Fihlani v Port St Johns Local Municipality and Others (1046/2025) [2025] ZAECMHC 66 (8 July 2025)

IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]

CASE NO.1046/2025

In the matter between:

MLULEKI FIHLANI Applicant

and

PORT ST JOHNS LOCAL MUNICIPALITY 1st Respondent

THE MAYOR: PORT ST JOHNS LOCAL MUNICIPALITY 2nd Respondent

THE SPEAKER: PORT ST JOHNS LOCAL MUNICIPALITY 3rd Respondent

and in the matter between:

PORT ST JOHNS LOCAL MUNICIPALITY 1st Applicant

THE MAYOR: PORT ST JOHNS LOCAL MUNICIPALITY 2nd Applicant

THE SPEAKER: PORT ST JOHNS LOCAL MUNICIPALITY 3rd Applicant

and

MLULEKI FIHLANI 1st Respondent

THE MINISTER: DEPARTMENT OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS 2nd Respondent

THE MEC: EASTERN CAPE PROVINCIAL
DEPARTMENT OF CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS 3rd Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J

Introduction.

[1] This application was brought as an urgent application in which the applicant
sought final relief in the form of a declarator that the extension of his suspension by
the first respondent is unlawful. The consequential relief of such a declarator is the
applicant being allowed to resume and continue rendering his contractual duties in
the normal way, if he is successful. The urgency dissipated subsequent to a counter
application being brought by the respondents challenging the constitutionality of the
regulation that prohibits the first respondent, qua employer, from extending the
suspension. I will , throughout, refer to the respondents simply as the municipality
unless reference is made to a specific respondent and to the applicant, simply as Mr
Fihlani, both in the main application and in the counter application.

Factual background.

[2] On 9 January 2023 , Mr Fihlani entered into a contract of employment with the
municipality in terms of which he was appointed as its municipal manager. On 4
November 2024, he was served with a notice of intention to suspend him pending an
investigation into serious allegations of misco nduct relating to the appointment of a
senior manager for engineering services. The issues relating to the said appointment
are, in my view, not pertinent to the issue of the lawfulness or otherwise of Mr
Fihlani’s suspension and his entitlement or otherwi se, to the relief sought.
Subsequent to internal processes relating to his suspension, the council of the

municipality resolved to suspend him on 22 November 2024 pending an
investigation. He was formally advised in writing, of the decision to suspend him on
the same date.

[3] On 21 January 2025 , the investigation was completed and on 22 January 2025
the investigation report was tabled in a council meeting. That meeting passed a
resolution extending Mr Fihlani’s suspension until the fi nalisation of his disciplinary
hearing. Council further resolved that the disciplinary hearing must be conducted
before the 22 February 2025. That notwithstanding, Mr Fihlani reported for work on 3
February 2025. This was based on the sixty day period for the lapsing of a
precautionary suspension referred to in his contract of employment having expired
and the investigation pending which he was suspended having been completed.
However, the municipality advised him that his suspension was extended pending a
disciplinary hearing.

[4] Mr Fihlani contends that in terms of his contract of employment which makes
provision for a sixty day period of suspension , his precautionary suspension
terminated on 21 January 20251, which entitled him to return to work.

[5] In terms of the Local Government: Disciplinary Regulations for Senior Managers ,
2010 (the Regulations), the three months period of suspension would expire on 21
February 2025 . In terms of the Regulations , a prec autionary suspension lapses
automatically after the expiry of the three months period. On the basis of the
provisions of the Regulations, Mr Fihlani contends that his suspension lapsed on 21

1 The relevant clause of his contract of employment reads as follows:
“14. PRECAUTIONARY SUSPENSION
14.1 The employer may suspend the Employee on full pay in accordance with the Local
Government: Disciplinary Regulations for Senior Managers, 2010, if he is alleged to have
committed a serious offence and the Employer believes his presence at the workplace

committed a serious offence and the Employer believes his presence at the workplace
might jeopardize any investigation into the alleged misco nduct or endanger the wellbeing
or safety of any person or municipal property.
14.2 The Employee who is to be suspended shall be notified, in writing of the reasons for his
suspension simultaneously or at the latest within 24 hours after suspension. He sh all
have the right to respond within seven (7) working days, such a procedure is complaint
with the requirements of Local Government: Disciplinary Regulations for Senior
Managers, 2010.
14.3 If the Employee is suspended as a precautionary measure, the empl oyer must hold a
disciplinary hearing within sixty (60) days provided that the chairperson of the hearing
may extend such period, failing which the suspension shall terminate, and the employee
shall return to full duty.”

February 2025. Therefore, whether regard is had to the contract of employment or to
the Regulations, his suspension lapsed. This is the basis on which he contends that
he is entitled to return to work as, on either basis, his suspension lapsed which
therefore makes his continued suspension consequently unlawful. He further
contends that at the core of the precautionary suspension, is the employer having
time and space within which to conduct the investigation into allegations of serious
misconduct, there being no mechanism for the continued suspension of an employee
during the period of the disciplinary hearing , if same is conducted outside the three
months period. This is because, so contends Mr Fihlani, the suspension in terms of
the Regulations is intended to cover the period of the investigation only , after which
there is no legal basis for the continuation of the suspension , with the municipal
council having no power to extend the suspension if a disciplinary hearing is no t
commenced with.

[6] On 13 Februar y 2025 Mr Fihlani was served with a charge sheet containing
eleven charges of serious misconduct. He was also advised that the disciplinary
hearing would commence on 10 March 2025 and would continue until the 14 March
2025. On 24 February 2025 he, however, returned to work. He was not allowed to
enter and remain at work in breach of his contract of employment and was advised
that his suspension was extended by council pending the disciplinary hearing. The
second respondent demanded that he should le ave his workplace failing which the
law enforcement officers would assist him to leave. He contends that the municipal
council’s extension of his suspension was unlawful for want of an authority to extend
it beyond three months. He further contends that he was not even given a hearing
before the decision to extend his suspension was taken and therefore his right to
procedural fairness was infringed. In any event, even with a hearing , which he was

procedural fairness was infringed. In any event, even with a hearing , which he was
not given, it would still be unlawful as there would still be no legal basis for the
extension. For all these reasons, Mr Fihlani contends that the unlawful extension of
his suspension imperilled his right to dignity. It also prevents him from engaging in
his profession of choice and his contractual right to perform his duties.

[7] Trimmed of all unnecessary elucidations and embellishments, the municipality’s
pleaded case initially, was that there were two distinct suspensions. The first
suspension which was effected on 22 November 2024 was a suspension pending an

investigation report to determine if Mr Fihlani had any case to answer. This
suspension is distinct from his suspension effected on 22 January 2025 which arose
as a result of the findings of the investigation report and was a suspension pending a
disciplinary hearing.

[8] In the midst of Mr Fihlani’s urgent application and on the date on which it was set
down for hearing, the municipality applied for an order joining the Minister of the
Department of Co -operative Governance and Traditional Affairs (the Minister) and
the Member of the Executive Council for the Department of Co -operative
Governance and Traditional Affairs (the MEC). The MEC has not participated in
these proceedings, at least not directly. The joinder application was a precursor to
and part of the municipality’s counter -application in which the municipality seeks a
declaration of constitutional invalidity of regulation 6(6) of the Regulations. It is the
issues relating to the coun ter-application to which I now turn. Regulation 6(6) which
is at the centre of the constitutional challenge reads as follows:

“(a) if a senior manager is suspended, a disciplinary hearing must commence
within three months after the date of suspension, fail ing which the suspension
will automatically lapse.
(b) The period of three months referred to in paragraph (a) may not be extended
by council.”

[9] The case of the municipality as set out in the counter-application is that regulation
6(6) unreasonably limits the municipality’s right to govern on its own initiative, the
local government affairs of its community by depriving the municipal council , of a
power to extend a precautionary suspension of a senior manager. The municipality
contends t hat the power of its council, qua employer, should not be unreasonably
limited by the provis ion that a precautionary suspension automatically lapses if a
disciplinary hearing is not held within a period of three months , as regulation 6(6)(a)

disciplinary hearing is not held within a period of three months , as regulation 6(6)(a)
does. Furtherm ore, regulation 6(6)(b) wholly removes the power of a municipal
council, qua employer, the traditional and inherent power enjoyed by all employe rs,
to extend a precautionary suspension of an employee by proscribing the extension of
a precautionary suspension of a senior manager beyond the three months period. In
all these circumstances, these limitations contained in regulation 6(6) are drastic,

unreasonable and violate a municipality’s constitutionally entrenched right to govern,
on its own initiative, the local government affairs of its community.

