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[2007] ZAFSHC 14
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Dihlabeng Local Municipality v Nthute and Others (4107/2005) [2007] ZAFSHC 14 (15 February 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 4107/2005
In
the case between:
DIHLABENG LOCAL
MUNICIPALITY
Applicant
and
S.L.K. NTHUTE
1
st
Respondent
P.G.
MOKOENA-RADEBE
2
nd
Respondent
P.M.
COLEMAN
3
rd
Respondent
T.M.
MHLOPHE
4
th
Respondent
M.E.
FOKANE
5
th
Respondent
MOTHIBEDI
MATSHELE
6
th
Respondent
JUDGMENT:
KRUGER, J
_____________________________________________________
HEARD ON:
25, 26 APRIL 2006, 5, 6, 7, 8, 9 FEBRUARY 2007
_____________________________________________________
DELIVERED ON:
22 FEBRUARY 2007
_____________________________________________________
[1] On 23
rd
September 2005 the applicant launched an application seeking a
declaratory order that the appointments of 1
st
to 5
th
respondents by 6
th
respondent are
ultra vires
and
of no force or effect and that the employment contracts of the 1
st
to 5
th
respondents be terminated.
[2] The appointments in
question were made by the 6
th
respondent in his capacity
as Municipal Manager of the applicant, a post he held from 1 December
2003 until his suspension on 4 August
2005.
[3] Applicant’s case is
that the appointments did not fall within the express bounds of the
empowering legislation and should be
declared a nullity because of
the illegality of the appointments. Applicant says that the 2
nd
to 5
th
respondents are all managers directly accountable
to the Municipal Manager and as such subject to
section 57
of the
Local Government: Municipal Systems Act No. 32 of 2000
. Applicant’s
case is that 2
nd
to 5
th
respondents were not
properly appointed in terms of
section 57
which provides as follows
in
section 57(1):
0.
63in; text-indent: -0.63in; margin-bottom: 0in; line-height: 200%">
"
57. 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 manger
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)."
[4]
Section 56
deals with
the appointment of managers directly accountable to Municipal
Managers.
Section 56(a)
reads:
"
56. Appointment of managers
directly accountable to Municipal Managers.
–(a) A municipal
council, after consultation with the Municipal Manager, appoints a
manager directly accountable to the Municipal
Manager."
[5] The 2
nd
to 5
th
respondents
were appointed as “Unit Managers”,
who,
according to applicant, are directly accountable to the Municipal
Manager and thus have to be appointed under
section 57.
The 2
nd
to 6
th
respondents, on the other hand, say that the 2
nd
to 5
th
respondents
were properly appointed by the 6
th
respondent under
section 57(1)(e)
which reads as follows:
"
55. Municipal Managers
.
–(1) As head of administration the Municipal Manager of a
municipality is, subject to the policy directions of the municipal
council,
responsible and accountable for—
....
(e) the appointment of staff other
than those referred to in
section 56(a)
, subject to the Employment
Equity Act, 1998 (Act No. 55 of 1998);"
[6] Applicant’s case
against the 1
st
respondent, who was appointed as labour
relations officer/legal assistant, is that such post does not exist
on the staff establishment
of the applicant.
[7] Because of the
disputes of fact on the papers, the application was on 26 January
2006 referred for the hearing of oral evidence.
The applicant called
four witnesses and only the 6
th
respondent testified on
behalf of the respondent.
[8] Applicant’s
first witness was
Mr. D. R. Evans
, who is the Integrated
Development Planning Manager of the applicant. He has been working
for local government since at least 1976.
He was the town clerk of
Paul Roux from 1993, a post he held for 11 years. Before that he was
a town clerk at Odendaalsrus for
14 years. The name “Town Clerk”
is no longer used today. Under current legislation the post is
referred to as “Municipal
Manager”.
[9] Prior to the year
2000 there were separate municipalities at Bethlehem, Rosendal
(Mautesendal), Paul Roux, Clarens and Fouriesburg
(Mashae-Fourie).
Comprising, respectively the five areas of (1) Bethlehem, (2)
Rosendal and Mautse, (3) Paul Roux and Fateng, (4)
Clarens and
Kgubetswana, and (5) Fouriesburg and Mashaeng. On 5 December 2000
these 5 municipalities were consolidated into the
new Dihlabeng Local
Municipality, with its seat at Bethlehem in terms of Free State
Provincial Notice 184 of 2000 of 28 September
2000 as corrected by
Notice 201 of 2000 dated 6 October 2000. The municipalities (TLC’s)
of Clarens, Mashae-Fourie, Paul Roux
and Mautsendal were in the
Notice disestablished and described as administrative units
(paragraph 9(1)). The Notice stated in paragraph
9(2):
"(2) The head of an
administrative unit shall –
be responsible for the control,
co-ordination and general supervision of that administrative unit;
and
act under the direction of, and be
accountable to the Municipal Manager for the continued operation of
the said administrative unit."
[10] As to the duties of
Unit Managers Evans testified that the Unit Manager must manage the
town and then report directly to Municipal
Manager, so he works
directly under the Municipal Manager. The unit manager must see to
it that finances are controlled in that
town; that services are
rendered there; that maintenance is done in that town; he must see to
staff at that town. Basically he has
to manage the whole office and
then report to the Municipal Manager. His post is comparable exactly
to that of the former town clerk.
[11] It was put to Evans
that the respondents’ case is that they did not fall under the
Municipal Manager, but reported to the various
directors, to which he
responded that that would be contrary to the section 12 Notice (184
of 2000) referred to above.
[12] Evans referred to
the organogram proposed by the 6
th
respondent, annexure
“MM1” to the answering affidavit. Paragraph 5 deals with the
office of the Municipal Manager and paragraph
5.8 deals with Unit
Managers (also referred to as Branch Managers). Several witnesses
were referred to this page:
"5.8 BRANCHES/UNITS
Organisational structure: All
Branches/Units
Main functions: All
Branches/Units
To manage the provision of the
municipality's services within the principles of effectiveness,
efficiency, reliability and economy
and in line with the Municipal
Service Delivery Plan.
To manage resources of the
municipality within the Town (Human, capital, technology) in line
with the Municipal Manager's directives,
legislation and council
resolutions and policy.
To support the Municipal Manager in
the discharge of his/her duties within a town in line with
legislation and as determined by
himself/herself from time-to-time
so as to strengthen
governance
,
service delivery
and
development impact
.
To lead and manage the provision of
municipal services
in respect of
cemeteries
,
reception and customer care
,
refuse removal
,
maintenance
,
gardening
,
cleaning
,
sanitation
,
local economic development
,
and
housing
etc. under the
technical and
functional supervision and control of respective Directors/General
Managers
so as to contribute to the upliftment of the
quality of life of communities in a town, and as determined by the
Municipal Manager
from town to town."
[13] In the proposal,
annexure “MM1”, put forward by the 6
th
respondent it
is stated under “Organisational Decision Principals”:
"3. DECENTRALIZED STRUCTURE AND
RESPONSIBILITIES
Devolution of power to the units
closest to communities for service delivery. Towns to have Branch
Managers reporting to Municipal
Manager for obtaining responsiveness
to communities."
