IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 4247/2023
In the matter between:
DEMOCRATIC ALLIANCE Applicant
And
THE SPEAKER OF THE KNYSNA MUNICIPAL
COUNCIL First Respondent
THE EXECUTIVE MAYOR OF THE KNYSNA
MUNICIPALITY Second Respondent
THE MUNICIPAL MANAGER OF THE KNYSNA
MUNICIPALITY Third Respondent
OMBALI PHINEAS SABOLA Fourth Respondent
WESTERN CAPE MINISTER, LOCAL GOVERNMENT,
ENVIRONMENTAL AFFAIRS AND DEVELOPMENT
PLANNING Fifth Respondent
MINISTER FOR CO-OPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS Sixth Respondent
Case Number: 4441/2023
In the matter between:
WESTERN CAPE PROVINCIAL MINISTER
OF LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING Applicant
and
THE KNYSNA MUNICIPALITY First Respondent
THE SPEAKER OF THE KNYSNA MUNICIPAL
COUNCIL Second Respondent
THE MUNICIPAL MANAGER OF KNYSNA
MUNICIPALITY Third Respondent
OMBALI PHINEAS SEBOLA Fourth Respondent
Dates of hearing: 18, 20 July 2023
Further affidavits filed in 4247/23: 1, 4 August 2023
Further written submissions in 4247/23: 4, 10, 11 and 16 August 20231
Date of judgment: 10 May 2024
______________________________________________________________________
JUDGMENT
______________________________________________________________________
1 Amended reserved judgment date is 16 August 2023 . The explanation for delay in delivery of the
judgment was communicated to the Acting Judge President.
PANGARKER AJ
THE TWO APPLICATIONS
Introduction
1. The applicant, the Democratic Alliance (DA/applicant) seeks by way of an
Amended Notice of Motion in case number 4247/23, the following relief:
1. It is ordered that this application be dealt with as one of urgency and that the
applicant’s failure to comply with the Uniform Rules of Court and practice
manual be condoned.
2. Declaring that the decision taken by the Knysna Municipal Council, dated 25
January 2023, appointing the Fourth Respondent as the Municipal Manager is
null and void.
3. In the alternative to paragraph 2:
3.1 Declaring that the decision taken by the Knysna Municipal Council, dated
25 January 2023, appointing the Fourth Respondent as the Municipal
Manager is unlawful, unconstitutional, and invalid.
3.2 Reviewing and setting aside the decision in paragraph 3.1.
4. Declaring that the decision taken by the Knysna Municipal Council, on 14
February 2023, to remunerate the Fourth Respondent on the maximum scale
(as determined by Notice No: 43122 of March 2020 on upper limits for Senior
Managers) is declared unlawful, unconstitutional, and invalid.
5. Reviewing and setting aside the decision in paragraph 4.
6. Declaring that all decisions taken by the Fourth Respondent, in his purported
capacity as the Municipal Manager, including all contracts and all
appointments, are declared unlawful, unconstitutional and invalid and are
reviewed and set aside.
7. In the alternative to paragraph 6:
7.1 Declaring that all decisions taken by the Fourth Respondent, in his
purported capacity as the Municipal Manager, including all contracts and
all appointments, are declared unlawful, unconstitutional and invalid and
are reviewed and set aside.
7.2 Suspending the order in paragraph 7.1 for a period of ten court days.
During such period the First to Third Respondents, or other authorised
officer, may apply to the High Court, on supplemented papers, for an order
in terms of s 172 (1)(b)(i) of the Constitution in respect of any specified
decision of the Fourth Respondent in his purported capacity as Municipal
Manager of the Knysna Municipality.
8. Any respondent, who opposes this application, is ordered to pay the
applicant’s costs, including the costs of two counsel.
9. Further and/or alternative relief.
2. In case number 4441/2023, the Western Cape Provincial Minister of Local
Government, Environmental Affairs and Development Planning (MEC), sought in March
2023 by way of an urgent application, to declare the decision taken by the Knysna
Municipal Council (the Council) on 25 January 2023 to appoint Ombali Phineas Sebola
(Sebola) as it’s municipal manager, null and void. In terms of an order granted on 17
April 2023 by Acting Judge President Goliath, the matters were set down for a joint
hearing on 18 and 20 July 2023 respectively. The order also encapsulated a time -table
for the delivery of the Rule 53 record, affidavits and heads of argument.
3. By the time the matters were heard, both had transformed to the extent that the
issues and disputes, but for costs in case number 4441/2023, were constrained to the
DA’s application in 4247/2023. I therefore address this application first in the judgment .
The aspect of costs in 4441/2023, and after discussion in chambers with counsel and
their attorneys, was heard first.
4. The DA’s application was riddled with interlocutory applications, which are
considered below. Suffice to point out as an introduction that I granted certain orders in
a striking out application and indicate the reasons for the order in the judgment.
5. After two full days of argument and in light of the aforementioned striking out
application, the landscape of the DA’s application was the following: the first to fourth
respondents would deliver their further affidavit s referred to in the striking out
application, on 28 July 2023 and the applicant’s legal representatives would inform me
by 31 July 2023 if their client intended to file a further affidavit , whereafter judgment
would be delivered in early August.
6. Counsel for the applicants in both matters requested that an order be granted
that Sebola’s appointment by the Council be declared null and void and that reasons for
the order were to follow . Coun sel for the respondents disagreed, requesting that the
orders not be piecemeal, but composite, at the conclusion of my judgment. The
motivations in respect of the request s by all the parties in both matters were fully
canvassed and considered and given the numerous issues in the DA’s application, I
decided against granting a piecemeal order.
7. The DA launched its review and remedial relief application on 10 March 2023
and the MEC delivered his application for a declaratory order on 15 March 2023. In the
DA’s application, only the first to fourth respondents participate therein. Where the role
players and parties are referred to without reference to their title, this is not intended to
be disrespectful of them.
The parties
8. The respondents in 4247/2023 are the Speaker of the Knysna Municipal Council,
the Executive Mayor and municipal manager of the Knysna Municipality who is cited in
his administrative capacity and in his person al capacity, the MEC and the Minister for
Co-operative Governance and Traditional Affairs. The first to fourth respondents are
simply referred to herein as the respondents . The Minister abides the decision of the
Court.
9. In case number 4441/2023 , the respondents are the Knysna Municipality, the
Speaker of the Knysna Municipal Council and the Knysna m unicipal manager in his
official and personal capacities. The only issue for determination is costs. There is an
overlap of facts in these applications and several facts which are common cause, are
set out below.
Summary of common cause facts
10. On 9 December 2021, the Knysna Municipality advertised the position of
municipal manager, with a closing date for applications being 5 January 2022 2. The
position was re -advertised on 13 June 2022, with a closing date of 8 July 2022 3, but
because time limits were not adhered to, the post was re -advertised further on 27
September 2022 with 10 October 2022 being the closing date4.
11. Messrs Adonis, Smit and Sebola were shortlisted for the vacant post and the
candidates underwent an assessment and interview process on 6 December 2022. The
2 SS3
3 SS4
4 SS5
selection process and panel excluded the DA Chief Whip and other Chief Whips . Roy
Steele and Associates5 were appointed to attend to the screening and shortlisting of the
candidates and subsequently compiled a selection report, which has loosely been called
the Steele report during these proceedings6.
12. The Steele report ranked the three candidates’ performances on interviews and
written assessments as follows:
“DJ Adonis and Smit - Advanced
RK Smit - Advanced
OP Sebola - Needs development/Competent7”
13. The Steele report also ranked the three candidates on their knowledge and
experience competencies. Once again in these categories, Smit and Adonis ranked as
“advanced” in all the competencies, while Sebola ranked as “Needs development as per
written assessment/Minimum Competency Course completed8. It is common cause that
the Steele report did not contain the candidates’ interview scores, but the evidence
indicated that Sebola f ared the best in the interview itself. That notwithstanding, the
Steele report made the following findings at paragraphs 5.3 and 6 thereof:
“5.3 Findings
5.3.1 The interview outcome is an inverse relationship with the
assessment outcome. The assessment outcome showed that Mr
DJ Adonis and Mr RK Smit feature as the most competent amongst
the three candidates.
5 The reference during the hearing and in written submissions has been to Steele consultants, which is
the description used interchangeably herein
6 SS6
7 SS6, par 5.1
8 SS6, par 5.2.1
5.3.2 Mr Sebola for reasons unexplained made constrictive progress in
completion of the case assessment. Financial management skills
will require further development.
5.3.3 This may increase the risk of successful occupation of the post of
Municipal Manager for Knysna Municipality. However, should the
Selection Panel resolve to appoint Mr Sebola on grounds of
transformation and representivity, it is strongly recommended that a
strong executive management team be appointed to support him
and/or support in a form of a mentorship.”
6. Recommendations
It is recommended:
6.1 That the Selection Panel takes note of the content of the Selection
Report;
6. 2 That the Selection Panel approves the recruitment and selection
process, the Long list, Short List and Screening Report;
6.3 That either Mr DJ Adonis or Mr RK Smit be considered for
appointment as Municipal Manager in the light of the restricted
response to the case evaluation by Mr OP Sebola, or citing reasons
readvertise the vacancy and/or indulge in a further recruitment
process;
6.4 That the contract of employment and the all -inclusive remuneration
package be negotiated and finalized by the Executive Mayor within
the statutory limits and period allowed;
6.5 That it be noted that, within 14 days of Council Decision, a written
report including all necessary documents be submitted to the MEC
for local government regarding the appointment process and
outcome;
6.6 That the Human Resources Department, as a matter of courtesy
and legal requirement, inform the unsuccessful candidates formally
of the outcome of the selection process, and thank them for their
application and participation in the process.”
(my emphasis)
14. From the above extracts, it was apparent that Steele Consultants recommended
to the Selection Panel that Adonis or Smit be appointed as municipal manager,
pursuant to which the Selection Panel prepared its own report 9 to the Knysna Municipal
Council. After meeting on 18 January 2023 , the Selection Panel concluded that, in
respect of knowledge and experience, “all candidates met the threshold” 10 with regard
to the categories of higher education qualification, work related experience, core
managerial and occupational competencies and supply chain management
competencies. The Selection Panel’s report also stated that it had considered a number
of factors, including that Sebola scored the highest in the interview and it ultimately
recommended that Sebola should be appointed for the position.
15. However, the Selection Panel’s report was silent on the Steele Report’s scoring
of Sebola’s competency assessment, and that either of the other two candidates , Smit
or Adonis, were recommended for the post and Sebola was not. A third report, this time
9 SS7
10 SS7, p65
by the Executive Mayor, was prepared for the Knysna Municipal Council 11 and it stated
that:
“The panel in their recommendation of Mr O.P. Sebola took into account a
number of considerations, including the fa ct that Mr. Sebola performed the best
and scored the highest points in the structured interview, transformation and
representivity. The panel is further encouraged and, as advised by the
consultant, further recommends that a strong executive management team be
appointed to support the municipal manager.”
(my emphasis)
16. The Steele and Selection Panel reports were attached to the Executive Mayor’s
report and on 25 January 2023, the Knysna Municipal Council held a Special Council
meeting. One of the items on the agenda was the appointment of the new municipal
manager for Knysna 12. Suffice to point out that the reports referred to earlier were
provided to councillors on the day of the meeting. The agenda indicated that the
Speaker ruled that the report on the appointment of municipal manager was to be
moved for discussion “in Committee” and it indeed was.
17. The Minutes of the meeting reflected that there were various caucus breaks to
discuss and consider the reports, with two proposals put forth 13. One of the proposals,
made by the DA’s councillor Sharon Sabbagh (Sabbagh), who was also the deponent to
the founding affidavit in case number 4247/23, was that the appointment be re -
advertised due to material mistakes and irregularities with the interview and assessment
process and a lack of information on the scoring of the three candidates.
11 SS8
12 SS9
13 SS9, p79
18. Given the voting for the two proposals, the Speaker used his casting vote to
support the Executive Mayor’s proposal. It was thus resolved by a majority at the
Special Municipal Council Meeting:
“[a] That Council takes note of the content of the Selection Committee report;
[b] That the recruitment and selection process as reflected in the Selection
Committee Report, and consultant report be accepted;
[c] That Council takes note that Mr O P Sebola, who performed the best and
scored the highest points during the structured interview is competent, for
the appointment as a Municipal Manager;
[d] That Council appoints Mr O P Sebola as the Municipal Manager for a
period of five (5) years on the basis of the findings and the consensus of
the Selection Panel;
[e] That the Executive Mayor extends an offer of employment to Mr O P
Sebola;
[f] That the fixed term contract of employment and the all -inclusive
remuneration package and subsequent reviews be negotiated and
finalized by the Executive Mayor within the statutory limits;
[g] That should Mr O P Sebola decline the offer or not sign an employment
contract within one month of today’s Council resolution, that the Executive
Mayor submit a report for the consideration of the appointment of the
second or third suitable candidate or the re -advertisement of the position
of Municipal Manager;
[h] That the report on the appointment of Mr O P Sebola be provided to the
MEC for Local Government in terms of Regulation 17(3) (b) of the Local
Government: Municipal Systems Act, Act 32 of 2000 and Regulations;
[i] That the Human Resource, or a representative thereof, as a matter of
courtesy, inform the unsuccessful candidates formally of the outcome, and
thank them for their application and participation in the processes.”14
(my emphasis)
19. On 7 February 2023, the Executive Mayor informed the MEC of the Council ’s
taken on 25 January 2023 to appoint Sebola as municipal manager, attaching various
documents to the correspondence 15. Sebola was consequently appointed as municipal
manager of the Knysna Municipality and it seems undisputed that at a further Municipal
Council meeting hel d on 14 February 2023, it was decided that he would be
remunerated on a scale commensurate with the upper limit for senior managers.
20. It is common cause that section 54A of the Local Government : Municipal
Systems Act (the Act)16, read with the Regulations to the Act, apply to the appointment
of municipal managers and acting municipal managers. In lengthy correspondence
dated 16 February 2023 17, Minde S chapiro and Smith Inc., the DA’s legal
representatives, informed the MEC18 on the process of Sebola’s appointment, his
assessment as “basic” and “needing development”, and that the Executive Mayor had
misrepresented that Sebola had scored the highest and performed the best out of the
candidates. The correspondence indic ated that Sebola’s appointment violated the Act
and Regulations and the MEC was requested to take appropriate steps in terms of the
Act, which include d an application for a declaratory order or any other legal action
against the Municipal Council.
14 SS10,
15 AB6 in case no 4441/2023
16 32 of 2002
17 SS11
18 Fifth Respondent
21. The MEC’s correspondence to the Executive Mayor on 23 February 202319 made
it very clear that evident from the judgment of Dilosotlhe v Mahikeng Local
Municipality and Others20, candidates falling within the basic range may be appointed
as senior managers in rare situations but the competency framework did not allow for
such a candidate to be appointed where other candidates were assessed as competent
or better21.
22. Significantly, the MEC’s correspondence alerted the Executive Mayor to the fact
that to prefer a candidate who was assessed as “basic” and “needing development ”
over competent candidates was irrational , regardless of how well the preferred
candidate scored in the interview. Sebola’s appointment was thus contrary to the
Appointment Regulations, and in particular item 6.1 of the Competency Framework
provided for in the Act , and was furthermore irrational . The MEC concluded that the
decision to appoint Sebola as municipal manager was therefore null and void22.
23. Notwithstanding the MEC’s urgent and detailed correspondence, the Executive
Mayor was undeterred about Sebola’s appointment and the correctness thereof. He
held the view that item 6.1 of the Competency Framework provided merely a
benchmark for appointments and that Sebola was indeed competent. In support, the
Executive Mayor attached a December 2022 assessment of Sebola, which holistically -
speaking, assessed him as competent 23. The latter reference was to the Gijima report ,
which is referred to in more detail later herein.
