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YES / NO
YES / NO
YES / NO
YES / NO
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between: -
MEC: DEPARTMENT OF COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND TRADITIONAL AFFAIRS
DEPARTMENT OF COOPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL AFFAIRS
and
NAMA KHOI LOCAL MUNICIPALITY
COUNCIL OF THE NAMA KHOI LOCAL MUNICIPALITY
RODNEY KRITZINGER
JAN IZAK SWARTZ
Heard: 06 June 2025
Delivered: 27 June 2025
Case No: 1396/2025
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Summary : Urgent application. The Municipal Council appointing Acting Municipal
Manager post his retirement age of 65 years pending an application for a waiver of the
age requirement in terms of Regulation 41 by the Minister of COGHSTA. Whether the
MEC has locus standi in terms of s 54A(8) of the Local Government: Mun icipal
Systems Act 32 of 2000 to bring the application challenging the appointment.
ORDER
In the result, the following order is made:
1. The application is dismissed.
2. There is no order as to costs.
2
JUDGMENT
MAMOSEBO, J
[1] The first applicant, Mr Bentley Ivan Vass is a Member of the
Executive Council (MEC) for the Department of Co -operative
Governance, Human Settlements and Traditional Affairs
(COG HST A) and the second applicant, the Department of Co
operative Governance, Human Settlements and Traditional Affairs
(the Department) jointly referred to as the applicants, brought this
application on an urgent basis seeking a declarator that the
appointment of the fourth respondent as acting Municipal Manager
of the first respondent be declared unlawful and invalid and
accordingly set aside.
[2] The first respondent is Nama Khoi Local Municipality. The second
respondent is the Council of the Nama Khoi Local Municipality. The
third respondent is the Mayor of Nama Khoi Local Municipality, Mr
Rodney Kritzinger. The fourth respondent, Mr Jan Izak Swartz is
the acting Municipal Manager whose impugned appointment is the
subject of these proceedings. The third and fourth respondents
filed Notices to Abide the court's decision. This application is
therefore only opposed by the first and second respondents jointly
referred to as the respondents.
[3] The basis for the MEC seeking the relief is premised on the
appointment of Mr Swartz beyond the stipulated retirement age of
65 in contravention of Regulation 41 (1) of the Local Government:
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Regulations on Appointment and Conditions of Employment of
Senior Managers (the regulations).
[4] Both parties have not addressed the court on the effect, if any, of
the validity of s 54A of the Systems Act by virtue of the
Constitutional Court decision in South African Municipal Workers'
Union. v Minister of Co-Operative Governance and Traditional
Affairs (SAMWU) 1. The Constitutional Court pronounced:
'The period of suspension ended on 8 March 2019. Until 8 March 2019, there
could be reliance on section 54A because the suspension had the effect of
keeping it enforceable despite the order of invalidity. Once the suspension
period had expired, the order of invalidity kicked in. After this there could no
longer be any reliance by the MEC on .the section to seek an order to declare
the appointments null and void because it was invalid and therefore
unenforceable.'
Despite the expiry of the suspension period and the legislature's
failure to cure the defect in this regard to amends 54A there is no
impediment in dealing with this application.
Factual background
[5] On 17 April 2022 the Municipality advertised the position of a
Municipal Manager in the City Press Newspaper. Of significance in
that advertisement was the clause that the position was for a five
year fixed term contract. Only six applicants responded to the
advertisement. Of those, three met the requirements and were
shortlisted for interview. Before the interview, one of them withdrew
his candidacy leaving the fourth respondent and one other.
Pursuant to the interview process the already 62-year-old fourth
1 (2017] ZACC 7; 2017 (5) BCLR 641 (CC) para 19
4
respondent was the successful candidate. The panel resolved to
recommend him for the appointment as the Municipal Manager ,
and he was appointed by the Municipal Council on 30 August 2022.
