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[2024] ZALMPPHC 188
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MEC for Department Cooperative Governance, Human Settlement and Traditional Affairs, Limpopo Province and Others v Sekgota (Appeal) (HCAA4/2024) [2024] ZALMPPHC 188 (22 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
No:
HCAA4/2024
Court
a quo
CASE No:
9061/2022
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
M.G PHATUDI JP
DATE:
22/11/2024
In
the matter between:
THE
MEC FOR DEPARTMENT COOPERATIVE
1
ST
APPELLANT
GOVERNANCE,
HUMAN SETTLEMENT AND
TRADITIONAL AFFAIRS,
LIMPOPO PROVINCE
MOGALAKWENA
LOCAL MUNICIPALITY
2
ND
APPELLANT
THE
COUNCIL OF MOGALAKWENA LOCAL
3
RD
APPELLANT
MUNICIPALITY
MAYOR:
MOGALAKWENA LOCAL MUNICIPALITY
4
TH
APPELLANT
CLLR
N S TAUETSOALA
and
LESETJA
SAMUEL SEKGOTA
RESPONDENT
Delivered
: 22 November 2024
.
This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date and time
for
hand-down of the judgment is deemed to be
22 November 2024
at
10h00
.
Coram
:
M. G. Phatudi JP
et
al
. Naude - Odendaal J, Diamond AJ.
JUDGMENT
M.G.
PHATUDI JP:
INTRODUCTION:
[1]
This is an appeal against the judgment and/or order of the court
a
quo
(Muller J sitting as court of first instance) handed down in
this court on 12 September 2022.
The
appeal is with leave of the Supreme Court of Appeal ('SCA') dated 19
January 2024 to the Full Court of this Division
[2]
The appeal arises from two substantially similar urgent applications
brought in the
court
a quo
which were consolidated and heard
together. The Appeal is opposed by the First Respondent,
Mr.
Lesetja Samuel Sekgota
, (Sekgota) who persists in opposing the
appeal.
THE
FACTS:
[3]
The appeal in essence conflates two consolidated urgent applications
which Muller
J ordered on 30 August 2022 that they be heard together.
The one application was brought by Sekgota on 19 August 2022 under
case
No: 9061/2022, (Sekgota application) while the other application
was brought by
Molahlegi Ephraim Mokoma
(Mokoma) and several
community members of Mogalakwena Local Municipality, the Fourth
Applicants in the court
a quo
under case No: 8944/2022 (Mokoma
application).
[4]
In his application, Mokoma sought relief substantially similar to
that sought by Sekgota
in respect of prayers 2, 3, 9, and 10 of the
notice of motion.
[1]
His
application was, however, dismissed by Muller J.
[5]
In essence the relief sought by Sekgota, the present Respondent, was,
inter alia
, that it be declared that the selection panel
consisting of the Mayor, the Ninth and Tenth Respondents
a quo
,
is unlawful and invalid and, therefore, to set aside all processes
undertaken by the Selection Panel (SP) in the exercise of the
filling
of the vacant post of a Municipal Manager('MM').
[6]
He also sought an order setting aside Resolution II (c) ostensibly,
according to him,
appointing the Selection Panel on 25 January 2022,
and declaring the council meeting held on 08 August 2022, unlawful
and invalid,
and invariably, any resolution passed thereat seeking to
fill the post of the 'MM' to suffer the same fate.
The
said applications were opposed by the Appellants. The seventh
Respondent
a quo
(Mr. Maluleke) abides the courts' decision.
FACTUAL
CHRONOLOGY OF EVENTS:
[7]
On 25 January 2022, the Third Appellant, the council of Mogalakwena
Municipality (the council)
took a resolution to fill the vacant post
of a Municipal Manager ('MM') in line with the provisions of
the Local Government:
Regulations on Appointment and Conditions of
Employment of Senior Managers.
[2]
('the Regulations')
[8]
Furthermore, on 25 January 2022, council resolved to designate the
Mayor, and a councillor
designated by it and at least one person who
is not a councillor or a staff member of the municipality concerned,
and who has expertise
or experience in the area of the advertised
post.
[9]
The aforementioned requirements are laid down in Regulation 12 of the
said regulations.
I shall deal with each of the requirements shortly
in the course of this judgment.
THE
SUBMISSIONS:
[10]
Counsel for the Respondent, Mr. Mosomane of Mosomane Incorporated
(Mr. Mosomane) contended that
while he has had no issue with
appointment of the Mayor as the chairperson of the Selection Panel
(SP) in fulfillment of Regulation
12, he, however, expressed disquiet
for the alleged failure by the municipal council on 25 January 2022,
to have appointed two
other members of the SP in contravention of
Regulation 12. He contended further that though the Ninth and Tenth
Respondent a quo
qualified for appointment under the said regulation,
the municipal council failed to have the
duo
appointed.
Failure, therefore, by council to have properly appointed the other
SP members was, in consequence, unlawful and invalid.
