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2022
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[2022] ZAFSHC 147
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Member of the Executive Council for the Department of Cooperative Goverance and Traditional Affairs Free State v Maluti-A-Phofung Local Municipality and Others (23/2021) [2022] ZAFSHC 147; [2022] 3 All SA 403 (FB) (28 April 2022)

IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
PROVINCIAL DIVISION
Case No.: 23/2021
Reportable: YES/NO
Of interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
CO-OPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS:
FREE
STATE
[1]
Applicant
and
THE
MALUTI-A-PHOFUNG LOCAL MUNICIPALITY
First Respondent
MR.
FUTHULI PATRIC MOTHAMAHA
Second
Respondent
MS.
MATHOLASE JEMENA
MAZINYO
Third
Respondent
COUNCIL OF THE
MALUTI-A-PHOFUNG
LOCAL
MUNICIPALITY
[2]
Fourth
Respondent
Coram:
Molitsoane,
J
et
Opperman, J
Judgment
by:
Opperman,
J
Date
of hearing:
28 February
2022
Order:
28
April
2022
Reasons
for Judgment:
The reasons for
judgment were handed down electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 28 April 2022. The date and time for hand-down is deemed to be 28
April 2022 at 15h00.
Summary:
Review of appointments of Municipal
Manager and manager directly accountable to the Municipal Manager
whilst Municipality under
Administration and Intervention in terms of
section 139(5) of the Constitution of the Republic of South Africa,
1996 and
section 139
of the
Local Government: Municipal Finance
Management Act, 56 of 2003
; and in contravention of Resolutions taken
by the Municipal Council.
JUDGMENT
INTRODUCTION &
OVERARCHING LEGAL FRAMEWORK
[1]
The applicant approached the court to review and to declare upon the
alleged unlawful
appointment of the second and third respondents on
alleged unlawfully increased remuneration packages and the resultant
unlawful
drawing of the salaries.
[3]
[2]
The golden thread that runs through the case is the public’s
interest as decreed
in the Constitution of the Republic of South
Africa, 1996 (“the Constitution”). The focus is on local
governments.
[3]
Local
government is the sphere of government closest to the people
.
These organs of state and its officials
[4]
are the sentinels of basic human rights such as electricity delivery,
water for household use, sewage and sanitation, storm water
systems,
refuse removal, fire-fighting services and municipal health services.
[4]
Their duty to manage the budget and monies of the Municipality with
the utmost integrity
and honour is supreme.
[5]
If the conduct of the Municipality, the Municipal Manager, a
manager(s) directly accountable
to the Municipal Manager and the
Municipal Council does not comply with their legislatively imposed
obligations; they must be called
to order.
[6]
The
uniqueness of this case is that the purview in law lies in the
application of section 139(5)
[5]
of the Constitution and section 139
[6]
of the
Local Government: Municipal Finance Management Act, 56 of 2003
in that the Municipality was effectively placed under Administration
by Mandatory Intervention. The Intervention
restricted
the Municipality in the exercise of its authority. The Intervention
confirmed an Order of the Free State Provincial Division
of the High
Court
.
[7]
[7]
The authority of the Administrator, in introduction, provides
context.
Inter
alia,
in “The Terms of Reference for the Joint Intervention Team at
Maluti-A-Phofung Local Municipality”, signed by the Member
of
the Executive Council for Co-operative Governance and Traditional
Affairs on 10 February 2018:
[8]
1.
To
assume all executive obligations in terms of the Constitution or any
other legislation except for legislative obligations listed
in
section 160(2)
[9]
of the
Constitution;
2.
to facilitate and ensure that all vacant
positions/post of senior managers are filled;
3.
to focus particularly on curbing the
ballooning salary costs while improving performance;
4.
to ensure compliance with “The Terms
of Reference for the Joint Team at Maluti-A-Phofung Local
Municipality”. Paragraph
4 is material
in
casu
:
4.1
The Administrator
assumes all executive obligations/functions
of the Municipality as contained and conferred to by the Constitution
or any National or Provincial Legislation. (Accentuation
added)
4.2
The Acting/Municipal Manager and his/her Administration,
must
report to the Administrator, and any administrative decision taken by
the said officials must be approved by the Administrator.
(Accentuation added)
4.3
The Municipal Council and all its organs, including such structures
as the Mayoral Committee
and the Municipal Public Accounts Committee
(MPAC) must obligatorily continue to function within the legislative
framework and
parameters of the Intervention and Municipal Financial
Recovery Plan,
and the decisions and resolutions thereof must all
be ratified and approved by the Administrator before implementation.
(Accentuation added)
4.4.
Except for the legislative obligations enlisted in section 160(2) of
the Constitution, the Municipal
Council, when exercising its
constitutional and legislative obligations,
must request approval
for its decision from the Administrator before the implementation of
any such resolution.
(Accentuation added)
[8]
Only the Administrator had the authority to contract on behalf of the
Municipality
with the second and third respondents. Part of the
relief sought is a declaration of the Court that the contracts
proposed by the
applicant at “FA5(a)” and “FA5(b)”
must be enforced. The parties thereto to be in accordance with the
Intervention
as correctly stated in “FA5(a)” and
“FA5(b)”.
[10]
[9]
The incident, scenario and the relationship between the parties
in
casu
is the exercise of public power that affects the citizens of the
Municipality. The Doctrine of Legality finds application. Hoexter
[11]
stated it to be: “Primarily, the principle of legality is a
convenient way of requiring all exercises of public power –

including non-administrative action – to conform to certain
accepted minimum standards. It is thus also a way of overcoming
the
all-or-nothing results that are dictated by the use of threshold
concepts.” The then Chief Justice Mogoeng Mogoeng, on
25 July
2013, explained it to be: “The doctrine of legality, which is
an incident of the rule of law, is one of the constitutional
controls
through which the exercise of public power is regulated by the
constitution.”
[12]
I
will return to the Rule of Law and the Doctrine of Legality later.
[10]
Section 152 of the Constitution declares the objects or minimum
standards Hoexter referred to;
and of local government that is the
subject
in casu
:
(1)
The objects of local government are-
(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communities in a sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment; and
(e)
to encourage the involvement of communities and community
organisations in the matters of local government.
(2)
A municipality must strive, within its financial and administrative
capacity, to achieve the
objects set out in subsection (1).
[11]
Section 153 of the Constitution affirms the developmental duties of
municipalities
.
A municipality must-
(a)
structure and manage its administration and budgeting and planning
processes to give priority to the basic
needs of the community, and
to promote the social and economic development of the community; and
(b)
participate in national and provincial development programmes.
[12]
The preamble of the
Local Government: Municipal Structures Act, 117
of 1998
proclaims democracy and good governance of the people of the
Republic of South Africa on local government level:
WHEREAS the Constitution
establishes local government as a distinctive sphere of government,
interdependent, and interrelated with
national and provincial spheres
of government;
WHEREAS there is
agreement on the fundamental importance of local government to
democracy, development and nation-building in our
country;
WHEREAS past policies
have bequeathed a legacy of massive poverty, gross inequalities in
municipal services, and disrupted spatial,
social and economic
environments in which our people continue to live and work;
WHEREAS there is
fundamental agreement in our country on a vision of democratic and
developmental local government, in which municipalities
fulfil their
constitutional obligations to ensure sustainable, effective and
efficient municipal services, promote social and economic

