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[2015] ZASCA 118
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Muldersdrift Sustainable Development Forum v Council of Mogale City (20424/2014) [2015] ZASCA 118 (11 September 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20424/2014
DATE:
11 SEPTEMBER 2015
Reportable
In
the matter between:
MULDERSDRIFT
SUSTAINABLE DEVELOPMENT
FORUM
................................
APPELLANT
And
THE
COUNCIL OF MOGALE CITY LOCAL MUNICIPALITY
...............
FIRST
RESPONDENT
THE
EXECUTIVE MAYOR
NO
................................................................
SECOND
RESPONDENT
DAN
METLANA
MASHITISHO
...................................................................
THIRD
RESPONDENT
Neutral
citation:
Muldersdrift Sustainable Development Forum v Mogale City
(20424/14)
[2015] ZASCA 118
(11 September 2015)
Coram:
Lewis
,
Tshiqi,
Petse and
Willis
JJA
and
Baartman AJA
Heard: 25 August
2015
Delivered: 11
September 2015
Summary:
Applicant for relief must demonstrate legal basis for order
sought: applicant had no legal interest in, and no locus standi, to
seek declaratory order that municipal manager’s appointment to
the post was invalid.
ORDER
On
appeal from
:
Gauteng
Division of the High Court
,
Pretoria
(
Hughes
J sitting as the court of first
instance)
:
The appeal is
dismissed with costs.
JUDGMENT
Willis
JA (
Lewis
,
Tshiqi
and Petse
JJA
and Baartman
AJA
concurring):
[1]
The appellant, an unincorporated voluntary association, sought an
order in the Gauteng Division, Pretoria (Hughes J) declaring
that the
third respondent, Mr Dan Metlana Mashitisho had not been duly
appointed as municipal manager of the first respondent (the
municipality). The court a quo dismissed the application. The
appellant appeals, with the leave of this court, against the order
of
the court a quo.
The
Background Facts
[2]
The second respondent, the executive mayor of the municipality and Mr
Mashitisho concluded a contract appointing him as municipal
manager
on 2 October 2006. The duration of the appointment was stipulated as
being for a fixed term of five years but pertinently
left open the
possibility of its renewal and extension. The contract expired on 30
September 2011. In the meantime, the executive
mayor had recommended
to the municipality that Mr Mashitisho’s appointment be
extended.
[3]
On 9 June 2011 the municipality resolved that various of its powers
and functions, ‘other than those non-delegable ones
mentioned
hereunder’, be delegated to the executive mayor. No mention was
made of the appointment of the municipal manager.
Purporting to act
on behalf of the municipality, the executive mayor concluded a
written agreement with Mr Mashitisho on 11 November
2011 extending
his appointment to 30 September 2016. In this regard, the mayor had
been supported by the municipality’s mayoral
committee. The
appointment was reported to the municipal council on 28 February
2012. The municipal council simply noted the fact.
At that meeting,
Mr Mashitisho was congratulated on his second appointment by the
council.
[4]
In the meantime, on 22 October 2012, the appellant had brought an
application to review and set aside the municipal manager’s
decision to establish an emergency site and service centre on the
remainder of portion 10 (a portion of portion 3) of the farm
Honingklip 178 IQ, falling within the municipality’s area of
jurisdiction. After it had brought that application, the appellant
became aware that the municipal manager had been re-appointed and
considered that the proper appointment process had not been followed.
The appellant informed the executive mayor accordingly on 6 December
2012. In February 2013, more than a year after the municipal
manager
had been appointed, the appellant launched a separate application –
the one at issue in this appeal – to declare
the
appointment invalid.