24. In the MEC’s reply to Minde Schapiro and Smith, he confirmed receiving the
report on the appointment, and noted that the report from the Council omitted certain
documents and information necessary or prescribed by Regulation 17(4) and that these
19 SS17
20 Case no UM130/2020, an unreported judgment of the North West Division Mahikeng delivered by Gura
J on 25 October 2021
21 SS17, par. 6
22 SS17, par 7
23 See Gijima report, p136 - 145
were requested from the Municipality. The MEC highlighted at paragraph 3 of his
correspondence that it appeared that Sebola’s appointment was not in accordance with
the requirements of the appointment Regulations, and he had requested the
Municipality to terminate the appointment, failing which he would act in terms of the
legislation.
25. Further correspondence from the applicant’s legal representatives on 3 March
2023 to the MEC24 indicated that the time period for the Municipality to respond to the
former’s request had lapsed25. The applicant reiterated the urgency of the matter in that
Sebola’s appointment was unlawful and decisions he took were unlawful. The
applicant’s legal representatives impressed upon the MEC to act urgently, failing which
the DA would approach the High Court on an urgent basis.
26. The MEC maintained in his correspondence of 6 March 2023 26 to the Executive
Mayor that Sebola’s appointment was null and void; that the Steele Report, and not the
Gijima Report which was outsourced, was tabled for consideration by the Council on 25
January 2023, and in terms thereof, Sebola was not the best possible candidate for the
position; that his appointment was irrational and that the Executive Mayor was required
to notify him by the next day, that the appointment was terminated, failing which steps
would be taken to enforce compliance with the legislation.
27. The Executive Mayor’s response to the MEC on 8 March 2023 was to request
the authority which the MEC relied upon in his earlier correspondence and to indicate
that the Municipality would seek legal opinion on the issue of the lawfulness of Sebola’s
appointment and other issues raised in their continuing correspondence but that he
would keep the MEC informed of the way forward. He agreed with the MEC that the
appointment must be done lawfully. On the same day, the MEC informed Minde
Schapiro of the Executive Mayor ’s correspondence. Shortly thereafter, on 10 March
2023, the DA issued its application under the above case number, followed a few days
24 SS13
25 The MEC gave the Municipality five days to remedy the appointment of Sebola
26 AB11 in case no 4441/2023
later by the MEC’s application under case number 4441/2023. Both applications seek
to have the Knysna Municipal Council’s decision to appoint Sebola as Knysna’s
municipal manager, invalidated.
28. Given the progression of the two applications, particularly the DA’s application,
the following further undisputed facts are that the Selection Panel comprised the
Executive Mayor, Deputy Executive Mayor, two officials and two Union observers .
Furthermore, the Gijima Report was a senior manager assessment report of Sebola in
relation to the Thabazimbi Local Municipality . O n 17 March 2023, the first to fourth
respondents delivered their Notices of Opposition to the DA’s application, and the first to
third respondents similarly did so in the MEC’s application. In April 2023, the Knysna
Municipality submitted the Rule 53 record in the DA’s application.
29. At the time that Goliath AJP granted an Order taken by agreement in both
matters, all indications were that the respondents in the applications would oppose the
relief sought. On 1 June 2023, Nandi Bulabula Incorporated , who represented the
Municipal respondents in both applications, communicated the following to Minde
Schapiro and Smith Inc. in respect of the DA’s application:
“2. Based on further consideration of the matter, our clients accept that the
Council’s impugned decision to appoint Mr Sebola as its Municipal
Manager, taken on 25 January 2023, is flawed and falls to be set aside.
3. We accordingly propose that the parties approach the Acting Judge
President with a draft order, by agreement, setting aside the impugned
decision. In this regard we are further mandated to tender the DA’s costs
to date.”
(my emphasis)
30. Thus, on 1 June 2023, the Municipal respondents had admitted that Sebola’s
appointment was to be set aside . During the period 3 to 30 June 2023, the DA and the
respondents engaged in settlement negotiations27 and on 6 July 2023, the respondents
delivered their explanatory affidavit, without a condonation application. Given the issues
and submissions in the DA’s matter, it is necessary to set out the content of the
affidavits in some detail.
THE DA’s APPLICATION: CASE NUMBER 4247/23
31. Sabbagh, the DA’s elected representative and Chief Whip in the Knysna
Municipality, was the deponent to the DA’s main affidavits28. She contends that even if
the Knysna Council’s decision does not fall to be rev iewed as an administrative action
under the Promotion of Administrative Justice Act (PAJA)29, it nonetheless constitute d
the exercise of a public power and would have to be substantively and procedurally
rational, and lawful, under the principle of legality. The applicant’s stance was that once
the Court found that Sebola’s appointment was null and void, the consequences thereof
flow naturally from section 54A(3) of the Act, and thus the Court’s power to impose a
different remedy consequent upon such finding, was limited.
32. Inasmuch as the applicant recognised that the Systems Act required the relevant
MEC to check that the appointment of a municipal manager complies with section 54A
of the Act, failing which, the Minister m ay take the steps contemplated in the section,
the averment was made that the DA was not precluded from approaching the Court for
relief.
33. Sabbagh stated that the standards set regarding the relevant competencies,
qualifications, experience and knowledge as outlined in Annexures A and B to the
Regulations referencing the appointment of a municipal manager, were to be met by the
27 See record and Chronology of Events handed in by the DA’s counsel during the proceedings
28 The reference naturally excludes the confirmatory affidavits, and later affidavits by other individuals
such as Mr Steele and Mr Peters
29 3 of 2000
candidate a pplying for the post. The achievement levels for each competency was
graded as “superior”, “advanced”, “competent” and “basic” . A “basic” range30 scored by
an individual was understood to mean that the candidate was deemed unsuitable for the
senior manager role. The applicant stated that a candidate who rated “basic”, could not
be appointed lawfully above the other two candidates who were rated as “advanced”.
34. The applicant raised four grounds of review. Firstly, that Sebola was not qualified
for appointment as municipal manager for the following reasons: his core managerial
and occupational competencies were graded as “basic”, he needed development in
certain competency areas, made constrictive progress in case management completion
and his financial management skills needed development. On behalf of the applicant,
Sabbagh stated that these facts were contained in the Steele report, and the Selection
Panel and Mayor’s reports ignored same and Steele’s recommendation that Sebola not
be appointed for the post . Thus, the decision to then appoint Sebola, contrary to the
requirements of the Systems Act, was reviewable under section 6 of PAJA and under
the principle of legality.
35. The second ground of review was that the Knysna Council’s decision to appoint
Sebola was irrational and unreasonable given that Smit and Adonis were qualified and
each scored an “advanced” rating. The motivation for this ground was that even though
Sebola scored the highest in the interview, he rated “basic” in the competency test and
was therefore unsuitable for the position . The applicant concluded that in view of this
rating, his performance in the interview was irrelevant. Furthermore, the Selection
Panel’s motivation for recommending Sebola on the basis of transformation, equity and
representivity, which the Mayor also endorsed, was irrational because und er the
competency test or assessment, Sebola rated “basic”.
36. According to the applicant, it was irrational to appoint an incompetent person
when the other two candidates were competent and it was never explained why the
appointment of either Smit or Adonis would not achieve the transformation,
30 Item 6 of Annexure A to the Regulations
representivity and equity requirements. The Mayor’s indication that strong managers
could be appointed to assist Sebola was not in line with the Steele report’s
recommendation warning against Sebola’s appointment.
37. The third ground of review was that the meeting of 25 January 2023 excluded the
public, which was unlawful. In elaboration, Sabbagh stated that it was unreasonable to
exclude the public from what was a vital decision. The applicant emphasised that
openness and transparency were founding constitutional values and that there were
consequences to closing meetings unlawfully to the public.
38. The final ground of review was that the Knysna Council acted with an ulterior
purpose by excluding Chief Whips from the selection process. The applicant stated that
despite the Steele report’s findings, Sebola was the Council’s choice . It attribute d this
selection to the suspicion that Sebola was willing to award tenders to undese rving
persons and had a history of similar conduct. Hence, the applicant further questioned
the rationale of the decision to appoint Sebola above any of the other two candi dates
who were assessed and interviewed.
39. Insofar as the suggested remedial action requested, an order was sought
undoing each and every decision which Sebola took while acting as municipal manager
from the inception of his appointment. The motivation for the latter relief was three-fold:
firstly, Sabbagh stated that such relief was sanctioned by the Act in that an appointment
contrary to the Regulationswas null and void. Her view was thus that Sebola’s
appointment was unlawful, hence he was never the municipal manager for Knysna and
it followed that he had no power to make any decisions.
40. According to the applicant the default consequence of declaring Sebola’s
appointment invalid, would be to undo the decisions he took as municipal manager, and
here the applicant placed reliance upon section 8 of PAJA or section 172(1)(b) of the
Constitution31. The third reason was that the applicant has concerned that Sebola “is
31 Act 108 of 1996
corrupt and will use his unlawful appointment as Municipal Manager for corrupt
purposes”32. In this regard, the applicant expressed a reasonable fear that Sebola
would abuse his power, make improper appointments and irregularly award tenders.
41. In her supplementary founding affidavit, Sabbagh stated that the Rule 53 record
did not contain all the documents or material required by the Regulations which must be
submitted by a candidate when applying for a vacant post. At paragraph 16, she set out
what these undisclosed documents were, which included, inter alia , details of any
dismissal for misconduct . The absence of such documents amount ed to non -
compliance with the Regulations related to the sel ection process. Furthermore, the
Fundudzi report and the competency assessments were also missing from the record
provided. In light of the above, it was contended that the decision was reviewable under
section 6(2) of PAJA and the principle of legality.
42. Sabbagh added that the Executive Mayor’s reliance on the Gijima report 33 to
support his view that Sebola was competent to be appointed as municipal manager
when queried by the MEC in February 2023, amount ed to impermissible, ex post facto
justification for the invalid appointment. In a nutshell, the report related to Sebola’s
suitability for the same position in the Thabazimbi Local Municipality and was not part of
the record, nor relied upon by the Selection Panel.
43. At the conclusion of Sabbagh’s supplementary founding affidavit, she stated that
time had passed since Sebola’s appointment and recognise d that all his decisions may
not be capable of being set aside without causing disruption to the Knysna Municipality.
She pointed out that the applicant relied on the Fundudzi Report ’s existence, and not
the truth of its content, to hold a view that there were unanswered questions regarding
allegations of mismanagement against Sebola. To clarify, the Fundudzi report contained
allegations against Sebola related to alleged mismanagement in another municipality.
32 Paragraph 117, p43
33 SS18
The case for the Municipal respondents
44. The Speaker of the Knysna Municipal Council (the Speaker ), deposed to an
explanatory affidavit on behalf of the Municipal respondents. As the issue regarding the
scale of Se bola’s remuneration fell away, I do not intend to address the Speaker’s
responses on this aspect in the judgment.
45. The Speaker point ed out that initially the applications were opposed, but after
consideration and consultation with legal representatives, “the Municipality recognises
that the Council’s decision to appoint Mr Sebola cannot be sustained” 34. He explained
that this Court could not merely accept an agreed order and would still have to satisfy
itself that the terms of a proposed order were competent and proper. The intention was
to file an explanatory affidavit setting out why the Municipality accepted that the decision
to appoint Sebola was flawed and should be set aside. However, the agreement to a
draft order was not intended as accepting all the applicant’s allegations35.
46. The respondents indicated that they did not accept the relief sought at
paragraphs 6 and 7 of the Amended Notice of Motion, which they believed to be
factually and legally unsound. This was a reference to an order seeking all Sebola’s
decisions to be set aside, and what may be referred to as a referral order. From the
correspondence, it seem ed that the parties at least agreed that paragraphs 4 and 5 of
the Amended Notice of Motion would not be proceeded with and that the Municipality
tendered the applicant’s costs up to 3 June 2023.
47. The Speaker confirm ed that the respondents’ position was that even if the
Council’s decision was declared null and void, the Court still ha d the power in terms of
section 172(1)(b) of the Constitution to grant a just and equitable remedy. The affidavit
highlighted that the Steele report was not requested to make recommendations as to
34 Paragraph 18, p211
35 See MS2
the best candidate for the municipal manager position and it was suggested that Steele
may have exceeded his/their mandate.
48. The respondents state d that insofar as the screening process of candidates
went, the reference checks on Sebola rendered positive feedback and the applicant did
not question this. Furthermore, Sebola’s previous employers were contacted, also
yielding positive references and it is emphasised that allegations of alleged misconduct
were insufficient to disqualify a candidate. Put differently, the Speaker held the view that
a candidate must have been charged with “misconduct of a qualifying nature” 36 to
potentially render that person disqualified from the process.
49. There was no dispute that Sebola had the appropriate qualifications for the
position, was never dismissed for misconduct previously, had no criminal record and
met the minimum competency requirements, as indicated in the Screening report. The
Speaker accepted that the Council should have considered the Fundudzi report once it
came to light, but dispute d that Sebola was obliged to disclose it in terms of the
Regulations as no disciplinary action was ever instituted against him nor w as any
pending at the time of his application for the post. Furthermore, he stated that Sebola
was not in possession of the Fundudzi report which it was understood, was provided to
National Treasury. The Speaker acknowledge d that the Council accept ed that the
Fundudzi report, once its existence became known, was a relevant consideration for the
Council.
50. The Municipal respondents held the view that Sabbagh incorrectly interpreted the
import of item 6.1 of Annexure A to the Regulations as meaning that if a candidate
scored “basic”, he/she was unsuitable for a senior manager position. The respondents’
view was that a “basic” scoring entailed that the candidate for the senior manager post,
such as a municipal manager post, was deemed unsuitable37. As far as the respondents
36 Paragraph 47, p218
37 Paragraph 67, p222
were concerned, item 6 of the Regulations explained that achievement levels were
benchmarks for appointments, and not cast in stone.
51. The respondents thus sa id that the candidate who scored “basic” may be
appointed provided caution was applied in appointing and promoting him /her. The
Speaker accordingly disagreed that the strained construction which the applicant
applied to Annexure A of the Regulations was an acceptable interpretation thereof38.
Furthermore, the Steele and Selection Panel reports understood the provisions of item
6.1 regarding a “basic” scoring as not excluding such a candidate from being appointed
where it was stated that:
“……. However, s hould the Selection Panel resolve to appoint Mr Sebola on
grounds of transformation and representivity, it is strongly recommended that a
strong executive management team be appointed to support him and /or support
in a form of mentorship”39.
52. The respondents held the view that if interpreted correctly, item 6 allowed for the
Selection Panel to proceed to recommend Sebola, notwithstanding the conclusion of the
Steele report. Furthermore, they ma de the averment that there was no merit in the
contention that Sebola was automatically disqualified because he rated “basic” for one
of several metrics.
53. The Speaker indicate d that the applicant’s argument on transformation igno red
other considerations such as gender, and he denies that the appointment was irrational.
Ultimately, the respondents were of the view that the applicant’s metric of measuring
transformation was not the issue, but t he question which arose, amongst others, was
whether the Selection Panel’s approach to transformation by considering the history of
appointments for the position and representation , was lawful and rational, and it is
advanced that it was.
38 In that it applies to promotions and not appointments
39 Steele report, par 5.3.3
54. Insofar as the applicant’s criticism in its founding affidavit relate d to the Steele
report, the Speaker disagree d that the report state d that Sebola was unsuitable for
appointment, not a qualified candidate, unfit or incompetent. The respondents therefore
did not accept the applicant’s characterisation of Sebola vis-a-vis the Steele report.
Interestingly, the respondents contend that the Steele report was a basis for invalidating
Sebola’s appointment as neither t he Steele nor Selection Panel reports contained the
actual outcomes of each process 40 upon which the scores for the candidates were
derived. It follows, sa id the Speaker, that the Council thus did not have the candidates’
actual results before it in respect of performance and assessment , meaning that the
competency assessments were thus absent from the Rule 53 record as Steele did not
provided the Knysna Municipality with the documents at the time.
55. The respondents’ further issue with the Steele report was that there was a lack of
explanation as to what was meant by “needs development” and the Municipal Council
did not interrogate this at the time of considering the reports. In addition, the
competency assessment process of the candidates (especially Sebola) was conducted
by a Mr Peters (Peters), a colleague of Steele and the respondents were unaware of
this at the time . As for Sebola, who also deposed to an affidavit, he disputed the
accuracy of the Steele report insofar as his performance in the competency assessment
was concerned41.
