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Moinwe v Joe Morolong Local Municipality and Others (2025/032401) [2025] ZALCJHB 180 (9 May 2025)

82 Reportability
Labour Law
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Brief Summary

Labour Law — Appointment of municipal officials — Rescission of appointment — Applicant appointed as Director of Technical Services by Municipal Council, but appointment rescinded following MEC's recommendation — Applicant challenges rescission as unconstitutional and irrational — Court finds that the Council acted unlawfully in rescinding the appointment based on MEC's influence, which constituted improper interference — Decision to re-advertise position set aside, and original appointment reinstated.

Comprehensive Summary

Case Note


Case Name: Lebohang Andrew Moinwe v Joe Morolong Local Municipality, B.D Motlhaping, MEC: Cooperative Governance, Human Settlements and Traditional Affairs (Northern Cape)

Citation: Case No. 2025-032401

Date: Heard on 23 April 2025 and Delivered on 09 May 2025


Reportability


This case is reportable because it raises significant constitutional and administrative law issues surrounding the appointment and rescission of a high-level municipal official. The judgment examines the interplay between municipal council decisions and the oversight of higher governmental authorities such as the MEC. The case additionally highlights important procedural aspects such as jurisdictional venue conflicts and the implications of non-joinder, making it a landmark decision in municipal law and public administration.


The ruling is significant as it establishes clarity on how municipal decisions can be influenced by executive intervention and the subsequent legal ramifications. It demonstrates the court’s willingness to scrutinise administrative actions where issues of competency and procedural fairness are in dispute. Furthermore, the decision reiterates the constitutional understanding of a municipality as an integrated entity, which has broader implications for future cases regarding municipal and council roles.


This judgment sets a robust precedent on applying the principles of legality and judicial supervision over municipal governance, ensuring that high-level employment decisions are scrutinised for their adherence to constitutional mandates and procedural fairness.


Cases Cited


Minerals Council South Africa v Minister of Mineral Resources and another [2020] 4 All SA 150 (GP)

Nelson Mandela Bay Municipality and others v Qaba and others [2022] 3 All SA 239 (ECP)

Apleni v President of the Republic of South Africa 2018 (1) All SA 728 (GP)


Legislation Cited


Section 151 of the relevant Act establishing the Labour Court

Section 2 of the Systems Act

Systems Act 32 of 2000

Section 160 of the Constitution of the Republic of South Africa


Rules of Court Cited


Rule 3(1) of the Court’s Rules regarding venue and initiation of proceedings

Other definitions and procedural guidelines as stated in the Labour Court Rules


HEADNOTE


Summary


The case concerns the appointment, and subsequent rescission, of Mr. Lebohang Andrew Moinwe as the permanent Director of Technical Services for the Joe Morolong Local Municipality. Initially, the municipal council approved his appointment; however, following a letter from the MEC criticising his competency and recommending a re-advertisement of the position, the council reversed its earlier decision. The Applicant, who was serving in an acting capacity at the time, has challenged the rescinding of his appointment as being unconstitutional and inconsistent with the principle of legality.


The Applicant’s challenge was brought on a semi-urgent basis, citing the irrationality of the council’s decision under undue external influence. The applicants argue that the second resolution is tainted by procedural error and interference from a non-employer, namely the MEC. This issue was compounded by procedural allegations regarding the proper venue for the initiation of the proceedings, which further complicated the case.


In addressing the application, the Court examined not only the merits of the constitutional challenge but also resolved preliminary issues relating to jurisdiction and the proper inclusion of interested parties. This comprehensive approach underscores the gravity of the administrative misstep and the broad implications for similar municipal decisions in the future.


Key Issues


The key legal issues addressed include the following:

The first issue pertains to the proper interpretation and application of the Labour Court’s rules on venue, where the dissenting argument was that the proceedings should have been initiated in Johannesburg instead of Cape Town. The second issue is the proper party representation and whether the municipal council should have been joined in the proceedings. The third issue involves the urgent nature of the application in light of the potential for wasteful expenditure and the improper interference by the MEC in a matter that otherwise falls within the municipality’s internal decision-making processes.


