Brief Summary

Local Government — Acting municipal manager — Appointment exceeding statutory limits — The MEC for Co-operative Governance and Traditional Affairs, KwaZulu-Natal, sought to declare the appointment of the second respondent as acting municipal manager of Endumeni Municipality illegal, as it contravened section 54A of the Local Government: Municipal Systems Act, which limits such appointments to three months without the MEC's written approval for an extension. The municipality extended the appointment indefinitely without seeking the required permission. The court held that the extension was unlawful and declared the appointment null and void, emphasizing that a government body cannot act beyond its legal authority.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application in the KwaZulu-Natal Division of the High Court, Pietermaritzburg, in which the MEC for Co-operative Governance and Traditional Affairs, KwaZulu-Natal sought declaratory and interdictory relief concerning the lawfulness of an extended acting appointment to the office of municipal manager.

The applicant was the provincial MEC responsible for local government oversight in KwaZulu-Natal. The first respondent was Endumeni Municipality, the municipal council that made and extended the acting appointment. The second respondent was Desiga Padayachee, appointed as acting municipal manager. The third respondent was the Minister for Co-operative Governance and Traditional Affairs at national level, cited but not participating in the proceedings and with no substantive relief sought against him.

Procedurally, the matter arose after the municipality had first appointed the second respondent as acting municipal manager on 4 October 2016, and thereafter adopted resolutions extending that acting appointment beyond the period contemplated in s 54A(2A) of the Local Government: Municipal Systems Act 32 of 2000. A separate earlier application by the MEC to set aside the October 2016 acting appointment (on qualification grounds under s 54A(2)) had been launched and was still pending at the time of this judgment. The present application concerned the later extension of the acting appointment without the MEC’s approval as required by statute. A rule nisi had already issued on 13 February 2017, and the court was asked to confirm parts of it.

The general subject-matter of the dispute was the lawfulness, under the municipal governance framework, of the municipality’s decision to extend an acting municipal manager’s appointment beyond three months without applying to the MEC for an extension, as contemplated by s 54A(2A)(b), and whether interdictory relief should follow in circumstances where the municipality framed the matter as an intergovernmental dispute.

2. Material Facts

The court treated as common cause that the Local Government: Municipal Systems Amendment Act 7 of 2011 introduced s 54A into the Systems Act, including s 54A(2A)(a) limiting acting municipal manager appointments to three months, and s 54A(2A)(b) permitting a municipal council, in special circumstances and on good cause shown, to apply in writing to the MEC for a further extension not exceeding three months.

It was also common cause that on 4 October 2016 the Endumeni Municipality appointed the second respondent as acting municipal manager while the permanent municipal manager was suspended and disciplinary proceedings were underway. The second respondent’s initial acting appointment was due to lapse in late December 2016 or early January 2017 (the papers were unclear on the precise date, and the court indicated nothing turned on this).

On 23 December 2016 the municipal council resolved to extend the acting appointment to 6 January 2017. On 6 January 2017 the council adopted a further resolution extending the acting appointment indefinitely, in the sense that it would continue until the conclusion of disciplinary proceedings relating to the suspended municipal manager.

A key undisputed fact relied upon by the court was that the municipality did not apply to the MEC in terms of s 54A(2A)(b) for permission to extend the acting appointment.

The municipality advanced explanations in opposition, including that it needed the second respondent in office due to operational requirements and dissatisfaction with earlier deployees, and that it believed an application to the MEC would not receive an impartial decision because the MEC had already sought to have the second respondent removed in the earlier litigation. Instead of applying to the MEC for an extension, the municipality wrote to the national Minister requesting that the Minister note and support the council’s decision.

By the time of the hearing, and shortly before it, the Constitutional Court had delivered judgment in South African Municipal Workers’ Union v Minister of Co-Operative Governance and Traditional Affairs (CCT54/16) [2017] ZACC 7 (9 March 2017) confirming constitutional invalidity findings concerning the Amendment Act, but suspending the declaration of invalidity for 24 months. In argument, counsel for the municipality accepted that, in light of the Constitutional Court’s judgment, an order declaring the indefinite extension unlawful could not be opposed, but resisted the ancillary interdicts on the basis of an alleged intergovernmental dispute.