[10] The attack on the constitutionality of regulation 6(6) is anchored on Section 151
of the Constitution2. Section 151 provides:

“(1) The local sphere of government consists of municipalities which must be
established for the whole of the territory of the Republic.
(2) The executive and legislative authority of a municipality is vested in its
Municipal Council.
(3) A municipality has the right to govern, on its own initiative, the local
government affairs of its community, subject to national and provincial
legislation, as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a
municipality’s ability to exercise its powers or perform its functions.”

[11] In relying on section 151, the municipality contends that subsections (3) and (4)
give a municipal council, in express terms, the right to govern on its own initiative,
the local government affairs of its community and the right to exercise its powers and
perform its functions. These rights, powers and functions may not be unreasonably
and therefore unlawfully interfered with by eit her the national or the provincial
government. These spheres of government are under a constitutional duty to respect
these rights and give municipalities space to exercise the constitutional powers
accorded to them by the Constitution . In attacking regula tion 6(6) , as it does, the
municipality says it seeks to vindicate its right to govern, in this case, its labour
relations with its employees which entails its entitlement to regulate its personnel and
staff matters. This is necessary, contends the municip ality, because the Minister,
through regulation 6(6), has taken away a municipal council’s powers which are
common to all employers, to extend a precautionary suspension and in so doing, the

common to all employers, to extend a precautionary suspension and in so doing, the
Minister has violated the municipality’s right to govern. In this case, the municipal
manager has been suspended on serious allegations of misconduct. If the
precautionary suspension is lifted, Mr Fihlani would have to return to work and be at

2 Constitution of the Republic of South Africa, 1996.

work while the disciplinary hearing is ongoing. Potentially, he could interfe re with
witnesses who are his subordinates and temper with the evidence that may be led
against him. It contends that regulation 6(6) does not allow a municipality , even on
good cause shown in a specific case, to extend a precautionary suspension because
of its rigidity.

[12] Mr Fihlani opposes the counter -application as does the Minister. A sub mission
was made that generally , Mr Fihlani makes common cause with the Minister’s
opposition to the counter -application in a number of respects. For this reason , I
intend to deal with their opposition in tandem. Beyond the issue of urgency, Mr
Fihlani also relies on the I ntergovernmental Relations Framework Act 13 0f 2005
(IRFA), in particular , sections 40 and 41(2) as does the Minister. The Minister
opposes the counter-application mainly in two ways. He raises a number of points of
law3 which in the main are , proper authority to institute the counter -application; the
failure of the municipality to exhaust all available dispute resolution mechanisms
before instituting legal proceedings against another arm of government; and the non -
joinder of the South African Local Government Association (SALGA).

Authority to institute the counter-application.

[13] As I understand it , the issue of the lack of authority to institute the counter -
application is based on the municipality not having pa ssed or obtained a specific
council resolution authorising the institution of the counter -application. It is further
contended that the third respondent as the speaker of the municipality has no locus
standi to institute the counter-application in the name of the municipality . I am not
sure how the issue of the third respondent and therefore, his locus standi to institute
the counter-application in his name even arises. This is because he has simply not
done so. As regards council resolution authorising the institution of the counte r-

done so. As regards council resolution authorising the institution of the counte r-
application, the circumstances leading to its institution are very important. Mr Fihlani
instituted the main application seeking relief for his return to work on the basis of the
unlawful extension of his precautionary suspension . One of the issues central to Mr

3 Rule 6(5)(d)(iii) of the Uniform Rules of Court provides – Any person opposing the grant of an order
sought in the notice of motion shall – if such person intends to raise any question of law only such
person shall deliver notice of in tention to do so, within the time stated in the preceding subparagraph,
setting forth such question.

Fihlani’s application is that in terms of regulation 6(6) , his precautionary suspension
lapsed because the disciplinary hearing against him was not commenced with within
three months of his precautionary suspension. On 12 Ma rch 2025 , the municipal
council passed a litany of resolutions amongst which was a resolution to oppose Mr
Fihlani’s application. It went further and passed a resolution authorising the mayor
and the municipality’s attorneys to oppose Mr Fihlani’s applicat ion. It therefore
cannot be seriously argued that the opposition to Mr Fihlani’s application was not
authorised by council.

[14] Council went further and passed a resolution authorising the institution of appeal
proceedings should Mr Fihlani’s application be successful for any reason. I digress to
mention that I have a deep sense of unease at the notion of a pre-emptive resolution
for the launching of appeal proc eedings in the event of a party being unsuccessful
for “any reason” especially by an organ of state which is rather unusual. The fact of
the matter is that there is a boundless authorisation for the opposition of the main
application. Effectively, the municipal council , while the case was ongoing ,
considered it proper to , among other things, take a resolution that it would not apply
its mind to a judgment that the court would deliver in due course, but instead,
resolved that should it not succeed in its opposition to Mr Fihlani’s application,
appeal proceedings should be launched. For an organ of state not to apply its mind
to a judgment and orders issued by a court but pre-emptively authorise an appeal ,
cannot possibly be anything else but a seriously shocking disregard for the rule of
law and even an abuse of court process. I will revert to this issue later.

[15] There was a submission on behalf of the Minister that even if the main
application is authorised, the counter -application, being a self -standing application,

application is authorised, the counter -application, being a self -standing application,
should separately be authorized. Besides the patently circuitous logic in this
submission, it also unfortunately elevates form above substance ignoring the fact
that such a litigant is already before court and opposing the main application , having
been duly authorised to do so , bearing in mind that the proceedings subsequent to
which a counter -application is issued , are usually the fons et origo of the counter -

application. In Graham4 the court explained the legal positio n regarding a counter-
applications as follows:

“In truth, the counter -application, like the Law Society’s application, is in fact
incidental to the main application in the sense that it flows from the order of
Mothle J and the respondents’ failure to comply with it. It seeks a more
effective execution of paras 3 and 4 of the order of Mothle J to ensure full
compliance. The relief required in the counter application admittedly goes
further than the relief sought by the Law Society, but it aims at an effective
procedure and ensuring proper compliance ….
Were it to be held that the Law Society application is an application in terms of
rule 27 for the extension of time periods, as the respondents contend , rule 27
would permit the court to extend the time periods of the order ‘upon such
terms as it seems m eet’. The counter -application seeks an extension of the
time period for the investigation on terms different to those applied for by the
Law Society. In extending the prescribed time periods in the order, the court
may grant the ancillary relief quested by the applicants if it considered it meet.
However, because prayer 3 of the notice of motion in the Law Society
application may in fact go beyond asking for an extension of time by seeking
clarification of the scope of the inspection , it is questionable whether the Law
Society application is indeed one in terms of rule 27. It is clear from para 7 of
the application that the Law Society prays for more than an extension of time.
Be that as it may, as I have already found there is no bar to the remedies
sought by the applicants in the counter -application. The relief will be
permissible under rule 6(11) read with rule 6(7)(a), or under rule 6(7)(a) alone.
The need for the firm -wide inspection has been made more pressing by
further instances of possible misconduct that have come to light and the fact

further instances of possible misconduct that have come to light and the fact
that the respondents have been found by Matojane J to be in contempt of the
order of Mothle J. The appointment of a curator and the suspension of the
respondents during th e inspection are undoubtedly new, but nonetheless
ancillary or incidental to the relief ordered by Mothle J. The mere quest for a
new and additional relief in any event, cannot of itself constitute an

4 Graham v Law Society, NP 2016 (1) SA 279 GP at 291 paras 41 and 43.

irregularity. There is no bar in law or in the rules to a litigant endeavouring to
obtain a remedy in a counter -application that is more expansive than, or even
unrelated to, relief sought in the main application. As I have said more than
once, rule 6(7)(a) imposes no such limitation. Just as nothing preve nts a
defendant in an action instituting a claim in reconvention that is entirely
distinct from the main claim there is no reason in principle why the same
should not apply in an application.”

[16] All that the municipality seeks to do in the counter-application is to get an order
declaring unconstitutional, the very regulation that Mr Fihlani relies on in the main
application. If the municipality succeeds in its constitutional challenge , the main
application could possibly fail. It seems to me that th e counter-application is not only
incidental to the main application, it is in fact inextricably linked to it and is part of the
municipality’s armoury in its defenc e to the main applicat ion. It follows that it is
simply incorrect that it need s a separate and self-standing resolution authorising its
institution.

The non-joinder of SALGA.