In cross-examination
Evans agreed that section 66 of the Local Government: Municipal
Systems Act 35 of 2000, (hereinafter referred
to as the Systems Act),
provides that the responsibility for approving the staff
establishment lies with the Municipal Manager with
the qualification
that Council has to approve it, because council has to approve the
financial expense on the budget. Section 66
reads as follows:
"
66. Staff establishments
.
–(1) A Municipal Manager, within a policy framework determined by
the municipal council and subject to any applicable legislation,
must—
approve a staff establishment for the
municipality;
provide a job description for each
post on the staff establishment;
attach to those posts the
remuneration and other conditions of service as may be determined in
accordance with any applicable labour
legislation; and
establish a process or mechanism to
regularly evaluate the staff establishment and, if necessary, review
the staff establishment
and the remuneration and conditions of
service.
(2) Subsection (1)(c) and (d) do not
apply to remuneration and conditions of service regulated by
employment contracts referred to
in section 57."
[14] Evans was referred
to the code of conduct for councillors contained in Schedule 1 to the
Systems Act where paragraph 11 provides:
"A councillor may not, except as
provided by law –
(a) interfere in the management or
administration of any department of the municipal council unless
mandated by council."
[15] Evans was referred
to the so-called Makomota structure, a staff structure which was in
place at the applicant during the relevant
time which also dealt with
the office of the Municipal Manager:
"
OFFICE
OF THE MUNICIPAL MANAGER
Compiled by Makomota FMS (Pty) Ltd"
Unit Managers do not
feature on this structure.
[16] The Municipal
Manager is a section 57 appointment. The Directors are also section
57 appointments (record p. 28). It was put
to Evans that the Unit
Managers were not section 57 appointments and he agreed (record p.
29). He further testified:
"Maar die enigste mense wat direk
verantwoordelik is aan die munisipale bestuurders is die direkteure
heel onderaan die lysie
van bladsy 28 en daarom is hulle aanstellings
in terme van Artikel 57. --- En omdat hulle op 'n kontrakbasis is,
ja."
[17] The advertisement
for the posts of Unit Managers which 6
th
respondent caused
to be placed in the press, reads as follows:
"3. Unit Managers (Clarens,
Fouriesburg, Paul Roux, Rosendal)
3.1 Salary
- Total
package: R200 000 negotiable
3.2 Qualifications
- A 3 year post matric relevant
qualification or equivalent
- At least 3-5 years experience
- Proven
people management problem-solving skills
- Knowledge of municipal services and
administration will be an added advantage
3.3 Other competencies
- Customer
care and business communication skills
- Finance and budget management
- Human Resources management
- Computer
literacy
- Social
and economic development
- Housing
development
3.4 Duties
- Supervise the day-to-day service
delivery in the respective area (cash receipting, enquiries,
complaints, water, sanitation and
solid waste management)
- Co-ordinate
corporate services and finance, as determined by the relevant
directors
- Co-ordinate
socio-economic and housing development initiatives as determined by
relevant directors
- Co-ordinate
stakeholder management as determined by the relevant directors"
[18] On 8 November 2004
Council took the following resolution:
"Resolved:
That the current structure as adopted
by Council remains unchanged for the top levels and that the
proposed additions and amendments
only apply to the lower levels.
That the status quo remains for the
existing gradings and that the preliminary gradings apply only to
the new positions.
That the final gradings be determined
by job evaluations."
[19] Top-level posts were
1, 2 and 3 and the lower levels were from 4 to 8.
[20] The final staff
structure was only approved in November 2005 (Evans p. 55 record).
During June/July 2005 there was no staff
structure for the lower part
of the staff component (p. 55 record). The lower part of the
structure was only completed by Council
on November 2005 (record p.
62).
[21] When the
advertisements were placed Unit Managers did not feature in a staff
establishment. They were only inserted in November
2005. Only then,
in November 2005, did the Unit Managers fall in the top structure.
Before November 2005 Unit Managers were, as
Evans put it, between the
ceiling and the roof, no-one was connected to a post. The structure
placing Unit Managers in the structure
was only approved in November
2005.
[22] The next witness was
Mrs. Van Rensburg
. She is the personnel administrative
officer of the applicant Council. She is involved with the
administration around all the staff
matters, including leave. Asked
whether there are still town clerks, Mrs. Van Rensburg replied that
there were five but after amalgamation
the post is that of “Unit
Manager”. At the top the former town clerk is called the Municipal
Manager and the position of town
clerk in the smaller towns has been
superseded by the Unit Manager. The Unit Manager falls directly
under the Municipal Manager
for purposes of applying for leave. She
referred to several forms relating to leave applications and
subsistence and travel allowance
claims of the 2
nd
, 3
rd
,
4
th
and 5
th
respondents. All these
applications were approved by the Municipal Manager.
[23] It was put to Mrs.
Van Rensburg that Provincial Notice 184 of 2000 only applied until
the Systems Act came into operation to
which she replied that that is
possible. She also conceded that it is possible that section 9 of
Notice 184 did not apply to the
respondents because they were new
appointments, not persons who were transferred from former
municipalities. She said she did not
have knowledge of sections 56
and 57 of the Systems Act. She agreed that everything 2
nd
to 5
th
respondents did was as prescribed by the relevant
directors. She agreed that the respondents were not appointed under
section 57
of the Systems Act. Mrs. Van Rensburg agreed that Evans
was not a section 57 appointment, and Peachie, the legal adviser, who
was
also not a section 57 appointment, also had their leave approved
by the Municipal Manager.
[24]
Mr. Johan
Lodewikus Botha
was the next witness. He is the head of the
secretariat of the applicant where he has been since 1990. He works
under the director,
corporate services. His post is the equivalent
of the former city secretary, the person who keeps the minutes.
[25] An important aspect
of his evidence, if not the main thrust, was that before a person can
be appointed to a post, that post must
be on the budget. There is no
post described as “labour relations officer/legal assistant”.
There was also at the time of the
appointment of the 2
nd
to 5
th
respondent no post on the budget described as Unit
Managers.
[26] The
old top-structure remained in place until the changes effected in
November 2005/January 2006. Unit Managers were inserted
into the
structure towards the end of 2005 by Botha (Annexure "R5").
[27] The 1
st
to 5
th
respondents were appointed without the sanctioning
of Council and their posts were not on the budget.
[28] It is important to
note that Botha was suspended for long periods, from November 2001 to
October 2003 and September 2004 to August
2005. He was on suspension
at the date respondents were appointed, namely 1 August 2005. He has
no first hand knowledge of what
took place at the Council immediately
preceding the appointment of the respondents.
[29] Botha testified that
the respondents applied for leave to the Municipal Manager because
they were directly responsible to the
Municipal Manager. They do not
report to anyone else. They do not have to justify the actions to
anyone else. The council said
they are “mini Municipal Managers”.
[30] The council
resolution at p. 198 of 11 June 2004 that
inter alia
the post
of Unit Manager be re-advertised was put to Botha. He maintained
that the posts were not on the budget.
