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2024
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[2024] ZAKZPHC 109
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Member of the Executive Council for Co-Operative Governance and Traditional Affairs (KwaZulu-Natal) v Nongoma Local Municipality and Others (13820/2024P) [2024] ZAKZPHC 109 (22 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 13820/2024P
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS (KWAZULU-NATAL)
APPLICANT
and
NONGOMA
LOCAL MUNICIPALITY
FIRST RESPONDENT
THE
MUNICIPAL COUNCIL OF NONGOMA
LOCAL
MUNICIPALITY
SECOND RESPONDENT
NHLAKANIPHO
SYDNEY FREEDOM ZULU
THIRD RESPONDENT
BRIAN
MZWANDILE DUBE
FOURTH RESPONDENT
AND
43 OTHER RESPONDENTS
ORDER
The
following order is granted:
1.
The second respondent’s decision
to appoint:
(a)
the third respondent as acting municipal manager for a period of
three months; and
(b)
the fourth respondent as acting chief financial officer for a period
of three months;
be
and is hereby reviewed and set aside.
2.
In terms of section 172(1)
(b)
of the Constitution, and as an interim measure only in the event of
the disciplinary enquiry in respect of the incumbent municipal
manager not having been finalised, the applicant is directed and
authorised to second a suitable person at his discretion, who
has the
skills, expertise, competencies, and qualifications as prescribed by
the
Local Government: Municipal Systems Act 32 of 2000
to act in the
position of municipal manager of the Nongoma Municipality in terms of
regulation 20 of the Local Government: Regulations
on Appointment and
Conditions of Employment of Senior Managers of 17 January 2014.
3.
It is directed that each party shall
pay its own costs.
JUDGMENT
E
Bezuidenhout J
Introduction
[1]
This matter came before me as an urgent application on
11 September
2024. The applicant, the MEC for Co-operative Governance and
Traditional Affairs (KwaZulu-Natal) (the MEC), sought
relief
contained in two parts against the first respondent, the Nongoma
Local Municipality (the Municipality); the second respondent,
the
Municipal Council of the Nongoma Local Municipality (the Municipal
Council); the third respondent, the acting municipal manager
(Mr
Zulu); the fourth respondent, the acting chief financial officer (Mr
Dube); and 44 councillors.
[2]
In part A, the first order prayed for reads inter alia
as follows:
‘
2.
That pending the final
determination of the Second order Prayed referred to hereunder:
2.1
That the Second Respondent’s
decision taken on 30 August 2024 to appoint:-
2.1.1 Third
Respondent as the Acting Municipal Manager for a period of three
months;
2.1.2 Fourth
Respondent as the Acting Chief financial Officer for a period of
three months;
be and are (sic) hereby
suspended forthwith.
2.2
That First and Second Respondents are interdicted and restrained from
appointing third and
fourth Respondents into such acting positions in
the future.
2.3
That First and Second Respondents are directed to seek a secondment
of duly qualified officials
from Applicant to fill these temporary
vacancies.
2.4
That the First and Second Respondent pay costs of the First Order
Prayed on an attorney
and client scale.
2.5
Alternatively, the cost for First Order Prayed be reserved for
decision by the court hearing
the Second Order Prayed.’
[3]
In part B, the second order for prayed reads as follows:
‘
1.
That the Second Respondent’s decision taken on 30 August 2024
to appoint: -
1.1
Third respondent as the Acting Municipal Manager for a period
of
three months; and
1.2
Fourth Respondent as the Acting Chief Financial Officer for
a period
of three months;
be
and are (sic) hereby set aside on review alternatively, are set aside
as being contrary to the law and the principle of legality.
2.
That any decision made by the Third or Fourth Respondents in their
acting capacities
aforesaid be and are (sic) hereby set aside.
3.
That the Councillors who were party to the said decision of Council
and Third
and Fourth Respondents be and are hereby held in contempt
of Court of the judgment of his Lordship Mr Justice Bezuidenhout in
Case
No. 11032/2024 and the judgment of her Ladyship Acting Justice
Marion in Case No. 12291/2024P.
4.
That the said Councillors being Fifth to Twenty-Sixth respondents
herein are
directed to appear before this Honourable Court at a time
and date fixed by the Registrar for this Honourable Court to decide
the
sanction for the said contempt of court.
5.
That the said Councillors, being Fifth to Twenty-Sixth respondents
herein are
directed to pay the costs of this application personally,
alternatively;
That
the costs of this application are to be paid by First and Second
Respondents, jointly and severally on the basis as between
attorney
and client.’
[4]
At the hearing of the matter, I was informed that the
parties had
agreed to proceed with the hearing of the review, as set out in Part
B of the notice of motion, which I agreed to hear
on an urgent basis
on 19 September 2024, provided the papers were complete by 17
September 2024. The record of the proceedings
apparently only
consisted of the resolution taken by the Municipal Council on 30
August 2024.
[5]
I requested the parties to agree on a joint list of issues,
which
list was duly filed on 18 September 2024. The issues consisted of two
parts, namely the legality issue and the factual issue.
The legality
issue was set out as follows:
(a)
Did the Municipal Council have the lawful power to make the
appointments in terms of section 54A(1)
(b)
and section
56(1)
(a)
(ii) of the Local Government: Municipal Systems Act 32
of 2000 (the Systems Act)?
(b)
Is it lawful or legal to make acting appointments, as contemplated
in
sections 54A and 56 of the Systems Act, for municipal managers or
chief financial officers after the expiry of the initial three-month
period or six-month period after an extension?
(c)
If no such power exists for the Municipal Council to
have made the
appointments, can a court make an order in terms of section 172(1)
(b)
of the Constitution and if so, what just and equitable order should
be granted by this court in terms of section 172(1)
(b)
to
cater for the necessity of the appointment of an acting municipal
manager and acting chief financial officer of the Municipality
while
the incumbents are suspended?
[6]
The factual issue to be decided was whether it was unlawful
to
appoint Mr Zulu and Mr Dube either on the basis of their
qualifications or on the basis of Mr Zulu’s conduct or Mr
Dube’s
resignation. The issues relating to the alleged contempt
of court were not pursued before me.
[7]
At the conclusion of the hearing, I requested counsel
appearing for
both sides to prepare draft orders of the relief they deemed
appropriate, especially in light of the fact that I
was being asked
to consider making a just and equitable order in terms of section
172(1)
(b)
of the Constitution, which was duly done. I will
deal with their proposals in due course.
Legislative
framework
[8]
Central to the issues to be decided, in particular the
legality
issue, are the provisions of sections 54A and 56 of the Systems Act.
The relevant portions read as follows:
‘
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 or acting 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 …; and
(
b
)
select from the pool of candidates a suitable person …
(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
60 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 14 days, inform the MEC for local
government of the appointment process and outcome,
as may be
prescribed.
(
b
)
…
(8)
If a person is appointed as municipal manager in contravention of
this section, the MEC
for local government must, within 14 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 a court for a
declaratory
order on the validity of the appointment, or any other
legal action against the municipal council.
…
56. Appointment
of managers directly accountable to municipal managers.
—
(1)(
a
)
A municipal council, after consultation with the municipal manager,
must appoint—
(i)
a manager directly accountable to the municipal manager; or
(ii)
an acting manager directly accountable to the municipal manager under
circumstances
and for a period as prescribed.
(
b
)
A person appointed in terms of paragraph (
a
) (i) or (ii) must
at least have the skills, expertise, competencies and qualifications
as prescribed.
(
c
)
A person appointed in terms of paragraph (
a
) (ii) may
not be appointed to act for a period that exceeds three months:
Provided that 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.
(2)
A decision to appoint a person referred to in subsection
(1) (
a
) (i) or (ii), 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,
unless the Minister,
in terms of subsection (6), has waived any
of the requirements listed in subsection (1) (
b
).
(3)
If a post referred to in subsection (1) (
a
) (i) becomes
vacant, the municipal council must—
(
a
)
advertise the post…; and
(
b
)
select from the pool of candidates a suitable person...
(4)
The municipal council must re-advertise the post if there is no
suitable candidate...
(5)(
a
)
The municipal council must, within 14 days of the date of
appointment, inform the MEC for local government of the
appointment
process and outcome, as may be prescribed.
(
b
)
The MEC for local government must, within 14 days of receipt of the
information referred to
in paragraph (
a
), submit a copy
thereof to the Minister.
(6)
If a person is appointed to a post referred to in subsection
(1) (
a
) in contravention of this Act, the MEC for
local government must, within 14 days of becoming aware of such
appointment, take
appropriate steps to enforce compliance by the
municipal council with this Act, which steps may include an
application to a court
for a declaratory order on the validity of the
appointment or any other legal action against the municipal council.
(7)
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 (1) (
b
) if it
is unable to attract suitable candidates…’
[9]
Section 56 contains no provision equivalent to section
54A(6), in
terms of which a municipal council may request the MEC to second a
suitable person to act in the advertised position
until a suitable
candidate has been appointed.
[10]
The definition for ‘prescribe’ is important, as there are
various
references to ‘prescribed’ in sections quoted
above. Section 1 defines the word ‘prescribe’ as meaning
‘prescribe by regulation or guidelines in terms of section 120,
and “prescribed” has a corresponding
meaning’.
The following definitions are also relevant: (a) A municipal manager
is defined as ‘appointed in terms of
section 54A’; and
(b) Secondment is defined as ‘an employee who perform duties in
terms of an agreement between their
employer and the relevant
official in organ of state receiving the employee’.
[11]
Section 172(1)
(b)
of the Constitution provides that:
‘
(1)
When deciding a constitutional matter within its power, a court—
(
a
)
…
(
b
)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions,
to allow the competent authority to correct the
defect.’
[12]
There are
various regulations which are relevant. The Municipal Regulations on
Minimum Competency Levels
[1]
(the Minimum Competency Regulations) as amended by the Amendments to
Municipal Regulations on Minimum Competency levels, 2007,
[2]
set out the minimum competency levels for accounting officers and
chief financial officers.
[13]
Regulation
3 sets out the minimum competency levels for an accounting officer,
the municipal manager in other words,
[3]
but was subsequently amended as mentioned. An accounting officer is
required to have a higher education qualification of ‘At
least
a Bachelor degree or a relevant qualification registered on the
National Qualifications Framework at a NQF level 7 with a
minimum of
360 credits’. The prescribed work-related experience is a
‘Minimum of 5 years at senior management level’.
A number
of other standards to be complied with are also listed but are not
relevant for current purposes.
[14]
Regulation 5 deals with the minimum competency levels for a chief
financial
officer, some of which were likewise amended in the notice
referred to above. A distinction is made between municipalities with
an annual budget below R1 billion and those with a budget over R1
billion. It appears that the Municipality falls within the first
category. A chief financial officer is required to have a higher
education qualification of ‘At least a Bachelor degree in
Accounting, Finance or Economics or a relevant qualification
registered on the National Qualifications Framework at a NQF level
7
with a minimum of 360 credits’. The prescribed work-related
experience is a ‘Minimum of 5 years at middle management
level’. As before, a number of other standards are also listed
but are not relevant for present purposes.
