IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISIO N - MTHATHA )

Case no: 2715/2024

In the matter between:

SIMVUMILE MAMBAFULA Applicant

And

ALFRE D NZO DISTRICT MUNICIPALITY Respondent


JUDGMENT

NKELE AJ :

INTRODUCTION

1. The applicant approached this Court, on an urgent basis, seeking an order to
review and set the respondent’s decision not to a ppoint him as per the
recommendations of the interviewing pan el and to re -advertise the post. He also
seeks an order appointing him to the post as per the recommendations of the
interviewing panel. Effectively the applicant seeks to review the decision to cancel
the recruitment process.

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2. On 10 October 2024 the court granted an order interdicting and restraining the
respondent from conduct ing interviews for the post of Director: Corporate Services
and from making a permanent appointment to that post, pending the finalisation of
the review contemplated in part B of the Notice of Motion.

CHR ONOLOGICAL COMMON CAUSE FACTS

3. It is a matter of common cause that on 20 June 2023 the respondent , acting in
terms of the applicable Regulations on Appointment of Senior Managers,
promulgated in terms of the Local Government Municipal Structures Act, 2000,
advertised externally the position of Director: Corporate Services. The
advertisement, which is titled “external advertisement ,” invited all qualified persons
to apply for the advertised position and the closing date for the applications was the
21st of July 2023.

4. The shortlisting panel commenced with the process of shortlisting of
candidates on the 13th of September 2023, which p rocess culminated into a report
on the shortlisting and screening procedure that was submitted to the Council by the
Municipal Manager on 28 September 2023.

5. Interviews for the post of Director: Corporate Services were c onducted on 12
October 2023 and the interviewing panel recommended that the applicant be
appointed to the post as advertised.

6. On the 7th of November 2023 the Mayor of the Respondent, Councillor
Mhlelembana, wrote a letter to the Member of the Executive Council for the
Department of Co -operative Governance and Tr aditional Affairs, Eastern Cape
Province, in which he reported some serious irregularities in the interviewing process
and in the end recommended that the whole process be nullified and the post of
Director: Corporate Services be re-advertised.

7. In a Mayoral Committee meeting that was held on the 30th of November 2023,
the applicant was recommended for appointment to the advertised position and Ms A
Ganya was also appointed as the second -best candidate to cater for a situation
where the applicant declines or does not accept the offer of employment.

8. On 15 January 2024 the MEC , Cooperative Governance and Traditional
Affairs responded to the letter written by the Mayor on 7 November 2023, in which
the Mayor highli ghted irregularities in the interviews and recommended their
nullification. The MEC’s response is to the effect that he will ensure that a
comprehensive report is compiled and made available to the Mayor. He further
states in the letter that, given the gravity of the allegations and the necessity to
uphold the highest standards of governance, the post must be re -advertised.

9. A special council meeting held on 23 February 2024 noted the report on the
Recruitment of the Director Corporate Service s presented by the Executive Mayor
and recommended that, whilst the discrepancies in the recruitment process were
being investigated, Mr S Quzu be appointed as Acting Director Corporate Services
for a period of three months.

10. The applicant received a letter dated 30 April 2024, thanking him for applying
for the post of Director: Corporate Services and advising him that the post will be
advertised again. The letter also encouraged him to apply for the position. The post
was re -advertised on 3 May 2024.

11. The applicant then launched this application on 4 July 2024 on an urgent
basis.

ISSUE FOR DETERMINATION

12. The main issue, the quintessence of the matter, that this Court will have to
grapple with, and which it has to resolve and decide on, is whether the decision of
the Respondent not to appoint the applicant and to re -advertise the post constitute s
an administrative action under the Promotion of Administrative Justice Act1 and, if
so, whether it is reviewable.

1Act no.3 of 2000 .

13. Necessarily so, a discussion to resolve the essence of the dispute in this
matter entails narrating of the governing legal framework and the analysis of the
parties ’ competing and, often, contradicting contentions. It is imperative to first
discuss the per tinent legal principles and the n narrate the parties’ respective
versions, which will be follow ed by an analysis of both versions and then a
conclusion will be made there from. Below I set out to discuss the relevant statutory
framework and the applicable case law.

THE REGULATORY CONSTITUTIONAL AND LEGAL FRAMEWORK

14. The right to a just administrative action is a human right expressly entrenched
in the Bill of Rights and which is only subject to limitation in terms of section 36 of the
Constitution of the Republic of South Africa. The Authors opine that the adjective
‘just’ refers to the lawfulness and reasonableness and procedural fairness of the
action; that is if an action is lawful, reasonable and procedurally fair it will be just in
terms of section 33 of the Constitution. According to the authors section 33 does not
operate in a vacuum but is dependent upon the existence or presence of an
administrative action .2

15. Section 33 of the Constitution provides that :

(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and
must -
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and

2Geo Quinot et al Administrative Justice in Sout h Africa, An Introduction 2nd ed (2020) at page 75 .
(c) promote an efficient administration”.