[31] Botha said he was
unaware of a dispute between counsellors and officials as to areas of
responsibility and powers. He was referred
to the report of the
auditor-general (“MM8”) for the year ended 2003, in which the
auditor-general voiced concern over the delegation
of executive
powers to Council members.
[32] Asked why the advert
was placed advertising the posts if there were no funds, Botha said
the procedure is to first approve the
advertisement. During the
budget meeting it is then decided whether there are funds for the
posts. Code "241" to which
the memo (Annexure "R2")
refers pertained to advertising costs. In practice Botha said this
means that only the advertising
costs are covered in such request as
in Annexure "R2".
[33] Asked whether
Council was not aware of the need to appoint Unit Managers, Botha
responded that it was an abnormal situation,
people were being
suspended left, right and centre.
[34] It was put to Botha
that Council was informed as to the posts of Unit Managers and their
financial implications by virtue of
submissions made to it. His
response was that those were recommendations, the decision only comes
later. (Page 191 embodies the
recommendation of the executive
committee to council and p. 186 is the Council resolution.)
[35] It was put to Botha
that the resolution of Council on 4 April 2005 which reads: “That
it be re-affirmed that the appointment
of employees is the
prerogative of the Executive Committee and Council”, is in conflict
with the Systems Act, and that Council
appropriated powers to itself
which it did not have. To this Botha responded that the Council is
his employer, he cannot say whether
the Council is right or wrong.
[36] The letter dated 2
nd
August 2005, which the 6
th
respondent wrote to the MEC on
the day before his suspension, which letter probably led to his
suspension was put to Botha:
"Dear MEC
SELECTION AND APPOINTMENT OF
UNIT MANAGERS
Please submit for the MEC's attention,
this correspondence.
I refer to the above-cited matter.
Firstly, with respect to the
appointment of Unit Managers, I wish to place the following on
record:
On the 11 July 2005 we were
interviewing Unit Managers; internal applicants as per the attached
long-list (Annexure A)
, internal
short-list
(Annexure B)
. The Speaker was informed that I was busy with
interviews.
The Speaker: Clr Motsoeneng left
messages with my Personal Assistant that
interviews should be
stopped, without any reason, and further that the Provincial
Chairperson of the ANC, Mr Ace Magashule should
be phoned, in that
regard
.
(This was a matter for the Mayor as my
political head and not myself, and therefore the Mayor should have
been engaged on that score).
The Speaker subsequently, burst into
an interview session with a cell phone in his hand and commanded that
I should speak to the Mr
Ace Magashule, this was in front of the
panel and the applicant to my embarrassment.
I however, spoke to Mr Ace Magashule,
who said he wants to engage me on Unit Manager appointments.
We agreed that he will phone me after
hours that day, as I was tied up the whole day. We further agreed
that there will be no appointments
until Thursday, but the interviews
continue. I had no other, but to manage this embarrassing situation
somehow.
The Speaker who at all times stood to
listen, subsequently left after I gave back the cellphone.
Mr Ace Magashule never phoned
that night, nor any other time. We proceeded on 13 July 2005
(Annexure: C) and finally appointed on
14 July 2005 as per the
attached appointment letters
:
Clarens: Mr TD Mhlophe
Paul Roux: Ms PM Coleman
Fouriesburg: Ms PG Radebe
Rosendal: Mr MA Fokane
At about 17h00 on 14 July 2005, the
Mayor told me that officials of the PEC and the REC would like to see
all ANC deployees in the
administration and I should call them. This
I did.
At that meeting the PEC officials gave
a ruling that Unit Managers will henceforth be deployed by the PEC
Deployment Committee. This
decision, it was the first time it came
to my knowledge. All the time I was told that only the Municipal
Manager and directors as
strategic executive officers are deployed by
the PEC Deployment Committee and the rest is dealt with by the
Municipal Manager.
This ends my report.
Mothibedi Matshele
MUNICIPAL
MANAGER
cc Mayor"
[37] It was put to Botha
that Unit Managers only fell into the top structure from November
2005 according to what Evans had testified
(record p 70):
"Eers in November 2005 het hulle
in the topstruktuur begin val? --- Toe het hulle hulle eers gewys
waar is die mense eintlik
in the struktuur, dit is reg, ja."
[38] The organogram which
placed the Unit Managers in the top structure was only finalised by
Council in November 2005 (Evans’s
evidence, record p. 72). The
following was said at p 66:
"Nou onder hierdie topstruktuur
het die Unit Managers nie gefigureer nie. --- Hulle was nie op
daardie stadium deel van hierdie
struktuur nie. Dit is waaroor ons
by die vorige geleentheid gesê het the Council approved with certain
conditions. U sal sien
nou in November 2005 het die Raad hulle dan
daar bo gaan inskryf by die huidige struktuur.
Verstaan
ek u reg wat die Raad gedoen het volgens u is in 2005 besluit hulle
hierdie Unit Managers skuif ook nou in die topstruktuur
in? Voorheen
lyk dit vir my het hulle nêrens ... (tussenbei). --- Hulle het
nêrens ... (tussenbei).
Gefigureer nie. --- Hulle was nêrens
nie.
Wanneer was hierdie poste, wie het die
eerste keer gepraat van die Unit Managers? Die branch of Unit
Managers, né? --- Ja. Nee,
ek weet nie wie het eerste gepraat van
die unit ... nee, ek kan nie daardie vraag antwoord nie, ek is
jammer. Al wat ek weet, is
toe die advertensie geplaas is toe het
ons gesien daar is Unit Managers. Ek weet nie hoe het dit gekom dat
daar gepraat word van
die unit manager nie, want daar was nie 'n
posbenaming nie en niemand het geweet wat gaan die persoon wees nie."
[40] Botha confirmed that
the present position of the Unit Managers is that they have to report
to their offices daily and then travel
to Bethlehem where they sit
all day without doing any work.
[41] Cross-examined
by Mr. Van Rhyn, who appeared for the 3
rd
respondent,
Botha said in January 2005, Council approved the final organogram.
As to how the Unit Managers were placed in the organogram
("R5"),
Botha testified that it was his administrative error to omit Unit
Managers from that organogram. There was no
box in the organogram
for them at all. He asked Mrs. Coleman, the 3
rd
respondent, to help him insert them in that organogram. He had done
the preliminary work on his laptop but when he transferred it
to her
machine the boxes got mixed-up and the work had to be re-done.
[42] Botha testified that
Council felt that the Unit Managers should be coupled to the
Municipal Manager and that they should be appointed
on contract.
[43] Asked how the
Council resolution of 11 June 2004 should be interpreted, namely the
resolution that the post be re-advertised,
he said that in November
2005/January 2006 the Unit Managers were for the first time placed in
the system.
[44] Because
the advertisement says their salary is negotiable, that means it has
to be a fixed term contract of appointment.
[45] It was put to Botha
that the 3
rd
respondent Mrs. Coleman did not have her
degree at the time of her application because moneys were
outstanding. He could not comment
on that.
