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2024
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[2024] ZAKZPHC 83
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Nongoma Local Municipality v Member of the Executive Council for Cooperative Governance and Traditional Affairs (KwaZulu-Natal) and Others (11032/2024P) [2024] ZAKZPHC 83 (31 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
11032/2024P
In the matter between:
NONGOMA LOCAL
MUNICIPALITY
FIRST APPLICANT
SIPHO BHEKISIZWE
NKOSI
SECOND APPLICANT
BHEKOKUHLE OTTO
MENYUKA
THIRD APPLICANT
AND
MEMBER OF THE
EXECUTIVE COUNCIL FOR
COOPERATIVE GOVERNANCE
&
TRADITIONAL AFFAIRS
(KWAZULU-NATAL)
FIRST RESPONDENT
A B
MNKATHI
SECOND RESPONDENT
B W
NDLOVU
THIRD RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicants brought an urgent application for the relief set out in
the First Order Prayed.
The relief which is sought therein is
that First Respondent’s decision to second Second and Third
Respondents as the Acting
Municipal Manager and Acting Chief
Financial Manager be suspended. Secondly that Second and Third
Applicants are authorised
to perform their functions in their
positions per the council resolution of 24 June 2024. Thirdly
that First Respondent is
interdicted and prevented from introducing
the Second and Third Respondents to the Nongoma Local Municipality
and fourthly costs
for the First Order Prayed be reserved for
decision by the court hearing the Second Order Prayed.
[2]
The relief in the Second Order Prayed relates to review proceedings
in respect of the decision
which was made by First Respondent
seconding Second and Third Respondents to First Applicant.
[3]
The Municipal Manager and Chief Financial Officer of First Applicant
had been arrested for fraud
and money laundering and as a result
thereof were placed on special leave. Second Applicant was then
appointed as the Acting
Municipal Manager and Third Applicant as the
Acting Chief Financial officer each for a period not exceeding 3
months. The
decision was taken by resolution of the council on
28 March 2024. On 6 May 2024 First Respondent appointed Second
and Third
Applicants in the positions of Acting Municipal Manager and
Chief Financial Officer for a period not exceeding 3 months with
effect
from 1 April 2024. This period then ended on 30 June
2024. This was after First Applicant addressed a letter to
First
Respondent on 28 March 2024 requesting the acting
appointments.
[4]
On 21 June 2024 the council of First Applicant resolved that the
contracts of Second and Third
Applicants be extended for a further 3
months. On 24 June 2024 the Mayor of First Applicant addressed
a letter to First Respondent
requesting the extension of the acting
appointments of both Second and Third Applicants with effect from 1
July 2024 in accordance
with the resolution that was taken by the
council of First Applicant. The letter states that the
Municipality would like
to make submissions to the MEC for extension
of the acting appointments of Second and Third Applicants. It
was requested
that it be extended for a further period of 3 months
from 1 July 2024. It was requested in terms of section 54 A and
56 (1)(a)(ii)
and (1)(b) of the Municipal Systems Act 32 of 2000.
[5]
On 12 July 2024 First Respondent responded to the request of the
Mayor of First Applicant for
the extension of the appointments of the
two officials. In the said letter it was stated that their
attention was drawn to
sections 54(2)A
and
56
(1)(c) of the
Local
Government Municipal Systems Act 32 of 2000
which provides that a
senior manager appointed in an acting capacity may not be appointed
to act for a period exceeding 3 months
provided that the Municipality
may in special circumstances and on good cause shown apply in writing
to the MEC for local government
to extend the period of appointment.
It stated that the Council did not have the authority to approve any
extension of the
acting appointments and that it was therefore
ultra-vires
. It stated that in terms of section 154 of
the Constitution and section 105 of the Municipal Systems Act First
Respondent
was empowered to assess the support needed by
municipalities and as a support measure has seconded Ms A B Mnikathi
as the Acting
Municipal Manager and B W Ndlovu as the Acting Chief
Financial Officer for a period of 3 months with effect from 15 July
2024.
[6]
At 22h06 on 15 July 2024 First Respondent advised First Applicant by
email that the two individuals
who have been seconded would be
brought to be introduced to the Municipality, on 17 July 2024 at
11h00.
[7]
On 16 July 2024 Fist Respondent was requested by First Applicant to
rescind the secondment of
the two officials. The urgent application
was then issued.
[8]
It was submitted by Mr. Kuboni on behalf of Applicants that First
Respondent relied on the powers
set out in section 54A(6)(a)(b) of
the Systems Act but that it did not have the power to appoint
the seconded officials as
this could only be done at the request of
the council. It therefore exercised a power that it did not
have. It was
therefore submitted that the prospects of success
on review were good.
[9]
It was submitted by Mr. Dickson SC on behalf of Respondents that in
terms of section 41 of the
Constitution and the Inter of Governmental
Relations Framework Act 11 of 2005 that as both parties were
government departments
they first had to attempt to settle the issue
before an application was brought and that there was no attempt to
settle.
It was further submitted that there was no urgency as
the notice was only granted the day before. He also referred to
the
provisions of section 54A which I have mentioned above.
[10] It
was submitted by Mr. Kuboni that the Inter-Governmental Relations
Framework Act did not apply as was found
in the case of Bitou
Municipality v Minister of Local Government, Wester Cape & others
(2021) 42 ILJ 993 (LAC) para 48-50.