[15]
Counsel for the First Appellant (MEG for COGHSTA, Limpopo) Mr.
Williams SC, submitted, among
other things, that unlike in Sekgota's
application that save for the Mayor who serves
ex officio
,
council did not 'designate' the two other members, the appointment of
the SP was lawfuL Regulation 12 (3) only requires that the
municipal
council, the Fourth Appellant, designate another Councillor.
(Regulation 12(3)(b)).
What
is required, according to him, was for council members to 'designate'
one of the councilors to serve on the SP.
[16]
He submitted further that, unlike what the Respondent contended, in
essence, that the entire
SP was not appointed by council, conversely,
it was incumbent upon the council merely to appoint a co-council
member to serve on
the SP.
[17]
Relying on the confirmatory affidavits of Messrs. Boshomane and
Mogotle, which were not refuted
by the Respondent, Mr. Williams SC
contended that the interviews and selection process had been lawfully
taken, including the appointment
of the SP. It would have been
inconceivable that the appointment of the SP could have been effected
otherwise than by council members
who constituted the Municipal
council. This fact is confirmed by two councilors, albeit, in
Mokoma's application
a quo
, which was also before Muller J.
[18]
Deferring to the minutes of the SP which
[3]
formed part of the record or minutes of the municipal council, Mr.
Williams SC, contended that there was full compliance with Regulation
12 (3) and, therefore, the appointment of the MM was beyond reproach.
To
illustrate his submission, he pointed that ironically, the SP in fact
did not recommend Mr. M. M. Maluleka be appointed, but
instead
recommended on the basis of gender balance, one Mrs. M.R. Rampedi on
her "basic" competency assessment, whereas
Mr. Maluleka had
been assessed as "competent". The assessment, so the
submission went, was not on the identity of an
individual, but on
merit and competence.
[19]
The aforegoing observation stems from the Respondent's annexure
'LSS4' attached to his founding
affidavit to the application
a
quo
[4]
.
[20]
It was further contended on behalf of the First appellant that the
said minutes of the SP were
circulated to the councillors' meeting
which ultimately appointed Maluleka as the MM from 2 other candidates
recommended for appointment.
[21]
The council meeting held on 08 August 2022 which is common cause, was
properly constituted, so Mr.
Williams SC submitted, and was therefore
lawful. There, it was resolved that Mr. Maluleka be appointed. A
formal letter as per
council resolution, was issued to him dated 11
August 2022.
[5]
[22]
He in addition, contended that Regulation 12 (3) does not contemplate
any resolution having to
be adopted by the Municipal council upon
designating their co-council members to serve on the SP, or that the
same be specifically
recorded or reduced to writing.
[23]
Furthermore, it was submitted that the court
a quo
's finding
that the municipal council failed to 'designate' Ms. M.S. Teffo as a
co-council member of the SP 'by resolution' or "to
appoint a
third panelist" and that therefore, all other processes of
shortlisting, screening, interviews and appointment of
the MM, are
unlawful, was clearly erroneous.
[24]
This is simply because the said regulation does not require a formal
resolution for the designation
of the council member to serve on the
SP. Regulation 12 (3) is silent on this aspect.
[25]
Mr. Williams also made the submission that what regulation 12(3)
envisages is that there should
be ample evidence in totality,
available as to the entire process that was followed, to draw an
inference, on the balance of probabilities,
that the Municipal
Council did designate the particular SP. His submission is that, if
all the facts before the court are assessed,
there can be no
conclusion other than that the council made the designation of the
SP, therefore, substantially complying with
the requirements of
Regulation 12(3).
[26]
According to the submission he made, the law - maker has drifted away
from the word "appointment"
and had instead chosen to use
the word "designated" (Reg.12 (3)(b)) and that formality
had been complied with.
[27]
Counsel for the Third to Seventh Appellants, Mr. Shakoane SC,
highlighted the fact that the Mokoma
application (not material to the
present application) sought relief materially similar to that sought
by the present Respondent
in its prayers 2, 3, 9 and 10 of the notice
of motion. Despite opposing each application,
a quo
, the
Appellants also brought the striking-out application of certain
material in the respective founding affidavits. There was
also a
counter application in the
Mokoma
application which, according
to Shakoane SC, was correctly granted by Muller J in the said
striking out application. He dismissed
the latter's application, and
in the same breath, granted the Appellant's counter-application.
[28]
He submitted that the court
a quo
in a bizarre manner,
dismissed the Appellants striking out application by the Respondent
(Sekgota) in prayers 2, 3, 9 and 10 of
his notice of motion. Mr.
Shakoane SC, took the view that the court
a quo
's approach
was blatantly contradictory.
[29]
One of the grounds of appeal was that the court
a
quo
erred
by not striking from the urgent roll the Respondent's urgent
application for failure to comply with the provisions of S.35
of the
General Law Amendment Act, 1995.