[46] In re-examination
Botha said that the resolution of 20 February 2003, reserved all
rights to the Executive Committee. The powers
in paragraphs i, j, k,
l, m
inter alia
were reserved for Council:
"2. The powers and duties set out
hereunder are reserved for the Council by means of resolution by the
Council and may not be
delegated to any of the Council's other
political structures, political office bearers or officials. The
Council may also take no
decision in respect of these matters, unless
it has received and considered the report and recommendations of the
executive committee
in this regard:
....
the appointment of a Municipal
Manager and deputy Municipal Manager (post levels 0-1) as well as
managers (post level 2) who are
directly responsible to the
Municipal Manager after consultation with the Municipal Manager;
the determination of a policy
framework for staff matters as mentioned in section 66 of the
Systems Act;
adopting an employment equity plan
and skills development plan for the municipality;
approval of the permanent job
establishment of the municipality;
determination of the educational,
training, experimental and other attributes for appointment of
employees in the Council's service.
...."
[47] Botha re-iterated
that the Council resolution to place the advertisements was approved
under the advertising costs vote which
the “241” indicates. If
it had related to staff expenditure the vote number would have ended
in 001 or 008. At that time the
budget made provision for the former
town clerks and there were no vacant posts which Unit Managers could
slot into.
[48] On 4 April 2005
Council held a meeting. According to the minutes the speaker
informed Council that the Municipal Manager, the
6
th
respondent, argued that he was above Council based on the advice he
got from the legal adviser:
"In response to a question by
Councillor M M Radebe, the Legal Advisor said that the appointment of
employees other than section
57 employees was the competency of the
Municipal Manager. The Speaker referred to the policy framework
determined by the Council
in terms of which appointments had to be
made in response to which the Legal Advisor said that it was his
opinion that policy could
never override statutes. The Speaker said
that all the contradicting and misleading statements of the Legal
Advisor were noted by
Council. The Mayor, Councillor M P Jacobs said
that a reprimand should be issued whilst a system should be put in
place whereby
in future appointments of this nature shall be
sanctioned by the Mayor."
[49] The resolution
contains
inter alia
the following:
"1. that it be reaffirmed that
the appointment of employees is the prerogative of the Executive
Committee and Council.
....
4. that the Municipal Manager be
reprimanded for disregarding policy directives and that the matter of
recovering the salaries paid
to the employees in 2 above for the
period 1 October 2004 – 31 March 2005 be held in abeyance until the
outcome of the intended
disciplinary case is known.
5. that in future no appointments
shall be made without it having been sanctioned by the Mayor."
[50] Botha was referred
to an opinion by the Council’s legal adviser stated that Council
resolutions made in contravention of sections
55(1) and 66 of the
Systems Act would frustrate the objectives of the legislature. The
appointment of staff other than section 57
employees by council is
null and void. Botha was referred to annexure "R12" in
which Mhlambi, the deponent to the founding
affidavit informs the MEC
that resolutions inconsistent with legislation were repealed. In his
evidence Mhlambi stated that the
resolution he attached to confirm
that statement was the 2003 resolution.
[51] Botha
said that if the 6
th
respondent in his capacity as
Municipal Manager, was of the view that Council was acting wrongly he
should have employed rule 40
of the Council’s Rule of Order to
inform them of that fact.
[52]
Sipho Leon
Mhlambi
is the Municipal Manager of the applicant and deponent to
the founding affidavit. He took over as Municipal Manager on 4
August
2005 after the suspension of the 6
th
respondent.
He started his career in local government and acted as Unit Manager
of the Virginia Transitional Local Council. He
also acted as legal
adviser of Matjhabeng Council. As the old town clerk of Virginia he
was directly accountable to the Municipal
Manager of Matjhabeng.
[53] The Unit Managers
are “mini Municipal Managers”. They are strictly speaking the
former town clerks of the Transitional Local
Councils. They do not
report to the directors. They report to their Municipal Manager.
[54] The Makomota
Structure is still in place. Mhlambi testified that since he came to
Council it was never repealed. The approval
of all grades and
salaries has to go to Council. The approval of budget cannot be
delegated. It is in terms of the Constitution
reserved for Council.
At the time the 2
nd
to 5
th
respondents were
appointed the former town clerks were still receiving their salaries.
If Unit Managers were to be appointed there
would be double
payments.
[55] Council on 4 April
2005 took a decision that 2
nd
respondent be transferred
and relocated. There is a letter by the 6
th
respondent
wherein he recalls the 2
nd
respondent and appoints her as
Unit Manager in conflict with Council resolution of 4 April 2005.
[56] The fact that the
Unit Manager works in conjunction with the director with the
necessary expertise does not mean that the Unit
Manager reports to
that director.
[57] The salaries of the
Unit Managers which the 6
th
respondent appointed were not
budgeted for and were not part of the organogram and there was no
placement committee. The Municipal
Manager is a political
appointment.
[58] In cross-examination
Mhlambi said that the Makomota structure remained in place. He
agreed that the structure referred to in
the founding affidavit was
only the top structure and said that there was no complete structure
in place. The structure “MM1”
was only approved by Council in
November 2005 after the appointments of the Unit Managers in question
(the respondents) had been
made in July 2005.
[59] The former town
clerks were still there. They still got their salaries. They had to
be placed first according to the placement
policy “empty the pool
first”. Mhlambi was suspended from his post by the 6
th
respondent on 10 January 2005. His court application to rescind that
suspension was granted on 10 February 2005.
[60] The 6
th
respondent’s suspension was ordered by Council. Mhlambi agreed
that he was involved in implementing the suspension but denied
that
he was behind it.
[61] Mhlambi, who holds a
B.Iuris degree, said that section 55(1)(e) of the Systems Act does
not give a blank cheque. There was no
provision in the budget for
the posts of Unit Managers. There had to be job evaluations for the
posts into which the respondents
were appointed. In November 2005
the process was properly followed, but these appointments had been
made in July 2005 already.
[62] Asked how Unit
Managers differed from the former town clerks Mhlambi said the names
changed. The former town clerks are in charge.
They run the
administration in that administrative unit. They are accountable to
the Municipal Manager. They play a pivotal role.
[63] Asked about the memo
dated 15 June 2004, dealing with advertising the posts of Unit
Manager, Mhlambi said the advertisement never
served before Council.
Only Council can approve the budget.
[64] It is put to Mhlambi
that all the councillors did not want the Unit Managers to which he
responded that that was why the matter
was in court. Asked whether
the reasons why the councillors did not want the Unit Managers was
personal and whether that was a proper
reason, Mhlambi said that
there was no provision in the budget. Regarding the Council
resolution on 11 June 2004 to appoint Unit
Managers which was based
on the Executive Committee recommendation at p. 199 where there was
no reference to Unit Managers, Mhlambi
was asked how it came about
and it was put to him that Council decided that Unit Managers were to
be added. It was put to Mhlambi
that there was room in the budget
because certain posts had fallen away from the staff establishment,
so as to make it possible to
appoint Unit Managers. He responded
that it is the obligation of the Municipal Manager (6
th
respondent at the time) to tell Council if it is a wrong decision.