56. According to the respondents, the Gijima assessment of Sebola, and thus the
Gijima report which rated him as competent in an assessment for another Municipality,
was relevant to Sebola’s suitability as municipal manager for Knysna and should thus
have been placed before the Knysna Municipal Council. The Speaker state d that the
latter report was available to the Mayor who erred when he failed to place the report
before the Council as a relevant document to consider . The result thus was that the
Council’s decision was flawed. Added to that, the Speaker was also of the view that the
40 That is, interview, written case study and psychometric test
41 Sebola alleges that he commenced but did not complete the case study assessment, hence he
disputed the reference in the Steele report to “constrictive progress”
Fundudzi report, which I refer to below, should also have been placed before the
Council, accompanied by Sebola’s answers thereto, and here too, an error occurred.
57. While the respondents question the applicant’s reliance on the Fundudzi report,
they leave it in the Court’s hands as to whether annexing certain portions of the said
report was legally permissible. To summarize, the Speaker indicated that the allegations
against Sebola contained in the Fundudzi report were investigated by the Hawks wh o
found insufficient evidence to pursue the matter further. No netheless, the Speaker
stated that the Mayor's decision not to place the outcome of his interaction with the
Hawks before the Counsel, though taken in good faith, was incorrect 42. The Speaker
accepted that such information should have been placed before the Council so as to
decide for itself whether there were obstacles preventing Sebola’s appointment.
58. The upshot of these circumstances was that the Municipal respondents admitted
that not all relevant information was placed before the Council at the time it deliberated
the appointment of the municipal manager. On the issue of exclusion of the public and
media to the Council’s meeting of 25 January 2023, it was contended that the fact that
the meeting was held in committee was not unusual when it came to the appointment of
senior managers, including a municipal manager. The respondents explain ed that no
one was refused admission into the meeting and certainly, the Speaker denied refusing
anyone admission to the meeting.
59. In respect of the last ground of review, the “ulterior purpose” suggested by the
applicant, the Speaker indicate d that the applicant d id not allege that there was a
Council resolution actually taken on 29 November 2021 to the effect that Whips must
attend selection panel meetings. He furthermore stated that the reference to the
confirmation by Melanie Paulsen (Paulsen) in the founding affidavit amount ed to
inadmissible hearsay evidence 43. In conclusion on this point, the Speaker stated that
the composition of the Selection Panel complied with Regulation 12 in that no party
42 This interaction related to the content of the Fundudzi report
43 Record, page 245
Whips were invited. Furthermore, the applicant’s suggestion that the exclusion of party
Whips amounted to an ulterior motive was unsubstantiated.
60. The Municipal respondents ma de it clear that Sabbagh’s allegations and
speculation in respect of Sebola were scandalous and vexatious and should thus be
struck out. The Speaker h eld the view that her unsubstantiated allegations made
against the Council and Sebola were made recklessly, to alarm and to poison the mind
of the Court 44. Furthermore, it was stated that what Sebola did subsequent to his
appointment was not relevant to the lawfulness of the processes which lead to h is initial
appointment.
61. The next aspect was a consideration of the appropriate consequential relief
suggested and requested by the applicant. It was common cause that the applicant had
forgone the relief sought at paragraphs 4 and 5 of the Amended Notice of Motion.
Insofar as consequential relief is concerned, the Speaker indicated was that the default
position where a Court invalidated a decision made by a public official body in review
proceedings, was that the matter was remitted to that body or official for re -
consideration. In circumstances where the applicant had not requested any specific
relief as to how the Council must deal with the existing processes to appoint a municipal
manager, that would be left to the Municipal Council to determine.
62. In essence, the applicant sought an order that all the decisions made by Sebola
since his appointment should be declared invalid, alternatively, the onus was on the
Municipality to indicate which decisions o ught to be saved. The complaint by the
respondents was that there was no reference to specific decisions which were alleged
to be contentious, nor was there an indication as to which of Sebola’s decisions were to
be saved and why . The Municipality refuse d the applicant’s invitation to decide upon
which decisions should be saved as it held the view that the application for this relief
had "gaping holes"45 . Furthermore, the respondents ’ views were that the relief sought
44 Page 248, par 182
45 Record, p251
at paragraphs 6 and 7 of the Amended Notice of Motion was inappropriate because the
fact that Sebola’s appointment would be set aside d id not automatically invalidate the
decisions he made which are/were self-standing administrative decisions in terms of
PAJA.
63. The respondents’ view was that the applicant was not the correct party seeking
the consequential relief and that Sebola’s decisions stand as valid. The Speaker points
put that Sebola’s decisions affect persons who were not before the Court, and would
include, for example, members of staff and third parties who were awarded tenders or
concluded contracts with the Municipality. The Speaker disagreed is that the relief was
incompetent because these parties would need to be joined in the proceedings w here
an order setting aside Sebola’s decisions as invalid, was sought.
64. The Speaker, with reference to section 172 (1) of the Constitution read with
section 8(1) of PAJA, stated the Court ha d a discretion to strike down a decision and
this must be based on justice and equity relevant to t he circumstances of the decision .
The applicant sought a sweeping finding by the Court, which then ignore d the
consideration of justice and equity and in circumstances where the Court ha d no
information regarding such decisions . On behalf of the respondents, the Speaker
submitted that in those circumstances an injustice would be perpetrated w ere the Court
to accede to the applicant’s request.
65. The respondents do not agree with the DA ’s interpretation of section 54 A (3) of
the Systems Act. The applicant was of the view that Sebola’s unlawful appointment was
null and void and hence, he was un authorized to have made decisions , with the result
that it rendered these decisions unlawful, automatically. The Municipality contended that
if this interpretation of the section were to be followed, it would be unconstitutional as it
would deprive the Court of its powers in terms of section 172 (1) of the Constitution read
with section 8 thereof, to determine when decisions should be set aside.
66. In conclusion, the respondents accepted that Sebola’s appointment must thus be
set-aside and that the applicant was entitled to its costs until 3 June 2023. The
respondents’ stance remained that the relief sought in paragraphs 6 and 7 of the
Amended Notice of Motion could not be granted and was without basis. Lastly, in
respect of the further costs subsequent to 3 June 2023, the respondents stated that
they were entitled to their costs because of the applicant’s attitude in persisting in
seeking the relief and also sought costs of preparation of the explanatory affidavit which
was necessitated by the applicant’s approach to the matter . Costs were requested on
an attorney and client scale as a result of the gratuitous insults l evelled against Sebola
and the Council as well as the applicant’s stubborn insistence on pursuing the additional
relief which, the respondents stated, was inappropriate.
67. In Sebola’s affidavit, he explain ed the interview and assessment processes,
which he underwent for the municipal manager post. Suffice to s et out that once he
became aware that he was actually undergoing a written assessment, he stopped and
objected for the following reasons: he was the only candidate who underwent a w ritten
assessment while the other two candidates relied on reports fr om previous
assessments; he did not complete the written assessment as the result of the
assessment categories could be obtained from the Gijima report. Sebola points out that
the Steele report was misleading as it d id not disclose his objection and the reason for
halting the written assessment, hence it was materially flawed.
68. Sebola attended the Gijima competency assessment on 20 December 2022 in
which it was determined that he was competent to hold the position of a senior manager
and he advised the chairperson of the Selection Panel that the assessment results may
be procured directly from Gijima and expected the Council would consider the report
when it met on 25 January 2023 to consider the appointment . Insofar as the Fundudzi
report was concerned, Sebola stated that the Hawks considered the allegations
contained therein but he was neither provided with nor placed in possession of the
report and did not know that at the time, he was the subject of an investigation.
69. Aligning himself with the Speaker’s view, Sebola considered Sabbagh’s
allegations against him as being speculative and without merit, and requested that the
averments against him be struck out. He f urthermore highlighted the fact that the
applicant failed to indicate which tenders he allegedly awarded unlawfully and provided
no information on this allegation. Sebola stated that he was compelled to accept the
position taken by the Municipality in relation to his appointment as set out in the
explanatory affidavit.
70. The Executive Mayor who also provided an affidavit, stated that his failure to
place the Gijima report before the Council was an oversight or human error and
apologized for this . He confirmed receipt of the report but was of the view that the
Steele report was sufficient as its findings did not hamper Sebola’s chances for
appointment. He also dismissed Sabbagh’s speculative claims as to why Sebola was
appointed.
The DA’s reply
71. In her replying affidavit, Sabbagh t ook issue that the explanatory affidavit was
filed late. She stated that it was irrelevant whether Sebola’s appointment would have
served transformation because he was not qualified for the appointment and not
appointable above the other candidates. Furthermore, she pointed out that the
respondents’ submissions about Sebola’s sterling performance as municipal manager
were impermissible as these were attempts to justify his appointment at all costs.
72. Sabbagh addressed the applicant’s views that Sebola was ineligible for
appointment and cautioned that the respondents were not to sneak in additional review
grounds which would be prejudicial to the applicant and could affect the just and
equitable remedy. The Court was asked to disregard these allegations and decide the
case on the applicant’s grounds of review 46. Sabbagh made the point that the
respondents never raised concerns about the assessment processes conducted by
46 For purposes of findings made in the matter, I do not set out the applicant’s statements in their replying
affidavit regarding self-review
Steele and Associates prior to the application and the applicant discovered that the
Municipality and its attorneys had never contacted them to address Sebola’s complaints
about/regarding Steele and Peters.
73. On the issue of a remedy, Sabbagh articulated the applicant’s fear that were the
respondents’ versions to be accepted on the remedy aspect, it would open the door to
Sebola’s re-appointment. It became clear that the versions of Steele and Peters were
set out in affidavits to counter what Sebola complained of in relation to the assessment
process. The applicant emphasized that Sebola’s assessment was fair and in line with
Steele’s agreement with the Municipality. However, the applicant was of the view that
the Municipality appointed Sebola for ulterior purposes47.
74. With regard to the striking out application, Sabbagh apologized and stated that
she withdrew statements made in paragraphs 109, 119, 117 and 124 of her earlier
affidavit regarding allegations of wrongdoing by Sebola 48. Notwithstanding the apology
offered, however, she then went a head to indicate that what was contained in the
Fundudzi report was cause for concern because according to her (and/or the
applicant), if the findings were correct, then it would be "reasonable to fear that Mr.
Sebola would engage in similar conduct in Knysna"49.
75. Sabbagh stated that she did not know of the outcome of the Fundudzi
investigation by the Hawks, state d that for purposes of the application , she accepted
that the Hawks investigated the allegations in the report and chose not to pursue it, but
then did, in my view, an about turn: she stated that the fact that the Hawks decided not
to pursue Sebola was not conclusive proof of his innocence. She complained that
Sebola had not addressed nor answered the allegations in the Fundudzi report and then
concluded that there was thus no basis on which the Court nor the Council could
conclude whether the findings in the report were justified or not. According to her, these
47 Briefly, one of the aspects raised was the fact that Sebola had complained to Phillips during the
assessment process and this differs from Steele and Peters’ version. The applicant’s view was that the
complaint about the competency was a new ground of review which should be disallowed.
48 Page 288
49 Paragraph 32.2, p 288
aspects then do not render him ineligible for appointment but it was an important part of
the factual matrix in determining why he was appointed and what the remedy should be.
76. On the issue of the remedies available , more specifically that the Municipality
would have to identify decisions taken by Sebola as requested in the Amended Notice
of Motion, the suggestion was that the respondents misunderstand the relief. The
applicant maintained that the consequence of setting aside Sebola’s appointment was
that all decisions were invalid and that the question was whether to temper the invalidity
by preserving the decisions which he took and for that, no joinder of third parties was
necessary. According to the applicant, it had demonstrated that Sebola was
compromised and here again, there was a reference to the Fundudzi allegations.
77. Thus, the applicant’s view was that the Fundudzi allegations cast a shadow over
Sebola’s suitability for office and that a remedy must be granted which protect ed the
residents of Knysna. Insofar as which official should accept the responsibility to identify
decisions which should stand, the applicant indicated that it ha d no preference as to
who decided on that aspect and simply stated that it cannot be that the Speaker, Mayor
and any acting municipal manager cannot perform such function.
78. Peters’ affidavit was attached to the replying affidavit and deal t in quite some
detail with the assessment of Sebola. He state d that correspondence was sent to
Sebola indicating that he would undergo both a competency assessment as well as an
interview. In this regard, the deponent refer red to annexure GP 2, which was not
attached to the affidavit. Peters’ version differed from Sebola’s in that he stated that the
nature and assessment were explained and Sebola at no stage expressed any surprise.
No complaint was made to Phillips of the human resources department and had the re
been such a complaint, he would have been advised of it. There was also no indication
given that Sebola refused to complete the assessment.
79. Furthermore, Peters confirm ed that there was nothing unusual about being
required to complete the written assessment a nd interview on the same day and that
that there was nothing unfair about the other candidates’ only being interviewed. Mr
Steele (Steele), a human resources practitioner and member of Roy Steele and
Associates, confirmed in his affidavit that he made it clear to the Municipality that he
would be represented by Peters who was employed by his firm as a human resources
consultant, that Peters was more than qualified to conduct the competency assessment
and interview process and that he (Peters) would be primarily responsible for managing
the appointment process. Steele was not present for the actual assessments nor
interviews, but confirmed that Sebola was required to undertake a written assessment
and interview.
The DA’s standing
80. While the applicant came in for some criticism for jumping the gun by
approaching the Court for relief, it submitted that it was not precluded by legislation from
doing so. The common cause fact was that the correspondence indicate d that the
applicant’s legal representatives communicated with the MEC in February 2023
regarding the issues pertaining to the Council’s appointment of Sebola50.
81. It was evident from the facts that the applicant’s legal representatives informed
the MEC that the time period for the respondent s’ c ompliance had lapsed 51.
Furthermore, all indications were that after the Executive May or’s correspondence to
the MEC, in which he denied irregularities in Sebola’s appointment, the MEC indicated
that counsel was being briefed and I understand this to mean that he was on the verge
of approaching the Court under the auspices of section 54A, as elaborated above. The
MEC informed Minde Schapiro of these steps on 8 March 2023 52, and on 10 March
2023, a few days prior to the MEC’s delivery of his application, the applicant
approached the Court seeking relief against the various respondents under the banner
of a PAJA or legality review.
50 SS11
51 Nkandla Local Municipality and Others v MEC for the Department of Co -operative Governance and
Traditional Affairs; Mthonjaneni Local Municipality and Others v MEC for the Department of Co -operative
Governance and Traditional Affairs [2020] ZASCA 153 par 15
52 Ss14
82. I accept that section 54 A sets out a very specific procedure for the appointment
of a municipal and acting municipal manager. In Notyawa v Makana Municipality and
Others 53, with reference to section 54A (9) of the Act , the Constitutional Court stated
that:
“It is apparent that Parliament has entrusted the MEC to monitor compliance with
the Systems Act. But where the MEC fails to perform this function, the Minister
may intervene and perform the function herself54.”
83. Section 54 A(8) contemplates the action which the MEC must take within a
prescribed time period in order to enforce compliance by a Municipal Council, which
action includes an application to Court for a declarator on the validity of the appointment
or “any other legal action against the municipal council”55. It is thus apparent that the
MEC and the Minister are the enforcers of the substantive and procedural requirements
of the Systems Act in relation to the appointment of a municipal and acting municipal
manager. Counsel for the parties in this application are ad idem on this aspect, but
whilst the respondents question the applicants’ standing in approaching the Court, the
applicant argued that section 54A did not preclude anyone else approaching a Court for
relief.
84. Given the course which th is application took, the issue regarding the applicant’s
standing became a secondary issue during the hearing, relegated to the side -lines, but
picked up when the respondents wished to drive home the fact that the applicant should
not have approached the Court for the relief as per the Amended Notice of Motion . I
must note, however, that the respondents did not seek a dismissal of the application on
the basis that the applicant lack ed standing by virtue of the provisions of section 54A,
nor was the Court requested to rule on this aspect first insofar as it being , for example,
a point in limine.