[6]
This part of the ground of appeal lacks merit. None of the relief
sought by the Respondent in its application prayed for interim
relief, alternatively, a
rule
nisi
for
proper invocation of the statutory exception found in S. 35 of the
Act. This point was, moreover, not even argued before us
on appeal.
[30]
It was also submitted by Mr. Shakoane SC that the court below
misdirected itself in fact and
in law in setting aside the council
resolution passed on 08 August 2022, and ordering a re-advertisement
of the disputed vacant
post of the MM.
[31]
The attack against such order was the discrepancy of the court
a
quo
's prior pronouncement in paragraph 4 of its order, that the
council meeting held on 08 August was lawful, and the decision of the
municipality and its municipal council pursuant to Resolution 11 (c)
of 25 January 2022, in which all selection processes and the
SP's
recommendation of 25 January 2022, culminating on the 08 August 2022
meeting, is not invalidated and remain extant.
[32]
According to his submission, the court below erred in declaring the
composition of the SP of
25 January 2022 unlawful and invalid,
resultantly upsetting the entire process of appointing the MM.
[33]
Furthermore, the nub of contention Mr. Shakoane SC made was the error
by the court below in having
ignored the corroborative evidence
contained in the confirmatory affidavit (CA) of Councillors Boshomane
and Mogotle filed in support
of both Sekgota and Mokoma's founding
affidavit ('FA')
[34]
It is in the two 'FA' that both deponents thereto corroborated and
confirmed that the said resolution
was "duly and lawfully"
passed and additionally, all processes were lawfully followed when
filling the MM's post.
[35]
Furthermore, the additional evidence in the confirmatory affidavit of
Councillor Mogale had in
fact corroborated the 'CA' of Boshomane
referred to above. According to Mr. Shakoane SC, the similarity in
content regarding the
'CA' of Boshomane and Mogotle, had in fact
induced the court a qua to grant consolidation of Sekgota and Mokoma
applications.
[36]
Mr. Shakoane SC's contention again was that the finding and order of
the court
a quo
that the SP was unlawfully appointed was
because it overlooked the corroborative evidence of the said
deponents of the "CA",
and blatantly provided no reasons as
to its exclusion. This was erroneous, he said.
IN
THIS COURT:
[37]
The issues that calls for determination in this court are three-
pronged, and are:
(1)
Whether or not the SP was properly designated/appointed by the
municipal council in order
to embark upon the selection processes for
the filling of the post of MM, and
(2)
Whether or not the Council Resolution of 08 August 2022, to effect
the appointment of the
MM was lawful and validly taken; and
(3)
Whether or not the council meeting held on 08 August 2024 was
properly constituted for the
purpose of appointing a MM.
[38]
The aforementioned questions are, by and large, dependent on the
history and factual chronology
of the events summarized in paragraph
[7], above, as well as the Appellants' further evidence. This court
ruled in its extempore
judgment on 20 September 2024, for the
introduction of the contents of annexure "A" and "B"
to the application
in terms of the provisions of S.19 (b) of the
Superior Courts Acts of 2013(SuCA).
[7]
I
shall revert to examine the evidential value of these crucial
annexures when I evaluate the merits of the present appeal.
[39]
The starting point should be what the Second and Third Appellants
were required to adhere to
in terms of Regulation 12 of the
regulations on Appointment and Conditions of Employment of Senior
Managers.
[8]
The regulation
outlines the procedure a municipal council is obligated to follow
when appointing the S.P. It provides as follows:
Regulation 12(1):
"A municipal
council must appoint a selection panel to make recommendations for
the appointment of candidates to the relevant
senior manager posts".
(2)
"In deciding to appoint a selection panel, the following
considerations must inform
the decision:
(a)
The nature of the post;
(b)
The gender balance of the panel; and
(c)
The skills, expertise, experience and availability of persons to be
involved.
(3)
The selection panel for the appointment of a municipal manager must
consist of at least
three and not more than five members, constituted
as follows:
(a)
The mayor, who will be the chairperson, or his or her delegate;
(b)
A councilor designated by the municipal council and
(c)
At least one other person, who is not a councillor or a staff member
of the municipality,
and who has expertise or experience in the area
of the advertised post."
[40]
Against these requirements, I consider it apposite to examine whether
the municipality appellants
had complied with the relevant regulation
in regards to filling the vacant post of MM.
COMMON
CAUSE FACTS:
[41]
It is common cause, or not disputed that on 25 January 2022, in its
meeting, the Third Appellant, the
council of Mogalakwena Local
Municipality, (the Municipality) took a decision passed as Resolution
11 (c), for the appointment
of a SP. This was done pursuant to the
said. Regulation 12 (3) and in line with S.67 of the Municipal
Systems Act 2000
[9]
.
[42]
It is further common cause that on 25 January 2022, the persons
forming the SP were 'designated'
by the Municipal Council to
interview and shortlist candidates for the vacant post of MM. The
minuets of the shortlisting committee
of candidates, was attached to
the respondent's papers as annexure 'LSS5', evincing the members of
the SP. This was done on 11
March 2022
[10]
.
