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[2022] ZAFSHC 230
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Tshabalala v Council of the Maluti -A- Phofung Local Municipality and Another (1537/2022) [2022] ZAFSHC 230 (19 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION.BLOEMFONTEIN
Case
No: 1537/2022
In
the matter between:
SIPHO
MBUYISELO
TSHABALALA
APPLICANT
and
COUNCIL
OF THE MALUTI -A- PHOFUNG
LOCAL
MUNICIPALITY
FIRST RESPONDENT
MALUTI-
A- PHOFUNG
LOCAL
MUNICIPALITY
SECOND RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
2 JUNE 2022
DELIVERED
ON:
The judgment was handed down electronically by circulation to the
parties'
legal representatives by email and released to SAFLII on 19
SEPTEMBER 2022. The date and time for hand-down is deemed to be 19
SEPTEMBER 2022 at 9H00.
[1]
The applicant seeks an order that pending the finalisation of his
review
application instituted in this Court under case number
260/2022, the Second Respondent (the Municipality) be interdicted
from permanently
appointing any person, other than himself into the
position of Director: Local Economic Development of the Municipality.
[2]
On 20 September 2020 the Municipality caused an advertisement to be
published
inviting suitably qualified individuals to apply for the
position of the Director afore mentioned. The incumbent for this
position would account directly to the Municipal Manager as the
appointment had to be done in terms of the
Local Government:
Municipal Systems Act, 32 of 2000
.
[3]
The applicant applied for the position as advertised. The First
Respondent
(the Council) established a selection panel, to be chaired
by the Municipal Manger, to conduct the selection process and make
recommendations
for the appointment of successful candidates to the
Council for the said position. He, together with two other candidates
were
shortlisted and subsequently interviewed by the selection panel.
The three candidates were required to undergo a compulsory competency
test as envisaged in Regulation16(1) of the Local Government:
Regulations on the Appointment and Conditions of Employment of Senior
Managers (the Regulations). The applicant duly underwent the said
competency test.
[4]
Following the interview and competency test, the Executive Mayor of
the
Municipality submitted a report to the Municipality in which the
following recommendations were made:
i.
The Council take a decision on the appointment of the applicant as
a
suitable candidate for the position of the Director for a period of
five years;
ii.
The Council notify the MEC for Local Government of the appointment;
and
iii.
Lastly, the Municipal Manager enters into an employment contract with
the applicant
subject to the current upper limits.
[5]
By 24 January 2022 the Municipality had made no appointment to the
position
advertised and had not furnished the applicant with the
reasons for his appointment or non appointment following the
recommendation.
The applicant then launched the review application
seeking the following relief:
a)
Reviewing, in terms of sections 6(2)(g) and 6(3) of the Promotion of
Administrative
Justice Act, 3 of 2000(PAJA), the Council's failure to
appoint the applicant as the Director: Local Economic Development in
the
Maluti-a- Phofung Local Municipality;
b)
Directing the Council in terms of section 18(2) (a) of PAJA, to take
a decision on
his appointment as Director: Local Economic Development
in the Maluti a Phofung Local Municipality.
[6]
While the review application was pending, the Municipality
re-advertised
the position. This prompted this application.
[7]
The purpose
of an interim interdict is to preserve or restore the status quo
pending the final determination of the rights of the
parties. In
National
Gambling Board v Premier, Kwazulu Natal and Others
[1]
the
Constitutional Court said the following:
" [49] An interim
interdict is by definition ' a court order preserving or restoring
the status quo pending the final determination
of the rights of the
parties. It does not involve the final determination of these rights
and does not affect their final determination.'
The dispute in an
application for an interim interdict is therefore not the same as
that in the main application, to which the
interim interdict relates.
In an application for an interim interdict the dispute is whether,
applying the relevant legal requirements
the status quo should be
preserved or restored pending the decision of the main dispute. At
common law , a court's discretion to
entertain an application for an
interim interdict depends on whether it has jurisdiction to preserve
or restore the status quo."
[8]
The
requirements for the granting of an interim interdict are settled. In
Erikson
Motors (Welkom) Ltd v Protea Motors Warrenton and Another
[2]
the
court said the following:
" The grant of an
interim- interdict pending an action is an extraordinary remedy
within the discretion of the court. Where
the right which it is
sought to protect is not clear, the court's approach in the matter of
an interim interdict was lucidly laid
down by Innes J.A., in
Setlogelo v Setlogel,
1914 AD 221
at page 227. In general, the
requisites are:
a)
a right which; though prima facie established, is open to some
doubt;
b)
a well-grounded apprehension of irreparable injury;
c)
the absence of ordinary remedy.