53 [2019] ZACC 43 par 8
54 Footnote 8 omitted from judgment but the reference is to section 54A(9) of the Systems Act
55 See section 54A(8)
85. To add, the respondents’ counsel’s heads of argument addressed the question of
the applicant’s standing mainly insofar as the just and equitable relief aspect, but the
truth of it was that the issue was not pursued with any vigour during argument .
Notwithstanding such approach, there was merit in the respondents’ argument that this
was the MEC’s call insofar as enforcement of section 54A is concerned.
86. The question which arises , though, is whether the applicant is precluded from
bringing the application because of the supervisory role of the MEC, and failing him, the
Minister, in terms of the legislative provisions catered for in section 54A . I was referred
to authorities such as Nkandla Local Municipality and Others v MEC for the
Department of Co -operative Governance and Traditional Affairs 56, Western Cape
Provincial Minister of Local Government, Environmental Affairs and Development
Planning v Central Karoo District Municipality and Others 57 and Notyawa58 as
support for the view that the MEC was the functionary to supervise compliance with
section 54A in respect of the appointment of (in this case) municipal managers, and that
another person/party cannot challenge the decision to appoint a municipal manager.
87. However, the applicant state d that it approache d the Court either in terms of
PAJA or the principle of legality , and on the basis that it was a political party which ha d
an interest to ensure that “public power is exercised in accordance with constitutional
and legal prescripts and that the rule of law is upheld” 59, as stated in Democratic
Alliance v The Acting National Director of Public P rosecutions60. I understand this
and the oral submissions to mean that the applicant approache d the Court as an own -
interest litigant but also as a political party with an interest in the matter, mindful of
section 195 (1) of the Constitution . Section 195(1) addresses the basic values and
principles governing public administration , which must be underscored by democratic
56 Full citation is Nkandla Local Municipality and Others v MEC for the Department of Co -operative
Governance and Traditional Affairs and Mthonjaneni Local Municipality and Others v MEC for the
Department of Co-operative Governance and Traditional Affairs [2020] ZASCA 153
57 [2023] ZAWCHC 66
58 Supra
59 Paragraph 44 of the judgment
60 [2012] ZASCA 15 para 43-44
values which, inter alia, included a high standard of professional ethics, accountability
and transparency61.
88. From the facts of this matter, and the MEC’s application, it is accepted that the
Knysna M unicipal Council exercised public administrative power when it decided to
appoint Sebola and it must therefore be held accountable for the exercise of such
power. I have had regard to the authorities referred to above and note that none
specifically address the issue of standing in the context of a person/party whoh
approaches the Court as an own -interest litigant or a political party under the section
195 banner, in respect of a challenge to the appointment of a municipal manager. The
question of standing thus requires further discussion.
89. In Merfaong City Local Municipality v SA Municipal Workers Union and
Another62, the Labour Appeal Court (LAC) considered legal standing of the
respondents, a registered trade union and an employee and resident of the relevant
municipality, who were the applicants in the Labour Court in an application for review of
the municipal manager’s appointment. In summary, on the question of standing to bring
the review application, the LAC held as follows:
“[65] Section 54A of the Systems Act does not expressly deal with standing, nor
does it preclude, or oust the standing of persons/entities, or groups, whose
interests are directly affected by the appointment . However, sections 54A(8) and
(9), arguably, imply, that the appointment of a municipal manager is subject to
confirmation by the MEC and the Minister, or implies remedies which such
individuals or groups may be obliged to pursue before approaching the court. In
this regard, the fact that the appropriate steps that have to be taken by the MEC,
(and failing him or her, the Minister), does not have to result in litigation, is
informative.
61 Section 195(1)(a), (f), (g) Constitution. See also Recycling and Economic Development Initiative of
South Africa NPC v Tubestone (Pty) Ltd [2021] ZAWCHC 270 par 40
62 (2016) 37 ILJ 1857 (LAC)
[66] The provisions of sections 54A(8) and (9) are measures that also have as
their purpose the prevention, or limitation, of a proliferation of litigation, or
multiple litigation, or unnecessary litigation, with its attendant consequences,
least of which, is the delay that ensues with all of its ramifications. The provisions
also seem to maintain and retain the hierarchical responsibility for appointments
to be made in compliance with the Systems Act. Even if the employees have an
interest in who their man ager is, it is not their function or duty to “hire or fire” the
manager. The same may be said about ratepayers or residents of the area
served by the municipality. That duty still rests with the employer. In the case of
an employment of a municipal manager, in terms of the Systems Act, the
responsibility for the appointment is shared between the Municipal Council (the
employer), the MEC for Local Government and the National Minister responsible
for local government.
[67] In keeping with the established precedent, where an internal remedy has
not been pursued before a party approaches a court, a case would have to be
made out in that regard, which may also be a factor, not only in determining
whether the court should exercise its jurisdiction in the particular case, but also in
determining whether the litigant has sufficient interest to be accorded standing, in
light of all the other relevant circumstances in the particular matter. Each case
will have to be determined on its own facts or merits.”
(my emphasis)
90. In Merafong, the Minister for Co -operative Governance and Traditional Affairs
was n ot j oined in the application and the LAC held that in circumstances where
correspondence indicated that the MEC sat back and failed to act in terms of section
54A(8), the respondents should have brought the appointment issue to the Minister’s
attention but had not. A remedy was available to the trade union and resident but they
had failed to act. In my view, Merafong supports the view that whether the litigant -
other than the MEC and Minister - has sufficient interest to be granted standing,
depends upon the circumstances, facts and merits of a case.63
91. In addressing the question of the applicant’s standing, I also consider Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others64, where the Constitutional
Court discussed the position of the own-interest litigant at length; the requirements for
establishment of whether such a party h as standing in a constitutional issue and the
applicable authorities65. It is apparent from Giant Concerts that the own-interest litigant
must show that its rights or inter ests are /were directly affected by the impugned
decision and the inter ests must be real and not merely hypothetical or academic 66.
Standing, in this context, is interpreted broadly unlike the common law concept of
standing67.
92. Returning to this applicant, the argument was that it had not shown that any of its
rights or interests were affected by the decision of the Council to appoint Sebola. The
appointment of Sebola, merely on the facts as set out in the application, certainly do not
indicate that the DA was directly affected by the appointment nor does it show that the
appointment affected its rights.
93. The enquiry , however, does not end there because every matter in volving the
issue of standing of an own-interest litigant in a constitutional issue, must be considered
within the context of the facts and merits of the case. There is no doubt that this matter
involves what may be described as a constitutional issue. In my view, the applicant
made it clear that it approache d the Court as a political party on the basis and
motivation to ensure that the exercise of pub lic power met constitutional and legal
standards. Without repeating the merits as set out above, the applicant has a Chief
Whip and Ward Councillor in the Knys na Municipal Council, and it goes without saying
63 Paragraph 67
64 [2012] ZACC 28
65 Paragraphs 29 - 51
66 Paragraph 41.3; see also Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg &
Associates v Minister of Home Affairs and Others [2003] ZACC 10 para 25, 28
67 Paragraphs 37 - 41
that residents and persons within the Municipality would be affected by the Council’s
decision in appointing Sebola as the municipal manager.
94. As a political party represented within Knysna, it can surely not be said that the
applicant ha d no interest in the Council’s decision to appoint Sebola . The proper
exercise of public power by the Knysna Municipal Council, in this instance, must surely
be viewed as an interest of the applicant, and in my view, such interest was neither
hypothetical nor academic at the time the application was launched . In fairness, even if
the applicant’s standing w as questionable on the directly -affected rights basis, it
warrants mentioning that Cameron J in Giant Concerts68 emphasised the following:
“[33] The separation of the merits from the question of standing has two
implications for the own -interest litigant. First, it signals that the nature of
the interest that confers standing on the own -interest litigant is insulated
from the merits of the challenge he or she seeks to bring. An own-interest
litigant does not acquire standing from the invalidity of the challenged
decision or law, but from the effect it will have on his or her interests or
potential interests. He or she has standing to bring the challenge even if
the decision or law is in fact valid. But the interests that confer standing to
bring the challenge, and the impact the decision or law has on them, must
be demonstrated.
[34] Second, it means that an own -interest litigant may be denied standing
even though the result could be that an unlawful decision stands. This is
not illogical. As the Supreme Court of Appeal pointed out, standing
determines solely whether this particular litigant is entitled to mount the
challenge: a successful challenge to a public decision can be brought only
if “the right remedy is sought by the right person in the right
68 Paragraphs 33 and 34 – footnotes are excluded
proceedings”.69 To this observation one must add that the interests of
justice under the Constitution may require courts to be hesitant to dispose
of cases on standing alone where broader concerns of accountability and
responsiveness may require investigation and determination of the merits.
By corollary, there may be cases where the interests of justice or the
public interest might compel a court to scrutinise action even if the
applicant’s standing is questionable. When the public interest cries out for
relief, an applicant should not fail merely for acting in his or her own
interest.”
(my emphasis)
95. Having regard to Cameron J’s findings referred to above, it then becomes
apparent that the question of standing, in certain circumstances, should be considered
with reference to the interests of justice or the public interest and that a Court should be
cautious to conclude a matter on standing alone where greater concerns exist ed. I hold
the view that notwithstanding the fact that the applicant is or was not directly affected by
Sebola’s appointment, it nevertheless established that it had an interest, at least, in the
fact that the appointment was made , whether there was a correct exercise of public
power in making such appointment and the procedural correctness of the appointment.
96. In addition, this is a matter where the parties largely agreed on at least the main
relief – the setting aside of the appointment – and this is a consideration I take into
account as well. While the applicant’s standing may not be on all fours with what is
required when regard is had to Giant Concerts, the fact that standing in the context of
a constitutional issue must be interpreted broadly, lead s me to find that the applicant
has shown sufficient interest in the impugned decision to warrant bringing th is
application.
69 Footnote included in reference: Supreme Court of Appeal judgment above n 1 at para 14, quoting
Wade and Forsyth Administrative Law 9r ed (Oxford University Press, New York 2004) at 281, as
approved in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at para
28.
97. I emphasise that my decision on standing is not based on whether the DA, as
applicant, is the right person or party seeking the right remedy or remedies in its
application. The issue of remedies sought in the Amended Notice of Motion 70 is
addressed later herein. In the circumstances, adopting a broad approach, my finding is
that the applicant has standing as an own -interest litigant, being a political party as
described above.
The condonation applications
98. There were two condonation applications before me: the DA’s application for the
late filing of its heads of argument which were due on 27 June 2023, and the Municipal
respondents’ application for the late filing of the explanatory affidavit in contravention of
the Goliath AJP order . Counsel for the applicant argued the applicant’s case on the
merits and left the question of condonation in the Court’s hands . Neither party had
sought an order dismissing the application or opposition on the basis of a failure to
make out a case for condonation. The facts relevant to the condonation applications
overlap somewhat and I summarise these facts below.
99. After the application was served, the Municipal respondents gave notice of their
intention to oppose it. The Goliath AJP order set out timelines for compliance by the
respective parties for the delivery of the Rule 53 record, the applicant’s supplementary
founding affidavit, the respondents’ answering affidavit, as well as a counter application
and/or interlocutory applications . The applicant’s replying affidavit w as due by 13 June
2023 and its heads s of argument by 27 June 2023. The respondents ’ heads of
argument were to be delivered by 4 July 202371.
100. The applicant’s supplementary founding affidavit was filed in accordance with the
order. It was common cause that the respondents did not file the ir explanatory affidavit
70 Specifically, paragraphs 6 and 7 of Amended Notice of Motion
71 I have not set out all the timelines in the Order
by 23 May 2023 but instead requested a seven -day grace period to do so until 3 0 May.
The explanation tendered was simply that the affidavit had not yet been finalised. The
applicant refused the requested extension on the basis that it was prejudiced by the
delay and non-compliance with the order 72. All indications were that a condonation
application was imminent, however, the explanatory affidavit was not filed by 30 May,
the date requested to submit it . On 1 June 2023, the respondents conceded in writing
that the Knysna Council’s decision to appoint Sebola was flawed and should be set
aside73.
101. In the same correspondence, the respondents made it clear that any agreement
to a draft order setting aside the Council’s decision should not be viewed as an
acceptance of all the allegations in the application nor all the grounds of review raised74.
Furthermore, the respondents made it clear that they took issue with the relief sought in
paragraphs 6 and 7 of the Amended Notice of Motion.
102. The DA’s explanation for delay in filing its heads of argument was based on the
fact that without sight of the respondents ’ explanatory affidavit, it could not at the time
agree not to pursue the relief that Sebola’s decisions taken as municipal manager, be
invalidated. In other words, without sight of the explanatory affidavit, the applicant was
not in a position to assess on what basis or upon which review grounds, the
respondents agreed that Sebola’s appointment was unlawful and should be reviewed .
Similarly, it could not assess the status of its further relief in seeking an order that all his
decisions were to be set aside.
103. A draft order was provided to the respondents but not agreed to because of the
opposing views held as to whether Sebola’s appointment was to be set aside as
opposed to a declaration that the Council’s decision was null and void 75. Ms Jonker
(Jonker) for the DA proposed to Ms Bulabula (Bulabula) for the respondents, that the
72 See EJ2
73 EJ4
74 EJ4, par 4
75 See EJ5
latter set out their view on Sebola’s appointment and the applicant’s further relief. On 14
June 2023, Bulabula informed Jonker that their lead counsel had found himself
overcommitted in other matters, hence the delay in filing the explanatory affidavit.
104. Much of the sequence of events and correspondence described above, was
duplicated in the respondents’ condonation application which is supported by Bulabula’s
affidavit confirming that senior counsel was only able to settle the draft affidavit on 14
June 2023, subsequent to which it had to be sent to the respondents for consideration.
The further explanation for the delay in delivery of the affidavit was that Bulabula was
required to traverse the affidavit with the Speaker in person and had submitted an
unsigned copy thereof on 23 June 2023, which fact the applicant confirmed.
Furthermore, Bulabula had fallen ill 76 and had a pressing family matter on the eve of
having to travel to Knysna to secure the signature and commissioning of the affidavits.
105. Subsequently, having considered the unsigned affidavit and the concession that
Sebola’s appointment be set aside, the applicant’s stance was to attempt to settle the
matter. Bulabula explained that given the demand to respond by 30 June 2023, she was
unable to co -ordinate the representatives as well as senior and junior counsel, but it
seemed that there was communication between the DA’s counsel and the respondents ’
junior counsel. The result was that settlement discussions ensued including counter-
proposals made to the applicant, to which there was no response. O n 3 July 20 23, to
the respondents’ surprise, the applicant delivered its heads of argument and informed
that the counter-proposal was rejected.
106. Jonker’s explanation for the two -day limit to respond to the applicant’s “without
prejudice” settlement offer was that if it was rejected, and given the looming hearing
dates, the applicant was required to file its condonation application and heads of
argument timeously. Jonker’s letter of 30 June 202377 then put the respondents to terms
in that it indicated that the applicant would proceed with its relief as per the a mended
76 The facts indicate that
77 EJ10
Notice of Motion and that a punitive costs order w ould be sought. Bulabula explained
that after arranging a meeting with the Speaker , his affidavit was delivered on 6 July
2023, and that the dilemma and challenges regarding the delay were unavoidable.
107. Having regard to these explanations , I am of the view that a pragmatic approach
be adopted. Certainly, the parties were ready to proceed on the main issues in dispute
on the hearing dates and neither emphasised that the application and opposition (or
explanatory affidavit) be dismissed on the basis of a failure to provide a sufficiently full
explanation for condonation. In my view therefore, to dismiss either the application or
the opposition to the remedies sought on the basis of an unsatisfactory or insufficient
explanation for the delay would not only be short-sighted but it would have the effect of
not resolving the issues between the parties even though they agree that the Council’s
appointment of Sebola was invalid. Furthermore, it would also elevate f orm above
substance and may result in additional and unnecessary litigation, potentially at the cost
of the Knysna residents.
108. Having considered the affidavits and the explanations provided by the applicant
and the respondents, I find both explanations to be sufficiently full and reasonable and
find that the interests of justice warrant the granting of condonation to both parties 78.
Insofar as costs are concerned, this is addressed later in the judgment.