[65] On 1 June 2005 the
MEC wrote to Applicant:
"01 June
2005
The Municipal Manager
Dihlabeng
Local Muncipality
Dear Sir,
RE: DELEGATION OF POWERS
It has come to my notice that your
council took decisions in 2000, 2001, 2003 and 2004 to delegate
powers that are inherently conferred
to the Municipal Manager by the
System Act as well as the Structures Act, to the Mayor, Speaker and
Executive Committee.
The above decisions had the overall
effect of compromising good governance and stability in your
municipality. The Auditor-general
has also in the execution of his
functions, both in the management letter and the audit report made
sharp references to this irregularity
and expressed grave concern
about this state of affairs. In 2003 your Council in its resolution
noted that such delegation of powers
is inconsistent with enabling
legislation that regulates local government.
Your are hereby cordially called upon
to convene a special Council meeting not later than the 7
th
June 2005 to rescind the decisions taken in 2000, 2001, 2003 and 2004
relating to the delegation of powers of the Municipal Manager
and
other related officials.
Please note that the Special meeting
should deal with only this item.
Yours faithfully.
MJ Mafereka
MEC:
Local Government and Housing
"
Mhlambi responded as
follows:
"19
September 2005 FAX: 051-405 4193
ATT:
ME ZANELE MAGAGULA
Office of the MEC of Local Government
and Housing
Free State Province
PO
Box 264
BLOEMFONTEIN
9300
Sir
DECLARATORY ORDER
The writer refers to the previous
correspondence which dealt with the delegation system and
specifically advises that
* Council previously rescinded
resolutions that were apparently inconsistent with legislation and it
would appear as if this was not
duly communicated to your office.
Attached hereto please find a copy of the resolution that confirms
this.
The writer trusts that you will find
this in order and that this matter can now be regarded as finalized.
Yours faithfully
Sipho Mhlambi
ACTING MUNICIPAL MANAGER
"
[66] In evidence Mhlambi
said in his letter of 19 September 2005 he referred to the first
paragraph of the 2003 resolution. The 2003
resolution withdrew the
previous delegation. What remains is the Council resolution of 4
April 2005. Mhlambi testified that he
accepted that the MEC was
complaining about the resolution of 4 April 2005. Asked during
cross-examination whether the MEC was aware
of the 2003 resolution,
Mhlambi replied that he thought he was not. It is difficult to
understand this reply if one has regard to
the express reference to
the 2003 resolution in the MEC’s letter.
[67] In cross-examination
by Mr. Van Rhyn Mhlambi was referred to the correspondence with the
MEC wherein the MEC complained of resolutions
of Council which
appeared to unlawfully usurp administrative powers. Mhlambi
responded in a letter dated the 19 September 2005 stating
that the
resolution had been withdrawn, attaching the resolution of 2003.
[68] The
only witness for the respondents was the 6
th
respondent,
Motibedi Matshele
. He was the applicant’s Municipal Manager
from 1 December 2003 to 8 December 2005. He was suspended from 4
August 2005 and never
returned.
[69] With reference to
the policy directives of Council referred to in section 55 of the
Systems Act, 6
th
respondent said it was a decision of
Council that the posts of Unit Manager be advertised.
[70] 6
th
Respondent was tasked by Council to draft a proposed staff structure.
This he did (“MM1”). On 8 November 2004 (“MM2”) Council
dealt with this proposed structure. Council accepted that there was
to be Unit Managers and instructed 6
th
respondent to
ensure that there was uniformity in all the appointments. Asked
whether costs were discussed at the meeting, 6
th
respondent said that if the councillors are not happy, they voice
what they are not happy with. Asked about accountability, 6
th
respondent said that the idea was that Unit Managers will report to
the directors who are in charge of the particular area of concern.
[71] 6
th
Respondent filled the posts because he was under pressure from the
municipality for delivery. Council insisted that the posts of
Unit
Manager be advertised because of service delivery. Council was
under-spending on its compensation expenditure budget.
[72] The time lapse from
the placing of the adverts in July 2004 up to appointments in July
2005 was due to several factors:
Adv. Mofokeng, the
director of corporate services, resigned.
6
th
Respondent was under pressure from council to complete the
organogram.
There was a lot of
interference from councillors, especially corporate services wanting
to take over.
During February/March
2005 6
th
respondent was not at the municipality.
[73] Where the
advertisement required a three year post-matric qualification and
three years experience, 6
th
respondent said that he
regarded those as being in the alternative. The 2
nd
respondent was already acting in the position. She had experience
and was an administrator.
[74] Asked whether the
Unit Managers were not section 56 appointments directly accountable
to the Municipal Manager, 6
th
respondent replied that the
Municipal Manager oversees service delivery. The towns were service
delivery units. If there is a problem
in a town, the director is
called. The towns were directed by the directors. He appointed Unit
Managers as permanent appointments
to which post there is no
performance agreement attached. Council insisted that it, and not
the respondent, had to make the appointments
of Unit Managers. This
was the point of contention between council and 6
th
respondent. Council wanted to make the appointment itself. Yet 6
th
respondent felt that he had a duty to render a service and he made
the appointments believing that that was proper.
[75] Regarding the post
to which the 1
st
respondent was appointed namely that of
labour relations officer/legal assistant 6
th
respondent
said that they added words:- “legal assistant” were inserted to
stress. The incumbent was to assist the legal adviser
who had a
backlog to cope with. There was more than enough work for a labour
relations officer.
[76] Cross-examined by
Mr. Van Rhyn 6
th
respondent reiterated that the Unit
Managers were not section 57 appointments. Previously each town had
its own equipment and its
own treasurer and the idea of amalgamation
was to centralise, also to enjoy the maximum benefits in the area.
The need for a town
clerk in the smaller towns fell away. In
Arlington the person holding the position of former town clerk, is
called an administrative
clerk. The Unit Managers were
administrators. Decisions are taken at head office. Management is
centralised.
[77] There were uprisings
in neighbouring areas. They had to strengthen the town by appointing
Unit Managers.
[78] Asked why the
advertisement said that the salary of Unit Managers were negotiable,
6
th
respondent said that that allowed for the appointing
officer to meet what a suitable candidate was earning elsewhere. It
is standard
practice. Coleman, the 3
rd
respondent, was
appointed even though she did not have her qualification. They took
a holistic view. She had the potential and
came from a similar
position.
[79] In cross-examination
Mr. Claasen, for applicant, put to the respondent that the Systems
Act contains no definition of “directly
accountable” and that it
depends on the facts to which the 6
th
respondent agreed.
Section 9(2)(b) of Provincial Notice 184 of 2000 was a transitional
measure until the Systems Act came into operation,
the 6
th
respondent said.
[80] After amalgamation
decisions were taken at a different level. For instance, smaller
towns lost the position of town treasure.
Many people were moved to
the centre. The managerial control was centralised. The role of
former town clerks became menial. Rosendal,
for instance, used a
very junior person to fulfil the role of the former town clerk. “A
secretary type person”, as 6
th
respondent put it.
