to the amendment of the Systems Act in 2011 (by
the Amendment Act), there were no regulations in existence
that dealt
specifically with the appointment of senior managers
pursuant
to
the constitution
of
a selection panel.
The
court further
found
that prior to the Amendment Act, section 120 of the Systems Act did
not authorise the Minister to make regulations regarding
matters
listed in section 56. The court held that the Amendment Act amended
section 120 of the Systems Act by stipulating that
the Minister may
henceforth make regulations, or issue guidelines concerning all
matters listed
in
the new
section
56.
The
court
expressed
the view that
if
the legislature
was of the opinion
that prior to the Amendment
Act, the Minister did have the power in
terms
of section
72 and 120 of the
Systems
Act
to make such regulations
regarding
the appointment of managers pursuant to the establishment of a
selection panel, it would not again have given those specific
powers
to the Minister in terms of the Amendment Act.
[19]
The
court
a
quo
found
that
the
Appointment
Regulations, including
Regulation
12(4)
of the Appointment Regulations was made under an invalid part of
section 120 of the Systems
Act.
The
invalid
part
is
section
120(1)
(a)
that
authorises
the
Minister to make regulations in respect of matters listed in section
56.
Consequently,
when the Minister
made
the
Appointment
Regulations
on
17
January
2014,
he
made
the
Regulations in terms of an invalid section of the Amendment Act.
It therefore follows that, as the Amendment
Act was invalid, Regulation 12(4) of the Appointment Regulations is
also invalid. The
court therefore concluded that Regulation 12(4) of
the Appointment Regulations did not survive the Constitutional
Court's declaration
of invalidity of the Amendment Act. Therefore, in
the absence of the Appointment Regulations, the municipality did not
act unlawfully
when it appointed Mr Van der Westhuizen.
[20]
The Court
a
quo
reasoned that even if Regulation
12(4) survived and is valid, the composition of the selection panel
had complied with the prescripts
of the Regulation. The court
analysed Regulation 12(4) and interpreted its purpose to be to ensure
that insofar as the composition
of the selection panel is concerned,
there should at least be the persons identified in the Regulation.
The court found that Regulation
12(4) does not state clearly that the
selection panel may not have more than one Councillor.
The court found that the composition of the
selection panel complied with the requirements of regulation 12(4).
The court also found
that the selection panel was properly
constituted in terms of regulation 12(4) of the Appointment
Regulations.
Consequently,
the court dismissed the application.
[21]
The Appellant argued that the Appointment
Regulations remained valid and of full force and effect despite the
invalidity of the
Amendment Act for the following reasons:
21.1
First, the Appointment Regulations were
published when the amendments effected by the Amendment Act to the
Systems Act were in force,
i.e. the Regulations emanated from a
legally valid source, which would not be disturbed by the subsequent
declaration of invalidity,
operating prospectively.
21.2
Second, section 72 of the Systems Act
empowers the Minister to make regulations, or issue guidelines in
accordance with section
120 of the Systems Act to regulate
and provide for any matter dealt with in
Chapter 5 of the System Act, including municipal personnel
administration.
21.3
Third, and in any event, section 120 of the
Systems Act, in its unamended
form,
is wide enough to provide the requisite authority for
the promulgation of regulations.
[22]
The Appellant therefore contended that the
Minister had the power in terms of section 72(1) (c) (iii) to make
the relevant Appointment
Regulations. The Appellant stated that one
of the purposes of Regulation 12(4) of the Appointment
Regulations is to prevent undue political
influence over the recruitment of, and the selection process utilized
in respect of senior
managers.
The
inclusion of additional councillors onto the selection panel would
result in the selection panel being dominated by councillors
from the
relevant municipality. The Appellant therefore submitted that having
regard to the purpose of the Amendment
Act
and to the wording of Regulation 12(4), it is evident that,
regardless of whether the selection panel consists of three, four
or
five members, there can only be one Councillor on the panel. The
Applicant therefore argued that Regulation 12(4) governs not
only the
peremptory or obligatory third member, but also the optional fourth
and fifth members of the selection panel. The Appellant
expressed the
view that Regulation 12(4) must be interpreted to mean that a
selection panel may never consist of more than one
Councillor. The
Appellant therefore contended that there was more than one Councillor
on the selection panel in the appointment
of the Second Respondent,
which invalidated the proceedings.