[5]
The appellant complains that the renewal of the appointment did not
comply with the Local Government: Municipal Systems Act
32 of 2000
(the LGMS) and, in particular, sections 54A(1)
(a),
54A(3)(
b),
54A(4)
(a),
57(1)
(a)
and 57(3)
(b)
. It sought
an order that the appointment was invalid and the contract void. It
avers that the appointment could properly have been
made only by the
municipal council itself and not by either the executive mayor or the
mayoral committee; that the appointment
had been made without prior
advertising nationally for applications to fill the post and that,
moreover, the contract of employment
had not been extended in writing
before it had expired. The first application has been held in
abeyance pending the decision in
this matter. The underlying reason
for the appellant’s application is that the appellant wishes to
contest the establishment
of the emergency site and service centre.
The rationale appears to be that, if the municipal manager was
appointed in a procedurally
defective fashion, the appellant might
have greater success in opposing the development.
[6]
The municipality resisted the present application on two main
grounds: (a) that the appellant lacks locus standi
in
iudicio
to bring the application and
(b) that the bona fide renewal or extension of the contract is not
governed by the provisions of the
LGMS, upon which the appellant has
relied.
[7]
In its answering affidavit, the municipality has said that Mr
Mashitisho ‘
served his five-year term
successfully and his performance as Municipal Manager was beyond
criticism’ but has not denied that
the appointment was made
without advertising the post nationally and that his service on the
extended term began before the written
contract of employment to this
effect had been concluded. The executive mayor of the municipality
has said that he extended
Mr Mashitisho’
s
appointment by virtue of powers delegated to him in terms of a
resolution of the council taken on 14 June 2011. The resolution
makes
no reference to the appointment of any persons, including the
municipal manager. The minutes of a meeting of the municipal
council
held on 28 February 2012 record that the appointment of Mr
Mashitisho
as municipal manager had been done in
the manner in which it was so as not to ‘delay service
delivery’.
[8]
The court a quo dismissed the application on the basis that the
proper procedure, which the appellant had not followed, would
have
been for the appellant to have brought a review application in terms
of s 33 of the Constitution. This section relates to
the right of
every person to fair administrative action. The Promotion of
Administrative Justice Act 3 of 2000 (PAJA) is designed
to give
effect to this constitutional requirement.
[1]
The
legal basis upon which the appellant seeks to challenge the
re-appointment of the municipal manager
[9]
The appellant did not bring its application in terms of s 38 of the
Constitution, which relates to alleged infringements of
rights
enshrined in the Bill of Rights. Indeed, the appellant expressly
disavowed any such intention. Furthermore, the appellant
did not rely
on PAJA and did not seek to review the decision on the common law
grounds relating to legality. The appellant relied
simply on the
provisions of s 19(1)
(a)
(iii) of the Supreme Court Act
59 of 1959, which has been repealed, and replaced by
s 21(1)
(c)
of
the
Superior Courts Act 10 of 2013
. The subsection provides that a
court has the power:
‘
in
its discretion and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.’
I
shall deal with the question whether the appellant is entitled to
rely on the subsection in due course.
[10]
Before making that enquiry, it should be noted, at the outset, that
one cannot snatch a remedy from the air. In a unanimous
judgment of
this court in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
[2]
Howie P and Nugent JA, referred with approval to the following
passage in Wade’s
Administrative
Law
:
[3]
‘
The
truth of the matter is that the Court will invalidate an order only
if the right remedy is sought by the right person in the
right
proceedings and circumstances. The order may be hypothetically a
nullity, but the Court may refuse to quash it because of
the
plaintiff’s lack of standing, because he does not deserve a
discretionary remedy, because he has waived his rights, or
for some
other legal reason.’
[4]
Although
the passage deals with an administrative decision it would apply
equally, in my view, to the right to claim a declaratory
order under
s 21(1)
(c)
.
The
procedural defects in the municipal manager’s re-appointment
[11]
Section
54A(1)
(a)
of
the LGMS provides that it is the municipal council itself that must
make the appointment of the municipal manager.
The portions of
the LGMS, relating to the appointment of a municipal manager, upon
which the appellant has relied are:
(i)
Section 54A(1)
(a)
, which provides that:
‘
The
municipal council must appoint –
(a)
a municipal manager as head of the administration of the municipal
council; or
...