[81] The costs of the
former towns were put into the budget of the Municipal Manager as a
matter of convenience. The Municipal Manager
is accountable for the
whole budget. There is no such thing as a mini Municipal Manager.
There is only one Municipal Manager.
A key element of a manager is
decision making. The appointed Unit Managers were merely
administrators. They never had sheer managerial
authority. The
former town clerks lost about 95% of their managerial authority. It
was a convenient place in the organogram to
place the Unit Manager
under the Municipal Manager. The directors exercise control and are
responsible to the Municipal Manager.
For their technical support
the Unit Managers relied on the director. Like everyone else in the
staff establishment, they were
to support the Municipal Manager.
[82] It was important
from a managerial accounting point of view to see how much the units
were costing.
That is why their budgets were
placed under the respective towns to see what each town was bringing
in. The idea of the amalgamation
was a pooling of resources. There
would be devolution of power. A matrix system was used where an
incumbent has more than one superior.
One can see the Unit Managers
in the context of a matrix which is not an easy structure, but what
the 6
th
respondent wanted to introduce. This was a structure envisaged by
him personally. 6
th
Respondent is a trained job-evaluator.
[83] Asked who decided
that the proposed appointments of Unit Managers were section 55
appointments, the 6
th
respondent responded, Council did.
If Council held the view that those were section 57 appointments,
Council would specifically
say so in its resolution. There was no
Council resolution prior to August 2004 which stated that these were
section 57 appointments.
[84] As to the costs
involved in the appointment and the budget, 6
th
respondent
said that they were under-spending. They had a budget of R72
million. What he was proposing could fit into the budget.
There was
adequate provision. There were funds available in the compensation
expenditure budget. 6
th
Respondent explained the position
to council committees and workshop led councilors. There was full
disclosure. He went through
the whole proposed structure with them.
On the total compensation budget they were under spending. Adequate
funds were also available
for the next year.
[85] In re-examination
6
th
respondent referred to the span of control which a
manager should have. Ideally a manager should not have more than
seven people
reporting to him. Here he had ten. That places stress
on the span of control. He could not add Unit Managers. Unit
Managers would
go straight to the relevant director.
[86] At Rosendal a lady,
who was at the library, is acting as Unit Manager and at Paul Roux a
lady, who was an accounting clerk.
At Fouriesburg Hennie Venter, the
former town clerk, is acting and at Clarens Elaine Meyer, the former
town clerk.
IMPRESSIONS
OF WITNESSES
[87]
Evans
,
Applicant's first witness, has been working in local government for
more than 30 years. He acted as Applicant’s Municipal Manager
from
March to October 2001, and again from October 2002 to October 2003.
He appeared to have a sound understanding of local government.
His
view was that Unit Managers are not section 57 appointments.
[88]
Van Rensburg
only really testified about forms handed in in respect of leave and
subsidence and travel allowances by the 1 – 5
th
respondents. She said that she was unable to comment on the
legislative provisions.
[89]
Botha
has a
great deal of experience in local government. He made it clear that
Council was his employer; he could not criticise them.
The main
thrust of his evidence was that the posts of Unit Managers were not
on the budget, and therefore the appointments of 2
nd
–
5
th
Respondents could not be made.
[90]
Mhlambi
took
over from the 6
th
respondent as Municipal Manager. He was
involved with the suspension of the 6
th
respondent,
although, he said, not instrumental. Like Botha, he also harped on
the fact that because the budget did not expressly
refer to Unit
Managers, such posts could not be filled. Like Botha, his view that
Council would authorise the placement of an advertisement
without
approving that the posts be filled, is hard to believe. The most
severe criticism against Mhlambi is probably his evidence
that he
sent the 2003 Council resolution to the MEC with his letter of 19
September 2005 because he thought the MEC did not have
it. That
while the MEC in the enquiry expressly refers to the 2003 resolution.
I found both
Mhlambi
and
Botha
unsatisfactory
witnesses.
[91] The 6
th
respondent,
Matshele
, made the best impression of all the
witnesses. He is now working for the Provincial Government in a
responsible position. His
evidence that he was trying to make things
work while encountering a great deal of interference for Council,
makes sense. It is
clear that Council nonetheless decided to appoint
Unit Managers, and 6
th
Respondent’s evidence that he
satisfied them that there were sufficient funds in the budget
(although the posts were not named
in the budget) makes sense and
must be accepted.
LEGAL SUBMISSIONS
[92] Mr. Claasen, for
applicant, submitted that section 56(a) of the Systems Act makes it
clear that only council can appoint managers
who are directly
accountable to the Municipal Manager. According to the following
objective facts Mr. Claasen says Unit Managers
are directly
accountable to the Municipal Manager. As these he lists the
following:
(a) In every letter of
appointment which the 6
th
respondent sent to the Unit
Managers it is expressly stated that they are being appointed in the
office of the Municipal Manager.
(b) The
proposed organogram of the 6
th
respondent where he treats
Unit Managers is clear and uncontradictable proof that Unit Managers
are responsible, also from a monetary
point of view, to the Municipal
Manager.
(c) In
Annexure "MM1" Unit Managers are dealt with under par. 5
which deals exclusively with the office of the Municipal
Manager.
(d) Also
in "MM1" it is clear that these managers must administer
municipal services in line with Municipal Manager’s
directions.
(e) The
duty sheet of these Unit Managers states: “to support the Municipal
Manager in the discharge of his or her duties within
a town ....”.
They are clearly an extension of the execution duties of the
Municipal Managers in these particular towns (5.8.2
par. 3).
(f) These
Unit Managers manage the provision of municipal services in these
towns “so as to contribute to the upliftment of the
quality of life
of communities in a town, and as determined by the Municipal Manager
from town to town”. This makes it clear that
their accounting and
responsibility lies to the Municipal Manager.
(g) The
staff structure which was later proposed where the 6
th
respondent again refers to the decentralization of responsibilities
of Unit Managers so as to manage the total services on these
towns
and to be responsible to the Municipal Manager. “Devolution of
power to the units closest to the communities for service
delivery.”
Towns have branch managers reporting to Municipal Manager.
(h) The
organogram of November 2005 which relates to Unit Managers which was
accepted by applicant shows that the Unit Managers fall
in the top
structure.
(i) There
is no definition in the applicable legislation of the words “directly
accountable”. The most important indication is
however in the
notice in terms of section 12 of the Structures Act. The Provincial
Notice No. 184 of 2000 as corrected by Notice
201 of 2000 calls the
particular towns “administrative units” and clearly provides that
heads of these units will be responsible
to the Municipal Manager for
continued service delivery in the town.
(j)
The
particular notice confirms that the old town clerks of these towns
now become Unit Managers and this is a further indication that
it is
only an extension of the Municipal Manager of the main municipality.
There are now five towns after the amalgamation within
the particular
area. Each of these towns has a chief executive officer namely the
previous town clerks. Each one of these five
towns had as head the
former town clerk. The other four town clerks are heads of the
remaining units and only the chief executive
officer of Bethlehem
becomes the Municipal Manager of the new municipality. This means
that each, as in the past, is the administrator
of municipal
services. The fact that decision-making processes are changed is
automatic but does not change the basic principle
that all, including
the Unit Manager fall under the Municipal Manager. The essential
principle is that each unit has an administrative
head just as in the
past.
