(1) REPOR TAB LE:NO
IN THE HIGH COURT OF SOUTH AFR I
MPUMALANGA DIVISION , MBOMBE
(2) OF INTER EST TO OTHER JUDGES: NO
(3)
21/08/2025
SIGNAT U RE DATE
J
In the matter betw een:
HUMPHREY SIZWE MAYISELA
PRECIOUS JABULILE HLATSWAYO
TLHAPELA MICHAEL LELAKA
COLIN BRENT JIES
EDWIN SEDUPANE
and
CASE NO: 3430/2022
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIFTH APPLICANT

MEC FOR COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS:
MPUMALANGA
ANALYTICAL FORENSIC INVESTIGATION
SERVICES (PTY) LTD
MINISTER OF COOPERATIVE
GOVERNANCE AND TRAD ITIONAL
AFFAIRS
FOURTH RESPONDENT MINISTER OF FINANCE
EMALAHLENI LOCAL MUNICIPALITY
2
FIRST RESPONDENT
S COND RESPONDENT
THIRD RESPONDENT
F URTH RESPONDENT
FIFTH RESPONDENT
This judgment was handed down electronically by circulation to t e parties and/or parties'
representatives by email. The date and time for hand-down is eemed to be 21 August
2025 at 10:00.
JUDGMENT
Mashile J
Introduction
[1] The Ap plicants seek to review and set aside three decisions of the First
Res pond e nt ("the M EC ") ostensibly taken in terms of se tion 106 of the Local
Gove rnment: Municipal Systems Act 32 of 2000 ("the M SA"). T ese decisions are:

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1.1 To appoint the Second Respondent ("AFIS") to inv stigate and report on
allegations of malpractice, fraud and corruption within the Fifth Respondent ("the
Mun icipality");
1.2 For AFIS to render a report following the investigation ab ve; and
1.3 To adopt the report prepared by AFIS and to table it befor the Provincial Executive
Council.
[2] The First Applicant ("M r Mayisela") has deposed to the unding, supplementary
and replying affidavits on behalf of all the other four Applicant . To that end, the other
Applicants have signed confirmatory affidavits confirming th contents of the three
affidavits that Mr Mayisela has signed. Accordingly, reference to Mr Mayisela ought to be
understood to include all the Applicants. That said, I may refer o the Applicants in their
individual names or collectively as Applicants, depending on t e demands of context.
Mr Mayisela has listed the following as his grounds for the revie of the three decisions
outlined above:
2.1 The MEC's reliance on section 106(1)(b) was ultra vires
2.1.1 The jurisdictional facts contemplated in section 106(1) of he MSA were absent;
2.1.2 The MEC is said to have had no authority to act under s ction 106(1 )(a) and (b).
Mr Mayisela also believes that the MEC 's stated reason for invo ing section 106(1 )(b) of
the MSA is false and/or insufficient to satisfy the requirements t invoke the subsection;
2.1.3 The peremptory obligations under subsection (2) were no complied with, since no
commission was established to conduct the investigation; and
2.1.4 The peremptory obligations envisaged in section 106(3 of the MSA were not
observed because the MEC failed to give a written statement m tivating the exercise of
these powers to the National Council of Provinces ("NCOP ").
2.2 The MEC relied on section 106(1)(b) without considering report prepared by the
Municipality that was submitted to her six months before she de ignated AFIS;
2.3 The decisions of the MEC , the investigation of AFIS an the report that ensued

2.3 The decisions of the MEC , the investigation of AFIS an the report that ensued
infringed procedural fairness. Both the MEG and A FIS failed t afford Mr Mayisela his
rights to audi alteram partem;

4
2.4 The section 106 process was not rationally related to t purpose for which the
power was intended in that the MEC did not invoke these p wers in pursuit of any
legitimate need for provincial intervention or support for the Municipality. Naturally,
associated with the aforesaid is the MEC's bias, malice and irra onality;
2.5 The MEC's decision to invoke section 106 revealed del berate disregard of her
duties arising under section 105 of the MSA, which obliges t e MEC to use existing
reporting mechanisms in her oversight role of the Municipality; a d
2.6 The report, findings and recommendations stemming th refrom are replete with
substantial errors of law.
[3] The review application is opposed by the MEC and AFIS One of the defences is
that Mr Mayisela does not have locus standi to bring this appli ation. The argument is
that the primary objective of the section 106( 1 )(b) report is to a dress issues arising in
the Municipality and not the individuals in its employ. The repo has no direct external
legal effect. To the extent that Mr Mayisela could be adverse y affected, it is merely
coincidental. As such, he lacks locus standi.
[4] Like Mr Mayisela, AFIS too regards the report as a mere reliminary step and that
it is incapable of adversely affecting Mr Mayisela. As such, i regards this action as
premature. Additionally, the decision is not capable of revie because it is not an
administrative action as envisaged in section 1 of the Promotion f Administrative Justice
Act 3 of 2002 ("PAJA").
Factual Matrix
[5] On 18 January 2021, the MEC at the time invoked the po er in section 106(1 )(a)
of the MSA in a letter addressed to Mr Mayisela in his capacit as Municipal Manager
("the section 106(1 )(a) Notice"). Mr Mayisela alleges that he only received the
section 106(1 )(a) Notice on 18 January 2021 , notwithstanding th the date thereon reads
30 November 2020. The section 106(1 )(a) Notice required Mr Mayisela, among other