Held


The Court held that the procedural error regarding venue, although not ideal, does not vitiate its jurisdiction since the Court remains a national body with an equitable mandate. The Court also dismissed the argument regarding non-joinder, confirming that the municipal council’s actions are inherently part of the municipality's conduct and that the relevant parties are adequately represented through their components. Lastly, the urgency of the application was accepted on the basis that failing to remedy the issue promptly could lead to further wasteful expenditure and undue interference in the appointment process. The Court thereby found in favour of hearing the matter on an urgent basis and indicated that the second resolution was susceptible to being declared unconstitutional.


THE FACTS


On 17 December 2024, the municipal council of Joe Morolong Local Municipality adopted a resolution to appoint the Applicant as the permanent Director of Technical Services, effective from 1 February 2025. Shortly thereafter, on 24 February 2025, the council rescinded this resolution following a letter from the MEC critiquing the Applicant’s competency. The MEC’s comments doubted that the Applicant possessed the highest scores in core competencies and suggested that a candidate with superior credentials be considered. At the time of this transition, the Applicant was already employed in an acting capacity. The decision to re-advertise the position became the focal point of the constitutional challenge.


The case is further complicated by preliminary objections raised by the respondents. These include claims concerning the appropriate venue for the case, allegations that key parties (specifically, the municipal council) were not joined properly, and issues surrounding the claimed urgency of the matter. Such procedural objections set the stage for an in-depth judicial review of both the administrative action taken by the municipal council and the influence exerted by the MEC.


Finally, the multifaceted nature of the dispute, incorporating issues of jurisdiction, administrative procedure, and constitutional oversight, underscores the complex interplay between municipal decision-making and higher executive influence. The factual matrix reveals a contentious public administration matter with significant implications for the governance of municipal appointments.


THE ISSUES


The legal questions in this case revolved around whether the Labour Court had jurisdiction to hear the matter given the apparent misapplication of the venue rules, and whether the failure to formally join the municipal council rendered the proceedings flawed. Additionally, the Court needed to determine if the urgency claimed by the Applicant was justified given the potential for continuing administrative detriment and public expenditure due to the re-advertisement of the position.


The first issue uncovers the statutory and constitutional parameters that govern where such disputes should be adjudicated. The second issue focuses on the principle of non-joinder and the extent to which parties with a direct and substantial interest must be joined to secure a representative resolution of the matter. The third issue appraises whether the urgency of the application, necessitated by the risk of compounding administrative errors and financial waste, met the threshold required for expedited judicial attention.


In resolving these questions, the Court had to balance strict procedural compliance with the equitable principles underlying the Labour Court’s mandate, ensuring that administrative aberrations did not result in a denial of justice due to technical non-compliance.


ANALYSIS


The Court’s reasoning first addressed the contention regarding the venue of the proceedings. Despite the Applicant’s failure to obtain the necessary authorization to institute the case in Cape Town, the Court emphasised that such procedural missteps do not strip the Court of its national jurisdiction. By interpreting Rule 3(1) as a mechanism for case management rather than a jurisdictional barrier, the Court underscored the equitable nature of its mandate. This analysis reinforced that adherence to procedural guidelines, while important, does not override the need for substantive justice in cases of administrative misjudgment.


Next, the Court examined the non-joinder argument raised by the MEC. Here, it was determined that the legal personality of the municipality encompasses its municipal council and that the Council’s decisions are synonymous with the actions of the municipality itself. By citing leading authorities, including the Nelson Mandela Bay Municipality case, the Court demonstrated that the direct and substantial interest test is inherently a context-specific evaluation. It concluded that the Applicant’s representation was sufficient and that the Council’s interests were adequately embodied in the representation by the Municipal Manager.


Lastly, the Court took a detailed look into the issue of urgency. Emphasising that the stakes involved potential wasteful spending and irrevocable damage to administrative credibility, the Court found that prompt intervention was necessary. The analysis referenced previous decisions where the judiciary was quick to act to mitigate abuses of power. This comprehensive reasoning assured that the decision to order an urgent hearing was not only procedurally justified but also vital from a public interest perspective.