Contrary to the advertised fixed contract period of five years, he
was appointed for three years commencing on 03 October 2022 to
31 March 2025.
[6] On 1.1 December 2024 the Executive Committee of the Municipality
held a meeting chaired by the mayor and resolved to extend the
fourth respondent's contract to 31 September 2027. It was further
resolved that the Municipal Council would apply for exemption or
waiver as contemplated in Regulation 41 (1) of the regulations.2 On
22 January 2025 the respondents directed a letter under signature
of the mayor to the MEC requesting him to support the application
to the Minister to waive the requirement of regulation 41 (1) thereby
allowing the Municipal Council to extend Mr Swartz's contract for
the remainder of the advertised term of five years as contemplated
by regulation 41 (2). The MEC did not support the request and in
his letter dated 05 February 2025 reminded the mayor that he had
advised against Swartz's appointment on the basis that he was
already 62 years of age whereas the contract required him to be
employed for five years which would necessitate him working
beyond the stipulated retirement age. He was also not convinced
that Swartz had the scarce skills warranting the extension of his
contract. The letter ends with advice to council to advertise the post
as soon as possible to ensure a smooth transition by 01 April 2025.
2 Regulation 41 of the regulations stipulates:
'(1) A senior man ager has the right to retire, and mu st retire, on the first calendar day of the m onth
follow ing the day on w hich he or she turns 65 years of age.
(2) N otwithstanding subregulation (1), a m unicipal council, after consultation with the MEC for local
government, and upon good cause show n, apply in w riting to the M inister, for a wa iver of the
requireme nt in subregulation (1) in the case of a person with scarce skills for effective service delivery
by the mu nicipality.
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(71 The Municipal Council held a meeting on 27 March 2025 cognisant
of the fact that Swartz's contract would end on 31 March 2025 and
resolved to appoint him as the acting Municipal Manager for a
period of three months pending the outcome of the waiver
application. Council further resolved that should the waiver
application be unsuccessful, the fourth respondent is authorised to
advertise the position and continue to act in that same position until
the process of filling that position was finalised. The MEC was
shocked to learn of Swartz's appointment when the information was
furnished to him by the office of the State Attorney on 23 May 2025.
[8] These are the reasons furnished by the MEC to substantiate the
matter being heard on an urgent basis. The acting manager's
acting appointment came to an end on 31 March 2025 and has
been given an acting stint for a period of three months which w ill
end on 30 June 2025. Should this court find the application not
urgent and direct that it should be heard in the normal course, the
horse would have bolted and the Municipality would have been
prejudiced financially by his unlawful appointment.
[9] The principles pertaining to urgency are trite. The applicants bear
the duty and the responsibility to state the reasons why they
maintain that the matter is urgent and must be heard outside the
normal . timeframes as failing to do so may deprive them of
substantial. redress in due course.
Locus standi of the MEC
[1 0] The respondents raised the preliminary point of locus standi (legal
standing) contending that because the application in terms of
regulation 41 falls squarely within the purview of the Minister, it was
the Minister and not the MEC who had the locus standito challenge
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the appointment of the acting Municipal Manager. This matter
concerns the exercise of a public power by the MEC, as well as the
interpretation of sections 54A(3) and 54A(8) of the Systems Act.
The challenge by the respondents that the MEC lacks the legal
standing to bring this application is without merit. Since the MEC's -
challenge was confined to the lawfulness of the decision by the
municipality to appoint the fourth respondent as the Municipal
Manager it was competent for the MEC to bring such challenge in
terms of s 54A of the Local Government: Municipal Systems Act,
32 of 2000 (the Systems Act)3.
3 Appointment of municipal managers and acting municipal managers
(1) The municipal council must appoint-
(a) a municipal manager as head of the administration of the municipal council; or
(b) an acting municipal manager under circumstances and for a period as prescribed.
(2) A person appointed as municipal manager or acting municipal manager in terms of subsection (1)
must at least have the skills, expertise, competencies and qualifications as prescribed.
(2A) (a) A person appointed in terms of subsection (1) (b) may not be appointed to act for a period that
exceeds three months.
(b) A municipal council may , in special circumstances and on good cause shown, apply in writing to the
MEG for local government to extend the period of appointment contemplated in paragraph (a), for a
further period that does not exceed three months.
(3) A decision to appoint a person as municipal manager, and any contract concluded between the
municipal council and that person in consequence of the decision, is null and void if-
(a) the person appointed does not have the prescribed skills, expertise, competencies or
qualifications; or
(b) the appointment was otherwise made in contravention of this Act.
(4) If the post of municipal manager becomes vacant, the municipal council must
(a) advertise the post nationally to attract a pool of candidates nationwide; and
(a) advertise the post nationally to attract a pool of candidates nationwide; and
(b) select from the pool of candidates a suitable person who complies with the prescribed
requirements for appointment to the post.