5
things, to provide a detailed report on diverse subjects. The eve ts extend over a period
of approximately four years and encompass seven different topi s.
[6] The MEC had grouped the allegations in the section 106(1 )(a) notice in three
categories:
6.1 Allegations on financial-related issues, which dealt with:
6.1.1 Payment of travelling allowances to certain senior managers ("the travel allowance
allegations"); and
6.1.2 Adjustment in remuneration packages of Mr Mayisela and certain senior managers
("the salary adjustment allegations").
6.2 Outstanding Municipal Infrastructure Grant (MIG) Projects dealing with the slow
progress and financial implications of two Municipal Infrastructure Grant ("MIG") projects,
namely:
6.2.1 The Empumelelweni Bulk Outfall Sewer Line and Pump Station ("the Pump
Station"); and
6.2.2 The Leeuwpoort Landfill Site ("the Landfill Site").
6.3 Other allegations of malpractice, which comprised:
6.3.1 A llegations of corruption and nepotism in a recruitment process for learners to
attend a basic Traffic Officers Course ("the Traffic Officers Course allegations");
6.3.2 An allegation of management , unilaterally, altering the resolutions taken by the
Local Labour Forum (LLF) when preparing items to be submitted to the Municipal Council
("the LLF allegation"); and
6.3.3 Allegation of management appointing employees in the acting capacity outside the
policy and legislation ("the acting appointments allegation").
[7] On 25 January 2021 and in response to the section 106(1)(a) Notice, the
Municipality delivered a report ("the ELM Report") to the MEC . According to Mr Mayisela,
the ELM Report comprehensively addresses each of the allegations raised in the section
106(1 )(a) Notice. Both the MEC and AFIS deny this, even thoug~ there is no explanation
why they considered the ELM Report inadequate for the intended purpose. The
Municipality received no response to the ELM Report. On 10 August 2021, the

6
Municipality was advised that the MEC had appointed AFIS in terms of section 106(1)(b)
of the MSA to investigate the same allegations and issues that were contained in the
section 106(1 )(a) Notice and the response in the ELM Report.
[8] In her affidavit, which the MEC later filed in her capacity as such, she explains that
she had sent the section 106(1 )(a) Notice to the Municipality on 30 November 2020.
Mr Mayisela acknowledges that while the letter was dated 30 November 2020, the
Municipality only received it on 18 January 2021 from the Legal Services of the
Department of Cooperative Governance and Traditional Affairs ("COGTA "). The MEC
declares further that when she realised that no reply was forthcoming from the
Mun icipality, she invoked the provisions of section 106(1 )(b) of the MSA to investigate the
veracity of the allegations.
[9] She declares further that the Municipality only responded to the notice on
25 January 2021. According to the deponent of the answering affidavit, the MEC
appointed AFIS on 3 August 2021. The MEC therefore admitted to having received the
ELM Report from the Municipality on 25 January 2021. That said, her appointment of
AFIS to investigate those allegations came a little over six months later.
[1 O] Shortly following its introduction to the Municipality on 1 O August 2021, AFIS
requested that it be placed in possession of twenty-seven distinct sets of documents. On
18 August 2021, the Municipality delivered the documents to AFIS. These documents
were a combination of hard and soft copies. AFIS then scheduled interviews with certain
managers perceived to have been key players in the area intended for the investigation.
[11] According to Mr Mayisela:
11.1 The hearings were not held in public or at all;
11.2 He was neither informed of the intended findings against him nor offered
appropriate opportunities to respond thereto;
11.3 The witnesses were neither sworn in nor allowed legal representation; and

7
11.4 The interviews were almost like interrogations, showing absolute disdain for the
rights and principles of procedural fairness. All these are denied by both the MEC and
AFIS.
[12] Upon the finalisation of the interviews, AFIS continued to prepare a report ("the
AFIS Report"). The App licants allege that they became aware of what they thought to be
the unfinished version of the AFIS Report during March 2022, when it began mak ing
rounds on various social media and public platforms. The public access to the report
generated requests for comment from various media outlets to the Municipality. This
version of the AFIS Report later materialised as the final and only report that AFIS
produced after it had been instructed to investigate. The AFIS Report contained major
findings and recommendations against the Applicants.
[13] On 14 March 2022, the attorneys of the Applicants wrote to the M EC and the
Ministers of Finance and COGTA stating that the leaked report contained serious yet
factually and legally incompetent findings and recommendations against the Applicants.
The attorneys further requested the following from the MEC:
13.1 The MEC needed to confirm whether the report was a draft or a final version;
13.2 To the extent that the report may not have been a final version, M r Mayisela
required the MEC to agree to receive and consider his representations before finalising
or adopting the report; and
13.3 Copies of the written statement submitted to the NCOP and the M inisters of
Finance and COGTA, under section 106(3).
[14] Responding on behalf of the MEC on 23 March 2022, COGTA denied any
knowledge of the leaked report. It went on to state that the issues raised in the letter of
the attorneys to the MEC would best be addressed after the report had been finalised and
tabled before the Municipality and Provincial Executive Councils. Needless to state that
the MEC did not furnish the information that the attorneys of the Applicants had requested.

the MEC did not furnish the information that the attorneys of the Applicants had requested.
On 24 March 2022, the attorneys of the Applicants wrote back to the MEC demanding

8
that the MEC undertake not to table the report before receipt and consideration of their
representations, failing which urgent proceedings would ensue.
[15] Having failed to secure the undertaking as aforesaid, the Applicants launched an
urgent application whose objective was to secure what they had demanded earlier. In an
affidavit to which the MEC deposed and commissioned on 11 April 2022, she specifically
declared that the Report had not been finalised. She proceeded to state that she lacked
the authority to consider the Applicants' representations, pointing out that only AFIS could
do so. Swayed by the contents of the affidavit of the MEC that the Report had not been
finalised, on 12 April 2022, the attorneys of the Applicants wrote to the MEC and AFIS
proposing a settlement on the understanding that AFIS could simply receive and consider
their representations before finalising the Report. The MEC rejected this proposal on the
same day.
[16] On 13 April 2022, the attorneys of the Applicants again wrote a follow-up letter to
AFIS to which the latter replied immediately, stating that it would be incompetent for it to
afford them a hearing because they had sought no relief against it. The urgent application
was ultimately struck off the roll for lack of urgency on 19 April 2022. On the same day,
the Applicants sent their representations to the MEC and AFIS. On 20 April 2022, AFIS
confirmed that it had submitted the report to the MEC incorporating its investigations and
findings. The Report went on to state that it was not for AFIS to reconsider the further
representations of the Applicants unless authorised by the MEC. AFIS also confirmed
that it had no power to act further in the matter without express instructions.
[17] On 25 April 2022, the attorneys of the Applicants asked AFIS for the date on which
the final report was given to the MEC. The letter also sought confirmation that the final
Report was similar to the one the Applicants had attached to the founding papers of the