16. Section 33 of the Constitution confers wide standing powers to enforce the
constitutional right to a lawful administrative action and give an adversely affected
party a right to revie w an administrative action in a Court of law or any other
independent and impartial tribunal.3

17. The Promotion of Administrative Justice Act was enacted to give effect to the
right to lawful administrative action and it does so by elaborating the right to just
administrative action and by providing a remedy to vindicate it.4

18. In terms of section 1 o f Act 3 of 2000 an ‘administrative action’ is defined as
“any decision taken, or any failure to take a decision, by -

(a) an organ of state, when –
(i) exercising a power in terms of the Constituti on or a provincial
constitution ; or
(ii) exercising a public power or performing a public function in terms of
any legislation; or
…which adversely affects the rights of any person and which has a direct,
external legal effect, but does not include -
…
(cc) t he executive powers or fun ctions of a municipal council;
…
(hh) any decision taken, or failure to take a decision, in terms of any provision
of the Promotion of Access to Information Act, 2000; or
(ii) any decision taken , or failure to take a decision, in terms of section
4(1)”.

19. In the Act a decision is defined as any decision of an “administrative nature
made, proposed to be made, or required to be made, as the case may be, under the
empowering provision, including decisions relating to –

3Ian Currie & Johan De Waal The Bill of Rights Handbook 6th ed (2017) at page 646.
4 Ibid page 649. See also Preamble to Act 3 of 2000.

(a) Making, suspending, revoking or refusing t o make an order, award or
determination;
(b) Giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) Issuing, suspending, revoking or refusing to issue a licence, authority
or other instrument;
(d) Imposing a con dition or restriction;
(e) Making a declaration, demand or requirement;
(f) Retaining or refusing to deliver up, an article or
(g) Doing or refusing to do any other act or thing of an administrative
nature,
And a re ference to failure to take a decision must be construed accordingly”.

20. Empowering provision is defined to mean “a law, rule of common law,
customary law, an agreement, instrument, or other document in terms of which an
administrative action was purportedly t aken”.

21. In terms of the provisions of section 6(1) of the Act [a]ny person may institute
proceedings in a court or tribunal for the judicial review of an administrative action
and in terms of sub-section 2 a court or tribunal has the power to judicially review an
administrative action if –

(a) The administrator who took it –
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by the
empowering provisions ; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken -
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purposes or motive ;
(iii) because irrelevant considerations were taken into account or
relevant consideration were not considered;
(iv) because of the unauthorised or unwarranted dictates o f another
person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself-
(i) contravenes a law or is not authorised by the empowering provision ;
or
(ii) is not rationally connected to -
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reason given for it by the administrator;
(g) the action itself concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the administrati ve action
was purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power or performed the function; or
(i) the action is otherwise unconstitutional or unlawful.

22. Section 56(1)( a) of the Local Government: Municipal Systems Act 32 of 2000
provides that a Municipal Council, after consultation with the municipal manager,
must appoint -

(j) “a manager directly accountable to the municipal manager. In terms of
paragraph (b) of sub -section (1) of section 56, a person appointed in terms of
paragraph (a)(i) or (ii) must at least have the skills, expertise, competencies
and qualifications as prescribed of the Local Government: Municipal Systems
Act”.5


5 Local Government: Municipal Systems Act 32 of 2000.
23. Subsection 3 is to the effect that if a post referred to in subsection (1)( a)
becomes vacant, the Municipal Council must advertise the post nationally to attract a
pool of candidates nationwide and select from the pool of candidates a suitable
person who complies wi th the prescribed requirements for appointment to the post.
The Municipal Council must re -advertise the post if there is no suitable candidate
who complies with the prescribed requirements, in terms of subsection 4.

24. If an appointment is made, 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 in terms of section (4 A) (a). 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 in terms of subsection (4 A) (b).

25. Subsection 6 is to the effect that 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.

26. The competency requirements for Senior Managers are tabulated in
regulation 9 of the Regulations on the appointment and conditions of employment of
Senior Managers, promulgated in terms section 120, read with section 72, of the
Systems Act. The Relevant regulation provides that:

“9(1) A person appointed as se nior manager in terms of these r egulations
must have the competencies as set out in Annexure A.
(2) A person appointed as a se nior manager in terms of these r egulations
must comply with the minimum requirements for higher education
qualifica tion, work experience and knowledge as set out in Annexure B.”