It held at paragraph 51
“Section 39(1)(a) of IGFRA provides the complete answer. It can
hardly be contended that section
54A of the Systems Act is not “other
national legislation” that provided resolution mechanisms and
procedures, as envisaged
in section 39(1)(a). The court a quo’s
conclusion that First Respondent did not have to first comply with
section 45(1) of
IGFRA is thus unassailable. “Mr. Kuboni”
further submitted that there were attempts to engage First Respondent
as appeared
from page 51 of the indexed papers. This issue therefore
needs no further consideration.
[11]
The matter was urgent and it was triggered by the refusal of First
Respondent to cancel the secondments and
the communication to bring
the seconded persons to First Applicant on 17 July 2024. First
Applicant was sent an email the evening
of 15 July 2024 stating the
seconded individuals would be brought to be introduced on 17 July
2023. First Applicant requested the
extension of the acting
appointments of Second and Third Applicants on 24 June 2024. First
Respondent only replied on 12 July 2023
as set out above. The matter
therefore did become urgent as the officials were to be introduced on
17 July 2024 and their appointments
to be from 15 July 2024.
[12] It
was further submitted by Mr. Dickson SC that the relief sought in
paragraph 2.2 of the First Order Prayed
could not be granted as it
would result in an order for which there is no authority to do so.
The Court would then be granting
itself powers which it does not
have. First Applicant can still consider whether to approach
First Respondent and it was
accepted by Mr. Dickson SC that the
relief in paragraph 2.1 of the First Order Prayed could be granted as
First Respondent did
not have the powers to make such appointments.
If that is so the effect would be that the relief in paragraph 2.3
can also be granted
as First Respondent did not have the authority to
appoint the seconded officials.
[13]
Section 54 A (1)(b) of the
Local Government Municipal Systems Act 32
of 2000
reads:
“
The
Municipal Council must appoint an Acting Municipal Manager under
circumstances and for a period as prescribed.”
Subsection 2 A (a)
states:
“
(a)
A person appointed in terms of subsection (1)(b) may not be appointed
to act for a period that exceeds
3 months.
(b)
A Municipal Council may, in special circumstances and on good cause
shown, apply in writing to the
MEC for Local Government to extend the
period of appointment contemplated in paragraph (a) for a further
period that does not exceed
3 months.”
Subparagraph (6) (a)
reads:
“
The
Municipal Council may request the MEC for Local Government to second
a suitable person, on such conditions as prescribed to
act in the
advertised position until such time as a suitable candidate has been
appointed.”
[14]
Section 54A
therefore provides that the appointment of an Acting
Municipal Manager can be extended for a further 3 month period in
writing
to the First Respondent after good cause or special
circumstances has been shown. Subsection (6)(a) provides that the
council may
request the secondment of a suitable person to act in the
advertised position until a suitable candidate has been appointed. If
such a person has not be seconded within 60 days by the NEC the
Municipal Council may request the Minister to second a suitable
person until such time as a suitable candidate has been appointed.
[15] It
would appear from the wording of the section that it is until a
suitable candidate has been appointed.
[16]
The reason provided by First Respondent for not extending the acting
appointments is that the Council was
not entitled to extend such
terms. It had to apply in writing to First Respondent to extend the
period of appointment as appears
from the letter of First Respondent
dated 12 July 2024.
[17]
First Respondent justifies the appointment of the seconded persons on
the basis of the provisions of section
154 of the Constitution and
section 105 of the Systems Act that empowers to assess the support
needed by municipalities and as
a support measure he seconded the two
named persons.
[18] It
would therefore appear that First Respondent, in terms of the
provisions of the Systems Act, can only
second persons if there was
such a request in writing from the council of a municipality.
Although subsection 6 refers to
the secondment until a suitable
candidate has been appointed it appears that it relates to when there
is a vacancy. In the
present case there is no vacancy as the
appointed Municipal Manager and Chief Financial Officer are only on
special leave.
However it appears, from the limited information
available, that this may be for an indefinite period until the whole
process has
been finalised that the seconded person may have to be
appointed to fill such positions until the process has been
completed.
[19]
However what is clear from section 54A is that the Council can only
appoint such an Acting Manager for a
period of 3 months and then only
with the consent of the MEC after good cause shown, have it extended
for another period of 3 months.
First Applicant acted
incorrectly when its Council extended the acting appointments and
only thereafter requested First Respondent
to extend it. There was
therefore no valid request to do so and also no special circumstances
or good cause set out in the request.
First Applicant may have to
rescind the resolution extending the acting appointments and then
submit the request for the extension
to First Respondent in terms of
the Systems Act.
[20]
First Respondent, in the circumstances appear not to have the
necessary authority to second staff to First
Respondent on its own
and such secondment is therefore also not valid and must be
rescinded. Section 154 of the Constitution and
section 105 of the
Systems Act in my view does not grant First Respondent such right in
these circumstances.
[21]
Therefore the decision by the Council of First Respondent to extend
the acting appointments, cannot stand
but the appointment of the
seconded persons can also not stand and it would appear that the
matter would have to be dealt with
in terms of, the provisions of the
Systems Act.
[22]
The following order is made:
1.
An order is granted in terms of paragraph 2, 2.1, 2.3 and 2.4 of the
First Order Prayed in the
Notice of Motion.
2.
The relief in the Second Order Prayed is adjourned sine die.
P C BEZUIDENHOUT J
Date
Reserved:
19
July 2024
Date
Delivered:
31
July2024
For
Applicant:
Adv
Kuboni
Instructed
by:
Zuma
& Partners Incorporated
c/o
Myeni and Co Inc
cell:
078 630 6166
For
Respondent:
Adv
Dickson SC
Instructed
by:
Garlicke
& Bousfield Inc
c/o
Stowell & Co
ref:
Sarah Myhill