development, encourage a safe and healthy environment by working with
communities in creating environments and human settlements
in which
all our people can lead uplifted and dignified lives;
WHEREAS municipalities
across our country have been involved in a protracted, difficult and
challenging transition process in which
great strides have been made
in democratising local government; and
WHEREAS municipalities
now need to embark on the final phase in the local government
transition process to be transformed in line
with the vision of
democratic and developmental local government;
[13]
Section 19 of the same Statute
[13]
states that:
19
Municipal objectives
(1)
A municipal council must strive within its capacity to achieve the
objectives set
out in section 152 of the Constitution.
(2)
A municipal council must annually review-
(a)
the needs of the community;
(b)
its priorities to meet those needs;
(c)
its processes for involving the community;
(d)
its organisational and delivery mechanisms for meeting the needs of
the community;
and
(e)
its overall performance in achieving the objectives referred to in
subsection (1).
(3)
A municipal council must develop mechanisms to consult the community
and community organisations
in performing its functions and
exercising its powers.
[14]
It is trite that the applicant is responsible for co-ordination,
monitoring and support of municipalities
in each province. This is by
virtue of sections 154
[14]
and
155
[15]
of the Constitution.
The supervisory role of the provincial government includes the
duty to prevent and rectify any unlawful
conduct on the part of
municipalities. As such the applicant is duty bound to approach the
Court to rectify any unlawful conduct
when such conduct comes to its
knowledge. The applicant is the executive authority of the Free State
Provincial Government whose
mandate it is to;
inter
alia,
ensure
compliance with sections 154 and 155 of the Constitution. The
locus
standi
of the applicant is in dispute. This brings me to the issues of the
case.
THE ISSUES & THE
RESULTANT STRUCTURE OF THIS JUDGEMENT
[15]
The applicant’s case is based on four pillars:
[16]
1.
The applicant has appropriate
locus
to institute legal proceedings against the first respondent and is
not non-suited by the provisions of the
Intergovernmental Relations
Framework Act, 2005
.
2.
The resolution adopted by the first
respondent’s council was unambiguous that the appointments of
the second and third respondents,
was subject to the current upper
limits, which upper limits are prescribed in the Regulations.
3.
The administrator had correctly made an
offer of remuneration packages to the second and third respondents,
which factored the variables
prescribed by the Regulations.
4.
Consequently, the remuneration packages
above what (sic) was authorised by the council resolution, is
unlawful, irregular and must
be declared as such.
[16]
Counsel for the first, second, third and fourth respondents
maintained that:
[17]
1.
The application suffers from endemic
deficiencies. The Doctrine of Legality is inapplicable as a ground
for review. Consequently,
the review and declaratory relief are
sought out of time.
2.
Even if the Doctrine of Legality finds
application, it has not been shown that any of the respondents acted
outside the ambit of
what was permitted by the enabling legislation.
As no case for arbitrary and irrational decision - making has been
made, there
simply is - respectfully - no case.
3.
The case made is a bad one. The MEC’s
case is doomed to failure. The respondents argue that the relief
sought is incompetent
in terms of the Local Government Municipal
Systems Act and the fact that the MEC did not follow the procedure
set out in Rule 53.
The delay was unreasonable and the record not
called for.
4.
They take issue with the fact that the
employment agreement is a contract and the relationship between the
disputing parties is
horizontal. It does not form part of the public
law.
[17]
The issue of joinder was raised in the opposing affidavits but it
seems to have fell by the wayside.
Advocate Grobler SC, for the
respondents, remarked that the fourth respondent was cited
incorrectly: “Much was made of this
in the Opposing Affidavit,
and the council obviously does not have standing independent of the
Municipality. But the point is neither
here nor there.”
[18]
[18]
The answer of the applicant to the aspect is that the second and
third respondents neither raised
a point of non-joinder or
misjoinder. The applicant deny that the Council cannot be joined in
proceedings and submit that the objection
does not take the
respondents’ case further. The third respondent confirmed that
the first and fourth respondents are unitary.
The applicant
specifically deny that the application was drafted with a “lack
of care” due to this.
[19]
The issues of joinder and lack of care will, in light of the above,
be disregarded. It obviously
does not play any part in the dispute
anymore.
[20]
The respondents acknowledged the standing of the MEC to bring a
matter that concerns the appointment
of a Municipal Manager to Court,
but complained about the unreasonable delay to do so:
10.4
Section 56(5)
[19]
for
instance, obligates the MEC to act within 14 days of becoming aware
of any appointment that is made in contravention of the
Act.
This
includes a declaratory order from a competent court.
(Accentuation added)
10.5
Of course this is nowhere near an approximation of compliance with
this section. The MEC also does not explain why it took
months on end
to launch this proceeding – under circumstances where it is
repeatedly stated that the Act had been contravened.
[20]
[21]
The applicant explained the delay in detail.
[21]
1.
The applicant wanted
to afford the respondents adequate opportunity to remedy the
situation. This was to no avail.
2.
The Administrators’
duties in the first respondent were marked by having to immediately
become acquainted with the administration
and exercising of his
duties in what could only be termed as an inhospitable environment.
Mr. Goliath’s tenure - of just
under three months - was not
without challenges, obstacles and unfortunately resistance by many
officials in the first respondent.
3.
To make matters
worse, the appointment of Mr. Goliath coincided with the Level 5
National Covid Lockdown. This caused havoc in the
pursuit of action
against the respondents.
4.
For example, on 22
April 2020, the Administrator was summoned to the office of the
Executive Mayor for a meeting regarding the status
of the first
respondent. The first respondent was functioning at a limited
capacity of only essential services’ staff being
permitted to
work as a result of the National Lockdown which commenced at midnight
on Thursday 26 March 2020. The gist of the meeting
however was soon
revealed to be discontent that the Administrator had signatory powers
regarding the first respondent’s bank
account.
5.
After the meeting,
and on the same day, the Administrator was forcefully and unlawfully
ejected from and denied access to the offices
of the first respondent
by private security personnel. It was done on instructions of the
speaker and the chief whip who were present
at the meeting with the
Executive Mayor.
6.
The Administrator
informed the applicant and the Head of Department of the event and
requested intervention. Discussions ensued
to resolve the matter and
only on 28 May 2020 was the Administrator advised of the steps to
take
to
resolve the situation.
7.
The Administrator was
released from his duties towards the end of June 2020. From the
evidence it may be construed that he was literally
ostracised by the
respondents for doing his work with diligence and honour. This in
contravention of a clear Court Order and the
section 139 -
Intervention.
8.
July and August 2020
were characterised by the intermittent closures of the applicant’s
department’s offices in response
to positive cases of Covid.
9.
During September
2020, there was some form of stability in that the normal operations
were restored and offices started full scale
operations, albeit with
intermittent disruptions due to Covid related issues.
10.
The alleged second
and third respondents’ malfeasance is of a continuous nature.
The second and third respondents are persisting
in drawing the
alleged unlawful amounts as salaries. The alleged unlawful conduct
persisted notwithstanding numerous interventions
and cautions.
11.
The applicant had to
approach the Court; this to be a last resort and remedial step.
12.
On 5 January 2021 a
Notice of Motion was issued and an urgent application lodged. The
matter was struck from the
roll
for want of urgency.
13.
The third respondent
gave Notice of Intention to Oppose on 11 February 2021 and filed her
Opposing Affidavit on 17 February 2021.
14.
The second respondent
only filed his Opposing Affidavit on 18 June 2021.
15.
The matter was
returned to the
roll,
on 7 October 2021, but postponed to 2 December 2021. It was realised
that the case demanded a sitting of two judges and the
matter was
postponed to 28 February 2022.
16.
In the meanwhile, the
applicant’s Replying Affidavit to the first, second and fourth
respondents was filed on 25 November
2021.
[22]
The delay in the case is understandable in the prevailing
circumstances. The animosity of the
respondents and their obstructive
behaviour during the period of the section 139 - Intervention was
unacceptable. They should have
contributed to a solution in the
interest of the democracy of the country for which people sacrificed
their lives.
[23]
The applicant should have done more to obtain justice and expedite
the litigation.
[24]
The prejudice lies in the words of the applicant’s
representative at paragraph 109 on page
38 of the record:
Unmeasurable
is the issue of public confidence in public institutions. The decline
in public confidence constitutes an important
tenet of democracy
which must not be countenanced.
[25]
In
Lethoko and Another v Minister of Defence and Others
2021
(2) SACR 661
(FB) I observed that:
The
history of this matter shows beyond any doubt that the cause of the
repulsive delay from 2006 to 2021 in the finalisation of
this case
lies at the door of the Presiding Officers, the applicants and the
first respondent. They brought the administration
of justice into
disrepute and they could have done much better to serve their duty to
ensure expeditious finalisation of the case.
The charges against the
applicants are serious. It was committed against their employer and
the theft was blatantly committed in
relation to the property of the
taxpayer and law-abiding citizens of the country. The evidence
against the applicants is strong.
On the other hand, the applicants
are represented by sturdy and experienced Counsel; they face no trial
prejudice. Prejudice on
other levels such as training and promotion
opportunities can be addressed on other points of law. It is high
time for the matter
to go on trial and for justice to take its
course. A healthy democracy and the protection of the citizen in
general demand that
cases of this nature be tried and concluded. The
inappropriate management of criminal cases by individuals may not
cause the Rule
of Law to fail the country.
[26]
The same is true in this case. The allegations against the
respondents are serious and the conduct
of all the parties by
dragging their feet in bringing the matter to Court are bringing the
administration of justice into disrepute.
All the parties were
represented throughout the events by institutions and individuals
with knowledge and experience of literally,
amongst the highest
calibre, in the country.  To reiterate and in the sphere of the
abhorrent general waning and declining
of our local governments due
to greed and ineffectiveness: A healthy democracy and the protection
of the citizen in general, demand
that cases of this nature be tried
and concluded. The inappropriate management of cases by individuals
may not cause the Rule of
Law to fail the country.
[27]
In light of the above this Court is, constitutionally so, duty -
bound to allow the matter on
the
roll and excuse the
delay.
[28]
The judgment will address the issues in the following order:
1.
The evaluation of the
conduct of the respondents in the circumstances of the case through
the common cause factual circumstances.
Were the contracts they
entered into legal on the facts and prevailing legal framework?
2.
The relationship
between the applicant and the second and third respondents. The
employment contract: Is the contract between the
disputing parties a
horizontal relationship? Does it not resort under Labour Law?
3.
The Doctrine of
Legality as a ground for review.
4.
The
locus
standi
of
the applicant and the application of the provisions of the
Intergovernmental Relations Framework Act, 2005
.
THE
EVALUATION OF THE CONDUCT OF THE RESPONDENTS IN THE CIRCUMSTANCES OF
THE CASE THAT ARE COMMON CAUSE
THE
CONTRACTS
[29]
The Municipality had by 2018, for a substantial period, been
suffering a financial crisis and
was in serious and persistent breach
of its obligations to provide basic services or meet its financial
commitments.
[30]
The
residents of Maluti-A-Phofung
suffered severely. Basic services that form the essence of their
non-negotiable human rights such
as water, electricity and
infrastructure, were affected.
[31]
It is common cause and a matter of public record that the
Municipality as governed by the Municipal Council
were involved in
numerous litigious matters in our courts.
[32]
On 22 October 2018 the Municipality’s failure and inability to
meet its obligations due
to mismanagement came to a head with a
settlement agreement made an Order of Court in cases 1453/2018 and
1923/2018
[22]
that served in
the Free State Division of the High Court.
[33]
The record of a Cabinet Decision at a Cabinet Meeting of the
Provincial Government on 19 June
2018 inveterate the Court Order.
[23]
The Municipality was effectively placed under Administration by
Mandatory Intervention in terms of section 139(5) of the Constitution

and
section 139
of the
Local Government: Municipal Finance Management
Act, 56 of 2003
.
[34]
Mr. Amos Goliath was appointed as Administrator on 25 March 2020 and
with effect from 1 April
2020 for the last period of the duration of
the Intervention.
[24]
He
succeeded one Mr. Blakes Mosley-Lefatola. While under Administration
the Administrator and his Deputy were both at the same
time in
office. Therefore, when the first Administrator vacated his office,
his Deputy succeeded him in Administrator capacity
and automatically.
There was not any suspension of the Intervention and the Deputy
automatically assumed the authority of the Administrator;
immediately
and in the interim.
[35]
The second and third respondents were appointed as the Municipal
Manager and the Chief Financial
Officer of the Maluti-A-Phofung Local
Municipality; they are,
ex officio
, the very officials that
have wide-ranging and detailed knowledge of the legality of
appointments, salaries and the law and issues
relevant thereto.
[36]
It is a fact beyond any doubt, undisputed by all the parties, that
they were appointed and contracted with, without the knowledge,