3. Legal Issues

The central legal questions the court was required to determine were whether the municipality’s extension of the second respondent’s acting appointment beyond the initial period, and in particular the indefinite extension, was unlawful and ultra vires due to non-compliance with s 54A(2A)(b), and whether such non-compliance rendered the appointment decision null and void as contemplated by s 54A(3).

A further question was whether the municipality could avoid or justify compliance with the statutory scheme by invoking the maxim lex non cogit ad impossibilia (the law does not compel the doing of the impossible), on the basis that it viewed an application to the MEC as bound to fail for lack of impartiality.

Another principal issue concerned the characterisation of the matter as an intergovernmental dispute under s 41 of the Constitution and the Intergovernmental Relations Framework Act 13 of 2005, and whether that characterisation should lead the court to decline the interdictory relief and refer the matter back for intergovernmental dispute-resolution processes.

These questions were primarily questions of law and the application of law to largely common-cause facts, with an element of evaluative judgment concerning whether the alleged dispute qualified as an intergovernmental dispute in the statutory and constitutional sense, and whether interdictory relief should follow once unlawfulness was accepted.

4. Court’s Reasoning

The court began from the statutory framework in s 54A. It treated s 54A(2A)(b) as imposing a positive legal obligation on a municipal council that wishes to extend an acting municipal manager’s appointment beyond the three-month limit: the council must apply in writing to the MEC, in special circumstances and on good cause shown, for an extension of up to a further three months. In the court’s view, the municipality’s decision to extend the appointment indefinitely without such an application meant the council purported to exercise a power it did not have.

The municipality’s reliance on lex non cogit ad impossibilia was rejected on the basis that the maxim applies as a defence to the failure to carry out a positive obligation only where performance is truly impossible. Relying on Rex v Canestra 1951 (2) SA 317 (A), the court held that the municipality did not contend that it was impossible to make the application to the MEC. Its real contention was that, in its opinion, it was “impossible” for the application to succeed because the MEC would allegedly be biased or predetermined due to the earlier challenge to the second respondent’s qualification.

The court considered that this reframing could not sustain the defence. It regarded as untenable the proposition that where the law prohibits conduct without prior permission, a party may disregard the permission requirement merely because it believes permission will inevitably be refused, even if the refusal would (in the party’s view) be incorrect. On this reasoning, non-compliance with s 54A(2A)(b) could not be excused, and the declaratory relief that the appointment was unlawful had to follow, particularly as no other basis was advanced to resist that declarator.

Turning to the argument based on s 41 of the Constitution and the Intergovernmental Relations Framework Act, the court addressed whether there was a genuine intergovernmental dispute capable of referral for dispute-resolution rather than judicial enforcement. The court reasoned that a disagreement about whether an organ of state should be permitted to act illegally cannot constitute an intergovernmental dispute of the kind contemplated by the constitutional and statutory framework. Once the extension was accepted to be unlawful, the dispute could not be framed as a legitimate contest about how powers should be exercised; rather, it concerned the cessation of an unlawful state of affairs.

The court reinforced this by reference to constitutional principle, quoting the observation in Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred by law. In the court’s analysis, the municipal council had unilaterally exercised a power it did not possess.

The court also analysed the statutory definition of an intergovernmental dispute under the Framework Act, stating that the disagreement between the MEC and the municipality had not yet attained that status. It reasoned that if the municipality had applied to the MEC for an extension and the MEC had refused, a dispute could potentially have arisen from the MEC’s statutory power to approve or refuse extensions. However, because the municipality did not apply at all, that dispute never crystallised in the manner contemplated by the Framework Act. For that reason, there was no dispute to refer back for intergovernmental resolution processes.

