IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
(l) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
Case Number: 3180/2022
In the matter between:
THE !KHEIS MUNICIPALITY Applicant
and
KG MAREKA Respondent
HEARD ON: 04 March 2024
CORAM: MHLAMBI , ADJP et JORDAAN, AJ
DELIVERED ON: 06 FEBRUARY 2025
INTRODUCTION
[1] The Applicant , The !Kheis Municipality , is seeking to have the decision of Mr.
T. F. Leeuw, the Municipal Manager of the Applicant, to appoint the Respondent
as Specialist Corporate Services at the Applicant on the 1st of July 20211
1 Paginated Bundle: Page 10 paragraph 25 and Annexures "V2" and "V3"
2
alternatively during October 20212 and the subsequent fixed term employment
contract concluded, reviewed and set aside.
[2] The Applicant originally launched their application on the basis of seeking a
declaratory order to have the decision to appoint the Respondent declared null
and void, out of caution as a legality review or as a review in terms of the
Promotion of Administrative Justice Act3 of 2000, but at the hearing before this
Court the Applicant moved their application exclusively on the basis of a legality
review.
[3) The application is opposed by the Respondent who ellected to represent
himself after numerous lengthy indulgences to obtain legal representation ,
yielded no legal representative .
PARTIES
[4] The Applicant is the !Kheis Municipality , a local municipality established in terms
of the Local Government Municipal Structures Act, 117 of 1998, with its principal
place of business at 97 Oranje Street, Groblershoop , Northern Cape Province.
[5] The Respondent is Mr. Keena Goodenough Mareka, formerly appointed
Specialist Corporate Support at the Applicant, residing at 645 Ntsaharebone ,
Clocolan, Free State Province.
BACKGROUND
[6] On the 01st of July 2021 the then Municipal Manager, Mr. T. Leeuw, appointed
the Respondent to the position of Specialist Corporate Support at the Applicant.
[7] The Applicant contend that this post did not exist on the approved organogram
of the Applicant. This the Applicant further contend.means that the Respondent
was appointed to a position which was not approved by the Applicant 's Council
and as a result the appointment was unconstitutional and unlawful.
2 Paginated Bundle: Page 1 O paragraph 26 of the Founding Affidavit read with pages 25 and 26 and
Annexures "V4"
3
[8] The Respondent in opposition contend that his appointme nt was lawful as the
Municipal Manager was authorised to make such appointment.
ISSUES
[9] The preliminary issue to be determined is:
(a) Whether this Court has the jurisdiction to hear the application before it.
[1 O] In respect of the main application , the issues to be determined are:
(a) The procedural requirement of whether Municipality delayed in bringing the
review application;
(b) The lawfulness of the Municipality 's actions in effecting the appointment of
the Respondent.
JURISDICTION
[11] Jurisdiction means the power vested in a Court by law to adjudicate upon,
determine and dispose of a matter and does not extend beyond the boundaries
of, or over subjects or subject-matters not associated with, the Court's ordained
territory. 3
[12] In this legality review, the decision of Mr. T.F. Leeuw, the Municipal Manager
of the Applicant , to appoint the Respondent as Specialist Corporate Services
at the Applicant on the 1st of July 20214 and the letter of appointment following
upon such decision being signed and issued as the contract of service and,
occurred in Groblershoop in the Northern Cape Province. It is thus axinmatic
that the administrator, who made the decision to be reviewed, has its principal
place of administration in the Northern Cape Province, which is outside the area
of jusridiction of this Court.
[13] In light of the aforementioned, the question arose whether this Court has
jurisdiction to hear this matter.
3 Ewing McDonald & Co Ltd v M&M Products Co [1990] ZASCA 115; 1991 (1) SA252 (A)
4 Paginated Bundle: Page 1 O paragraph 25 and Annexures "V2" and "V3"
4
[14] Section 21 of the Supreme Court Act5 provides that:
'A Division has jurisdiction over all persons residing or being in, and in relation to all
causes arising and all offences triable within, its area of jurisdiction and all other
matters of which it may according to Jaw take cognisance , and has the power:
(a) to hear and determine appeals from all Magistrates ' Courts within its area of
jurisdiction ;
(b) to review the proceedings of all such courts;
(c) in its discretion, and at the instance of any interested person, to enquire into
determine any existing, future or contingent right or obligation, notwithstanding
that such person cannot claim any relief consequential upon the determination .'