The respondents’ striking out applications
109. The first to fourth respondents brought a striking out application referr ed to
paragraphs 26 and 27 and the last sentence of paragraph 28.1 of Sabbagh’s replying
affidavit and paragraphs 10 to 29 of Peters’ affidavit79.
110. Having considered the application and submissions, during the hearing I granted
orders striking out paragraph 26 of Sabbagh’s replying affidavit because the content
thereof contain ed scandalous and vexatious matter. Sabbagh’s statement that t he
78 Menziwa v Ndokwana and Others [2023] ZAWCHC 294 par 3-4
79 The respondents only proceeded with paragraphs 2.2 to 2.4, and 3 of the striking out application
respondents’ conduct does not equate with the conduct of State organs interested in
assisting the Court, but rather that of wanting to defend Sebola with the aim of ensuring
that the Court granted a remedy which would allow him to be re-appointed, was also
purely speculative. There was simply no foundation for such an assertion.
111. I also struck out the last sentence of paragraph 28 .1 of Sab bagh’s replying
affidavit on the basis of it being scandalous and vexatious , as it allege d, without a
factual basis, that the appointment of Sebola was for an ulterior purpose. Paragraph 27
of the affidavit addressed in detail the versions of Steele and Peters , who filed affidavits
dealing with Sebola’s assessment and interview. The request that it be st ruck in its
entirety was based on the fact that it constitute d new ma tter in reply, presented in
support of new consequential relief not contained in the Notice of Motion. My finding
was not to strike out paragraph 27 and I granted the respondents leave to file a further
affidavit should they wish to do so, but limited only to those aspects raised in paragraph
27 of Sabbagh’s replying affidavit80.
112. A similar order was granted in respect of paragraphs 10 to 29 of Peters’ affidavit,
which I found not to constitute new matter in reply. The respondents were thus
constrained to address only paragraphs 10 to 29 of the Peters’ affidavit. The opportunity
to address these paragraphs was further motivated by the averment and argument that
the Peters affidavit was fi led a day before the hearing , thus not giving the respondents
an opportunity to address it.
113. The first to fourth respondents’ striking out application dated 18 July 202 3
repeated what was sought in the first striking out application 81 with a slight variation 82.
The Notice referred to various paragraphs in Sabbagh’s founding affidavit, which I
summarise below:
80 Counsel had applied for a postponement in respect of the opportunity to address these paragraphs
81 The Notice to Strike Out is undated - Record, p204-206
82 The reference to paragraphs relate to those paragraphs and words or phrases sought to be struck out –
so as to not overburden the judgment, short summaries are provided
113.1 The second and third sentences of paragraph 18 amounted to
inadmissible hearsay evidence in relation to certain utterances
which Paulsen, the legal manager for the Knysna Municipality,
allegedly stated re garding Chief Whips. Absent a confirmatory
affidavit by Paulsen, these sentences are struck out.
113.2 In the s econd to fourth sentences of paragraph 109 , Sabbagh
accused Sebola of unlawfully awarding tenders "to people who do
not deserve them"83. The rest of the pa ragraph continued in similar
vein. Having regard to the submissions, I agree that these
allegations, all unfounded when regard is had to the papers filed,
constitute scandalous and vexatious allegations against Sebola and
are thus struck out.
113.3 Paragraph 117, starting with “there are real reasons" and ending
with "for corrupt purposes" alleged that Sebola was corrupt and that
he would use his appointment for corrupt purposes. The statement
is surely scandalous and vexatious, hence the first sentence of
paragraph 117 is thus also struck out.
113.4 The l ast sentence of paragraph 117 referring to an executive
summary of the Fundudzi Report , as well as paragraph 118 and
the Fundudzi report itself 84 were sought to be struck out on the
basis that the "applicant scandalously seeks to rely on a document
which it obtained extra legally and which amounts to inadmissible
hearsay evidence."85 In my view, the applicant indeed obtained the
Fundudzi report extra legally and it amounts to inadmissible
hearsay evidence, which would prejudice Sebola. The reliance on
the report was motivated to cast Sebola in an unfavourable and
83 Par 109, page 41
84 SS16
85 P236
unflattering light, and the allegations within the paragraph are
indeed scandalous. Thus, the last sentence of paragraph 117,
paragraph 118 and SS16 (the Fundudzi report ), are struck out.
Their retention would certainly be prejudicial to the respondents86.
113.5 Paragraphs 119 and 124 of Sabbagh’s founding affidavit are struck
out as they contained scandalous and vexatious allegations, in that
it was alleged that Sebola would act unlawfully and irregularly.
113.6 Paragraph 5.5 of Sabbagh’s replying affidavit is not struck out. The
fact of the matter is that Sebola’s appointment was indeed unlawful
hence the content of this paragraph , wherein Sabbagh ma de a
statement regarding the unlawfulness of his appointment, cannot
be considered as scandalous and vexatious matter.
114. In summary, the respondents are largely successful in the ir striking out
applications, though a duplication of applications was not , in my view, necessary. Thus
any costs to be awarded would only be in respect of the 18 July 2023 application, which
in any event deals with the bulk of the matter sought to be struck out.
115. There is a further aspect which bears mentioning. Sabbagh, after mentioning the
Fundudzi report and having made the allegations of impropriety, alleged unlawful
conduct and irregular award of tenders by Sebola, amongst others, then withdrew these
allegations and statements in her later affidavit and apologized for her utterances. To be
clear, had matters ended there, it would probably not have been necessary to embark
on a consideration of the various paragraphs to which the objections were raised.
116. Unfortunately, and as can be seen from Sabbagh’s affidavits, the apology and
withdrawal of her statements were short-lived. I say this because I note that from
86 See Erasmus Superior Court Practice, 2nd Edition, Rule 6(15) at D1-92, Service 20, 2022
paragraph 32.3 and onward of her replying affidavit 87, that notwithstanding her earlier
apology and withdrawal, she nonetheless forge d ahead and embark ed on what
resembled justification for still questioning Sebola’s integrity, honesty and bona fides in
his capacity as municipal manager for Knys na. The only impression to gain is that the
apology was hollow and the apparent withdrawal of her statements which were sought
to be struck out, was not genuine.
117. Considered holistically, I thus had to make further findings on the striking out
application in respect of the paragraphs referred to in Sabbagh’s replying affidavit. I
have already mentioned that leave was granted to file a further affidavit dealing with a
limited aspect, but as will be seen later, this was not the case a s the parties then
embarked on placing further aspects before me which were either not contained in the
earlier papers and/or not addressed during the hearing.
118. As a matter of completeness, it warrants mentioning that the respondents had
filed a conditional application for postponement to address the averments which
Sabbagh and Peters made regarding the interview and assessment process. Given the
orders granted in the striking out application at the hearing, and leave being granted to
file a further affidavit but limited to the latter aspects, there was thus no need to deal
with the conditional application for postponement.
Null and void or setting aside?
119. An issue arose, albeit obliquely, as to whether the Councils’ decision to appoint
Sebola was null and void, or whether it should be set aside. Paragraph 2 of the
Amended Notice of Motion sought to declare that the Councils’ decision of 25 January
2023 in appointing Sebola as municipal manager, was null and void. The respondents
agreed that the decision be set aside and as indicated above, were prepared to reach
an agreement to this effect, however, they were disinclined to agree to the terms "null
and void" and rather preferred the term “set(ting) aside”.
87 Record, p289
120. The respondent s’ explanatory affidavit 88 indicated that the reason wh y the
applicant sought relief in this form, contrary to the parties’ agreement, was that it wished
of the Court to rule that all Sebola’s decisions subsequent to his appointment , were
invalid. The applicant’s replying affidavit did not address this averment specifically.
121. While this aspect may seem to be a moot point, it is nonetheless appropriate to
address it herein, at least for the sake of clarity. Section 54A(3) of the Act states that:
“54A Appointment of municipal managers and acting municipal managers
(3) A decision to appoint a person as municipal manager, and any contract
concluded between the municipal council and that person in consequence
of the decision, is null and void if –
(a) the person appointed does not have the prescribed skills,
expertise, competencies or qualifications; or
(b) the appointment was otherwise made in contravention of this
Act.”89
122. From the above, it is evident that the relevant legislation uses the term “null and
void”. The question therefore arises whether th e disagreement between the parties as
to which term would be appropriate in a finding and order of Court, is one of semantics
or has some substance ? The respondent s’ argument was that nothing turns on the
distinction even though, as is apparent above, they raised the point in their affidavit and
heads of argument.
88 Para 28-31, Record, p214
89 My emphasis
123. In Njongi v M ember of the E xecutive Council, Department of Welfare,
Eastern Cape 90, Yacoob J, with reference to a discussion on the principle of legality
and consequences of declaring an administrative act unlawful, stated at paragraph 45 of
the aforesaid judgment that:
“After a judgment setting this administrative decision aside has been given, the
administrative decision is certainly regarded as having been void ab initio”91.
124. Having regard to the submissions on this issue and the above dicta, I am inclined
to agree with the respondents’ counsel that the reference to “null and void ” in section
54A(3) read with section 54A(8), would be no different than an order of the Court setting
aside an appointment by a public authority. Put another way, once the Court finds that
the appointment was unlawful , it is thus null and void in the language of section 54A(3)
and the effect of such appointment would be that it has no legal force and resultantly,
must be set aside. To the extent that there was a debate on this aspect, the above
discussion and findings clarify the slight disagreement between the parties.
Is the Court required to rule on all the grounds of review?
125. One of the main issues on which I wished to be addressed during the hearing
was whether the Court was expected to make findings on all the applicant’s grounds for
review which it sought. This was a hotly -debated issue , and having regard to the
authorities and submissions, not a simple one. On the one hand, the applicant argued
that the Court should make a finding on the S ebola assessment issue with reference to
the requirements in Regulation 6(1) read with Regulation 8(1) of the Act. That approach
notwithstanding, counsel for the applicant nonetheless agreed with his opponent for the
respondents that the Court should approach the question and the matter from the
90 [2008] ZACC 4
91 I have not included the entire paragraph 45 of Mjongi. The finding by Yacoob J in this paragraph follows
the learned Judges’ consideration in paragraph 44 of Mjongi supra about a discussion by Professor L
Baxter in his book Baxter Administrative Law (Juta, Cape Town 1984) at p 355 where the author
addresses the retrospectivity of unlawful administrative actions and the finding of the Full Court on the
question of nullity being a consequence of the principle of legality
perspective of judicial minimalism in that it should not make decisions which are not
needed to be made.
126. Aside from judicial minimalism, the respondents argue d that the Court should
adopt a common cause perspective a nd not consider the disputed Steele report in
respect of the assessment issue nor the ulterior purpose ground. The argument
emphasised that findings need not be made on these aspects and on what was meant
by the "basic range” in achievement levels of candidates in terms of the Regulations to
the Act92. The respondents ’ further submitted that the applicant sought findings by the
Court on all its grounds of review rather than on the agreed basis/bases as set out in
the correspondence and affidavits in the application.
127. Needless to say, I required of the applicant’s counsel particularly to convince me
that it was indeed necessary to consider and make findings on all his client’s grounds ,
when the reality of the matter was that the parties were ad idem that there were
procedural irregularities in the appointment process and that the Council were not in
possession of all the documents which it should have had, leading up to its decision to
appoint Sebola. I was referred to a few authorities which I consider in the discussion
below.
128. In Airports Company South Africa v Big Five Duty Free (Pty) Ltd and
Others93, the Court a quo was confronted with the meaning and effect of a settlement
agreement and the effect of making it an order of Court. While the detail of the dispute
in that matter is not relevant for our purposes, the Constitutional Court in Airports
Company94 criticized the submissions and parties’ reliance on Eke v Parsons95 to suit
their respective views and arguments . I raise Airports Company because it is evident
from correspondence exchanged prior to the application, that the respondents reminded
the applicant that even though they accepted and agreed that the Councils’ decision to
92 See Annexure A to Regulations of the Act, Table 5, Competency Descriptions
93 2019 (5) SA 1 (CC)
94 See para [61] and [62]
95 [2015] ZACC 30
appoint Sebola was flawed and had to be set aside, and they considered the proposal
to approach the Acting Judge President with a draft order to set the order aside by
agreement, they (the respondents) nevertheless realized and appreciated , with
reference to Airports Company , that in the circumstances of the matter, it was not
merely a case of presenting and obtaining an order by agreement.
129. The evidence from the affidavits indicated that the applicant agreed to th e
proposed order by agreement and duly accepted that regard must be had to Airports
Company, which in essence required of Courts not to simply accept an order by
agreement as the Court still h ad to satisfy itself that the terms of the order were
"competent and proper”96 . In view hereof, it was clear that even though the parties had
agreed in June 202 3 that the impugned decision was to be set aside, the matter could
not simply be resolved by obtaining an order by agreement from the High Court.
130. It was evident that the r espondents had not agreed to all the grounds of review
raised nor all the allegations leve lled against them. The respondents accept ed and
admitted that not all the information and documents necessary for consideration by the
Council were before it during the appointment process . They submitted that on this
basis alone , the appointment process was flawed and the appointment fell to be set
aside. The question then a rose whether all the grounds of review were required to be
considered and ruled upon.
131. The applicant’s argument was that findings should be made at least on the first
two grounds of review , dealing with Sebola’s assessment and “basic” rating for the
position of municipal manager. According to the submissions, the apparent refusal to
admit the public to the meeting of 25 January 2023 and the ulterior purpose /motive
ground were relegated as not being as important to the applicant. The applicant
favoured a finding, and in fact insisted during the hearing, that this Court was to make a
finding on Sebola’s assessment and the assessment process, and that his “basic” rating
had excluded him from appointment to the municipal manager post.
96 Par 59 Airports Company supra; Para 25, 26 Eke v Parsons supra
132. To answer the question posed earlier, it must firstly be remembered that t he
common ground between the parties was that the process and appointment was fl awed
because not all the documents needed for such decision w ere before the Council at the
relevant time, thus rendering the process and Sebola’s appointment contrary to section
54A and the Regulations in the Act . The effect thereof would be that the appointment
was invalid and unlawful and was null and void.
133. In certain cases, it would certainly be appropriate to consider and determine all
the grounds of review which an applicant raise d in its application. This w ould be
particularly so when one t ook into account the cost s for parties in approaching another
Court to traverse issues which should have been addressed by the High Court but w ere
not97.
134. The point is that unlike the Premier, Gauteng matter which I reference in a
footnote below, in this matter the parties were ad idem that the appointment was to be
set aside because the decision taken by the Municipal Council was invalid. The
distinction is important because the main order would be premised not only on a finding
but also on an agreement that the Council’s decision was invalid and null and void. I
thus hold the view that it is th erefore unnecessary for the disposal of the case and
finalization of the application, to make determinations on all the grounds of review
and/or on the assessment process and w hether Sebola, who score d “basic”, was
eligible for appointment as a municipal manager.
135. Further on the aspect of what is to be decided for a proper disposal of a case, I
refer to Ngcobo CJ's findings at paragraph 82 in Albutt v Centre for the Study of
Violence and Reconciliation and Others98:
97 Premier, Gauteng and Others v Democratic Alliance and Others; All Tshwane Councillors who are
Members of the Economic Freedom Fighters and Another v Democratic Alliance and Others; African
National Congress v Democratic Alliance and Others 2022 (1) SA 16 (CC) para 220-221, which dealt with
a direct appeal of an order granted by the High Court
98 2010 (3) SA 293 (CC)
“[82] Sound judicial policy requires us to decide only that which is demanded by
the facts of the case and is necessary for its proper disposal. This is
particularly so in constitutional matters, where jurisprudence must be
allowed to develop incrementally. At times it may be tempting, as in the
present case, to go beyond that which is strictly necessary for a proper
disposition of the case. Judicial wisdom requires us to resist the
temptation and to wait for an occasion when both the facts and the proper
disposition of the case require an issue to be confronted. This is not the
occasion to do so. There may well be cases, and they are very rare, when
it may be necessary to decide an ancillary issue in the public interest.
This is not such a case . It may well be said that the President is anxious
to know whether the exercise of the power to grant pardon constitutes
administrative action and whether PAJA applies to applications for pardon.