[23]
The Appellant argued that the invalidity of the Amendment Act did not
affect Regulation 12 because section
56 was not the source of the
Minister's power to make Regulation 12. The fact that the legislature
contemplated the amendment of
section 56 in order to grant specific
powers in prescribing how certain appointments were to be dealt with
did not necessarily
mean that the general power under section 72 and
120 did not exist. Appellant therefore argued that the Minister would
still have
been able to proclaim the Appointment Regulations in terms
of broad and general powers given to the Minister to regulate
"any
other matter concerning municipal administration".
Accordingly,
the current version of section 72 of the Systems Act, read with the
current version of section 120 thereof, permitted
the Minister to
make the Appointment Regulations, including Rule 12(4) thereof.
[24]
South Africa is a constitutional democracy with three tiers of
government comprising of national, provincial
and local government.
The three tiers of government are distinctive, interdependent and
interrelated. Consequently, each sphere
of government must
collaborate in order to attain commons goals such as effective,
transparent accountable and coherent governance.
Municipalities are
organs of State and are part of a system of co-operative government,
which allows the three spheres of government
to work together
effectively. National and Provincial government may assign functions
and powers to local government, when those
powers are best exercised
at local level.
[25]
Section 151(1) of the Constitution
of the Republic of South Africa, 1996
provides that a municipality has the right
to govern, on its own initiative, the local government affairs of its
community, subject
to national and provincial legislation, as
provided
for in
the Constitution. Section
154
provides
that
the
"national government and
provincial governments, by legislative and other measures, must
support and strengthen the capacity
of municipalities to manage their
own affairs, to exercise their powers to perform
and to perform
their functions."
Section
155(6) provides that National and Provincial government have a
constitutional obligation to monitor and support local government.
[26]
The Systems Act appears to be national
legislation enacted pursuant to the provisions of sections 154 and
155 of the Constitution
of the Republic to support and strengthen
the capacity
of
municipalities to manage
their
own affairs and to oversee the effective
performance by municipalities of their functional areas of
responsibilities. The Systems
Act regulates the process of assigning
powers and functions to local government and is part of a series of
legislation, the purpose
of which is to empower local government
to fulfil its constitutional mandate
and obligations.
The Act sets out the core principles,
mechanisms
and
processes
that
are necessary
for
municipalities to function. It defines the legal nature of a
municipality and the manner in which municipal powers and functions
are to be exercised. Municipalities must operate within the framework
prescribed for them, has all the powers, and functions as
assigned to
them in terms of the Constitution.
The
Systems Act provides the legal framework
for the appointment and functions of the
most senior levels of municipal administration, namely the municipal
manager and managers
directly accountable to him or her. Section 54
of the Systems Act provides
a
role for the Appellant
to
intervene in relation to the appointment
of
section
56
managers, which
are
alleged
to
be
in
contravention of the Act.
[27]
Significantly, the court
a quo
referred
to a circular
dated
11 April 2019, published by the Minister of Co-Operative Governance
and Traditional Affairs, styled
'Implications
of the Constitutional Court Judgment declaring the Local Government:
Municipal Systems Amendment Act, 2011 (Act No.
7
of 2011) invalid",
which
the Appellant annexed to his founding papers. The purpose of the
circular was to inform municipalities and provincial departments
responsible for local government about the status of the Amendment
Act after the
SAMWU
ruling,
to provide progress on
measures
taken towards complying with the Constitutional Court order, and to
provide guidelines and transitional measures to be
applied by
municipalities until the Amendment
Act
is approved by Parliament
and
assented
to by
the President.
[28]
In the circular, the Minister acknowledged
that the Amendment Act was declared
invalid. The Minister
referred
to
the
status
of the
regulations
made
in terms of sections 72 and 120 of the
Systems
Act
affecting municipal managers and
managers
directly accountable to municipal managers, and summarized his
conclusions. The Minister expressed the view that the invalidation
of
the Amendment Act does not apply to the
Local Government:
Municipal Systems Act 32 of 2000
, including
all amendments made prior to 2011 (the principal Act). The Minister
indicated that this means that the Principal Act
and all amendments
made before 2011 remain operative and enforceable.