Additionally, the court observed that even if such a dispute had arisen, it would be difficult to see how its existence could justify or render lawful the municipality’s unilateral extension in the meantime. The consequence of the court’s reasoning was that both the declaratory order and the interdictory relief restraining continued acting in the position had to be granted.

On costs, the court identified that the second respondent abided the court’s decision and the third respondent took no part. The costs issue therefore lay between the MEC and the municipality, both organs of state. The court disregarded the existence of the earlier pending litigation, noting it was not before the court and turned primarily on unresolved qualification issues. The court considered the policy context of s 54A as aimed at preventing abuses such as the circumvention of lawful processes through open-ended or repeatedly extended acting appointments, while indicating that it was not satisfied on the papers that the municipality’s extension fell within that targeted category of abuse, notwithstanding its unlawfulness. In the result, the court held that each party should bear its own costs.

5. Outcome and Relief

The court confirmed the relevant parts of the rule nisi previously issued on 13 February 2017. It granted declaratory and interdictory relief that had the effect of declaring the second respondent’s extended acting appointment unlawful and restraining the municipality from permitting, and the second respondent from performing, the functions of acting municipal manager under the unlawful extension.

As to costs, the court made no adverse costs order against the municipality. It ordered that each of the applicant and first respondent pay its own costs.

Cases Cited

Rex v Canestra 1951 (2) SA 317 (A)

Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC)

South African Municipal Workers’ Union v Minister of Co-Operative Governance and Traditional Affairs (CCT54/16) [2017] ZACC 7 (9 March 2017)

Legislation Cited

Local Government: Municipal Systems Act 32 of 2000

Local Government: Municipal Systems Amendment Act 7 of 2011

Intergovernmental Relations Framework Act 13 of 2005

Constitution of the Republic of South Africa, 1996 (section 41)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the municipality’s resolution extending the second respondent’s acting appointment as municipal manager without applying to the MEC in terms of s 54A(2A)(b) was unlawful, ultra vires, and null and void, and that the maxim lex non cogit ad impossibilia did not excuse the municipality’s non-compliance because it was not impossible to apply; the municipality merely believed the application would fail.

The court further held that the matter did not present a referable intergovernmental dispute under s 41 of the Constitution and the Intergovernmental Relations Framework Act 13 of 2005, because there could be no genuine intergovernmental dispute over whether an organ of state may act unlawfully, and because a dispute contemplated by the Framework Act could not arise where the municipality had not first invoked the MEC’s statutory power by applying for an extension.

The court consequently confirmed interdictory relief preventing the continuation of the unlawful state of affairs, and ordered that each of the MEC and the municipality bear its own costs.

LEGAL PRINCIPLES

The judgment applied the principle that statutory provisions conferring powers and imposing obligations on organs of state must be complied with, and that where legislation requires prior approval before a course of conduct may be pursued, an орган of state cannot lawfully bypass that requirement on the basis that it anticipates refusal of the approval.

It applied the principle associated with lex non cogit ad impossibilia, as described in Rex v Canestra 1951 (2) SA 317 (A), that the maxim operates only where compliance with a positive legal obligation is truly impossible; a belief that compliance would be futile or unsuccessful does not constitute impossibility and does not justify non-compliance.

It reaffirmed, consistently with Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC), that in South Africa’s constitutional order the legislature and executive in every sphere of government may exercise no power and perform no function beyond that conferred by law, with the consequence that a municipal council cannot validly take decisions outside its statutory powers.

It further applied the approach that the intergovernmental dispute-resolution framework in s 41 of the Constitution and the Intergovernmental Relations Framework Act 13 of 2005 presupposes a dispute arising from the exercise of statutory powers or functions, and that such a dispute does not crystallise where the party alleging the dispute has not first invoked the statutory mechanism (here, by applying to the MEC for an extension).

MEC for Co-operative Governance & Traditional Affairs, KwaZulu-Natal v Edumeni Municipality and Others (1425/17) [2017] ZAKZPHC 38 (24 March 2017)