’
(ii)
Section 54A(3)(b)
, which provides that:
‘
A
decision to appoint a person as municipal manager, and any contract
concluded between the municipal council and that person in
consequence of the decision is null and void if –
(b)
the appointment was otherwise made in contravention of this Act.’
(iii)
Section 54A(4)
(a)
, which provides that:
‘
If
the post of municipal manager becomes vacant, the municipal council
must
–
(a)
advertise the post nationally to attract a pool of candidates
nationwide; and
. . . ’
(iv)
Section 57(1)
(a),
which provides that:
‘
.
. . the municipal manager . . . may be appointed to that position
only –
(a)
in terms of a written employment contract with the municipality. . .’
and
(v)
Section 57(3)
(b)
, which provides that:
‘
The
employment contract referred to in subsection (1)
(a)
must –
(b)
be signed by both parties before the commencement of service.’
[12]
Section 59 of the LGMS, which relates to the delegation of powers
within a municipality, provides that:
‘
(1)
A municipal council must develop a system of delegation that will
maximise administrative and operational efficiency and provide
for
adequate checks and balances, and, in accordance with that system,
may —
(
a
)
delegate appropriate powers, excluding a power mentioned in
section
160 (2)
of
the
Constitution
and
the power to set tariffs, to decide to enter into a service delivery
agreement in terms of
section
76 (
b
)
and
to approve or amend the municipality’s integrated development
plan, to any of the municipality’s other political
structures,
political office bearers, councillors, or staff members;
(
b
)
instruct any such political structure, political office bearer,
councillor, or staff member to perform any of the municipality’s
duties; and
(
c
)
withdraw any delegation or instruction.
(2)
A delegation or instruction in terms of
subsection
(1)
—
(
a
)
must not conflict with
the
Constitution
,
this Act or the Municipal Structures Act;
(
b
)
must be in writing;
(
c
)
is subject to any limitations, conditions and directions the
municipal council may impose;
(
d
)
may include the power to sub-delegate a delegated power;
(
e
)
does not divest the council of the responsibility concerning the
exercise of the power or the performance of the duty; and
(
f
)
must be reviewed when a new council is elected or, if it is a
district council, elected and appointed.
(3)
The municipal council—
(
a
)
in accordance with procedures in its rules and orders, may, or at the
request in writing of at least one quarter of the councillors,
must,
review any decision taken by such a political structure, political
office bearer, councillor or staff member in consequence
of a
delegation or instruction, and either confirm, vary or revoke the
decision subject to any rights that may have accrued to
a person; and
(a)
may require its executive committee or
executive mayor to review any decision taken by such a political
structure, political office
bearer, councillor or staff member in
consequence of a delegation or instruction.
(4)
Any delegation or sub-delegation to a staff member of a power
conferred on a municipal manager must be approved by the municipal
council in accordance with the system of delegation referred to in
subsection
(1)
.’
[13]
The requirement, in s 54A(1)
(a)
of
the LGMS, that it is the municipal council which must appoint the
municipal manager, read together with s 59(2), that a delegation
must
not conflict with the provisions of the LGMS itself, indicate that
the delegation by a municipal council of its obligation
to appoint a
municipal manager is not permissible. The re-appointment of the
municipal manager was indeed procedurally defective.
I am fortified
in this view by reference to
Mgoqi
v City of Cape Town & another; City of Cape Town
v
Mgoqi & another
[5]
in which Van Zyl J said:
‘
From
a perusal of the relevant legislation, it would appear that there is
no provision in terms of which the municipal council may
delegate to
the executive mayor the all-important power to appoint a municipal
manager. It gives rise to the irresistible inference
that it was
never the intention of the Legislature to sanction such a
delegation.’