27. In Economic Freedom Fighters v Speaker, National Assembly and Others6,
the Constitutional Court confirmed the importance of the rule of law and pointed out
also the consequences of abusing state power in the following manner :

“One of the crucial elements of our constitutional vision is to mak e a decisive
break from the unchecked abuse of s tate power and resources that was
virtually institutionalised during the apartheid era. To ac hieve t his goal we
adopted accountability, the rule of law and the supremacy of the Constitution
as values of our constituti onal democracy. For this reason public -office
bearers ignore the ir constitutional obligations at their peril. This is so because
constitutionalism, accountability and the rule of law constitute the sharp and
mighty sword that stands ready to chop the ugly head of impunity off its
stiffened neck”.

28. The Constitutional Court in Minister of Defence & Military Veterans v Motau
and Others7 stated that :

“administrative action can be crystallised into seven elements, that there must
(a) a decision of an administrative nature; ( b) by an organ of state or a natural
or juristic person; ( c) exercising a public power or performing a public function;
(d) in terms of any legislati on or empowering provision; ( e) that adversely
affects rights; (f) that has a direct, external legal effect; and ( g) that does not
fall under any of the listed exclusions. ”8 (Added emphasis.)

The Apex Court went on to state that in determining what constitute
administrative action “(a) a court must make a ‘positive decision in each case
whether a particula r exercise of public power …is of an administrative
character’; (b) a decision is not administrative action merely because it does
not fall within one of the l isted exclusions in section 1(i) of PAJA. A reviewing

6 2016 (5) BCLR 618 (CC), 2016 (3) SA 580 (CC) at para 1. See also Premier, Gauteng Others v
Democratic Alliance Others 2022 (1) S 16 (CC) at para 67.
7 2014 (5) SA 69 (CC ) at para 33 .

court must undertake a close analysis of the nature of the power under
consideration”.9

29. At paragraph 37 the Apex Court defined the conduct of an administrative
nature, which is generally known as the conduct of the bureaucracy, in the following
terms:

“Executive powers are, in essence, high -policy or broad direction -giving
powers. The formulation of policy is a paradigm case of a function that is
executive in nature. The initiation of legislation is another. By contrast, ‘(a)
administrative action is …the conduct of the bureaucracy (whoever the
bureaucratic function ary might be) in carrying out the daily functions of the
state, which necessarily involves the application of policy, usually after its
translation into law, with the direct and immediate consequences for
individuals or groups of individuals’. Administrative powers are in this sense
generally lower -level powers, occurring after the formulation of policy. The
implementation of legislation i s a central example. ”10

30. The Constitutional Court in President of the Republic of South Afri ca and Others
v South African Rugby Football Union & Others11 held that:

“In s 33 the adjective ‘administrative’ not ‘executive’ is used to qualify ‘action’.
This suggests that the test for determining whether conduct constitutes
‘administrative action’ is not the question whether the action concerned is
performe d by a member of the executive a rm of government . What matters is
not so much the function ary as the function. The question is whether the task
itself is administrative or not. It may be, as contemplated in Fedsure , that
some acts of a legislature may constitute ‘administrative action’. Similarly,
judicial o fficers may, from time to time, carry out administrative tasks. The
focus of the enquiry as to whether conduct is ‘administrative action’ is not on

9 Ibid at para 34.
10 Ibid at para 37.
11 2000 (1) SA 1 (CC) paras 141 -143.
the arm of the g overnment to which the relevant actor belongs, but on the
nature of the power he or she is exercising.

As we have seen, one of the constitutional responsibilities of the Presid ent
and Cabinet Members in the national sphere (and premiers and members of
executive councils in the provincial s phere) is to ensure the implementation of
legislation. This responsibility is an administrati ve one, which is justiciable,
and will ordinar ily constitute ‘administrative action’ within the meaning of s 33.
Cabinet M embers have other constitutional responsibilities as well. In
particular, they have constitutional responsibilities to develop policy and to
initiate legislation. Action taken in carrying out these responsibilities cannot be
constructed as being administrative action for the purpose s of s 33. It follows
that some acts of members of the executive, in both the national and
provincial spher es of g overnment will constitute ‘administr ative action’ as
contemplated by s 33, but not all acts by such members will do so.