(k) Just
as in the past the Unit Managers administer the towns merely as an
extension of the Municipal Manager and they are in fact
mini
Municipal Managers and the alter ego of the Municipal Manager. Each
unit has an administrative head just as in the past.
(l) The
most important indication is the budget of the applicant. Each of
the former four towns has his own budget which covers each
aspect of
the administration in the town. This individual budget is placed
directly in the responsibility of the Municipal Manager’s
own
budget. The only logical conclusion is that the budgets of these
towns and the use thereof falls directly under the Unit Managers.

They fall directly under the Municipal Manager and they are directly
accountable to him for the administration thereof. In all
the years,
even the year 2008, the budget of the applicant shows that the funds
of these towns fall under the vote of the Municipal
Manager.
(m) Not
one of the departments of the directors contains any reference to any
one of these four towns.
(n) The
respondents applied for leave and subsistence and travel allowances
to the Municipal Manager. There was never any director
involved.
There are two types of forms. One type goes directly to the director
and the other goes to the Municipal Manager. These
persons all use
the forms which go to the Municipal Manager.
(o) It is uncontested
that there are prescribed forms for any director and the present
forms were completed by the respondents themselves
and were never
referred to or used a form where a director is involved.
(p) The advertisement
which was placed shows the particular directors but the particular
posts of the four respondents resort clearly
and without any doubt
under the office of the Municipal Manager. The other two posts in
the office of the Municipal Manager are
the personal assistant for
the Municipal Manager and the secretariat for the Municipal Manager.
Clearly all three posts in the office
of the Municipal Manager and
the persons who hold those posts are responsible to him. There is no
person involved in-between or
any other directors.
[93] The 6
th
respondent in his capacity as Municipal Manager was only capable of
making appointments “subject to the policy directions of the
municipal council”.
[94] Constitution
160(1)(d) and (2) provides that a Municipal Council may employ
personnel that are necessary for the effective performance
of its
functions. Council may delegate certain functions. Mr. Claasen
submitted that the Municipal Manager by virtue of Constitution
162(1)(d) only has powers under section 55 of the Systems Act insofar
as such powers have been delegated to him by Council. As there
has
been no such delegation, the Municipal Manager had no authority to
appoint staff in Mr. Claasen’s submission.
[95] Applicant adopted a
system of delegation on 23 July 2001 in terms whereof powers were
given to the mayor to appoint a panel for
short-listing, interview
and recommendations in respect of the appointment of employees on
post levels 0 – 6. On 20 February 2003
that delegation document
was repealed and new delegations were decided upon. The 2003
document was considered
ultra vires
by the MEC and Applicant
Council in April 2004 took a similar resolution.
[96] Mr. Claasen referred
to “policy directions” as contemplated in section 55 of the
Systems Act:
(a) The Budget
There was no provision in
the budget for the posts. Mr. Claasen says Council only approved the
costs in relation to the advertisement
and not the posts as
contemplated in the memorandum dated 15 June 2004.
The placement policy:
“empty the pool first”
.
There had to be a
placement committee.
The advertisement
mentioned a 30 day period which lapsed before the appointments and
therefore the respondents could not be validly
appointed having
applied under the advertisement. The offer had lapsed.
There was not a staff
establishment approved by Council.
On 4 April 2004 Council
decided that no appointments could be made without its approval.
Unit Managers are
political appointments.
As to second respondent
there was a Council decision for her to vacate her post and a
possible disciplinary hearing.
[97] Thus Mr. Claasen
submitted the appointments of the 2
nd
to 5
th
respondents are
ultra vires
.
[98] As to first
respondent the same arguments apply as well as the following:
(a) The first
respondent’s post does not form part of any accepted staff
establishment.
(b) There is no job
description of such post.
(c) The
advertisement does not make provision for such post.
(d) In fact and in
practice the first respondent never acted as a labour relations
officer because he never reported to those offices.
(e) The
first respondent only and exclusively worked in the office of the
legal adviser.
(f) There
was not a post advertised for further legal advisers.
(g) This
particular post of
“labour
relations officer/legal assistant”
does not exist in the budget because it is not part of the structure.
(i) The
6
th
respondent never had any authority or delegation of
Council to make this appointment.
[99] In the premises Mr.
Claasen submitted that the appointments of the 1
st
– 5
th
respondents should be set aside.
[100] Counsel for the
respondents, Messrs Van Rhyn and Greyling filed joint Heads of
Argument. In summary the respondents’ case
is:
(i) Section 55(1)(a) of
the Systems Act gives the 6
th
respondent the power to make
appointments. Council’s consent is not required.
(ii) In
spite thereof Council was approached and passed a resolution that
Unit Managers be appointed.
[101] Appointments under
sections 56 and 57 of the Structures Act are top management posts.
They are the decision-takers. There
has to be a performance
agreement signed by them annually. Such person’s job is
permanently uncertain. It is a fixed term contract.
When dealing
with such type of appointment it must be clear from the outset that
one is dealing with a section 56 appointment.
It cannot be inferred
afterwards. The advertisement makes it clear that the Unit Managers
will work under the direction of the directors.
The Unit Managers
were appointed to post level 4. Once an appointment is coupled to a
post level it is automatically no longer
a section 56 or 57
appointment. Appointments under section 56 and 57 are not coupled to
a post level or a salary scale. Persons
holding such posts could
earn double or even more than the highest post level.
[102] As to delegations,
the only delegation was withdrawn on the 20 February 2003 because
council interfered in staff matters and
the MEC complained.
[103] Mr. Greyling
referred to the conclusion by Evans that Unit Managers were not
section 57 appointments. This was a double concession:
(1) They were not
directly accountable to the Municipal Manager;
(2) There was no fixed
term contract or performance contract.
Mr. Greyling said there
is no basis to ignore that evidence. Evans acted as Municipal
Manager from March 2001 to October 2001 and
October 2002 to December
2003 which was after the Systems Act had come into operation.
[104] It is for applicant
to prove that the appointments were
ultra vires
.
[105] The first
respondent was appointed to do more than she asked for. Her
appointment cannot be
ultra vires
because she is expected to
do more than she applied for. She accepted to do that and therefore
is rendering more of a service to
Council than was advertised for the
same salary.
[106] In his argument Mr.
Van Rhyn responded to Mr. Claasen’s reliance on the Constitution.
He pointed out that there are many
statutes which confer rights and
duties on municipalities. It has never been alleged that the Systems
Act is in conflict with the
Constitution.
[107] After amalgamation
the role of officials in the smaller towns changed. They no longer
had a mayor, or a town clerk or town
treasurer. All decisions are
taken in Bethlehem. Even salaries are paid from Bethlehem. In order
to be “directly accountable”
one has to be in direct contact with
the other person. Here are individual persons namely the directors.
[108] The Unit Managers
are there to see that everything in the town runs smoothly. They
report problems to the directors. They
are not important persons.