REMEDY


The Court ultimately ordered that the proceedings be heard on an urgent basis. This remedy was predicated on the necessity to address the irrationality of the council’s decision expeditiously to avoid further administrative and financial detriment. While the detailed contours of the remedy were set out in the subsequent Order 2, the underlying objective was to prevent the continued implementation of the second resolution, which was found to be constitutionally questionable.


The immediate remedy put forward by the Court is aimed at safeguarding the integrity of the appointment process while also ensuring that the erroneous delegation of authority influenced by the MEC does not persist unabated. The decision to treat the matter with urgency is reflective of the Court’s determination to act swiftly wherever there is potential for significant public and administrative consequences.


In arriving at this remedy, the Court signalled its readiness to impose a costs order if procedural lapses were found problematic, emphasizing that the remedy sought was both a corrective and preventative measure in the realm of municipal governance.


LEGAL PRINCIPLES


The key legal principles established or applied include the affirmation that a municipality and its municipal council are inseparable entities for purposes of administrative decision-making. The judgment reinforced that the principle of direct and substantial interest, while significant, must be applied on a “case and context” basis, ensuring flexibility in addressing complex administrative disputes. Furthermore, the Court clarified that procedural missteps, such as the incorrect venue for initiating proceedings, do not automatically undermine the jurisdiction of the Labour Court when weighed against the imperatives of equity and justice.


Another important principle is that the abuse of power by public officials, particularly in employment matters, warrants urgent judicial intervention to protect public funds and maintain administrative integrity. This case thus establishes a robust judicial stance against administrative decisions that are irrational, procedurally flawed, or unduly influenced by external executive pressure.


Lastly, the decision underscores that while adherence to procedural rules is essential, the overarching objective is to ensure that the constitutional and legal rights of all parties are preserved, with the Court ready to remedy breaches that threaten the integrity of public administration.



IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Case No: 2025- 032401

LEBOHANG ANDREW MOINWE Applicant
and
JOE MOROLONG LOCAL MUNICIPALITY First Respondent
B.D MOTLHAPING
(1
ST RESPONDENT MUNICIPAL MANAGER) Second Respondent
MEC: COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL
AFFAIRS (NORTHERN CAPE) Third Respondent

Heard: 23 April 2025
Delivered: 09 May 2025


JUDGMENT


MABASO, AJ
Introduction:

2

[1] On 17 December 2024, the Municipal Council ('the Council") of the First
Respondent adopted a resolution to appoint the Applicant as the First Respondent's ("the Municipality") permanent Director of Technical Services, effective 1 February 2025 ("the first resolution"). However, on 24 February 2025, the Council rescinded this resolution and resolved to re- advertise the position ("the second resolution"),
thus nullifying the first resolution. This change was prompted by a letter from the Member of the Executi ve Council ("the MEC"), which indicated that it did not "concur"
with the first resolution. The MEC raised concerns regarding the incumbent's competency, asserting that the Applicant was "not the most competent candidate" and recommending that the Council reconsider its decision and appoint one who, he said, "obtained the highest scores in the core competencies." At this time, the Municipality employed the Applicant as the acting Director of Technical Services.
[2] In response, the Applicant has approached this Court , on semi -urgent,
seeking inter alia an order declaring the second resolution to be unconstitutional and
/or inconsistent with the principle of legality and requesting that it be set aside. All the
Respondents oppose this application and have submitted their preliminary
objections, including claims regarding the Court's jurisdiction, the Municipality's non -
joinder as the resolution taker, and the absence of urgency. These preliminary
issues will be addressed before engaging in the case’ s substantive matters.
Points in limine:
Jurisdiction
[3] The Third Respondent contends that this Court, sitting in Cape Town, should
dismiss this application or, alternatively, remove it from the roll , because the
Applicant should have instituted these proceedings in Johannesburg, which is a location closer to the Municipality. This contention is based on Rule 3(1) of the
Court's Rules, which stipulates that proceedings must be commenced in the nearest venue where the dispute that forms the basis of the case originated. It is crucial to note that the provision upon which the MEC relies addresses "the seat where proceedings must be initiated and court sittings," rather than the jurisdiction of the Court. According to the definitions provided within the same Rules, the term 'Court' is
3
defined as the Labour Court established under section 151 of the Act, which inter
alia confirms that this Court is a Court of equity. This Court has national jurisdiction, not provincial jurisdiction.
[4] This Court concludes that, even though the Applicant did not obtain
authorisation from the Judge President of this Court when he instituted this application in Cape Town, which is not condoned, the procedures related to the Court's sittings do not affect the Labour Court's jurisdiction, even if proceedings are
initiated at a different seat. Rather, the purpose of the Rules and associated directives is to manage and regulate the handling of cases within this Court. Should
a party fail to adhere to these rules, it does not imply that the matter w ill be
dismissed or automatically removed from the roll. Instead, the Court may impose a
costs order deemed appropriate, which may include unnecessary expenses incurred
by either party that could have been avoided had the matter been instituted within a
reasonable proximity to the location of the dispute. This Court would not have hastened to issue a costs order against the Applicant based on this if there were submissions that the MEC incurred unnecessary costs because of the location when
this matter was instituted. Therefore, as this is a Court of equity, it concludes that this
contention lacks merit and must be dismissed.
Non-joinder
[5] The MEC also cont ends that the application is flawed because the Applicant
did not cite the Council herein; furthermore , he submits that the Council has a vested
interest in this matter as their decision are a subject of this litigation.
[6] It is true that it is imperative for a party initiating legal proceedings to include
all other parties that possess what is designated as "a direct and substantial interest" in the relief sought. However, this Court ’s understanding is that it is crucial to
recognise the status of such parties within the application under consideration. This
indicates that the principle is not absolute but is evaluated on a "case and context
basis .” In the matter of Minerals Council South Africa v Minister of Mineral
Resources and another [2020] 4 All SA 150 (GP), the Court stated the relevant principle as follows:
4
“The question whether the potentially affected interest is a direct and
substantial one that constitutes a legal interest, needs to be determined on a case and context -specific basis. Particular regard would have to paid to the
special characteristics of the case as well as to the impact the relief sought by an applicant would have on the non- joined affected parties. It is therefore
important to discern the context within which this litigation is conducted.” (Own
emphasis)

[7] This Court has carefully considered the arguments presented on this issue
and finds no compelling evidence supporting the MEC's position. Instead, the Court is persuaded by the Applicant's submission, which references an excerpt from the case of Nelson Mandela Bay Municipality and others v Qaba and others [2022] 3 All
SA 239 (ECP) . This excerpt effectively articulates the relationship between a
Municipality and a Municipal Council regarding Section 151 of the Constitution of the
Republic of South Africa , when read in conjunction with Section 2 of the Systems
Act
1, as it said :
"What section 2 of the Systems Act does not contemplate is that 'a municipality' is a separate incorporated entity to that of its 'council'. Such a
notion would, in any event, be absurd since it is the Council in which
executive and legislative power and authority is vested."
And
“Section 2(b) plainly conceives of a municipality as an amalgam of the political structures and administration of which it consists. Neither the Constitution nor the legislation enacted to give effect to its provisions clothes a 'municipal council' with separate legal personality from the 'municipality' of which it is a component. Rather, a municipality acts and performs its functions through the agency of its Council. The Council consists of democratically elected representatives of the community which forms part of the Municipality. In it is vested all of the constitutionally conferred powers and responsibilities of a municipality.”


1 Local Government: Municipality S ystems Act 32 of 2000(“the Systems Act”)
5
[8] In light of the conclusion of this Court, which emphasizes a "case and context
basis" approach, this conclusion is supported by section 160 of the Constitution,
which stipulates that "A municipal Council makes decisions concerning the exercise
of all the powers and the performance of all functions of the Municipality." Additionally, as stated in the answering affidavit submitted on behalf of the Municipality and Second Respondents (“the Municipal Manager”) , in paragraph 3
therein, the Municipal Manager confirms that she is authorized to oppose the
application on behalf of the Municipality and further asserts that "as can be gleaned
in section 2(a) of [the Systems Act], a Municipality includes its Council." This also
reinforces the fact that the Council extends its authority to the Municipal Manager .
[9] Consequently , this point is rejected as it lacks merit.
Urgency
[10] During oral submissions , the counsel for the MEC indicated that he was not
particularly concerned about urgency; however, the Municipality and the Municipal
Manager insisted on it. This Court has thoroughly considered the facts of this case.
Moreover, it is crucial to note that this is not an application in which an individual
seeks to interdict or obtain a declaratory order concerning an ongoing disciplinary hearing, but rather a matter in which the Applicant raises an important issue regarding the Council's irrational decision, which the MEC , who is not an employer ,
has influenced.
[11] This Court has taken into considerat ion the findings in Apleni v President of
the Republic of South Africa 2018 (1) All SA 728 (GP) , particularly regarding the
issue of urgency , as that Court acknowledged that allegations concerning the abuse
of power by public officials, which may have significant implications for the public ,
warrant prompt judicial attention.