[17] The Minister has also raised the issue of the non -joinder of SALGA. This, on the
basis that the impugned regulation is of national application and the Regulations
themselves are equally applicable to all municipalities which are therefore interested
parties. The munic ipality is a member of SALGA and as I understand the
submission, SALGA should have been joined because of its interest in the issue at
hand in its representative capacity on behalf of all the municipalities . In raising the
issue of the non-joinder of SALGA, the Minister fails to appreciate a very basic tenet
of non -joinder. Regrettably, i t is not uncommon for litigants to raise it where they
should not and at times fail to raise it where they should. In explaining the test for

should not and at times fail to raise it where they should. In explaining the test for
non-joinder, I can do no better than refer to The South African History Archive Trust 5
in which the Supreme Court of Appeal restated the applicable test concisely in the
following terms:


5 South African History Archive Trust v South African Reserve Bank and Another [2020] 3 All SA 380
(SCA); 2020(6) SA 127 (SCA) para 30.

“The test for joinder of necessity was restated by Brand JA in Bowring NO v
Vrededorp Properties CC:
‘The substantial test is whether the party that is a lleged to be a
necessary party for purposes of joinder has a legal interest in the
subject matter of the litigation, which may be affected prejudicially by
the judgment of the Court in the proceedings concerned …’
The question is therefore whether Messrs Hill and Palazzolo might be
prejudicially affected by a judgment on the application.”

[18] It might very well be tha t municipalities or , on their behalf, SALGA could be
curious to know if the regulation will not be declared unconstitutional in which case
nothing changes for them . But in the event that the municipality succeeds and an
order of constitutional invalidity is granted, again, no prejudicial effect shall be visited
upon any municipality. This is so because in that case, instead of having to conclude
investigations of misconduct against their senior managers and commence with
disciplinary hearings within three months, they will h ave a longer period within which
to do so . However, none of that translates into a substantial interest in the outcome
of the counter -application as they will not be affected by the granting of the order
sought. The point of law of the non -joinder of SALGA must therefore fail as the
orders sought by the municipality will not have a ny prejudicial effect on any other
municipality.

The non-compliance with IRFA.

[19] The last question of law raised by the Minister is that the municipality failed to
comply with IRFA in not first exhausting all available dispute resolution measures
before instituting its counter -application against the Minister , being another arm of
government. In making this proposition , reliance is heavil y placed on sections 40
and 41 of IRFA and on Resilient Properties6 in which, in part, Petse DP, writing for
the full court, had this to say:

the full court, had this to say:


6 Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd and Others; Eskom Holdings SOC Ltd v
Sabie Chamber of Commerce & Tourism and Others Chweu Local Municipality & Others v Sabie
chamber of Commerce and Tourism and Others 2021 (3) SA 47 (SCA) para 81.

“… [S]ection 41(3) requires organ of state to exhaust all other remedies to
resolve disputes before they approach a court. True, in this instance, Eskom
never approached a court. Instead, it took the impugned decisions to interrupt
electricity supply to municipaliti es, hoping that doing so would coerce the
municipalities to pay for the electricity supplied over several years. This
Eskom asserts, had the desired effect in the Sabie matter that was settled
between the parties. In taking this route, Eskom in effect, circumvented the
consequences that flow from the prohibition contained in s s 40 and 41 of the
IRFA against instituting proceedings in a court to settle intergovernmental
dispute, and all efforts to resolve that dispute have not been exhausted in
terms of ch apter 4 of IRFA and proved unsuccessful. Nothing less than a
‘reasonable effort in good faith’ to resolve the dispute will suffice.”

[20] In his answering affidavit to the counter -application, Mr Fihlani also raises the
same issue as the Minister and complain s that the municipality has failed to comply
with its constitutional obligation s set out in section 41(2) of the Constitution 7. In
providing for the obligation to avoid and settle intergovernmental disputes, section 40
of IRFA reads:

“(1) All organs of state must make every reasonable effort to –
(a) to avoid intergovernmental disputes when exercising their statutory
powers or performing their statutory functions; and
(b) to settle intergovernmental disputes without resorting to judicial
proceedings.
(2) Any formal agreement between two or more organs of state in different
governments regulating the exercise of statutory powers or performance of
statutory functions, including any implementation protocol or ag ency
agreement, must include dispute settlement mechanisms or procedures
that are appropriate to the nature of the agreement and the matters that are
likely to become the subject of a dispute.”

likely to become the subject of a dispute.”

7 Constitution of the Republic of South Africa, 1996. Section 41(2) thereof provides: An act of
Parliament must –
(a) establish or provide for structures and institutions to promote and facilitate intergov ernmental
relations; and
(b) provide for appropriate mechanisms and procedures to facilitate settlement of
intergovernmental relations.

[21] The rest of chapter 4 of IRFA provides for the manner in which a formal
intergovernmental dispute is declared and what must happen after a formal
intergovernmental dispute is declared and how it should be resolved. Mr Fihlani
relies on Adonisi in his po stulation that the municipality had an obligation to first
consult with the Minister in seeking a remedy for the alleged unconstitutionality of
regulation 6(6) before bringing this application. In Adonisi8, Dambuza AP explained
the centrality of the IRFA in fostering the spirit of co -operative governance among all
the spheres of government. She said:

“Even within the context of co -operative governance and the framework
established in IGRFA for the promotion and facilitation of intergovernmental
relations, powers and functions of the different spheres of government must
be maintained. The preamble to IGRFA highlights cooperation and
integration of actions in government and the necessity to establish a
legislative framework applicable to all spheres of gove rnment, to ensure
intergovernmental relations, in the spirit of the Constitution. Section 41 of the
Constitution sets out the principles of cooperative government and
intergovernmental relations. In term s of s 41(1)(g) all spheres of government
and organ s of state within each sphere must exercise their powers and
perform their functions in a manner that does not encroach on the
geographical, functional or institutional integrity of government in another
sphere. In any event, once the National Minister of Human Settlements
conceded that there was no obligation to consult her on every proposed
disposal her case caved in, as the issue had been pleaded as an across the
board obligation to inform and consult.”

[22] There is so m uch that can be said about IRFA and I might add, mostly very
good, but what must always be born in mind is that , as the court said in Adonisi,
nothing in it trumps the Constitution and nothing should be done in the spirit of co -

nothing in it trumps the Constitution and nothing should be done in the spirit of co -
operative governance and dispute resolution should undermine the constitutional
framework. Everything should be done to promote and not undermine

8 Minister for Transport and Public Works: Western Cape & Others v Adonisi and Others 2024 (4) SA
499 (SCA) para 93.

constitutionalism. On this, I venture to say that it is without exception that everything
must flow from the Constitution and must find its legitimacy in the Constitution. If it
does not, then it cannot be done. That this is so is made abundantly clear in section
2 of the Constitution in which its supremacy is put at the forefront of all that must
happen. Section 2 provides that “[t]his Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid, and the obligations imposed
by it must be fulfilled”.

[23] What the municipality is contending for is that for the reasons it sets out,
regulation 6(6) is unconstitutional. If it is correct , it means regulation 6(6) is invalid. It
therefore cannot, in my view, be cogently contended that whether or not a piece of
legislation or regulation such as regula tion 6(6) is constitutionally invalid must be
negotiated and settled inter partes. That is simply counter-intuitive. An agreement or
parties finding a middle path on the constitutionality of a piece of legislation by
reaching some form of a compromise , does not convert or transform legislation
which, if objectively, is constitutionally invalid , into one that is constitutionally
compliant. Even if parties reach some form of agreement and reach consensus
declaring among themselves , the questioned legislat ion constitutionally consistent,
that changes nothing to its actual constitutionality as its wording remains unchanged.
Section 172(1) of the Constitution provides that [w]hen deciding a constitutional
matter within its power, a court – “must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its inconsistency. ” As
counsel for the municipality correctly pointed out, there is nothing preventing a court,
even mero motu, from raising the issue of the constitutionality of any law or conduct,
which, in my view, section 172 of the Constitution in fact enjoins it to do. It seems to

which, in my view, section 172 of the Constitution in fact enjoins it to do. It seems to
me that where a sphere of government is of the view that a particular piece of
legislation is invalid for lack of constit utionality, that dispute must be resolved by a
court with the requisite competency. Once it is declared to be constitutionally
compliant, only then can the parties negotiate its implementation through the IRFA
processes before any dispute or disagreement i s referred to court for adjudication.
Most importantly, IRFA is more about the exercise of statutory powers or the
performance of statutory functions whose manner of exercise or performance may
be negotiated. It goes without saying that negotiations can on ly be on the basis that ,

that which is being negotiated is itself constitutional. The point of law in this regard is
therefore unsustainable.

The merits of the counter-application.

[24] Section 151 of the Constitution, to which I referred earlier , has to be read in
tandem with section 154(1) which provides that:

“The national government and provincial governments, must support and
strengthen the capacity of municipalities to manage their own affairs, to
exercise their powers and to perform their functions.”