[15]
The Local
Government: Disciplinary Regulations for Senior Managers, 2010
[4]
(the 2010 Regulations) set out the disciplinary code and procedures
in chapter 2. Regulation 6, in particular, deals with the
precautionary suspension of a senior manager on full pay if there are
allegations of misconduct. In terms of regulation 6(6)
(a)
,
the disciplinary hearing of a senior manager on suspension must
commence within three months after the date of suspension, failing
which the suspension will automatically lapse. The period of three
months may not be extended by a municipal council, as per regulation
6(6)
(b)
.
The presiding officer conducting the hearing must, in terms of
regulation 10(6), provide written reasons for his finding and a
copy
of the sanction within 10 days after the last day of the hearing. The
regulations are silent on the period within which the
disciplinary
process must be finalised.
[16]
The Local
Government: Regulations on Appointment and Conditions of Employment
of Senior Managers
[5]
(the 2014
Regulations) set out the general requirements for the appointment of
senior managers in regulation 8 and the competence
requirements in
regulation 9. In regulation 1, a senior manager is described as ‘a
municipal manager or acting municipal
manager, appointed in terms of
section 54A of the Act, and includes a manager directly accountable
to a municipal manager appointed
in terms of section 56 of the Act’.
[17]
Chapter 4 deals with conditions of employment, such as sick leave and
maternity
leave (four consecutive months leave is permitted) and
chapter 6 deals with the termination of service through retirement,
termination
of the employment contract, and dismissal for misconduct,
incapacity, or operational requirements. These regulations do not
deal
with the suspension of a senior manager.
[18]
The 2014 Regulations further deal with various issues such as
recruitment,
selection, and advertising of vacant positions.
Regulation 10 deals with the advertisement of vacant posts, after
receipt of approval
from council. Regulation 20 deals with
secondment. In terms of regulation 20(1):
‘
If
a person is seconded to a municipality to act as a municipal manager
in terms of section 54A(6) of the Act, an agreement must
be entered
into between the relevant seconding authority and receiving
municipality.’
[19]
Regulation 20(4) is of particular importance and reads as follows:
‘
(4)
A person seconded in terms of sub-regulation (1) must
report monthly to the MEC
or the Minister, in terms of section
54A (6), on the following—
(
a
)
steps taken to fill the vacant post to which he or she is seconded;
(
b
)
the development and implementation of any municipal institutional
recovery plan for
which the seconded official is responsible;
(
c
)
monitor and assess the adherence to policy, principles and frameworks
applicable to
the municipality;
(
d
)
develop a turnaround strategy for the municipality including a
strategy to promote good
governance;
(
e
)
ensure implementation of municipal council resolutions by the
administration;
(
f
)
implement a system to control and approve all expenditure;
(
g
)
implement all governance systems and procedures; and
(
h
)
ensure implementation of financial systems, policies and procedures.’
[20]
The MEC
attached to its papers, and relied upon, Municipal Governance and
Administration Circular 22 of 2023, the subject being
‘The
lawful duration of appointment for acting senior manager’,
issued by the MEC and addressed to mayors and municipal
managers. The
copy attached to the papers is undated but it is assumed that it was
written in 2023. The circular draws attention
to sections 54(2A) and
56(1)
(c)
of the Systems Act and the effect of the amendments to the Systems
Act. Reference is further made to two judgments, namely
Notyawa
v Makana Municipality and others
[6]
and
Member
of the Executive Council for Local Government, Environmental
Affairs
and Development and Development Planning, Western Cape Province v
Knysna Municipality and others
.
[7]
I will refer to the judgments later on in my judgment.
[21]
The circular concluded with a directive that municipalities must
comply with
the legislative provisions, which stipulate that an
acting appointment for a senior manager should not exceed six months.
In the
event that the post is not filled after an acting appointment
of six months, municipalities have the option of requesting a
secondment
from the MEC. Municipalities were further urged to
expedite the recruitment process.
Background
and previous litigation
Application
under case number 11032/2024P
[22]
On 16 July 2024, the Municipality, issued an application as first
applicant
under case number 11032/2024. The second applicant was Mr
Sipho Bhekisizwe Nkosi (Mr Nkosi), at the time the acting municipal
manager
of the Municipality, and the third applicant was Mr
Bhekokuhle Otto Menyuka (Mr Menyuka), the acting chief financial
officer. The
MEC was cited as the first respondent. Ms A B Mnikathi
(Ms Mnikathi) and Mr B W Ndlovu (Mr Ndlovu) were cited as the second
and
third respondents, respectively, being the persons the MEC had
decided to second to the Municipality.
[23]
The relief claimed was for an interdict pending the finalisation of a
review,
and included inter alia an order that the MEC’s
decision to second Ms Mnikathi and Mr Ndlovu be suspended and that Mr
Nkosi
and Mr Menyuka be authorised to perform their functions in
their acting positions in accordance with a council resolution dated
24 June 2024.
[24]
It is apparent from the application papers, which were made available
to me,
that the incumbent municipal manager and chief financial
officer were placed on special leave pending the outcome of a bail
application
on 28 March 2024. Mr Nkosi and Mr Menyuka were appointed
as acting municipal manager and acting chief financial officer,
respectively,
for a period not exceeding three months, commencing on
1 April 2024. The MEC was informed, as required, in a letter dated 28
March
2024 and subsequently approved the appointments for a period
not exceeding the three months.
[25]
During a council meeting held on 15 May 2024, the incumbent municipal
manager
and chief financial officer were suspended for three months
on full pay.
[26]
During another council meeting held on 21 June 2024, the Municipal
Council
decided to extend the contracts of Mr Nkosi as well as Mr
Menyuka for a further period of three months effective from 1 July
2024.
On 24 June 2024, the Municipality addressed a letter to the MEC
wherein it made submissions for the extension of the aforementioned
acting appointments and requested the MEC to concur with the
extensions of the appointments.
[27]
On 15 July 2024, the MEC addressed a letter to the Municipality in
which its
attention was drawn to the provisions of sections 54A(2A)
and 56(1)
(c)
of the Systems Act in terms of which a
municipality had to apply in writing in special circumstances and
upon good cause shown
for the MEC to extend the period of
appointment. The MEC also stated that the Municipal Council acted
ultra vires as it did not
have the authority to approve the extension
of the acting appointments. The MEC did not approve the appointments
and further informed
the Municipality that it had decided, in terms
of section 105 of the Systems Act, read with section 154 of the
Constitution, to
second Ms Mnikathi and Mr Ndlovu as acting municipal
manager and acting chief financial officer for a period of three
months, with
effect from 15 July 2024.
[28]
The application was heard on 19 July 2024. The MEC opposed the
application
which was argued before P Bezuidenhout J on the same day.
The MEC only filed a provisional answering affidavit, explaining
inter
alia that the Municipality had failed to set out exceptional
circumstances or good cause in its letter of 24 June 2024. It did not
even provide an explanation of the progress made with the
disciplinary processes of the incumbent municipal manager and chief
financial officer. The MEC also stated that the two proposed acting
officials had allegedly already committed serious financial
irregularities whilst in these positions from April to May 2024,
which included obtaining overdraft funds and using infrastructure
grant money to cover operating expenditure, which actions are
prohibited. The cash flow deficit had increased from R9,8 million
in
May to R58,59 million in June 2024. The MEC consequently took a
decision to second two proven and financially competent persons
in
terms of his powers as mentioned above.
[29]
In a
judgment handed down on 31 July 2024, P Bezuidenhout J held that the
council of the Municipality acted incorrectly when it
extended the
acting appointments and only thereafter requested the MEC to extend
it.
[8]
There was furthermore no
valid request to the MEC to do so, as no special circumstances or
good cause was set out in the request.
The court also found that the
MEC did not in the circumstances have the necessary authority to
second staff on its own accord and
that the secondment was not valid
and therefore had to be rescinded.
[9]
The court only granted orders affecting the MEC’s secondment of
Ms Mnikathi and Mr Ndlovu. No order was granted that would
allow Mr
Nkosi and Mr Menyuka to continue to perform their duties. The costs
were reserved for decision by the court hearing the
review. The
Municipality has not proceeded with the review.
Application
under case number 12291/2024P
[30]
On 12 August 2024, the MEC issued an application under case number
12291/2024P
against the Municipality as first respondent; the
Municipal Council as second respondent; Mr Nkosi, the acting
municipal manager,
as third respondent; and Mr Menyuka, the acting
chief financial officer, as fourth respondent. The fifth to
twenty-sixth respondents
were councillors of the Municipality.
Subsequently, a further 22 councillors were joined as respondents.
[31]
The MEC sought interdictory relief that the Municipal Council’s
decision
to appoint Mr Nkosi as acting municipal manager and Mr
Menyuka as acting chief financial officer for a period of three
months be
suspended pending the finalisation of a review.
[32]
It appears from the founding affidavit that the application once
again centred
around the ability in law of the Municipal Council to
re-appoint Mr Nkosi and Mr Menyuka as acting municipal manager and
acting
chief financial officer when they had already served in these
acting positions for three months ending 1 July 2014. Ample reference
was further made to the previous application that came before
P Bezuidenhout J and the findings made by him in his judgment.
[33]
It appears that after the judgment of 31 July 2024, the MEC, on 5
August 2024,
received a letter from the mayor of the Municipality,
advising that it had resolved to appoint Mr Nkosi and Mr Menyuka for
a period
not exceeding three months, commencing on 6 August 2024. It
also stated that it had made a ‘fresh appointment’ in
terms
of section 54A(1)
(b)
of the Systems Act and that there
is no need to request the MEC’s concurrence. The MEC was merely
informed ‘out of
courtesy’. The mayor further denied that
the Municipality was in financial difficulties.
[34]
On 6 August 2024, the MEC responded in writing to the mayor and
informed him
that the Municipal Council had acted unlawful by making
the two appointments and that the description of ‘fresh
appointments’
was an attempt to ‘get around’ the
judgment of P Bezuidenhout J and the provisions of sections 54A and
56 of the Systems
Act. The Municipal Council was called upon to
rescind the appointments. Needless to say, the mayor did not agree,
which lead to
the application being brought. It was heard on 15
August 2024 before Marion AJ.
[35]
The MEC relied on the same grounds as in the previous application as
far as
the objections to Mr Nkosi and Mr Menyuka were concerned. The
MEC also indicated that if the Municipality were to seek a secondment
from him, he would gladly oblige with secondments of properly
qualified persons.
[36]
The Municipality and its council filed a preliminary answering
affidavit wherein
it, inter alia, stated that it would not be in the
interests of justice if it were left without a municipal manager and
chief financial
officer. It also referred to there being a ‘hiatus’
in the Systems Act as it only deals with acting appointments where
there is a vacancy that was to be filled urgently. It, however, does
not deal with the situation which prevails in Nongoma at present,
with the municipal manager and chief financial officer being
suspended pending a disciplinary hearing. Unless and until they are
found guilty of misconduct and then dismissed, there will be no
vacancy and accordingly no post can be advertised. It was further
stated that the MEC's power to second under section 54A(6) only
applies to an advertised post and at present, there was none and
it
was unlikely to be for some time.