[43]
According to the respondent he, however, disputed the fact that the
resolution designating the
SP did not specify names of its members,
except for the mayor.
[44]
The alleged failure by the council meeting to specifically name the
designated SP members is,
in my view, not fatal to their designation
as contented by the respondent. All that is required by regulation 12
(1) is merely
for a Municipal Council to 'appoint a selected panel;
so as to make a recommendation for the appointment of suitable
candidates
to vacant senior manager posts,
in casu
, a MM. In
the instant case, there is no contestation on the Municipal Council's
compliance with regulation 12 (2) regulating a
selection process.
[45]
In compliance with regulation 12(3), the SP constituted for the
appointment of a MM, comprised
of the following persons:
(a)
The mayor, who will be the chairperson;
(b)
A councillor designated by the municipal council, and
(c)
At least one other person, who is not a councillor or a staff member
of the municipality,
and who has expertise or experience in the area
of the advertised post.
[46]
This then brings us to the question whether or not, the Municipal
appellants complied with the
spirit of regulation 12(3).
[47]
A closer reading of the minutes of a Special Council meeting of the
Third Appellant (the municipal
council) held on 25 January 2022
[11]
,
shows it was resolved that:
"
37.1
…
37.2
…
37.3
The following people be designated to constitute a selection panel
for shortlisting and interview of the
position of a municipal
manager:
(1)
The Mayor who will be the Chairperson.
(i)
A councillor designated by the municipal council; and
(ii)
At least one other person who is not a councillor or a staff member
of the municipality
and who has expertise or experience in the area
of the advertised post."
EVALUATION:
[48]
The content of the relevant item of council resolution under
consideration, reveals, in my view,
compliance with the essential
requirements of regulation 12(3) of the enabling resolution. In fact,
nowhere in regulation 12(3)
is the requirement of names of SP members
be specifically mentioned. Failure or omission of mention of specific
names in that special
council meeting, whose assembly is, in any
event, not an issue, is not fatal to the outcome, nor should render
their composition
a nullity.
[49]
Subsequent thereto, and on 11 March 2022, the shortlisting meeting
convened by members of the
appointed SP, was held chaired by the
mayor, councillor Taueatsoala. Present also was Mr. D.J Moshoana
(Second Appellant) and Ms.
Mr. S Tetu (portfolio chairperson,
corporate support services).
[50]
I interpose to mention that the Second Appellant (Mr. Moshoana) is
not a councillor of any municipality.
He is attached to Limpopo
Provincial Government's COGHSTA department as an employee.
[51]
The interview process and scores, are captured in the SP minutes
dated 25 April 2022.
[52]
On 10 June 2022, the SP held the finalization meeting where scores
were allocated to the 3 candidates,
namely, Ms., Mr. Rampedi, Mr. M.C
Moshoana, who both were assessed as "basic", while Mr. M.M
Maluleka's assessment was
found to be "competent" based.
[53]
The contention made on behalf of the respondent that the members of
the SP were not appointed
by the Municipal Council is wrong. As
already shown above, the minutes of the Special Council meeting of 25
January 2022, attests
the contrary.
[54]
Pursuant to the recommendations of the SP, a Special Council meeting
was convened on 29 July
2022, but could not proceed and was,
therefore, adjourned to 08 August 2022.
[55]
On 08 August 2022, the day to which the Special Council meeting was
adjourned, the Speaker of
council issued a short SMS notice
purporting to postpone
in absentia
, a duly convened Special
Council meeting. This was done 15 minutes before the time scheduled
for the meeting.
[56]
The manner in which the Speaker purported to 'postpone' a properly
convened Special Council meeting
of 08 August 2022, is mind boggling
as he initially convened it in accordance with clause 4 of the
Municipality's Standing Rules
and Orders
[12]
.The
Speaker had however, failed to attend the said meeting, in which
event, the MM (or acting MM) must convene the meeting.
[57]
In order to alleviate the situation, the mayor invited the Sixth
Appellant (acting MM) to preside
over the election of an Acting
Speaker in order for the Municipal Council to continue with its
business. The purpose of that meeting
was to appoint a MM. The said
meeting where the appointment of the MM was made, was presided over
by the Acting Speaker, who the
meeting of council had elected to do
so for purposes of appointment of a MM.
[58]
The contention by the respondent that the mayor does not have power
to convene a council meeting,
is simply a half- truth. Absent the
Speaker at the meeting of 08 August 2022, there was no impediment to
the Acting Speaker to
preside over the said Special Council meeting,
and to proceed to business to be transacted for that purpose.
Furthermore,
the absence of the Speaker, as a councillor, from that meeting, was
not as envisaged in clause 14 of the Standing Rules
and Orders
referred to, in that the latter did not 6 hours before the
commencement of the meeting, lodge with the Acting MM, a
written
application for leave of absence from the whole of the meeting or
part thereof.