Report was similar to the one the Applicants had attached to the founding papers of the
urgent application. Noting that no answer was forthcoming, on 28 April 2022, the
attorneys of the Applicants wrote to the MEC and A FIS, essentially venting their
frustrations and recapping past events concerning the subversion of their attempt to have

9
their representations heard and considered. The attorneys of the Applicants advised the
MEC that her conduct constituted a transgression of the Executive Ethics Code.
[18] On 13 July 2022, the Applicants became aware through a circulating WhatsApp
message entitled: "Exco Media Statement For Immediate Release All Media Houses" that
the MEC had adopted and tabled the report before the Provincial Executive Council. It is
not seriously disputed that the report was adopted and tabled without the consideration
of the representations of the Applicants. The report in the relevant part reads as follows:
"3. Report on Section 106 investigation of Emalahleni Local Municipality
EXCO considered the outcome of the Section 106 investigation, conducted in Emalahleni
Local Municipality, which commenced in August and was completed in November last
year.
The investigation focused on, among others, allegations on financial matters, which
include payment of fixed travelling allowances and adjustment to the total remuneration
packages to some officials, contrary to the provisions of the Local government regulations,
allegations of corruption and nepotism regarding the recruitment of employees including
the Leaners for the Basic Traffic Officers course.
The report was approved and recommended for implementation by COGTA , and that
feedback of the implementation must be reported to EXCO. " (sic)
[19] According to the Applicants, the MIG project allegations did not originate as
allegations at all. They instead stemmed from the section 106(1 )(a) Notice as a request
for explanations on the causes and financial implications of two infrastructure projects
that had exceeded their respective schedules. AFIS decided that these overruns were
caused by the contractor common to both projects. The investigation into the other
allegations of malpractice failed to find anything tied to the Applicants.
Issues
[20] The issues that stand for determination are whether the decisions that Mr Mayisela

[20] The issues that stand for determination are whether the decisions that Mr Mayisela
seeks to set aside are in fact reviewable in terms of PAJA. If they are, whether

10
Mr Mayisela has made a case for this Court to set them aside. These two issues cannot
be decided independently of the question of whether the MEC's invocation of
section 106(1)(b) of the MSA was ultra vires. In other words, did the MEC genuinely
believe that the Municipality was unable to fulfil a statutory function or that
maladministration, fraud, corruption, or any other serious malpractice was occurring in
the Municipality?
[21] Flowing directly from the aforesaid is the issue of whether Mr Mayisela launched
this application precipitously because it is common cause that the report has not been
processed by the MEC. As such, the MEC has not yet made any decisions grounded or
stemming from the report of AFIS . Additionally, this Court ought to decide on the fairness
of the procedure and the way the investigation was executed. Did AFIS observe the audi
a/teram partem principle, which is enshrined in the Constitution of the Republic? Were
the findings made by AFIS rationally connected to the facts on which it relied? Does the
Report of AFIS contain findings and recommendations that are characterised by material
errors of law?
Legal Framework and Application
[22] AFIS asserts that the action taken by the MEC is not an administrative one as
intended in section 1 of PAJA. As such, it cannot be reviewed and set aside in terms of
the provisions of PAJA. Section 1 of PAJA defines an administrative action as follows:
"'administrative action' means any decision taken, or any failure to take a decision, by -
(a) an organ of state, when -
(i) exercising a power in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation;
or
(b) a natural or juristic person, other than an organ of state, when exercising a public
power or performing a public function in terms of an empowering provision,
which adversely affects the rights of any person and which has a direct, external legal
effect, but does not include -

11
(aa) the executive powe rs or functions of the National Executive, including the powers
or functions referred to in sections 79(1) and (4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and
(k), 85(2)(b), (c), (d) and (e), 91 (2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the
Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the powers
or functions referred to in sections 121(1) and (2), 125(2)(d), (e) and (f), 126, 127(2),
132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a mun icipal
council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the
Constitution or of a Special Tribunal established under section 2 of the Special
Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial
functions of a traditional leader under customary law or any other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination, selection, or
appointment of a judicial official or any other person, by the Judicial Service Commission
in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of any provision of the
Promotion of Access to Information Act, 2000; or
(i) any decision taken, or failure to take a decision, in terms of section 4(1)."
[23] T he MEC has relied on section 106(1)(a) of the MSA to issue a notice calling upon
M r Mayisela to furnish information envisaged in the section. The section is headed : "Non­
performance and maladmin istration" and lays down that:
"If an MEC has reason to believe that a municipality in the province cannot or does not
fulfil a statutory obligation binding on that municipality or that maladm inistration, fraud,
corruption or any other serious malpractice has occurred or is occurring in a municipality

corruption or any other serious malpractice has occurred or is occurring in a municipality
in the province, the MEC must-
(a) by written notice to the municipality, request the municipal council or municipal
manager to provide the MEC with information required in the notice; or
(b) if the MEC considers it necessary, designate a person or persons to investigate
the matter.