[37]
The Municipality stated that it tried to resolve the impasse by
identifying
other competent and suitably qualified internal
officials, whose names would be submitted to the MEC with a request
that they be
seconded ‘even if in law he actually does not have
the power to make the secondment’. The MEC was, however, not
willing
to accept the names of any officials to be submitted by the
Municipality, which resulted in a stalemate.
[38]
In a judgment handed down on 28 August 2024, Marion AJ made extensive
reference
to the judgment of P Bezuidenhout J, and held that these
findings were clear and unambiguous that the Municipality had acted
incorrectly
by unlawfully extending the appointments. Marion AJ
further found the appointment of Mr Nkosi and Mr Menyuka under the
guise of
‘fresh’ applications to be invalid, inter alia,
because the further appointments of the two officials could result in
irreparable harm, especially in light of the allegations of serious
misconduct. The court also held that the respondents’
actions
of reappointing the same officials without the MEC's approval and in
light of P Bezuidenhout J’s judgment, were
unlawful. The
court granted an order in terms of which the appointments of Mr Nkosi
and Mr Menyuka were suspended and that the
Municipality and its
council were interdicted from appointing the two officials into such
acting positions in the future. The relief
relating to the review was
adjourned sine die and has not been proceeded with since then. Costs
were reserved for decision by the
court hearing the review
application.
Present
application
[39]
The present application is the third instalment in this saga. The
application
was issued on 6 September 2024. It appears from the MEC's
founding affidavit that after the handing down of Marion AJ's
judgment,
the Municipality appointed the third and fourth
respondents, Mr Zulu and Mr Dube, as acting municipal manager and
acting chief
financial officer, respectively, on 30 August 2024. The
MEC was provided with the Municipal Council’s resolution, the
third
and fourth respondents’ curriculum vitae (the CVs) and
their qualifications. The MEC subsequently received a departmental
briefing report on their appointments, which, allegedly established
that the two appointees were not possessed of the required
skills,
expertise, competencies, and qualifications as prescribed in the
Minimum Competency Regulations. The appointments were,
therefore,
said to be null and void in terms of sections 54A(3) and 56(2) of the
Systems Act. The briefing report is attached to
the founding
affidavit as annexure ‘TBD 6’.
[40]
The MEC stated that he engaged the Municipality on the appointments,
but to
no avail. The decision was made to approach the court on an
urgent basis, in terms of section 54A(8) of the Systems Act. The MEC
further stated that the Municipality has taken every step to avoid
having a properly qualified seconded official from assisting
with the
financial circumstances in which the Municipality finds itself.
[41]
The initial objection against Mr Zulu was that he does not have a
bachelor’s
degree in public administration, management, or law.
He apparently holds a postgraduate diploma in project management (NQF
level
8), obtained from the Regent Business School in 2023, a
national diploma in engineering (civil) from the Durban University of
Technology
obtained in 2005, and a certificate in municipal finance
management programme (MFMP) obtained in 2016. Mr Zulu was apparently
studying
towards his MBA degree but there was no evidence that he had
the minimum bachelor’s degree.
[42]
Mr Zulu allegedly did meet the criteria in respect of five years’
senior
management experience. According to his CV, he served in the
following positions:
(a)
Acting Director: Technical Services at the Ubuhlebezwe Local
Municipality for three months from
March 2024 to June 2024.
(b)
Acting Director: Technical Services at the Imbabazane Local
Municipality for a period of two years
and ten months from February
2013 to December 2015.
(c)
Acting Director: Technical/Municipal Manager at the Mpofana
Municipality for one year from January
2019 to December 2019.
(d)
Acting Director: Technical/Municipal Manager at the uMkhanyakude
District Municipality for two
years and eleven months from January
2016 to December 2018.
(e)
Chief Executive Officer (CEO)/Managing Director at Mageba Consulting
Engineers and Project Managers
for three months.
[43]
In a supplementary founding affidavit by the MEC filed on 9 September
2024,
it was stated that new information had been discovered
regarding Mr Zulu’s working experience at the municipalities
listed
in his CV, after the relevant municipalities had been
contacted. The information was contained in a supplementary briefing
report,
submitted to the MEC, and was attached to the supplementary
founding affidavit as annexure ‘NGK 1’:
(a)
The Ubuhlebezwe Municipality confirmed that Mr Zulu acted as
Director: Technical
Services for one month only.
(b)
The Imbabazane Municipality had been disestablished, so his
experience of two
years and ten months could not be confirmed.
(c)
The Mpofana Municipality confirmed that Mr Zulu acted as Director:
Technical
Services for 12 months from December 2018 to December 2019.
He, however, did not act as municipal manager as stated in his CV.
(d)
The uMkhanyakude District Municipality confirmed that Mr Zulu acted
as General
Manager: Technical Services from 4 April 2016 to 31 March
2017. He was not appointed as acting municipal manager as stated in
his
CV.
[44]
It was further stated that only 25 months of Mr Zulu’s
experience in
local government could be confirmed. Neither the
experience at the former Imbabazane Municipality nor the private
sector experience
could be confirmed. It was alleged that his CV
contained misrepresentations and that he therefore did not possess
the necessary
qualifications, skills, expertise, and competence to be
appointed as acting municipal manager.
[45]
The supplementary founding affidavit also made mention of a report by
Inkazimulo
Consulting, who investigated irregular, fruitless, and
wasteful expenditure at the Mpofana Municipality. The report found
that
there were irregularities warranting disciplinary proceedings
against Mr Zulu in respect of non-compliance with supply chain
management
procedures, but he had resigned in the meantime.
[46]
The Chief Directorate: Municipal Finance commented in the first
briefing report
regarding an allegation that Mr Zulu was apparently
owed an amount of R17 000 by the Municipality. He was, however, not
listed
as a creditor. Allegations further suggested that Mr Zulu’s
company previously undertook work on infrastructure projects but
payments made for the work did not align with actual deliverables on
the ground, which allegedly contributed to the Municipality
receiving
a qualification from the Auditor General during that financial year.
[47]
As far as Mr Dube was concerned, the MEC stated that although he
appeared to
possess the requisite qualifications, he did not have the
required experience of five years at middle management level.
According
to his CV, he served in the following positions:
(e)
CEO at Thorn Financial Group (Pty) Ltd (Thorn) for 19 years and 2
months from
July 2014 to present.
(f)
During the same time, he was also the chief financial officer of
Gearmax (Pty)
Ltd (Gearmax) from April 2017 to November 2021.
(g)
Expenditure manager at Vega Financial Management Services from
February 2015 to July
2019.
(h)
Senior accountant at Roth Equity from January 2013 to January 2016.
(i)
Accountant at the Mtubatuba Municipality for 17 months from September
2010 to
April 2011.
[48]
According to the briefing report and the Minimum Competency
Regulations, there
are no prescriptions on whether experience can be
in the private sector or whether it must be in local government. It
was, however,
stated that there is no evidence that Mr Dube’s
experience is substantially similar to the local government sphere.
The Municipality
would need to evaluate past work experience, inter
alia, by contacting past employers and obtaining copies of job
descriptions.
Bearing in mind the limited record of proceedings,
there does not appear to be any indication that such an exercise was
conducted.
It was also noted that Mr Dube failed to attach to his CV
copies of all his qualifications mentioned therein, making it
difficult
to conduct the assessment.
[49]
The Chief Directorate: Municipal Finance commented that although Mr
Dube holds
the title of CEO in a company he owns, it does not
necessarily equate to the requisite experience to effectively lead
the budget
and treasury office. The experience as an accountant at
the Mtubatuba Municipality was a junior position, which does not
equip
him with the strategic oversight or managerial skills necessary
for the chief financial officer position, which requires
comprehensive
financial planning, budget management, and the ability
to navigate the intricacies of municipal finance.
[50]
The MEC further stated that four qualified, experienced, and
competent officials
had been offered to the Municipality to choose
from to be seconded on two separate occasions, but the Municipality
did not respond.
The MEC re-iterated that the Municipality is in a
serious financial state and the appointment of unqualified persons
without the
requisite skills, experience, or competence will worsen
the position of the Municipality. The MEC
inter alia
relied on
a report drafted by Dr H Krishnan, the Chief Director: Municipal
Finance, attached to the papers as annexure ‘TDB
13’,
which deals with the Municipality’s cash flow projections and
financial viability.
[51]
The speaker of the Municipal Council, Ms BH Sithole, attested to an
interim
answering affidavit. She stated that there are no ‘temporary
vacancies’ as referred to in para 2.3 of the prayers in
the
notice of motion. The incumbent municipal manager is suspended
pending the outcome of his disciplinary process. She stated
further
that the Municipal Council must appoint an acting municipal manager
‘under circumstances and for a period as prescribed’
but
unfortunately there was a
lacuna
because no regulations
prescribing the circumstances and period have been published. The
power to appoint, which lies with the
Municipal Council, was duly
exercised because the suspension rendered it necessary. It was
submitted that the power to appoint
does not lie with the MEC, having
regard to the applicable constitutional status of municipalities and
the clear distinction made
between the role of a municipal council
and the oversight role of the MEC.
[52]
With regard to the factual issue, in particular Mr Zulu’s
qualifications,
it was stated that he has a postgraduate diploma in
project management, which is allegedly equivalent to an honours
degree as it
is weighted at NQF level 8, which is a greater weight
than a bachelor’s degree, which is weighted at NQF level 7. It
is an
equivalent qualification as contemplated by the Minimum
Competency Regulations. Mr Zulu furthermore has almost completed his
MBA.
It was submitted that he was qualified and was accordingly
lawfully appointed by the Municipal Council.
[53]
Ms Sithole also drew attention to the fact that Mr Zulu had
previously been
‘seconded’ to various municipalities by
the MEC’s department as a director on the strength of his
qualifications
and to positions which required a bachelor's degree or
equivalent and it was accepted that his qualification was equivalent
to
a degree. It is not clear to me to which secondments reference is
being made, as Mr Zulu’s CV did not refer to any secondments
by
the MEC.
[54]
As far as Mr Dube was concerned, Ms Sithole addressed his apparent
lack of
experience as alleged by the MEC. It was stated that the
position he held as Manager: Expenditure, was not a junior position
as
he reported directly to the chief financial officer and it is
therefore categorised as a middle management position. It, however,
appears from his CV that he held this position at a private entity,
Vega Financial Management Services, during 2015 to 2019, whilst
simultaneously holding other positions. Ms Sithole also stated that
Mr Dube held a position as Manager: Expenditure at the Municipality
but this appears to be an error. She contended that having more than
eight years’ experience as the chief financial officer
of
Gearmax made him suitable to be appointed as acting chief financial
officer.
[55]
Ms Sithole contended that a municipal council is the only body
empowered to
appoint an acting municipal manager and acting chief
financial officer. She stated that the MEC only has an oversight
function
to question the qualifications of persons and lacks the
lawful right to interfere in the decision of the Municipality to
appoint
suitable persons of its choice, which includes suitable
persons to act in the aforementioned posts where necessary.
[56]
As far as allegations of financial distress by the MEC were
concerned, Ms Sithole
stated that the MEC had other mechanisms
available and could not rely on section 54A of the Systems Act to
resolve the Municipality’s
administrative shortcomings. She,
however, denied that the Municipality was in financial distress and
stated that the MEC has failed
to provide any evidence of the
Municipality’s financial position.