[59]
The court
a quo
found that Municipal council only selected the
mayor "
for the appointment (sic) into the panel
".
The court again found that as far as other two panelists are
concerned, the Municipal council resolved to designate a councillor,
and the third SP member "
is to be designated
". The
court
a quo
further concluded that "
council failed to
either designate the councilor by resolution or to designate or
appoint the third panelist
". This finding is erroneous.
[60]
Either way one looks at it, the learned Judge erred in his findings.
This is simply because regulation
12(3), only envisage a situation
that in constituting a SP, council is not required to appoint members
specifically attaching names
to the capacity of the
individuals who are appointed as members of the SP. What council is
obliged to do is merely
to appoint a selection panel, which in turn
would make recommendations for the appointment of candidates to
vacant senior post,
in casu
, a MM.
[61]
Looking closely at the minutes of the council meeting of 25 January
2022, council clearly 'designated'
members of the SP as contemplated
in regulation 12(3). They are the mayor, a councilor designated by
the municipal council, and
one other person who is not a councilor or
staff member of the municipality with the requisite expertise or
experience relevant
to the said post.
[62]
Although no individual names were attached to their official
designation as SP members, it follows
logically that the mayor is Mr.
Taueatsoala, and a councilor designated by the council is Mr. Ms.
Teffo, and a non-councilor being
Mr. D.J Moshoana attached to
Limpopo's COGSTA department. These names appear in all council
minutes of the Second Appellant, pertaining
to all their selection
processes leading to final appointment of a MM.
[63]
The court
a quo
, flowing from the erroneous finding
aforementioned, concluded that the shortlisting exercise did not
comply with regulation 12(3),
which invariably meant that the
screening, shortlisting and interviews processes, were in consequence
all tainted with illegality.
This conclusion is also flawed.
[64]
Apart from not only providing reasons for his finding on the
shortlisting process, the court
a
quo
seems
to have simply ignored the contents of the minutes of the SP held on
11 March 2022, when shortlisting for MM's post was conducted
[13]
.
[65]
Furthermore, on a reading of the minutes of the meeting of the SP
held on 25 January 2022, the
capturing of the panelist members was
identified by the council as required by the Regulation 12(3) and in
doing so, there is no
trace of evidence of anyone of them not being
"delegated" in their capacities by the Municipal Council as
the court of
a quo
found.
The
Regulation in question makes no provision of the names of the SP
members to be individually specified. The conclusion reached
in this
regard is, therefore, wrong. In addition to that, Regulation 12(3)
requires no resolution by the Council specifically naming
the members
of the SP, save for their appointment. Nothing more, nothing less.
[66]
The reasoning of the court
a quo
stating that Mr Maluleke's
recommendation by the SP for appointment as the MM is unlawful, is
therefore, clearly erroneous.
[67]
The totality of the evidence points to an inference, on a balance of
probabilities, that the
Council made the appointment as stipulated by
Regulation 12(3), and that there was, consequently, substantial
compliance with prescripts
of the regulation.
[68]
The court
a quo
proceeded from the premise that the selection
process recommending the MM was valid. However, for some reason, it
found after analyzing
the effect of the Speaker purporting to
'postpone 'a properly convened Council meeting, with reference to the
applicable provisions
of the council's Standing Rules and Orders,
(SRO) correctly found, in my view that such meeting was lawfully
convened, regard being
had to the provisions of Rule 23(1), 23(2),
23(3), 41(1) and 39 of the SRO, the latter Rule 39 demanding of the
council's business
to continue. In the instant case, the council
meeting of 08 August 2022, was convened in terms of Rule 41 as a
continuation of
the 29 July 2022 meeting.
[69]
The court
a quo
's conclusion that the said meeting was
validly convened as a continuation of the 29 July 2022, which the
Speaker purported to
'postpone' on 08 August 2022 can, therefore, not
be faulted. The Speaker's conduct in this regard lacked authority and
was of no
force or effect.
[70]
Furthermore, the court
a
quo
had
occasion to consider whether or not annexure 'LLS 1' 'LLS 3' and 'LLS
4' to the respondents papers before it, should be admissible
in
evidence. Relying on the authority of S v Mkwasu
[14]
,
the court correctly held, in my view, that the interests of justice
required that the evidence sought, to be adduced, by way of
the said
annexures, be admitted. By parity of reasoning in the
Nkwasu's
case
,
a similar approach should find application even in civil litigation.
I mention for the sake of completeness that the annexures
referred to
herein are, the transcripts of the council's Special Meeting held on
08 August 2022. Here, the Municipal Council having
elected an Acting
Speaker, proceeded to appoint Mr Maluleka as the MM. Their contents
are in the public domain and remain public
documents (expect if not a
product of when council went into committee stage i.e.
in
camera
),
of which the public has the right of access to their contents.