6
[12] This Court has also considered what the learned Makhura J said in
Letsholonyane 2 as he reinforced the principle of urgent intervention by the Court
whereby political heads seem to act irrational ly in employment relationships .

[13] In casu, the Council has resolved to re- advertise the position. Clearly, there
will be interviews afterwards, which might lead to the appointment of a different person to this position. If this matter is not addressed now, what will happen if a year later this Court rules as it is doing in Order 2 below ? That would clearly result in
wasteful expenditure, considering that the parties have on record that this process involves a service provider who conducted the appointment process following the
first resolution .
[14] On this basis, thi s Court concluded to hear this matter on an urgent basis.
Substantive case:
[15] On 30 September 2024 , the Council passed a resolution to appoint the
Applicant to an acting position for a duration not exceeding three months, pending
the fulfilment of the vacancy. The vacancy was subsequently advertised in
accordance with the Municipality's internal protocols. The Applicant applied,
alongside other candidates, and was shortlisted for the position, participated in
interviews, and underwent competency assessment tests. The selection panel
recognized the Applicant as a distinguished candidate and subsequently
recommended his appointment. Therefore, on 17 December 2024, in accordance
with regulation 17(1) and (2) of the Regulations on Appointment and Conditions of Employment of Senior Managers, as well as sections 56 and 57 of the Systems Act, it was resolved that he be appointed to the vacant position. This is the first
resolution.
[16] At this point, it is important to take a moment to refer to and reproduce the
exce rpts of the contested Regulation, mentioned in the preceding paragraph.
Regulation 17 reads thus :

2 See Letsholonyane v Minister of Human Settlements and Another [2023] ZALCJHB 147; [2023] 8
BLLR 796 (LC); (2023) 44 ILJ 1740 (LC) at paras 29 – 30.
7
“17 Resolution of municipal Council on appointment of senior managers and
reporting
(1) Before making a decision on an appointment , a municipal council must
satisfy itself that -
(a) the candidate meets the relevant competency requirements for the post,
as set out in Annexures A and B to these Regulations;
(b) screening of the candidates has been conducted in terms of regulation
14; and (c) the candidate does not appear on the record of staff members dismissed
for misconduct as set out in Schedule 2 to these Regulations.
(2) A municipal council must , subject to subregulation (1), take a decision
on the appointment of a suitable candidate.
(3) A municipal council must -
(a) inform all interviewed candidates, including applicants who were
unsuccessful, of the outcome of the interview; and
(b) within 14 days of the decision referred to in subregulation (2), submit
a written report to the MEC for local government regarding the
appointment process and outcome.” (Own emphasis)
[17] The pertinent excerpts from Sections 56 of the Systems Act are articulated as
follows:
“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) ...
(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) ...
(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
8
(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 nationally to attract a pool of candidates nationwide;
and
(b) select from the pool of candidates a suitable person who complies with
the prescribed requirements for appointment to the post.
(4) The municipal Council must readvertise the post if there is no suitable candidate who complies with the prescribed requirements.
(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.”