[29]
The Court a quo deemed it necessary to
analyse the circular and embarked on an analysis of the views of the
Minister, thereby recognising
that the views of the Minister are
important in this matter. The Court criticized the Minister's view
that some of the Appointment
Regulations are invalid, while others
are valid. However, the circular did not explicitly deal with the
interpretation of Regulation
12(4). The Appellant made extensive
submissions insofar as it relates to the powers of the Minister to
promulgate Regulations or
issue guidelines in accordance with section
72 read with section 120 of the Systems Act. Section 72 (1)(c)(iii)
of the Systems
Act empowers the Minister of Co-Operative Governance
and Traditional Affairs to make regulations or issue guidelines in
accordance
with section 120 of the Systems Act to regulate and
provide for any matter [other than those matters specifically
stipulated in
section 72(1)] concerning municipal personnel
administration.
[30]
Sections 72 and 120 is aimed at providing
the Minister with the necessary regulatory powers to make regulations
where required,
to ensure the efficient functioning of
municipalities. The promulgation of the Regulations constitutes an
exercise of the regulation-making
discretion vested in the Minister
in the national sphere of government. It is inappropriate for courts
to make orders interpreting
statutory provisions and policy
directives without joining the national or executive authority
responsible for such enactments
or provisions.
[31]
In my view, it is undesirable for a court
to make orders affecting regulations promulgated by the Minister
without affording him
an opportunity to respond to the legal
challenge. The Minister has a direct abiding and crucial interest in
the interpretation
of Regulation 12(4) and should, at the very least,
have been given an opportunity
to
respond and express a view on the issues that arise in this matter. I
am accordingly of the view that the Minister ought to have
been
joined as a party to the proceedings.
The
non-joinder of the Minister of Co-Operative Government and
Traditional Affairs is fatal to the relief sought by the Appellant.
[32]
The Municipal Systems Act defines a
Municipality as the political structures, office bearers,
administration, as well as the community
who live in the area. It is
therefore evident that the governance of Municipalities consists of
various role players. In my view,
it
would
be unwise
for
this
court
to
opine
on the
interpretation of the rule in the absence of the participation of
other interested parties. The Supreme Court of Appeal had
cautioned
against deciding a matter without the benefit of tested argument from
both
sides
on
questions
that
are
necessary
for
the
decision
of
the
case. The Respondents did not participate
in the proceedings and a decision on the correct interpretation of
Regulation 12(4), would
be based on the argument of only one party.
(See:
Western Cape Education Department
and Another v George
1998 (3) SA 77
(SCA) AT 84E;
Port Elizabeth
Municipality
v
Smit
2002 (4) SA 241
(SA) at
paragraph 11).
[33]
The
Court
would
derive
many
benefits
from
a
thorough
and
discrete engagement
with all interested
parties
in
relation
to
the correct
interpretation of
Rule
12(4).
All interested parties are necessary to participate for a fair and
exhaustive adjudication of the matter, to facilitate a
just
determination. The appellant alluded to the political significance of
an interpretation of Rule 12(4), which renders it imperative
that
political structures and civil society be engaged in any court
challenge of this nature.
[34]
Essentially the Appellant contended that
this court should exercise its discretion and hear this matter as a
litmus test case to
determine
the
correct interpretation of
Rule
12(4). Test cases are useful because they establish legal rights and
principles, and thereby serve as precedent for future
similar cases.
In my view, it is not in the interests of justice to convert a
dispute relating to an alleged irregular appointment
into a precedent
setting interpretation of Rule 12(4). I am satisfied that the
interests of justice dictate that the legal question
regarding the
proper interpretation of Rule 12(4) would best be ventilated
when a proper challenge
involving
all
interested
parties
should arise. It is precisely because of the importance of the
matter, the political undertones of Regulation (12)4, its
impact on
future appointments and the wider public interest, that a hearing of
this matter should not be entertained on the basis
of an unopposed
review.
[35]
In the result,
I
would have made the following order:
35.1
The appeal is dismissed.
35.2
The Chief Registrar is directed to
furnish a copy of this judgment to the Office of the Minister of
Co-operative Governance and
Traditional Affairs as well as the
Municipal Manager
of
the Municipality
of
Prince Albert.
