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[2016] ZALAC 12
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Merafong City Local Municipality v South African Municipality Workers Union ("SAMWU") and Another (JA44/14, J1021/12) [2016] ZALAC 12; [2016] 8 BLLR 758 (LAC); (2016) 37 (ILJ) 1857 (LAC) (20 April 2016)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Appeal court case no: JA 44/14
Labour Court case no: J1021/12
In the matter between:
MERAFONG
CITY LOCAL MUNICIPALITY
Appellant
(First Respondent
a
quo
)
and
SOUTH AFRICAN MUNICIPAL WORKERS UNION
(“
SAMWU
”)

First
Respondent
(First Applicant
a
quo
)
VUYISILE PATRICK NQABA

Second Respondent
(Second Applicant
a
quo
)
Heard:
22 September 2015
Delivered:     20 April 2016
Summary: Appointment of Municipal Manager in terms of the
Local
Government Municipal Systems Act No 32 of 2000
– Employee of
municipality who also resides in municipal area, assisted by trade
union applying to Labour Court  for
the setting aside of
appointment on basis appointee not suitable-Jurisdiction and standing
in issue-Appeal against order setting
aside appointment upheld
Municipality objecting to jurisdiction of the Labour Court –
Labour Court having powers to entertain disputes falling with
its
jurisdiction – overlap between
sections 158
dealing with powers
and
section 157
regarding jurisdiction so that some provisions
dealing with powers may also be construed as sources of jurisdiction
and
vice versa
-
section 158(1)(h)
empowering the Labour Court
to hear and determine applications to review any decisions taken or
acts performed by the State in
its capacity as employer –
However  Labour Court should not have entertained the matter in
circumstances where the Minister’
intervention was not first
sought and the Minister was not joined in the proceedings before the
Labour Court
Locus
standi
–
broader
approach applicable as developed by the Constitutional Court in
public law matters– The determination of the
locus
standi
should take into account among others the provisions of
section 200
of the LRA; the provisions of
sections 54A(8)
and (9)of the Municipal
Systems Act; and the nature of the relief sought-  Sections
54A(8) and (9) oblige the MEC to take
steps to enforce compliance
with the Act if there has been no compliance and the Minister having
a similar obligation if the MEC
fails to take appropriate steps -
evidence showing that Minister neither cited as party nor afforded
opportunity to address the
alleged irregular appointment - relief
sought and granted by the Labour Court could only have been granted
if the Minister refused
or failed to act and only if the Minister was
made aware of the non-compliance with the Systems Act. Requirements
to exhaust internal
remedies by applicant not followed –
unsuccessful candidates not having
locus
standi
to set aside the appointment. Appeal upheld.
Minority judgment (Makgoka AJA): Appeal to be dismissed, despite
the Minister’s non-joinder, because the Minister will be
obliged to apply for the setting aside of the appointment and the
Court approached by the Minister would be obliged to grant such
an
order given the irregularity in making the appointment. In order to
save costs and time the appeal ought to be dismissed and
the order of
the Labour Court should be allowed to stand.
Coram:
Tlaletsi
DJP, Coppin JA and Makgoka
AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal, with the necessary leave, against the judgment of
the Labour Court (Lallie J) in favour of the respondents,
and in
terms of which the appellant’s appointment of Mr Nhlanla Mabaso
(“
Mr
Mabaso
”)
[1]
as its Municipal Manager, was declared null and void and reviewed and
set aside on the basis that Mr Mabaso was not suitable for
such
appointment. The appellant was ordered to pay the costs of the
application in the court
a
quo
.
[2] There are three major issues for
determination in this appeal. Firstly, the power and jurisdiction of
the Labour Court to entertain
and determine the matter, secondly, the
locus standi
(i.e. standing) of respondents in this appeal,
i.e. the applicants in that court, and lastly, whether the Labour
Court was correct
in its finding on the merits.
[3] The following facts are not
disputed and are essentially common cause. From about the year 2000
until he applied for the position
of Municipal Manager at the
appellant, Mr Mabaso was the Municipal Manager of Sisonkhe District
Municipality (“
Sisonkhe
”).
[4] Immediately before his appointment
to Sisonkhe, Mr Mabaso was employed in the Department of Local
Government and Traditional
Affairs. He holds a Bachelors Degree in
Administration which he obtained in 1984 and an Honours Degree in
Administration which
he obtained in 1989.
[5] Mr Mabaso applied for the position
of Municipal Manager at the appellant and was interviewed for the
position by a selection
panel of the appellant on 15 March 2012 and
appointed to that position by the appellant on the recommendation of
the panel.
[6] Mr Mabaso was one of five
candidates interviewed for the position of Municipal Manager and the
panel used the same list of prepared
questions for each of the
candidates, allocating scores in respect of each one. Mr Mabaso was
given the highest score and was thus
selected as the candidate for
appointment as Municipal Manager.
[7] On 20 March 2012, the respondents
brought an urgent application in the Labour Court to interdict the
appellant from appointing
Mr Mabaso as Municipal Manager pending the
review and setting aside of its decision to appoint him to that
position.
[8] On 30 April 2012, the Labour Court
granted an order interdicting Mr Mabaso from assuming the position of
Municipal Manager of
the appellant.
[9] In their review application in the
court
a quo
, the respondents not only cited the appellant as a
respondent, but also cited Mr Mabaso and the MEC for Local
Government: Gauteng,
as the second and third respondents,
respectively. The respondents sought an order in the following terms
in the court
a quo
:
9.1
Reviewing
the decision of the appellant to appoint Mr Mabaso as Municipal
Manager;
9.2
Declaring
that Mr Mabaso is not suitable for appointment and that he does not
meet the prescribed requirements for appointment as
Municipal Manager
in terms of section 54A(4) of the Local Government:  Municipal
Systems Act
[2]
(“the Systems Act”);
9.3
Declaring
that the conduct of the appellant in employing Mr Mabaso, as
aforesaid, “
is
invalid, irrational and unconstitutional
”;
9.4
Setting
aside Mr Mabaso’s appointment;
9.5
Alternatively
to the relief  in subparagraph 9.4, directing the appellant to
reconsider the appointment of Mr Mabaso “
with
due regard to the report of the Auditor-General in relation to the
Sisonkhe Municipality for the period ending 30 June
2011
”;
9.6
Ordering
the appellant (as well as Mr Mabaso and the MEC) to pay the costs of
the application in the event of opposition.
[10]
The second respondent deposed to the founding affidavit on behalf of
the applicants in the court
a
quo
(i.e.
the respondents on appeal). The first respondent (i.e. SAMWU), is a
registered trade union. It is not disputed that, at all
relevant
times, the second respondent was an employee of the appellant and a
member and shop steward of SAMWU. He was further resident
at all
material times within the municipal boundaries of the appellant, a
local authority established in terms of the Constitution
of the
Republic of South Africa, 1996 (Constitution), read with the Local
Government: Municipal Structures Act.
[3]
[11] It was also not disputed that in
2010 and 2011, while Mr Mabaso was the Municipal Manager of Sisonkhe,
the Auditor-General
submitted reports to the Provincial Legislature
of KwaZulu-Natal concerning Sisonkhe, and which also dealt with the
role, duties
and responsibilities of the accounting officer of that
municipality, who, at the time, by virtue of his position as
Municipal Manager,
was Mr Mabaso.
[12]
In the audit report dated 30 November 2011,
inter
alia
,
the following opinions regarding the shortcomings of the municipality
and specifically of the accounting officer are expressed:
[4]
12.1
Generally
the financial statements present fairly, in all material respects,
the financial position of Sisonkhe as at 30 June 2011
and its
financial performance and its cash flows for that year, in accordance
with the South African standards of Generally Recognised
Accounting
Practice (“GRAP”), the requirements of the Local
Government: Municipal Finance Management Act (“MFMA”)
and
the
Division of Revenue Act
(“DORA”);
12.2
(In
respect of the procurement and contract management) that the
accounting officer did not enter into formal written contracts
with
suppliers as required in terms of
section 116(1)
of the MFMA;
12.3
(In
respect of the annual financial statements) that the financial
statements submitted for auditing were not prepared in all material