[15] The jurisdiction of the High Court is not codified and should therefore also be
determined in terms of common law. Therefore the common law jurisdictional
factors of residence and domicile, the situation of the subject-matter of the
action within the jurisdiction , the cause of action which includes the conclusion
or performance of a contract, must also be considered .
[16] This being a legality review, is founded upon the rule of law, which is a founding
value of our Constitution . The Respondent , whose rights have been affected, is
ordinarily resident within this Court's area of jurisdiction having regard to his
contract of employment , which is also the address where process was served.
[17] Upon a consideration of these factors, we find that this Court has the jurisdiction
to hear this review, as the Respondent whose rights are affected, reside within
this Court's area of jurisdiction and no issue arise that makes it inconvenient or
justiciably impractical to hear the matter in this Court.
DELAY IN BRINGING THE REVIEW APPLICATION
[18] An organ of state seeking to review its own decision must do so under the
principle of legality. 6
5 Supreme Court Act 59 of 1959
6 Buffalo City Metropolitan Municipality v Asia Construction (Pty) Ltd 2019 (4) SA 331 (CC) par 45
5
[19] A legality review has no fixed period within which it must be launched. The only
requirement is that the review must be launched within a reasonable time. The
proverbial clock starts to run from the date that the Applicant became aware or
ought reasonably to have become aware of the decision or action to be
reviewed.7
[20] In a legality review the Court must first assess whether the delay is
unreasonable, and if it is found that the delay is unreasonable , then the Court
has to determine whether the interest of justice require that the unreasonable
delay be overlooked. 8
[21] The Applicant contends that the review was launched within a reasonable time
after the Applicant became aware of the decision, its implication and its legal
consequences , being July 2022. Applicant further submitted that good grounds
exist that the appointment be reviewed and set aside as no such post exists
and the prospects of success on the merits are strong.
[22] The Respondent in contrast contends that the Applicant was aware of the
decision since July 2021 as the deponent co-signed the temporary contract of
employment in July 2020, but refused to sign the permanent contract in July
2021. The Respondent submits that there was an unreasonable delay.
[23] The Applicant further submitted that the permanent appointment service
contract was received on the 26th of October 2021, backdated to the 01 st of July
2021, for the deponent to sign. The deponent then pointed out that there was
no such post on the then approved municipal structure, that management
during 2020 decided not to appoint any new employees due to the bloated staff
structure, that the position was not budgeted for, no human resource processes
were followed nor was the position declared vacant or advertised.
7 Buffalo City Metropolitan Municipality v Asia Construct ion (Pty) Ltd 2019 (4) SA 331 (CC) par 49
8 Buffalo City Metropolitan Municipality v Asia Construction (Pty) Ltd 2019 (4) SA 331 (CC) par 50
6
[24] The Applicant explains the delay, stating that it was only advised of the full facts
underlying this application and the legal consequences which flow therefrom on
the 17th of June 20229, after the deponent was appointed as Acting Municipal
Manager in June 2022, and immediately instructed the Applicant's legal team.
This application was then issued on the 071h of July 2022.
[25] It was further submitted that investigations revealed the appointment was not
merely effected, but that the appointment was backdated ; that the post was not
-on the staff establishment , but added to the staff establishment after the fact by
the Respondent and Mrs Minnies on the instruction of Mr. Leeuw.
[26) Having regard to the explanation for the delay proffered by the Applicant in the
circumstances of the matter. This Court accepts on the basis of submissions
that after the appointment of the deponent as Municipal Manager during June
2022, he was informed of the facts and legal consequences underlying the
decision and instructed the Applicant's legal team on the 17th of June 2022 and
the application was issued on the 07th of July 2022. This Court thus finds the
explanantion satisfactory and reasonable having regard to the facts and finds
that the Applicant did not unreasonably delay in bringing the application.