Determining whether an action should be characterised as th e implementation
of legislation or the formulation of policy may be difficult. It will, as we have
said above, depend primarily upon the nature the of power. A series of
considerations may be relevant to deciding on which side of the line a
particular action falls. The source of the power, though not necessarily
decisive, is a relevant factor. So , too, is the nature o f the power, its subject -
matte r, whether it involves th e exercise of a public duty and how closely it is
related on the one hand to policy matters , which are not administrat ive, and
on the other hand to the implementation of legislation, which is . While the
subject matte r of a power is not relevant to determine whether constitutional
review is appropriate, it is relevant to determine whether the exercise of the
power constitute administrative action for the purposes of s 33. Difficult
boundaries may have to be drawn in deciding what should and what should
not be characterized as administrative action for the purposes of s 33. These
will need to be drawn carefully in t he light of the provisions of the Constitution
and the overall constitutional purpose of an efficient, equitable and ethical
public administration. This can best be done on a case -by-case basis”.

THE APPLICANT’S CASE

31. The applicant’s case is basically a complaint that he was not appointed to the
post of a Director : Corporate Services, an external post that was advertised and for
which he was interviewed together with other candidates. The nub of his case is that
during the s election and interviewing stages all procedures were followed and there
were no complaints about irregularities. The recruitment , selection , and interviewing
panels were properly constituted and because he was the best qualifying candidate ,
he was recommended for appointment to the advertised post. The recommendation
was sent to the council of the respondent for endorsement.

32. It is the applicant’s contention that at all stages of the recruitment, selection
and interviewing stages the council was kept abreast of developments and in all the
reports about progress in the appointment of the Corporate Services Director, no
report of irregularities was made by any of the pa nels that were intimately involved in
the recruitment, selection and interviewing panels. The applicant’s case is that it
seems odd that the respondent would take a decision not to appoint him on the basis
of reports of irregularities reported to it by the Mayor who was not even part of either
the recruitment, selection or interviewing panel s. In the same vein, the applicant
submits, the decision to re -advertise the post on the basis of the allegations of
irregularity that adversely affects his rights is also odd and must be reviewed and set
aside .

33. The applicant, therefore, seeks an order to review and set aside the
respondent’s decision not to appoint him to the position of Corporate Services
Director and the decision to re -advertise the post. He also seek s for an order
appointing him to the position of Director: Corporate Services. The order sought is
based on the contention that the decision not to appoint him falls squarely with the
definition of administrative action and is susceptible to be reviewe d under PAJA.

RESPONDENT’S CASE

34. The respondent’s case is to the effect that during the interviews it was
discovered that sensitive information about the recruitment process was leaked to
the public in contravention of the policy proto cols. It is the respondent’s case that
those irregulariti es tainted the entire recruitment process. To substantiate its case
the respondent submits that the decision to suspend the recruitment process was
based on a rational reasoning to allow the investigation to go to the depth and extent
of the identified irregularities. The whole idea behind that exercise, so the
respondent submits, was to determine i f the alleged irregularities are material.

35. The respondent further contends that in the shortlisting process it was
discovered that certain candidates that qualified for the advertised p ost were not
shortlisted, they were excluded, f rom the interview . According the respondent that
rendered the entire shortlisting and recruitment process tainted with irregularities and
that made it liable to be reversed. In this regard the respondent contends that the
decision to nullify the recruitment process and to re -advertise the post was based on
the fact that the investigation revealed material irregularities that cannot be
condoned as they rendered the whole process futile.

36. It is the respondent’s contention that the applicant is not entitled to the
decision to make his appointment final, as per the recommendation of the
interviewing panel, as the decision to make an appointment is the sole prerogative o f
the respondent’s council. The re spondent further vehemently disputes that the
applicant is entitled to be app ointed to the advertised position on the basis of a
flawed and tainted recruitment process.

37. Lastly, the respondent contends that the decision not to appoint the applicant
was taken in an employment context that is in its capacity as the applicant’s
employer and therefore it had no direct and external effect on any other person other
than the applicant. Furthermore, the decision was taken during the respondent’s
council deliberative process, which does not fall under the definition of admi nistrative
action under PAJA and is therefore excluded from being reviewed, as it is the
outcome of a deliberative process of a legislative body.

APPLICATION OF LAW TO THE FACTS

38. As already explained above, the Constitutional Court neatly defined an
administrative action to be a decisi on of an administrative nature , taken by an organ
of the state or a natural person or juristic person, exercising public power or
performing public function, in terms of any legislation or empowering provision, that
adve rsely affects rights, which has a direct, external effect and which does not fall
under any of the listed exclusionary grounds.12

39. The question for consideration is whether the decision sought to be
impugned fits in the definition expounded by the Apex Court and therefore falls to be
reviewed under PAJA. In short, the question for consideration is whether the
respondent, when it took the decision to sought be challenged, did so exercising
public power whether in terms of a legislation or some empowering provision, if so,
whether that can be described as administrative in nature.