respects in accordance with the requirements of
section 122(1)(a)
of
the MFMA. That material misstatements to property, plant and
equipment, general expenditure, liabilities and other disclosure

items were identified by the auditors and subsequently corrected;
12.4
(Re
expenditure management) that the accounting officer did not take
reasonable steps to prevent irregular expenditure as required
by
section 62(1)(d)
of the MFMA;
12.5
(Re
budgets) that the municipality incurred expenditure that was not
budgeted for and in excess of the limits of the amounts provided
for
in the votes in the approved budget and in contravention of
section
15
of the MFMA;
12.6
That
the accounting officer did not meet the requirements of
section 46(3)
of the MFMA before committing the municipality to long-term debt;
12.7
(Re
leadership) that the municipality and the accounting officer did not
exercise adequate oversight over the compliance with relevant
laws
and regulations;
12.8
(Re
financial and performance management) that the accounting officer and
Chief Financial Officer had not developed and implemented
a
compliance check-list;
12.9
That
the accounting officer did not implement controls to ensure that
documents and records such as schedules and reconciliations,

supporting the performance report, were properly filed and easily
retrievable and were available for audit purposes.
[13] In general, the report of 2011 of
the Auditor-General mentions that at the time there was “
significant
pressure on the municipality’s liquidity ratio and financial
sustainability
” and that those factors contributed to
significant doubt about the municipality’s ability to operate
as a going concern.
Under the heading “Irregular Expenditure”,
it was, for example, recorded that irregular expenditure amounting to
R351,9
million was incurred due to contracts being awarded to
suppliers who contravened the municipal supply chain management
regulations.
Under the heading “
Unauthorised Expenditure
”,
it is,
inter alia,
recorded that unauthorised expenditure
amounting to R65,1 million was incurred as the municipality had
acceded (exceeded) the limits
of the amounts provided in the approved
budget.
[14] In a previous report dated 30
November 2010, the Auditor-General, made similar comments. In that
report, the unauthorised expenditure
amounted to R9,172 million;
fruitless and wasteful expenditure amounted to R1 594 million and
irregular expenditure amounted to
R5,725 million. Regarding the
accounting officer, the following is specifically recorded, namely,
that the accounting officer did
not exercise adequate oversight
responsibility in respect of compliance with the MFMA and reporting
regarding supply chain management
and predetermined objectives.
[15] It is common cause that the
selection panel did not canvass the aforementioned Auditor-General’s
reports with Mr Mabaso
prior to his selection, and neither did they
take them into account in determining whether Mr Mabaso was a
suitable candidate for
appointment to the position.
[16] The Labour Court heard the review
application and handed down judgment in the respondents’ favour
on 10 May 2013.
[17] The Labour Court, in essence,
held that
section 54A(2)
, read with
section 55(2)
and section
54A(4)(b) of the Systems Act, makes it clear that for appointment as
Municipal Manager, the appointee must possess
adequate knowledge and
ability to perform the statutory duties of Municipal Manager; that
the only inference to be drawn from the
Auditor-General’s
reports for 2010 and 2011 was that Mr Mabaso was not “
suitable
”
to be appointed as Municipal Manager of the appellant. The court held
that section 54A(3) of the Systems Act plainly, rendered
void the
appointment of an unsuitable person to that position and that the
respondents had shown that Mr Mabaso was not suitable
for the
position; that the appellant’s process in making the
appointment was defective, because it, in essence, omitted the

canvassing of the said Auditor-General’s reports with Mr
Mabaso. Further, that the appellant did not act rationally in making

the appointment, because it disregarded “
material, reliable
and available information
” which was relevant to the
suitability of Mr Mabaso and that the appointment of Mr Mabaso in
those circumstances was unreasonable
and irrational.
[18] Against that background, I shall
now deal with the issues in turn.
The jurisdiction of the Labour
Court
[19] The appellant challenged the
Labour Court’s jurisdiction. I shall traverse the arguments
raised in this Court in that
regard briefly, because counsel for the
appellant, in my view, correctly conceded that the Labour Court had
jurisdiction.
[20]
In brief, the Labour Court held that it had jurisdiction to determine
the review application in terms of section 158(1)(h)
of the Labour
Relations Act
[5]
(“
the
LRA
”)
which provides that the Labour Court has the power to “
review
any decision taken or any act performed by the State in its capacity
as employer on such grounds as are permissible in law
”.
[21]
In this Court, the respondents submitted that the Labour Court was
correct. Furthermore, that this Court in
Hendricks
v Overstrand Municipality,
[6]
held that the Labour Court has the power to review any decision taken
by the State in its capacity as employer on any grounds that
are
permissible in law in terms of section 158(1)(h) of the LRA if there
is no other remedy available. Elaborating on the point,
it was
submitted on behalf of the respondents that the appellant’s
decision to appoint Mr Mabaso as its Municipal Manager
was “
clearly
a decision taken by an organ of state in its capacity as employer
”
and that if a peremptory statutory requirement was not complied with,
the decision could be set aside on review, even if
the decision did
not amount to “
administrative
action
”
as envisaged in the Promotion of Administrative Justice
Act
[7]
(“PAJA”),
on the basis of the legality principle in the Constitution.
[22]
For the latter submission, the respondents relied on the
Constitutional Court’s decision in
Fedsure
Life Insurance Ltd v Greater Johannesburg Transitional Metropolitan
Council.
[8]
According to the respondents, there is no other legislative remedy
available to them in which case the Labour Court has the necessary