12
(1A) The MEC must table a report detailing the outcome of the investigation in the
relevant provincial legislature within 90 days from the date on which the MEC designated
a person or persons to investigate the matter and must simultaneously send a copy of
such report to the Minister, the Minister of Finance and the National Counc il of Provinces.
(2) In the absence of applicable provincial legislation, the provisions of sections 2, 3,
4, 5 and 6 of the Commissions Act, 1947 (Act No . 8 of 1947), and the regulations made in
terms of that Act apply, with the necessary changes as the context may require, to an
investigation in terms of subsection (1 )(b).
(3)(a) An MEC issuing a notice in terms of subsection (1)(a) or designating a person to
conduct an investigation in terms of subsection (1)(b), must within 14 days submit a written
statement to the National Council of Provinces motivating the action.
(b) A copy of the statement contemplated in paragraph (a) must simultaneously be
forwarded to the Minister and to the Minister of Finance.
(4)(a) The Minister may request the MEC to investigate ma ladministration, fraud,
corruption or any other serious malpractice which, in the opinion of the Minister, has
occurred or is occurring in a municipality in the province.
(b) The MEC must table a report detailing the outcome of the investigation in the
relevant provincial legislature within 90 days from the date on wh ich the Minister requested
the investigation and must simultaneously send a copy of such report to the M inister, the
Minister of Finance and the National Council of Provinces.
(S)(a) Where an MEC fails to investigate within 90 days, notwithstanding a request from
the Minister in terms of subsection (4)(a), the M inister may in terms of this section conduct
such investigation.
(b) The M inister must send a report detailing the outcome of the investigation referred
to in paragraph (a) to the President.

to in paragraph (a) to the President.
(6) If an investigation warrants such a step, the municipality must institute disciplinary
proceedings against the person or persons implicated in the report in accordance with the
systems and procedures referred to in section 67, read with Schedule 2, and report the
outcome to the MEC or the M inister, as the case may be, within 14 days of finalisation."
[24) Section 105 of the MSA deals with provincial mon itoring of municipalities and
provides as follows:

13
"(1) The MEC for local government in a province must establish mechanisms
processes and procedures in terms of section 155(6) of the Constitution to-
{a) mon itor municipalities in the province in managing their own affairs, exercising their
powers and performing their functions;
(b) monitor the development of local government capacity in the province; and
(c) assess the support needed by municipalities to strengthen their capacity to
manage their own affairs, exercise their powers and perform their functions.
(2) The MEC for local government in a province may by notice in the Provincial
Gazette require municipalities of any category or type specified in the notice or of any
other kind described in the notice, to submit to a specified provincial organ of state such
information as may be required in the notice, either at regular intervals or within a period
as may be specified.
(3) When exercising their powers in terms of subsection (1) MECs for local
government-
(a) must rely as far as is possible on annual reports in terms of section 46 and
information submitted by municipalities in terms of subsection (2); and
(b) may make reasonable requests to municipalities for additional information after
considering-
(i) the administrative burden on mun icipalities to furnish the information;
(ii) the cost involved; and
(c) existing performance mon itoring mechanisms, systems and processes in the
municipality."
W ere The D ecisions Taken Admin istrative?
[25] Cou nsel for AF IS asserted that the decision taken by the MEC was not
adm inistrative in terms of section 1 of PAJA and, as such, cannot be reviewed and set
aside. The argument traces its origins to the Supreme Court of Appea l judgment of City
of Cape Town v Hendricks and Another,1 where the Court states:
"[1 OJ ... the City did not take a decision that the respondents are obliged to remove and
rebuild their business structures daily on their trading sites, and that the notices cannot

rebuild their business structures daily on their trading sites, and that the notices cannot
1 City of Cape Town v Hendricks and Another2012 (6) SA 492 (SCA ) paras 10 and 11.

14
reasonably be construed to mean that. The notices simply informed the respondents that
they must comply with the law (ie remove the structures wh ich contravene the bylaws and
the Ordinance) and informed them of the consequences should they fail to do so. This was
not administrative action as defined in PAJA.
[11) As contended by the City, by issuing and delivering the notices to the respondents,
the City's conduct did not have direct and immediate consequences for the respondents;
it was a preliminary step by the City (a notification or warning that it would enforce the
bylaws); and did not adversely affect the respondents' rights or have any direct or external
legal effect. The City was doing no more than it was entitled to do in terms of the section
of the relevant by-law. The provisions of PAJA therefore did not apply, and all the orders
were wrongly granted by the court a quo."
[26] It is evident from the judgment of the Supreme Court of Appeal that if the action
taken constitutes a process to the ultimate decision, does not have immediate direct
consequences and does not adversely affect the subject, then it cannot amou nt to an
administrative action. Th is is fathomable in the context of the City of Cape Town case.
The notices delivered to the Respondents in that matter were a warning and had no
immediate impact on them. I do not agree that the situation in the instant case is similar.
That said, there would be no difference between the two situations if the decisions
consisted of the appointment of AFIS alone. However, here AFIS has investigated, made
adversarial findings and recommendations, and the Report is out in public. The AFIS
Report is critical of the Applicants, and it must be immaterial that no disciplinary
proceedings have been initiated in terms of section 67(1 )(h) of the MSA. The App licants
have a legal right to protect their image in public. I am satisfied that the decisions to
investigate and to report constitute administrative actions as intended in PAJA.

investigate and to report constitute administrative actions as intended in PAJA.
[27] Both the MEC and AFIS have advanced the argument that the devastating
damage , if any, of the Applicants in this application is incidental and not intended - the
investigation is directed at the Municipality. Well, that may be so, but the point is that the
findings and recommendations are condemnatory and have left their public image
seriously impaired. The lesson here is that where a structure such as a Municipality
requires investigation, such investigation must be executed with due consideration of the