In
exercising its discretions, the court weighs inter alia, the
prejudice to the applicant, if the interdict is withheld against
the
prejudice to the respondent, if it is granted. This is sometimes
called the balance of convenience.
The
foregoing consideration are not individually decisive but are
interrelated; for example, the stronger the applicant's prospects
of
success the less his need to rely on prejudice to himself.
Conversely, the greater the need for the other factors to favour
him.
The court considers the affidavits as a whole and the interrelation
of the foregoing considerations, according to the facts
and
probabilities; See
Olympic Passenger
Service (Pty)
Ltd
v
Ramlagan.;
1957 (2) SA
382
(D) of 383 D-G, viewed in that light, the reference to a right
which, though prime force established, is open to some doubt is apt,
flexible and practical, and needs no further elaborations."
[9]
Four questions arise for determination in this application. First,
the
non-joinder of the Speaker of the Municipality. Secondly, whether
the applicant has a remedy under PAJA. Thirdly, whether the
non-compliance
with the regulations in the recruitment process
vitiates the entire process of the appointment. Fourth, whether the
applicant has
reasonable prospects of success in the review
application.
[10]
The
executive and legislative authority of a municipality is vested in
its Municipal Council.
[3]
The
Constitution and the Municipal Structures Act, 117 of 1998 require
every Municipal Council to elect a Chairperson, to be called
a
Speaker. The functions of a Speaker are set out in section 37 of the
Municipal Structures Act. While I take note of the functions
of a
Speaker it is necessary to look at the nature of a 'municipality'.
The mere fact that a party may have an interest in the
outcome of the
litigation does not warrant a non-joinder plea
[4]
I will not deal with its nature exhaustively except to refer to
Section 2 of the Municipal Systems Act, which provides that a
municipality is an organ of state within the local sphere of
government.
[11]
Section 2(d) of the Municipal Systems Act specifically provides that
a municipality has
a separate legal personality which excludes
liability on the part of its community for actions of the
municipality. The Systems
Acts thus clothes the municipality with the
authority to sue or be sued in its names. There is in my view no need
to join the Speaker
as a party in order to sue the municipality.
Although the applicant has cited both the Council and the
Municipality itself, for
reasons which are not clear, I am satisfied
that the municipality is properly before court and the issue of non
joinder does
not arise.
[12]
The
respondents contend that the applicant's remedy does not
lie
with
review
in
terms
of
PAJA.
This
contention
is premised
on the view held by the respondents that the functions of a Municipal
Council are excluded from the definition of
'administrative
action'
in
PAJA. The respondents contend further that failure to appoint the
applicant is a quintessential labour related issue and accordingly,
so the argument goes, on
the
strength of
Gcaba v
Minister of Safety and Security
[5]
,
does
not amount to administrative action within the meaning of PAJA.
[13]
The Court
in
President
of
the Republic of South Africa
&
Others v
South African Rugby Union
&
Others
[6]
(
hereinafter
referred so as SARFU) held as follows:
"[141] In s33 the
adjective 'administrative' not 'executive' is used to qualify
'action'. This suggests that the test for determining
whether conduct
constitutes 'administrative action' is not the question whether the
action concerned is performed by a member of
the executive arm of
government. What matters is not so much the functionary as the
function. The question is whether the task
itself is administrative
or not. It may well be, as contemplated in
Fedsure,
that some
acts of a legislature may constitute 'administrative action'.
Similarly, judicial officers may, from time to time, carry
out
administrative tasks. The focus of the enquiry as to whether conduct
is 'administrative action' is not on the arm of government
to which
the relevant actor belongs, but on the nature of the power he or she
is exercising.
[142] As we have seen,
one of the constitutional responsibilities of the President and
cabinet members in the national sphere (and
premiers of executive
councils in the provincial sphere) is to ensure the implementation of
legislation. This responsibility is
an administrative one, which is
justiciable, and will ordinarily constitute 'administrative action'
within the meaning of s33.
Cabinet members have other constitutional
responsibilities as well. In particular, they have constitutional
responsibilities to
develop policy and to initiate legislation.
Action taken in carrying out these responsibilities cannot be
construed as being administrative
action for the purposes of s33. It
follows that some acts of members of the executive, in both the
national and provincial spheres
of government will constitute
'administrative action' as contemplated ins33, but not all acts by
such members will do so.
[143] Determining whether
an action should be characterised as the implementation of
legislation, or the formulation of policy may
be difficult. It will,
as we have sad above, depend primarily upon the nature of power. A
series of considerations may be relevant
to deciding on which side of
the line a particular action falls. The source of power, though not
necessarily decisive, is a relevant
factor. So too is the nature of
the power, its subject matter, whether it involves the exercise of a
public duty, and how closely
it is related on one hand to policy
matters, which are not administrative, and on the other hand to the
implementation of legislation,
which is. while the subject matter of
a power is not relevant to determine whether constitutional review is
appropriate, it is
relevant to determine whether the exercise of the
power constitute administrative action for the purposes of s33.