jurisdiction in terms of section 158(1)(h) of the LRA.
[23]
Before conceding that the Labour Court had jurisdiction, counsel for
the appellant submitted that the Labour Court’s
finding that it
had jurisdiction in terms of section 158(1)(h) of the LRA was
erroneous, because the provisions of that section
were “
not
designed to confer jurisdiction, but simply to delineate the relief
that can be granted in circumstances where jurisdiction
is
pre-existing
”.
According to the appellant, section 157(1) of the LRA gives the
Labour Court exclusive jurisdiction in respect of all matters
that
elsewhere in terms of the LRA, or any other law, are to be determined
by the Labour Court and that the only court that has
jurisdiction to
determine infringements of the operative section of the Systems Act,
is the High Court. In support of the latter
submission, the
appellant’s counsel relied on the Labour Court’s
decisions in
Natal
Sharks Board v SACCAWU (Natal Sharks Board)
[9]
and
Moropane
v Gilbeys Distillers and Vintners Ltd (Moropane),
[10]
as well as the Supreme Court of Appeal’s decision in
Legal
Aid Board v Jordaan.
[11]
[24] As far as the first argument of
the appellant is concerned, there is indeed a subtle distinction
between jurisdiction and a
mere power. In sections 157 and 158 of the
LRA, these concepts are apparently also dealt with separately. The
subject of section
157 appears
prima facie
to be about the
“
jurisdiction of the Labour Court
”, while the
subject of section 158 appears to be, as the section reads, about
“
the [p]owers of the Labour Court
”.
[25]
However, it is clear from case authority that the word “
jurisdiction
”
has a number of meanings and has been used in different contexts to
describe the competence of a body or person to act in
a particular
instance. In relation to courts, it primarily means “
the
power or competence of a court to hear and determine an issue between
the parties
”.
[12]
[26]
The Labour Court is a superior court similar and equal in status to
the High Court in respect of matters falling within its
jurisdiction.
It is also a specialist court.
[13]
[27]
Section 151 of the LRA provides that the Labour Court “is a
superior court that has authority, inherent powers and standing,
in
relation to matters under its jurisdiction, equal to that of a
provincial division of the Supreme Court (now the High Court).
The
“inherent powers” are the powers equal and similar to
those of the High Court to do anything in respect of matters
under
its jurisdiction which the law does not forbid.
[14]
[28]
There are a number of provisions in the LRA which deals with the
jurisdiction of the Labour Court.
[15]
Section 157 is, however, regarded as the primary provision in the LRA
which deals with the Labour Court’s jurisdiction.
[29] Section 157(1) is more of a
confirmatory and reference section. It is not itself a primary source
of jurisdiction. Instead,
it confirms that the Labour Court has
jurisdiction in matters where the Labour Court has exclusive
jurisdiction in terms of the
LRA. It also confirms that the Labour
Court has jurisdiction where other legislation provides that a matter
has to be determined
by the Labour Court. Its main purpose, as
derived from its wording within the context of the entire section
157, appears to be
to delineate those instances in which the Labour
Court would have exclusive jurisdiction. Section 157(2), on the other
hand, delineates
those instances where the Labour Court would have
concurrent jurisdiction with the High Court.
[30] Section 157(1) directs the reader
of that section to the sources of the Labour Court’s exclusive
jurisdiction, albeit
in very vague and general terms. It does not
refer to specific sections in the LRA, but suggests that they are to
be found elsewhere
in that Act. As a result, the interpreter is
saddled with the difficult task of having to, for example,
distinguish purely jurisdictional
provisions from general empowerment
provisions. This difficulty is exacerbated by sections which purport
to contain mere empowerment
provisions, whereas they, on proper
construction, also actually contain provisions which are sources of
the Labour Court’s
jurisdiction.
[31] Section 158 is such a section.
Its introductory wording specifically states that it deals with the
powers of the Labour Court.
Because the introductory words of the
previous section, that is section 157, states that it deals with the
jurisdiction of the
Labour Court, the immediate expectation is that
section 158 is not a source of jurisdiction, but merely contains
provisions defining
the powers of the Labour Court in respect of
matters, which, in terms of some other provision in that Act, falls
under the jurisdiction
of the Labour Court. However, a close reading
of the entire section 158 dispels that initial notion. It does deal
with powers (post
jurisdiction), but also with powers, which cannot
but be construed and understood as sources of jurisdiction.
[32] This is abundantly clear if, for
example, section 158(1)(a), which deals with the kind of relief the
Labour Court may order
in respect of a matter under its jurisdiction,
is compared and contrasted with section 158(1)(i), which provides
that the Labour
Court may “hear and determine any appeal in
terms of section 35 of the Health and Safety Act,1993 (Act No. 85 of
1993)”.
[33] Section 158(1)(a) is clearly an
example of the powers the Labour Court may exercise in respect of a
matter falling within its
jurisdiction, and it does not purport to
grant the Labour Court jurisdiction, in the sense of the power to
hear and determine the
matter in the first place. On the other hand,
section 158(1)(i) clearly bestows on the Labour Court jurisdiction in
the latter
sense.
[34]
Some Courts still seem to treat all the disparate provisions of the
section as if they were the same, namely, as powers the
Labour Court
may exercise in respect of matters which are under its jurisdiction,
while section 157 is regarded as the source of
jurisdiction.
[16]
This Court has construed the provisions of section 158, for example,
section 158(1)(h), as a source of jurisdiction, empowering
the Labour
Court to hear and determine applications to review any decisions
taken or acts performed by the State in its capacity
as employer, and
to do so on such grounds as are permissible in law.
[17]
[35]
A proper reading
[18]
of section 157 makes it clear that other provisions of the LRA
are sources of jurisdiction of the Labour Court and section
158 is
not excluded as a possible source.
[36] Section 158(1)(h) of the LRA
refers to a jurisdictional power of the Labour Court. It specifically
provides that the Labour
Court “
may review any decision
taken or any act performed by the State
”. The only way the
Labour Court is able to review is by hearing and determining an
application for review of the acts and/or
decisions contemplated in
section 158(1)(h). That section should be read as not only conferring
a power, but also jurisdiction
upon the Labour Court.
[37] In my view, decisions in matters
such as the
Natal Sharks Board,
in so far as they suggest the
contrary, are clearly wrong. The view expressed in
Moropane,
that
the mere fact that a body or forum has the power does not mean it has
jurisdiction, is correct, but the appellant’s reliance
on that
decision is misplaced. So is its reliance on the decision in
Legal
Aid Board v Jordaan
.   Those matters are clearly
distinguishable.
[38]
The Labour Court is not precluded by the LRA from reviewing the
decisions and acts contemplated in section 158(1)(h). It has
the
power (and jurisdiction) to review them on any grounds “
permissible
in law
”.
Permissible grounds in law would include the constitutional grounds
of legality and rationality
[19]
and, if they constitute “administrative action”, on the
grounds that are stipulated in PAJA, which is the legislation
giving
effect to the rights contained in section 33 of the Constitution. The
appellant is an “organ of state” as defined
in section
239 of the Constitution and its powers and duties are of a public
nature. The appointment of a Municipal Manager involves
the exercise
of public powers derived from the Systems Act and constitutes a
decision, or decisions, or conduct, by the State in
its capacity as
employer.
[39]
In the circumstances, the Labour Court had jurisdiction to hear and
determine the application for the review and setting aside
of the
appointment of Mr Mabaso as a Municipal Manager. However, because the
respondents did not petition and involve the Minister
and furnish no
reasons for not doing so, the Labour Court ought to have exercised
its discretion not to entertain the matter in
those circumstances.
The respondents arguably had a duty, which is implied in section 54A
of the Systems Act to seek the Minister’s
involvement, akin to
a duty to exhaust domestic remedies. The duty has the effect of
delaying the respondents’ access to
curial remedies.
[20]
This aspect is discussed further below.
Standing
of the respondents
[21]
[40] The appellant also submitted that
the respondents did not have the necessary
locus standi
to
bring the review proceedings in the Labour Court.
[41] The court
a quo
held that
a purposive interpretation of section 200 of the LRA “
allows
”
the respondent union (“
SAMWU
”) to bring the review
on behalf of its members. Furthermore, the court
a quo
held
that on a proper reading of the LRA, it is clear that the role of a
trade union is “
wide
”. As an example, the court
a
quo
cited section 77 of the LRA which grants trade unions the
right to call for and engage in protest action to promote or defend
the
socio-economic interests of employees (i.e., its members). The
court
a quo
thus concluded on this point, “
it is in
the same spirit that they should be allowed to approach this Court to
stop the government as an employer from acting illegally
”.
[42]
Counsel for the appellant submitted that section 200 of the LRA was
not applicable because it permits a trade union to enforce
its rights
in terms of the LRA, to act as a representative of its members and to
enforce their rights and justiciable interests
in terms of the LRA.
Counsel relied on a
dictum
in
Financial
Services Board and Others v De Wet and Others,
[22]
that “
the
sufficiency of a claimant’s interest for the purposes of locus
standi is generally gauged with reference to the purpose
of the
prohibition
”
and further, that if a claimant is unable to show “
some
special damage or peculiar injury beyond that which he may be
supposed to sustain and common with all other members of the
public
…
”
he or she or it does not have the necessary
locus
standi
.
Counsel for the appellant submitted further that the respondents,
i.e. SAMWU and its members, do not have any interest beyond
the
interest of the general public and as a result lacked the necessary
locus
standi
.
[43]
Counsel for the appellant further relied on the judgment in
Kwanobuhle
Town Council v Andries and Others,
[23]
for the contention that the existence of
locus
standi
depends on the scope of the remedies that are envisaged by the
enactment itself, and submitted that sections 54A(8) and 54A(9)
of
the Systems Act provided the necessary remedies where a person was
appointed as Municipal Manager in contravention of section
54A.
[44] In terms of section 54A(8), the
MEC for Local Government is obliged to take appropriate steps to
enforce compliance with section
54A, which may include bringing an
application to court for a declaratory order concerning the validity
of the appointment, or
the taking of any other legal action against
the Municipal Council. In terms of section 54A(9), if the MEC fails
to take such appropriate
steps, the Minister is empowered to do so.
Accordingly, so appellant’s counsel submitted, in terms of
section 54A itself,
the respondents had no
locus standi
to
challenge the validity of the appointment of Mr Mabaso, since the
section empowered the MEC, failing which the Minister, to
mount such
a challenge regarding the appointment.
[45] The respondents’ counsel
submitted that the second respondent, Mr Nqaba, like many other
members of the first respondent
(i.e. SAMWU), lived within the area
that is served by the appellant municipality. Further, that it could
not be argued that residents
of that area did not have “
an
actual, direct interest
” in the appointment of the
Municipal Manager and in particular in the fact that the person
appointed to that position, was
a suitable person as required by the
Systems Act.
[46] Counsel for the respondents
further submitted that it could not be contended that the residents
of the area served by the appellant
had the same interest as that of
the general public. As residents (and employees), they would be
directly affected if an unsuitable
person was appointed as a
Municipal Manager.
[47] According to the respondents’
counsel – subsections 54A(8) and (9) do not deprive or deny any
other persons with
an interest in the matter “
from
exercising the right to review
” with regard to the
appointment of the Municipal Manager. The respondents, in conclusion,
submitted that the court
a quo’s
finding that they did
have
locus standi
was unassailable.
Discussion
[48]
In terms of the common law, particularly in the private law context,
a plaintiff or applicant was required to have a direct
interest in
the remedy sought and could not challenge the legality of
administrative action in the absence of such a direct (or