(5) The mun icipal council must re-advertise the post if there is no suitable candidate who complies with
the prescribed requirements.
(6) (a) The municipal council may request the MEC for local government to second a suitable person,
on such conditions as prescribed, to act in the advertised position until such time as a suitable candidate
has been appointed.
(b) If the MEC for local government has not seconded a suitable person within a period of 60 days after
receipt of the request referred to in paragraph (a), the municipal council may request the Minister to
second a suitable person, on such conditions as prescribed, until such time as a suitable candidate has
been appointed.
(7) (a) The municipal council must, within 14 days, inform the MEC for local government of the
appointment process and outcome, as may be prescribed.
(b) 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.
(8) If a person is appointed as municipal manager in contravention of this section, the MEG for focal
government must, within 14 days of receiving the information provided for in subsection (7), take
appropriate steps to enforce compliance by the municipal council with this section, which may include
an application to a court for a declaratory order on the validity of the appointment, or any other legal
action against the municipal council.
(9) Where an MEC for local government fails to take appropriate steps referred to in subsection (8), the
Minister may take the steps contemplated in that subsection.
(10) If the MEC for local government fails to respond to the appointment process and outcome within
the timeframes, as contemplated in subsection (8), or the Minister fails to respond as contemplated in
7
[11] In terms of s54A(7)(a), the municipal council must, within 14 days,
inform the MEC for local government of the appointment process
and outcome, as prescribed. The MEC must satisfy him/herself that
the appointment complies with the Systems Act. Should the MEC
not be satisfied the Act empowers him/her to take appropriate steps
within 14 days to ensure compliance. According to the MEC, he
advised against the appointment of the fourth respondent as
already stated. His advice was ignored.
[12] It is clear from the MEC's affidavit that his office, as can be seen
from the email by Ms Tessa Alexander, dated 04 April 2025,
directed to Ms Thilibe Maimane, Municipal HR Systems, aimed at
establishing whether the department has received a request for the
Minister to waive the said Regulation 41 age requirement. The
email response by Ms Maimane on the same day, 03 April 2025,
was that their office had no such record.
[13] What is perturbing is the inaction by the MEC between 03 April
2025 and 22 May 2025 until the enquiry by the State Attorney on
the MEC's instructions directed to the mayor (third respondent) on
whether the fourth respondent was further appointed after his term
came to an end on 31 March 2025. If not, to furnish information on
the incumbent acting in the position. The office of the mayor
responded on the same day, 22 May 2025 confirming the fourth
subsection (9), the appointment of the municipal manager or acting municipal manager will be deemed
to be in compliance with this Act Provided the municipal council submitted all relevant documents, as
prescribed.
(11) 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 (2) if it is unable to attract suitable
candidates.
(12) A person who has been appointed as acting municipal manager before this section took effect,
must be regarded as having been appointed in accordance with this section for the period of the acting
appointment.
( 13) Any pending legal or disciplinary action in connection with an appointment made before this section
took effect, will not be affected by this section after it took effect.
8
respondent's acting stint. This resulted in the MEC bringing this
application by serving and filing the notice of motion on 29 May
2025. The matter was heard on 06 June 2025. As at the date of
hearing the application, the Minister of COG HST A had not waived
the age requirement.
[14] Clearly and more striking is that more than a period of one month
has lapsed without a full explanation by the applicants of what was
happening during that period. The respondents contend that it was
an unreasonable delay and self-created urgency. I consider this
aspect against the backdrop of the interests of justice and the fact
that there must be certainty and finality in this matter. I therefore
find that there will not be any prejudice, and none has been argued,
if the merits of the matter are traversed, and were.
(15] The Speaker of the Municipality, Mr Gustav Matthew Shannon
Bock, deposed to the answering affidavit. According to him Council
has only extended the fourth respondent's term for three months
which is permissible in law and in view thereof that the period has
not lapsed and that the MEC has acted prematurely by bringing this
application. This submission ignores the fact that it takes time and
effort to identify suitable candidates to fill the vacancy of a
Municipal Manager. It is unquestionable that the position of the
Municipal Manager is the most senior position in the Municipality.
The municipalities are experiencing a challenge of a limited pool
from which to attract suitable candidates, it was contended. The
limitation in this particular municipality is further compounded by
their salary scale and location, compared to bigger municipalities,
which does not attract suitable candidates.