GLIATH,
DJP
DEPUTY JUDGE PRESIDENT
SLINGERS
J (FORTUIN J concurring) : Majority Judgment
INTRODUCTION
[1]
I
have
read
the
judgment
of
the
Deputy
Judge
President,
Justice
Goliath.
Unfortunately, I
disagree
with
the
conclusions
and
order
made
therein and consequently set out my reasons
therefore below.
[2]
During 2019, the appellant brought an
application wherein it sought the following substantive relief:
(i)
reviewing and setting aside the appointment
of the selection panel, purportedly done pursuant to regulation 12(4)
of the regulations
and conditions of employment of senior managers to
recruit and select an operational manager for the first respondent;
and
(ii)
reviewing and setting aside the appointment
of the second respondent as operational manager for the first
respondent.
[3]
Neither
the
first
nor
the
second
respondent
opposed
the
application
in
the
court
a
quo.
On
the contrary, the first respondent filed a notice to abide by the
court's decision, which was to dismiss the application on 13
May
2020.
As with the
application in the court a
quo,
the
appeal is not opposed.
[4]
The appellant raises three legal issues in
this appeal.
These
are:
(i)
the
validity
of
the
appointment
regulations;
(ii)
the proper interpretation of regulation
12(4) of the appointment regulations and;
(iii)
the
non-joinder
of
the
members
of
the
selection
panel
to
the proceedings.
[5]
It is recorded in the appellant's heads of
argument that the second respondent is no longer employed as the
operational manager
for the first respondent. Notwithstanding this
fact, the appellant argued that the issues raised on appeal not only
remained live
between the appellant and the first respondent, but
that it also raised discrete issues of public importance.
However, the relief pertaining to the
appointment of the second respondent as operational manager for the
first respondent no longer
had to be determined.
[6]
The
validity and /or interpretation of regulation 12(4) will directly
impact on the appointment of managers directly accountable
to
municipal managers throughout the country.
Therefore,
the issues raised in the appeal not only remain between the first
respondent and the appellant but it will also have
a direct practical
effect on the manner in which managers directly accountable to
municipal managers
are
appointed.
[1]
Therefore,
both
Justice Goliath and I agree with the appellant that the appeal
involves a discrete legal issue of public importance which may
require the adjudication of the court as it will affect matters in
the future.
[2]
Consequently,
even if the appeal no longer presented a live controversy, I would
have exercised my discretion in favour of entertaining
the appeal as
the outcome thereof would have a practical effect on the appointments
made by the country's municipalities.
[3]
JOINDER
ISSUE
[7]
At the outset I deal with the issue of
joinder.
[8]
The
law in respect of non-joinder is trite.
In
Absa
Bank Ltd v Naude NO
[4]
,
the
court held that the question to be posed is whether or not the party
to be joined has a substantial interest in the subject
matter of the
litigation and in
Matjhabeng
Local Municipality v Eskom Holdings Ltd
[5]
the
Constitutional Court stated that:
'The
law on joinder is well settled.
No
court can make finding adverse to any person's interests, without
that person first being
a
party
to the proceedings before.
The
purpose of this requirement is to ensure that the person in question
knows of the complaint so that they can enlist counsel,
gather
evidence in support of their position, and prepare themselves
adequately in the knowledge that there are personal consequences
-
including
a
penalty of committal
-
for their non-compliance.
All of these entitlements
are fundamental
to ensuring that potential
contemnors' rights to freedom and security are, in the end, not
arbitrarily
deprived.
'
[9]
In
determining whether or not the members of the selection panel had to
be joined to the proceedings, the question must be posed
whether or
not they had a direct and substantial interest in the subject-matter
of the litigation.
In
determining this issue, it may be asked whether or not any order or
judgment which
the
court
handed
down
could
be
sustained
without
necessarily
prejudicing the interests of the members of the selection panel
[6]
.
[10]
The papers do not evidence
any interest the members of the selection
panel had in the subject matter of the litigation and did not sustain
a finding that the
relief being sought would prejudice their
interests.
Furthermore,
the appellant sought to review the decision of the first respondent
and not any action or decision of the selection
panel.
[11]
This
issue of joinder was raised for the first time in the judgment of the
court
a
quo.