Botha forgot to insert them in the last organogram after the matter
had been before Council in November
2004. The 6
th
respondent tried to keep the municipality on track in spite of a
great many frustrations.
[109] In reply Mr.
Claasen stressed that the directors assist in technical functions as
to administration the Municipal Managers remains
the administrative
head of the unit.
SUMMARY AND
CONCLUSIONS
[110] Two questions
should not be confused:
(i) What the 6
th
respondent did when he appointed the 1
st
to 5
th
respondents;
(ii) What
the 6
th
respondent was empowered to do under legislation
regarding the appointment of Unit Managers.
[111] The evidence makes
it clear that the 6
th
respondent acted under section 55
when he made the appointments. This appears from the letters of
appointment. The question remains
however whether he was entitled to
act under section 55 or whether these should have been appointments
under sections 56 and 57.
[112] The Constitutional
point taken by Mr. Claasen is without merit. The Systems Act has not
been found unconstitutional. The Municipal
Manager is a key
structure of a municipality (
EXECUTIVE COUNCIL, WESTERN CAPE v
MINISTER OF PROVINCIAL AFFAIRS AND CONSTITUTIONAL DEVELOPMENT AND
ANOTHER; EXECUTIVE COUNCIL, KWAZULU-NATAL
v PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA AND OTHERS
[1999] ZACC 13
;
2000 (1) SA 661
(CC)
2000
(1) SA 661
(CC) paragraph [108]). The nature and extent of a
Municipal Manager’s powers are such that they are non-delegable
(MGOQI v CITY OF CAPE TOWN AND ANOTHER; CITY OF CAPE TOWN v
MGOQI AND ANOTHER
2006 (4) SA 355
(C)
2006 (4) SA 355
(C)
paragraph [107]).
[113] As to the
delegations on which Mr. Claasen relies, Mhlambi made it clear in his
evidence that his letter of 19 September 2005
informed the MEC that
delegations by Council which were inconsistent with the Constitution
had been withdrawn. Insofar as the Council
resolution of 14 April
2005 appropriated to Council the right to make appointments which
were to be made by the Municipal Manager
under section 55 of the
Systems Act, that resolution was
ultra vires
and of no force
and effect. Section 55 gives the Municipal Manager the power to make
appointments (subject to policy directions
of Council). Council
cannot nullify that right by taking a resolution, which Mr. Claasen
calls a “policy direction” which effectively
negates this right
of the Municipal Manager.
The Systems Act gave the
6
th
respondent the right to appoint persons such as Unit
Managers, and this right remained intact in spite of Council
resolutions appropriating
the right to apoint to Council. As far as
the present respondents 1 – 5 were concerned, Council was aware of
their appointments,
raised no objection and, according to the
evidence of the 6
th
respondent, knew that there were
sufficient funds in the budget to pay these salaries.
[114] The first issue to
be determined is whether the post of Unit Manager is one of a manager
who is directly accountable to the
Municipal Manager. This raises at
least three questions:
(i) Are the Unit Managers
“managers” as contemplated in section 55?
(ii) Are
they accountable to the Municipal Manager?
(iii) Are
they directly accountable to the Municipal Manager?
[115] As to
accountability it seems that the Unit Manager is in fact accountable
to the Municipal Manager and in a sense it could
even be argued
directly accountable. However, the directors do the work. In this
sense the Unit Manager is directly accountable
to the Municipal
Manager in the same manner that the secretary of the Municipal
Manager would also be directly accountable to his/her
boss.
[116] Reverting to what a
manager is: One’s first inclination is to say that because a person
is called a manager that person is
a manager. According to the New
Shorter Oxford Dictionary use of the word “manager” in general
sense is now rare. The definition
also states:
“
A person whose office it is to
manage an organisation, business establishment, or public
institution, or part of one; a person with
a primarily executive or
supervisory function within an organisation.”
Firstly, one should
consider the evidence as to what these people actually did and what
their status is. Secondly one should consider
the context of section
55. Having regard to the fact that managers appointed under sections
56 and 57 must have a fixed term contract
and an annual performance
bonus, it is clear that one is here dealing with a top management
position. It would be strange if the
town clerk of a disempowered
small town all of a sudden has a performance agreement and also a
fixed term contract where he or she
is merely the eyes and ears of
the Municipal Manager in the town to see that the town runs smoothly.
The fact that the salaries,
according to the advertisement is
“negotiable" does not lead to a fixed term contract. The 6
th
respondent explained that this was inserted so as to meet the current
salary of the applicant.
Provincial
Notice 184 of 2000 was passed under section 12 of the Structures Act.
At the time section 9(2) of Provincial Notice 184
was enacted, there
were no Unit Managers. Practice would have to show what their role
was to be. The evidence in this case shows
that Unit Managers are
not executive-style managers who should be working to meet targets,
on a performance bonus system. They are
the eyes and ears of the
Municipal Manager to ensure the smooth running of their town.
[117] “Manager” as
contemplated in section 57 refers to a top manager who has
decision-making powers, not a person who takes all
instructions from
the Municipal Manager and whose moneys are paid centrally. Here one
has a central management structure, as the
6
th
respondent
testified. There is no managerial power in the true sense of the word
in the Unit Manager.
[118] The essential
feature which changes the position and makes the position of Unit
Manager not falling within sections 56 and 57
is the fact that there
are no decision making powers vested in the Unit Manager, the former
town clerk. That person merely has to
see to the administration and
one knows from the evidence that some of the persons who have been
appointed to act in these positions
are not managerial material and
are not expected to be such because they take no executive decisions.
It is probably because
Council was aware that these persons to be appointed were not to be
appointed as top management that they
allowed the advertisement to be
placed and the appointments to be made without provision having been
made specifically for them on
the budget. There were funds for
administrative purposes and these positions were approved by council.
[119] The applicant has
failed on both legs. Firstly, Applicant failed to show that these
were not persons who could be appointed
under section 55 by virtue of
the true core nature of their work, and secondly Council dealt with
the matter and allowed the appointments
to be made under section 55
although this was not strictly speaking necessary. The applicant has
failed to discharge the onus upon
it in respect of the 2
nd
to 5
th
respondents.
[120] In relation to the
1
st
respondent the same arguments apply. This was not an
executive position. The main thrust of the applicant’s objection
is that
there was no such post and it was not in the budget. The
fact is that this person was appointed to do more than the
advertisement
required and it can never be to the prejudice of
applicant, it was really to the advantage of the applicant that there
is now a person
who does additional duty. Therefore that appointment
of the 1
st
respondent by the 6
th
respondent can
not be faulted.
[121] In the premises the
application is dismissed with costs.
_____________
A. KRUGER, J
On
behalf of the applicant: Adv. J. Y. Claasen
Instructed by:
Phatshoane Henney Inc.
BLOEMFONTEIN
On behalf of the 1
st
,
2
nd
, 4
th
,
5
th
and 6
th
respondents: Adv. P. du P. Greyling
Instructed by:
Van
Wyk & Preller Inc.
BLOEMFONTEIN
On
behalf of the 3
rd
respondent:
Adv. A. J. R van Rhyn SC
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
EM