15
rights of the functionaries who may be adversely affected. Moreover, the conduct of the
investigation must adhere to the applicable procedures and legislation. The findings and
recommendations of AFIS, when ultimately implemented, will not be mitigatory on how
the public perceives them. If anything, the opposite pertains because, to date, the public
sees them as corrupt in circumstances where procedures were flouted.
[28] The second argument of AFIS is that it is not an Organ of State because the source
of its authority is the skill level agreement concluded with COGTA , represented by the
MEC. This argument loses sight of the fact that AFIS has been contracted to perform
duties, which ordinarily COGTA would execute on its own behalf. Thus, AFIS should be
understood as a hand that COGTA requires to realise its objectives entrusted to it by the
provincial government. In the result, the argument stands to be rejected as bereft of merit.
[29] The MEC has contended that a careful perusal of the notice of motion reveals that
the case of the App licants is aimed at the decision to designate AF IS to investigate the
Municipality and not to invoke section 106(1 )(b) of the MSA. A closer scrutiny, however,
lays bare that the case is argued as if the impugned decision is one to invoke section
106( 1 )(b ). The M EC concludes that the Applicants have laid no foundation for the review
and setting aside of AFIS as the investigator. For the aforesaid reason, the application
should fail. A proper look at the prayers indicates that the designation of AFIS together
with the MEC's invocation of section 106(1)(b) of the MSA is impugned.
Reliance on Section 106(1)(b) is Ultra Vires
[30] The case of the Applicants, as I understand it, is that where the MEC "has reason
to believe that a Municipality in the province cannot or does not fulfil a statutory obligation
binding on that Municipality or that ma ladministration, fraud, corruption or any other

binding on that Municipality or that ma ladministration, fraud, corruption or any other
serious malpractice has occurred or is occurring in a Municipality in the province," the
MEC is firstly, obliged to issue a section 106(1 )(a) Notice calling upon the Municipal
Council or Manager to provide him or her with information recorded in the notice. Where
he is satisfied that the information that he has solicited validates an investigation, he or

16
she must appoint a person, either juristic or natural, to investigate. The MEC , so goes the
argument, cannot appoint a person to investigate unless the information provided leads
him to justly believe that there is maladministration, fraud or corruption in the Municipality.
I agree with the MEC that this approach is incorrect for reasons that will unfold below.
[31] If the information elicited intimates maladministration, fraud or corruption, the MEC
must appoint a person or persons to investigate. Save to state that the MEC has a
discretion whether to proceed in terms of section 106(1 )(a) or (b) from the onset, the
criticism of the MEC that it does not appear from the facts of this matter that he honestly
believed that there was maladministration, fraud or corruption in the Municipality, which
warranted the appointment of AFIS is well-founded. The Applicants consider it objectively
evident that the ELM Report contains all the information that the MEC had requested in
terms of section 106(1 )(a), thus lending credence that its disregard by AFIS was
deliberate and designed to disseminate a narrative of maladministration, fraud and
corruption in the Municipality. As such, the Applicants conclude that the MEC was stirred
by bias or mala fides to commission the investigation.
[32] It is correct that there are prerequisites associated with the invocation of
section 106(1 )(a) or (b) of the MSA. The MEC must have reason to believe that there is
maladministration, fraud or corruption. If, from the answers provided in terms of
section 106(1 )(a), as is the case here, it is necessary to investigate further, the MEC must
designate a person or persons to investigate. The MEC also has a discretion whether to
use section 106(1 )(a) or (b) of the MSA , and that is because section 106(1 )(a) and (b) are
separated by the word "or". This is fortified by section 106(3) of the MSA , which employs
the word "or" to convey the point. The question that arises is whether there was a reason

the word "or" to convey the point. The question that arises is whether there was a reason
to believe as stated in section 106(1 )(a) or (b) of the MSA. While I agree that the MEC
was at liberty to use either sub-paragraph of the section, she seems not to have been
persuaded by any honest belief, which is a requirement for the use of either section.
[33] The above conclusion is inevitable because when she appointed AFIS on 3 August
2021, she had the ELM Report, yet she made conflicting statements - she appointed

17
AFIS because she did not have the ELM Report, while at the same time conceding that
she received the report on 25 January 2021. That is simply nonsensical. She had asked
for the Report from the Applicants, yet she chose to predicate her appointment of AFIS
on information furnished by one party to the controversy. So, the jurisdictional factor of
reason to believe was not present. What then was the motive for designating AFIS if not
ma/a tides or bias? The MEC has also failed to submit a written statement contemplated
in section 106(3) of the MSA to the NOCP , motivating the exercise of the powers she had
invoked. That too constitutes an oversight of one of the jurisdictional factors.
Maia Fides and Bias
[34] A consideration of the facts on what transpired following the MEC 's invocation of
section 106(1 )(b) makes it hard to differ from the views of the Applicants set out above,
especially because the Municipality did not receive a response to the ELM Report. It is
common cause that Ms Shiba was the MEC at the time when the ELM Report was
prepared and submitted for consideration. On 1 O August 2021, and having not responded
to the ELM Report, the MEC introduced AFIS as an entity that she had appointed in terms
of section 106(1 )(b) of the MSA at a special sitting of the Municipal Council. This was
highly irregular because she had not only failed to notify the Municipality that the
information submitted had led her to genuinely believe that there was maladministration
or fraud or corruption, but she also did not provide to the NCOP the reason why she
considered it necessary to invoke the powers in section 106 of the MSA.
[35] Section 106(1)(a) and (b) of the MSA specifically enjoins the MEC to call upon a
Municipality to furnish a report or, when considered necessary, to appoint a person to
investigate where he or she has reason to believe that a Municipality in the province
cannot or does not fulfil a statutory obligation binding on that Municipality or that

cannot or does not fulfil a statutory obligation binding on that Municipality or that
maladministration, fraud, corruption or any other serious malpractice has occurred or is
occurring in a Municipality in the province. The first set of allegations, as per the section
106(1 )(a) Notice, relates to travelling allowances and salary adjustments.