[25] The Minister also contends that he is empowered in terms of s ection 155(7) of
the Constitution to make regulations. This does not appear to be in dispute . Part of
the case pleaded by the Minister is that the purpose of the Regulations is, inter alia,
to do away with a fragmented approach to disciplinary processes in respect of senior
managers; to provide internal mechanism s for the management of misconduct ; the
establishment of a common understanding and application of procedures for the
management of misconduct; to provide support for constructive labour relations ; and
to prevent arbitrary or discriminatory actions. The Regulations do not prevent
municipalities from investigating the conduct of their employees and subjecting them
to disciplinary processes where necessary . They are not prevented from placing
senior managers on precautionary suspension. The Minister contends that if the
municipality succeeds and regulation 6(6) is declared constitutionally invalid, that will
have a detrimental effect not only on senior managers but also there will be financial
repercussions in that a suspended senior manager may continue receiving his
salary indefinitely subsequent to a precautionary suspension when he or she is
unable to provide services to the communities served by that municipality.

[26] The Minister further contends that regulation 6(6) must be read with regulation 5
so as to understand that it should not be difficult to commence with a disciplinary

so as to understand that it should not be difficult to commence with a disciplinary
hearing within three months from the date a senior manager is placed on a
precautionary suspension. This is because when there are allegations of misconduct
against a senior manager, the mayor or the municipal manager has seven days

within which to table such allegations before council and for this purpose , the
speaker may even be requested to convene a special council meeting to consider
same. Where a municipal council is, on reasonable basis, satisfied that a senior
manager has committed a serious act of misconduct, it has seven days within which
to appoint an independent investigator to investigate the allegations.

[27] Where an investigat or has been appointed , he/she has thirty days within which
to submit a report to the mayor or the municipal manager with recommendations.
The mayor or municipal manager must table the report before a council meeting
within seven days for consideration. After having considered the report , council may
pass a resolution authorising the institution of disc iplinary proceedings against the
senior manager concerned. Th roughout this initial process, a municipal council does
not have to place a senior manager on precautionary suspension as the council must
first be satisfied, on reasonable grounds , that the seni or manager concerned has
committed an act of serious misconduct. The point that the Minister makes in this
regard is that there is more than enough time for a municipal council to establish if it
has a reasonable basis for placing a senior manager on precautionary suspension.
Even where it determines that a senior manager has to be placed on precautionary
suspension, he or she must first be given an opportunity to show cause within seven
days why he or she should not be suspended.

[28] The Minister con tends that with all of th ese elaborate processes, the timing of
the decision to place a senior manager on precautionary suspension is ultimately
entirely at the discretion of the council. It is only once the senior manager has been
placed on precautionary suspension and advised accordingly that the three months
period kicks in. Therefore, the three months period is reasonable in that it ensures

period kicks in. Therefore, the three months period is reasonable in that it ensures
that a senior manager is not made to remain on precautionary suspension endlessly
or beyond what is reasonably necessary . In terms of regulation 6(5) the council has
to inform the Minister and the MEC of its decision to place a senior manager on
precautionary suspension. This enables the Minister to exercise his oversight role
over municipal councils including their management of disciplinary processes and to
ensure accountability as provided for in the Constitution. The regulations enable the
Minister not only to exercise his constitutional duty of playing an oversight role but
also to standardise disciplinary processes across all municipalities. On these bases,

the Minister contends that the three months limitation period is in line with the
Minister’s constitutional mandate to ensure accountability especially if regulation 6(6)
is not read in isolation but is read in the context of the Regulations as a whole.

[29] The Minister further contends that it is not the municipality’s case that it could
not finish the pre -disciplinary hearing steps within the three months period and
commence with the disciplinary hearing. Had that been the case , the municipality
would have pleaded it s case accordingly and accounted for the whole three months
period and the difficulties that it may have encountered that made it impossible for it
to complete the investigation processes and commence with the disciplinary hearing
within three months. On the contrary , the municipality has pleaded that the
investigation report was tabled before council on 22 January 2025 . It is unclear why
the disciplinary hearing could not commence a month later . The Minister further
contends that even if the mu nicipality’s case was that of an inability to commence
with the disciplinary hearing before the 22 February 2025, that would have been the
result of the municipality having elected to first suspend Mr Fihlani on 22 November
2024 when the report would only become available on 21 January 2025. The
suspension was done without the benefit of the report. It was , therefore, the
municipality that made that choice and acted pre -emptively and should not complain
that the disciplinary hearing could not be commenced with before the 22 February
2025.

[30] Besides, it is not the municipality’s case that Mr Fihlani made it impossib le for it
to meet the three months deadline within which to commence with the disciplinary
hearing. T o the extent that any suggestion is made that Mr Fihlani frustrated the
investigation process and thus delayed it, no attempt has been made t o substantiate
such a bald averment. No witnesses are alleged to have been intimidated or

such a bald averment. No witnesses are alleged to have been intimidated or
influenced by Mr Fihlani. There is no constitutional misalignment between the
regulation and section 152 of the Constitution which provides for objects of local
government which is its core business whereas the suspension of an employee or
the disciplinary process es as a whole do not even feature . In any event, nothing
prevents a municipality from approaching a court for an extension of the suspension
period where the disciplinary h earing, objectively, could not be commenced with
within three mont hs. In that case the court would have an inherent jurisdiction to

adjudicate such a case and where an extension is warranted, the court would be at
large to grant an appropriate relief. Section 22 of the Constitution is the constitutional
entrenchment of the right of all citizens including senior managers to practice their
occupation freely. However, were the municipality to be entitled to extend a
suspension inde finitely or at whim while not causing an employee to appear at a
disciplinary hearing, that would undermine that right. The regulation is another safe
guard against unjustified , unnecessary and endless extensions of suspension s with
no objectively determin able basis for the need for the extension. A regulated
suspension compels municipalities to act with the requisite promptitude and prevents
an abuse of taxpayer’s monies in paying an employee who is sitting at home on full
pay without rendering the service s which the communities so desperately need, for
which he is being paid.

Discussion.

[31] Divested of all ornamentation, the real issues in this matter are whether or not
Mr Fihlani’s suspension lapsed either on the basis , firstly of the contractual
agreement embodied in his employment contract. Secondly, whether it lapsed on the
basis of regulation 6(6). Lastly on this issue, whether a municipal council is entitled
to extend a precaut ionary suspension. That is the first issue. The second issue is
whether and, in any event, regulation 6(6) is constitutional or not. It is common cause
that Mr Fihlani was suspended on 22 November 2024 ; that his contract of
employment provides for a two months precautionary suspension period ; that
regulation 6(6) provides for a three months precautionary suspension period ; that no
disciplinary hearing was commenced with within two months as provided for in the
employment contract; and finally the disciplinary hearing was not commenced with
within three months of his precautionary suspension a s provided for in regulation

within three months of his precautionary suspension a s provided for in regulation
6(6) of the Regulations. On these common cause facts, it is very difficult to
understand the municipality’s case in the main application. Furthermore, its case has
metamorphosed as the court proceedings progressed taking different shapes and
forms with some of the submissions not being aligned to its pleaded case or some of
its contentions being incongruent to some of the objective and indisputable facts.

[32] The municipality’s case , as pleaded in the main applica tion, is that there was
what it called the initial decision to suspend Mr Fihlani for purposes of preserving the
integrity of the investigation. It contends that that decision was subsumed by six
subsequent decisions. These were to appoint an independent i nvestigator who then
found that Mr Fihlani committed acts of misconduct. Thereafter on 22 January 2025
council resolved to adopt the independent investigator’s recommendation s which
were that the allegations were serious and that Mr Fihlani should be charg ed and
arraigned before a disciplinary committee. The third decision of council was to
constitute a disciplinary committee and appoint a presiding officer and evidence
leader. Then the evidence leader decided to charge Mr Fihlani with various charges
of serious misconduct and that he would appear at a disciplinary hearing scheduled
to take place from 10 March 2025 to the 14 March 2025. The last decision was the
council’s decision that Mr Fihlani would remain on precautionary suspension until the
disciplinary proceedings were finalised. The municipality contends that because of
these decisions, if this Court grants the relief sought , such an order will be what it
called a brutum fulmen (a useless thunderbolt).