substantial) interest.
[24]
The same principle was also applied in the public law context.
However, the common law approach is regarded as too technical,
formalistic and narrow for application, particularly, in the public
law context.
[25]
[49]
In the Interim Constitution (1993) and the final Constitution (1996),
standing is specifically dealt with. The approach to
standing adopted
by the Constitutional Court has been less formalistic and technical
and more emphasis was placed on the court’s
discretion to
determine whether there was sufficient interest in light of the
circumstances of every particular case. In
Ferreira
v Levine NO and Others: Vryenhoek v Powell and Others (Ferreira),
[26]
Chaskalson
P preferred a broader approach as opposed to the more technical
approach. Chaskalson P held that it was for the court
to decide what
a sufficient interest was in light of the circumstances of the
matter. O’Regan J in that same matter mentions
some factors and
circumstances that would have to be considered in determining whether
an applicant was genuinely acting in the
public interest in bringing
a constitutional challenge. Amongst such factors are “
whether
there is another reasonable and effective manner in which the
challenge can be brought; the nature of the relief sought
and the
extent to which it is of general and prospective application, and the
range of persons or groups who may be directly or
indirectly affected
by an order made by the court and the opportunity that those persons
or groups have had to present evidence
and argument to the
court
”
[27]
.
[50]
In
Vulindlela
Furniture Manufacturers (Pty) Ltd v MEC
,
Department
of Education and Culture, Eastern Cape and Others,
[28]
the court held that a broad flexible approach should be assumed in
establishing whether an applicant who challenges administrative

action (alleging it is unlawful), has sufficient interest. The court,
in determining whether the applicant had
locus
standi,
also took into account (
inter
alia
)
the provisions of the statutes and directives at issue and the
question whether they create any rights and duties for the applicant,