9
[16] In Nkandla Municipality4 the SCA stated that a purposive
interpretation of s 54A reveals a clear objective of acting w ith
expedition in order to avoid an illegality from taking root. Whereas
the Municipality has complied with the requirement to notify the
MEC of the appointment as contemplated bys 54A(7) and the MEC
had expressed his concerns pertaining to the fourth respondent's
appointment, which were ignored, the MEC cannot be faulted for
not having bent the rules when the initial appointment was made.
There is a clear distinction between the three-year fixed term
appointment and the ·three-month acting stint appointment. The
former did not offend against the law adverted to, whereas the latter
is debatable.
[17] The SCA warned in Nkandla Local Municipality5 that what cannot
be disregarded is that s54A gives both the MEC and the Minister a
supervisory role in relation to the appointment of Municipal
Managers. The relief sought by the MEC is to seek a declarator.
[18] What is concerning in the applicant's replying affidavit is that the
MEC has failed to refute the assertions made by the respondents
in the background information at paragraphs 22 to 30 of the
answering affidavit which I have considered in the paragraphs
below. The trite principle enunciated in Plascon Evans Paints
Limited v Van Riebeeck Paints (Ply) Ltc/3 is that an applicant who
seeks final relief in motion proceedings must, in the event of a
dispute of fact, accept the version by the respondent unless the
4 Nkandla Local Municipality and Others v MEC for the Department of Co-Operative Gove rnance and
Traditional Affairs and Mthonjaneni Local Municipality and Others v MEC for the Department of Co
Operative Governance and Traditional Affairs (Case No 485/2019) [2020] ZASCA 153 (26 Novem ber
2020)
5 Ibid para 37
61984 (3) SA 623 (A ) at 634E -635C
10
respondent's allegations do not raise a real, genuine or bona fide
dispute of fact.
[19] Since the fourth respondent assumed his duty on 30 August 2022
neither the MEC nor the Council of the Municipality nor the Minister
have raised complaints pertaining to his competence and
performance. The uncontroverted evidence is that he brought
about the turnaround that resulted in unqualified audits. This
attribute strongly militates against setting aside the fourth
respondent's appointment, at least until the Minister's decision, as
that would otherwise leave a lacuna in the municipal administration.
The ConCourt pronounced in Notyawa v Makana Municipality and
Others7:
'The entire scheme of section 54A is predicated on having suitably qualified
persons appointed as municipal managers. And having those appointments
made within a short span of time because municipal managers are vital to the
proper administrative functioning of municipalities.'
[20] Section 54A(10) stipulates 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 (2) if it is unable to attract suitable candidates.'
In this case, the issue does not pertain to skills, expertise,
competencies and qualifications in as far as the fourth respondent
is concerned, but to his age and the fact that the Minister has been
informed of the need for a waiver as far back as February 2025.
7 [2019] ZACC 43; 2020 (2) BCLR 136 (CC ) para 11
11
[21] In the application to the Minister of COG HST A on 04 February 2025
for a waiver of the retirement age of the fourth respondent, the
Minister was informed that for the past fifteen years the Municipality
received qualified audits, and its administration was not effective.
However, since the appointment of the fourth respondent in 2022
the Municipality received its first unqualified audit for the 2023/24
financial year. The fourth respondent has developed a five-year
strategy for the Integrated Development Plan (IDP) and should his
term· be. allowed to end in .March 2025. the implementation and
monitoring of the IDP would be· adversely affected. Since the
appointment of the fourth respondent many vacant positions have
been. filled with permanent, competent and suitable individuals.
Despite a reminder to the Minister on 19 March 2025, the Minister
has remained tight-lipped. It is for the aforegoing reasons that
declaratory or interdictory relief sought would not be appropriate. It
follows that the application must fail.
[22] On the question of costs. The litigants, namely, the MEC , the
Department of COG HST A , the Municipal Council are all organs of
state. It would not be in the interests of justice to make any adverse
cost order against any ofthe parties. It would be prudent for each
party to carry its own costs.
[23] In the result, the following order is made:
1. The application is dismissed.
2. There is no order as to costs.
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Obo the Applicant:
On instruction of:
Obo 1st & 2nd Respondents:
On instruction of:
Mr C .C Davis
Office of the State Attorney
Adv . A. Nacerodien
Webber Wentzel Attorneys
c/o Elliot Maris Attorneys
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