40. It is trite that the appointment of senior managers accountable to the
municipal manager is regulated by section 56 of the Municipal Systems Act. In terms
of section 56(1)( a)(ii) a municipal council, after consultation with the municipal
manager, must appoint a manager directly accountable to the m unicipal manager
under the circumstances and for a period as prescribed. Section 56(2) provides, in
unambiguous terms, that a decision to appoint and any contract concluded between
the Municipal Council and that person appointed is null and void if that pe rson does
not have the prescribed skills, expertise, competencies or qualifications or the
appointment was otherwise made in contravention of the Act, unless the Minister, in
terms of subsection (6), has waived any of the requirements listed in subsection
(1)(b).

41. During argument Mr Maswazi conceded that the post that was advertised,
and for which the applicant was recommended for appointment, is a senior
managerial one directly accountable to the municipal manager, as described in
section 56(1)( a)(i) of the Systems Act. That being the case the respondent’s council,
in taking a decision whether to appoint a candidate that has availed himself and has
been recommended for appoint ment after an interview, exercised the powers

12 Minister of Defence & Military Vete rans (note 7 above) at para 33.
bestowed on it in terms of the pro visions of section 56 of the Systems Act, as
aforesaid.

42. Logically, and necessarily so, it follows that the respondent ’s council was
expected to follow the relevant legislative or empowering provisions to the letter.
Most importantly, when it took the decision that the applicant seeks to challenge in
these proceedings, it was exercising public power or performing a public function
conferred upon it by section 56 of the Act.

43. There are two contrasting and contradictory propositions about the nature of
the decision taken by the respondent not to appoint the applicant to the post to which
he was recommended by the interviewing panel. On the one hand, the applicant
asserts that it is an administrative action as defined in PAJA . The applicant’s reasons
for submitting that it is an administrative action are that; firstly, the post was
advertised as an external one, meaning that any one from anywhere was invited to
apply. Secondly, the irregularities mentione d in the letter writte n by the m ayor to the
MEC have not been narrated , either in the Answering Affidavit or in an investigative
report. So, it is not known what kind of irregularities are they; thirdly, the complaint by
the m ayor about the candidates that have been overlooked has not been fully
explained in the Answering Affidavit . It is not known who are they and why they were
not interviewe d or whether their names appear in any of the reports submitted to
council , from recruitment to the recommendation stages.

44. Lastly, the applicant argues, very strongly, that the facts of the Gcaba and
Chirwa case s, upon which the respon dent re lies for dismissal of this application, are
distinguishable from the present one in that the post s there related to promotion from
a lower rank to a higher and that the applicant s did not rely on PAJA, as in the
present one. In this regard, the applicant contends, the Gcaba and Chirwa cases are
not authorities that can be relied on in the present factual matrix.

45. Furthermore, the applicant submits that the respondent failed to give the
applicant reasons why he was not appointed to the post, as it was duty bound to do
so in terms of PAJA, and such failure is a ground for review.

46. On the other hand , the respondent submitted, with much conviction and
vigour that, the principle enu nciated in Gcaba v Minister of Safety and Security13 and
Chirwa v Transnet Pension Fund14 applies here in that the facts are not
distinguishable, as he was an internal employee who sought to be appointed to a
higher post. According to the respondent the very same situation pertained in Gcaba .
In the circumstances, the respondent’s line of argument goes on, if the applicant was
aggrieved by anything relating to the recruitment, selection and appointment process
he should have utilised the internal grievance procedure and pursued his right to f air
labour practice following the provisions of the Labour Relations Act.

47. The respondent further resists the order sought on the ground that PAJA
specifically excludes decisions taken during deliberative processes by legislative
bodies, of which respondent’s council is one, from the definition of administrative
action and from b eing reviewed. Therefore, the r espondent argues , the decision
taken by the respondent’s council is immune from being reviewed under PAJA as it
is a decision of a legislative body. In other words, the r espondent seems to espouse
the view that PAJA entirely excludes the functions of the municipal council from the
radar of judicial review. In the light of the judgment in the SARFU case illustrated
above, that view cannot be correct. PAJA simply excludes th e executi ve powers and
functions of the municipal c ouncil and its legislative functions and not its
administrative ones .

48. The applicant, a rmed with his qualifications, experience and skills, made
himself availabl e to the advertised post and was recommended for appointment.
That, in my considered view, cannot be synonymous with being raised or propelled
to a higher post or rank, particularly because the applicant had to undergo an
elaborate process of being selected, interviewed and recommended to the post. In
any event, the post was advertised extremely, inviting anyone who qualified to apply
for appointment

49. I therefore come to the conclusion that the applicant’s appointment to the
adverti sed post would not have amounted to just a mere promotion, on the basis that

13 2010 (1) SA 238 (CC) .
14 2008 (4) SA 367 (CC) .
he was recommended to it by an interviewing panel which considered his expertise,
skills and qualifications . The next question is whether the failure to appoint him was
a legislative or administrati ve decision which is liable to be scrutinised under review.