To
mero
motu
raise
and determine
the
issue of non-joiner
without
affording the appellant an opportunity of addressing the court
thereon infringed the appellant's right a fair hearing and
the court
a
quo's
decision,
for this reason alone, cannot stand
[7]
.
[12]
Furthermore, having regard to the nature of
the relief sought and the papers filed in the application, I am of
the view that the
members of the selection committee had no direct
and substantial interest in the litigation subject and that it was
not necessary
for them to be joined as parties to the proceedings.
THE APPOINTMENT
REGULATIONS THE SYSTEMS ACT
[13]
The
Local Government: Municipal Systems Act, Act
32 of 2000
('the
Systems Act')
came
into operation on 1 March 2001.
It
was enacted to inter alia provide for
'a
framework
for
local
public
administration
and
human
resource
development.'
[8]
At
the outset I set out the sections relevant to the determination of
this appeal.
[14]
Section 1 of Systems Act
defines staff in relation to a municipality
as the employees of the municipality, including the municipal
manager.
An
operational manager is a manager who is directly accountable to the
municipal manager. Therefore, it follows that an operational
manager,
as an employee of the municipality, would also be considered staff.
[15]
Section 56(1) of the Systems Act provided
that:
'(a) a municipal
council, after consultation with the Municipal Manager, appoints a
manager directly accountable to the Municipal
Manager; and
(b)
a person appointed
as
a manger in terms of paragraph (a), must
have the relevant skills, and expertise to perform the duties
associated with the post
in question, taking into account the
protection or advancement of persons or categories of person
disadvantaged by unfair discrimination.'
[16]
Section 67(1)
of
the Systems Act states that:
'A municipality, in
accordance with applicable law and subject to any applicable
collective agreement, must develop and adopt appropriate
systems and
procedures, consistent with any uniform standards prescribed in terms
of section 72(1)(c), to ensure fair, efficient,
effective and
transparent personnel administration, including-
(a)
the recruitment, selection
and appointment
of persons as staff members;
(b)
service conditions of staff;
(c)
the supervision
and management
of staff;
(d)
the monitoring,
measuring and evaluating of
performance of staff;
(e)
the promotion
and demotion
of staff;
(f)
the transfer of staff;
(g)
grievance procedures;
(h)
disciplinary
procedures;
(i)
the investigation
of allegations
of misconduct
and complaints against staff;
(j)
the dismissal and retrenchment of staff; and
(k)
any other matter prescribed
by
regulation in terms of section
72.'
[17]
Section 72(1)(c) of the Systems Act
authorises the national Minister responsible for local government
('the Minister')
to
make regulations or to issue guidelines in accordance with section
120 to regulate or provide for the setting of uniform standards
for:
(i)
municipal staff establishments;
(ii)
municipal staff systems and procedures
referred to in section 67(1) and the matters that must be dealt with
in such systems and
procedures, including transfers and termination
of service; and
(iii)
any other matter concerning
municipal personnel
administration.
[18]
Section 120 of the Systems Act authorised
the Minister to make regulations or issue guidelines not inconsistent
with the Systems
Act concerning any manners listed in sections
22, 37,
49,
72, 86A and 104; any matter
that
may be prescribed by the Systems Act and any matter that may
facilitate the application of the Systems Act.
THE AMENDMENT ACT
[19]
On 5 July 2011, the
Local Government
Municipal Systems Amendment Act, Act
7 of
2011
('the Amendment Act')
commenced
operation.
Section
3 of the Amendment
Act
amended
section
56 of the Systems
Act
to read as follows:
'(1)(a)A municipal
council, after consultation with the Municipal Manager, must appoint-
(i)
a manager directly
accountable to the municipal
manager,·
or
(ii)an
acting manager directly accountable to the municipal manager under
the circumstances and for a period as prescribed.
(b)A
person appointed in terms of paragraph (a)(i) must at least have the
skills, expertise, competencies
and
qualifications as prescribed.
'
[20]
Sub-section (4A)(a) of section 56 of the
Systems Act (as amended by the Amendment
Act)
also
permitted the Minister to prescribe
the
process
by which
a municipal council was required to inform the MEC for local
government of any appointments made under the section.
[21]
Prior to the Amendment
Act section 120(1)(a)
applied
to
sections
22,
37, 49, 72,
86A
and 104.