18
[36] There is no hint of fraud, maladministration or corruption that would have triggered
the invocation of the section. In any event, the Applicants had provided sufficient
explanation in the ELM Report, which AFIS and the MEC disregarded completely. The
travelling allowance allegations happened in a specific context. Insofar as those
allegations were concerned, the AFIS Report recommended that the Municipality lay
criminal charges and commence civil claims against Messrs T. Van Vuuren and Vilane
and Ms Hlatshwayo for the recovery of the additional travel claims paid to them between
2014 and 2017 over and above their fixed 3 000 km monthly travel allowance. It is not
disputed that certain employment contracts issued by the Municipality to specific senior
officials made provision for a fixed travel allowance to defray the costs incurred by such
officials in the use of their private vehicles to carry out official duties.
[37] Mr Theo Janse Van Vuuren, the erstwhile Municipality Manager, placed at the
Municipality by the MEC as an administrator under a section 139 intervention of the
Constitution, increased those employment contracts that offered a travel allowance of
2 000 to 3 000 kilometres per month on 21 July 2016. The increase took effect on 1 July
2016. According to Mr Mayisela, the payment of the fixed travel allowance by the
Municipality was based on the provisions of the Local Government: Regulations on
Appointment and Conditions of Employment of Senior Managers published in the Gazette
Notice 21 of Government Gazette 37245. Regulation 39(2) provides that in the event that
a senior manager utilises his or her private vehicle to carry out official duties, he or she
must be compensated for the kilometres travelled in respect of the official trip in
accordance with the relevant policy of the Municipality.
[38] The Municipality's travel policy, adopted under Council Resolution A.090/17, also
made provision for senior managers to be compensated for claims of motor vehicle

made provision for senior managers to be compensated for claims of motor vehicle
allowances for actual fixed kilometres travelled per month. In 2019, internal discussions
within the Municipality ensued regarding the validity and appropriateness of the travel
allowance. These discussions culminated in a Council Resolution A.12/19 decision to
cancel the travel allowance and to seek the repayment of allowances paid in February
2019 and March 2019. The Council Resolution A.12/19 prescribed that the Municipality's

19
travel allowance policy would be reviewed and submitted to the Council for approval.
However, section 18.1 of the new policy provided that the policy would remain in operation
during the review process.
[39] The decision of the Municipality to cancel the travel allowance became the subject
of dispute before the Labour Court under Case No: J1055/19. On 26 April 2019, the
Labour Court granted a rule nisi calling upon the Municipality to show cause why it should
not be finally interdicted and restrained from cancelling the fixed travel allowance and
from reclaiming the fixed travel allowance paid for February 2019 and March 2019. The
dispute concluded on 30 May 2019 when the Labour Court confirmed the rule nisi with a
cost order against the Municipality.
[40] Given the aforesaid, it is difficult to conclude that the section 106 process was
rationally invoked to serve the purpose contemplated. In any event, section 105 of the
MSA , on which she did not place any reliance, would have accomplished her objective
without muddying with section 106 of the MSA.
[41] The allegations of the salary adjustments were that in January and March 2018,
the former Executive Mayor raised the salaries of Mr Mayisela and other senior managers
when he lacked the authority to do so. It is evident that the deduction that the Executive
Mayor lacked the power to adjust the salaries was oblivious of the delegations of authority
then in operation and a notice published by the Minister of COGTA in October 2017. The
former authorised the Executive Mayor, in consultation with the Municipal Manager , to
adjust the salaries of senior managers in accordance with the scales determined by the
Minister of COGTA from time to time. The October 2017 notice adjusted the salary scales
across the board for senior manage rs. These decisions, as delegated authority, did not
require the Municipality Council's approval albeit the delegations of authority were noted

require the Municipality Council's approval albeit the delegations of authority were noted
by the Council on 9 January 2018. In this regard, it is instructive to mention section 61 of
the MSA , which plainly demonstrates that unless the Executive Mayor is specifically
required by the delegating authority, he retains discretion. The section provides that:

20
"A political structure, political office bearer, councillor or staff member of a municipality to
whom a delegating authority has delegated or sub-delegated a power to dispose of
matters falling within the area of responsibility of that political structure, political office
bearer, councillor or staff member may , or must if instructed to do so by the relevant
delegating authority, refer a matter before the political structure, political office bearer,
councillor or staff member to the relevant delegating authority for a decision."
[42] The recommendations of AFIS, which emanate from the conclusion of a lack of
authority, are understandable as the Municipal Council was not apprised, and no approval
was sought for this adjustment. As such, there was no authorisation. A detailed answer
to the lack of authority allegations is that they were made without reference to two sources
from which the Executive Mayor derived his authority. Firstly, the delegations of authority
which were then in place empowered the Executive Mayor, in consultation with the
Municipal Manager, to adjust the salaries of senior managers in accordance with the
scales determined by the Minister of COGTA from time to time. Secondly, the notice
published by the Minister of COGTA in October 2017 adjusted the salary scales across
the board for senior managers. These decisions, as delegated authority, did not require
the Municipality Council's approval, but the former was noted by the Council on 9 January
2018. Everything said in this regard, the recommendations of AFIS were characterised
by errors of law.
[43] The AFIS Report found that the Council was not apprised, and no approval was
sought for this adjustment, which by its nature became unauthorised. The AFIS Report
continued to state that transgression of the criteria for movement across "Total
Remuneration Packages" along "Minimum", "Midpoint" and "Maximum " packages, where
maximum is indicated to be applicable to persons who have more than 10 years of

maximum is indicated to be applicable to persons who have more than 10 years of
experience as provided for in the regulations and is also applicable to persons who have
demonstrated a "superior competency" as measured against the competency framework,
was not met by the incumbents.
[44] The AFIS Report proceeds to recommend that the 1 March 2018 decision be
tabled before the Council for retrospective noting and that if the Council does not