[57]
Mr Zulu filed a confirmatory affidavit. He confirmed that he
possesses a postgraduate
diploma in project management, weighted at
NQF level 8, which is equivalent to an honours degree. He, therefore,
more than meets
the requirement of a bachelor's degree in management.
He attached his statement of results in respect of his postgraduate
diploma.
It shows his results as obtained between July 2022 and
January 2023. The NQF level was indicated as 8, but the total credits
were
only listed as 120 as opposed to the 360 credits referred to in
Regulation 3 of the Minimum Competency Regulations. Mr Zulu also
confirmed that he was enrolled for his master’s degree and was
three study units away from completing it. He denied that
he was not
suitable for appointment.
[58]
In reaction to the MEC's supplementary founding affidavit containing
statements
regarding his employment history, Mr Zulu denied that he
misrepresented the nature of his appointment at the uMkanyakude
Municipality.
He stated that although he was appointed as Director:
Technical Services, he would act as municipal manager from time to
time on
an ad hoc basis at the behest of the incumbent municipal
manager.
[59]
As far as the alleged financial irregularities at the Mpofana
Municipality
were concerned, Mr Zulu stated that it was the first
time that he had been made aware of the report by Inkazimulo
Consulting. He
disagreed with the findings against him. He further
stated that he had subsequently applied for and had been shortlisted
by the
Mpofana Municipality for the position of Technical Director,
which is odd if the allegations were true that he presided over
financial
irregularities. He was invited to attend an interview on 4
April 2024. He does not say whether his application was successful or
not.
[60]
Mr Dube likewise attested to a confirmatory affidavit. He stated that
he had
more than five years’ experience at middle management
level, which included experience in the private sector. He contended
that the experience required in terms of the Minimum Competency
Regulations is not confined to experience in the public sector.
Mr
Dube further stated that he had not updated his CV but that he
actually worked as group chief financial officer of Gearmax from
2017
up to 2021. He contended that on that experience alone, he meets the
threshold of five years’ experience at middle management.
He
did not address the concerns raised by Dr Krishnan.
[61]
On 11 September 2024, the MEC filed another supplementary affidavit,
again
attested to by Ms Khanyile, the Acting Chief Director:
Municipal Governance and Administration in the MEC’s
department, which
contained new information about Mr Zulu discovered
since the signing of the founding affidavit. It was alleged that the
new information
would demonstrate that he was not qualified to be
appointed as he had been, and if the Municipality had conducted a
proper assessment
and verification of his experience, it would not
have appointed him.
[62]
Based on
information received, it has come to light that Mr Zulu had
apparently submitted an application for a permanent appointment
to
the Mpofana Municipality in 2019. It was accompanied by a SAPS
clearance certificate and a letter dated 26 June 2019 from the
Criminal Record and Crime Scene Management Office. The letter stated
that his convictions for fraud dated 24 February 2010 were
expunged
in terms of section 271B of the Criminal Procedure Act 51 of 1977
(the CPA). It was signed by Brigadier NB Baloyi. During
its vetting
process, the Mpofana Municipality instructed its attorney to confirm
with the SAPS whether it was indeed the author
of the letter dated 26
June 2019, confirming the expungement. On 23 July 2019, a letter was
received from Captain Paul Marais of
the SAPS, who recorded that the
aforementioned letter and clearance certificate were not authored by
the SAPS. Captain Marais inter
alia explained that the third
respondent did not qualify for an expungement of his criminal
record.
[10]
[63]
Mr Zulu subsequently submitted another letter from the SAPS, this
time dated
26 July 2019, to the Mpofana Municipality, which recorded
that his criminal convictions were expunged. It was again accompanied
by a clearance certificate dated 30 July 2019. The Mpofana
Municipality’s attorney again wrote to the SAPS and asked for
confirmation of the authenticity of the letter and clearance
certificate. In a letter dated 5 November 2019, Captain Marais again
refuted the authenticity of the letter and certificate submitted by
the third respondent. The Mpofana Municipality subsequently
terminated Mr Zulu’s acting appointment as Director: Technical
Services, which led to litigation between the parties.
[64]
Ms Khanyile alleged that Mr Zulu had perpetrated a fraud on the
Mpofana Municipality
and that if the Municipality had conducted a
proper assessment and evaluation of his application, it would have
realised that he
is not suitable to be appointed as acting municipal
manager.
[65]
Needless to say, the Mr Zulu filed a further answering affidavit to
deal with
these latest allegations. He denied submitting fraudulent
police clearance certificates. He stated that
‘
like
every citizen in this country, I attended to the Mpofana SAPS to
apply for the expungement of my criminal record. I filled
a form and
my fingerprints were taken to accompany the form. I left everything
in the capable hands of the police officials for
onwards transmission
to the relevant office.’
According
to him, he attached the clearance certificate which he had received
back from the SAPS to his application form. When there
was a query
regarding the clearance certificate, he returned to the police
station to inquire about the issue. He was informed
that there had
been a mistake and the process was restarted for a fresh certificate.
He received the new clearance certificate
and again submitted it to
the Mpofana Municipality, with the same result. Mr Zulu’s
contract was terminated as mentioned
above, and he was charged with
fraud. He appeared in the Mooi River Magistrates’ Court. After
making representations to the
prosecutor, the charges were withdrawn.
He attached the representations made to the prosecutor, wherein he
stated
inter
alia that he ‘had a record in 2008’.
It, however, appears from what has been mentioned above, that he was
only convicted
on 24 February 2010. He also stated that he
desperately needed to seek employment ‘and having a criminal
record is a huge
obstacle in this regard’.
[66]
Mr Zulu stated that on 14 February 2024, he received a letter from
the SAPS,
confirming that his criminal record has been expunged. He
had no idea why the SAPS twice issued an invalid clearance
certificate.
He also stated that the Municipality and its council had
assessed his application based on the letter of 14 February 2024,
which
referred to his convictions on two counts of fraud dated 24
February 2010 being expunged. Mr Zulu, however, did not explain on
what basis he applied for his record to be expunged in June 2019,
when the 10 year period referred to in section 271B of the CPA
clearly had not yet elapsed. I find it strange that a police official
would accept and process such an application when it does
not comply
with the stipulated time period for such applications.
[67]
The MEC filed its replying affidavit attested to by Ms Khanyile. She
highlighted
that the Municipality’s answering affidavit failed
to explain why the Municipal Council was entitled to make further
appointments.
This would ordinarily require an application to the
MEC, demonstrating that special circumstances and good cause exist,
which would
justify an extension of such acting appointments.
[68]
They also failed to explain why they were entitled to appoint Mr Zulu
and Mr
Dube for a period of three months, despite having appointed Mr
Nkosi and Mr Menyaka in the acting positions from 1 April 2024 up
until 28 August 2024, when Marion AJ interdicted them from holding
these positions. Ms Khanyile stated that as a result of the
Municipality’s refusal to approach the MEC for an appointment
in terms of sections 54A and 56 of the Systems Act, the Municipality
has been without a lawfully appointed acting municipal manager and
chief financial officer since 1 July 2024.
[69]
It was
contended on behalf of the MEC that on the correct interpretation of
section 54A, the MEC would be entitled to second someone
to the
position of municipal manager upon a request from a municipality. It
was also contended that the MEC was legally permitted
to second
senior managers to a municipality in terms of
section 6
of the
Public Administration Management Act 11 of 2014
,
[11]
provided that it was done in consultation with the relevant
municipality and its council. At the hearing of the matter, the MEC’s
counsel however placed on record that
section 6
has not yet been put
into operation. Ms Khanyile stated further that the only reason a
secondment has not been affected is because
the Municipality has
refused to request or consult with the MEC, despite the MEC’s
repeated attempts to engage the Municipality.
The Municipality’s
attitude and actions are in complete disregard of the effect on the
stability of the Municipality, which
in turn affects the people of
Nongoma.
[70]
Ms Khanyile dealt with the position of Mr Dube and stated that the
respondents
have failed to place material information before the
court relating to his employment before and after the institution of
these
proceedings. It was alleged that according to Mr Dube’s
CV, he is currently the chief financial officer of Thorn. The
Municipality
has, however, previously published an intention to award
a tender to Thorn as part of its panel of financial experts (this
related
to internal audit services), for a period of 36 months. The
intention to award is attached to the papers as annexure ‘NGK
12’. Mr Dube is accordingly the chief financial officer of an
entity that is providing services to the Municipality and he
is
therefore precluded from being appointed as a senior manager because
it will, inter alia, create a serious conflict of interest,
which
disqualifies him. I pause to mention that Mr Pillemar SC, appearing
on behalf of the respondents, submitted from the bar
that the tender
is no longer before the Municipal Council and that Mr Dube is no
longer employed by the entity. However, looking
at what is before me,
this was clearly not the position when the Municipality appointed Mr
Dube initially.
[71]
Ms Khanyile further stated that the respondents have failed to inform
the MEC,
as well as the court, that Mr Dube resigned on 6 September
2024 as chief financial officer, as is evident from his resignation
letter, attached as annexure ‘NGK 13’. Despite this
letter, the Municipality filed an answering affidavit on 9 September
2024, persisting with its decision to appoint Mr Dube, well knowing
that he had resigned.
[72]
I pause again to mention that Mr Pillemar submitted from the bar that
Mr Dube
had subsequently chosen to withdraw his resignation.
[73]
Ms Khanyile further contended that Mr Dube has provided no evidence
that he
has the experience required for the position of chief
financial officer in a municipality or, alternatively, has
substantially
similar experience required in the local government
sphere. He furthermore had to demonstrate that he is competent in
financial
and supply chain management, which would, inter alia,
involve the management of municipal assets and liabilities and the
design
of supply chain management policies and systems. It was
contended that he had failed to demonstrate that he has the
competency
to carry out these functions.
[74]
As far as Mr Zulu’s further answering affidavit was concerned,
in which
the issue of the alleged fraudulent documents was addressed,
Ms Khanyile stated that although he sought to explain away the
alleged
fraud relating to his previous conviction, he did not dispute
that he had a previous conviction for fraud. He furthermore ought
to
have known that, at the time, his criminal record was only 9 years
old and that he did not qualify for an expungement. It was
contended
that this on its own is sufficient to render him unsuitable to be
accountable for the Municipality’s assets and
finances.
[75]
This is then the background against which the issues are to be
determined.
The
approach to interpreting statutes
[76]
Much has
been said over time about the way to go about interpreting
statutes.
[12]
In a restatement
of
Endumeni
by
Unterhalter AJA in
Capitec Bank
Holdings,
it was held that:
[13]
‘
Our analysis must
commence with the provisions of the subscription agreement that have
relevance for deciding whether Capitec Holdings'
consent was indeed
required. The much-cited passages from
Natal Joint Municipal
Pension Fund v Endumeni Municipality (Endumeni
) offer
guidance as to how to approach the interpretation of the words used
in a document. It is the language used, understood
in the context in
which it is used, and having regard to the purpose of the provision
that constitutes the unitary exercise of
interpretation. I would only
add that the triad of text, context and purpose should not be used in
a mechanical fashion. It is
the relationship between the words used,
the concepts expressed by those words and the place of the contested
provision within
the scheme of the agreement (or instrument) as a
whole that constitute the enterprise by recourse to which a coherent
and salient
interpretation is determined. As
Endumeni
emphasised,
citing well-known cases, “(t)he inevitable point of departure
is the language of the provision itself”.’