[33] I do not understand the municipality’s ple aded case for two suspensions in this
regard. I am not aware of any legal basis for this proposition which, in any event,
flies in the face of the entire processes as set out in the Regulations. No basis is laid
for what appears to be a case for two suspensions for the same offence or offences
and does not appear to be founded on any legal framework. The strangest part of
the municipality’s case in this regard is that it is not even aligned to the municipality’s
letter dated 24 February 2025 in which it is made clear that Mr Fihlani’s suspension
was extended by way of a council resolution. Even the council resolution itself which

was extended by way of a council resolution. Even the council resolution itself which
was taken on 22 January 2025 is to th e effect that “ Council resolved that the
suspension of the Municipal Manager should be extended up until the finalisation of
Disciplinary hearing process. ”9 The municipality’s case does not address Mr

9 Resolution No. 22/01/2025 – 10351 Upon a motion moved by Cllr Jam -jam and seconded by Cllr
Mhlabeni, the Council resolved to adopt the reco mmendations of the independent investigator.
Council also resolved to set up the disciplinary committee and appointment of a disciplinary hearing
presiding officer. Council resolved that the suspension of the Municipal Manager should be extended
up until the finalization of Disciplinary hearing process. Council resolved that the disciplinary hearing
should be instituted without delay from the date of this investigation report and the council must
ensure that it complies with regulation 6(6) of Local Gove rnment: Municipal Systems Act, 32 of 2000
Regulations on Senior Management Disciplinary Procedures which states that if a Senior Manager is

Fihlani’s case at the heart of which is the alleged u nlawfulness of the extension of
the suspension. That is one of the difficulties with the municipality’s case as it also
seems to be misaligned to its own council’s resolution in this regard.

[34] Equally, if not even more difficult to understand , and is in fact a misplaced
contention, is that Mr Fihlani is inviting the court to intervene in medias ras or in
incomplete disciplinary proceedings. This contention ignores the fact that Mr Fihlani
is not challengi ng any part of the disciplinary processes or the charges that have
been issued against him or the locus standi of any of the appointed officials like the
chairperson and the evidence leader, at least not in this matter. The municipality has
not pleaded how Mr Fihlani , through this application, is preventing the disciplinary
hearing from taking place. Once again the mu nicipality’s case is difficult to
understand as it, once more, fails to answer Mr Fihlani’s case with this point being, in
any event, irrelevant.

[35] The municipality, for the second time in the same affidavit, raise d the issue of
the two suspensions. It referred to the suspension of the 22 November 2024 which, it
describes as having been a suspension pending an investigation report. It also
referred to what it calls a distinct and subsequent suspension taken on 22 January
2025. It avers that the latter suspension was as a result of the investigation report
and was a suspension pending a disciplinary hearing. To make its case even more
clearer in this regard, the municipality pleads that on the occasion of the tabling of
the investigation report, the initial suspension lapsed. It further pleads that Mr Fihlani
was thereafter placed on a new suspension pending the disciplinary hearing. As
indicated earl ier, th e municipality’s pleaded case in this regard is contrary to the
council resolution taken on 22 January 2025 which was to extend Mr Fihlani’s

council resolution taken on 22 January 2025 which was to extend Mr Fihlani’s
precautionary suspension. Nothing is said about a new suspension at all, not in the
resolution nor in the le tter dated 24 February 2025 that the mayor addressed to Mr
Fihlani.

[36] The municipality all eges that Mr Fihlani conflates the two distinct suspensions
because of the use of the word “extend” in the resolution. It then disavo ws that it

suspended, a disciplinary hearing must commence within three months after the date of the
disciplinary hearing must be conducted before the 22nd February 2025.

extended the suspension and pleads that it could not have done so. What it says it
did was to pass a resolution making a new suspension pending a disciplinary
hearing. On these bas es, the municipality contends that from the 22 January 2025
which is the date on which th e new suspension was passed, the period of sixty days
referred to in his employment contract would only expire on 23 March 2025. With
regard to regulation 6(6) , its case is that the three months period of precautionary
suspension would only expire on 23 Ap ril 2025 reckoned from the 22 January 2025,
the date on which it alleges a new suspension resolution was passed. In the final
analysis, its case is that whether Mr Fihlani’s suspension is considered in terms of
his contract of employment or in terms of reg ulation 6(6), it has not expired. The
resolution of council of the municipality was , in no uncertain terms, to extend the
precautionary suspension. No resolution was passed for a new suspension and it
would seem, nor was t he passing of a new resolution even proposed or discussed .
The deponent to the municipality’s affidavit is not entitled to read whatever he likes
into a council resolution or substitute words he does not like in the resolution and
thus usurp the powers and functions of council . The issue therefore is whether, as a
matter of law, and on any interpretation of regulation 6(6), Mr Fihlani’s precautionary
suspension could be extended after the expiry of the three months period.
Regulation 6(6)(b) deals with this issue and it makes it clear that a precautionary
suspension may not be extended by council.

[37] There appears to have been an appreciation of this reality when the council of
the municipality looked into Mr Fihlani’s case on 22 January 2025. It , inter alia ,
resolved that it would have to comply with regulation 6(6) by commencing with the
disciplinary hearing on or before the 22 February 2025. That resolution was a clear

disciplinary hearing on or before the 22 February 2025. That resolution was a clear
demonstration of the municipality’s appreciation that it is required to comply with
regulation 6(6). It lamentably failed to do so and has not explained why it could not
do so. Contrary to the clear provisions of regulation 6(6)(b) , on 22 January 2025 it
resolved to extend the precautionary suspension. As at that date, the precautionary
suspension in terms of regulation 6(6) had not yet expired. It was, however expirin g
on that date in terms of the contract of employment. That is what , it seems to me ,
informed its decision to pass a resolution to extend the suspension at that stage so
as to prevent the suspension from lapsing . It then failed not only to comply with

regulation 6(6) but also with its own resolution which was to ensure that the
disciplinary hearing was commenced with before the 22 February 2025.

[38] Mr Sicotho’s bizarre averments about the suspension not having been extended,
but council having resolved to make a new suspension are him being brazenly
disingenuous and , as a state functionary, deliberately misleading t his Court in an
attempt to manipulate the council resolution by seeking to ex cise, the word “extend”
in the resolution and undo a clear intention of council to comply with the law. This
was an unlawful conduct on Mr Sicotho’s part and to the extent that he did so on
behalf of council, or with the acquiescence of council, council had in any event, no
power to extend Mr Fihlani’s precaution ary suspension. If the municipality felt that it
needed more time before it could commence with the disciplinary hearing and it was
faced with a looming expiry of the three months precautionary suspension period
provided for in regulation 6(6), it is unclear why it did not approach court to seek an
appropriate relief. Instead of doing so , it ex ercised self -help by simply disavowing
that it extended the suspension. It disingenuously came up with a theory of two
distinct suspensions. This it did because it knew that it could not, o n the face of
regulation 6(6), contend that it extended the suspension which, as a matter of fact, it
did and did so unlawfully. At some stage during oral submissions in court, I
understood counsel for the municipality to be conceding that in fact Mr Fihlani’s
suspension was extended. In making this concession which, while it was well made
by counsel in line with his duty as an officer of the court , it was an unexpected volte
face which had a consequence of undoing the municipality’s entire case on the
theory of two distinct suspensions.

[39] The underlying constitutional principle with regard to the municipality’s obligation

[39] The underlying constitutional principle with regard to the municipality’s obligation
to respect the law and its fidelity to the constitutional framework is not optional . This
principle has been restated in various ways in di fferent circumstances and contex ts
by our courts all the way up to the Constitutional Court. As an illustrative example s,
in Asla Construction10, not so long ago, the Constitutional Court said:


10 Buffalo City Metropolitan Municipality v Asl a Construction (Pty) Limited 2019 (4) SA 331 (CC) para
60-61

“This Court has repeatedly stated that the state or an organ of state is subject
to a higher duty to respect the law. As Cameron J put it in Kirkland:
‘[T]here is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing with
rights. Government is not an ind igent or bewildered litigant , adrift on a
sea of litigious uncertainty, to whom the courts must extend a
procedure–circumventing lifeline. It is the Constitution’s primary agent.
It must do right, and it must do it properly.”

In Khumalo11, the court made it clear that the constitutional and legislative framework
must inform an approach that does not undermine the hard -won protections afforded
to public sector employees . The standard against which a state litigant’s conduct is
measured is high and ought to accord with the pr escripts of the law. In Merafong12, it
was stated that it is the duty of state litigants to rectify unlawful decisions:
“This Court has affirmed as a fundamental principle that the state ‘should be
exemplary in its compliance with the fundamental constitutional principle that
proscribes self-help.” What is mo re, in Khumalo, this Court held that state
functionaries are enjoined to uphold a nd protect the rule of law by, inter alia,
seeking the redress of their department’s unlawful decis ions. Generally, it is
the duty of a state functionary to rectify unlawfulness. The courts have a duty
to insist that the state, in all its dealings, operates within the confines of the
law and in so doing, remains accountable to those on whose behalf it
exercises power. Public functionaries must, where faced with an irregularity in
the public administration, in the context of employment or otherwise seek to
redress it.”