[6]
The
judge continued:
‘
If
indeed it had been possible to delegate such power to the executive
mayor, it would, as pointed out by
Mr
Binns-Ward
,
lead to an absurd situation. A municipal council wishing to appoint a
municipal manager would be obliged to comply with s 30(5)
(c)
of the Structures Act, which requires that the executive mayor submit
a report and a recommendation regarding his appointment and
conditions of service. An executive mayor clothed with delegated
power of making such appointment could, however, dispense with
such
requirement on the basis that he or she could not be expected to
render a report or make a recommendation to himself or herself.
This
would amount to the municipal council delegating greater powers to
the executive mayor than it itself possessed.’
[7]
And,
later:
‘
The
city’s second ground of review is an alternative to the first
and relates to the city’s system of delegations. It
likewise
contains no provision that the council may delegate the power to
appoint a municipal manager to an executive mayor. It
is common cause
that the system of delegations contains an exhaustive list of all
relevant delegations made by the council. The
appointment of a
municipal manager is not one of them.
’
[8]
[14]
Accordingly, Van Zyl J concluded that the appointment of a municipal
manager could not be delegated by the municipal council.
The court’s
conclusion related, inter alia, to the interpretation of another
statute, the
Local Government: Municipal Structures Act 117 of 1998
,
but the principles of interpretation in regard to the issues before
us remain the same.
[15]
The renewal of the municipal manager’s contract was thus
procedurally defective. Only the council had the power to conclude
such a contract, and its later ratification was not sufficient, given
the wording of s 30(5)
(c)
of
the Municipal Structures Act which requires the mayor to submit a
report and recommendation before making any appointment. Applying
the
principles set out in
Oudekraal
above, however, the procedural irregularity in the re-appointment of
the municipal manager does not, without more, entitle the
appellant
to the relief which it has sought.
The
interest of the appellant
[16]
In each of the cases upon which the appellant has relied, and which
dealt with s 19(1)(a)(iii) of the Supreme Court Act, it
was made
clear that, in order to succeed in obtaining a declaratory order, a
party must establish a legally recognised interest
in obtaining
it.
[9]
In the circumstances of
this case, the appellant has established no such interest. It is also
far from clear that, had the municipal
council acted correctly in the
manner of the appointment of the municipal manager, it would have
made any material difference to
the interests which either the
appellant or its members seek to advance. Recently, in
Illovo
Opportunities Partnership #61 v Illovo Junction Properties (Pty) Ltd
& others
[10]
this court affirmed that, in order to obtain a declaratory order in
terms of the
s 21(1)
(c)
of
the
Superior Courts Act, the
applicant must have a ‘direct and
substantial interest’ in the order sought.
[11]
The appellant’s interest cannot be so described.
The
discretion of the court to grant a declaratory order
[17]
It also needs to be emphasised that there is a two-stage substantive
enquiry leading to the decision whether or not to grant
a declaratory
order: not only must the court be satisfied that the applicant has
the necessary interest but also that the case
is a proper one for the
exercise of the discretion given to the court.
[12]
[18]
Of course, the ratepayers – and indeed the residents –
of a municipality have an interest in its municipal manager
being
properly appointed but this does not, without further ado, qualify it
as a ‘necessary’ interest: something more
is
required.
[13]
In other words,
it is not ‘any old’ interest that will suffice: the
interest must be one that, in the eyes of the law,
may deserve the
intervention by the court on behalf of the applicant. There are
insufficient considerations, appearing from the
papers, to confer
upon the appellant the necessary interest for it to derive locus
standi. This is all the more so, given the period
of a year between
the appointment of the municipal manager and the challenge to it.
[19]
Fraud or gross irregularity in the conduct of a public body may
justify an exception to the more usually circumscribed approach
to an
applicant’s ‘necessary interest’ in the matter.
[14]
From the papers in the present case, the flaws in the appointment of
the municipal manager seem to derive from no more than an
error on
the part of the municipal council.
[20]
The appellant’s difficulties would have persisted, even if it
had relied on section 38 of the Constitution or PAJA. I
shall briefly
consider these aspects, in turn.