involvement or ratification of the Administrator. This is illegal and
ultra vires the Intervention.
[37]
I quote from the Replying Affidavit
[25]
of the applicant as confirmed by both the Administrators.
[26]
This was in the reply to the affidavit of the third respondent and
the evidence will show that it is true for both the second and
third
respondents.
57.    Mr.
Goliath advised me that he was never made aware of the contract the
third respondent concluded with the
second respondent.
58.    As
a result, he was unaware of the remuneration offered to the third
respondent. He became aware of the remuneration
discrepancy for the
first time when he was preparing the salary run documentation.
59.
The
Court will note that the contract which the Administrator was unaware
of, was concluded overnight on 26 March 2020 and the third
respondent
commenced her duties the next day on 27 March 2020. All of this was
done without the involvement of the Administrator.
(Accentuation
added)
60.    I
reiterate that Mr. Goliath was all along part of the administrator
team. He was serving as Deputy Administrator
and was always privy to
the administration of the first respondent.
61.    Mr.
Goliath succeeded the Administrator, Mr. Blakes Mosley-Lefatola.
62.
Consistent with the Administrator terms of reference, when Mr.
Lefatola vacated his office and Mr. Goliath took
over the
Administrator office, his predecessor advised him to continue with
and finalise the appointment of the staff including
the appointment
of the third respondent. There was never a vacuum left. I attach
hereto the confirmatory affidavits of both Messrs
Lefatola and
Goliath marked Annexure RA 5(1) and (2).
[38]
In support of the above is the fact that Mr. Lefatola, signed the 26
March 2020 – Municipal
Council Resolutions, that allowed the
appointment of the second and third respondents;
only on 14 April
2020
. The then Acting Municipal Manager, one Mr. T.F. Mopeloa,
signed the said Resolutions on
7 April 2020
.
[39]
Thus, at the time (apparently between 26 and 30 March 2020)
[27]
when the contracts of employment were entered into by the
Municipality as represented by the then Executive Mayor and the
second
respondent; and the second respondent with the third
respondent; the Resolutions were not signed and carried no authority.
To add
insult to injury; it will be shown later that the salaries on
which the second and third respondents were appointed, were not in

accordance with the Resolutions.
[40]
The contracting was done when the parties to the contract were under
the impression that there
was not an Administrator in office. This
was in the few days between when the Resolutions by the Municipal
Council were passed
on 26 March 2020, and the time the Deputy
Administrator took over as Administrator on 1 April 2020.
[41]
It must be understood that the Administrator did not at the time
“usurp” the functions
of the Municipal Council but in
terms of the powers and functions of the Administrator; he had to
exercise oversight over the administration,
including ratification of
all decisions of the Municipal Council (fourth respondent), executive
committees, committees and the
Municipal Manager.
[28]
[42]
The contention of the second respondent in his affidavit at paragraph
8.12 is wrong in many ways
when he stated that the Administrator had
sought to “ratify” the decision by the Executive Mayor to
appoint him and
on the upper-level salary; and that lawfully the
Administrator could not have been tasked to ratify any decision of
the Municipal
Council.
[43]
The obvious consequence of the fact that the contracts as a whole
are unlawful, is that any salary or remuneration contracted will
also
be ultra vires and must be set aside.
[44]
The anarchy of the conduct in issue and the manner in which the
contracts were executed caused
the matter to, according to the third
respondent, be referred to “the Hawks and the National
Prosecuting Authority to investigate
the incident.” She also
had to address the Parliamentary Portfolio Committee of the Free
State Provincial Government on their
conduct.
[29]
Both the second and third respondents refused to accept the error of
their ways.
[45]
As said, the second respondent denies any conduct
ultra vires
the Intervention or illegality of the employment contract and the
consequential salaries. It is also the case of the third respondent.

The atmosphere of the second respondent’s case is that:
There
simply is no basis for the relief the MEC seeks. Indeed, it would
seem as if the MEC has resorted to grandstanding in the
election
year. I have been advised that the court need not come to a
determining finding on this aspect and I refrain – for
this
reason only – to tender any further evidence on my
inference.
[30]
[46]
Added to the above is the unacceptable conduct of the Executive Mayor
that summoned the Administrator
to his office on 22 April 2020. The
gist of the meeting was to be the discontent that the Administrator
had signatory powers regarding
the first respondent’s bank
account. After the meeting, and on the same day, the Administrator
was forcefully and unlawfully
ejected from and denied access to the
offices of the first respondent by private security personnel. This
confirms the continued
anarchy that I referred to above.
[31]
[47]
The representative of the applicant, Mr. Dume,
[32]
went on to sketch some incidences that occurred in the background of
the case. He referred to the fact that the second respondent

volunteered a Confirmatory Affidavit to the applicant as he admitted
that the relief sought had to be granted. This was during
a
telephonic conversation with Mr. Duma. He, inexplicably, did not file
his affidavit to confirm the application of the applicant
and went on
to oppose it.
[48]
The second and third respondents stated at a Portfolio Committee
sitting on 25 August 2020, chaired
by Ms. Faith Muthambi, where their
employment contracts were the subject of discussion, that they would
apply to Mr. Duma to ratify
their contracts. They did not do so. They
realised the error of their conduct but continued to carry on with
the illegal contracts.
THE SALARIES
[49]
It was ruled that the contracts were
per se
ultra vires
the prevailing law. This includes the salaries contracted. The
applicant applied for a declaration on the legal correctness of
the
salaries.
[50]
On what appears to be 30 March 2020 the second respondent contracted
with the then Executive
Mayor for a salary of R1 987 402.00; the
maximum level
package for a Category 6 Municipality, without
the involvement of the Administrator.
[51]
Directly hereafter the second respondent contracted, without the
knowledge and involvement of
the Administrator, with the third
respondent for a salary of R1 596 747.00.
[33]
This is the maximum level package for a Category 6 Municipality.
[52]
The agreements were apparently in terms of
Regulation
42023
, GN 1224 dated 8 November 2018.
[53]
To have been a legitimately recognised salary it had to comply with
the following:
[34]
1.
The Administrator had to establish or
ratify the salaries.
2.
It is legislatively decreed that the law
within the
section 139
-Intevention read with the applicable
Regulations promulgated in terms of
section 72(1)(g)
of the
Local
Government: Municipal Systems Act, 2000
, had to be applied.
3.
The 26 March 2020 - Municipal Council
Resolutions must receive due regard and be complied with and under
the obligations of the
Intervention.
4.
The Job Advertisement had to be regarded.
5.
The MEC of Co-operative Governance and
Traditional Affairs had to condone the salaries after having been
properly informed thereof.
AD 1: The fact that
the Municipality was under Administration
[54]
It is common knowledge by now that the salaries contracted between
the Municipality with the
second and third respondent was during the
section 139
– Intervention period. The Intervention was for the
period from October 2018 until June 2020.
[35]
The Municipality, as first respondent, had no authority or leeway to
contract the impugned salaries. On this factor alone the salaries
are
ultra
vires
.
[55]
Differently put; any conduct of the Municipality and its officials
had to be ratified by the
Administrator. Moreover, the
Municipality must inform the MEC for Local
Governance in the province of the outcome of the process of the
filling of the position
of the Municipal Manager. This was also
stated in the 26 March – Resolutions and not complied with.
[56]
The lack of a date(s) on the documents filed by the third respondent
and the neglect of the second
respondent to file any of the relevant
contracts and documents are worrisome. The Court was not privy to the
contracts with the
second and third respondent and information as to
who were the signatories thereto. The only information available on
the contract
[36]
of the second
respondent is in the affidavit of the second respondent itself:
[37]
8.1    I
concluded a Contract of employment with the Municipality. I did so
with the Executive Mayor – as legislation
to which the MEC
refers dictate.
8.2    This all
came about because the Municipal Council had resolved in March 2020
that I be appointed after the interview
process contemplated in the
legislative dispensation.
8.3
Equally, my salary notch is determined by the minister for Local
Government. In terms of section 72(1)(g)
of the Systems Act, the
Minister determined the limits of total remuneration packages payable
to the Municipal Managers and managers
directly accountable to the
Municipal Managers.
8.4    The
initial offer that was made to me (and which I accepted) fell within
the parameters of what the regulations
dictate. I do not understand
the MEC to content the contrary.
[57]
Both parties must have realised the error of their ways when the
Administrator directed appointment
letters to them on 8 April 2020.
This included the contracts referred to as “FA5(a)” and
“FA5(b)” that
the applicant now wants to be enforced. The
second and third respondents refused to sign the contracts presented
by the Administrator.
Both parties were informed by letters of the
irregularity of their conduct on 22 April 2020.
[38]
AD 2:  The law
[58]
The crucial element of the Intervention was for the Administrator to
focus particularly on curbing
the ballooning salary costs while
improving performance. The remuneration package is in terms of the
fact that the Municipality
was under Administration and in the
discretion of the Administrator. He explained how he executed the
discretion and he cannot
be faulted on it. He complied with the law
and circumstances that prevailed. The determination of the salaries
by the Administrator
cannot be criticized as
ultra
vires
,
unfair or irregular.
[39]
[59]
Section 72(1)(g) of the Local Government: Municipal Systems Act, 2000
(the Systems Act) read
with the Regulations in Government Gazette No.
42023 published on 8 November 2018 (“the Regulations”)
were apparently
applied when the salaries of the second and third
respondent were established.
[60]
However, Regulation 132 published in Government Gazette 43122 dated
20 March 2020, is applicable
to this case.  Section 14 states
that:
This Notice is called the
upper limits of total remuneration packages payable to municipal
managers and managers directly accountable
to municipal managers and
takes effect from
1 July 2019. The Notice replaces Government
Gazette No. 42023 of 8 November 2018.
(Accentuation added)
[61]
It is common cause that Maluti-A-Phofung was a Category 4 and not
Category 6 Municipality at
the time it was placed under
Administration. It defaulted on submitting its audited financial
statements for the financial years
2016/2017, 2017/2018 and
2018/2019.
[40]
Section 13 of
the 2020 - Regulation, that deals with the transitional provisions of
municipalities decrees that:
Transitional provisions
13.(1)
This Notice does not affect the existing employment contract of a
municipal manager or a manager directly accountable to municipal
manager appointed before 1 July 2014.
(2)     A
municipality that does not have any municipal income is a category 1
municipality.
(3)     If
a municipality has no audited financial statements for 2017/18
financial year by the date of publication
of this Notice, the audited
financial statements for 2016/17 financial year will mutatis mutandis
apply.
(4)     A
municipal council may, in exceptional circumstances and good cause
shown, and after consultation with the
MEC for local government,
apply in writing to the Minister to waive any of the prescribed
requirements as set out in this Notice.
The Minister will consider
each application on merit, based on circumstances and motivation
provided by municipalities.
[62]
These are the salaries in issue on the November 2018 - Regulations:
The
second respondent
Salary
appointed on:
R1 987 402.00
Salary
fixed by the Administrator with due regard to the advertisement, the
Resolution and qualifications of the candidate; compromising
to a
Category 6 Municipality:
R1 424 447.00
Salary
supposed to have been fixed on the Category 4 classification of the
Municipality:
R1
129 229.00
The third respondent
Salary appointed
on:         R1 596
747.00
Salary fixed by the
Administrator with due regard to the advertisement, the Resolution
and qualifications of the candidate; compromising
to a Category 6
Municipality:

R1 156 263.00
Salary
supposed to have been fixed on the Category 4 classification of the
Municipality:
R932 548.00
[63]
The same salaries on the March 2020 - Regulations will be:
The second respondent
Salary appointed on: R1
987 402.00
Salary fixed by the
Administrator with due regard to the advertisement, the
Resolution and
qualifications of the candidate; compromising to a Category
6 Municipality: R1 464
332.00
Salary supposed to have
been fixed on the Category 4 classification of the
Municipality:
R1 160 847.00
The third respondent
Salary appointed on: R1
596 747.00
Salary fixed by the
Administrator with due regard to the advertisement, the
Resolution and
qualifications of the candidate; compromising to a Category
6 Municipality: R1 188
638.00
Salary supposed to have
been fixed on the Category 4 classification of the
Municipality: R972 648.00
[64]
Section 9 of the Regulations states:
Offer
of remuneration on appointment
9.(1)
The offer of remuneration on appointment to a senior
manager will be determined by the competences, qualifications,

experience and knowledge of the candidate considered for appointment.
(2)
A municipal council must apply the criteria as set out below to
determine the offer
of remuneration on appointment:
[65]
Section 9(3) is vital in the circumstances of the Intervention.
(3)
Notwithstanding sub -item (1), if a
municipal council is unable to offer the relevant total remuneration
package or cannot afford
to pay the remuneration as determined in
this Notice, a lesser offer may be made by such municipality on
appointment.
(4)
Despite sub - item (2), if the municipal council is unable to attract
suitable candidates
or decides to appoint a senior manager falling
within the basic range ofachievement as measured against the
competency framework,
the provisions of sections 54A(10) and 56(6) of
the Act read in conjunction with item 13 of this Notice shall mutatis
mutandis
apply.
[66]
It is imperative to at this stage understand that there is a
significant difference between the “upper limit” of a
salary
package and the “upper level” of a salary.
The Regulation prescribe a minimum level, midpoint level and maximum
level as the total remuneration packages. Within the packages
are the
upper limits prescribed for each level and the Category of the
Municipality. The Resolutions of the Municipal Council referred
to
“upper limit” and not “upper level”.
[67]
The Administrator is legislatively allowed to make any lower
offer to the candidates than prescribed in the Regulations.
The caveat
in casu
to this is that the appointments of the
second and third respondents on the salaries suggested by the
Administrator had to have
regard to the Job Advertisements for the
Chief Financial Officer and Municipal Manager and the 26 March 2020 -
Municipal Council
Resolutions.
[68]
He took the above into consideration and appointed on a Category 6
Municipality because this
was what was advertised. He appointed them
on the upper limit of their qualifications. This in accordance with
the Resolutions.
[69]
This brings me to the appointment letters dated 8 April 2020 and
addressed to both the second
and third respondents. Without knowing
that contracts have already been concluded the Administrator
proceeded to investigate and
establish the salaries to be offered to
the two respondents. He went about it as follows:
1.
The Category of the Municipality is a major
factor determining remuneration levels. The further key issue is the
Municipality revenue
and income generation. If a Municipality has not
submitted its audited financial statement for the 2017/2018 year for
categorising,
the 2016/2017 financial year would apply. The
Municipality defaulted on submitting the audited financial statements
for the financial
years 2016/2017, 2017/2018 and 2018/2019. Prior to
2018/2019 the Municipality was categorized at level 4 and not 6. This
was the
situation at the time the contracts were entered into without
the knowledge of the Administrator and when he prepared the
appointment
letters of 8 April 2020. This point is uncontentious.
2.
Directly linked to this is section 9(1) of
Regulation 42023 of 2018 and Regulation 43122 dated 20 March 2020
depicted above.
3.
The
criteria are imperative. In the case of the second respondent the
qualifying criteria was that he had five years’ experience;
[41]
had attained a competent level in the prescribed assessment
[42]
and the first respondent is a Category 4 Municipality. In the case of
the third respondent, similarly, the third respondent would
have
fallen squarely on the minimum of the Category 4 Municipality due to
the fact that she had five years’ experience, had
attained a
competent level in the prescribed assessment and the first respondent
was a Category 4 and not a Category 6 Municipality.
4.
Their salaries on a Category 4 Municipality
were supposed to be
R1 129 229.00 or R1 160
847.00 for the second respondent and R932 548.00 or R972 648.00 for
the third respondent; depending on the
Regulation that was applied.
5.
The salary on the proposal of the
Administrator of the second respondent on a Category 6 Municipality
were to be
R1 424 447.00 or R1 464 332.00.
For the third respondent R1 156 263.00 or R1 188 638.00.
6.
When the overpayments are to be calculated
the numbers on the March 2020 - Regulation might have to be regarded
namely: R1 464 332.00
and R1 188 638.00 respectively. HOWEVER; it
must be noted that the Administrator had the discretion in terms of
section 9 of the
Regulation to offer a lesser salary than the salary
fixed in sections 7 and 8 of the Regulation.
AD 3: The Resolutions
[70]
The Resolutions of the Municipal Council was for
the upper limits
- salary and not the upper level/maximum level - salary.
The
Administrator did therefor not alter the Resolutions and the
respondents misinterpreted the Resolutions.
[71]
The 26 March – Resolutions stated that the Administrator must
ratify the decisions within
the Resolutions. This did not happen and
was the Resolutions of the Municipal Council not complied with.
[72]
The Resolutions of the Council Meeting held on 26 March 2020 is
common cause and undisputedly
valid to be ratified by the
Administrator and with notice to the MEC: COGTA to be condoned by her
in her capacity as constitutionally
and legislatively appointed
overseer of the actions of the Municipality. The MEC did not condone
the Resolutions and the salaries.
[73]
The Resolutions of 26 March 2020 on the Municipal Managers’
fate and as submitted by himself
[43]
read as follows:
“
ANNEXURE
B”
RESOLVED:
a)
That note be taken of the report.
b)
That according to the report that Mr
Futhuli Patrick Mothamaha is a suitable candidate, he be appointed as
the Municipal Manager
of the Maluti-a-Phofung Local Municipality for
a period equivalent to the remaining terms of the Council plus an
extra one year
calculated from the last day of the current Council.
c)
That the appointment of Mr Futhuli Patrick
Mothamaha is subjected to the receipt of the concurrency from the MEC
Cogta.
d)
That all interviewed candidates, including
applicants who were unsuccessful, be informed of the outcome of the
interview for the
position of Municipal Manager.
e)
That a report regarding the appointment
process and the outcome of the position of Municipal Manager be
submitted to the MEC for
Cogta within 14 days from the date of the
Council decision (26 March 2020).
f)
That The Executive Mayor enters into an
employment contract with the incumbent (Mr FP Mothamaha) subject to
the current upper limits.
g)
That The Executive Mayor enters into a
performance contract with the incumbent (Mr FP Mothamaha) within 60
days.
Note
Independent: Cllr N
Ramohloki does not align himself with the appointment of the
Municipal Manager without the concurrence from
the MEC Cogta.
The Resolution was
endorsed with three additional clauses or instructions that were
handwritten presumably, by the then Administrator
B Moseley-Lefatola:
Ratification on the
following conditions only:
1.
That the Administrator enters into a
performance agreement with the MM and
2.
That the Administrator enters into a formal
contract of employment with MM
3.
The above to change to EM once the
intervention is revoked.
[74]
TF Mopeloa the Acting Municipal Manager of the Municipality signed
the document on 7 April 2020
and the Administrator B Moseley-Lefatola
signed it on 14 April 2020. The Court was not made privy to the
employment contract with
the Municipal Manager and the date of the
contract is not clear in his affidavit. The dates are significant
because apparently
the contracts with the second and third
respondents were expeditiously finalised when the Council and the
second and third respondent
were of the view that the post of
Administrator was vacant. It was not and the Intervention subsisted.
In the alternative and as
the third respondent declared; Mr B
Moseley-Lefatola was in office. They then ignored him and entered
into the contracts without
his knowledge and approval.
[75]
The Resolution pertaining to the third respondent is word by word the
same as that of the second
respondent and signed on the same dates.
The handwritten clauses are not on it but the prevailing law at the
time remains the same.
The Administrator had to oversee and ratify.
[76]
The respondents did not comply with the salaries decided on and
declared in the Resolutions.
AD 4: The
Advertisement
[77]
The advertisement at annexure “FA6”: “Department:
Office of the Municipal Manager
– 30/2019” with closing
date 22 November 2019 states the remuneration offered to the
applicant for the post of the
Municipal Manager to be R1 424 447.00
(minimum), R1 705 024.00 (midpoint) and R1 987 402.00 (maximum). For
the position of the
Chief Financial Officer, the advertisement
offered R1 156 263.00 (minimum), R1 376 505.00 (midpoint) and R1 508
747.00 (maximum).
This is clearly in line with a Category 6
Municipality classification.
[78]
The above is the salaries that was, by implication, offered to the
candidates and on which they
reacted and lodged their applications
for the positions. The process of contract commenced here. The
salaries were under the condition
of compliance to the criteria in
sections 7, 8 and 9 of the Regulation No. 42023 published on 8
November 2018.
[79]
The Administrator complied with the Advertisement.
AD 5: The MEC of
Co-operative Governance and Traditional Affairs had to condone the
salaries after having been properly informed
thereof.
[80]
The appointments of the second and third respondents were also
subject to the receipt of concurrence
by the MEC: COGTA.
[44]
As already indicated; this did not happen; hence the litigation.
CONCLUSION
[81]
The salaries currently earned and in issue are
ultra vires
and
illegal because the contracts are illegal and it does not comply with
the prevailing law. The question is now what was the
avenue; the
remedy, that had to be followed to rectify the glaringly illegal
conduct of all four the respondents and by whom?
THE
RELATIONSHIP BETWEEN THE APPLICANT AND THE SECOND AND THIRD
RESPONDENTS. THE EMPLOYMENT CONTRACT: IS THE CONTRACT BETWEEN THE