the applicant’s source of prejudice, the importance of the
issue to be decided, and the nature of the relief applied for.
[51] The “
narrow, formalistic
approach
” is inappropriate in matters with a public
interest element or in matters of a constitutional (including
administrative law)
nature. In
Ferreira
O’Regan J
explained why this was the case:
‘
Existing
common law rules of standing have often developed in the context of
private litigation. As a general rule, private litigation
is
concerned with the determination of a dispute between two
individuals, in which relief will be specific and, often,
retrospective,
in that it applies to a set of past events. Such
litigation will generally not directly affect people who are not
parties to the
litigation.  In such cases the plaintiff is both
a victim of the harm and the beneficiary of the relief. In litigation
of
a public character, however that nexus is rarely so intimate.
The relief sought is generally forward-looking and general
in
its application, so that it may directly affect a wide range of
people.  In addition the harm alleged may often be quite
diffuse
or amorphous.’
[29]
[52] The present case is not private
litigation. It clearly has a public law character. The respondents
(applicants in the court
a quo
) effectively averred that the
application was brought in the public interest. It is for the setting
aside of the appointment, by
a State Organ, of a public
office-bearer. The second respondent, deposing to the founding
affidavit in the court
a quo,
states,
inter alia
, that
Mr Mabaso’s appointment would place “stakeholders served
by the Municipality, including external service providers,
the
community and employees at great risk”. The approach to
standing therefore should not be too technical or formalistic.
The
question whether the respondents had sufficient interest in the
matter should be left to the discretion of the court taking
into
account all relevant factors and circumstances.
[53] The respondents alleged that the
appointment of an unsuitable person holds negative (unconstitutional)
consequences, not only
for the second respondent, but for all
residents of the area served by the appellant, for its employees,
and, ultimately, for the
public at large.
[54] The court
a quo’s
consideration of standing appears to have been limited to a
consideration of section 200 of the LRA. The provision cannot be
decisive
of the question of the standing of the respondents. The
approach adopted by both sides, as is apparent from their arguments,
which
I referred to earlier, is also not appropriate. The fact that
sections 54A(8) and (9) empower the MEC and the Minister,
respectively,
to take steps to address an appointment which is not in
compliance with the Systems Act, is not decisive of the
locus
standi
of the respondents, but it is merely a factor to be
considered amongst others. Similarly, the respondents’
argument, in terms
of which they buttress the court
a quo’s
“
narrow
” approach with an argument that the second
respondent has sufficient interest because of his residence and
employment, is
reminiscent of the narrow common law approach to the
question of standing in matters of this nature.
[55] In determining the question of
the standing of the respondents, the court
a quo
ought to have
taken into account at least the following factors: the provisions of
section 200 of the LRA (particularly in considering
the question of
the first respondent’s
locus standi)
; the provisions of
section 54A of the Systems Act and particularly of sections 54A(8)
and (9); the nature of the relief sought
by the respondents; the
interest of the second respondent; the interests of others; whether
there was any other “
reasonable and effective manner
”
in which the challenge to the appointment could have been brought;
the range of persons (entities) or groups who may be
directly or
indirectly affected by an order made by the Labour Court and the
opportunity that those persons, or groups, or entities
had to make
representations to the Labour Court and the importance of the issues
raised.
[56] The provisions of section 54A,
including of sections 54A(8) and (9), even if not decisive on their
own, seem to me to be pivotal
in determining the issue of standing in
this matter. I shall therefore briefly consider these provisions
before discussing the
other relevant factors.
[57] The appellant’s counsel has
argued, in effect, that the provisions of sections 54A(8) and (9)
oust the respondents’
standing. I shall for convenience quote
the whole of section 54A here. It reads:
‘
54A.
Appointment
of municipal managers and acting municipal managers
.–
(1) The municipal council must appoint –
(a)
a
municipal manager as head of the administration of the municipal
council; or
(b)
an
acting municipal manager under circumstances and for a period as
prescribed.
(2)
A person appointed as municipal manager in terms of subsection (1)
must at least have
the skills, expertise, competencies and
qualifications as prescribed.
2A(a)
A person appointed in terms of
subsection
(1)(b
)
may not be appointed to act for a period that exceeds three 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 three months.
(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.
(4)
If the post of municipal manager becomes vacant, the municipal
council must -
(a)
advertise
the post nationally to attract a pool of candidates nationwide; and
(b)
select
from the pool of candidates a suitable person who complies with the
prescribed requirements for appointment to the post.
(5)
The municipal council must re-advertise the post if there is no
suitable candidate who complies
with the prescribed requirements.
(6)
(a)
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.
(b)
If the MEC for local government has not seconded a suitable person
within a period of sixty days after receipt of the request
referred
to in
paragraph
(a
),
the municipal council may request the Minister to second a suitable
person, on such conditions as prescribed, until such time
as a
suitable candidate has been appointed.
(7)
(a)
The municipal
council must, within fourteen days, inform the MEC for
local
government of the appointment process and outcome, as may be
prescribed.
(b)…
(c)
The
MEC for local government must, within fourteen days of receipt of the
information referred to in
paragraph
(a
),
submit a copy thereof to the Minister.
(8)
If a person is appointed as municipal manager in contravention of the
section, the MEC for
local government must, within fourteen days of
receiving the information provided for in
subsection
(7
)
take appropriate steps to enforce compliance by the municipal council
with this section, which may include an application to court
for a
declaratory order on the validity of the appointment, or any other
legal action against the municipal council.
(9)
Where an MEC for local government fails to take appropriate steps
referred to in
subsection
(8
),
the Minister may take the steps contemplated in that subsection.
(10)
A municipal council may, in special circumstances and on good cause
shown, apply in writing to
the minister to waive any of the
requirements listed in
subsection
(2
)
if it is unable to attract suitable candidates.
(11)
A person who has been appointed as acting municipal manager before
the section took effect, must
be regarded as having been appointed in
accordance with the section for the period of the acting appointment.
(12)
Any pending legal or disciplinary action in connection with an
appointment made before this section
took effect, will not be
affected by this section after it took effect.
”
[58] The section makes it plain that
the person whom the Municipal Council appoints to the position of
Municipal Manager must have
the skills, expertise, competence and
qualifications as prescribed. If the appointed person does not
possess the same, or if the
appointment is otherwise in contravention
of the Systems Act, the decision appointing the person and any
contract concluded as
a consequence of that decision, is null and
void in terms of the Systems Act.
[59] Whether a particular person
fulfils the requirements for appointment as Municipal Manager appears
to be a matter of objective
fact.
[60] The section
inter alia
requires the Municipal Council to inform the MEC for Local Government
of the appointment process and of the outcome (as prescribed).
The
MEC, in turn, is obliged to provide the Minister responsible for
Local Government with that information.
[61] It is clearly implied in section
54A(8) that the MEC has a duty to satisfy himself/herself that the
appointment process and
outcome is in compliance with the Systems
Act. That the Minister has the same duty is clearly implied in
subsections 54A(7)(b)
and 54(9). The MEC and the Minister’s
determination of compliance is not confined to a consideration of
information provided
by the Municipal Council, because the
information may not disclose, for example, that certain information,
such as in the present
case, had not been taken into account, or that
the information was not canvassed with the appointee and investigated
and properly
taken into account when the appointment was made.
[62] Therefore, in deciding whether
there has been compliance, the MEC and the Minister would have to
take all relevant information
into account, including information
provided by third parties, such as the respondents in this matter, in
deciding whether the
appointment process and the outcome were in
compliance with the Systems Act. The decision must be rational and
reasonable having
taken all information and the provisions of the
Systems Act into account.
[63] Section 54A(8) obliges the MEC to
take steps to enforce compliance with the Act if there has been no
compliance. The steps
to be taken include approaching the court for
an appropriate remedy. In terms of section 54(9), the Minister has a
similar obligation
if the MEC fails to take appropriate steps.
[64] Section 54A contains various
checks and balances to ensure compliance by the Municipal Council
with the Systems Act in appointing
a Municipal Manager. Subsections
54A(8) and (9) are ultimately internal controls.
[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.
[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 manager 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.
[68] In its application to the court
a
quo
, the respondents seemingly accepted that they had to bring
the defect in the appointment process and the consequent appointment