21
"approve" the decision, the differences be recovered from the relevant officials. Lastly,
the AFIS Report recommends further review of the appointment of Mr Lelaka at a
maximum remuneration package, which was not consistent with Ms Mo nyapao at the
midpoint. According to Mr Mayisela the Mun icipal Council did not require the Executive
Mayor to report the decisions to it, hence he did not.
[45] Mr Mayisela's memorandum of 1 March 2018, which appears to have formed part
of the documents upon which AFIS relied for its report, sets out the respective relevant
experiences of Ms Hlatshwayo, Messrs Vilane and Mayisela as 12, 22 and 15 years
respectively. The memorandum also sets out their applicable qualifications. There is no
elaboration on the finding that the officials lack the necessary competencies. Insofar as
lack of consistency between the placement of Mr Lelaka and Ms Monyepao within the
system, the three-tier system sets an overall framework and limits for remuneration and
allows the individual attributes, experience and competence of senior managers to be
considered in determining where they should fall within that framework.
[46] All in all, the inferences AFIS drew should never have been because there exists
a proper account. On these financial allegations, therefore, there is no coherent, lucid and
valid explanation why the MEC proceeded to invoke section 106(1)(b) of the MSA when
the answers that she required were in the ELM Report. I am at a complete loss as to why
the MEC argues that the information provided by the Applicants in this regard was
insufficient. If so, why did both AFIS and the MEC not insist on clarity from the
Municipality?
[47] AFIS also had to investigate the contractor payment process concerning the
Empume lelwe ni Sewerage Pump Station. The difficulty that it confronted here, it alleges,
was that the Applicants would not supply the policy governing the payment process.

was that the Applicants would not supply the policy governing the payment process.
Instead of recording this problem in its report, AFIS elected to rely on other officials and/or
employees of the Municipality to understand what policy governed the contractor payment
process.

22
[48] It would have been plain to AFIS that the ELM Report and the representations of
the Applicants outlining the steps and procedures followed in the payment processes
were relevant had it taken the trouble of checking and perusing the documents in its
possession. Notwithstanding that the information presented to it by the various parties
was oral and therefore susceptible to inconsistency, AFIS concluded that its assessment
of the information was that the payment packs lacked the supporting documents required.
[49] The inform ation ultimately led to misguided conclusions. The information
contained in the aforesaid documents was exceedingly relevant insofar as it addressed
the delays in the project, causes thereof and steps taken in response. It comes as no
surprise that what AFIS found on expenditure and classified as unauthorised, fruitless
and wasteful does not bear any relation to the payment packs.
[50] The conclusions that Mr Sedupane , who was responsible for overseeing that the
service was rendered according to the contract between the Municipality and the
successful bidder, had contravened the policy guidelines of the Municipality and that he
intentionally misled the Municipality by approving the invoices that the successful bidder
had submitted were wrong despite the extraction of an alleged confession from him. A
similar approach was adopted in respect of Ms H latshwayo, who was found to have been
grossly negligent by not ensuring adherence to her own requirements.
[51] This is extremely disquieting because the Applicants have made the Contract
Management Policy and the Municipality available to AFIS. The documents set out how
the process should be managed. For AFIS to have referred to sections 8 and 11 in its
report dealing with the general oversight responsibilities of the contract administrator,
when the applicable sections in the contract management policy and procedure are
sections 15 and 17, is mindboggling. These sections are concerned with regulation,

sections 15 and 17, is mindboggling. These sections are concerned with regulation,
monitoring, performance measures and standards and processing and approval of
invoices, respectively. Why AFIS failed to refer to these documents when the App licants
supplied them is baffling and probably feeds into the narrative of a pre-conceived
outcome.

23
[52] Turning to the Landfill Site, and relying on the policy it had gathered from the
various emp loyees of the Municipality, AFIS found that Mr Mayisela had defied the
payme nt processes in several ways, outlined below:
52.1 ELM Contractor Payment Coversheet: Not signed by consulting engineer to certify
that the project has been inspected and the work has been executed satisfactorily and
according to the specifications and that the quantities and prices shown are correct;
52.2 Contractor Invoice: No description of work/services rendered;
52.3 Site visitation and inspection reports: None ; and
52.4 Statement of Account, displaying previous payments to the contractor.
[53] The issues pointed out by AFIS cannot have any financial impact or amount to the
contravention of the Contract Management Policy because:
53.1 All the relevant documents were prepared by or in consultation with the engineer;
53.2 The invoice of the contractor does not contain a description of the work done. The
bill of quantities prepared in respect of each invoice and payment pack exhaustively set
out the work done; and
53.3 There is no requirement for a site visit in respect of every invoice in those
circumstances where the contract administrator's chosen method of compliance with
section 17 of the Contract Management Policy constitutes the appointment of a consulting
engineer to verify work done on an ongoing basis.
[54] Equally staggering is the outcome AFIS reached on the bill of quantities for the
Pump Station. The suggestion in its report is that irregular payments were made by the
Municipality in conflict with the bill of quantities submitted by the contractor in its tender
bid. This, according to AFIS, eventually translated into an overpayment of R623 503.00
to the contractor. In short, the overpayment occurred because AF IS claimed that it could
not find a deviation memorandum authorising the increase in quantities as stipulated in
the contract.

24
[55] It wou ld have taken AFIS no more than reading Annexures "FA27" and "FA28 ", the
variation memorandum and the letters to and from the contractor respectively, attached
to the founding affidavit, to realise that during the latter half of 2019, the Municipality in
fact was allowed to deviate by an amount of R813 154.55. It should perturb any person
that AFIS, despite having had these documents in their possession, say that they reached
most of their findings and recommendations using the information at their disposal. If that
is correct, why were these documents not utilised? In fact, this answer by AFIS
reverberates throughout their answering affidavit. This Court rejects it as dishonest.
[56] The findings of AFIS on the paymen t processes relating to the Landfill Site are
that:
56.1 No tender score card supporting the contractor's appointment was presented to it;
56.2 Mr Brentjies appointed the contractor without a scorecard being part of the bid
submission documents;
56.3 In the absence of the scoring sheet, it could not obtain sufficient appropriate
evidence to prove that the contract had been awarded in accordance with the policy and
legislative requirements and that the procurement process followed in this instance was
fair, equitable, transparent and competitive; and
56.4 Mr Brentjies, in the absence of a score card, was in contravention of paragraphs 6
and 7 of the Municipality Supply Chain Management Policy.
[57] These findings aforesaid also lay bare the deliberate incompetence of AF IS .
Following the findings above, AFIS found that the Bid Evaluation Committee ("the BEC")
recommended the appointment of the successful bidder without completing the
mandatory scorecards. As a result, it proposed to the MEC that disciplinary action be
instituted against Mr Brentjies, the Deputy Director: Technical Services whom it also
referred to as the Chairperson of the Bid Adjudication Committee ("the BAC "), for
contravening paragraphs 6 and 7 of the Supply Chain Management Policy.