[71]
Having said that, the court
a quo
was correct in finding that
the continuation of the Special Council meeting on 08 August 2022,
was lawfully convened as such, with
the result that it should have
found Maluleka's appointment as a MM, legitimate.
[72]
For some inexplicable reasons, however, and going against the
aforegoing observation, the learned
Judge, however, found the
appointment by the same Municipal Council of the MM (Maluleka) to be
invalid and liable to be set aside,
as it was said to be an off-shoot
of a faulty selection process by the SP not being properly appointed.
[73]
The latter conclusion is a misdirection by the court
a quo
.
That conclusion invariably led to the respondent's application
partially successful in respect of prayer 2, 3, 9 and 10 of the
notice of motion.
[74]
Ironically, while the court below found that the SP was not properly
appointed, the learned Judge
had not granted prayer 4, declaring
paragraph 11(c) of the resolutions of 25 January 2022 (selection of
SP) to be unlawful and
invalid. Similarly, prayers 5,6,7 and 8 were
not granted.
[75]
It is the partial success of some contradictory orders that
precipitated the present appeal.
APPLICATION
TO INTRODUCE FURTHER EVIDENCE:
[76]
Prior to the hearing of the present appeal on the merits, the Third
to Seventh Appellants brought
a notice of application in terms of
Rule 6(11) read with S.19(b) of the SUCA, 2013, to introduce further
evidence. The respondent
unsuccessfully opposed the said application.
Reasons for dismissing opposition to it appear in the judgment handed
down ex tempore
on 20 September 2024 with costs. I shall for
considerations of brevity, not repeat the facts and reasoning
advanced here, as the
same were mechanically recorded.
[77]
It suffices to mention that the said appellants sought leave to
adduce fur1her evidence of the
contents of annexure "A" and
"B" to the supporting affidavit relative to the appeal at
hand. The substance
of the said application was not to introduce any
"new evidence ", but "further evidence" to the
present pending
appeal on the merits. The provisions of S.19(b) of
SUCA 20-13, bestows the court exercising appellate jurisdiction, a
judicial
discretion to receive "further evidence".
[78]
The purpose therefore was to assist this court to determine if the
appointment of a MM, among
others, at a meeting of 08 August 2022,
was lawful. Similarly, whether the court
a quo
's
interpretation of Regulation 12(3) which informed the procedure and
formulae of the appointment of the council's SP panel, was
sound.
[79]
As already shown, a litigant is entitled in terms of the provisions
of Rule 6(11) of the rules,
to bring interlocutory and other
applications incidental to pending proceedings on notice supported by
such affidavits as the case
may require and set down at a time
assigned by the registrar or as directed by a judge. The nature of
the interlocutory application
in the present instance is the one
incidental to the appeal now before us which, at the time of lodgment
of the application was
still pending. It is brought in terms of
S19(b) of the SUGA, 2013, which permits introduction of "further
evidence".
[80]
The court in
PROPHET V National Director of Public Prosecution
2007(6) SA 169 (CC) of 185, para [33]
, stated that there are two
routes for admission of late evidence on appeal in that court. The
first is in terms of Rule 31(Concourt)
which permits parties to
adduce relevant material that is common cause or otherwise
incontrovertible, or is of an official, scientific,
technical or
statistical nature and capable of easy verification. The second is in
terms of S22 of the repealed Supreme Court Act,
1959 (now replaced)
with S19(b) of the SUCA 2013).
[81]
The applicable approach following the
Prophet's
case above, is
that late evidence may only be done in 'exceptional circumstances',
where the evidence sought to be submitted is
'weighty, material,
and to be believed'
, and
'there is a reasonable explanation
'
for the late filing of the evidence. See also,
Rail Commuters
Action Group and Others v Transnet ltd t/a METRORAIL and Others
2005(2) SA 359 (cc).
[82]
It was upon a careful consideration of the foregoing compelling
principle eloquently laid down
by the apex court, that this court,
persuaded by the weighty material and reasonableness of the
explanation proffered for the delayed
filing of the evidence, as well
as the judicial discretion conferred on this court exercising appeal
authority, that further evidence
sought to be adduced, was inevitably
permitted.
[83]
According to the Third to Seventh Appellants, post the noting of the
appeal, they individually
discovered two letters issued by the mayor
of the Second Appellant which are materially relevant to the process
that relates to
the composition of the SP and what Regulation 12(3)
prescribes. A submission was made that their contents was somewhat
connected
to the "CA" made by Cllr. Boshomane and Mogotle.
With their inclusion as part of the evidence on appeal, which
clearly,
were not before Muller J, would show that the relevant
factual findings in the
court
a quo
were wrong.
[84]
The relevant annexures brought as further evidence appear as 'ALE 1'
and 'ALE 2', respectively,
to the S.19(b) application
[15]
.