DISPUTING PARTIES A HORIZONTAL RELATIONSHIP? DOES IT NOT RESORT UNDER
LABOUR LAW?
[82]
Koen, J was confronted with a similar scenario in the matter of
The
MEC for the Department of Co-Operative Governance and Traditional
Affairs v The Nkandla Local Municipality and Others, The MEC
for the
Department of Co-Operative Governance and Traditional Affairs v The
Mthonjaneni Municipality and Others
(5369/18P, 5370/18P) [2019]
ZAKZPHC 4; (2019) 40 ILJ 996 (KZP);
[2019] 3 All SA 772
(KZP) (21
February 2019) (“the Nkandla -case”). He did an intensive
investigation into the law on the issue and came
to a conclusion of
the state of affairs in law that cannot be faulted by this Court on
the specific facts of the case; the role
players and their actions.
[27]
The present challenge therefore does not arise out of the LRA, but
from the provisions of the
Systems Act. All that the applicant seeks
to do, in carrying out her supervisory role, is to prevent unlawful
conduct by the municipalities,
specifically the appointment of
persons as municipal managers if they do not have the required
experience. It is a right not arising
from the LRA. The issue raised
is not one where specific remedies (sic) provided for in the LRA,
such as conciliation and the like,
or the rights flowing from an
unfair labour practice might arise and should be available to the
respective third respondents. The
basis of the challenge is found
squarely within the provisions of s 54A of the Systems Act and it is
confined to the lawfulness
of the respective first respondent’s
decisions, taken by their respective councils, to select the
respective third respondents
as their municipal managers.
[83]
The Supreme Court of Appeal has ruled on the issue of jurisdiction as
far back as 2010 in
Manana v King Sabata Dalindyebo Municipality
[2011] 3 BLLR 215
(SCA); (2011) 32 ILJ 581 (SCA);
[2011] 3 All SA 140
(SCA))
[2010] ZASCA 144
; 345/09 (25 November 2010).
[23]
The final submission is reminiscent of a debate that I thought
had run its course once
Gcaba
was
decided. It was submitted that the facts of this case ground a claim
for relief under the Labour Relations Act. In those circumstances,
so
I understood the submission, it cannot be a claim that is good in law
in the high courts. Counsel said that the decisions of
this court
in
Makhanya
v University of Zululand
and
South
African
Maritime
Safety Authority v McKenzie
support
that submission. They do no such thing.
The
evidence in this case establishes the existence of a contract of
employment between the municipality and Mr Manana and he wishes
to
enforce the contract. It is conceded that the high court had
jurisdiction to do so, which it clearly does. That he might have
been
entitled to other relief under the remedies provided for under the
Labour Relations Act does not somehow extinguish his contractual

rights.
(Accentuation added)
LOCUS
STANDI
&
THE DOCTRINE OF LEGALITY AS A GROUND FOR REVIEW
[84]
The question is now what is the remedy in law for the illegal
contracts concluded by the respondents.
I touched on the dilemma
during the introduction. Again, the same impasse prevailed in the
Nkhandla - case and the presiding judge
correctly ruled that:
[50]
Whether the PAJA applies depends on whether the action sought to be
reviewed amounts to ‘administrative action’
as defined in
the PAJA. That definition is not without problems. The appointment of
each of the third respondents arises from a
decision of the council
of each municipality pursuant to s 54A(1) of the Systems Act.  This
must be contrasted to for example
the appointment of other employees
of municipalities who are appointed by the municipal manager in the
exercise of his duties,
which would amount to administrative action.
The appointment of a municipal manager involves the exercise of
executive powers or
functions of the municipal councils. The exercise
of ‘executive powers or functions of the municipal council’
is expressly
excluded in terms of paragraph (cc) from the definition
of ‘administrative action’. The PAJA accordingly
does
not apply. I am in any event not persuaded that an
‘administrative action’ as defined is
involved. Accordingly,
the 180-day limitation in s 7 of PAJA
does not apply. The applicant correctly had not pursued any
application for condonation.
[85]
The Constitutional Court has declared the Municipal Systems Amendment
Act, 2011, which contained
section 54A invalid and suspended it for
24 months in
South African Municipal Workers' Union v Minister of
Co-Operative Governance and Traditional Affairs
(CCT54/16)
[2017]
ZACC 7
;
2017 (5) BCLR 641
(CC) (9 March 2017).
[86]
The question is now if the MEC: Department of Co-operative Governance
and Traditional Affairs
may bring the matter to the court and on what
basis?
[87]
This is a so-called “public interest case”. The sphere of
law wherein the case orbits
is the application of the local
government legislative regime, regulating the powers and function of
the Municipal Council and
its Resolutions which are subject to salary
determinations by the Minister of Co-operative Governance and
Traditional Affairs in
the Regulations.
[88]
The section 139 - Intervention subsisted and was supported by the
Court Order.
[89]
The above all in the shadow of the decree, by implication, in the
Constitution that the fixing
and payment of exorbitant salaries,
ultra vires
and in defiance of the needs of the people and
contra constitutional governance, will be illegal in terms of section
2 of the Constitution
of the Republic of South Africa, 1996
2
Supremacy of Constitution
This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed
by it must be fulfilled.
[90]
The above is the Rule of Law.
[91]
In terms of section 169 of the Constitution:
(1)
The High Court of South Africa may decide-
(a)
any constitutional matter except a matter that-
(i)
the Constitutional Court has agreed to hear directly in terms of
section 167 (6) (a); or
(ii)
is assigned by an Act of Parliament to another court of a status
similar to the High Court of
South Africa; and
(b)
any other matter not assigned to another court by an Act of
Parliament.
[92]
Ex Parte Millsite Investments Co (Pty) Ltd
1965 (2) SA 582
(T)
at 585 G-H captured the jurisdiction of the High Court: “The
inherent power is not merely one derived from the need to
make the
Court's order effective, and to control its own procedure, but to
hold the scales of justice where no specific law provides
directly
for a given situation.”
[93]
The Constitution: Section 33.  Just administrative action:
(1)
Everyone has the right to administrative
action that is lawful, reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely
affected by administrative action has the right to be given written
reasons.
(3)
National legislation must be enacted to
give effect to these rights, and must—
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent
and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections (1) and (2);
and
(c)
promote an efficient administration.
[94]
Section 34 of the Constitution guarantees access to a court to
address a dispute over any legal
right. This includes the right of
organs of the State to protect their citizens. The inherent
jurisdiction of a High Court to regulate
and protect its process
against exploitation for improper purposes is well known, but to
exercise a right to choose a court of
jurisdiction could not
constitute such an abuse.
[45]
[95]
This is a legality review and legality reviews are the order of the
day in the courts of South
Africa. The strange dichotomy that
developed between the PAJA, the Constitution and the common-law
principles of judicial review
of administrative action is well known
in our courts. Kohl, L has investigated the situation and called it:
“Our curious
administrative law love triangle: The complex
interplay between the PAJA, the Constitution and the common law”.
[46]
[96]
I align myself with her finding that given the complexities of the
curious relationship between
the PAJA, the Constitution and the
common law; the latter has come to play a far more extensive role in
our “new administrative
law” than that of “mere
interpretative aid”. The common law principles of judicial
review of administrative action
have not been entirely replaced by
the section 33 right to administrative justice, as given effect to
through the PAJA. Rather,
the common law is “the golden thread
that runs through South African administrative law” and
although its role may
have changed somewhat, it nonetheless remains
important.
[97]
Section 172(1)(b)(i)
[47]
of
the Constitution now finds application as was ruled in
Cross-Border
Road Transport Agency v Central African Road Services (Pty) Ltd and
Another
(CCT163/14)
[2015] ZACC 12
;
2015 (5) SA 370
(CC);
2015 (7) BCLR 761
(CC) (12 May 2015) and specifically after section 54A of the
Municipal Systems Amendment Act, 2011 was ruled unconstitutional:
[20]
In summary, the consequences that ordinarily flow from a declaration
of constitutional invalidity
include that the law will be invalid
from the moment it was promulgated.  That is, the order will
have immediate retrospective
effect.  This is the default
position.
Orders properly construed
[21]
This default position can, however, be varied by an order of court,
exercising the express power under
section 172(1)(b)(i) of the
Constitution, for numerous reasons pertaining to justice and equity.
The language of both this
provision and what was stated in National
Coalition suggests that it is only an order of court that can vary
the consequences that
flow from the doctrine of constitutional
invalidity.
[22]
Unless the order of court expressly varies those consequences, then
it would appear that retrospectivity
must follow.  However, this
would be too formalistic.  In the Supreme Court of Appeal,
Cameron JA in De Kock described
this approach as “both too
absolute and too general” and held that “[t]he effect of
a declaration of invalidity
must rather depend on the terms and
context of the order the Court . . . issues”. The order must be
interpreted on the terms
and the context of the order together with
the judgment as a whole.
[98]
Hoexter
[48]
highlighted some
truths in our law when one must adjudicate and review the conduct of
public organs and officials on the constitutional
principle of
legality and in basic compliance with the Constitution: The Rule of
Law.
1.
In the first place it operates as a
residual repository of fundamental norms about how public power ought
to be used. It thus acts
as a kind of safety net, catching exercises
of public power that do not qualify as administrative action.
2.
Its spread is reassuringly wide: it covers
a good deal of the area protected by the administrative justice
clause. To say that the
wielders of public power must act within
their powers, in good faith and without misconstruing their powers is
to summarise a considerable
number of well-established administrative
law grounds.
3.
The statement could easily be seen as
covering all the grounds relating to authority, delegation,
jurisdiction, errors of fact and
law, ulterior purpose and motive and
‘failure to apply the mind’, including such detailed
grounds as having regard
to irrelevant considerations and acting
under dictation.
4.
The Constitutional Court’s principle
of legality does not yet cover procedural fairness, of course, and
has not yet been made
to require the giving of reasons by an
Administrator. Nevertheless, the principle is already an extensive
one.
5.
The observance of natural justice is one of
the most important principles implied by the doctrine. It goes to
open and fair conduct;
absence of bias is essential for the correct
application of the law and thus to its ability to guide action.
6.
Primarily, the principle of legality is a
convenient way of requiring all exercises of public power –
including non-administrative
action – to conform to certain
accepted minimum standards. It is thus also a way of overcoming the
all-or-nothing results
that are dictated by the use of threshold
concepts. At one time our courts looked to the ‘duty to act
fairly’ to rescue
themselves from the conceptual wilderness of
the classification of functions. Similarly, we now seem to need the
principle of legality
to tell us that it is perverse to spend our
time working out whether decisions pass the test of ‘administrative
action’.
7.
By telling us that all exercises of public
power must comply with standards such as lawfulness, reasonableness
and fairness, the
principle of legality points away from all this
conceptualism and parsimony and perversity. We must apply our minds
to what administrative
justice requires in every case. And it tells
us that it is, in fact, possible to give appropriate content to
lawfulness, reasonableness
and fairness in individual cases.
8.
Notwithstanding all that is explicit in our
Constitution and in our legislation, we still need the generality of
the Rule of Law.
Will we ever stop needing it? Perhaps – when
it has finally taught us that there is no real sense in
distinguishing between
public and private power, and that all power
should be exercised according to certain minimum standards. Perhaps
then ...
[99]
Section 56(5)
of the
Local Government: Municipal Systems Act, 32 of
2000
decrees that:
56(5)
If a person is appointed to a post referred to in subsection (1) (a)
in contravention of this Act, the MEC for local government
must,
within 14 days of becoming aware of such appointment, take
appropriate steps to enforce compliance by the municipal council
with
this Act,
which
steps may include an application to a court for a declaratory order
on the validity of the appointment or any other legal action against
the municipal council.
[49]
(Accentuation added)
[100]   The
Intergovernmental Relations Framework Act, 13 of 2005 (“IRFA”)
does not find application
in casu
because the Municipality was
under Intervention in terms of section 139 of the Constitution.
Section 39 of the IRFA
states:
Application of Chapter. -
This Chapter
does not apply
-
(a)
to the settlement of specific
intergovernmental disputes in respect of which other national
legislation provides resolution mechanisms
or procedures; or
(b)
to a dispute concerning an intervention
in terms of section 100 or 139 of the Constitution.
(Accentuation added)
[101]   The
matter of
Member of the Executive Council for Local Government,
Environmental Affairs and Development Planning Western Cape
Provincial Government
v Bitou Municipality and others
[2019] 12
BLLR 1346
(LC) was confronted with the applicability of the IRFA. Due
cognisance is given to the fact that section 54A was declared
unconstitutional.
The ruling was suitably that:
[90]
The first respondent contended that the MEC was not entitled to
approach this Court because he
had not complied with the provisions
of
section 45
of the
Intergovernmental Relations Framework Act
(“IRFA”).
[92]
In deciding this issue, it must be borne in mind that the dispute
between the MEC and the first
respondent turned on a very narrow
point; namely the validity of the appointment of the fourth
respondent as municipal manager.
[93]
IRFA was considered by a Full Bench of the High Court in City of Cape
Town v Premier, Western
Cape and others.  That matter concerned
the appointment of a commission by the respondent to investigate
alleged misconduct
by the applicant. The respondent submitted that
the applicant had failed to comply with the provisions of IRFA. The
Court dealt
with this challenge as follows:
“
The
provisions of the Framework Act must be construed consistently with
the Constitution. Consequently, although s 45(1)
[50]
of the Framework Act is couched in peremptory language, it has to be
read consistently with the provisions of ss 41(3) and (4)
of the
Constitution. To disregard the provisions of s 41(4)
[51]
of the Constitution, which vests in a Court a discretion to hear a
matter even if not satisfied that the parties have made every