The anxiety of the President should adequately be addressed by what I
have said above, namely, that the High Court erred in reaching these
questions.”
(my emphasis)
136. The opening sentence of paragraph [82] of Albutt is emphasized because this
Court may not lose sight of what it was called upon to decide in circumstances where
the parties had agreed that the process of appointment was flawed and there w ere
documents which should have been brought to the attention of the Municipal Council
when considering its decision , but were not . Furthermore, more recently in Bliss
Brands (Pty) Ltd v Advertising Regulatory Board NPC and Others99, a unanimous
decision of the Constitutional Court, that Court remarked at the commencement of its
judgment that:
“Despite the magnitude of the questions and the allure of grappling with them,
99 [2023] ZACC 19
the decision we reach highlights the fact that at times the imperative of judicial
avoidance does and must carry the day100”.
137. Madlanga J writing for the Constitutional Court in Bliss Brands referenced the
dicta of Ngcobo CJ in Albutt101. Thus, from the above findings in these judgments, it is
evident that in certain circumstances and matters, judicial avoidance and sound judicial
policy should dictate a Court’s approach. Having regard to the authorities cited and the
parties’ submissions, I am therefore of the view that I should only determine that which
is necessary to be determined for the proper disposal of th is application. In my view, it
follows that what is necessary to be determined is whether the agreed ground of review
is a competent and proper basis for holding that the Council’s decision to appoint
Sebola as the Knysna municipal manager, was null and void.
138. Anything more than the above determination, in the specific circumstances where
the parties are ad idem that the process of appointment was flawed and the
appointment decision was unlawful and invalid, would fly in the face of what the
Constitutional Court described as “judicial avoidance”. Furthermore, from a practical and
logical perspective, having to make decisions on all the grounds of review would also be
superfluous or unnecessary, because a decision on one ground /basis which leads to a
conclusion that the appointment was invalid, would be sufficient to result in an order and
declaration that the appointment was null and void.
139. The respondents’ counsel argued that the applicant persisted with a finding on
the assessment issue because Sebola was not the preferred candidate and th at the
motivation for such persistence was purely political grandstanding. I decline to be drawn
into such a debate as it is n either necessary nor relevant to the outcome and the relief
sought.
140. Ultimately, all that is required to be determined is whether the agreed ground of
100 Paragraph [1] of the judgment
101 See paragraph [1] of Bliss Brands supra
review was competent and proper for the administrative decision to be found to be null
and void, as referred to in section 54A(3). It is not necessary for a proper disposal of the
application, that each and every ground of review is to be ruled upon.
The agreed/undisputed basis for setting aside the Municipal Council’s decision
141. It is common cause that the Selection Panel and Mayor recommended Sebola’s
appointment based on the ir belief and understanding of the Steele report. Clearly, their
understanding was incorrect. It is furthermore apparent that the candidates’ curricula
vitae were not before the Municipal Council for its consideration, nor did it receive the
weighted scores allocated to the candidates during the assessment of their competency
for the position of municipal manager 102. With reference to the Steele report, it was
clear that the Council did not have before it any information related to the candidates
"leading competencies" and "core competencies”103.
142. Furthermore, cl ause 6 of Annexure A to the Regulations sets out the
achievement levels standard and provides that a candidate falling within the basic range
was deemed unsuitable for the role of municipal manager and that caution should be
applied in promoting and appointing such individual. Yet, the Council neither queried nor
sought clarity on the “needs development/competent” competency categorization which
the Steele report allocated to S ebola. I say this because it is evident when one has
regard to the legislation and its Regulations , that the competency categorization
referred to by Steele and Associates - “needs development/competent”- is not catered
for in clause 6 of Annexure A. To add, the competency categorization which Steele
attributed to Sebola in consequence of his assessment thus did not accord with the
designated achievement level in the Regulations , but the Council sought no clarity on
this.
143. Furthermore, a competency assessment of Sebola in the form of the Gijima
102 Regulation 16 requires a competency assessment
103 SS6, Steele report, par 5.1
report, accredited by COGTA, was conducted at the end of 2022 104. Overall the Gijima
Assessment People 105 found Sebola to be competent for the position of municipal
manager for Thabazimbi Local Municipality , slightly more than a month prior to the
Council’s meeting on 25 January 2023. From the applicant’s papers, it was apparent
that the applicant expanded or extended its grounds of review in respect of the principle
of legality to include the Municipal Council’s failure to consider relevant information
related to Sebola and/or the appointment of a suitable candidate 106. Secondly, from the
Executive Mayor’s correspondence to the MEC, dated 28 February 2023 107, it was
evident that the latter sought to rely on the Gijima assessment as justification and
support for Sebola’s appointment as competent for the post as municipal manager.
144. The reference to the Gijima report was significant in that, while correspondence
subsequent to Sebola’s appointment point to the fact that the Executive Mayor relied on
the report to justify Sebola’s suitability for the post, th is report did not form part of the
Rule 53 record and was not relied upon by the Selection Panel and Mayor in the
selection process. Accordingly, the Executive Mayor’s reliance on the Gijima report was
unjustified and ex post facto . If the report was to be relied upon, it should have been
part of the documents in the selection process and thus part of the Rule 53 record.
145. There is a further factor to consider. Regulation 11 dictates the requirements in
respect of documents which an applicant for senior manager post must submit in his/her
application108. On perusal of the Rule 53 record, it is so that it is devoid of the
candidates’ academic qualifications, contact able references, registration with a
professional body, full details of dismissal for misconduct and details of any disciplinary
actions pending, instituted or finalized against a candidate. The absence of these
documents lead me to conclude that they were not before the Council at the relevant
time and it follows that for purposes of the appointment of a municipal manager,
Regulation 11 was not complied with.
104 SS18 to supplementary founding affidavit
105 The entity which compiled the Gijima report
106 Record, p123
107 SS18
108 Regulation 11(4)
146. In its supplementary affidavit, the applicant stated that the Fundudzi report was
also not before the Selection Panel and the Municipal Council during the appointment
process. For the reasons set out earlier in the judgment, I struck out the Fundudzi report
but the relevance of referring to it again is that it goes to the common cause fact that the
parties both state that the report should have been brought to the Council’s attention. To
elaborate: the Executive Mayor e xplained that the allegations made in the Fundudzi
report first came to the Mayor’s attention a few days prior to 25 January 2023109. While
Sabbagh and the applicant distance themselves from the truthfulness or otherwise of
the content of the Fundudzi report, the argument was that the report should have been
brought to the Mun icipal Council’s attention prior to it making it s decision on the vacant
municipal manager post.
147. Having regard to Sebola’s version, it indeed seem ed that the allegations of
corruption and dishonesty levelled against him in the Fundudzi report were addressed
by the Hawks and eventually came to naught. The Executive Mayor’s version that
Sebola was not facing a pending or finalized disciplinary action instituted by a previous
employer, in my view, was indeed correct and was tellingly n ot disputed by the
applicant. Thus, Sebola therefore did not fall foul of Regulation 11(4)(e) and had no
duty to provide or disclose the Fundudzi Report or its existence, to the Council. The
evidence indicated that Sebola’s version that he was not aware of the existence of the
report and did not have possession of it at the time 110, was supported by that of the
Executive Mayor, and it was not taken issue with by the applicant.
148. Whatever the debate may be around the Fundudzi report, its content and effect
(if any), the fact of the matter was that it was prepared for National Treasury. For the
purposes of this application, it mattered not whether the compilers of the report provided
it to Sebola’s erstwhile employer, Modimolle-Mookgophong Local Municipality or not. As
can be seen above, the applicant’s reliance on a contravention of Regulation 11(4)(e)
109 This was the date on which the Municipal Council made its decision which forms the subject matter of
the DA’s application
110 Prior to the decision of 25 January 2023
was misplaced.
149. The significance of what is stated and found in the preceding paragraphs is that
the r espondents accept ed and concede d that the failure or oversight to place the
Fundudzi report before the Council 111, was a procedural flaw in the appointment
process. The indication was that the respondents and the Council agreed with the
applicant that the mere existence of the Fundudzi report was a consideration which the
Council ought to have applied its mind to once it was known that such report was
prepared and existed. In the circumstances, it is thus fair to conclude that the Council
was none the wiser about the report at the time it considered the appointment for
municipal manager.
150. Having regard to the above discussion, it is then clear that the process of
appointment was riddled by one or more procedural flaw and that certain documents
which were supposed to have been before the Council, were not , prior to the final
appointment decision being made. In view of these findings, and the submissions by the
parties, it is thus evident that the Municipal Council’s decision to appoint Sebola did not
comply in certain respects with section 54A and the Regulations in the Act. In view of
this finding, my further finding therefore is that section 54A(3)(b) applies in that Sebola’s
appointment was “otherwise made in contravention of this Act”112.
151. I reiterate my view that, in light of these findings, I need not consider all the other
grounds of review raised in the Amended Notice of Motion. In the event of any doubt,
there is a further reason for holding this view, and it finds it s support in section 54A(3)
itself. The section prescribes in peremptory language, that a decision to appoint a
municipal manager is null and void in the event of either of the circumstances set out in
sub-section (a) or those in sub -section (b) , occurring. To be clear, if the appointed
person did not have the prescribed skills, expertise, competencies or qualifications, then
the decision to appoint him/her was null and void, or, if the appointment was made in
111 From the facts, I would presume the reference is to the Mayor’s failure to place the Fundudzi report
before the Council
112 Section 54A(3)(b)
contravention of the Act, then too, it was null and void.
152. Bearing this in mind, i t is therefore not required that the grounds in section
54A(3)(a) and (b) must be present for a declaration of invalidity to occur , nor that sub -
section (a) will always have to be present before a null and void finding may be made.
The null and void finding is made in circumstances where either a section 54A(3)(a) or
(b) situation occurred. I have found, and it was agreed, that procedural flaws or errors
existed in the appointment process and there was thus a consequential contravention of
the Act and its Regulations as referred to above , having regard to section 54A(3)(b).
Thus, the argument by the respondents on this aspect was correct. In the
circumstances, the decision taken by the Knysna Municipal Council on 25 January
2023, appointing Sebola as municipal manager, is declared null and void.
153. Counsel for the DA, in respect of the procedurally flawed process adopted by the
Municipal Council, submit ted that the Council acted contrary to sections 6(2)(b),
6(2)(e)(iii), 6(2)(e)(vi) and 6(2)(f)(i) of PAJA. I n view of my findings above, I would agree
that sections 6(2)(b) and 6(2)(e)(iii) were contravened only to the extent that the
Fundudzi Report was not before it for consideration and should have been. As I do not
address nor make f indings on the other grounds raised in the applicant’s papers ,
because it is not necessary to do so , I am thus not in a position to make findings on the
other sections referred to in section 6(2) of PAJA. Lastly, it is noted that in its main
heads of argument, the applicant’s counsel indeed stated that any of the grounds of
review would suffice113.
Just and equitable remedy
154. This section deals with paragraphs 6 and 7 of the Amended Notice of Motion and
the relief sought therein. To summarise, paragraph 6 s ought a declaration that all
Sebola’s decisions as municipal manager, including all contracts and appointments
were to be declared unlawful, unconstitutional and invalid, and were reviewed and set
113 Applicant’s main heads of argument, page 22
aside. In its alternative relief at paragraph 7, the applicant sought an order suspending
the order granted in terms of paragraph 6 for 10 days so that the first to third
respondents may approach the Court on supplemented papers for an order in terms of
section 172(1)(b) of the Constitution.
155. From paragraph 77 in the applicant’s main heads of argument, and its
submissions during the hearing, it then bec ame apparent that what was actually
requested differed from what is contained at paragraphs 6 and 7 of the Amended Notice
of Motion. The Court was asked, insofar as a remedy was concerned, to follow the
dictum in Phalatse and Another v Speaker of the City of Johan nesburg and
Others114. Counsel for the applicant argued that Phalatse emphasized a corrective
principle in that “the invalid exercise of public power should be reversed or
corrected”115. It was submitted that as in Phalatse, the municipal respondents in this
matter had a duty to assist the Court in determining the effect of setting aside Sebola’s
decisions and I was thus urged to adopt a similar approach which may be seen as just
and equitable under section 172(1)(b) of the Constitution.
156. The further submissions were that once a declaration of invalidity was made in
respect of an impugned decision, the decisions flowing from the invalid exercise of
public power should be set aside – this is the default position 116. It was argued that the
onus rested with the respondents to justify why there should be a departure from such
default position . The applicant’s stance was that full retrospective invalidity of the
impugned decision should be granted, but notwithstanding what was sought in the
application, the applicant requested in its main heads of argument , that the Court
deviates from the Amended Notice of Motion and grants an order which is just and
equitable.
114 [2022] ZAGPJHC 105
115 Phalatse supra, par 86 and see the authorities cited at footnote 20 of the judgment
116 See Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency and Others 2014 (1) SA 604 (CC) par 56 – the default position in terms of
a PAJA review
157. The reasoning and motivation for such deviation from the default position , and
the Amended Notice of Motion, was that such order would avoid disruption to public
administration, potential unfairness to third parties and the preservation of validity of
decisions taken by unlawfully/invalidly appointed persons. The request was that were
this Court to grant a b lanket order, which would set aside all Sebola’s decisions since
his appointment, the effect of the order would be to prejudice the residents of Knysna.
158. Turning to Phalatse: all dec isions taken by the Mayor of the City of
Johannesburg were dec lared unlawful, unconstitutional and invalid and were reviewed
and set aside117. Keightley J granted a further order suspending the default order for 10
days and allowed the City Manager or authorised person to apply to the High Court on
supplemented papers for an order in terms of section 172 (1)(b) of the Constitution in
respect of the Executive Mayor’s specified decisions. Having regard to the submissions,
in its most basic form, counsel’s request in his heads of argument was that paragraph 6
of the Amended Notice of Motion not be granted 118, but that the alternative relief as set
out in paragraph 7, which seemed to be in line with the Phalatse orders, be granted.
159. Having regard to the submissions, I consider th at t he default position was that
the second act (s), that is, Sebola’s decisions as municipal manager, were invalid
because the legal basis for its performance was non-existent119. However, a distinction
must be drawn between the first impugned decision by the Council , sought to be
declared null and void, and the second act, being Sebola’s decisions taken as municipal
manager. Once that differentiation is made, in my view, the enquiry would then be
whether the performance of the second decision(s) depended upon the first decision for
its validity.
117 Phalatse Order, par 11
118 This was the prayer that all Sebola’s decisions were invalid and were to be set aside
119 Seale v Van Rooyen NO and Others; Provincial Government, North West Province v Van Rooyen NO
and Others 2008 (4) SA 43 (SCA) par 13
160. To answer the question, I refer to Motala v Master , North Gauteng High
Court120 which I find to be of assistance. The appellant sought a review of the Master’s
decision to remove him as joint liquidator of a certain group of liquidators and also a
review of the Master’s decision to remove him f rom the panel of approved liquidators
and trustees. The argument was that the Master’s decision to remove the appellant from
the panel flowed from or was dependent upon the earlier decision to remove him as
joint liquidator. The Supreme Court of Appeal (SCA) did not accept the argument and
held that while both decisions were administrative decisions, the lat er decision was due
to the appellant’s changed circumstances and not due to nor dependent upon the
validity of the first decision121.
161. In referring to Motala, it would be remiss not to refer to Seale v Van Rooyen NO
and Others; Provincial Government, North West Province v Van Rooyen NO and
Others122. The Court in Motala effectively reconfirmed the principle enunciated in
Seale, that if the first administrative act was set aside, the second administrative act
that depended on the first act for its validity , was invalid as the legal foundation for its
performance was non-existent123.