[18] Back in this matter, the first resolution was subsequently forwarded to the
MEC, as outlined in Regulations 17(3)( b), which stipulate the requirement to “submit
a written report” to the MEC. Following this procedure, the MEC issued a letter to the
Council, in dicating that he had reviewed the appointment process and the outcome
report, noting the number of individuals shortlisted and the overall results. However,
he concluded that the appointment was in violation of section 56(1)( b) read with
Regulations 8(1)( b) and 9(1) of the Appointment Regulations. Consequently, he
proposed the following recommendations.
9
“ I cannot Concur with the appointment of the first candidate as he is not the
most competent candidate. The municipal Council is advised to reconsider the recommendation based on the candidate that obtained the highest scores in the competencies"

[19] Upon receiving the outcome, the Municipality formally expressed its
disagreement with the conclusion reached by the MEC. Nevertheless, the Council resolved to rescind its previous resolution and opted to re- advertise the vacancy.
The Council articulated that this decision was made in order to mitigate the potential risk of litigation from the Applicant, should they proceed with the appointment of the candidate recommended by the MEC. Additionally, they considered the possibility of facing litigation from the MEC if they chose not to comply with the advice provided. Ultimately, the Council acknowledged that, with respect to the initial resolution, they believed their stance to be correct.
[20] The Applicant asserts that the Council 's later approach influenced by the
MEC’s decision is irrational and inconsistent with the principle of legality ,
3 as the
authority to appoint a manager who reports directly to the M unicipal Manager is
vested in the Council, albeit within the confines of statutory limitations, specifically
referencing section 56(1) (a) of the Systems Act. The Applicant characterises this
decision as irrational, providing several reasons to support his claim, arguing inter alia that:
20.1 The competency assessment stage should not be considered in
isolation from other criteria that could supersede preceding stages , such as
shortlisting and the interview process, as it constitutes part of a more comprehensive procedure.
20.2 The Applicant also takes advantage of the version in the M unicipal ity’s
affidavit, which, inter alia, provides that the Council maintains that upon
reviewing the MEC's report, they remain adamant that no legal provision in
the System s Act obstructs them from making decisions while fulfilling their
functions; thus, their decision was within the law.

3 Hendricks v Overstrand Municipality & Another (2015) 36 ILJ 163 (LAC) , para 16 – 33.

10

20.3 The Applicant asserts that the MEC’s reasoning is irrational. The MEC
incorrectly believes that his appointment, based on the resolution adopted on 17 December 2024, contravenes the provisions outlined in section 56(1)( b) of
the Systems Act.
20.4 Furthermore, the Applicant argues that if the MEC opines that the
appointment was a nullity, as described in section 56(2) of the Systems Act, he should have approached a competent court for appropriate recourse, rather than the approach that has been taken. In a way, t he Munici pality and
the M unicip al Managers concur with this assertion.
[21] This Court's understanding of the interpretation of Section 56, as stated
above, is outlined hereafter.
[22] It is essential to note that Section 4(1)( b) of the Systems Act confers upon the
Council the authority to exercise the Municipality's executive and legislative powers
without any undue interference. Furthermore, Section 56(1)( a)(i) of the Systems Act
affords the Council the powers necessary to appoint a manager who is directly
accountable to the M unicipal Manager, rather than to an MEC. This provision
specifies that such an appointment must occur following consultation with the Municipal Manager. It is important to clarify that this decision is not required to
involve the MEC . This subsection specifically provides that “[ the Council ] …must
appoi nt…”. Subsection (1)( b) expressly confirms that the process is independent of
the MEC , as it refers to "A person appointed," rather than a person recommended,
and subsequently delineates the qualifications required for that individual.
[23] To support the point made in the preceding paragraph, reference is made to
subsection (2), which states that " A decision” to appoint an individual as previously
indicated and “any contract concluded between the municipal council and that person… is null and void if …the person does not possess the prescribed
…competence…” . This clause underscores that the authority to appoint such an
individual resides solely with the Council. Both subsections 56( 1) and (2) elaborate
on the necessary consultations, identify the decision- maker , and outline the
11
consequences of making decisions that do not comply with the stipulations set forth
in the System s Act.
[24] Notably, there is no mention of an MEC within th ese provisions. It is also clear
that subsection 5(a) indicates what should have happened after “the date of the appointment,” as it clearly states that the Council “must” “inform” the MEC of “the
appointment process and outcome” thereof.
[25] To demonstrate that the process of informing the MEC is procedural and does
not entail directing parties on who to appoint, it is expected that the MEC must also inform the concerned Minister. It is also clear that section 56(6) specifically indicates that “ (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.”(Own emphasis)