of an unsuitable candidate (i.e. the outcome), to the attention of
the MEC. In the founding affidavit, the second respondent, who
also
deposed to that affidavit on behalf of the first respondent in the
court
a quo,
states,
inter alia
:
‘
The
concerns expressed in this affidavit concerning the illegality of
this appointment were conveyed to the MEC in the letter dated
12
April 2012. Despite this, the MEC has failed to take the steps
envisaged by section 54(8). For this reason, the applicant has
been
left with no choice but to approach this court for relief.’
[69] The MEC was cited as the third
respondent in the application in the court
a quo
. It does not
appear from the initial papers filed that the application had been
served on the MEC. However, on the assumption that
they were, there
is nothing on record to indicate what the MEC’s position was in
respect of the application and the relief
sought by the respondents
(applicants in those proceedings), other than for what is stated in a
letter, which the appellant averred
had come from the MEC. Mr Mabaso,
seemingly, initially abided by the decision of the Labour Court, but
then went on to file a bulky
“
opposing affidavit
”
in which he,
inter alia,
explained the audit reports and
sought to justify his appointment.
[70] In a supplementary answering
affidavit filed in the court
a quo
, Mr Mogale-Letsie, the
Mayor of the appellant and deponent to that affidavit, averred that
the MEC was by letter dated 2 April
2012 informed of Mr Mabaso’s
appointment as Municipal Manager and that the MEC was satisfied with
the appointment. A copy
of the letter is attached to the
supplementary affidavit.
[71] Mr Mogale-Letsie, in fact,
elaborates that the MEC had expressed such view in a letter dated 13
April 2012, after having considered
the first respondent’s,
that is SAMWU’s, submissions regarding their concerns and that
he had found them to be without
merit.
[72] It is apparent from the
appellant’s letter dated 2 April 2012 and written by Mr
Mogale-Letsie to the MEC that he did
not inform the MEC of the
respondents’ concerns about the appointment, neither did he
inform the MEC about the Auditor-General’s
reports concerning
Mr Mabaso’s functioning in his previous position at Sisonkhe,
nor of the fact that those reports had not
been considered by the
panel or the Council before their respective decisions to appoint Mr
Mabaso as municipal manager of the
appellant.
[73]
It appears from a letter dated 13 April 2012 purporting to be
authored by the MEC,
[30]
a copy of which is attached to Mr Mogale-Letsie’s affidavit,
that a dispute by SAMWU regarding their dissatisfaction with
not
being been part of the appointment process was considered and found
to be without substance. But no reference is made in the
letter to
SAMWU’s (or the respondents’) complaint about the
appointment of Mr Mabaso, and in particular about the suitability
of
his appointment and the failure by the appellant and its interviewing
panel to canvas and take into account the contents of
the
Auditor-General’s reports of 2010 and 2011 before making the
appointment.
[74] The absence of an answering
affidavit from the MEC on this matter does not assist the appellant,
instead it lends credence
to the contention by the respondents that
their complaints to the MEC, in that regard, were ignored.
[75] Having said that, what is clearly
lacking from the respondents’ papers in the court
a quo
is a reference to the Minister. The Minister was not cited as a party
in the application in the court
a quo
and there is no
explanation at all why the respondents did not submit their concerns
to the Minister in circumstances where the
MEC, according to them,
failed to act. On their own version, when the MEC failed to take
steps in the matter they turned to the
Labour Court.
[76] This is a case where the
Minister’s intervention ought to have been sought first, and
where the Minister ought to have
been joined as a party, since the
Minister shares responsibility for the appointment of the municipal
manager and is obliged to
perform a reviewing function in respect of
such an appointment. Ultimately, it is the Minister’s action or
inaction that
is to be reviewed, if it is established that the
appointment was not in compliance with the Systems Act.
[77] Nevertheless, this failure to
involve the Minister is also crucial to the respondents’
standing, particularly also in
light of the relief they sought in the
Labour Court. The relief excludes the Minister and precludes the
Minister from exercising
his or her power in terms of section 54A(9)
of the Systems Act. There is nothing to indicate that the Minister
was aware of the
respondents’ concerns and/or refused to take
appropriate steps, in those circumstances, to enforce compliance with
the Systems
Act.
[78]
Regarding the first respondent’s power to represent the second
respondent, the provisions of section 200 of the LRA are
clear and
consistent
with the principles entitling a voluntary and statutory association,
which is a
universitas
personarum,
[31]
to act in the interests of its members.
[79] However, as I pointed out
earlier, section 200 of the LRA is not the only factor. Having
considered and balanced all the other
factors, the fact that the
Minister was not approached or cited, is in my view decisive of the
standing of both of the respondents.
In this matter the court
a
quo
ought to have found that in the circumstances the
respondents’ interests was not sufficient to accord them
locus
standi
.
[80] The court
a quo
should, in
those circumstances, have made no order in respect of the application
and, at best, should have postponed the application
with an order
that the Minister be joined as a party to the proceedings. In any
event, the relief that the respondents would have
been entitled to in
the first place, even if it was established that the Minister had
failed to act, despite knowledge of non-compliance
with the Systems
Act, is in all probability an order in the form of a
mandamus
,
compelling the Minister to take appropriate steps as contemplated in
section 54A(9) of the Systems Act to enforce compliance with
that
Act.
[81] The kind of relief sought and
granted by the court
a quo
could only have been granted in
circumstances where the Minister refused or failed to act and in
circumstances where the Minister
was made aware of the position and
non-compliance with the Systems Act was shown. The court
a quo
could not in the circumstances that pertained in this case have
reasonably found that the respondents had the necessary standing.
The merits
[82] I am going to say very little
about the merits of the challenge, particularly in circumstances
where the Minister was not given
an opportunity to address the issues
raised by the respondents.
[83] While the Auditor-General’s
reports do reflect negatively on Mr Mabaso’s skills, expertise
and, accordingly, his
suitability for the position, it is not
conclusive in that regard. Mr Mabaso made an elaborate affidavit
explaining the findings
and the steps taken to address those issues
raised by the Auditor-General in the 2010/2011 reports. At best, Mr
Mabaso’s
suitability for the position remains in contention on
the papers.
[84] However, the concession by the
Mayor of the appellant, Mr Mogale-Letsie that the panel did not
canvass the reports with Mr
Mabaso at the interview and did not
consider and take them, or any representation made by Mr Mabaso in
connection with them, into
account when making their decision on the
suitability of Mr Mabaso, seems to be a material irregularity or
defect in the appointment
process, because it may have influenced the
outcome. However, I make no definitive finding in that regard.
[85] Section 54A(9) of the Systems Act
obliges the Minister to determine whether there was compliance and to
take appropriate steps
to enforce non-compliance.
[86] In my view, in
the circumstances the appeal also ought to succeed for lack of
standing,
and,
particularly, because the Minister had not been known in the matter
and had not been given an opportunity to deal with the
issue. The
respondents are not left without remedy if the appointment is not in
compliance with the Systems Act. They may take
such further steps as
they might be advised to take in light of this judgment. I have read
the judgment prepared by my colleague,
Makgoka AJA, and I do not
agree with it insofar as it differs with the reasoning and conclusion
in this judgment. The essential
difference turns around the
interpretation of sections 54A(8) and (9) of the Systems Act. Makgoka
AJA is of the view that the only
steps the Minister can take in terms
of those provisions is court action. In my view, with respect, that
is not a correct interpretation
of those provisions and it is too
narrow. Section 54A(9) read with 54A(8) does not confine the Minister
to any particular appropriate
step. The Minister has a discretion as
to which step(s) to take in a particular instance, but it must be
appropriate in the circumstances.
If the legislature had intended to
confine the Minister to court action (as a step) the section would
not have referred to “appropriate
steps”, but to
“appropriate court action”. The wording of the sections
is clear – the steps to be taken
“may” include
legal action in the form of a declaratory order against the municipal
council concerning the validity
of the appointment or any other
(appropriate) legal action against that body.
[87] The facts and circumstances would
determine what step(s) ought to be taken. Court action for a
declaratory order may be inappropriate
and constitute unnecessary and
wasteful expenditure depending on the attitude of the municipality to
the Minister’s intervention
and the non-compliance may be
capable of being remedied or corrected without recourse to
court action. This is consistent
with the principles of co-operative
government in the Constitution, including the principle contained in
section 41(3) of the Constitution
that “[
a]n organ of state
involved in an intergovernmental dispute must make every reasonable
effort to settle the dispute by means of
mechanisms and procedures
provide for that purpose, and must exhaust all other remedies
before it approaches a court
to resolve the dispute
.”
Further, in my view it is, with respect, not appropriate at this
stage and in the circumstances of this case to assume
how the
Minister has or may exercise the discretion conferred upon him in
terms of sections 54A(9) read with section 54A(8) of
the Systems Act,
and to decide the matter in anticipation of the actual steps the
Minister would, in our view, have to take.
[87] Regarding costs, I am of the view
that taking all factors into account, there should be no order as to
costs, which effectively
means that each party would bear its own
costs.
[88] In the result:
88.1     The
appeal is upheld.
88.2     The order
of the court
a quo
is set aside and is replaced with the
following order:
“
The
application is dismissed.”
_________________
P Coppin
Judge of the Labour
Appeal Court
Tlaletsi
DJP concurs in the judgment of Coppin JA
.
(Makgoka AJA prepared a separate dissenting judgment).
MAKGOKA AJA
[89] I
have read the judgment of my colleague, Coppin JA, in which the
Deputy Judge President concurs (the majority judgment). I
agree with
most of the conclusions reached there - with regard to the
locus
standi
of the respondents, especially that a broader approach
should be adopted in that regard; as well as the jurisdiction of the
Labour
Court to determine the issue between the parties. Regrettably,
I disagree with the conclusion reached by the majority that the
appeal should be upheld. In my view the appeal should be dismissed.
[90]
The facts have been set out extensively in the
majority judgment, and therefore need not be repeated here.
The
gravamen
of the respondents’ case before the Labour Court was that Mr
Mabaso was not a suitable person to be appointed a municipal
manager
of the appellant municipality, regard being had to the provisions of
the Local Government: Municipal Systems Act 32 of
2000 (the Act). In
particular, the respondents relied on s 54A(2) of the Act, which
provides the basic requirements an incumbent
should meet for the
office of municipal manager. Such a person must at least have the
skills, expertise, competencies and the prescribed
qualifications.
[91]
The respondents contended that Mr Mabaso lacked
the requirements demanded in the section. For this contention, they
rellied mainly
on the report of the auditor-general issued in
November 2011, in respect of the management and financial affairs of
Sisonke district
municipality in the province of KwaZulu-Natal, for
the period ending 30 June 2011. Mr Mabaso was the municipal manager
during the
relevant period covered by the report. In the report, the
auditor-general expressed the following opinions:
1.
There were significant pressures on the municipality’ s
liquidity ratio
and financial sustainability and this could cast
doubt as to the ability of the municipality to operate as a going
concern;
2.
The municipality had incurred ‘irregular expenditure amounting
to R351,9
million as a result of contract awarded to suppliers which
contravened
Municipal Supply Chain Management Regulations. Among
others, it was pointed out that Mr Mabaso had failed to enter into
formal contracts with suppliers, and that he did not take reasonable