50. It is trite that the question for consideration depend s on the manner in which
the applicant’s cause of action has been formulated in the founding papers . In this
matter the applicant has completely disavowed relying on the unfair labour practice
regime prescribed in the Labour Relations Act. The applicant solely relies on the fact
that the respondent’s failure to appoint him and to re -advertise the post contravenes
the pro visions of PAJA and is therefore reviewable.15 That means the applicant’s
case will have to be decided on the facts as pleaded in the papers and not
otherwise.

51. My reasoning in this regard is fortified by the judgment of Mkumatela v
Nelson Mandela Bay Metropolitan Municipality South Eastern Cape L ocal D ivision16
where the c ourt said :

“In my view, the first respondent (a municipality) cannot argue that promoting
its employee does not constitute administrative action. It is an organ of State
and in promoting employees, it exercises a public power and it performs a
public function in doing so. It clearly performs an administrative act when
acting in terms of its policies and implementing them. ”

52. Indeed, each case is decided on the basis of the facts presented in the
papers and in this matter the applicant seeks to review the decision of the
respondent not to appoint him as recommended by the interviewing panel and to re -
advertise the post . It is a trite principle of our law that the purpose of p leadings is to
define issues for the other party and the court. Courts are called upon to adjudicate
the dispute that arise from pleadings and nothing else.17 In Notyawa v Makana
Municipality it was held that Courts are bound not to decide issues falling outside

15 Fredericks v ME for Education and Training , Eastern Cape and Others 2002 (2) SA 6 93 (CC).
16 [2008] JOL 21686 (SE) at para 12.
17 Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA).
pleadings, without determining is sues of fairness and prejudice.18 Similarly, in
National Directo r of Public Prosecutions v Zuma19 the Supreme Court of Appeal held
that the judicial function of a Judicial Officer is to confine the judgment to the issues
before the Court; by deciding matters that are germane or relevant; by not creating
new factual issues; or by making gratuitous findings against persons who are not
called upon to defend themselves and by fai ling to distinguish between allegation,
fact and suspicion.

53. It is abundantly clear from the papers file d of record that the applicant seeks
to impugn the respondent’s decision not to appoint him as per the recommendations
of the interviewing panel. He also challenges the decision to re -advertise the post.
The basis for doing so are the provisions of PAJA. I am therefore satisfied with the
applicant’s version in this regard. What the respondent overlooks is that the
provisions of section 56 of the System s Act as well as the regulations, regulat e the
manner in which a man ager directly accountable to the municipa l manage r is to be
appointed. Consequently, I reject the respondent’s assertion that the nature of the
decision is one taken in its capacity as the employer and has no direct and external
effect to any person other than the applicant.

54. What needs to be emphasised, in my view, is that when a municipal council
execute s the functions that it is mandated to perform in terms of section 56, in
particular those that relate to the appointment of a manager directly accountable to
the municip al manager, it did not perform the functions as a legislative body. Clearly
that cannot be so because its role was to impleme nt what had already been
prescribed in the legislation, namely in section 56 of the Systems Act. It is an
estab lished principle of our law that both the process by which the decision was
made and the decision itself must be rational.20 This was made clear by the
Constitutional Court in the Motau Judgment when it held that administrative powers
are in th is sense generally lower -level powers, occurring after the formulation of
policy. The implementation of legislation is a central example.21


18 2020 (2) BCLR 136 (CC).
192009 (2) SA 277 (SCA) at paras 15 and 16 .
20 DA v President of RSA 2013 (1) SA 248 (CC) at para 67.
21 Motau (note 7 above) at para 37 , also SARF U (note 11 above) at para 142.
55. My view in this regard is supported by the conclusion of the Constitutional
Court when it stated that “…administrative action is…. the conduct of the
bureaucracy (whoever the bureaucratic functionary might be) in carrying out daily
functions of the state, which necessarily involves the application of policy, usually
after its translation into law, with direct and immediate consequences for individuals
or groups of individuals”.22

56. The Apex Court in DA v President of the Republic of South Africa held that :

“The conclusion that the process must also be rational in that it must be
rationally related to the achievement of the purpose for which the power is
conferred, is inescapable and an inevitable consequence of the understanding
that rationality review is an evaluation of the relationship between means and
ends. The means for achieving the purpose for which the power was
conferred must include everything that is done to achieve the purpose. Not
only the decision employed to achieve the purpose, but also everything done
in the process of taking that deci sion, constitutes means towards the
attainment of the purpose for which the power was conferred ”.23