Section
38 of the Constitution
[21]
If the appellant were to have relied on s 38 of the Constitution in
bringing its application, it would have encountered hurdles
affecting
its locus standi or standing to do so. The bar which has to be
straddled is not formidably high.
In
Freedom
Under Law v Acting Chairperson: Judicial Service Commission &
others
[15]
this court affirmed that a broad, rather than a narrow approach,
should be adopted in regard to standing.
[16]
[22]
In
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development &
others
[17]
it
was made clear that the overriding consideration for a court not only
in deciding whether to hear an application in terms of
s 38 of the
Constitution but also whether to grant relief, is ‘the
interests of justice’.
[18]
In broad terms, there are two types of locus standi that derive from
s 38: ‘own interest’ and ‘public interest’,
the latter of which are brought by way of what are generally known as
‘class applications’.
Tulip
Diamonds
dealt with an ‘own interest’ application. This appeal is
brought by an association acting in the interest of its members.
Nevertheless, for the reasons set out above, even if the appellant
had relied on s 38, the interests of justice would not have
required
that the court should come to its assistance: not only is its
interest insufficient but the circumstances of the case
do not call
for the exercise of a discretion in its favour.
PAJA
[23]
Counsel for the appellant contended that PAJA was irrelevant to the
issue in question. Even if the appellant had relied on
PAJA, the
following aspect would be relevant: acting on the assumption that the
appointment of the municipal manager would have
constituted
‘administrative action’ in terms of s 1 of PAJA, the
appellant would, in any event, have been way out of
time in terms of
the 180-day time limit provided for in s 7(1) of PAJA. In the
circumstances of this case, the importance
of finality would, almost
certainly, have overridden other considerations, even if the
appellant had otherwise been eligible to
have an extension of the
180-day time bar
considered
in terms of s 9 of PAJA.
[19]
Conclusion
[24]
Other than the procedural issues relating to the appointment of the
municipal manager, the appellant has not been able to demonstrate
to
this court what right it seeks to protect, or what interest it has in
setting aside the appointment of the municipal manager.
The only
reason for the application appears to have been to bolster the
appellant’s case in the other application. It has
advanced no
reason to impugn the conduct of the municipal manager or the
municipality in that application. The prejudice to the
municipality
and its ratepayers and residents in setting aside the appointment at
this stage would outweigh any possible advantage,
including
protecting the integrity of the process of appointment of municipal
managers. It would undermine the interests of justice
to declare that
appointment invalid: certainty in decision-making would not be
achieved.
[25]
The high court came to the correct decision in dismissing the
application. The appeal cannot succeed.
[26]
The following order is made:
The appeal is
dismissed with costs.
N P
WILLIS
JUDGE
OF APPEAL
A
PPEARANCES:
For the
Appellant:
JHL Scheepers
Instructed by:
Henk Venter, c/o Bares & Basson, Pretoria
c/o
Symington
& De Kok
, Bloemfontein
For the
Respondent:
WR Mokhari SC
Instructed by:
Twala Atorneys, c/o Matsego Ramagaga Attorneys
,
Pretoria
c/o
Webbers
,
Bloemfontein
[1]
See
for example
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 22; (CCT 27/03)
[2004] ZACC 15.
See
also
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd & others
2013
(3) BCLR 251
(CC) para 29; (CCT 25/12)
[2012] ZACC 28
and
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development &
others
2013
(10) BCLR 1180
(CC) para 30; (CCT 93/12)
[2013] ZACC 19.
[2]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA); (25/08)
[2009] ZASCA 85.
[3]
H
W R Wade and C F Forsyth Administrative Law 7ed (1994) at 342.
[4]
Id
para 28.
[5]
Mgoqi
v City of Cape Town & another; City of Cape Town
v
Mgoqi & another
2006
(4) SA 355
(C).
[6]
Id
p
ara
105.
[7]
Id
para 106.
[8]
Para
109.