The documents introduce evidential material that confirms the
appointment of Mr Moshoana and Ms. Teffo by the Municipal Council
to
be part of the SP to conduct shortlisting, interviews and screening
of shortlisted candidates for the position of a MM. The
date of the
said letters is 25 January 2022, a day after the sitting of the
council meeting.
DISCUSSION:
[85]
Having made the preceding observation and evaluation, it follows that
the contents of the annexures
introduced as further evidence sought
to illustrate their relevance as to how the SP was constituted by the
Municipal Council as
envisaged in Regulation 12 (1) ;(2) and (3)
thereof. This part of the evidence, needless to mention, was not
before the court
a quo
when the two urgent applications were
jointly heard.
[86]
The view I take of the matter, therefore, is that had the court a
quo's attention been drawn
to the undisclosed evidential matter at
that time, the conclusion would have been somewhat different. This is
particularly so in
that the two annexures 'A' and 'B' of the S. 19(b)
application read with Rule 6(11) of the rules, explicitly state that
the appointment
by the council of the 2 (two) additional SP members
were in accordance with Council Resolution adopted on 25 January
2022. These
annexures are emphatic in informing the two panelists
that they will receive an invitation from the municipality (third
appellant)
to participate in the Recruitment process.
[87]
This process was subsequently done on 11 March 2022, with interviews
and ratings concluded on
25 April 2022. Those rated "basic"
on interview, were deemed 'unsuitable' for the role of Senior
Manager, and that caution
should be applied when promoting such
persons. Only Maluleka of the two shortlisted/interviewed candidates
was considered "
competent
"
for the vacant post of MM. The remaining two were rated "
basic
",
thus "
unsuitable
".
This process was completed by the SP in their finalization meeting of
the Recruitment process on 10 June 2022.
[16]
[88]
The argument raised on behalf of the Respondent that the other 2 SP
members where not appointed
by the Municipal council erroneously
assume the Mayor had appointed Moshoana and Teffo as additional
panelists probably because
of Annexures 'A' and 'B' letters
introduced by way of further evidence were signed by the Mayor. This
assumption is skewed. The
Mayor did so not as a councillor, but as
Chairperson of the SP appointed by the council.
[89]
The misconstruction mentioned above, inevitably led the court a qua
astray in its interpretation
and application of Regulation 12 in
practical terms. It took a more technical understanding of the
concept 'designated' within
the purview of the said regulation. What
compounded its misconstruction of the word
'designated'
was
when the court below imported the unnecessary requirement of a
resolution of the municipal council for establishment of a SP,
in
particular, by pronouncing individually its members by name.
LEGAL
PRINCIPLES:
[90]
The above observation is guided by legal literature on the correct
approach when interpreting
words in a statute, contract, regulation
or any legal instrument. For instance, in Novaritis V MAPHIL
[17]
,
the court in deciding the contractual dispute before it on appeal,
also paid attention to how courts should interprete written
contracts. It had this to say:
"[24] The
argument of Novartis, as I understand it, is that interpretation is
an entirely objective process. In deciding what
a contract means, a
court must have regard to the words used and construe them
objectively. Novaritis cites in this regard passages
from KPMG
Chartered Accountants (SA) V Securifin Ltd and another:2009(4) SA
399(SCA) para:39, Natal Joint Municipality Found v
Endumeni
Municipality
[2012] ZA SCA 13
;
2012 (4) SA 593
(SCA) para:18."
[91]
From the foregoing passage, it is crystal that if a document was
intended to provide a complete
record of a jural act, extrinsic
evidence may not contradict, supplement, or modify its true meaning.
This principle flows from
the fact that interpretation is a matter of
law and not fact, and therefore, it remains a matter within a court's
power and, not
for witnesses, nor as often said at common law, not a
jury question.
[92]
Properly interpreted, the applicable or acceptable way of
interpreting a written document was
aptly espoused in
Endumeni
case
,
above
[18]
, paraphrased
inter
alia
as
follows:
"[18] The present
state of the law can be expressed as follows. Interpretation is the
process of attributing meaning to the
words used in a document, be it
legislation, some other statutory instrument, or contract, having
regard to the content provided
by reading the particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon
its coming into existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of
the ordinary rules of grammar and syntax…"
[93]
There is considerable force behind the above principle. The language
used in Annexure 'A' and
'B' to S.19(b) application, gives context to
what the council sought to do in appointing the SP to bring to
fruition the selection,
interview and finalization processes towards
appointment of a MM.
[94]
In doing so and in general terms, the Second and Third Appellant
(municipality and council) had
a statutory if not a constitutional
obligation to fulfil its mandate to govern on its own accord the
local government affairs for
which it is empowered to exercise by
virtue of its executive authority conferred by S151(2) of the
Constitution.