(Footnotes
omitted.)
[77]
More
recently it was held in
Minister
of Police and others v Fidelity Security Services (Pty) Ltd and
others
that:
[14]
‘
The
interpretation of the Act must be guided by the following principles:
(a)
Words in a statute must be given their ordinary grammatical meaning
unless to do so
would result in an absurdity.
(b)
This general principle is subject to three interrelated riders: a
statute must be
interpreted purposively; the relevant provision must
be properly contextualised; and the statute must be construed
consistently
with the Constitution, meaning in such a way as to
preserve its constitutional validity.
(c)
Various propositions flow from this general principle and its riders.
Among others,
in the case of ambiguity, a meaning that frustrates the
apparent purpose of the statute or leads to results which are not
business-like
or sensible results should not be preferred where an
interpretation which avoids these unfortunate consequences is
reasonably possible.
The qualification “reasonably possible”
is a reminder that Judges must guard against the temptation to
substitute what
they regard as reasonable, sensible or business-like
for the words actually used.
(d)
If reasonably possible, a statute should be interpreted so as to
avoid a
lacuna
(gap) in the legislative scheme.’
(Footnote omitted.)
[78]
In addition
to what was held regarding a
lacuna
above,
it was stated in
Shiva
Uranium (Pty) Ltd (In Business Rescue) and another v Tayob and others
that:
[15]
‘
If
at all possible, a statute must be interpreted so as to avoid a
lacuna, and if the legislative intent is “clear and
indubitable”
the court may expand the literal meaning of words
so as to avoid the lacuna.’ (Footnotes omitted.)
Just
and equitable relief
[79]
The general
principles applicable to relief sought in terms of section 172(1)
(b)
of the Constitution have been dealt with in a number of cases. Both
counsel referred me to several decisions in their heads of
argument.
In
Electoral
Commission v Mhlope and others
[16]
the Constitutional Court held that:
‘
Section
172(1)
(b)
clothes our courts with remedial powers so
extensive that they ought to be able to craft an appropriate or just
remedy, even
for exceptional, complex or apparently irresoluble
situations. And the operative words in this section are
“any
order that is just and equitable”. This means that
whatever considerations of justice and equity point to as the
appropriate
solution to a particular problem, it may justifiably be
used to remedy that problem. If justice and equity would best be
served
or advanced by that remedy, then it ought to prevail as
a constitutionally sanctioned order contemplated in s
172(1)
(b)
.’
[80]
In
Economic
Freedom Fighters
and
others v Speaker of the National Assembly and another
[17]
the court, with reference to
Head
of Department, Mpumalanga Department of Education and another v
Hoërskool Ermelo
and
another
[18]
held that:
‘
[210]
However, this court's remedial power is not limited to
declarations of invalidity. It is much wider. Without any
restrictions
or conditions, s 172(1)
(b)
empowers
courts to make any order that is just and equitable. In
Hoërskool
Ermelo
the court said about a just
and equitable remedy:
“
The
power to make such an order derives from s 172(1)
(b)
of
the Constitution. First, s 172(1)
(a)
requires
a court, when deciding a constitutional matter within its power, to
declare any law or conduct that is inconsistent
with the Constitution
invalid to the extent of its inconsistency. Section 172(1)
(b)
of
the Constitution provides that when this court decides a
constitutional matter within its power it may make any order that
is
just and equitable. The litmus test will be whether considerations of
justice and equity in a particular case dictate that
the order
be made. In other words the order must be fair and just within the
context of a particular dispute.”
[211] The power to grant
a just and equitable order is so wide and flexible that it allows
courts to formulate an order that does
not follow prayers in the
notice of motion or some other pleading. This power enables
courts to address the real dispute between
the parties by requiring
them to take steps aimed at making their conduct to be consistent
with the Constitution. In
Hoërskool Ermelo
Moseneke
DCJ declared:
“
A
just and equitable order may be made even in instances where
the outcome of a constitutional dispute does not hinge on
constitutional
invalidity of legislation or conduct. This ample and
flexible remedial jurisdiction in constitutional disputes permits a
court
to forge an order that would place substance above mere form by
identifying the actual underlying dispute between the parties and
by
requiring the parties to take steps directed at resolving the dispute
in a manner consistent with constitutional requirements.
In several
cases this court has found it fair to fashion orders to facilitate a
substantive resolution of the underlying dispute
between the parties.
Sometimes orders of this class have taken the form of structural
interdicts or supervisory orders. This approach
is valuable and
advances constitutional justice, particularly by ensuring that the
parties themselves become part of the solution.”’
(Footnotes omitted.)
[81]
I was also
referred to
Rail
Commuters Action Group and others v Transnet Ltd t/a Metrorail and
others
[19]
where
the court held that:
‘
A
declaratory order is a flexible remedy which can assist in clarifying
legal and constitutional obligations in a manner which promotes
the
protection and enforcement of our Constitution and its values.
Declaratory orders, of course, may be accompanied by other forms
of
relief, such as mandatory or prohibitory orders, but they may also
stand on their own. In considering whether it is desirable
to order
mandatory or prohibitory relief in addition to the declarator, a
court will consider all the relevant circumstances.’
Submissions
on behalf of applicant
[82]
It was
submitted by Mr Dickson SC, appearing on behalf of the MEC, that the
parties find themselves in a legal
cul-de-sac.
It was
submitted that the Municipality does not have the power to make a
further appointment beyond the six months and the MEC does
not have
the power to second someone without being requested to do so, leading
to a standoff between the parties. It was also submitted
that there
is a further issue that needs to be addressed: this is the absence of
a provision in section 56 of the Systems Act granting
the MEC the
power to second a chief financial officer. It was further submitted
that despite section 54A(1)
(b)
referring to the appointment of an acting municipal manager under
circumstances and ‘for a period as prescribed’, no
such
regulations have been published. One must therefore have regard to
what is set out in the remainder of section 54A, and in
particular
section 54A(2A), in terms of which an acting municipal manager may
not be appointed for more than three months, and
thereafter as
extended by the MEC. It was submitted that the acting appointments
should be set aside on, inter alia, the basis
that Mr Zulu’s
and Mr Dube’s acting appointments follow upon a set of other
acting appointments which have expired
and cannot be extended to six
months because the Municipality did not seek an extension from the
MEC, and the relevant sections
do not contemplate a second set of
appointments, making the acting appointments illegal. I was referred
to
Notyawa
v Makana Municipality and others
[20]
where it was held that:
‘
[8]
It is quite apparent that Parliament has entrusted the MEC to monitor
compliance with the Systems Act…
[9] Section 54A forms
part of the backdrop against which the delay, which was central to
the High Court’s decision, must be
assessed. The section
prescribes short periods within which certain steps are to be taken
in the process of filling in a vacancy
for the post of a municipal
manager. This is the position even in the case of a stop-gap. The
section precludes the appointment
of acting municipal managers for a
period in excess of three months. And where an extension is granted
by the MEC, it may not exceed
a further three months. This indicates
that the section envisages that the appointment of a permanent
municipal manager must be
done within six months.
[10] Where this is not
possible, the section affords two options to municipalities. The
first is to solicit a secondment of a suitably
qualified official
from the MEC. If the latter fails to do so within 60 days, the
municipality concerned is allowed to approach
the relevant Minister
who is required to second a suitable official to the municipality
without delay. Even where an appointment
is made, the monitoring
function by the MEC must be carried out within 14 days from the date
on which a report is received. For
its part, a municipality is
obliged to submit the report within 14 days from the date of
appointment.
[11] All these tight time
frames are not a surprise. The entire scheme of section 54A is
predicated on having suitably qualified
persons appointed as
municipal managers. And having those appointments made within a short
span of time because municipal mangers
are vital to the proper
administrative functioning of municipalities.’
[83]
Counsel emphasised the importance of the reference by the
Constitutional Court
to the MEC being entrusted to monitor compliance
with the Systems Act. It was also submitted that what is stated in
paras 9 and
10 confirms what is stated in the Systems Act but
unfortunately does not deal with what is before me now.
[84]
I was also
referred to
Member
of the Executive Council for Local Government, Environmental Affairs
and Development and Development Planning, Western Cape
Province v
Knysna Municipality and others and a related matter
,
[21]
where the court dealt with sections 54A(2A) and 56(1)
(c)
.
[22]
The court, relying, inter alia, on
Notyawa
,
held that acting appointments made in terms of section
56(1)(a)(ii) are limited to a single three-month period which may,
by
application in writing to the MEC and in special circumstances and on
good cause shown, be extended for a further once-off period
of three
months’.
[23]
In this
matter, the municipality had
inter
alia
appointed the same acting chief financial officer for further
three-month periods without having applied to the MEC for an
extension.
[85]
It was further submitted that to make sense of section 54A(6), it has
to be
read with sub-section (4), which sets out the steps to be taken
once a post becomes vacant, which includes advertising the post.
Once
this has been done, the MEC can second someone suitable, in the
advertised post, pending appointment of a suitable candidate.
It was
submitted that one must read into the word ‘vacancy’, a
vacancy resulting from a suspension. If not, it would
lead to an
absurdity, because the acting appointments cannot be longer than six
months. Although the legislation envisaged the
process not taking
longer than six months, the present case shows that six months later,
the disciplinary process has still not
been finalised. It was
suggested that the reference in the 2010 Regulations to a three-month
period of suspension without an option
of an extension, within which
to finish the process in order to create a vacancy, and only
thereafter being able to request a secondment
could well be a hiatus
( a break in continuity).
[86]
It was also
submitted that in terms of section 41 of the Constitution,
which deals with the principles of co-operative government
and
intergovernmental relations, the Municipality can ask for assistance,
which the MEC is able to provide. It was submitted that
as a last
resort, the MEC could ask the court, as a just and equitable remedy,
to give it the power to second a suitable person
in the present
circumstances. As far as a just and equitable remedy was concerned, I
was also referred to the following passage
in
Central
Energy Fund SOC Ltd and another v Venus Rays Trade (Pty) Ltd and
others
:
[24]
‘
[36]
A court in review proceedings, whether under the principle of
legality or the provisions of PAJA, has a wide discretion to
craft an
appropriate remedy based on what is just and equitable in the
circumstances of the case. The remedy must be fair
to all those
affected by it, and yet effectively vindicate the rights violated. In
terms of s 172(1)
(b)
of
the Constitution a court is authorised to make any order that is just
and equitable pursuant to a declaration of constitutional
invalidity.
[37] It is settled law
that s 172(1)
(b)
of the Constitution confers on the
courts very wide powers to craft an appropriate or just remedy even
in “exceptional,
complex or apparently irresoluble
situations”. The Constitutional Court has held that —
“
(t)he
power to grant a just and equitable order is so wide and flexible
that it allows courts to formulate an order that does not
follow
prayers in the notice of motion . . . [and] enables [them] to address
the real dispute between the parties . . .”.’