[9]
See
Eye
of Africa Developments (Pty) Ltd v Shear
2012 (2) SA 186
(SCA) paras 30 and 31; (863/2010)
[2011] ZASCA 266
;
Municipal
Manager: Qaukeni Local Municipality & another v FV General
Trading CC
2010
(1) SA 356
(SCA) para 23;(324/2008)
[2009] ZASCA 66.
Langa
CJ v Hlophe
2009 (4) SA 382
(SCA) para 28; (697/08)
[2009] ZASCA 36.
Trinity
Asset Management (Pty) Ltd & others v Investec Bank Ltd
& others
2009 (4) SA 89
(SCA) para 16; (574/07)
[2008] ZASCA
158.
Cordiant
Trading CC v Chrysler Financial Services (Pty) Ltd
2005 (6) SA 205
(SCA) paras 15 to 18; (237/2004)
[2005] ZASCA 50.
[10]
Illovo
Opportunities Partnership #61 v Illovo Junction Properties (Pty) Ltd
& others
(490/13)
[2014] ZASCA 119.
[11]
Id
para 14. See also
The
Public Protector v Mail & Guardian Ltd & others
2011
(4) SA 420
(SCA) para 29; (422/10)
[2011] ZASCA 108
and
Cabinet
of Transitional Government for Territory of South West Africa v Eins
1988 (3) SA 369
(A) at 388B-I; (522/86)
[1988] ZASCA 32
and the
authorities therein collated.
[12]
See
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[2006] 1 All SA 103
(SCA) para 16; (237/2004)
[2005] ZASCA 50.
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam,
Maphanga v Officer Commanding, South African Police Murder
&
Robbery Unit & others
1995
(4) SA 1
(A) at 14F; (500/93,525/93)
[1995] ZASCA 49.
Ex Parte
Nell
1963 (1) SA 754
(A) at 759H-760B;
[1963] 2 ALL SA 55
(A) and
Durban
City Council v Association of Building Societies
1942
AD 27
at 32
[13]
See,
for example,
Kruger
v President of Republic of South Africa & others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) para 26. In this court it has been said that,
in general, in order to have locus standi, the interest must be
direct and
substantial. See for example
Gross
& others v Pentz
[1996] ZASCA 78
;
1996
(4) SA 617
(A) at 632C-G; (414/95)
[1996] ZASCA 78
and
Sandton
Civic Precinct (Pty) Ltd v City of Johannesburg & another
[2008] ZASCA 104
;
2009 (1) SA 317
(SCA) para 19; (458/2007)
[2008] ZASCA 104.
See also
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development &
others
2013
(10) BCLR 1180
(CC) paras 31 and 40; CCT 93/12) [2013] ZACC19.
[14]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd
(supra)
paras 34 and 38 and
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development &
others
2013
(supra) para 45.
[15]
Freedom
Under Law v Acting Chairperson: Judicial Service Commission &
others
2011
(3) SA 549
(SCA);
[2011] ZASCA 59
; 52/2011 (31 March 2011).
[16]
Id
paras 19 and 20.
[17]
Tulip
Diamonds FZE v Minister for Justice and Constitutional Development &
others
2013
(10) BCLR 1180
(CC); CCT 93/12) [2013] ZACC19.
[18]
Id
para 30. See also
Freedom
Under Law v Acting Chairperson: Judicial Service Commission &
others
(supra) paras 19 and 20.
[19]
See
for example
Gqwetha
v Transkei Development Corporation Ltd & others
2006 (2) SA 603
(SCA) para 21; (268/03)
[2004] ZASCA 78.
Associated
Institutions Pension Fund & others v Van Zyl & others
2005 (2) SA 302
(SCA) para 46; (242/2004)
[2005] ZASCA 51.
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41E-F; (CCT 12/07)
[2007] ZACC 24.
See also
Van
Wyk v Unitas Hospital & another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 20 and the authorities therein cited and
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
[2010] 2 All SA 519
(SCA) paras 53 to 56; (560/08)
[2010] ZASCA 3.