[26] Consequently, it is concluded that the only recourse available to the MEC, in
light of the aforementioned considerations, is to refrain from offering
recommendations to the Council as he did, i nstead, seek judicial intervention if the
Council has rendered a decision that contravenes both subsections 56(1)(a) and ( b)
of the System s Act.
[27] Furthermore, this Court concludes that the MEC incorrectly understood the
provisions of section 56 (1)(b) of the System Act, which inter alia refers to “competencies” not in light of the classification provided by the MEC referring to the "most competent" individuals. I t articulates the necessity for " at least … skills,
expertise, competencies, and qualifications" to be appointed; this serves as a guiding
framework for the Council, which acts as the decision- making body , and the decision
lies with that Council. The assertion by the MEC that the appointment fails to satisfy
the criteria outlined in the provisions suggests a misunderstanding of the fact that the
competency assessment stage is not an isolated process within the appointment
12
framework ; additional factors must be taken into account. So, the decision- maker,
which is the Council, will know that , not the MEC.

[28] Moreover, the decision- maker, in accordance with regulation 17 (2) , is
obligated to "make a decision regarding the appointment of a suitable candidate."
Therefore, it would have been more appropriate for the MEC to seek recourse through the judicial system, as stipulated in section 56(6) of the System s Act, rather
than proceeding in the manner that was adopted. Consequently, the MEC acted
contrary to section 4(1)(b) of the System s Act, which disapproves of “improper
interference." Considering all t hat is stated above, the Council was right in that the
MEC had no power to give them advice as he did.
[29] Did the Council act irr ationally and against the principle of legal ity by adopt ing
the second resolution? The starting point is to look at the judgment in Premier,
Gauteng and Others v Democratic Alliance and Others 2022 (1) SA 16 (CC) , which
says the following about the principle of legality, which is a subject of the Applicant ,
in the following point ,
“…The principle of legality has developed significantly in our jurisprudence
since Fedsure and the grounds for a legality review have expanded along with
it. They now include lack of authority, abuse of power, and jurisdictional facts,
which are all subcategories of lawfulness. The rationality of the action in
question may also be challenged as a further and separate ground of review. ”
[30] The LAC in Hendricks v Overstrand Municipality & Another (2015) 36 ILJ 163
(LAC) at para 21, said the following:
“But it is probably unnecessary to go that far. There is strictly speaking no need to classify the decision as administrative action in terms of PAJA before a review will be competent under s 158(1)(h). The provision does not say that
the Labour Court may review decisions of the state acting as employer on the
grounds of review applicable to administrative action under PAJA. The Labour Court may do so on any ground 'permissible in law'. Review under PAJA is only one kind of administrative law review. Other exercises of public power are reviewable on constitutional grounds of legality and rationality. As stated
by the SCA in NDPP & others v Freedom under Law, the legality principle
13
has become well established in our law as an alternative pathway to judicial
review of exercises of public power where PAJA finds no application. The principle permits review on grounds of both legality and rationality . (Footnotes
omitted)
[31] In this matter, as much as the law is clear that the Council may rescind its
decisions,
4 the Council subsequently rescinded its initial resolution in light of the
position articulated by the MEC. It is crucial to analy se the reasons presented by the
Council, as referenced in paragraph 19 of this judgment , which cent re on concerns
regarding potential litigation. [32] This reasoning indicates an irrational ity. The Council possesses both the right
and the obligation to govern its operations and proceedings without fear, favour , or
prejudice, given that it is an institution established by the Constitution of the Republic .
5 Should the Council be permitted to render decisions based on such
uncertain apprehensions, it would undermine the ability of councillors to fulfil their duties, as they would be apprehensive of unforeseen legal challenges. Moreover, the actions of the Council have been unduly influenced by the MEC's erroneous
decision, which subjects the Council to inappropriate interference, contrary to the
stipulations of section 4(1)(b) of the Systems Act. This conduct is inconsistent with
the principle of legality and is irrational.
[33] It is essential to recognize that the decision to re- advertise the position is in
direct contradiction to the applicable regulations. It is widely understood that the Council has identified a suitable candidate in accordance with the requirements set forth in regulation 17. Moreover, regulation 19(1) explicitly delineates the conditions under which a re- advertisement may be warranted. This regulation states: “If no
suitable candidate has been identified, [the Council] (a) must inform all shortlisted candidates that their applications were unsuccessful; and (b) may re- advertise the
post.” Consequently, the decision to re- advertise the position is deemed unlawful, as