Difficult boundaries
may have to be drawn in deciding what should and
what should not be characterized as administrative action for the
purposes of
s33. These will need to be drawn carefully in the light
of the provisions of the Constitution and the general constitutional
purpose
of an efficient, equitable and ethical public administration.
This can best be done on a case by case basis."
[14]
PAJA simply
excludes the executive powers and functions of the
Municipal
Council
and
its
legislative
functions.
This means
therefore
that
non-executive
functions
of
the
Municipal Council are subject to PAJA. The question is not
who
took
the
decision
but
whether
the
task
itself
is
administrative or not as held in SARFU. The respondents seem to
espouse the view that PAJA excludes the functions of the Municipal
Council in toto. In this way the view cannot be correct as
illustrated by SARFU above.
In
Mlokothi v Amathole District Municipality and Another
[7]
the
court concluded that the appointment of a Municipal Manager was an
'administrative action'. By parity of reasoning this should
apply to
the appointment of the applicant as such appointment ought to take
place in terms s56 of the Municipal Systems Act. I
cannot see how it
can be argued that the recruitment and appointment of the Director in
casu can be seen as executive or legislative
in nature.
[15]
Reliance on
Gcaba
(supra) is misplaced. In
Gcaba
the
applicant was a station commissioner who had applied for a higher
position when the police station was upgraded. He was short
listed
and went for an interview. He was not appointed. The applicant in
that case was an employee who was aggrieved by non-appointment.
Section 213 of the Labour Relations Act,66 of 1995 provides that an
employee is anyone, other than an independent contractor, who
works
for another person or who assists in conducting the business of an
employer. The Court in
Mlokoti
(supra) held that in the case
of an external candidate for employment (who like the applicant in
this case, is not an employee of
an entity), the LRA does not find
application, as such, a person is not an employee as defined in
section 213.
Gcaba
is thus distinguishable on the basis of
whether the applicant can be characterised as an employee or not. In
Gcaba
the applicant was an employee whereas in this case he is
not. It thus cannot be said, as contended by the respondents that
this
matter is quintessentially a labour matter.
[16]
The two remaining issues will be dealt with together. The applicant
contends that he has
good prospects of success on the merits while
the respondents contend that such prospects are non-existent in view
of the alleged
irregularities in the recruitment process.
[17]
It is common cause that the applicant emerged as the highest scoring
candidate in the interview
as well as the competency test. The
applicant has a prima facie right as he seeks to assert his right to
a fair administrative
action. He does not seek a final interdict and
thus only has to establish a right though open to some doubt.
[18]
I decline to deal with the contention that the recruitment process
was vitiated by the
alleged irregularities for the simple reason that
the court which will be seized with the review application will be
better placed
to adjudicate the said issue. In my view, it appears
that the respondents had condoned some acts, by way of an
illustration, the
Municipal Manager, as chairperson of the selection
panel proceeded with the interview well being aware that the
timelines for the
interview process had not been complied with. In
his answering affidavit he proffers no explanation why this was done.
He was obliged
to furnish the Council with the report after
interviews. He is silent on why this was not done. He does not play
open cards with
the court as the Municipal Manager of the
respondents.
[19]
The fact that the respondents re-advertised the position lends
credence to the apprehension
of the applicant that if it is filled,
he will suffer irreparable harm. I am satisfied that the applicant
has no other remedy and
the balance of convenience favour the
granting of the order. I accordingly make the following order:
ORDER
1.
That pending the finalization of an application for review under this
Court's
case number 260/2022 the respondents are interdicted from
permanently appointing and/or employing any person, other than the
Applicant,
into the post of Director: Local Economic Development of
the Maluti a- Phofung Municipality;
2.
That the Second Respondent pay the costs of this application.
P.
E. MOLITSOANE, J
On
behalf of the applicant:
Adv. M.S MAZIBUKO
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
Ref:
A Magatyana/ FMM0521
On
behalf of the Respondents: Adv. M.C. LOUW
Instructed
by:
Peyper Attorneys
BLOEMFONTEIN
L
Radlley/ep
[1]
2002(2) SA 715 (CC) at 730-731.
[2]
1973(3) SA 685(A) at 69 at 691.
[3]
Section 151 of the Constitution.
[4]
Judicial Services Commission v Cape Bar Council 2013(1) SA (SCA) at
para 9.
[5]
[2009] ZACC 26.
[6]
2000(1) SA 1 paras 141-143.
[7]
2009(6) SA 354(ECD.