LEGALITY REVIEW
APPLICANT'S SUBMISSIONS
[27] The applicant seeks, through judicial review, to have the decision of T. F Leeuw,
in his capacity as municipal manager, to appoint the Respondent as Specialist
Corporate Services at the Applicant on the 1st of July 202110 and the
subsequent employment contract concluded, to be set aside.
[28] The Applicant further submitted that in terms of s 55(1) of the Act, the Municipal
Manager as Head of the Administration is subject to policy directives of the
Municipality which he violated in appointing the Respondent.11
9 9 Paginated Bundle: Page 13 paragraph 25 of the Founding Affidavit and Annexures "V1"
10 Paginated Bundle: Page 10 paragraph 25 and Annexures "V2" and "V3"
11 Paginated Bundle: Page 19 dated the 27th of October 2021
7
[29] The Applicant further submitted that in terms of section 66 of the Act, read with
regulation 1 and regulation 4, the position that the Respondent was appointed
to does not exist on the approved staff establishment. The appointment was
therefore unconstitutional and unlawful, it was contrary to the management
decision during 2020 to not appoint further new staff and the Applicant has no
financial means or budget to appoint the Respondent.
RESPONDENT'S SUBMISSIONS
[30] The Respondent submits that he was lawfully appointed as the Municipal
Manager appointed him on the strength of the Special Council Minutes dated
the 24th of January 2020, wherein Council directs him to appoint a person.
[31] The Respondent further submits that the Municipal Manager has the authority
and a prescribed right to establish a staff establishment in terms of section 66( 1)
of the Act. He further submits that his post is on the staff organogram and the
Municipal Manager sent it to the Council for n~ting as per the Municipal
Manager's evidence in the Labour Court.
[32] The Respondent submitted that section 66 (3) was not applicable to his
appointment as the amendement was subsequent to his appointment and he
was middle management.
ANALYSIS
[33] The applicant seeks to have the decision of T.F Leeuw, in his capacity as
municipal manager, to appoint the Respondent as Specialist Corporate
Services at the Applicant on the 1st of July 202112 and the subsequent
employment contract concluded , to be declared null and void and set aside in
terms of section 66(3) and 66(4) of the Local Government Municipal Systems
Act 32 of 2000 (the Act).
12 Paginated Bundle: Page 1 O paragraph 25 and Annexures "V2" and "V3"
8
[34] The Local Government: Municipal Systems Amendment Act 7 of 2011
amended section 66 of the Act by the insertion after subsection (2) of the
following subsections:
"(3) No person may be employed in a municipality unless the post to which he or she
is appointed, is provided for in the staff establishment of 15 that municipality .
(4) A decision to employ a person in a municipality , and any contract concluded
between the municipality and that person in consequence of
the decision, is null and void if the appointment was made in contravention of
subsection (3).
(5) Any person who takes a decision contemplated in subsection (4), knowing that the
decision is in contravention of subsection (3), may be held personally liable for
any irregular or fruitless and wasteful expenditure that the municipality may
incur as a result of the invalid decision.".
This amendement took effect on the 5th of July 2011 following publication in GN
559 and GG 34433.
[35] The Municipal Workers Union v Minister of Co-Operative Governance and
Traditional Affairs and Others confirmed the earlier declaration of constitutional
invalidity of the Local Government Municipal Systems Amendment Act 7 of
2011 in the same case made by the Pretoria High Court, but suspended the
declaration of invalidity for 24 months .from 9th of March 2017 until it was
declared unconstitutional on the 09th of March 2019 without being rectified by
the Legislature .
[36] The impugned appointment was during July 2021, alternatively the 26th of
October 2021, the appointment was thus not subject to subsections (3) to (5)
of section 66 of the Act.
[37] The legality review on the other hand, was argued on the basis that the position
of Specialist Corporate Support did not then or now exist on the approved
organogram as contemplated in section 66 of the Act read with regulation 1 and
9
regulation 4 of the Local Government: Regulations on Appointment and
Conditions of Employment of Senior Managers .