steps to prevent irregular expenditure;
3.
Mr Mabaso did not meet the requirements of s 46(3) of the Municipal
Financial
Management Act before committing the municipality to long
term debt. He also failed to investigate unauthorized and irregular
expenditure
which was incurred in the previous year;
4.
Mr Mabaso and the municipal council did not exercise adequate
oversight over
the compliance with relevant laws and regulations. Mr
Mabaso, in particular, as municipal manager, had failed to implement
controls
to ensure that documents and records are filed properly and
easily retrievable and available for audit purposes.
[92]
The auditor-general noted that some of the problem areas had been
identified during the previous year, 2010, and had been brought
to
the attention of the municipality when the 2010 report was finalised.
The only conclusion would be that Mr Mabaso failed to
address the
concerns highlighted by the auditor-general.
[93]
The respondents argued that the appellant municipality acted
irrationally by not considering the past performance of Mr Mabaso
in
his capacity as the municipal manager of the Sisonke municipality,
and in particular, the report of the auditor-general. Any

consideration of the suitability of Mr Mabaso could not rationally
take place without taking into account the contents of that
report.
Although the report was not before the selection panel, the
respondents argue that Mr Mabaso was duty bound to bring the

`contents of the report to the committee. By failing to do so, Mr
Mabaso, according to the respondents, acted without integrity,
which
is further evidence of his lack of suitability for the job.
[94]
My colleague concludes that because only the MEC
of Local Government, and not the Minister of Local Government and
Co-operative
Governance (the Minister) was involved in the process
after the appointment of Mr Mabaso, the respondents should have been
non-suited
in the Labour Court. That process is set out in ss 7, 8
and 9 of the Act, which provide:
‘
(7)(a)
The municipal council must, within fourteen days (after the
appointment of the municipal manager) inform the MEC for
local
government of the appointment process and outcome, as may be
prescribed.
(b)
The MEC for local government must, within fourteen days of receipt of
the information referred to in paragraph (a), submit a
copy thereof
to the Minister.
(8)
If a person is appointed as municipal manager in contravention of the
section, the
MEC for local government must, within fourteen days of
receiving the information provided for in subsection (7) take
appropriate
steps to enforce compliance by the municipal council with
this section, which may include an application to court for a
declaratory
order on the validity of the appointment, or any other
legal action against the municipal council.
(9)
Where an MEC for local government fails to take appropriate steps
referred to subsection
(8), the Minister may take the steps
contemplated in that subsection.’
[95]
The majority judgment does not seriously join issue with the
contentions by the respondents that it was irrational and irregular

for the appellant municipality to consider the appointment of Mr
Mabaso without regard to his past performance as a municipal manager

of Sisonke municipality. The only basis on which the respondents are
non-suited is the fact that the Minister was not informed
of the
appointment, and therefore, he or she had not had the opportunity to
exercise the powers as set out in s 54A(8) read with
s 54A(9) of the
Act, as set out above.
[96]
But with respect to my colleague, those sub-sections do not say that
no other person may approach the court for the necessary
relief if a
municipal manager has been appointed in contravention of the Act. It
is instructive that s 54A(8) specifically makes
mention of only legal
action as a remedy available to either the MEC or the Minister to
reverse an appointment and enforce compliance
with the Act. That much
is clear from the use of ‘application to court’ and ‘any
other legal action’. One
is therefore left in no doubt as to
the fact that only judicial intervention is envisaged to remedy an
irregular appointment.
[97]
There is no room for any other form of remedy. Indeed, I fail to see
what other option could conceivably be available, other
than legal
action, to reverse an appointment in contravention of the law. The
MEC or the Minister has no residual discretion to
condone such an
appointment under any circumstances. He or she must approach the
court for the setting aside of the appointment.
On the acceptance of
that proposition, if the MEC or the Minister approaches the court for
that purpose, the same purpose would
be served if interested parties,
like the respondents, take the initiative. What is important is that
an illegality should be reversed.
For that reason, it does not really
matter if it is at the instance of the MEC or the Minister, or an
interested party. There is
nothing in the text of the section to
suggest that an interested party is barred from approaching the court
before the MEC or the
Minister exercise the powers envisaged in s
54A(8). This is a totally different situation from where a party is
required to exhaust
internal remedies before approaching the court.
[98]
It is clear from the facts that the appointment of Mr Mabaso was in
contravention of the Act, for all the reasons the respondents
have
placed before the Labour Court. It does not assist the appellant
municipality that Mr Mabaso, in these proceedings, deposed
to a
lengthy affidavit seeking to deal with the contents of the
auditor-general’s report. This is not the time, nor the forum.