162. In Corruption Watch NPC and Others v President of the Republic of South
Africa and Others 124, the Constitutional Court had the following to say about the
declaration of invalidity of an administrative action:
“[32] What may lead some readers of what I have paraphrased from Oudekraal
astray is reading it in isolation. Later Oudekraal makes it clear that where a
consequential act could be valid only as a result of the factual existence – not
legal validity – of the earlier act, the consequential act would be valid only for so
120 2019 (6) SA 68 (SCA)
121 Motala supra, par 94
122 Supra – see footnote 117 above for full citation
123 Seale supra, par 13 and Headnote (p43). Seale references Oudekraal Estates (Pty) Ltd v City of Cape
Town and Others 2004 (6) SA 222 (SCA) par 31-33 wherein this principle was enunciated
124 [2018] ZACC 23 para 32-34 – certain references in footnotes are omitted in this judgment
long as the earlier act had not been set aside. 125 In Seale Cloete JA for a
unanimous Court put this beyond question. He held:
“Counsel for both Seale and the TYC sought to rely in argument on
passages in the decision of this court in Oudekraal Estates (Pty)
Ltd v City of Cape Town which adopted the analysis by Christopher
Forsyth of why an act which is invalid may nevertheless have valid
consequences and concluded:
‘Thus the proper enquiry in each case – at least at first – is
not whether the initial act was valid but rather whether its
substantive validity was a necessary precondition for the
validity of consequent acts. If the validity of consequent acts
is dependent on no more than the factual existence of the
initial act then the consequent act will have legal effect for so
long as the initial act is not set aside by a competent court.’
. . .
[T]he reliance by counsel on the decision in Oudekraal, [is]
misplaced. As appears from the italicised part of the judgment just
quoted, the analysis was accepted by this court as being limited to
a consideration of the validity of a second act performed
consequent upon a first invalid act, pending a decision whether the
first act is to be set aside or permitted to stand. This court did not in
Oudekraal suggest that the analysis was relevant to that latter
decision.” (Footnote omitted.)
[33] The Supreme Court of Appeal then concluded that “ it is clear from
Oudekraal . . . that if thefirst act is set aside, a second act that depends for
125 Oudekraal above at para 31 (n30 deleted)
its validity on the first act must be invalid as the legal foundation for its
performance was non-existent”.(footnote omitted)
[34] In Kirland this Court accepted what was decided in Seale. Writing for the
majority, Cameron had this to say:
“In Seale . . . the Court, applying Oudekraal, held that acts
performed on the basis of the validity of a prior act are themselves
invalid if and when the first decision is set aside. . . . [T]he Court
rightly rejected an argument, in misconceived reliance on
Oudekraal, that the later (second) act could remain valid despite
the setting aside of the first.” (footnote omitted)
(my emphasis)
163. The respondents take no issue with the authorities but they have referred me to
and requested that I adopt the approach by the Full Bench of this Division in Mgoqi v
City of Cape Town and Another 126. Briefly, Dr Mgoqi presided over a meeting of the
municipal council in circumstances where his contract had already expired 127 and the
Court found that there was a mistaken impression that he was empowered to chair the
meeting (when he was not). The Court stated that:
“He was, to all intents and purposes, the ostensible, de facto municipal manager
and was carrying out his duties and obligations as such”128.
164. The submission was that the Constitutional Court authorities which the applicant
referred to, did not oust the approach adopted in Mgoqi, so that the appointment of
Sebola be set aside with prospective (as opposed to retrospective) effect only and in
that way, his decisions taken prior to the declaration of invalidity, should remain
126 2006 (4) SA 355 (C)
127 Par 126
128 Mgoqi supra, par 126
unaffected. Breaking this down to its basics, the applicant still wanted an order that
the declaration of invalidity in relation to Sebola’s decisions should be retrospective,
but that such order be suspended with a view that parties may approach the Court in
terms of section 172(1) of the Constitution for a just and equitable order and that
some decisions be preserved.
165. I agree with the respondents that the dec isions taken by Sebola , even unlawfully
appointed, w ere made in th e capacity as municipal manager, as in Mgoqi. From the
facts, it was accepted that the i ssue of a l ack of candidates’ information and the failure
to place documents and reports before the Council w ere only realised after the
appointment was made. At that stage, Sebola was already making decisions, such as
granting tenders, approving leave to administra tive employees, chairing meetings,
appointing staff and the like. He was serving a public power and function, possibly
unaware that his appointment was invalid and not in compliance with section 54A of the
Act, due to (at the very least) procedural flaws in the appointment and non -compliance
with the legislation.
166. The decisions he made in such capacity, were not , in my view, dependent for
their legal validity and enforcement on the validity of his appointment as municipal
manager. Sebola had, as counsel for the respondents stated in his submissions and
with reference to Mgoqi, at least “colourable authority”. In my view, it would certainly
cause administrative chaos, inconvenience, potential hardship and more were all his
decisions to be declared invalid and set aside. Furthermore, consideration must also be
given to third parties who may have been awarded contracts as part of the Knysna
municipality’s administration, so to blindly set these decisions aside, would or could
have far reaching effect. Added to that, affected persons or parties are not before the
Court.
167. Returning to the request by the applicant t hat I follow Phalatse and grant an
order along similar lines, I point out that Phalatse’s circumstances and those which
arise in this matter were markedly different. In that matter, the learned Judge had to
deal with an urgent review as to whether the decisions and conduct of the Speaker of
the City of Johannesburg in the motion of no confidence procedure which led to the
axing of the then Executive Mayor of the City, were lawful . Keightley J consider ed
various impugned decisions and then determined the remedy in the context of section
171 and 172 of the Constitution129. The orders granted were peculiar and specific to the
circumstances and findings in that matter and I agree with the respondents’ counsel that
when reading Phalatse, it becomes evident that the orders granted could be
implemented, in that decisions could be identified by the City M anager for purposes of
seeking a just and equitable order130 .
168. In this matter, the landscape is different. By the time the matter was argued,
Sebola was already the municipal manager for more than six months and the parties
had attempted settlement and agreed on the main issue that the decision to appoint
him, was flawed and should be set aside or be declared null and void. To declare all
Sebola’s decisions null and void as a result of his unlawful appointment would , in my
view, neither be just nor equitable. I am of the view that the circumstances of each case
would be a more than relevant consideration before ordering a blanket setting aside of
Sebola’s decisions as municipal manager.
169. In any event, to set aside all Sebola’s decisions from the inception of his
appointment, would have far reaching consequences, the effect of which could cause
chaos, potential prejudice and uncertainty in respect of agreements and decisions
involving third parties, interrupt service delivery and the functioning of the Knysna
Municipality. Furthermore, third parties, whether individuals, institutions or juristic
persons, who were parties to agreements which Sebola concluded in his official
capacity and who may be affected by an order of this Court, were not before it.
170. The applicant’s submission on this issue was that the absence of third parties
(before the Court) was not a bar to the remedial relief sought, and it was in the nature of
129 The impugned decisions were reviewed in terms of the principle of legality – see paragraphs 85 and
86 of the Phalatse judgment
130 Phalatse, par 12
an order in rem that third parties were affected. It was furthermore suggested during the
hearing that the applicant ha d no objection to a joinder of any third party and/or such
party approaching the Court to indicate that a decision taken by Sebola should be set
aside.
171. While I appreciate that third parties may be affected in such a public
administration issue, the third party would be entitled to approach the Court in terms of
PAJA at least, but should be duly apprised of the issues and have time to properly
consider his/her/its stance, rather than be thrown into the deep end and joined in a
dispute between the applicant and the Knysna municipal respondents.
172. Ultimately, the applicant s ought a n order which suspends the declaration of
invalidity and set s aside Sebola’s orders for a specified period until the first to third
respondents approach ed the Court in further proceedings, on duly supplemented
papers, for an order in terms of section 172 (1)(b) of the Constitution . This relief
presents its own problems. In my view, counsel f or the respondents correctly argued
that the decision-making functions and powers of an Executive Mayor as in Phalatse
differ from those of a municipal manager. The latter is responsible for the day to day
operation and running of the Municipality and makes daily decisions such as in -house
leave approvals of municipal staff, authorising salary payments, deciding appeals in
terms of section 62(4) of the Act and more131.
173. Having regard to paragraph 7.2 of the Amended Notice of Motion, I wish to
emphasise that no decisions which would be the subject of an application to Court for a
section 172(1)(b) order were identified. To blame the respondents for their failure to
identify such decisions and thus not assist the Court was also not helpful. The fact of
the matter was that neither the Executive Mayor nor the Speaker hold the functions of a
municipal manager and cannot therefore take upon themselves the role and function of
the municipal manager as they are Councillors.
131 Section 62(4) is the authority which enables the municipal manager to hear appeals in certain
circumstances – see Part 3 of the Act
174. The applicant’s relief at paragraph 7.2 would in effect be a 10-day period for the
Speaker and Executive Mayor or other authorised p erson to audit the work and
decisions made by Sebola during his tenure as municipal manager and thus approach
the Court for a just and equitable order on supplemented papers. How this is to happen,
and which decisions were/are to be earmarked for further litigation and consideration,
was a question left open by the applicant.
175. The further issue with such remedial order as per paragraph 7. 2 is that in
granting such relief, it would be tantamount to allowing the applicant to be granted an
order which the MEC h ad not sought in his application under case number 4441/23. I
have already made a finding that the applicant has standing to bring this application and
I do not traverse that terrain again. However, I need to emphasise that the relief the
applicant sought in paragraph 7 would, in my view, make inroads into the MEC’s role as
supervising authority in terms of section 54A. Hence, I agree with the respondents’
argument that the applicant’s relief would be far-reaching and may create a situation
where the supervisory role vested in the MEC in terms of legislation, was usurped or
infringed132. Ultimately, the applicant as an own interest litigant has not shown that any
of Sebola’s decisions adversely affected its rights or had an external legal effect 133 on
its rights, and would not be entitled to the relief it seeks in paragraph 7.2.
176. I was also referred by the applicant’s counsel to an unreported judgment of the
North West Division of the High Court, Mahikeng, namely Dilotsothle v M ahikeng
Local Municipality134, in support of the submission that the orders granted in the latter
judgment were appropriate to follow as the facts were similar to this matter. That may
be so, but significantly Gura J made findings on the assessment of the municipal
manager as basic, which I have not done for the reasons already stated. Order 3 at the
132 Nkandla Local Municipality and Others v MEC for the Department of Co -operative Governance and
Traditional Affairs; Mthonjaneni Local Municipality and Others v MEC for the Department of Co -operative
Governance and Traditional Affairs [2020] ZASCA 153 par 71
133 “Administrative action”, section 1, PAJA ; see also Grey’s Marine Hout Bay (Pty) Ltd v Minister of
Public Works 2005 (6) SA 313 SCA par 21
134 Case number UM130/2020, Gura J, delivered on 25 October 2021j
conclusion of Dilotsothle remits the matter back to the M ahikeng Local Municip al
Council to reconsider the appointment of the munici pal manager on the basis of the
Selection Panel’s report. From my understanding of this order, the relevant Council w as
also ordered to reconsider the posts as advertised based on the competency
assessments reports of each candidate at the time.
177. With respect, I decline to follow the Dilotsothle order for the following reasons:
while Sebola a lso rated “basic” according to the Steele report, I made no finding
regarding the correctness or otherwise of the assessment at the time, and/or the
correctness of the Steele report, because the matter was decided on the common
cause or agreed ground of review. Secondly, it was evident from the facts of this case
that huge disputes revolve around the Steele report, its correctness and competence,
and that is not a n avenue which this Court traversed because it was unnecessary to do
so. Thirdly, Sebola himself raised issues regarding his assessment and realised that his
treatment differed from the other candidates. To refer the matter back to the Knysna
Municipal Council at a stage where the competency assessment reports were provided
to the Selection Panel and expect the Selection Panel to then make a decision , has its
own problems because of the missing documentation and the failure to consider the
Fundudzi Report.
178. Thus, while I fully appreciate the appropriateness of the remittal order in
Dilotsothle to the facts and circu mstances in that matter, the same approach would
neither be competent nor practical in the circumstances and disputes in this matter. I
thus determine that a remittal to the Council with an order that the Selection Panel
reconsiders the competency assessments of the three candidates would be
inappropriate.
179. Furthermore, t o refer the matter back to the Municipal Council to re -start the
process as from the Steele report , would make no sense because the parties raised
concerns about the Steele report in the sense of its reliability and correctness.
Furthermore, to exclude Sebola from applying again should he wish, would certainly not
be fair, whatever the applicant’s views were about him. Whether the other two
candidates were/are available or not is also not a yardstick to determine a suitable
order. Having regard to the submissions, and the further submissions and affidavits, the
most sensible order to grant would be an order that the advertisement process begins
afresh. Any other order, given the dispute about the Steele report, would not be just nor
equitable. The remedy should be just that: a remedy and not a cause for further ,
unnecessary litigation.
The further affidavits and written submissions filed after the hearing
180. I do not intend to spend much time on this aspect. I set out the time line in
respect of the further affidavits and multitude of further written submissions by counsel.
On the first day of hearing, leave was granted to the respondents to file affidavits only in
respect of a response to paragraph 27 of Sabbagh’s replying affidavit and paragraphs
10 to 29 of Peters’ affidavit. All these paragraphs dealt with Sebola’s actual interview
and assessment process. It bec ame apparent from the affidavits of Phillips, the HR
Manager of the Knysna Municipality that there was a dispute on the papers as to how
the interview and assessment occurred, but inter estingly, the affidavit then attacks
Peters’ qualification to conduct the assessment.
181. In short, the allegation was made that Peters was neither competent nor qualified
to asses s the candidates. The reason for such statement and accusation were not
pertinent to the eventual outcome of the matter, but it was at this stage where , in my
view, the matter bec ame clouded. Not only was the Steele report attacked in the
answering affidavit, but the competency and authority of Peters, considered as
someone who was outsourced by Steele, was questioned.
182. The further supporting affidavits of the Speaker and the chairperson of the
Municipal Council set out and support Phillips ’ contention that Peters and Steele, as a
service provider, were not authorised to conduct the assessment and Steele was not a
lawfully accredited service provider in terms of the COGTA directive 135 and th us the
entire process was flawed from start to finish. At paragraph 24 of the Speaker’s affidavit,
the latter then s ought an order to declare the appointment of Steele Consultants to be
invalid and unlawful. An already convoluted matter then became even more problematic
when the applicant’s further affidavits of 3 August were filed.
183. The respondents’ supplementary submissions of 10 August comprise 55 pages.
Large parts thereof addressed matters already argued and the rest deal t with the law
and competency of a collateral c hallenge, untenable c laims by Jonker in her further
affidavit, and the binding nature of the COGTA directive. The theme throughout was that
the applicant’s belated request that the matter be remitted to the Council to reconsider
the Steele assessment and thereafter make a new appointment , should not be
entertained.
184. In summary, the submissions by the respondents’ were that, but for the
applicant’s about-turn in its first set of heads of argument – that the Court should issue
directions that the Municipal Council reconsiders the appointment process to just after
the Steele assessment process - the propriety of the Steele process was not in issue as
it was irrelevant to the setting aside of the appointment decision. The respondents had
accepted that the decision was to be set aside and that the matter would be remitted to
the Council.
185. It was further submitted and reiterated that there was no need for the Court to
determine the applicant’s new consequential relief 136 as it was raised in heads of
argument. The further submissions were along the line that if the Court were to grant
new consequential relief, it would effectively be accepting that the Steele process was
beyond reproach and not flawed, which the respondents submitted, it was. Criticism
was levelled at the applicant’s about -turn, which forced the respondents to appr oach
the matter as it did and raise a collateral challenge, which according to Oudekraal
135 See paragraphs 8-23 of the Speaker’s affidavit filed 1 August 2023, and Annexure MS1 thereto
136 In other words, a remission to the Knysna Municipal Council as per Dilotsothle
Estates (Pty) Ltd v Cit y of Cape Town and Others 137, a Court has no discretion to
allow or disallow: in other words, the respondents may bring the challenge at any stage.
186. The affidavits shortly, and the applicant’s submissions of 10 August 2023 ,
contend that the respondents could not seek a declaration of invalidity in respect of
Steele’s appointment in an affidavit as they were supposed to launch a collateral
challenge for such relief. Issues of lateness and a lack of condonation were also raised,
and furthermore, that the affidavits go beyond the very limited issue which the Court had
allowed pursuant to the striking out application.