reasonable effort to settle the dispute, would run counter to the
provisions of s 34 of the Constitution, which guarantee the right
of
the individual to have any dispute, resolved by the application of
law, decided in a fair public hearing before a Court. A limitation
of
this right by the provisions of s 45(1) of the Framework Act would
not be reasonable and justifiable in terms of s 36(1)
[52]
of the Constitution.”
[94]
The Court ruled that it did have the discretion to entertain the
matter even though the parties
had not made every reasonable effort
to settle it and proceeded to set out the relevant facts that it had
to consider in exercising
this discretion. It is clear that the fact
that the applicant in that matter was faced with the imminent
commencement of the commission’s
proceedings played a
significant role in the decision of the Court. In this matter the
urgency was caused by the provisions of
section 54A (8) of the
Systems Act which required the MEC to act within 14 days after the
information relating to the appointment
of the fourth respondent,
prescribed by regulation 17(4) of the Appointment Regulations, had
been supplied to him.
[95]
There is an additional element in this matter; section 39(1)(a) of
IRFA provides that the chapter
relating to the settlement of disputes
does not apply to disputes “in respect of which other national
legislation provides
resolution mechanisms or procedures”.
Section 54A(8) of the Systems Act is such a procedure or mechanism.
The MEC is thus not non-suited by the provisions of IRFA.
(Accentuation added)
CONCLUSION
[102]   The
applicant has appropriate
locus standi
to institute legal
proceedings against the first respondent and is not non-suited by the
provisions of the
Intergovernmental Relations Framework Act, 2005
.
The Doctrine of Legality found application as ground for review.
[103]   The
Resolutions adopted by the first respondent’s council was
unambiguous that the appointment of the second
and third respondents
was subject to the current upper limits, which upper limits are
prescribed in the Regulations, the ratification
of the Administrator
and the receipt of the concurrency from the MEC Cogta.
[104]   The
Administrator had correctly made an offer of remuneration packages to
the second and third respondents, which
factored the variables
prescribed in the Regulations, the Intervention, the Resolutions and
the Job Advertisements.
[105]
Consequently, the remuneration packages authorised by the first and
fourth respondent as also represented by the
second respondent and
the resultant contracts between the impugned parties, are unlawful
and irregular and must be declared as
such and set aside. The second
and third respondents must reimburse the overpayment.
[106]
This Court may not hinder the constitutional freedom of the parties
to contract and may not force any contract
upon them.  The
parties must be allowed to re-negotiate contracts that will comply
with the local government legislative regime
regulating the powers
and functions of the Municipal Council and its resolutions that are
subject to the salary determinations
and authorization by the
Minister of Co-operative Governance and Traditional Affairs in the
Regulations. This Court will limit
itself to the relief sought in the
Heads of Argument of the Applicant in conclusion:
42.
… that the respondents’ attitude of impunity will be
deprecated and by extension, the unlawful increases of the
second and
third respondents’ salaries/remuneration will be declared
unlawful, irregular and fell to be reviewed and set
aside.
Remuneration drawn in excess to what was prescribed will be
recoverable from the second and the third respondents.
THE COSTS
[107]   The
costs must follow the cause. The respondents to pay the costs of this
application. The request for a punitive
order cannot be granted. The
illegal conduct of the respondents must be dealt with in terms of the
relevant law, legislation and
remedies and by the applicant; not a
costs order.
[108]
ORDER
1.
The
appointment of the second respondent as Municipal Manager by the
first and fourth respondents and resultant contract in March
2020 and
on a salary of R1 987 402.00 per annum, is declared to be unlawful
and irregular and set aside.
2.
The excess in
the salary earned by the second respondent and pursuant to the
contract in March 2020 and the salary authorised in
the relevant
Regulations, for the period ending March 2020 to date, are
recoverable in full. The repayment by the second respondent
to be
made to the first respondent in full and within ninety (90) days of
the date of this order.
3.
The
appointment of the third respondent as Chief Financial Officer/a
manager directly accountable to the Municipal Manager, by the
second
respondent and the resultant contract in March 2020 and on a salary
of R1 596 747.00 per annum, is declared to be unlawful
and irregular
and set aside
.
4.
The excess in
the salary earned by the third respondent and pursuant to the
contract in March 2020 and the salary authorised in
the relevant
Regulations, for the period ending March 2020 to date, are
recoverable in full. The repayment by the third respondent
to be made
to the first respondent in full and within ninety (90) days of the
date of this order.
5.
The
respondents to pay the costs of this application; such costs to
include that consequent upon the employment of two counsel by
the
applicant.
M OPPERMAN, J
I concur
P MOLITSOANE, J
APPEARANCES ACCORDING
TO THE NOTICE OF SET DOWN AND HEADS OF ARGUMENTS
For the
Applicant:                                             Advocate

S Snellenburg SC
Assisted by Advocate
P.T. Masihleho
Free State Society of
Advocates
BLOEMFONTEIN
051 430 3567
J.H. Engelbrecht/mem
Attorney for the
Applicant
State Attorney
11
th
Floor,
Fedsure Building
49 Charlotte Maxeke
Street
BLOEMFONTEIN
051 400 4323
E-mail:
jaEngelbrecht@justice.gov.za
481/202000716 P6M
For the 1
st
,
2
nd
& 4
th
respondents:                 Advocate
S Grobler
SC
Free State Society of
Advocates
BLOEMFONTEIN
051 430 3567/082 4912 167
E-mail:
Stefan.grobler@yahoo.co.uk
B Blair
Blair Attorneys
32 1
st
Avenue
Westdene
BLOEMFONTEIN
051 430 7543
E-mail:
emmanual@blairattorneys.co.za
For the 3
rd
respondent                                     Advocate