After
the Amendment
Act, section
120(1)(a)
was
expanded to include
sections
54A and 56.
Thus,
as amended,
section 120(1)(a)
applied to sections
22, 37, 49, 54A,
56,
72,
86A and 104.
[22]
Pursuant to his powers set out in section
120 read with section 72 of the Systems Act, the Minister published
the Local Government:
Regulations of Appointment
and Conditions
of
Employment
of
Senior
Managers
in Government Gazette 37245
('the
appointment regulations')
on 17 January
2014.
In the
preamble to the regulations, the Minister clearly states that he
makes the appointment regulations under section 120, read
with
section 72 of the Systems Act.
[23]
Regulation 1 of the appointment regulations
defines
'senior manager'
to
include
'a manager directly accountable
to a Municipal Manager appointed in terms of section 56 of the
Systems Act.
[24]
Regulation 2a states that the appointment
regulations must be read in conjunction with any regulations or
guidelines issued in terms
of section 120 of the Systems Act
concerning
matters
listed in section 54A, 56,
57A and 72.
[25]
Regulation 6(1) of the appointment
regulations states that the recruitment, selection and appointment of
senior managers must take
place in accordance with the municipal
systems and procedures contemplated in section 67 of the Systems
Act that are consistent
with sections
54A, 56, 57A and 72 thereof.
[26]
Regulation 12 provided as follows:
(1)
A municipal council must appoint a
selection panel to make recommendations for the appointment of
candidates to vacant senior manager
posts.
(2)
In deciding who to appoint to a
selection panel, the following considerations must inform the
decision:
(a)
the nature of the post;
(b)
the gender
balance
of
the panel; and
(c)
the skills, expertise, experience and
availability of the persons to be involved.
(3)
The selection panel for the
appointment of a municipal manager must consist of at least three and
not more than five members, constituted
as follows:
(a)
the mayor, who will be the chairperson,
or his or her delegate;
(b)
a councillor
designated
by
the municipal
council;
and
(c)
at
least
one
other
person,
who
is
not
a
councillor
or
a
staff
member
of the municipality, and who has expertise
or experience in the area of the advertised post.
(4)
The selection panel for the
appointment of a manager directly accountable to a municipal manager
must consist of at least three
and not more than five members,
constituted as follows:
(a)
the municipal manager,
who will be the chairperson;
(b)
a member of the mayoral committee or
councillor who is the portfolio head of the relevant portfolio; and
(c)
at least one other person, who is not a
councillor or a staff member of the municipality,
and who has expertise or experience in the
area of the advertised post.
CONSTITUTIONAL INVALIDITY
[27]
On
9 March 2017, the Constitutional Court declared the Amendment Act
unconstitutional and invalid but suspended the constitutional
invalidity for a period of 24 months i.e. coming to an end on 9 March
2019.
[9]
No
new legislation was introduced nor were any other regulations
published in its stead.
[28]
The court a
quo
found that the appointment regulations,
more particularly regulation 12(4) did not survive the declaration of
constitutional invalidity
of the Amendment
Act and that it was also rendered
constitutionally invalid.
[29]
The court a
quo
determined that regulation 12(4) was
made in terms of section 56, duly amended by the Amendment Act and as
the Amendment Act was
declared constitutionally invalid, section 56
(as amended) was also rendered constitutionally invalid.
The court a
quo
rejected the notion that regulation
12(4) could have been made in terms of the Minister's broad powers
set out in section 72 read
together with section 120 of the Systems
Act and reasoned that if the legislature thought the Minister had the
powers, prior to
the Amendment Act, to make regulation 12(4) it would
not have given him those specific powers in the Amendment Act.
[30]
This finding fails to consider the general
power of the Minister in
terms
of section 120 read with section 67(1)(a) and (k) and 72(1)(c)(iii)
which would have empowered the Minister to make any regulations
or
issue guidelines to regulate matters relating to municipal personnel
administration, and thus to make regulation 12(4).
[31]
Furthermore,
the
reasoning of the court
a
quo
is
not consistent with the approach to interpretation prescribed in
Natal
Joint Municipal Pension Fund v Endumeni Municipality.
[10]
The
interpretative exercise required an objective approach, unrelated to
the intention with which the words may have been selected.
