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[2022] ZAFSHC 283
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Mothamaha and Another v Member of the Executive Council for the Department of Co-operative Governance and Traditional Affairs: Free State (LTA 23/2021) [2022] ZAFSHC 283 (25 October 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No.: LTA 23/2021
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
FUTHULI
PATRIC
MOTHAMAHA
First
Applicant
MATHOLASE
JEMENA
MAZINYO
Second
Applicant
[1]
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS:
FREE
STATE
[2]
Respondent
Coram:
Molitsoane,
J
et
Opperman, J
Judgment
by:
Opperman,
J
Date
of hearing:
19
August
2022.
The application was disposed of without hearing oral argument and on
the Heads of Argument filed on record on behalf of the
parties.
Judgment:
25
October
2022.
The reasons for judgment were handed down electronically by
circulation to the parties’ legal representatives by email
and
released to SAFLII on 25 October 2022. The date and time for
hand-down is deemed to be on 25 October 2022 at 15h00.
Summary:
Application
for
Leave
to Appeal
-
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
[1]
The grounds for leave to appeal are wide and cumbersome. It is
uncertain if the applicants
want for all the grounds to be
adjudicated or if they have now curtailed it to the limited issues in
their Heads of Argument. The
Heads of Argument of the applicants
concluded with:
CONCLUSION:
10.
10.1
As was stated in the initial Heads of Argument the case was always
based upon a one-factual contention and that is that
Mr Goliath did
not agree with the salary afforded and agreed upon between the
Municipality and the Second- and Third Respondents.
He did so
because he viewed it to be too much. That was the case, truly made –
no matter what further pontifications were
advanced in the Founding
Affidavit and argument.
10.2
The court did not deal with it in this way, which means that –
respectfully – the grounds mentioned in the
opening stanza of
this document are satisfied and the matter should go on appeal to the
SCA.
10.3
The costs of this application should be costs in the appeal.
[2]
On the above alone, the application for leave to appeal must be
dismissed in totality.
The statement in paragraph 10.1 is wrong and
does not reflect the judgment
a quo
at all. The case was not
adjudicated on the view of Mr Goliath. It was adjudicated on the
facts presented in total and on the applicable
law. This is the crux
of the case:
1.
On the
resolutions of the Municipal Council the contracts and the resultant
salaries contracted are illegal. This was shown in the
57 -page
judgment and in detail. It is not the desires or wants of Mr Goliath
or the MEC that the court regarded; but the law and
the resolutions
of the Maluti-A-Phofung Local Municipality and Council of the
Maluti-A-Phofung Local Municipality; the real, undisputable
and
undisputed facts.
2.
The law was
depicted in detail and the facts applied. The facts applied stand
beyond any doubt. There is not any other conclusion
to be drawn.
3.
A quo
each
and every issue raised by the two applicants and every twist and turn
they took were dealt with in the utmost detail and the
issue of the
salaries more so.
4.
The
crucial
crux
is
that the appointments were not effected on the terms of the
resolutions of the Council of the Maluti-A-Phofung Local
Municipality.
5.
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 of salaries, which upper
limits are prescribed in the Regulations, the ratification of
the
Administrator and the receipt of the concurrence from the MEC: Cogta.
6.
The salaries
were not in terms of the Regulations as the judgment showed.
7.
It is common
cause that the Administrator did not ratify the salaries.
8.
It is common
cause that the concurrence of the MEC: Cogta was not obtained.
9.
The salaries
were not even in accordance with the advertisement for the positions.
10.
The judgment
concluded as follows:
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 concurrence 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.
[3]
The proven and real truth of the case is the following:
[3]
[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
[4]
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.
[5]
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.
[6]
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
[7]
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
[8]
of the applicant as confirmed by both the Administrators.
[9]
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)
[10]
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.
[11]
[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.
[12]
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.
[13]
[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.
[14]
[47]
The representative of the applicant, Mr. Dume,
[15]
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.
[4]
This is the Order made
a quo
:
[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.
[5]
The Heads of Argument must address the grounds for leave to appeal in
detail. It cannot
be appropriate to make sweeping statements and
leave the court and the opposing party to sift through the bulky
number of issues
left hanging in the Notice of Application for Leave
to Appeal. It might be that some of the issues are not alive anymore.
The Heads
of Argument of the applicants refer to all the grounds in
the Notice but only addresses two of the issues:
1.3
the Court, with respect, having erred in the respects detailed in the
grounds of appeal
formulated in the Second- and Third Respondent’s
(“
the Respondents”
) application for leave
to appeal.
[6]
Counsel for Cogta correctly described the grounds for leave to appeal
as it stands
in the Notice of Application for Leave to Appeal as
follows:
8.
Notwithstanding the fact the notice of appeal, advances the grounds
set out in
the aforementioned paragraphs,
which most are global
and without form or shape, it seems the applicants heads of argument
places premium on only two inter-related
(sic), which we propose are
the following:
8.1
That the essence of the main application was that the contracts of
employment were illegal, founded on the
contention that Mr Goliath
did not agree with the salaries offered to the applicant, thus the
process being a legality review.
8.2
In our rubric, this ground will fall under the
extant approvals
challenge
as well as the
powers
of the administrator
challenge.
9.
Only some of the grounds for leave to appeal are pertinently
addressed in the applicants’ heads of argument
. In
paragraph 9 of the applicants heads of argument it is stated that the
‘
grounds of appeal are copiously set out in the notice of
application’.
10.
We
are (sic) can only reply to those arguments addressed in the heads of
argument. This is the only sensible and fair approach,
every other
approach is perilous
.
[16]
(Accentuation added)
[7]
The issues of the “extant approvals challenge” and the
“powers of
the administrator challenge” are addressed in
the judgment above and were correctly depicted in the Heads of
Argument of
Cogta.
[8]
The final word
was spoken recently in the Supreme Court of Appeal in
Ramakatsa
and others v African National Congress and another
[2021]
JOL 49993
(SCA) in March 2021 on the tests for courts to apply when
confronted with an application for leave to appeal:
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act), leave to appeal may only be granted where
the
judges concerned are of the opinion that the appeal would have a
reasonable prospect of success or there are compelling reasons
which
exist why the appeal should be heard such as the interests of
justice. This Court in Caratco, concerning the provisions of
section
17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded that there are prospects of success, it must still