[40] One of the ways in which state functionaries or organs of state may seek
redress is to approach court for appropriate relief . Instead of acting in an exemplary

redress is to approach court for appropriate relief . Instead of acting in an exemplary
fashion as a constitutional citizen, the municipality grant ed itself a right it did not
have, the right to extend the precautionary suspension of Mr Fihlani when i t realised
that the two months contract was due to expire on 22 January 2025. It was
contractually proscribed from doing so . However, in terms of regulation 6(6) , it still

11 Khumalo v MEC for Education 2014(5) SA 57 (CC) at 589D.
12 Merafong City v Anglogold Ashanti 2017 (2) SA 211 and 235 H to 236 A.

had another month up until the 22 February 2025 as the three months precautionary
suspension period would only expire on that date . It therefore still had a month in
terms of regulation 6(6) within which to commence with a disciplinary hearing. It
inexplicably failed to do so. This therefore means that it had no legal basis to keep
Mr Fihlani away from his job or to turn him away when he reported for duty to tender
his services on 24 February 2025 . In doing so, it acted in flagrant contravention of
regulation 6(6) of the Regulations and therefore in breach of its obligation to observe
the rule of law.

[41] The municipality, must have, at some point, realized that it was in a legally
awkward situation and in an indefensible violation of the unlawfulness of its conduct.
That is possibly why it belatedly, and on the day on which th e main application was
to be heard, came to court armed with an urgent counter-application raising the issue
of the alleged unconstitutionality of regulation 6(6) . As indicated earlier, I have
decided to deal with both the m ain application and the counter-application on the
basis that any urgency, to the extent that it may have existed , dissipated as a result
of the municipality’s need to join the Minister for the purposes of moving the counter-
application. I took the view that the main application could not be determined
separately from the counter -application whose urgency, if it existed, was said to be
inextricably linked to the urgency of the main application. In all the circumstances,
the issue of urgency became moot. I turn now to examine, in s ome detail the
counter-application.

Analysis re counter-application.

[42] The municipality’s case in the counte r-application is that local government is a
distinctive sphere of government alongside national and provincial spheres. As such ,
it is autonomous with an original constitutional right to govern on its own initiative,

it is autonomous with an original constitutional right to govern on its own initiative,
the local government affairs of its community , only subject to national and provincial
legislation. Therefore , its right to govern may not be compromised or impeded. It

relies on various provisions of the Constitution as well as the case of Independent
Outdoor Media13 in which the court said:

“In considering the impugned provisions, one needs to consider the
empowering provisions of secti on 43(c) of the Co nstitution, which provides
that the legislative authority of the local sphere of government is vested in the
Municipal Councils, as set out in section 156. This entitlement connotes a
regulatory and policy -making role more than a mere au thority to administer
and implement prescripts. This position was confirmed by this Court in
Fedsure, where it was held that municipal councils are deliberative, legislative
assemblies with constitutionally guaranteed legislative powers.”

[43] The point of emphasis by the municipality is that the constitutional right to
govern which is provided for in section 151(3) of the Constitution and the
Constitution’s injunction provided for in section 151(4) is that neither the national no r
the provincial sphere of government may compromise or impede a municipality’s
right to govern or interfere with the exercise of its powers, or the performance of its
functions. These provisions suggest that a municipality’s right to govern is not merely
a right to implement or to administer laws. In the final analysis , and more relevantly
to the issue at hand, the municipality submits that in the narrow context of labour
relations, its constitutional right to govern entails an entitlement to regulate its
personnel affairs unhindered and therefore regulation 6(6) impermissibly and
unconstitutionally interferes with its right to govern in this regard . In doing so,
regulation 6(6) takes away a power that is ordinarily enjoyed by all employers to
extend a preca utionary suspension of a senior manager in violation of a
municipality’s right to govern. This creates a patently untenable situation in which a
senior manager such as Mr Fihlani could, while undergoing a disciplinary hearing, be

senior manager such as Mr Fihlani could, while undergoing a disciplinary hearing, be
at work and may potentially interfere with witnesses who are usually his subordinates
and may also temp er with evidence in circumstances in which he or she cannot be
temporarily removed pending the conclusion of the disciplinary hearing. That makes
regulation 6(6) rigid in that it fails to take into account the existence of instances in

13 City of Cape Town v Independent Outdoor Media (Pty) Ltd and Others 2024 (1) SA 301 (CC); 2024
(4) BCLR 483 (CC) para 45.

which it may be necessary to extend a precautionary suspension after three months
in a specific case and on good cause shown.

[44] In advancing the above c ontentions, the municipality relies, inter alia, on
Economic Freedom Fighters 14 in which Majiedt J, writing a minority judgment of the
Constitutional Court said:

“In Prince this Court explicated that “[a] challenge to the constitutionality of
legislation o n the grounds that it is over broad is in essence a challenge
based on the contention that the legitimate government purpose served by the
legislation could be achieved by less restrictive means.”

[45] The constitutional challenge is not without difficulti es, some of which I briefly
encapsulate below. In mounting the constitutional challenge , the municipality simply
seeks an order declaring regulation 6(6) unconstitutional , invalid and of no force and
effect. If this order is granted in the manner it is pleaded and prayed for in the notice
of motion, there would be nothing left in its stead. This means that it would be up to
each municipality in the country to decide how long the precautionary suspension
should be, where they choose to be specific. There is another more ominous
possibility of two endless suspensions that, on the approach adopted by the
municipality, in the first instance, would be a suspension pending the finalisation of
the investigation , no ma tter how long that would take. This would be a distinct
suspension from a precautionary suspension pending a disciplinary enquiry which
would be the second suspension , as the municipality pleaded its case . This is not
grounded on any reading of the applicable and relevant regulatory framework.

[46] The suspension communicated to Mr Fihlani in the municipality’s letter dated 22
November 2024 specifically refers to a suspension pending the completion of the
investigation. That is the suspension which w as, through a council resolution taken

investigation. That is the suspension which w as, through a council resolution taken
on 22 January 2025, extended, if the suspension letter dated 22 November 2024 and
the resolution of council dated 22 January 2025 are anything to go by . That is what
the municipality calls the initial suspension which was, on the case it advances, a

14 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and
Another 2021(2) SA I (CC); 2021(1) SACR 387 (CC) at para 134.

suspension pending the investigation report. The report was received on 21 January
2025 and tabled before council on 22 January 2025. In that council meeting , a
resolution was taken to extend the suspension. The only suspen sion that could be
extended is the suspension that was in effect which was a suspension pending the
investigation report. It is difficult to make sense of extending a suspension whose
purpose ha s been served as the investigation report had been received and dealt
with.

[47] Despite the clear wording of the resolution taken on 22 January 2025, the
municipality also advanced a case of a new suspension distinct from the initial
suspension. The municipality describe s this suspension as a suspension pending a
disciplinary hearing. The Regulations also do not refer to a suspension pending an
investigation or pending a disciplinary hearing. On any reading of the Regulations,
there is only one suspension. It is referred to as a precautionary suspension.
Therefore, a municipality is free to explain it in whatever fashion it so desires, but it is
required to commence with the disciplinary hearing within three months from the
date of the said suspension, should it resolve to subject the senior manager to a
disciplinary hearing . If the municipality commences with the disciplinary hearing, it
seems to me that an argument could be made that the suspension does not lapse. It
follows that the senior manager continues being on suspension until the disciplinary
hearing is concluded , if the Regulations are understood in their totality and
considered purposefully . There is another conundrum that results from the
constitutional challenge of regulation 6(6). Regulation 10(1) whose constitutionality is
not under attac k provides that the disciplinary hearing must commence within three
months of the resolution to institute disciplinary action. If there is no obligation to
expedite the disciplinary processes of a senior manager and his or her suspension

expedite the disciplinary processes of a senior manager and his or her suspension
can be extended whenever a municipality sees a need to do so, how the disciplinary
hearing is going to take place within three months as required by regulation 10 (1)
comes to the fore . The declaration of constitutional invalidity of regulation 6(6) and
the vacuum that is left could render regulation 10(1) legally insensible.

[48] No case was sought to be made by the municipality on why the three months
period or the provision that it cannot be extended is too restrictive or overbroad. The
municipality just badly asserts in its papers that the provision is overbroad without

explaining how it is overbroad beyond saying that this is because it leaves no room
for an extension even in a deserving case. There is no explanation why it was unable
to meet the three months d eadline prescribed by regulation 6(6) . No case is sought
to be advanced in the municipality’s papers what it was doing from the 22 November
2024 and at what stage in the process did it encounter what must surely have been
an unexpected , unforeseen environment or situation that militated against it
commencing with the disciplinary hearing on or before the 22 February 2025 . As I
understood it , the municipality had been operating under the understanding that
commencing with a disciplinary hearing meant serving Mr Fihlani with a charge sheet
which it did on 13 February 2025.