If he was candid, he should have done so before the selection panel
that interviewed, and appointed, him as the municipal manager.
To
seek to do it here is all in vain.
[99]
My colleague concludes that the appeal should be dismissed to allow
the Minister to investigate the issue of non-compliance,
and to
decide what to do in the event of non-compliance. In the unlikely
event of the Minister endorsing the appointment, the respondents
are
likely to approach the court, on the same papers, for the same
relief. If the Minister shares the respondents’ concerns,
he or
she has to take legal action to set aside the appointment. Either
way, the Labour Court or the High Court would be seized
of the
matter.  As I indicated earlier, the contravention of s 54A is
plain from the facts, and has been overwhelmingly established.
As a
result, the outcome of the legal action by the Minister is a foregone
conclusion, with the result that, whichever court hears
the
application, would set aside the appointment of Mr Mabaso, just as
the Labour Court did. That would amount to a proliferation
of legal
proceedings and a waste of judicial resources.  For these
reasons,
I conclude that the Labour Court was
correct in upholding the respondents’ contentions.
Accordingly, I would dismiss
the appeal
with costs.
_______________
TM Makgoka AJA
APPEARANCES
FOR THE APPELLANT:
Adv E S J van Graan
Instructed by De Swart Vogel Myambo
Attorneys
FOR THE RESPONDENTS:
Adv J G van der Riet SC
Instructed by K D
Maimane Inc
[1]
Who
had been cited as the second respondent in the court
a
quo
.
[2]
Act
No 32 of 2000.
[3]
Act
No 117 of 1998.
[4]
In
the audit report, it is recorded that the accounting officer is
responsible for the preparation and presentation of financial

statements in accordance with the South African Standard of
Generally Recognised Accounting Practice (SA Standards of GRAP) and

the requirements of the Local Government: Municipal Finance
Management Act of South Africa, 2003 (Act No 56 of 2003) (“
MFMA
”),
the
Division of Revenue Act of South
Africa, 2010 (Act No 1 of 2010)
(“
Dora
”)
and for such internal controls as management determines necessary to
enable the preparation of financial statements that
are free from
misstatement, whether due to fraud or error.
[5]
No
66 of 1995.
[6]
[2014]
12 BLLR 1170
(LAC) paras 9-29.
[7]
Act
No 3 of 2000.
[8]
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 56-59.
[9]
[1997]
8 BLLR 1032
(LC) at 1035.
[10]
[1997]
10 BLLR 1320
(LC) at 1323.
[11]
(2007)
28 ILJ 825 (SCA) para 8.
[12]
See
inter
alia Graaff-Reinet Municipality v Van Ryneveld’s Pass
Irrigation Board
1950 (2) SA 420
(A) and
Gcaba
v Minister of Safety and Security
2010
(1) SA 238
(CC) at 263 para 74.
[13]
See
Langeveldt
v Vryburg Transitional Local Council and Others
[2001] 5 BLLR 501
(LAC) at 505 B-F para 8.
[14]
For
the meaning of “inherent powers” of the Supreme Court,
now the High Court- see Herbstein & Van Winsen’s
‘
The
Civil Practice of the Supreme Court of South Africa
”
(4
th
edit) Van Winsen, Cilliers, Loots (edit. M Dendy) pp 37-40.
[15]
See
for eg. Sections 9(4); 56(5) and (6); 59-61 (inclusive);
66(3),(4),(5),(6); 67(3); 69(11); 77(2), 103; 104; 105;
191(5)(b)(i)-(iv);
191(6) and  item 2(1)(a) of Schedule 7 of
the LRA.
[16]
See
for .example the recent decision of the Supreme Court of Appeal in
Motor
Industry Staff Association v Macun No and others
[2015] ZASCA 190
(30 November 2015).
[17]
See
for eg.
Public
Servants Association of South Africa obo De Bruin v Minister of
Safety and Security and another
(2012) 33 ILJ 822 (LAC) paras 30- 32;
MEC,
Department of Health: Western Cape v Weder
(2014)
35 ILJ 2131 (LAC) para27. In
SACCAWU
v Speciality Stores Ltd
[1998] 4 BLLR 352
(LAC) para30 the court (per Froneman DJP, Myburgh
JP and Kroon JA concurring) described sections 157 and 158 of the
LRA as jurisdictional
provisions which granted the Labour Court
general jurisdictional powers and were designed to give the Labour
Court the necessary
jurisdiction to deal with residual matters not
specifically dealt with in the LRA.
[18]
This
also means that the provisions being considered must be interpreted
in accordance with
section 3
of the
Labour Relations Act, No. 66 of
1995
,, and more particularly so as to give effect to the primary
objects of that Act, in compliance with the Constitution,1996 and in

compliance with the Republic’s public international law
obligations.
[19]
See
and compare
Hendricks
v Overstrand Municipality (supra)
at para 21.
[20]
For
a discussion of the duty to exhaust internal remedies, see Cora
Hoexter
Administrative
Law in South Africa
(Juta 2012) pp478-482 and the authorities cited there.
[21]
The
terms “standing” and “
locus
standi
”
are used interchangeably in the judgment.
[22]
2002
(3) SA 525
(C) at para 144.
[23]
1988
(2) SA 796
(SEC) at 800-801.
[24]
See
inter
alia
Jacobs
en ‘n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 534B-C; and
Cabinet
of the Transitional Government for the Territory of South West
Africa v Eims
1988
(3) SA 369 (A).
[25]
For
a discussion of the issue, see, i
nter
alia
,
JR De Ville
Judicial
Review of Administrative Action in South Africa
(Revised First Edition) (Lexis Nexis-Butterworths 2005) pp399
et
seq.
[26]
1996
(1) BCLR (1) (CC);
1996 (1) SA 984
(CC) para 163.
[27]
See
at 234.
[28]
1998
(4) SA 908 (Tk).
[29]
See
at para 229.
[30]
There
is no confirmatory affidavit attached so its provenance and contents
is mere hearsay.
[31]
To
qualify as a
universitas
personarum,
the following requirements must be met: the association must be a
legal entity apart from its members; it must have the capacity
to
acquire rights and obligations and also be able to own property
independently of its members; it also must have the capacity
to sue
and be sued and they have perpetual succession. See
inter
alia
S
v Coetzee and Others
[1997] ZACC 2
;
1997 (4) BCLR 437
(CC);
1997 (3) SA 527
(CC) at para 104.