57. Furthermore, the Apex Court emphasised that a failure to take into account
relevant considerations in the process of making a decision can render it irrational
where: (a) the factors ignored are relevant; (b) the failure to consider the material
concerned is rationally related to the purpose for which the power was conferred;
and (c) ignoring relevant factors of a kind that colours the entire process w ith
irrationality and thus renders the final decision irrational.24

58. In the present matter the information that served before the respondent’s
council has not been divulged in the answering affidavit. It is therefore not clear what
irregularities the Council relied when it took the decision not to appoint the applicant
and to re -advertise the post. It is not known whether there was an investigation
following the allegations of irregularities and whether that investigation, if any,

22Ibid Motu para 37 , see also Grey’s Marine Hout Bay (Pty) Ltd and others v Minister of Public Works
and others 2005 (6) SA 313 (SCA) at para 24 .
23DA (note 20 above) at para 36.
24 Ibid at para 41 .
culminated in a report or not. This was pertinently raised to the respondent during
argument that it relied on some anonymous information to motivate to the MEC to
nullify the outcome of the interview. All that the respondent’s counsel could say was
that the MEC accepted the report from the Mayor and instructed that the recruitment
process be started afresh, hence the re -advertisement of the post. In my view the
answ er fell far too short from addressing a very important issue, which is , on what
factual and legal basis did the Council decide not to appoint the applicant and to re -
advertise the post? The only plausible reason why the information regarding
irregularities was not divulged in the papers was that it was not there in the first
place.

59. In the circumstances , I come to the conclusion that no factual or legal basis ,
whatsoever , has been disclosed in the papers to justify the respondent’s decision n ot
to appoint the applicant and to re-advertise the post. That decision, in my considered
view, is of an administrative nature and is liable to be reviewed in terms of the
provisions of PAJA.

60. My conclusion that the respondent’s decision not to appoint the applicant and
to re-advertise the post constitutes an administrative action aligns with the following
case law where it was held that a decision of the Municipal Council to appoint a
Municipal Manager constitutes an administrative action .

61. In Mlokothi v Amathole District Municipality and Another25 the court held that
the appointment of a Municipal Manager was an administrative action. In Tshabalala
v Council of the Maluti -A-Phofung Local Municipality and Another 26stated that :

“By parity of reasoning this should apply to the appointment of the applicant as
such appointment ought to take place in terms s56 of the Municipal Systems
Act. I cannot see how it can be a rgued that the recruitment and appointment of
the Director in casu can be seen as executive or legislative in nature”.


252009 (6) SA 354 (ECG) .
26 (FB) unreported case no . 1537/2022 of 19 September 2022 at para 14 .
I am in full agreement with the Learned Judge’s reasoning in this regard and it
equally applies in the instant matter.

62. In Notyawa v Makana Municipality and others27 the court concluded that the
decisions sought to be reviewed and set aside (which included the appointment of a
Municipal Manager) amounted to administrative action as envisaged in PAJA. That
finding was not turned down in the subsequent appe al to the Constitutional Court.28

63. The deci sion of the respondent’s council therefore falls to be set aside
because no information relating to the alleged irregularities highlighted by the Mayor
in a letter to the MEC has been provided by the r espondent in the papers . There was
no investigative rep ort presented to the respondent’s council before it took the
decision not to appoint the applicant and to re -advertise the post. In fact, it is quite
apparent from the resolution dated 23 February 2024 that the discrepancies in the
recruitment process were being investigated at the time the decision was taken.
Therefore, w ithout having verified the veracity of the allegations of irregularities, t he
council acted on them. The council literally put the cart before the horse in the
circumstances.

64. What is also concerning is the chain of events leading to the decision not to
appoint the applicant and re -advertised the post. Strange enough is the fa ct that the
Executive Mayor took it upon himself to report the alleged irregu larity during the
recruitment process in a letter dated 7 November 2023. As to how he got to know of
the alleged irregularities has not been divulged in the papers before c ourt. Another
serious concern is that, subsequently to the report of irregularities to the MEC by the
Executive Mayor, the r espondent’s Mayoral Committee convened a meeting in which
it recommended the applicant for appointment to the post. This raises a ve ry serious
question did the Executive Mayor inform his own committee about the alleged
irregularities he reported to the MEC? Why would he jump the gun and report to the
MEC but omit to inform his committee such that it proceeded to recommend the
applicant for appointment to the post? As is apparent from the common cause facts,
it was only after the MEC’s response to the report of irregularities dated 1 5 January

27 [2017] 4 All SA 533 (ECG) at para 46 .
28 Notyawa (note 18 above).
2024, that a special c ouncil meeting was convened on 23 February 2024 and a
decision not to appo int the applicant and re - advertised the post was taken.