[49] An argument was advanced that in Tshabalala15 the Labour Appeal Court
interpreted regulation 6(6) to mean that the extension of a precautionary suspension
is prohibited unless a disciplinary hearing is commenced with which is when the
evidence leader reads out the charges to an employee at a disciplinary hearing.
This, notwithstanding the fact that th e employer would have commenced with
disciplinary processes. It was submitted that t he municipality disagrees with this
interpretation. The interpretation of the Labour Appeal Court that the municipality
disagrees with was expressed as follows in Tshabalala:

“… A disciplinary hearing is an integral part of the disciplinary process or
proceedings; it does not constitute the proceedings in themselves. Read
sequentially, the regulations contemplate that the disciplinary hearing is
convened by the presiding o fficer and commenced by the reading of the
charges to the senior manager accused of misconduct.
This construction has previously been upheld and applied by the Labour
Court. In Mgengo v Lekwa-Teemane Local Municipality, Nkutha-Nkontwana J
(as she then was) said the following:
‘[22] The issuing of the charge sheet and the notice to attend the

‘[22] The issuing of the charge sheet and the notice to attend the
disciplinary hearing do not commence the disciplinary hearing but
facilitates the process towards its commencement. I agree with
Cele, J that the disciplinary hearing can only commence in the

15 Tshabalala v Moqhaka Municipality and Another [2025] 2 BLLR 189 (LAC); (2025) 46 ILJ 590 (LAC)
paras 7-9.

actual sitting when the presiding officer officiates over the
proceedings or proverbially takes the captainship and navigate
the ship. This construction accords with Regulation 10(1)(a)
which states that the d isciplinary hearing must commence within
three months from the date the Municipal Council resolved to
institute a disciplinary hearing.
[23] I get the impression that the purpose of the Disciplinary Regulation
is to ensure that the suspension and disciplinary hearing of a senior
manager in the Municipality is attended to expeditiously so as to
avoid prolonged leadership vacuity which could impede the
rendering of the Municipal services. Also, it cannot be overstated
that ‘suspension is a measure that has s erious consequences for
an Employee, and is not a measure that should be resorted to
lightly’. Hence it is perfect ly logical that, come the three month
period of suspension lapses, the Municipal Council is debarred by
Regulation 6(6)(b) from extending it. In my view, it is incumbent
upon the Municipal Council to act with the speed of a gazette
consequent to the resolution to institute a formal disciplinary
hearing against a senior manager.’
To that conclusion I would add that the regulation of precautionary suspension
is directed not only at the interests and protection of the affected employee;
the general public has an interest in the funds expended on public sector
employees who remain on suspension for in ordinate periods. As the Court in
Mgengo observed the regulations hold the municipalities to tight timetables.
The interpretation for which the municipality contends is more likely than not
to protract periods of suspension particularly where charges of misconduct
are served and the convening of the disciplinary hearings are delayed.”

[50] The Municipality has not advanced any argument on or challenged regulation
10(3)(a) which reads thus:

“3. The officer leading evidence –
(a) must commence the disciplinary hearing by reading out the charges to

(a) must commence the disciplinary hearing by reading out the charges to
the senior managers.”

(b)
[51] It seems to me that the interpretation that the service of charges on an
employee is the commencement of the disciplinary hearing is incongruent with
regulation 10(3 )(a). All that the court did in Tshabalala was to interpret regulation
10(3)(a) in the manner in which the ordinary grammatical meaning of the words used
in that regulation actually mean considered in the context of the Regulations as a
whole. Therefore, even without Tshabalala, regulation 10(3)(a) has always clearly
told all concerned what it means to commence with the disciplinary hearing. In any
event, the case advanced by the municipality in the main application was also that it
commenced with the disciplinary hearing on time in that it served Mr Fihlani with the
charges on 13 February 2025. It should be remembered that part of its case is that
there were two distinct suspensions, and therefore, it was not out of time for the
commencement of the disciplinary which it did or intended to commence on 10 to 14
March 2025, way before the expiration of the three months period reckoned from the
22 January 2025 . It is clear that the municipality has adopted , and it would appear,
quite deliberately , an obfuscatory approach to this matter which it is difficult not to
conclude that this is done, presumably just to keep Mr Fihlani away from his job
beyond the process and period set out in the Regulations. In other words, it has
deliberately embarked on a crafty strategy that is not informed or governed by the
Regulations and has thus chosen to operate outside of the Regulations.

[52] This brings me to the last issue concerning the municipal council ’s resolution to
appeal against a judgment or order of this Court if it did not succeed which is
illustrative of what I am alluding to . If this is the case and I hope it is not, it would be
very concerning as it would make the municipal council’s fidelity to the Constitution in
general and the r ule of law in particular, at the very least, questionable. This very

general and the r ule of law in particular, at the very least, questionable. This very
point was made and emphasised more than two decades ago in Mamabolo16, albeit
in a different context. In that case , the Constitutional Court expresse d itself as
follows:

“No-one familiar with our history can be unaware of the very special need to
preserve the integrity of the rule of law against governmental erosion. The

16 S v Mamabolo 2001(3) SA 409 (CC); 2001(5) BCLR 449 (CC); 2001 (1) SACR 686 (CC) at paras
17-18.

emphatic protection afforded the judiciary under the Constitution therefore has
a particular resonance Recognising the vulnerability of the judiciary and the
importance of enhancing and protecting its moral authority , chapter 8 of the
Constitution, which marks off the terrain of the judiciary significantly
commences with the following two statements of principles:
‘(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and
the law, which they must apply impartially and without fear, favour
or prejudice.’”
These two general propositions are then flossed out and reinforced in the
succeeding three subsections of section 165 of the Constitution:
‘(3) No person or organ of state may interfere with the functioning of
the courts.
(4) Organs of state, through l egislative and other measures, must
assist and protect the courts to ensure the independence,
impartiality, dignity accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom
and organs of state to which it applies.’
The breath of the injunction is emphasised if one has regard to the compendious
meaning the Constitution gives to the term “ organ of state ” so as to include all
executive and legislative bodies in all spheres of government.
The judiciary cannot function properly without the support and trust of the public.
Therefore, courts have over the centuries developed a method of functioning, a
self-discipline and restraint which, although it differs from jurisdiction to
jurisdiction, has a number of essential characteristics. The most important is that
judges speak in court and only in court. They are not at liberty to de fend or even
debate their decisions in public. It requires little imagination to appreciate that the
alternative would be cha otic. Moreover, as a matter of general policy judicial
proceedings of any significance are conducted in open court, to which everybody

proceedings of any significance are conducted in open court, to which everybody
has free access and can access the merits of the dispute and can witness the
process of its resolution. This process of resolution ought as a matter of principle
to be analytic, rational and reasoned. The rules to be applied in resolving the
dispute should either be known beforehand or be debated and determined openly.
All decisions of judicial bodies are as a matter of course announced in public, as a

matter of virtually invariable practice, reasons are automatically and publicly given
for judicial decisions in contested matters. All courts of any consequence are
obliged to maintain records of their proceedings and to retain them for subsequent
scrutiny. Ordinarily the decisions of courts are subject to correction by other,
higher tribunals, once again for reasons that are debated and made known
publicly.”

[53] I understand this injunction to mean that organs of state , as part of their duty to
respect the authority of the courts, must debate disputes publicly in court
proceedings. Thereafter they must consider and carefully apply their minds to the
reasons given for whatever decisions courts make. Only thereafter should an organ
of state, such as a municipality , consider and if so advised, launch an appeal
informed by its deep conviction that the court may have erred in its application of the
law to whatever factual matrix that was presented to it or made an error of the law .
Where a decision of the court is sound in fact and in law, organs of state , being
constitutional beings, are obliged to simply obey judicial decisions. It is not for them
to use public funds meant for service delivery to fund litigation, at great cost to the
taxpayer, fighting uninformed and unprincipled legal battles just to muscle their way
through, regardless of and in total disregard of the judicial process and in particular,
without applying their minds to the reasons give n for the decisions courts make. This
is more so if regard is had to the fact that senior managers are usually appointed on
fixed term contracts which may run out while the senior manager has been kept
away on full pay unlawfully.