[87]
It was submitted with reference to regulation 20 of the 2014
Regulations that
the Municipality might find the obligation on a
seconded person to report monthly to the MEC offensive, especially in
light of
the history between the parties. The Municipality was
described as stubborn and determined to make sure that it could
appoint someone
themselves.
[88]
As far as the factual issue is concerned, it was submitted that the
defences
raised by Mr Zulu and Mr Dube were unconvincing, as the
reports compiled by the MEC’s officials clearly showed.
Reference
was made to Mr Zulu’s employment at the Mpofana
Municipality, in particular the report setting out certain
irregularities.
Despite him stating that he was never provided with
the report, it still remains on record and was not dealt with because
he resigned.
The issue regarding his fraud convictions was also
raised and it was submitted that he was not a suitable person to be
appointed.
It was lastly submitted that his appointment falls to be
set aside on the grounds of an ordinary review for want of compliance
with section 54A(2).
[89]
With reference to Mr Dube, it was submitted that he only had
experience in
the private sector and that he was not a suitable
person to be appointed and his appointment should therefore be set
aside. It
was, however, submitted that it would still not assist the
Municipality, which requires a solution to the legal issues. It was
submitted that the only solution was for the Municipality to request
a secondment, after which the MEC would provide a fully qualified
and
suitable person with the required skills, expertise, and competence.
Submissions
on behalf of respondents
[90]
Mr Pillemar placed on record that the disciplinary hearing of the
incumbent
municipal manager had been finalised a week before the
hearing and that the verdict was being awaited. Such a verdict must
be provided
within 10 days.
[91]
It was submitted that a municipal council is the only authority who
can appoint
a municipal manager or an acting municipal manager. It
was submitted that this was the case even if the appointment was done
by
way of a request for a secondment, which request is from a
municipality for a specific suitable person. It was contended that a
municipality must choose and provide a suitable person, and the MEC
must second this person if legislation makes provision for
a
secondment.
[92]
It was further submitted with reference to section 54A, that if there
is no
advertised vacancy but a necessity for a municipal manager, a
municipal council has the power to make an appointment more than once
and there was nothing in the Systems Act that says it cannot be done.
It was contended that sections 54A(1), (2), (2A) and (3)
apply to all
situations. From section 54A(4) onwards, the Systems Act deals with
what happens when a post becomes vacant and what
follows thereafter.
Section 54A(6), in no uncertain terms, refers to a person being
seconded to act in ‘the advertised position’,
which is
clearly a reference to the vacant position which is now being
advertised. It was submitted that this section has no application
to
suspensions.
[93]
In retuning to section 54A(1)
(b)
, in terms of which an acting
municipal manager can be appointed ‘for a period as
prescribed’, it was submitted that
there was a
lacuna
as
the period prescribed is not dealt with in any regulations. If,
however, one reads section 54A(2A)
(a),
it is capable of being
interpreted that an appointment should not be for more than three
months but that there may be more than
one appointment. An acting
appointment is not allowed to run forever so there must be a fresh
appointment every three months. With
reference to section 54A(2A)
(b)
,
it was submitted that if a municipality wanted to keep the same
person for longer than three months, it has to obtain the MEC’s
permission ‘to extend the period of appointment contemplated in
paragraph
(a)
, for a further period that does not exceed three
months’, rather than making another fresh appointment. It was
submitted
that if this interpretation was wrong, and it is found that
a municipal council cannot appoint people more than once every three
months and that it has no power to make more than one three-month
appointment, it would lead to an impossible situation as a municipal
manager is part of the municipal structure. It should also be borne
in mind that in some instances disciplinary proceedings can
take a
long time to be finalised and may not be concluded in the three-month
period. A municipality cannot apply for a secondment
in the absence
of a vacancy. As it would be impossible for a municipality to fulfil
its mandate, an order in terms of section 172(1)
(b)
of the
Constitution could provide recourse where the court could structure
just and equitable relief. It was submitted that the
reading into
section 54A(2A) of the power to make more than one appointment would
provide the mechanism to achieve a just outcome.
[94]
With reference to
Notyawa,
it was submitted that it dealt with
a situation where there was a vacancy that had been advertised and
that in the present matter,
the power to second is not available
because there is no advertised vacancy.
[95]
As far as the factual question was concerned, it was submitted that
both respondents
have sufficiently explained the issues raised. Mr
Zulu explained the circumstances surrounding his criminal record. It
was submitted
that Mr Dube had the required qualifications and
experience. It was contended that it was furthermore only acting
appointments
and that one could be more lenient in respect of the
requirements.
[96]
In closing, it was submitted that the key question to be dealt with
to enable
the parties to have an answer going forward, was whether a
municipality could choose the person it wanted seconded by the MEC.
The MEC believes that he can impose a person on a municipality but it
wants to choose someone who it will be happy with and whose
personality fits in. I was briefly addressed on the issue of costs,
it being submitted that it is a constitutional issue that has
arisen,
which requires an answer by the court: costs should therefore not
follow the result.
The
applicant’s reply
[97]
Mr Dickson,
in reply, submitted that although there is not a
de
facto
vacancy, there is no one doing the job, resulting in a vacancy.
Reference was made to
Notyawa
and in particular to the reference to a ‘stop-gap’.
[25]
This could be when someone is on suspension. As far as the
submission made on behalf of the respondents that the Municipality
can nominate the person it wished to be seconded, it was submitted
that this is clearly not mentioned in the relevant section.
It was
submitted that the MEC has to power to second and it must be
according to his discretion. It was lastly submitted that the
Municipality has had enough chances and now faces serious problems
with its financial affairs: it cannot be allowed to nominate
another
person.
Relief
sought by the respective parties
[98]
As mentioned at the outset, I asked the parties to provide me with
draft orders
of the relief they would be seeking, especially in light
of both parties urging me to craft a just and equitable remedy. I
will
quote their proposals in full, despite the length of the
respondents’ proposed draft order.
[99]
The applicant proposed the following relief:
‘
1.
That the Second Respondent’s decision taken on 30
th
August 2024 to appoint:-
1.1
Third Respondent as the Acting Municipal Manager for a period of
three months; and
1.2
Fourth Respondent as the Acting Chief Financial Officer for a period
of three months;
be
and are (sic) hereby set aside on review alternatively, are set aside
as being contrary to the law and the principle of legality.
2.
That in terms of Section 172 (1)(b) of the Constitution and as an
interim measure
pending the final determination of the disciplinary
enquiries of the Municipal Manager and Chief Financial Officer the
Applicant
is directed and authorised to second suitable persons at
his discretion who have the skills, expertise, competencies, and
qualifications
as prescribed by the
Local Government: Municipal
Systems Act 32 of 2000
to act in the positions of:-
Municipal
Manager; and
Chief
Financial Officer
of
the Nongoma Local Municipality in terms of Regulation 20 of the Local
Government: Regulations on Appointment and Conditions of
Employment
of Senior Managers 17 January 2014.
3.
That the costs of this application, and the reserved costs of Case
Numbers 11032/24P
and 12291/2024 be paid by First and Second
Respondents.’
[100]
The respondents proposed the following relief in a rather cumbersome
and taxing-to-read draft order:
‘
1.
It is declared that upon a
proper interpretation of
section 54A
of the
Local Government:
Municipal Systems Act, Act
32 of 2000 (“the Act”):
1.1
Where no vacancy as contemplated by section 54A(4) of the Act
exists
but a necessity to appoint a person to act as municipal manager
arises due to the incumbent municipal manager being unable
to perform
or prevented from performing the functions of municipal manager for a
temporary period due to ill-health, temporary
suspension or
otherwise, the municipal council has the duty in terms of section
54A(1)(b), read with section 54A(2) and section
54A(2A)(a) of the
Act, to appoint an acting municipal manager who meets the
requirements of section 54A(2) for a period not exceeding
three
months and, if the necessity for an acting appointment extends beyond
the periods provided for in section 54A(2A) the municipal
council has
the duty in terms of section 54A(1)(b) to make an acting appointment
and must do so, again subject to the time limitations
imposed by
section 54A(2A)(a) namely that each such appointment may not be for a
period that exceeds three months.
1.2
Where there is an unfilled advertised vacancy and an acting
municipal
manager appointed in terms of section 54A(1)(b) has completed the
period allowed for such acting appointment in terms
of section
54A(2A), the municipal council must exercise the duty imposed on it
in section 54A(1)(b), read with section 54A(2) and
section 54A(2A)(a)
of the Act, to appoint an acting municipal manager by requesting the
MEC for local government to second a person
nominated by the
municipal council to perform the functions and role of the municipal
manager, until such time as the need for
such acting appointment
ends; provided such person is suitably qualified to the reasonable
satisfaction of the MEC for local government
to be seconded,
alternatively
if the municipal council elects not to nominate
a person of its choosing, it must exercise the duty imposed on the
council in section
54(1)(b) by requesting the MEC to second a
suitable person selected by the MEC and agreed to by the municipal
council and the person
to be seconded.
2.
It is declared that upon a proper interpretation of section 56
of the Act:
2.1
Where no vacancy as contemplated by section 56(3) of the Act
exists
but a necessity to appoint a person to act as chief financial officer
arises due to the incumbent chief financial officer
being unable to
perform or prevented from performing the functions of municipal
manager (sic) for a temporary period due to ill-health,
temporary
suspension or otherwise, the municipal council has the duty in terms
of section 56(1)(a)(ii), read with section 56(1)(b)
and (c) of the
Act, to appoint an acting chief financial officer who meets the
requirements of section 56(1)(b) for a period not
exceeding three
months and, if the necessity for an acting appointment extends beyond
the periods provided for in section 56(1)(c),
the municipal council
has the duty in terms of section 56(1)(a)(ii) to make an acting
appointment and must do so, again subject
to the time limitations
imposed by section 56(1)(c) namely that each such appointment may not
be for a period that exceeds three
months.
3.
The decision taken by the Second Respondent on 30 August 2024
to appoint the Third Respondent as acting municipal manager and the
Fourth Respondent as acting chief financial officer were (sic) not
contrary to law and the principle of legality.
4.
The application is dismissed and there is no order as to
costs.
5.
Alternatively to paragraphs 1 to 4 above
, in the event
of it being held that a municipal council lacks the power to make a
further appointment of an acting municipal manager
under section
54A(1)(b) of the Act once the time period imposed in section 54A(2A)
has expired, then the following order is granted:
5.1
It is declared that the Second Respondent lacked the lawful
power to
make more than one appointment under section 54A(1)(b) and
section
56(1)(ii)
of the
Local Government: Municipal Systems Act, Act
32
of 2000 (“the Act”) and in the result the decision of the
Second Respondent on 30 August 2024 to appoint the Third
and Fourth
Respondents as acting municipal manager and acting chief financial
officer respectively is declared to be unconstitutional
and the
decision is set aside in terms of section 172(1)(a) of the
Constitution, 1996.