[19]
[95]
Furthermore, the authority to appoint a MM is conferred upon it by
the provisions of S54A of
the Local Government: Municipal System
Amendment Act, 2022
[20]
. The
said provision calls upon a Municipal Council to:
"I The Municipal
Council
must
appoint - (a) A Municipal Manager as head of the
administration of the Municipal Council" (underlining own
emphasis)
[96]
A brief comment on some misgivings revealed in the judgment of the
court
a quo
, would hopefully throw light on the issues on
appeal. They are, among others, the following:
96.1. It is
common cause that it heard two consolidated applications, and
delivered judgment on 13 September 2022. In
the Makoma application,
(not before us on appeal) it granted relief sought by the appellants
in prayers 4 and 7 of the counter-application.
It in the same vein,
granted the appellant's striking-out application in certain aspects
of the Founding Affidavit of Makoma, and
went on to ultimately
dismiss the latter's application.
96.2. The
effect of para: 4 and 7 of the appellant's counter-application claim
granted meant that "
the meeting of 08 August 2022, was never
postponed or adjourned and had lawfully taken place."
96.3. The
"CA" of Cllr. Boshomane attesting to the Founding Affidavit
of each Applicants
a quo
, confirmed the lawfulness of the
entire selection process, on the meeting of 08 August 2022 alluded to
in para: 4 of the court
a quo's
judgment.
96.4. Despite
the consolidated applications and similarity of their respective
relief sought and accounting for Boshomanes
'CA' and the lawfulness
of the meeting of 08 August 2022, the court
a quo
went on to
dismiss the striking-out application in relation to the respondent's
application, and worst still, went against its
findings about the
latter council meeting it found to be lawful, but to our dismay,
declared all the selection processes which
preceded a "lawful"
meeting, (08.08.2022) unlawful and individual, crucially, setting
aside the resolutions of the 08
August 2022 Council Meeting, ordering
a re-advertisement of the vacant post of the Mayor.
[97]
These glaring contradictions in the judgement of the court
a quo
,
were not countervailed by the Respondent's attorney, Mr Mosomane as
he, has without plausible explanation, failed to file further
heads
of argument on behalf of the Respondent as directed by this court on
20 September 2024.
[98]
In light of all the reasons aforementioned, the following order would
issues:
(a)
The appeal is upheld.
(b)
The judgement and order of the court a quo handed down on 13
September 2022, is set aside
and replaced with the following order:
1) "The application
is dismissed with costs".
(c)
The respondent is ordered to pay the costs of appeal on scale 'C',
such costs to include
the costs of two counsel where so employed.
M.
G. PHATUDI JP
JUDGE
PRESIDENT OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
I
concur,
M.
NAUDE-ODENDAAL J
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
I
concur,
G.J.
DIAMOND AJ
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
REPRESENTATION:
For
the 1
ST
Appellant
: Adv
J.O
Williams SC
On
brief
: Popela
Maake Attorneys
Polokwane
For
the 3
RD
to 7
TH
Appellants :
Adv G Shakoane SC
On
brief
:
Popela
Maake Attorneys
Polokwane
For
the Respondent
:
Mr.
S.T. Mosomane
On
brief
:
Mosomane Incorporated
Midrand
Date
heard
: 11
October 2024
Judgment
Delivered
:
22
November 2024
[1]
Vol 4, paras 1 to 5, Record.
[2]
Government Notice No: 21 dated 17/01/2014, promulgated as
Regulations under the Local Governments: Municipal Systems Act 32 of
2000.
[3]
Minutes of 11/03/2022, vol.1pp 72- 73,areminutes of the SP meeting
for vacant post of the MM.
[4]
PP 51 - 56, Vol.1, Record. This annexure reflects the Minutes of the
Special Exco Meeting on 29/07/2022.
[5]
Annexure 'MM1', P454, Record.
[6]
Act 62 of 1995, the so called 72 hours' notice applicable to legal
proceeding against the state departments or an organ of state.
[7]
Act 10 of 2013. S 19 (b) grants the high court exercising appeal
jurisdiction, judicial discretion and power in addition, provided
in
any other law, to receive "further evidence". (as opposed
to "new evidence")
[8]
Ibid, para, 2, above
[9]
Local Government: Municipal Systems Act 32 of 2000
, as amended
[10]
PP.72-73. (shortlisting) and PP 74-75 interview held on 25.04.2022,
and PP 76-77 (Finalization meeting) on 10.06.2022, respectively.
[11]
P57 and P 61, para 1, Item 21, Vol 1, Record.
[12]
Annexure 'LSS', PP78-99, VOL.1, Record. The standing rules and
orders of Mogalakwena Local Municipality are promulgated in
Provincial Gazette no 305 dated 30.09.2009
[13]
OP cit, pp 72 - 73, Record
[14]
2016 (1) SACR 53
(SCA}, para [50]
[15]
PP 81- 82, supplementary Vol. Part A, Record.
[16]
Minutes on finalization of the Recruitment Process, vol 1, p 76 -77.
[17]
2016 (1) SA 518
(SCA) para: (24]
[18]
Ibid. para: [18]
[19]
Act 108 of 1996, as amended
[20]
Act 2 of 2022