4 Section 59(3) of the Systems Act.
5 Section 4(2)(b) of the System Act provides that the Council “…has the duty to- …provide, without
favour or prejudice… ”
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it violates not only this regulation but also other relevant provisions outlined in the
Systems Act, as established in section 120 of the same Act.
[34] The Applicant also has raised concerns regarding the procedural steps
undertaken to adopt the second resolution, which mandated the re- advertisement of
the position. These concerns primarily pertain to the alleged procedural impropriety of the Council, as the Applicant asserts that the second resolution was enacted in violation of Rule 28.5 of the Standing Rules, which delineates specific guidelines pertaining to such actions. This Rule reads thus:
“ When a member introduces a motion which is intended to rescind or amend a resolution passed by the council in the preceding three months or which has the purport as a motion that was not supported within the three preceding months shall not be entertained. ”

[35] The assertions stated above are not significantly contested by the
Respondents. For example, the joint response from the Municipality and the Municipal Manager consists solely of a denial, lacking any substantive arguments.
This standing Rule is explicit, and given the circumstances of this case, it is evident
that the Council should not have proceeded in the manner that they did, as the first resolution was adopted on 17 December 2024, and the subsequent resolution was enacted on 24 February 2025. Furthermore, a clear and undisputed argument exists that this conduct is improper. Thus, this Court concludes that the actions taken by
the Council constituted a violation of the applicable standing Rule.
[36] The final consideration pertains to the subsequent course of action. The
pleadings do not explicitly indicate whether the Council has met the requirements set forth in Regulation 17(3)(a), which mandates that all candidates who have undergone interviews receive notification regarding the outcomes of their interviews, including the Applicant. Therefore, the Council is hereby directed to furnish this notification within the timeframe outlined in the order below.
[37] Costs do not invariably follow the results in this Court , as the provisions of
section 162 of the LRA appl y; in this particular case, the Court has concluded that
the Municipality shall bear the costs incurred by the Applicant . The rationale for this
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determination is as follows: Following the receipt of recommendations from the MEC,
the Council consulted legal counsel, which unequivocally indicated that the MEC had relied upon incorrect advice, as the case law followed was not applicable in this
matter . Upon reviewing the referenced case law, this Court agrees that it is not
pertinent to the current matter, a conclusion that the Council has appropriately recogni sed. Furthermore, motivated by irrational considerations, the Municipality
chose to re- advertise the position, contrary to their initial understanding.
Subsequently, when the Applicant initiated this application, the Municipality opposed it.
[38] Consequently, the following order is made:
Order :
1. The application was heard as a matter of urgency , and the Applicant’s
failure to comply with time limits, forms and procedures in the Rules of this
Court was accordingly condoned.
2. The decision of the Municipal Council of the First Respondent, taken
on 24 February 2025, to re -advertise the Director of Technical Services
position is hereby reviewed and set aside.
3. The Municipal Council, acting through the Second Respondent in
accordance with section 55(1)(k) of the Systems Act 32 of 2000, is directed to
comply with Regulation 17(3)(a) of the Local Government : Regulations on
Appointment and Conditions of Employment of Senior Managers , within five
days.
4. The Second Respondents are directed to implement and execute the
decision rendered by the Municipal Council on 17 December 2024, within 10 days , which is the decision that mandates the permanent appointment of the
Applicant to the position of Director of Technical Services.
5. The First Respondent is to pay the Applicant ’s costs.

Sandile Mabaso
Acting Judge of the Labour Court of South Afric a

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Appearances:

For the Applicants: Mr W. P. Sch ötlz
Instructed by: Schötlz Attorneys
For the First and Second Respondent s: Adv. N Mathe- Ndlazi
Instructed by: Voyi Inc. Attorneys
For the Third Respondent: Adv. CC Davis
Instructed by: The Office of the State Attorney

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