[38] The Local Government: Regulations on Appointment and Conditions of
Employment of Senior Managers promulgated on the 17th of January 2014 in
GN21 GG37245 provides the definition of staff establishment and post in
regulation 1 thereof in the following terms:
" 'staff establishment' means the approved posts created for the normal and regular
requirements of a municipality"
" 'post' means a post on the approved staff establishment of a municipality which has
been budgeted for"
[39] Regulation 4(6) of the Local Government: Regulations on Appointment and
Conditions of Employment of Senior Managers promulgated on the 17th of
January 2014 in GN21 GG37245 provides:
"The municipal manager must, within 14 days of finalizing the staff establishment,
submit the staff establishment , detailed report and recommendations on the staff
establishment to the municipal council for approval."
[40] The Respondent's own version in submissions is that the Municipal Manager
has the authority to establish and approve the staff establishment and the
Municipal Manager in the Labour Court stated he sent the staff establishment
for their council to note. There is no submission by the Respondent that it was
approved by council.
[41] The Respondent simultaneously also submits that his post was on the staff
establishment and that council authorised the Municipal Manager to appoint a
person as per the Special Council Meeting on the 24th of January 2020.
[42] The Applicant replied that the 24th of January 2020 minute clearly gives an
instruction to appoint a person by a specific date being March 2020. The
Respondent's impugned appointment is for a completely different date July
2021 alternatively October 2021 in circumstances where during 2020 council
decided to not appoint any new staff to positions.
10
[43] This Court is satified that the post to which the Respondent was appointed in
July 2021 was not a post defined as a post on an approved staff establishment
as per the Respondent's own submissions that the Municipal Manager sent the
staff establishment for council's noting. Noting is not approval as is required in
terms of the regulations to the Act.
[44] The Court is further satisfied that the appointment of the Respondent as
Specialist Corporate Support Services on the 01st of July 2021 by the Municipal
Manager, is contrary to the policy decision of council during 2020 to not appoint
any new staff.The letter was sent to the Municipal Manager on his request for
the deponent to co-sign the appointment , and the contract of appointment was
on the basis of the policy decision taken, not co-signed .13
[45] It is clear that the Municipal Manager appointed the Respondent in total
disregard of the legal and regulatory framework despite a written objection to
the appointment with a detailed basis why the appointment could not be co
signed.
[46] The Court therefore finds, for the reasons mentioned herein in terms of the
legality review, that the permanent appointment of the Respondent on the 01st
of July 2021 to the position of Specialist Corporate Support Services is
reviewable and stands to be set aside.
COSTS
[47] The Applicant in terms of their notice of Motion requested costs of the
Application . During submissions in Court, Applicant requested costs on an
attorney and clent scale due to the manner in which the Respondent delayed
the manner with the various requests to appoint legal representation without
fully excercising the indulgences granted and non-compliance with the Court's
directive in regard to same.
13 Paginated Bundle: Page 19
11
[48] The award of costs falls within the Courts discretion and the ususal practice is
for costs to follow the result. The Respondent , though in a manner that might
appear as dilatory, has a right to defend the application and the Courts in
excerisng their discretion, granted the Respondent those indulgences to realise
his right to attempt to obtain legal representation. To now want to punish the
Respondent with a punitive costs order, would in this Court's view be placing a
question mark on the indulgence granted.
[49] This Court, in exercising its discretion is of the opinion that the appropriate costs
to be awarded, is for the Applicant to be awarded costs on a party and party
scale including costs of Counsel.
[50] This Court therefore makes the following order,
ORDER
[51] 1. The decision of T. F. Leeuw, in his capacity as Municipal Manager of the
Applicant , to appoint the Respondent as Specialist Corporate Support
Services at the Applicant on the 01st of July 2021, is reviewed and set
aside;
2. The employment contract concluded between the Applicant and the
Respondent dated the 01 st of July 2021, is reviewed and set aside;
3. The Respondent is ordered to pay the Applicant's costs of this action on
a party and party scale, including costs of Counsel.
ACTING JUDGE OF
J. MHUJM1itil'
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT, BLO
Counsel for Applicant:
Instructed by
Email:
Counsel for Respondent:
Respondent address
Email: Adv. C. Snyman
FJ SENEKAL INCORPORATED
42 PRESIDENT STEYN AVENUE
ksenekal@fjslaw .co. za
KG MAREKA (In Person)
645 NTSHAREBONE
CLOCOLAN
None provided 12