187. The respondents proceeded to file f urther supplementary heads on 16 August
2023. It set out why it was not necessary for the Court to make findings on the
assessment by Steele, but if it did, then a remittal order based on the correctness of the
Steele assessment and process, would deprive the Council of determining whether that
process was indeed adequate. The argument went that if the Court were to delve into
the applicant’s further new consequential relief – the remission to Council at a stage just
after the Steele assessment report – then the Court ha d no discretion but to consider
the collateral challenge, being the appointment of Steele.
188. From the papers, it was evident that there were f laws in the process and if not a
dispute, then the affidavits indicated that there was certainly a difference in how Peters’
experienced Sebola’s interview and assessment, and how Sebola did. My firm view
remains that t here was simply no need to traverse th is issue and I say so because my
main finding is based on a common cause review ground and not on the Sebola
assessment issue. It is evident , therefore, that any remedial order, which I have
discussed above, cannot be based on the correctness or otherwise of the Steele
assessment. The mere fact that these issue s were raised, albeit it subsequent to the
hearing, raise d questions as to the reliability of the assessment process and report.
Given the findings which I have already made, I remain convinced that there is no need
to make a finding that the assessment and interview were correctly conducted or not.
137 2004 (6) SA 222 (SCA) par 26
189. In my view, the submissions of c ounsel for the respondents are correct. To order
a referral and hamstrung the Council where it must accept the Steele report,
notwithstanding issues raised on affidavit, would not be correct, nor equitable. In view of
the orders I grant based on my earlier findings, there is no reason to address nor
determine any collateral challenge and make a finding whether Steel e and Peters were
lawfully appointed to conduct the assessment and interview process, or not. The parties
blamed each other but ultimately, bot h sides were guilty of traversing unnecessary
avenues in this matter. Accordingly, I remain unconvinced that the orders which I intend
granting and the findings made above, should be reconsidered in light of the various
further affidavits and multiple heads of argument filed subsequent to 20 July 2023.
Costs
190. The respondents tendered to pay the applicant’s costs from the launching of the
application to 3 June 2023. The applicant motivate d its submission for a personal costs
order against each of the first to fourth respondents because, according to the applicant,
they conducted themselves in a grossly negligent manner and the residents of Knysna
should not foot the bill for their conduct in the litigation. The further motivation was that
the respondents did not comply with the section 54A duty even though correspondence
had warned them of the problem with the appointment. It was further submitted that if
the Court was not inclined to agree on the remedy sought by the applicant , then it
should invoke the Biowatch principle138. This principle states that the general rule is not
to award costs against unsuccessful parties when they litigate against the State in a
matter of constitutional importance139.
191. Aside from the delays and the condonation issues which I made findings on
above, the matter was actually resolved in the sense that agreement was reached that
the Council’s decision was null and void and was to be set aside. This matter, with
138 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14 para 56-59
139 Biowatch, par 56; Lawyers for Human Rights v Minister in the Presidency and Others [2016] ZACC 45
para 15-18
respect, was a case of the applicant shifting the goal posts insofar as the remedy was
concerned, and later, the respondents going beyond what the Court allowed when it
granted orders in the first striking out application. The fact that the applicant did not wait
for the MEC to act as he was mandated to do in terms of section 54A, set this ball
rolling, which ultimately snowballed into something larger than simply the determination
of a competent and proper order and remedies to set aside the impugned decis ion of
the Council. Yet, my view remains that the “jumping the gun” ahead of the MEC should
not be held against the applicant, which approached the Court on its own standing.
192. Insofar as condonation is concerned, the explanations in this matter were
accepted and each party should pay its own costs. The respondents were largely
successful in their striking out application and should be awarded the costs attendant on
that application. The new or changed consequential relief eventually had a knock on
effect in that it led to the respondents’ collateral challenge raised after the hearing, but
which I indicated above, was unnecessary to determine. All in all, I am not convinced
that any punitive costs order in this application is warranted upon the respondents who
were entitled to place before the Court, their explanatory affidavit, and the affidavit and
correspondence made it clear that they did not agree with all the review grounds and
allegations made against Sebola.
193. Furthermore, Sebola cannot be blamed for the unlawful appointment as he did
not appoint himself, and to order him to pay costs in these circumstances would, in my
view, be unjust. The way the application progressed and was litigated, from both sides,
and the outcome, do not justify the invocation of the Biowatch principle. The main order
is ultimately one which was agreed upon, albeit that the parties differed on whether all
or some of the review grounds were to be determined. The main aspect when it c omes
to costs, in my view, is that on the issue of setting aside Sebola’s orders and the further
remedial relief seeking remission to the Council, the respondents’ arguments prevailed.
194. Putting aside the other aspects which made the matter more convoluted than
was necessary, the respondents were largely successful and but for the specific costs
orders mentioned above and the tender up to 3 June 2023, there is no cogent reason
why the applicant should not be ordered to pay the respondents’ costs subsequent to
that date. Lastly, while I had given thought to an order that each party pays his/its own
costs (subsequent to 3 June 2023), ultimately I cannot lose sight of the fact that on the
Sebola decisions and remedial orders, the respondents are successful, hence the
exercise of my discretion insofar as costs are concerned, is in their favour.
195. Recently, Uniform Rule 67A dealing with a party and party award of costs was
inserted by Government Notice R4477 in Government Gazette 50272 and took effect on
12 April 2024. Subsequent to the amendment of the Rules, ON 22 April 2024, Wilson J
delivered a judgment on Rule 67A in Mashavha v Enaex Africa (Pty) Ltd 140. As the
amendment came into effect after the matter was argued and Mashavha was delivered
very recently, I am of the view that the parties should be afforded an opportunity to
make brief submissions on whether the amended Rule 67A applies to any costs
order(s) I intend to make in this application, and furthermore, the scale thereof with
reference to Rule 67A(3) read with sub -rule (9). Cou nsel will be afforded 10 days f rom
date of judgment to provide a brief Note on Rule 67A and the scale of costs.
THE MEC’S APPLICATION – CASE NUMBER 4441/2023
Costs
196. The only issue to determine is that of costs , and as an opening remark, the order
granted in the DA’s application is not necessarily duplicated in the MEC’s application for
the reasons set out below. The M EC sought an order dec laring the decision of the
Knysna Municipal Council null and void, and in the further orders, in the event of any
opposition, an order of costs was sought. I have already set out the chronology of
events and the correspondence between the MEC and Executive Mayor, alerting the
140 Gauteng Local Division, Johannesburg,, case number 2022-18404, delivered on 22 April 2024
latter on 23 February 2023, of the basic rating of Sebola and that his appointment was
made in contravention of the Regulations to the Act141.
197. As was seen, the Executive Mayor’s response was to not only disagree that
Sebola was not competent, but to rely on the Gijima report’s finding after the fact to
support his views that Sebola was , in his view, competent and had the necessary
competencies for the post 142. The explanatory affidavit which was also in parts, an
opposing affidavit, was also filed after the MEC’s heads of argument were filed in the
matter. Insofar as case number 4441/2023 was concerned, the Speaker recognised that
the MEC acted in terms of his powers under section 54A(8), read with section 54A(3).
198. I already addressed and ruled on condonation in the other application above but
in this matter, the explanation differ ed and must be considered for what it is . In the
MEC’s application, the reason for the delay in filing the respondents’ affidavit,
contributes to my finding on costs. The explanation for the delay was that because of
the DA ’s application , the comp ilation of the explanatory affidavit in the MEC’s matter
was overlooked.143 The submission was that despite the MEC’s warnings, the Executive
Mayor forged ahead and in an explanatory affidavit, the Municipality and other
respondents actually opposed the application and only conceded the unlawfulness
thereof on 3 June 2023.
199. The MEC argued that he was forced to launch this application given the stance of
the respondents, and despite warnings that the Sebola appointment was invalid. The
further submissions were that the Court should grant a costs order and approach the
matter similarly as in the Central Karoo District144 judgment. In that matter, Gamble J
found that the Municipality had acted in a “somewhat cavalier manner” 145 by failing to
respond to the MEC’s correspondence, filing an affidavit contrary to the timetable,
raising points in limine and then abandoning it, and advancing a case which lacked
141 AB9
142 AB10
143 Record, par 33, p236
144 Supra
145 Central Karoo District, supra, para 36; see also para37-38
merit. The Court found that in the circumstances where the application was opposed, it
was just and equitable to grant a costs order146.
200. The MEC’s further argument, with reference to judgments such as MEC Kwa -
Zulu Natal for Local Govern ment, Housing and Traditional Affairs v Yengwa and
Others147, was that State entities should avoid litigation against each other and should
endeavour to co -operate and make every reasonable effort to resolve their disputes
before resorting to litigation. Counsel for the MEC argued that the litigation in this matter
was mainly because of the stance of the Executive Mayor. Furthermore, that the
Municipality derived its funds mainly from the rates and service charges of the Knysna
residents, and the Province obtained its funds from the National Revenue Fund and was
also a front-line provider.
201. The respondents’ averment was that the costs sought by the MEC was
inappropriate as this was a dispute between two spheres of government and thus a
costs order will simply result in a situation where public money then flows from the
Municipality to the Province. The f urther submission was that the Municipality was
reasonable by accepting that the Council’s decision was unlawful. The respondents
blame the DA, which is the applicant in 4247/2023, for (them) being in Court, and
submitted that the MEC made an election to come to Court, while the Municipality acted
reasonably by making the concession of an unlawful appointment.
202. The submission was that should the Court grant a costs order, it should only be
up to 1 June 2023, when the Municipality accepted that the decision was unlawful. I am
asked to not place too much emphasis on the Notice of Opposition as the application
was not opposed. In other words, the order proposed by the respondents’ counsel was
that each party pa id his/its own costs or that costs be limited to 1 June 2023. In reply,
counsel for the MEC ma de a good point that there was no tender of costs up to 1 June
146 Supra, par 36
147 [2010] ZASCA 31 par 14
2023 and that had the explanatory affidavit been filed earlier, the issue of costs would
not have arisen.
203. Having regard to the submissions, the important aspect to note is that this
application’s costs issue does not relate to the DA’s matter. In other words, the costs
order granted in that matter, would not necessarily follow in the MEC’s application
purely because the main relief was the same and both applicants’ sought the impugned
decision to be set aside or declared null and void. I also highlight the fact that the
respondents’ affidavit in this matter was not a replica or duplicate of that filed in the
other application.
204. From SANRAL v City of Cape Town 148, it is evident that the Municipality’s
funds do not derive from the National Revenue Fund, but from rates and service
charges imposed on the residents of that municipality. It is also not unusual nor a
blanket rule that one organ of State cannot be ordered to pay the costs of the other, and
the Gamble J order in Central Karoo District is one such example. In this particular
matter, it was easy to blame the applicant in 4247/2023 in order to escape the
responsibility and liability of costs , but the truth of it is that the applicant in that matter
brought the application on its own steam and under the auspices of an own -interest
litigant.
205. The MEC was bound to act in terms of section 54A(8) given the Executive
Mayor’s denial of any unlawfulness in the Sebola appointment even when the MEC’s
correspondence set out the issues in detail. Still, the Executive Mayor was unmoved
and persisted with the stance that the appointment was lawful and that Sebola had met
the requirements of the Regulations. In my view, had the DA’s application not occurred,
this application would either have been opposed or the concession would have been
made after the fact. As it is, I am inclined to agree with the MEC that the Executive
Mayor’s conduct lead to the MEC acting in his supervisory capacity to approach the
Courts in terms of section 54A . The concession regarding invalidity only came almost
148 2017 (1) SA 468 (SCA) par 111
four months after the Executive Mayor was alerted to the invalidity in
correspondence149.
206. While I agree with most of the MEC’s submissions, I differ that this was an
opposed application. This was an unopposed application where the unlawfulness was
conceded and confirmed in the explanatory affidavit of the Speaker. In my view, this
conduct after the horse ha d bolted, persuades me to limit the costs order I intend to
grant. While I align myself with the Gamble J findings, the difference in this matter is the
fact that the Executive Mayor did respond to the MEC’s correspondence and the
respondents accepted on 1 June 2023 that the decision was unlawful and was to be
declared unlawful. As things turned out, their arguments regarding the setting aside of
decisions and remedies, albeit that it was not part of this application, proved to be
successful in the other application.
207. The remaining aspect relates to the Mashavha judgment and the amended Rule
67A and I afford counsel in this matter the same opportunity as indicated in the DA’s
application, to provide a note within 10 days of the order regarding the applicability or
otherwise of Rule 67A and the appropriate scale of costs.
208. In the result, the following Orders are granted:
ORDER IN CASE NUMBER 4247/2023
1. The applicant is granted condonation for the late filing of its Heads of
Argument.
2. The first to fourth respondents are granted condonation for the late delivery of
their explanatory affidavit.
149 SS17
3. The first to fourth respondents’ application to strike out, dated 18 July 2023 is
granted to the extent set out in the judgment. The applicant is ordered to pay
the costs of the striking out application.
4. It is declared that the decision taken by the Knysna Municipal Council on 25
January 2023, appointing Mr O P Sebola (fourth respondent) as municipal
manager, is null and void.
5. The appointment of Mr O P Sebola in consequence of the Knysna Municipal
Council’s decision as referred to in the preceding paragraph, is set aside.
6. The Orders granted in paragraphs 4 and 5 above shall have prospective
effect only and thus not affect the validity of decisions made /taken by the
fourth respondent in his capacity as municipal manager from the date of his
appointment to the date of this Order. For the sake of clarity, this Order does
not affect the rights of any person/party who wishes to challenge a decision,
contract and/or appointment made or taken by the fourth respondent in his
capacity as municipal manager on grounds other than the invalidity of his
appointment.
7. The matter of the appointment of a municipal manager is remitted to the
Knysna Municipal Council which is directed to start the advertisement process
afresh.
8. The first to third respondents are ordered to pay the costs of the applicant ,
jointly and severally, from the date of the launching of its application to 3 June
2023, which shall include costs of two counsel where so employed.
9. The applicant is ordered to pay the costs of the first to fourth respondents
from 4 June 2023 to date of this Order, and such costs shall include costs of
three counsel where so employed.
10. Counsel for the applicant and for the first to fourth respondents are required
to provide a brief Note on the scale of costs in terms of Uniform Rule 67A,
read with Rule 69, within 10 (ten) days of date of this Order (Court days).
ORDER IN CASE NUMBER 4441/2023
1. It is declared that the decision taken by the Knysna Municipal Council on 25
January 2023, appointing Mr O P Sebola (fourth respondent) as municipal
manager, is null and void.
2. The appointment of Mr O P Sebola in consequence of the Knysna Municipal
Council’s decision as referred to in the preceding paragraph, is set aside.
3. The Orders granted in paragraphs 1 and 2 above shall have prospective
effect only and thus not affect the validity of decisions made/taken by the
fourth respondent in his capacity as municipal manager from the date of his
appointment to the date of this Order. For the sake of clarity, this Order does
not affect the rights of any person/party who wishes to challenge a decision,
contract and/or appointment made or taken by the fourth respondent in his
capacity as municipal manager on grounds other than the in validity of his
appointment.
4. The matter of the appointment of a municipal manager is remitted to the
Knysna Municipal Council which is directed to start the advertisement process
afresh.
5. The first to third respondents are ordered to pay the applicant’s costs , jointly
and severally, up to 1 June 2023, the one paying the other to be absolved. No
costs order is granted against the fourth respondent in his personal capacity.
Costs subsequent to 2 June 2023, shall be on the basis that each party pays
his own costs.
6. Counsel for the applicant and for the respondents are required to provide a
brief Note on the scale of costs in terms of Uniform Rule 67A, read with Rule
69, within 10 (ten) days of date of this Order (Court days).
M PANGARKER
ACTING JUDGE OF THE HIGH COURT
Appearances in case number 4247/23
For applicant: M BISHOP
O MOTLHASEDI
Instructed by: Minde Schapiro and Smith Inc.
For first to fourth respondents: D BORGSTROM SC
M TSELE
K NGQATA
Instructed by: Nandi Bulabula Inc.
Appearances in case number 4441/23
For applicant: H DE WAAL SC
Instructed by State Attorney, Cape Town
For Respondents: Appearances as in 4247/23