65. There was no investigative report, as the investi gation was still underway, the
respondent’s c ouncil relied on the letter written by the Executive Mayor to MEC as
well as the response thereto, to take the impugned decision . Quite clearly it relied on
the s ketchy details and unsubstantiated allegations presented in the letter by the
mayor to the MEC. In my considered view the respondent’s c ouncil had no sufficient
information before it when it took the decision complained of and therefore failed to
take into account relevant considerations. Instead, it took into account irrelevant
considerations and took a decision based on the unwarranted activities of another
person, the Executive Mayo r, who was not even part of the recruitment process. In
the circumstances I come to the conclusion that the decision in question contravenes
the provisions of section 56 of the System Act, which regulates the appointment of
senior managers, and/or is not a uthorised by that empowering provision. For that
reason, that decision is liable to be reviewed and set aside under PAJA.

66. The next question to consider is whether the facts of this case render it an
exceptional one for purposes of section 8(1) (c) of PAJA. Mr Maswazi submitted that
in the event of a finding that the decision not to appoint the applicant and re -
advertise the pos t was unlawful , this Court should not substitute its decision for that
of the council of the respondent but should remit the matter to the respondent’s
council for consideration by it. He substantiated his argument in this regard by
stating that the facts of this case did not render the matter an “exceptional case” for
purposes of section 8(1)( c) of PAJA.

67. It is trite that the power provided in section 8( 1)(c) to substitute or vary
administrative action, or to correct a defect resulting from an administrative action, is
extraordinary and is to be exercised sparingly and in exceptional circumstances.29
The court’s interventionist remedial powers are justified where exceptional
circumstances could be found.30 This remedy is to be exercised sparingly, in

29 Y. Burns and R. Henri co Administrative Law 5th ed (2020) at page 658.
30 Trencon construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
Another 2015 (5) SA 245 (CC) paras 36 -9.
exceptional circumstances and when a court is persuaded that a decision to exercise
a power should not be left to the designated functionar y.31

68. From a variety of cases our courts have developed guidelines that have
prompted the substitution of the decision rather than remit the matter to the original
decision maker. These are the following:

(a) Where the court is well qualified as the original authority to make the
decision;32
(b) Where the end result is a foregone conclusion, and it would be a waste
of time to remit the decision to the original decision -maker;33
(c) Where further delay would cause unjustifiable prejudice to the applicant
or another affected person,34

69. The exceptional circumstances of this case persuade me that no useful
purpose would be served by remitting the matter to the respondent for decision. The
respondent demonstrated a lack of regard for its statutory responsibility and a
lamentable abdication of its duties by taking a decision without having all the relevant
facts put before it. No doubt, in my view, the respondent demonstrated a lack of
insight into its conduct, to contend in the papers that it was proper to do so. It would
therefore serve no purpose to remit the matter to it for decision, as the respondent
has shown clearly that its intention, is to disregard the applicant for consideration for
the post at all costs. In the light of the afor e-going, I am of the view that this Court is
at least in a s good a position to take the decision as the respondent’s council and it
would be appropriate to do so in the circumstances of this case.

70. In the circumstances the following order will issue:


31Gauteng Gambling Board v Silverstar Development Ltd and Others 2005 (4) SA 67 (SCA) at para
28-29.
32 Ibid at para 38 -39.
33Ibid, Hangklip Environmental Action Group v MEC for Agriculture, Environmental Affairs and
Development Planning, Western Cape and Others 2007 (6) SA 65 ( C).
34ICS Pension Fund v Sithole and Others NNO 2010 (3) SA 419 (T) para 97, Head, Western Cape
Education Department and Others v Governing Body, Point High School and Others 2008 (5) SA 18
(SCA) at para 17, Geo Quinot et al (note 2 above) page s 318-319.
(a) The decision of the respondent not to appoint the applicant as per the
recommendations of the interviewing panel and to re -advertise the post is
hereby reviewed and set aside;

(b) The decision of the respondent is substituted by the following order:

Appli cant be and is hereby appoint ed as the Director: Corporate
Services with effect from March 2024 with his salary to commence
on the date on which he assumes his duties with the respondent .

(c) The respondent is ordered to pay the costs of this application.


_____________________
TA NKELE
ACTING JUDGE OF THE HIGH COURT


Appearances:

Counsel for the Applicant: Z. Badli
Instructed by: F Nteleleko Attorneys
Mthatha

Counsel for the Respondent: B. Maswazi
Instructed by: Jolwana Mgidlana Inc.
Mthatha

Date Heard: 10 April 2025
Date Delivered: 29 May 2025