S Grobler SC
Free State Society of
Advocates
BLOEMFONTEIN
051 430 3567/082 4912 167
E-mail:
Stefan.grobler@yahoo.co.uk
J Nortjé
Kramer Weihmann Inc.
24 Barnes Street
Westdene
BLOEMFONTEIN
051 422 4000
E-mail:
christine@kwinc.co.za
Ref: J NORTJE/N05724/cdp
[1]
“The
MEC”
.
[2]
“
The
Council”.
[3]
Heads of
Argument for the Applicant paragraphs 1 & 2.
[4]
The parties
more specifically are:
1.
The applicant is the Member of the Executive Council for the
Department of
Co-operative Governance and Traditional Affairs: Free
State and appointed in terms of the Constitution of the Republic of
South
Africa, 1996. Mr. Mokete Victor Duma, the Head of the
Department of Co-operative Governance and Traditional Affairs: Free
State
represented the applicant at all times in the case.
2.
The first respondent is the Maluti-A-Phofung Local Municipality, an
organ of
the State established in terms of section 155(1) of the
Constitution read with
section 12
of the
Local Government: Municipal
Structures Act, 1998
. The Municipality was a Category 4 and not a
Category 6 Municipality at the time of the salary allocations. This
to have been
due to non-compliance with legislation to submit audit
reports.
3.
The second respondent is Futhuli Patrick Mothamaha, a major male and
the current
municipal manager of the first respondent.
4.
The third respondent is Matholase Jemena Mazinyo, a major female and
the current
chief financial officer of the first respondent.
5.
The fourth respondent is the Council of Maluti-A-Phofung Local
Municipality,
a municipal council as contemplated in
section 18
(read with
section 22)
of the
Local Government: Municipal Structures
Act, 117 of 1998
.
[5]
Section
139(5) of the Constitution.
If
a municipality, as a result of a crisis in its financial affairs, is
in serious or persistent material breach of its obligations
to
provide basic services or to meet its financial commitments, or
admits that it is unable to meet its obligations or financial

commitments, the relevant provincial executive must-
(a)
impose a recovery plan aimed at securing the municipality's ability
to meet its obligations
to provide basic services or its financial
commitments, which-
(i)
is to be prepared in accordance with
national legislation; and
(ii)
binds the municipality in the exercise of its legislative and
executive authority, but
only to the extent necessary to solve the
crisis in its financial affairs; and
(b)
dissolve the Municipal Council, if the municipality cannot or does
not approve legislative
measures, including a budget or any
revenue-raising measures, necessary to give effect to the recovery
plan, and-
(i)
appoint an administrator until a newly elected Municipal Council has
been declared
elected; and
(ii)
approve a temporary budget or revenue-raising measures or any other
measures giving
effect to the recovery plan to provide for the
continued functioning of the municipality; or
(c)
if the Municipal Council is not dissolved in terms of paragraph (b),
assume responsibility
for the implementation of the recovery plan to
the extent that the municipality cannot or does not otherwise
implement the recovery
plan.
[6]
139 Mandatory
provincial interventions arising from financial crises
(1)
If a municipality, as a result of a crisis in its financial affairs,
is in serious or
persistent material breach of its obligations to
provide basic services or to meet its financial commitments, or
admits that
it is unable to meet its obligations or financial
commitments, the provincial executive must promptly-
(a)
request the Municipal Financial Recovery Service-
(i)
to determine the reasons for the crisis in its financial affairs;
(ii)
to assess the municipality's financial state;
(iii)
to prepare an appropriate recovery plan for the municipality;
(iv)
to recommend appropriate changes to the municipality's budget and
revenue-raising measures that
will give effect to the recovery plan;
and
(v)
to submit to the MEC for finance in the province-
(aa) the determination
and assessment referred to in subparagraphs (i) and (ii) as a matter
of urgency; and
(bb) the recovery plan
and recommendations referred to in subparagraphs (iii) and (iv)
within a period, not
to exceed 90 days, determined by the MEC for
finance; and
consult the mayor of the
municipality to obtain the municipality's co-operation in
implementing the
recovery plan, including the approval of a budget and legislative
measures giving effect
to the recovery plan.
(2)
The MEC for finance in the province must submit a copy of any
request in terms of subsection
(1) (a) and of any determination and
assessment received in terms of subsection (1) (a) (v) (aa) to -
(a)   the
municipality;
(b)   the
Cabinet member responsible for local government; and
(c)   the
Minister.
(3)
An intervention referred to in subsection (1) supersedes any
discretionary provincial
intervention referred to in section 137,
provided that any financial recovery plan prepared for the
discretionary intervention
must continue until replaced by a
recovery plan for the mandatory intervention.
[Date of commencement of
s. 139: 1 July 2005.]
[7]
“
FA4”
at pages 53 to 63.
[8]
Pages 183 to
193.
[9]
160 Internal
procedures
(1)
A Municipal Council-
(a)   makes
decisions concerning the exercise of all the powers and the
performance of all the
functions
of the municipality;
(b)   must
elect its chairperson;
[Date of commencement of
para. (b): 30 June 1997.]
(c)   may
elect an executive committee and other committees, subject to
national legislation; and
(d)
may employ personnel that are necessary for the effective
performance of its functions.
(2)
The following functions may not be delegated by a Municipal Council:
(a)
The passing of by-laws;
(b)
the approval of budgets;
(c)
the imposition of rates and other taxes, levies and duties; and
(d)   the
raising of loans.
[10]
FIXED TERM
EMPLOYMENT CONTRACTS
ENTERED
INTO BY AND BETWEEN MALUTI-A-PHOFUNG LOCAL MUNICIPALITY (“The
Employer”), Represented by Halcon Amos Goliath,
in his
capacity as the Administrator and Mr. Futhuli Patrick Mothamaha
(“The Employee”), Ms. Matholase Jemena Mazinyo
(“The
Employee”).
[11]
Hoexter, Cora ---
"The Principle of Legality in South African Administrative
Law"
[2004] MqLawJl 8; (2004) 4 Maquarie Law Journal 165 165 at VI BACK
TO BASICS: A LESSON FROM THE RULE OF LAW footnote
102 in the text.
Also see “The principle of legality and the requirements of
lawfulness and procedural rationality, Law
Society of South Africa v
President of the RSA
2019 (3) SA 30
(CC)”, by Warren Freedman,
Nkosinathi Mzolo, Published Online: 11 Nov 2021,
https://hdl.handle.net/10520/ejc-obiter_v42_n2_a12
and “Our
curious administrative law love triangle: The complex interplay
between the PAJA, the Constitution and the common
law” by
Lauren Kohn, 2013,
https://journals.co.za/doi/abs/10.10520/EJC153153.
[12]
TRANSCRIPT: CHIEF
JUSTICE MOGOENG ON THE RULE OF LAW IN SOUTH AFRICA, The Rule
of Law
in South Africa: Measuring Judicial Performance and Meeting
Standards,
https://constitutionallyspeaking.co.za/transcript-chief-justice-mogoeng-on-the-rule-of-law-in-south-africa/
[13]
Local Government:
Municipal Structures Act, 117 of 1998
.
[14]
The Constitution:
154.   Municipalities in co-operative government.
-
(1)  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 and to perform
their functions.
(2)  Draft national
or provincial legislation that affects the status, institutions,
powers or functions of local government
must be published for public
comment before it is introduced in Parliament or a provincial
legislature, in a manner that allows
organised local government,
municipalities and other interested persons an opportunity to make
representations with regard to
the draft legislation.
[15]
The Constitution:
155.   Establishment of municipalities
(6)  Each
provincial government must establish municipalities in its province
in a manner consistent with the legislation
enacted in terms of
subsections (2) and (3) and, by legislative or other measures, must—
(a)   provide
for the monitoring and support of local government in the province;
and
(b)   promote
the development of local government capacity to enable
municipalities to perform their functions and manage
their own
affairs.
(7)  The national
government, subject to section 44, and the provincial governments
have the legislative and executive authority
to see to the effective
performance by municipalities of their functions in respect of
matters listed in Schedules 4 and 5, by
regulating the exercise by
municipalities of their executive authority referred to in section
156 (1).
44.   National
legislative authority. —
(1)  The national
legislative authority as vested in Parliament—
(a)   confers
on the National Assembly the power—
(i)    to
amend the Constitution;
(ii)   to pass
legislation with regard to any matter, including a matter within a
functional area listed in Schedule
4, but excluding, subject to
subsection (2), a matter within a functional area listed in Schedule
5; and
(iii)  to assign
any of its legislative powers, except the power to amend the
Constitution, to any legislative body in another
sphere of
government; and
(b)   confers
on the National Council of Provinces the power—
(i)    to
participate in amending the Constitution in accordance with section
74;
(ii)   to
pass, in accordance with section 76, legislation with regard to any
matter within a functional area listed
in Schedule 4 and any other
matter required by the Constitution to be passed in accordance with
section 76; and
(iii)  to consider,
in accordance with section 75, any other legislation passed by the
National Assembly.
(2)  Parliament may
intervene, by passing legislation in accordance with section 76 (1),
with regard to a matter falling
within a functional area listed in
Schedule 5, when it is necessary—
(a)  to maintain
national security;
(b)  to maintain
economic unity;
(c)  to maintain
essential national standards;
(d)  to establish
minimum standards required for the rendering of services; or
(e)  to prevent
unreasonable action taken by a province which is prejudicial to the
interests of another province or to the
country as a whole.
(3)  Legislation
with regard to a matter that is reasonably necessary for, or
incidental to, the effective exercise of a
power concerning any
matter listed in Schedule 4 is, for all purposes, legislation with
regard to a matter listed in Schedule
4.
(4)  When
exercising its legislative authority, Parliament is bound only by
the Constitution, and must act in accordance
with, and within the
limits of, the Constitution.
[16]
Applicant’s
Practice Note at page 3 as drafted by Advocate N Snellenburg SC
dated 23 November 2021.
[17]
First, Second,
Third and Fourth Respondents’ Heads of Argument as drafted
by
Advocate S Grobler SC dated 25 November 2021.
[18]
Page
2 of the Heads of Argument 1
st
,
2
nd
and 4
th
Respondents in footnote 1.
[19]
Section
56(5) referred to in the
Local Government: Municipal Systems Act, 32
of 2000
.
“
56(5)
If a person is appointed to a post referred to in subsection (1) (a)
in contravention of this Act, the MEC for local government
must,
within 14 days of becoming aware of such appointment, take
appropriate steps to enforce compliance by the municipal council