5.2
In terms of section 172(1)(b) of the Constitution, 1996 and
until the
promulgation of regulations as contemplated by section 54A(1)(b) of
the Act prescribing the period of appointment of
acting municipal
managers in circumstances where there is a necessity for an acting
appointment but no vacancy to be advertised,
it is directed that:-
5.2.1
Second Respondent (“the municipal council”) must exercise
the duty imposed
on it in section 54A(1)(b), read with section 54A(2)
and section 54A(2A)(a) of the Act, to appoint an acting municipal
manager
who meets the requirements of section 54A(2) to the
reasonable satisfaction of the MEC for local government for a period
not exceeding
three months and, if the necessity for an acting
appointment extends beyond the periods provided for in section
54A(2A), the municipal
council has the duty in terms of section
54A(1)(b) to make another appointment subject again to the time
limitations imposed by
section 54A(2A)(a) namely that no such
appointment may be for a period that exceeds three months.
Alternatively, to
5.2.1
5.2.2
the municipal council must exercise the duty imposed on it in
s54A(1)(b), read with section
54A(2) and
section 54A(2A)(a)
of the
Local Government: Municipal Systems Act, Act
32 of 2000 (“the
Act”), to appoint an acting municipal manager by requesting the
MEC for local government to second
a person nominated by the
municipal council to perform the functions and role of the municipal
manager, until such time as the
need for such acting appointment
ends, provided such person is suitably qualified to the reasonable
satisfaction of the MEC for
local government to be seconded,
alternatively if it elects not to nominate a person of its choosing,
by requesting the MEC to
appoint a suitable person selected by the
MEC and agreed to by the municipal council.
5.2.3
The municipal council must exercise the duty imposed upon it in
section 56(1)(a)(ii),
read with
section 56(1)(b)
and (c) of the
Local Government: Municipal Systems Act, Act
32 of 2000 (“the
Act”), to appoint an acting chief financial officer who meets
the requirements of section 56(1)(b)
of the Act for a period not
exceeding three months and, if the necessity for an acting
appointment extends beyond the periods provided
for in section
56(1)(c), the municipal council has the duty in terms of section
56(1)(a)(ii) to make an acting appointment and
must do so, again
subject to the time limitations imposed by section 56(1)(c) namely
that each such appointment may not be for
a period that exceeds three
months.
5.3
There is no order as to costs.’
Discussion
and analysis
The
legality issue
[101]
The nature of the issues in this matter has necessitated a lot of
consideration and a careful scrutiny
of the Systems Act and the
relevant regulations. Sections 54A(1)
(b)
and (2A), in my view,
clearly deal with situations where an acting appointment is required,
for example when a municipal manager
is on suspension or perhaps ill
for an extended period. The maximum period for an acting appointment
is six months. If the suspension
or illness turns into a de facto
vacant position, and the six-month period within which to fill the
vacancy is coming to an end,
then a municipality may request the MEC
for a secondment of a suitable person to act in the advertised
position.
[102]
Notyawa
held
that the appointment of a permanent manager must be done within six
months.
[26]
There
are,
however, two further important paragraphs in
Notyawa
that are relevant to the issue at hand. The Constitutional Court went
on to state the following:
‘
[52]
However, the present matter is distinguishable from
Gijima.
It
does not involve a serious breach of the Constitution. Nor is the
illegality of the impugned decisions clearly established on
the
facts. On the contrary, it appears that these decisions were taken in
compliance with section 54A of the Systems Act…
[53] Moreover, in the
context of section 54A, the Municipality must have had no less than
four acting municipal managers to date.
This is because each acting
appointment may not exceed six months. The Municipality has been
without a permanent manager from 2015
and this must have impacted
negatively on service delivery to its residents.’
It
appears from the factual background that an advertisement inviting
candidates to apply for appointment as municipal manager was
published in November 2014. It furthermore appears that after the
vacant post had been advertised, various acting municipal managers
had been appointed for six-month intervals. The different
appointments of six months at a time of different persons, after the
vacancy had been advertised, were not considered to be an illegality
by the Constitutional Court.
[103]
I have to agree with Mr Pillemar that section 54A(2A) is to be
interpreted to mean that a person can
be appointed for three months,
and thereafter, if the municipal council wants to retain the same
person for a further period of
three months, the MEC must be
requested to extend that person's appointment for a further
three-month period. A specific person
can therefore only act for six
months, whereafter another person must be appointed. In my view, this
can continue until the post
in fact becomes vacant and the
appointment of a permanent municipal manager commences by advertising
the post. The acting appointment
can then only endure for a period of
six months. If the process is not completed within the six months,
the MEC may be asked to
second someone suitable to act in the
advertised position. In the case of a suspension, the timelines are
prescribed by regulation
6(6)
(a)
of the 2010 Regulations. The
disciplinary hearing must commence within three months, failing
which, the suspension will lapse.
Any concerns about dragged-out and
repetitive acting appointments in the case of a suspension are, in my
view, addressed by this
time limitation.
[104]
In
Knysna,
where,
as mentioned above, the court was dealing with successive acting
appointments in terms of section 56(1)(a)(ii), it found
that acting
appointments were limited to a single three month period, which could
be extended for a further once off period of
three months. The court
also issued a declarator to this effect
[27]
.I
agree with this finding in so far it refers to the once off acting
appointment of a total of six months in respect of a specific
person.
The court however only had to consider whether the Council’s
decision to re-appoint the same acting chief financial
officer
contravened section 56(1)(c), which it clearly did. The decision
unfortunately does not assist in answering the question
as to what
happens after the six months and whether further appointments can be
made.
[105]
The respondents, in their proposed draft order at para 1.1, want to
do away with the requirement in
section 54A(2A)
(b)
in terms of
which the MEC may, upon application, extend the acting appointment
for a further period of three months, when there
is no vacancy. The
Municipality clearly wants far-reaching relief in order to minimise
any possible input or influence from the
MEC, despite the recognised
duty of the MEC to monitor compliance with the Systems Act.
[106]
As far as a
secondment in terms of section 54A(6) is concerned, it has become
clear that this is in fact the main bone of contention
between the
parties. A plain reading of the section suggests that the secondment
can only be made at the request of a municipality
once the post has
been advertised.
[28]
The Municipality wants the section to be interpreted to mean that it
can choose a suitable person, who the MEC must then second
to act in
the advertised position. The MEC, on the other hand, holds the view
that it chooses a suitable person who it then seconds.
With regard to
this application, the MEC, however, wants to take it a step further
by requesting an order in terms of which it
is directed to second
suitable persons to act pending the final determination of the
disciplinary enquiries of the municipal manager
and chief financial
officer. I will return to this below.
[107]
On a simple reading of section 54A(6), one would have to insert the
words ‘of the municipality’s
choosing’ after the
words ‘to second a suitable person’ to give effect to the
meaning the Municipality wants
to ascribe to the subsection. If the
legislator wanted a municipality to choose the person to be seconded,
it would surely have
said so in no uncertain terms. The wording of
the section simply does not lend itself to the interpretation
proposed by the respondents.
One simply has to look at regulation
20(4) of the 2014 Regulations, which obliges a person seconded in
terms of section 54A(6)
to report monthly to the MEC on a number of
issues. In my view, the wording of these provisions is indicative of
an official having
been appointed by the MEC, an outsider, who is
stepping in, with a number of issues on which he or she must report
to the MEC on
a monthly basis. I can hardly imagine a situation where
someone chosen by a municipality, being someone who fits in and whose
personality
is suitable to the municipal council and who is perhaps
aligned with it, will be willing to report to the MEC on a monthly
basis
on the issues specifically prescribed by regulation 20. To give
effect to the respondents’ interpretation, these regulations
would have to be disregarded. In my view, it is the MEC, who, as part
of its oversight and monitoring function, selects the person
it deems
suitable to second to act in the advertised position. I furthermore
cannot see how the MEC can be required to simply rubberstamp
and
second a person nominated by a municipality in light of these
functions.
[108]
The respondents have proposed in para 1.2 of their draft order that
the MEC is to be requested to
second a person nominated by the
municipal council ‘provided such a person is suitably qualified
to the reasonable satisfaction
of the MEC’. In the alternative,
the MEC must, upon request, second a suitable person selected by the
MEC ‘and agreed
to by the municipal council and the person
seconded’. Bearing in mind that the parties to this litany of
litigation have
been unable to co-operate with one another, I have no
doubts that these suggestions have no prospects of resolving anything
and
will only lead to further litigation. The standoff between the
Municipality and the MEC on the suitability of candidates because
of
‘personalities’ and persons not fitting in is a clear
indication that the co-operation is almost non-existent. The
far-reaching effect of such an order on other municipalities and
departments can furthermore not be ignored.
[109]
Not much has been said throughout about section 56 of the Systems
Act, which deals with the appointment
of managers who are directly
accountable to the municipal manager, such as the chief financial
officer. As mentioned above, it
does not make provision for the
secondment of a suitable person by the MEC. Regulation 20 of the 2014
Regulations, as mentioned
above, only refers to the secondment of a
person to act as municipal manager. It appears that the MEC has,
prior to the first application
being launched, seconded two officials
to the Municipality, one being an acting municipal manager and the
other being an acting
chief financial officer. It is unclear in terms
of what section the acting chief financial officer would have been
seconded. The
respondents, in para 2.1 of their draft order, proposed
a declaratory order whereby a municipal council, if the acting
appointment
exceeds the initial period, has the duty to make an
acting appointment not exceeding three months. The Municipality,
therefore,
once again wants to do away with what is clearly spelt out
in section 56(1)
(c)
, namely that the MEC may extend the period
upon application by a municipality, on the basis that it is just and
equitable.
[110]
In para 5 of their draft order, the respondents propose further
relief in the alternative, containing
variations of what has been
proposed before, all with the central theme of deviating from what
is, in my view, the clear wording
of the relevant sections in order
to limit the involvement, for want of a better word, of the MEC in
the process of making acting
appointments or secondments. The
Municipality wants to make these decisions. I agree with the
submissions by Mr Dickson that the
Municipality has shown that it has
been incapable of appointing suitable candidates, as the previous
litigation demonstrates. The
reports relied upon by the MEC speak for
themselves as far as the financial position of the Municipality is
concerned. Every appointment
made thus far has been, on the face of
it, problematic for the Municipality and clearly prejudicial to the
people of Nongoma.
The
factual issue
[111]
As far as the factual issue is concerned, neither Mr Zulu nor Mr Dube
are, in my view, suitable persons
to be appointed in their respective
positions. There are clearly question marks about Mr Zulu’s
past outings at the Mpofana
Municipality. I agree with Mr Dickson
that the report setting out his non-compliance with certain
procedures while there is of
significance. The fact that Mr Zulu
claims not to know about the report nor having been provided with it
at the time is, in my
view, of little significance. He left before it
became necessary to take action against him. And then there is the
issue of the
fraud conviction and the attempt to have his criminal
record expunged. It is so that by now the fraud conviction has been
expunged,
but it has not really gone away. It is of grave concern to
me that the Municipal Council apparently had no issue with this fraud
conviction. In light of my findings above, I don’t deem it
necessary to deal with the issue of Mr Zulu’s lack of
qualifications.