[54] The municipality’s contention that regulation 6(6) is unconstitutional for not
allowing for a situation that could arise and on good cause shown , for a
precautionary suspension to be extended, is made without stating the good cause

precautionary suspension to be extended, is made without stating the good cause
situation that it was faced with . Therefore, the good cause argument seems to be a
hypothetical case on the basis of which the munic ipality argues, this Court should
find regulation 6 (6) unconstitutional. It s overbroad argument also ignores what the
Constitutional Court said in Economic Freedom Fighters17. The court in that case
also expressed itself as follows:

17 Note 2 supra at para 134-136.

“… [I]t is important to consider the issue of the widely phrased term “any
offence” in the context of the less restrictive means enquiry. This leg requires
its own proportionality enquiry in the form of what can conveniently be termed
a “costs – benefits analysis” (the limitation must achieve benefits proportional
to the costs of the limitation).
The main judgment regards the criminalisation of “any offence” by the
impugned section as overbroad. For this reason, it finds the section
unconstitutional in its present form. As stated above, it is well established that
the central enquiry in respect of the challenge of overbreadth is whether there
are less restrictive means available to achieve the purpose of the limitation….
In Case, this Court explicated:
‘To determine whether a law is overbroad, a court must consider the
means used (the it, the law itself, properly interpreted), in relation to its
constitutionally legitimate underlying objectives. I f the impact of the law
is not proportionate with such objectives the law may be deemed
overbroad.’”

[55] The municipality has not addressed its own under standing of the constitutionally
legitimate underlying objectives of regulation 6(6) and indicated how those objectives
could have been achieved with any less restrictive means that could have been
used. It has, instead, sought to make a case for regulati on 6(6) being overbroad
only because it does not provide for an extension even on good cause shown. The
municipality does not indicate to whom would the good cause would have to be
shown by council considering that a municipal council is the ultimate decision making
body of a municipality. It is the very structure that would have decided to place a
senior manager on precautionary suspension. It is also the very structure that would
have failed to ensure that a disciplinary hearing is commenced with within three
months. Presumably , it would be the very same structure that would show to itself

months. Presumably , it would be the very same structure that would show to itself
that a good cause exists for the extension of the precautionary suspension. I cannot
imagine a more asymmetrical argument as the one in this case , especially where
there is a weaker party and a stronger party in the greater scheme of things or
employer/employee relations.

[56] This also ignores the Minister’s argument that what the regulation seeks to do or
does is not unique to the municipality. Some of the obje ctives of the Regulations are
universally applicable in the employment sector and are consistent with the
Constitution. The regulation seeks to ensure that discipline in local government is
applied in a prompt, fair, cons istent and progressive manner. There is also a need
for efficient service delivery which can only be achieved through timeous information
on allegations of misconduct and the holding and conclusion of disciplinary hearings.
This gives confidence to the communities served by that municipality that their affairs
are properly managed and the monies set aside for service delivery are not wasted
or misappropriated through a prompt and efficient investigation, management and
conclusion of allegations of misconduct.

[57] I am unable to discern any dissonance between the provisions of sections 151
of the Constitution on the right of a municipality to govern on the one hand, and the
prompt and timeous investigation of allegations of misconduct , the prompt
commencement of a disciplinary hearing - and the lapsing of a precautionary
suspension if disciplinary hearing is not commenced with within a reasonable time as
provided for in regulation 6(6), on the other hand. Sight should not be lost of the fact
that not all cases of misconduct may require the absence of a senior manager from
work. For a precautionary suspension to be effected, a municipa l council must have
a reason to believe that the senior manager’s presence at the workplace may
jeopardise the investigation of the alleged misconduct; that it may endanger the well-
being or safety of any person or municipal property; or be detrimental to stability in
the municipality; or that the senior manager may interfere with potential witnesses; or
commit further acts of misconduct 18. These are all the jurisdictional factors for a
precautionary suspension of a senior manager.

precautionary suspension of a senior manager.

[58] It seems to me that there must be a process to determine if a precautionary
suspension is even necessary. What this means is that the Regulations place a very
high premium on the presence of a senior manager at work for obvious reasons .
This must be juxtaposed with a senior manager being on an endless precautionary
suspension on as yet unsubstantiated allegations of misconduct while he or she is

18 Regulation 6(1) of the Regulations.

on full pay with no loss of benefits . The taxpayer must pay for his services while no
service delivery to the communities is taking place. While this may be ameliorated
through the appointment of a n acting senior manager , that comes at even more
expense as two people occupying the same position are paid while the senior
manager is on endless suspension . Add to that the fact that the absence of the
senior manager causes institutional instability. The fact that some of the unfortunate
circumstances leading to these suspensions which could be due to either political
instability which , regrettably, is not uncommon or even sheer negligence or poor
management of labour relations cannot be downplayed . Surely, the ministerial
interventions in the form of these Regulations are absolutely understandable and
amply justified as an oversight mechanism. Otherwise communities in these
municipalities most of whom serve poor communities, have no other hope for
survival other than through the delivery of basic services provided by these very
municipalities. When there is lack of service delivery, these communities remain
tramped in abject poverty, disease and are even exposed to preventable deaths .
These considerations make the poignant point that senior managers should be
suspended under very exceptional circumstances, with the council being very
constrained to let a suspension continue longer than it is absolutely necessary. A
suspension of a senior manager is not just a matter of investigating misconduct no
matter how long it takes , it may also be a matter of liveliho od or quality of life for the
citizenry or even life and death because of the ripple effect it may have on service
delivery. In this case, there is no attempt in the papers to explain how the
municipality got to the situation where it did not comply with r egulation 6(6) by
conducting a disciplinary enquiry within three months or even its contractual

conducting a disciplinary enquiry within three months or even its contractual
obligation, by conducting a disciplinary hearing within two months , not to mention its
own resolution to conduct the disciplinary inquiry on or before the 22 February 2025.
It has not, even by way of an example, demonstrated the good cause scenario on
which it partly hoists the constitutional challenge. In these circumstances the
constitutional challenge is made abstractly , presumably because the municipality
could not explain its failure to comply with all these obligations , otherwise it would
have done so.

[59] An argument was made on behalf of Mr Fihlani that even the right to govern that
is provided for section in 151(3) of the Constitution is not applicable to any and

everything. This is not made clearer than in section 156(1)(a) of the Constitution
which provides that “[a] municipality has executive authority in respect of and has the
right to administer the local gover nment matters listed in Part B of Schedule 4 and
Part B of Schedule 5.” I need not enumerate the mat ters listed in Part B of
Schedules 4 and 5 , save to point out that labour relation s is not one of them. The
basis on which within our constitutional arrang ement, the municipality should be left
to its own devices, accountable to no one in respect of labour matters which are a
key cog for service delivery, is foggy at best or non-existent on the papers.

Conclusion.

[60] In all the circumstances , Mr Fihlani must succeed in the main application as the
extension of his suspension effected on 22 January 2025 was without any legal
basis, it having been effected contrary to the clear provisions of regulation 6(6) of the
Regulations. Mr Fihlani’s main application must therefore succeed. The constitutional
challenge to regulation 6(6) which was advanced by the municipality in the counter -
application must fail. It must fail also because there is no dissonance between
section 151 of the Constitution and regula tion 6(6) of the Regulations . Regulation
6(6) is simply not overbroad and is in fact properly aligned with what it seeks to
achieve which is to strike an appropriate balance between the interest of
municipalities and the senior managers as well as taxpayers, and indeed all
interested parties , by ensuring that disciplinary processes commenc e and are
concluded with the necessary degree of promptitude . With all of th is in mind,
regulation 6(6) is simply not unconstitutional. Differently put, the municipality has
failed to show that regulation 6(6) is in any way unconstitutional. Therefore, the
counter-application falls to be dismissed. There is no reason why costs should not
follow the result.

The result.

[61] In the result, the following order shall issue:

follow the result.

The result.

[61] In the result, the following order shall issue:

1. It is declared that the precautionary suspension of Mr Mluleki Fihlani by the Port
St Johns Local Municipality (the municipality) terminated on 21 February 2025.

2. The municipal council’s decision to extend the suspension of Mr Fihlani is
declared invalid and is reviewed and set aside.
3. It is declared t hat Mr Fihlani is entitled to return to work forthwith as the
Municipal Manager of the municipality.
4. The municipal council of the m unicipality is interdicted from unlawfully
suspending, denuding and/or taking away from Mr Fihlani , his right to render
his contractual duties to the municipality.
5. The Mayor and the Speaker of the m unicipality are directed to see to the
immediate implementation of the terms of this court order.
6. The municipality shall pay the costs of th e main application, such costs to be
inclusive of the costs of two (2) counsel, where such services were engaged on
scale C.
7. The counter-application is dismissed.
8. The applicants in the joinder application and in the counter-application shall pay
the costs of the joinde r application and the counter -application, such costs to
include the costs occasioned by the employment of two counsel where so
employed on scale C.


______________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT


Appearances:

Counsel for the applicant : M Gwala SC with Z Mashiya
Instructed by : Sakhela Inc.
MTHATHA
Counsel for the respondents : G Madonsela SC with M Nombewu
Instructed by : Mvuzo Notyesi Inc.
MTHATHA
Counsel for the 1st & 2nd respondents: T.M. Jikwana
(counter-application)

Instructed by : State Attorney
MTHATHA

Date heard : 02 May 2025
Date delivered : 08 July 2025