with this Act, which steps may include an application to a court for
a declaratory order on the validity of the appointment or
any other
legal action against the municipal council.” This Act has been
updated to Government Gazette 45305 dated 11 October,
2021.
THE
LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT NO. 32 OF 2000
, [ASSENTED TO
14 NOVEMBER, 2000], [DATE OF COMMENCEMENT: 1 MARCH, 2001], GENERAL
NOTE: The Local Government: Municipal Systems
Amendment Act, No. 7
of 2011 was declared invalid by the Constitutional Court on 9 March
2017 (see South African Municipal Workers’
Union v Minister of
Co-Operative Governance and Traditional Affairs
2017 (5) BCLR 641
(CC)) and the declaration of invalidity was suspended for a period
of 24 months to allow the Legislature an opportunity to correct
the
procedural defect of a failure to comply with section 76 of the
Constitution in its enactment. This affected section 54A
.
[20]
Page
115.
[21]
Pages
36 to 39.
[22]
“FA4”
Pages 53 to 63.
[23]
“
FA7”
at pages 85 to 87.
[24]
Page
52 and page 26 at paragraph 48.
[25]
Pages 176 to 177.
[26]
Annexures
“RA5(1)” and “RA5(2)” at pages 203 to 208.
[27]
The
documents that were made available to the Court by the third
respondent are signed but not dated. See the letter of appointment

dated 30 March 2020 “OP2” at page 132 and the
Performance Agreement at page 133 “OP3” as well as the

Performance Plan “OP4” at page 153.
[28]
Paragraph
57.2 on page 29 of the record.
[29]
Page
128 at paragraph 28.1.2.
[30]
Page
217 at paragraph 6.6.
[31]
Page
37 at paragraph 96.
[32]
Pages 234 to 242.
[33]
Page
132.
[34]
See
page 168 to page 173 & page 236 at paragraph 12 to page 239 at
paragraph 24.
[35]
Page
26 and paragraph 54 on page 27.
[36]
The
L
ocal
Government: Municipal Systems Act 32 of 2000 in section 57
regulates the employment contracts for municipal managers
and
managers directly accountable to municipal managers.
(1)
A person to be appointed as the
municipal manager of a municipality, and a person to
be appointed as
a manager directly accountable to the municipal manager, may be
appointed to that position only-
(a)   in
terms of a written employment contract with the municipality
complying with the provisions of this section;
and
(b)   subject
to a separate performance agreement concluded annually as provided
for in subsection (2).
(2)
The performance agreement
referred to in subsection (1)
(b)
must-
(a)
(i)   be concluded within 60 days after a person has
been appointed as the municipal manager or as a
manager directly
accountable to the municipal manager, failing which the appointment
lapses: Provided that, upon good cause shown
by such person to the
satisfaction of the municipality, the appointment shall not lapse;
and
(ii)  be
concluded annually, thereafter, within one month after the beginning
of each financial year of the municipality;
[Para.
(a)
substituted
by s. 6 (1)
(a)
of
Act
7 of 2011
(wef
5 July 2011).]
(b)   in
the case of the municipal manager, be entered into with the
municipality as represented by
the
mayor or executive mayor, as the case may be; and
(c)   in
the case of a manager directly accountable to the municipal manager,
be entered into with
the
municipal manager.
(3)
The employment contract
referred to in subsection (1)
(a)
must-
(a)   include
details of duties, remuneration, benefits and other terms and
conditions of employment
as
agreed, to by the parties, subject to consistency with-
(i)
this Act;
(ii) any
regulations as may be prescribed that are applicable to municipal
managers or managers directly accountable to municipal
managers; and
(iii) any
applicable labour legislation; and
(b)   be
signed by both parties before the commencement of service.
[Sub-s.
(3) substituted by s. 6 (1)
(b)
of
Act
7 of 2011
(wef
5 July 2011).]
(3A)
Any regulations that relate to the duties,
remuneration, benefits and other terms and conditions
of
employment
of municipal managers or managers directly accountable to municipal
managers, must be regarded as forming part of an
employment contract
referred to in subsection (1)
(a)
.
[Sub-s.
(3A) inserted by s. 6 (1)
(c)
of
Act
7 of 2011
(wef
5 July 2011).]
(4)
The performance agreement
referred to in subsection (1)
(b)
must include-
(a)   performance
objectives and targets that must be met, and the time frames within
which those performance objectives
and targets must be met; and
(b)   ......
[Para.
(b)
deleted
by s. 6 (1)
(d)
of
Act
7 of 2011
(
wef
5 July 2011).]
(c)
the
consequences of substandard performance.
(4A)
The provisions of the Municipal Finance
Management Act conferring responsibilities on the accounting
officer
of a municipality must be regarded as forming part of the
performance agreement of a municipal manager.
[Sub-s.
(4A) inserted by
s.
8
of
Act
44 of 2003
(wef
1 August 2004).]
(4B)
Bonuses based on performance may be awarded
to a municipal manager or a manager directly accountable
to the
municipal manager after the end of the financial year and only after
an evaluation of performance and approval of such
evaluation by the
municipal council concerned.
[Sub-s.
(4B) inserted by
s.
8
of
Act
44 of 2003
(wef
1 August 2004).]
(4C)
Any regulations that relate to standards
and procedures for evaluating performance of municipal
managers or
managers directly accountable to municipal managers, and intervals
for evaluation, must be regarded as forming part
of a performance
agreement referred to in subsection (1)
(b)
.
[Sub-s.
(4C) inserted by s. 6 (1)
(e)
of
Act
7 of 2011
(wef
5 July 2011).]
(5)
The performance objectives and
targets referred to in subsection (4)
(a)
must be
practical, measurable and based on the key performance indicators
set out from time to time in the municipality's
integrated
development plan.
(6)
The employment contract for a
municipal manager must-
(a)   be
for a fixed term of employment up to a maximum of five years, not
exceeding a period
ending
one year after the election of the next council of the municipality;
[Para. (a) substituted
by
s.
12
of
Act
19 of 2008
(wef
13 October 2008).]
(b)   include
a provision for cancellation of the contract, in the case of
non-compliance with the
employment
contract or, where applicable, the performance agreement;
(c)
stipulate
the terms of the renewal of the employment contract, but only by
agreement between
the
parties; and
(d)   reflect
the values and principles referred to in section 50, the Code of
Conduct set out in Schedule 2, and
the management standards and
practices contained in section 51.
(7)
......
[37]
Pages 218 to 219.
[38]
Pages 91 to 93.
Unfortunately, page 4 of the documents has not been filed in
the
papers.
[39]
See the Heads of
Argument of the Applicant at paragraphs 4 to 25.
[40]
Applicants’
Heads of Argument at paragraph 16 with reference to page 169
at
paragraph 24.
[41]
Page
170 at paragraph 27.
[42]
Page
171 at paragraph 28.
[43]
Pages
232 to 233.
[44]
Page
81 at paragraph 8.
[45]
The
Standard Bank of SA Ltd and Others v Thobejane and Others (38/2019 &
47/2019) and The Standard Bank of SA Ltd v Gqirana
N O and Another
(999/2019)
[2021] ZASCA 92
(25 June 2021).
[46]
Supra
at footnote 12.
[47]
172.
Powers of courts in constitutional matters.
(1)
When deciding a constitutional matter within its power, a court
(a)
must declare that any law or conduct that is inconsistent with the
Constitution
is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
and
(ii)
an order suspending the declaration of invalidity for any period and
on any
conditions, to allow the competent authority to correct the
defect.
[48]
Supra
at footnote 12: “VI BACK TO BASICS: A LESSON FROM THE RULE OF
LAW”.
[49]
This Act has been
updated to Government Gazette 45305 dated 11 October, 2021.
[50]
IRFA: Section 45.
Judicial proceedings. —
(1)  No government
or organ of state may institute judicial proceedings in order to
settle an intergovernmental dispute unless
the dispute has been
declared a formal intergovernmental dispute in terms of section 41
and all efforts to settle the dispute
in terms of this Chapter were
unsuccessful.
(2)  All
negotiations in terms of section 41, discussions in terms of section
42 and reports in terms of section 43 are privileged
and may not be
used in any judicial proceedings as evidence by or against any of
the parties to an intergovernmental dispute.
[51]
The Constitution:
Section 41.   Principles of co-operative government
and
inter-governmental relations.
(1)
All spheres of government and all organs of state within each sphere
must—
(a)
preserve the peace, national unity and the indivisibility of the
Republic;
(b)
secure the well-being of the people of the Republic;
(c)
provide effective, transparent, accountable and coherent government
for the Republic as a whole;
(d)
be loyal to the Constitution, the Republic and its people;
(e)   respect
the constitutional status, institutions, powers and functions of
government in the other spheres;
(f)
not assume any power or function except those conferred on them in
terms of the Constitution;
(g)   exercise
their powers and perform their functions in a manner that does not
encroach on the geographical, functional
or institutional integrity
of government in another sphere; and
(h)
co-operate with one another in mutual trust and good faith by—
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(i)
informing one another of, and consulting one another on, matters of
common interest;
(iv)  co-ordinating
their actions and legislation with one another;
(ii)
adhering to agreed procedures; and
(iii)  avoiding
legal proceedings against one another.
(2)  An Act of
Parliament must—
(a)
establish or provide for structures and institutions to promote and
facilitate inter-governmental relations; and
(b)   provide
for appropriate mechanisms and procedures to facilitate settlement
of inter-governmental disputes.
(3)  An organ of
state involved in an inter-governmental dispute must make every
reasonable effort to settle the dispute
by means of mechanisms and
procedures provided for that purpose, and must exhaust all other
remedies before it approaches a court
to resolve the dispute.
(4)  If a court is
not satisfied that the requirements of subsection (3) have been met,
it may refer a dispute back to the
organs of state involved.
[52]
36.
Limitation of rights. —
(1) The rights in the
Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant
factors, including—
(a) the nature of the
right;
(b) the importance of
the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation between
the limitation and its purpose; and
(e) less restrictive
means to achieve the purpose.
(2)  Except as
provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched
in the Bill of
Rights.