The
starting point was to consider the language of the provision, read in
context and having regard to the purpose thereof and the
background
to the preparation and production of the document or regulation.
[32]
The
approach that words must be given their ordinary grammatical meaning
in statutory interpretation, unless to do so would result
in an
absurdity was also endorsed by the Constitutional Court who went on
to hold that (i) statutory provisions must always be
interpreted
purposively, (ii) the relevant statutory provision must be properly
contextualised
and (iii) all statutes
must
be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted
to preserve their constitutional validity
[11]
.
[33]
After applying the approach set out in
Natal Joint Municipal Penson Fund v
Endumeni
Municipality
and
Cool
Ideas
v
Hubbard
by
objectively
considering
the ordinary grammatical
meaning
of section 72 read together with section 120 of the Systems Act, it
is clear that the Minister was clothed with the authority
to make the
appointment regulations independent of the Systems Amendment Act and
therefore, that the validity of the Appointment
Regulations remained
intact notwithstanding the declaration
of
invalidity of the Systems Amendment
Act.
THE INTERPRETATION OF
APPOINTMENT REGULATION 12(4)
[34]
I turn now to the interpretation of
regulation 12(4) of the appointment regulations.
[35]
The appellant submitted that irrespective
of whether or not the selection panel consisted of three, four or
five members, it could
only contain two councillors, namely the
municipal manager and the member of the mayoral committee or
councillor who is the portfolio
head of a relevant portfolio.
This reasoning was rejected by the court
a
quo
which found that regulation 12(4)
does not state in clear words that the selection panel may not have
more than one councillor and
that regulation 12(4) had to be
interpreted to mean that insofar as the composition of the selection
panel was concerned, that
there should at least be the persons
identified in that regulation.
[36]
It is clear from the wording of regulation
12(4) that the only category of persons to whom a minimum of
representation applies is
that of (c) which states that
'at
least one other person who is not a councillor or staff member of the
municipality, and who has expertise or experience
in the area of the advertised post.'
Therefore, it may be accepted that the
only category of persons which could
be
increased
on
the
selection
panel
would
be the
persons
represented by category (c).
[37]
Therefore, I agree with the appellant that
the only sensible manner to read regulation 12(4)(c) is to interpret
it not only as dealing
with the mandatory third member, but also the
optional fourth and fifth members of the selection panel. The
constitution of the
selection panel which appointed the second
respondent consisted of four councillors and was therefore not in
accordance with the
prescripts of regulation 12(4).
CONCLUSION
[38]
In
the
circumstances,
I
would
propose
the
following
order:
The
appeal
is
upheld
and
the
court
a
quo's
order
is
set
aside
and
replaced with the following:
The appointment of the
selection panel, purportedly done pursuant to regulation 12(4) of the
Regulations on Appointment and Conditions
of Employment of Senior
Managers (GNR. 21 published under GG 37245, dated 17 January 2014),
to recruit and select an Operational
Manager for the first respondent
is reviewed and set aside.
SLINGERS
J
Judge
of the High Court
I
agree and
it
is so ordered.
FORTUIN
J
Judge
of the High Court
[1]
Minister
of Justice and others v Estate Stransham
-
Ford
2017
(3) SA 152
(SCA) at para 22
[2]
Child
Law v Hoerskool Fochville and another
2016
(2) SA 121
(SCA)
;
AB
and Another v Pr
i
dwin
Pr
e
paratory
School and Others
2020
(5) SA 327 (CC)
[3]
Legal
Aid South Africa v Magidiwna
2015
(6) SA 494
(CC)
[4]
2016
(6) SA 540
(SCA0
[5]
2018
(1) SA 1
(CC)
[6]
Absa
Bank Ltd v Naude NO
2016
(6) SA 540
(SCA)
[7]
Knoop
NO and Another v Gupta (Execution)
2021
(3)
SA 135
(SCA)
[8]
Preamble
to the Systems Act.
[9]
SAM
WU
v Minister of Co-Operative Governance and Traditional Affairs
2017
(S) BCLR 641
(CC);
[2017] ZACC 7
(9 March 2017)
[10]
2012
(4) SA 593
(SCA) (see paras 18 and 23)
[11]
Cool
Ideas
v Hubbard
2014
(4) SA 474
(CC)