[112]
Mr Dube clearly lacks experience in the local government finance
sector. In my view, having experience
in the private sector does not
equate to having experience to lead the budget and treasury office of
a municipality, as pointed
out by Dr Krishnan in his report. Mr Dube
has failed to address these concerns. There is, however, also the
issue of his employer,
Thorn, having been awarded a tender to provide
internal audit services to the Municipality. The fact that he has
resigned from
his position at Thorn and that the tender is no longer
before the Municipal Council, means nothing to me. He was the chief
financial
officer of Thorn at the time he was applying to be
appointed in the acting position. He was therefore in Thorn’s
employment
as the chief financial officer when the tender was
awarded, and then, a few months later, he is appointed as the acting
chief financial
officer of the Municipality, with his erstwhile
employer providing internal auditing services. In my view, this is a
clear indication
that Mr Dube is not a suitable person to be
appointed. I had hope when I read his resignation letter, thinking
that it was an indication
of integrity, but it was short lived, as he
then ‘chose’ to or had been convinced to withdraw his
resignation.
[113]
As mentioned above, there was in essence no record of the Municipal
Council’s decision, only
the actual resolution of the decision.
There is no indication of what they took into account, apart from the
CVs supplied to them,
or what enquiries were made to verify
experience and qualifications.
Conclusion
[114]
As far as the factual issue is concerned, I have no hesitation in
coming to the conclusion that Mr
Zulu and Mr Dube were not suitable
in that they did not have the prescribed skills, expertise, or
competencies to be appointed.
[115]
As is apparent from above, I was requested to nevertheless clarify
the position on a number of aspects
due to the events of the last few
months.
[116]
In summary, I am of the view that acting appointments made in terms
of section 54A(1)
(b)
, read with section 54A(2), and section
56(1)
(a)
(ii) read with section 56(1)
(b)
, in
circumstances where an incumbent official is temporarily unable to
perform his or her duties due to ill-health, suspension,
or otherwise
endure in terms of sections 54A(2A)
(a)
and 56(1)
(c)
for
a period of three months. If a municipal council wants to extend the
appointment of that same person who has been acting for
a further
period of three months, it may, in special circumstances and on good
cause shown, apply to the MEC in writing to extend
the period of
appointment of that person for a further period that does not exceed
three months. A specific person will therefore
be able to act for a
total period of six months, whereafter a different person will have
to be appointed, if needed. In my view,
this process can continue for
as long as the incumbent official remains unable to perform his or
her duties.
[117]
The 2010
Regulations set out the period within which the disciplinary process
must begin, being three months, in the event of an
official being on
suspension. Once the position becomes de facto vacant, the prescribed
short periods referred to in
Notyawa
[29]
become applicable and the process must be finalised within six
months. If this time frame is not possible, I am of the view that
in
terms of section 54A(6) the municipal council may request the MEC to
second a suitable person, at the MEC’s discretion,
to act as
municipal manager in the advertised position until such time as a
suitable candidate has been appointed. If the municipal
council does
not avail themselves to the option in section 54A(6) after six
months, it has the practical effect of not having a
municipal manager
at all, which would clearly be extremely detrimental to the
administration of a municipality, not to mention
the community it
serves.
[118]
I am of the view that a municipal manager is the only position in
respect of which the MEC can make
a secondment, as the option is not
available in respect of acting appointments made in terms of section
56.
[119]
I have carefully considered the draft order submitted by the
respondents. I am of the view that none
of the orders proposed in
paras 1, 2, 5.1, and 5.2 would be just and equitable to grant, as it
represents a clear departure, in
my view, from what is clearly set
out in the relevant sections, which is not justifiable in light of
what I have stated above.
[120]
The MEC’s draft order likewise contains a proposed order which
entails a departure from what
is contained in sections 54A and 56, as
it wants to be permitted, pending the final determination of the
disciplinary enquiries,
to second an acting municipal manager,
despite not being requested to do so by the Municipality, and an
acting chief financial
officer, despite section 56 containing no such
provision. At the hearing, we were informed that the municipal
manager’s hearing
had been concluded and the verdict was
awaited. Bearing in mind the specific circumstances of this case, as
well as my wide discretion
when crafting an appropriate or just
order, I intend making an order with slightly different terms.
Costs
[121]
As far as costs are concerned, I am in agreement with the submission
made by Mr Pillemar that due
to the nature of the issues involved,
each party should pay its own costs. The applicant included a prayer
in its draft order to
the effect that the reserved costs in the two
earlier applications be incorporated in the cost order. Mr Dickson
however made no
submissions on the question of costs at the hearing
and this issue was not canvassed in argument before me. The
respondents’
attitude regarding the inclusion of these costs is
therefore unknown. Should the parties agree on these costs,
they can approach
me in chambers with a draft order to deal with the
costs to finalise the two earlier applications.
Order
[122]
I accordingly grant the following order:
1.
The second respondent’s decision
to appoint:
(a)
the third respondent as acting municipal manager for a period of
three months; and
(b)
the fourth respondent as acting chief financial officer for a period
of three months;
be
and is hereby reviewed and set aside.
2.
In terms of section 172(1)
(b)
of the Constitution, and as an interim measure only in the event of
the disciplinary enquiry in respect of the incumbent municipal
manager not having been finalised, the applicant is directed and
authorised to second a suitable person at his discretion, who
has the
skills, expertise, competencies, and qualifications as prescribed by
the
Local Government: Municipal Systems Act 32 of 2000
to act in the
position of municipal manager of the Nongoma Municipality in terms of
regulation 20 of the Local Government: Regulations
on Appointment and
Conditions of Employment of Senior Managers of 17 January 2014.
3.
It is directed that each party shall
pay its own costs.
E BEZUIDENHOUT
Date
of hearing:
19 September 2024
Date
of judgement:
21 November 2024
APPEARANCES:
On
behalf of the applicant:
Adv A
J Dickson SC
Instructed
by:
Garlicke
& Bousfield inc.
7
Torsvale Crescent
La
Lucia Ridge Office Estate
Umhlanga,
4320
Ref:
P Magwaza
Tel:
031-570 5572
Email:
phila.magwaza@gb.co.za
c/o
Stowell & Co
195
Pietermaritz Street
Pietermaritzburg
Ref :
S Myhill
Tel
no 033 835 0500
On
behalf of the respondents:
Adv
M Pillemar SC
Adv T
Palmer
Instructed
by:
Mhlanga
Incorporate
Unit
2, First Floor
21
Richefond Circle
Ridgeside
Office Park
Umhlanga
Park
Tel:
031 305 7537
Ref:
Mr Mhlanga/nn/ Cvl: N 022/24
c/o
Sipho Ngubane Attorneys
293
Burger Street
Pietermaritzburg
Tel
033 345 0371
Email
:
siphongubaneattorneys@gmail.com
[1]
Municipal Regulations on Minimum Competency Levels, GN R493,
GG
29967,
15 June 2007.
[2]
Amendments to Municipal Regulations on Minimum Competency Levels,
2007, GN 1146,
GG
41996,
26 October 2018.
[3]
See section
60
of the
Local Government: Municipal Finance Management Act 56 of
2003
, and section 55(2) of the Systems Act.
[4]
Local Government: Disciplinary Regulations for Senior Managers,
2010, GN 344,
GG
34213, 21 April 2011.
[5]
Local Government: Regulations on Appointment and Conditions of
Employment of Senior Managers, GN 21,
GG
37245, 17 January 2014.
[6]
Notyawa
v Makana Municipality and others
[2019]
ZACC 43; 2020 (2) BCLR 136 (CC).
[7]
Member
of the Executive Council for Local Government, Environmental Affairs
and Development and Development Planning, Western
Cape Province v
Knysna Municipality and others
[2023] ZAWCHC 133
(now reported as
Member
of the Executive Council for Local Government, Environmental Affairs
and Development and Development Planning, Western
Cape Province v
Knysna Municipality and others and a related matter
[2023] 3 All SA 531 (WCC)).
[8]
Nongoma
Local Municipality v Member of the Executive Council for Cooperative
Governance and Traditional Affairs (KwaZulu-Natal)
and others
[2024]
ZAKZPHC 83 para 19.
[9]
Ibid
para 20.
[10]
Section
271B
of the
Criminal Procedure Act deals
with the expungement of
certain criminal records, where in certain instances, depending on
the type of sentence imposed, the
criminal record of a person, must
on the person’s written application, be expunged after a
period of 10 years had elapsed
after the date of conviction for that
offence.
[11]
Section
6(3)
reads as follows:
‘
Any
employee of an institution may only be seconded in terms of
subsection (1) to –
(a)
another institution in consultation
with the relevant executive authorities of the seconding and
recipient institutions; or
(b)
an organ of state other than an
institution, on request of the organ of state and in consultation
with the relevant authority
of the seconding institution.’
[12]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA);
[2012] 2 All SA 262
(SCA)
(
Endumeni
)
para 18,
Road
Traffic Management Corporation v Waymark Infotech (Pty) Ltd
[2019]
ZACC 12
;
2019 (5) SA 29
(CC);
2019 (6) BCLR 749
(CC) paras 29-32;
Capitec
Bank
Holdings Ltd and another v Coral Lagoon Investments 194 (Pty) Ltd
and others
[2021]
ZASCA 99
;
2022 (1) SA 100
(SCA);
[2021] 3 All SA 647
(SCA) (
Capitec
Bank Holdings
).
[13]
Capitec
Bank Holdings
para
25.
[14]
Minister
of Police and others v Fidelity Security Services (Pty) Ltd and
others
[2022]
ZACC 16
;
2022 (2) SACR 519
(CC);
2023 (3) BCLR 270
(CC) para 34.
[15]
Shiva
Uranium (Pty) Ltd (In Business Rescue) and another v Tayob and
others
[2021] ZACC 40
;
2022 (3) SA 432
(CC);
2022 (2) BCLR 197
(CC) para
38.
[16]
Electoral
Commission v Mhlope and others
[2016]
ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) para 132.
[17]
Economic
Freedom Fighters
and
others v Speaker of the National Assembly and another
[2017] ZACC 47; 2018 (2) SA 571 (CC); 2018 (3) BCLR 259 (CC).
[18]
Head of
Department, Mpumalanga Department of Education and another v
Hoërskool Ermelo and another
[2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC).
[19]
Rail
Commuters Action Group and others v Transnet Ltd t/a Metrorail and
others
[2005]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) para 107.
[20]
Notyawa
v Makana Municipality and others
[2019]
ZACC 43
;
2020 (2) BCLR 136
(CC) (
Notyawa
).
[21]
Member
of the Executive Council for Local Government, Environmental Affairs
and Development and Development Planning, Western
Cape Province v
Knysna Municipality and others and a related matter
[2023] 3 All SA 531
(WCC) (
Knysna
Municipality
).
[22]
Ibid
paras 41-63.
[23]
Ibid
para 69.
[24]
Central
Energy Fund SOC Ltd and another v Venus Rays Trade (Pty) Ltd and
others
[2022]
ZASCA 54; 2022 (5) SA 56 (SCA).
[25]
Notyawa
para
9. The online Cambridge Dictionary(
https://dictionery.cambridge.org
)defines
a stop-gap as something intended for temporary use until something
better or more suitable can be found.
[26]
Notyawa
paras
9-10.
[27]
Ibid
para 154
[28]
In
Mashamaite
and others v Mogalakwena Local Municipality and others; Member of
the Executive Council for Coghsta, Limpopo and another
v Kekana and
others
[2017] ZASCA 43
;
[2017] 2 All SA 740
(SCA) para 46 this issue was
mentioned but the point was not argued.
[29]
Notyawa
para
9.