enquire into whether there is a compelling reason to entertain the
appeal. Compelling reason would of course include an important

question of law or a discreet issue of public importance that will
have an effect on future disputes. However, this Court correctly

added that "but here too the merits remain vitally important and
are often decisive". I am mindful of the decisions at
High Court
level debating whether the use of the word "would" as
oppose to "could" possibly means that the
threshold for
granting the appeal has been raised.
If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates
a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a
conclusion different
to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper
grounds that they
have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a
reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to
exist.
(Accentuation added)
[9]
The test for leave to appeal excludes the applicants from succeeding
in this application.
There is not any prospect of success. The matter
is simple and straightforward; the contracts were not entered into in
compliance
with the regulatory framework and council resolutions.
[10]
ORDER
The
application is dismissed with costs.
M
OPPERMAN, J
I
concur
P
MOLITSOANE, J
APPEARANCES
First
& second applicants
for
leave to appeal:

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
Respondent:

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
[1]
“
The
applicants”/ “Mr. Mothamaha” & “Ms.
Mazinyo”.
[2]
“Cogta”/
“respondent”/ “MEC”
.
[3]
Judgment
a
quo
.
[4]
“FA4”
Pages 53 to 63.
[5]
“
FA7”
at pages 85 to 87.
[6]
Page
52 and page 26 at paragraph 48.
[7]
Now
the applicants for Leave to Appeal.
[8]
Pages 176 to
177.
[9]
Annexures
“RA5(1)” and “RA5(2)” at pages 203 to 208.
[10]
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.
[11]
Paragraph
57.2 on page 29 of the record.
[12]
Page
128 at paragraph 28.1.2.
[13]
Page
217 at paragraph 6.6.
[14]
Page
37 at paragraph 96.
[15]
Pages 234 to 242.
[16]
Heads
of Argument for Cogta dated 9 August 2022.