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2024
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[2024] ZAGPJHC 629
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Mmope v Madibeng Local Municipality (15337/2022) [2024] ZAGPJHC 629 (8 July 2024)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 15337/2022
DATE
:
18-06-2024
1. REPORTABLE: YES / NO.
2. OF INTEREST TO OTHER JUDGES:
YES / NO.
3. REVISED.
In
the matter between
MOTLALEKGOMO
GOGGY MMOPE
Plaintiff
and
MADIBENG
LOCAL MUNICIPALITY
Defendant
JUDGMENT
STRYDOM,
J
:
- - - - - - - - - - - -
This is an ex-tempore judgment.
In the application for leave to appeal brought by the applicant in
terms of Section
17 of the Supreme Court Act 10 of 2013, leave to
appeal may only be given where the judge or judges concerned are of
the opinion
that;
"(a)(i) the appeal would have a
reasonable prospect of success; or (ii) there is some other
compelling reason why the appeal
should be heard, including the
conflicting judgments on the matter under consideration."
The other subsections of this Section
17 are not applicable and would not be referred to.
I found that the decision to abandon
the appointment process and to readvertise the position of municipal
manager did not constitute
administrative action as envisage in PAJA
but fell under the exclusion in the definition of administrative
action in Section 1
of PAJA. This subsection excludes the
executive powers or functions of a municipal council.
As was pointed out in my judgment,
some uncertainty still exists, what the legal position is in this
regard as to the question whether
the appointment by a municipal
council of a municipal manger constitutes administrative action or
not.
In paragraph 41 of my judgment, I
pointed out that the Constitutional court in the recent matter of
Member of the Executive Council for Cooperative Governance and
Traditional Affairs, KwaZulu-Natal versus Nkandla Local Municipality
and Other
2001 ZACC 46
, refrain from deciding whether appointment
of municipal manager constituted administrative action as
contemplated in PAJA.
Accordingly, our apex court has not
made a final decision on this issue. In other courts findings
were made that, the appointment
does constitute administrative action
whilst in others not. In my view this is a compelling reason
why leave to appeal should
be granted. A decision on this
issue may affect my entire judgment, and for that reason leave to
appeal should be granted
against my whole judgment, excluding the
cost order to the Supreme court of appeal.
The following order is made;
1
Leave to appeal is granted to the applicant
to appeal against my order dismissing the application;
2
Leave to appeal is granted to the Supreme
court of appeal;
3
Cost of this application for leave to
appeal to be costs in the appeal.
That is the judgment.
STRYDOM, J
JUDGE OF THE HIGH COURT
DATE
:
……………….