contravening paragraphs 6 and 7 of the Supply Chain Management Policy.
[58] It turned out that Mr Brentjies was never the chairperson of the BAC but merely
chaired the BEC in relation to this project. Furthermore, the Report attached to the

25
founding affidavit marked "FA29" shows that the BEC completed scorecards, which it
submitted to the BAC thereafter. The Report demonstrates and confirms the scores
allocated to each entity. In his affidavit, Mr Brentjies declares having advised AFIS when
it interviewed him that he completed the scorecards. AFIS did not consider this, nor did it
verify this information with any member of the BEC. Additionally, although Mr Brentjies
chaired the BEC, he did not appoint a successful bidder. The BEC merely recommended
the appointment of the bidder to the BAC, which in turn proposed that the bidder be
appointed.
[59] I am mindful of Mr Mayisela's claims that he delivered Annexure "FA29", being the
original scorecards, to AFIS under cover of a letter dated 18 August 2021, Annexure
"FA4". I have examined Annexure "FA4" to the founding affidavit and discovered that the
original scorecards do not feature as one of those delivered. I note, however, that AFIS
did not specifically deny receipt of the scorecards. As a result, I cannot be sceptical that
AFIS did receive the scorecards eventually. That said, I find the following paragraphs of
the answering affidavit of AFIS confounding, especially against the context of the delivery
of pertinent documents on 18 August 2021 and the AFIS Report having been compiled
and submitted to the MEC the following year in April:
"38. During the interviews it became apparent that certain documents that were
relevant to the investigation had not yet been provided to us, and as a result we requested
the relevant interviewees to provide us with those documents. When those documents
were not immediately forthcoming we followed up with the relevant interviewee.
39. I admit that we did not continuously follow up to get these documents, but we did
follow up on numerous occasions when we realised the relevant interviewee was not going
to assist us we proceeded with the investigation based on the documents and information

to assist us we proceeded with the investigation based on the documents and information
we had been provided. AFIS was not mandated or expected to follow up with employees
of the Madalena Local Municipality endlessly. These individuals were aware of the reasons
for our requests for documents and we had no obligation to repeatedly make these
requests if they were being ignored."

26
[60] There is no argument that AFIS held no mandate to interminably beg the
interviewees for information. AFIS's claim as aforesaid is made in circumstances where
there is no evidence that they apprised the MEC that the Applicants were hindering them
by not heeding their request for information. I do not necessarily believe the deponent to
the answering affidavit of AFIS because the interviews of some of the Applicants occurred
after 18 August 2021, meaning that AFIS had all the documents mentioned in Annexure
"FA4", the letter of 18 August 2021, when it prepared the Report. The question that arises
is why the information in those documents was not used, especially given their pertinence
to the subjects of the investigation? Again, it is inevitable to conclude that AFIS was
working on a pre-conceived outcome. Once the documents failed to validate the intended
outcome, AFIS regarded them as immaterial.
[61] Insofar as the payment process and the bills of quantities reconciliation of the
Landfill Site are concerned, AFIS found that of the six boreholes invoiced and settled,
only three were present, while the others were non-existent. Additionally, it could not
locate the submersible pump on the site. When Mr Sedupane accompanied AFIS to the
site for inspection in loco, he advised that the other boreholes could not be traced because
of disrepair and defacement. That said, their construction had been verified by the
consulting engineer. Strangely, AFIS showed no interest in tracing the whereabouts of
the boreholes from the consulting engineer. Again, the suspicion that AFIS had its eyes
on a certain outcome is unavoidable.
[62] On the reconciliation of amounts in the bills of quantity at the tender stage with
those contained in the bill attached to an unnamed invoice, AFIS held that the total
overpayment to the contractor amounted to R730 875.00. It also reported that it did not
find any deviation memorandum approving the increase in quantities as stipulated in the

find any deviation memorandum approving the increase in quantities as stipulated in the
SLA. The conclusion aforesaid disregards the variation memorandum of 13 August 2019
attached to the founding affidavit marked Annexure "FA33". It is evident from the
document that a deviation was sought and approved for 18% of the contract price or
R906 503.62. Had AFIS used this piece of evidence, it could not have found and
recommended as it did.

27
[63] From inception, the MEC and AFIS were duplicitous. The MEC deposed to an
affidavit declaring that she had sent the section 106(1)(a) Notice to the Municipality on
30 November 2020. The MEC 's further evidence is that when she noticed that no answer
was forthcoming from the Municipality, she invoked the provisions of section 106(1 )(b) of
the MSA , presumably to assess the dependability of the allegations in the section
106(1 )(a) Notice. It is common cause that the Municipality reverted to the MEC with the
ELM Report on 25 January 2021 and that she appointed AFIS on 3 August 2021.
[64] Accepting the above to be the case, the alleged lack of response from the
Municipality could not have been the trigger for the invocation of section 106(1 )(b). This
is simply an unadulterated lie because by the time of the appointment, she had the ELM
Report, which is what she required. So , the appointment with AFIS was preordained, it
being neither here nor there that the Municipality failed to respond promptly. This simmers
down to the MEC perjuring herself. In the circumstances, I must accept that the decision
to appoint AFIS was mala fides and biased against the Applicants.
[65] Following its introduction to the Municipality on 1 0 August 2021, AFIS requested
that it be placed in possession of twenty-seven distinct sets of documents. The Applicants
delivered these documents to AFIS on 18 August 2021. The documents comprised hard
and soft copies. According to the Applicants, perusal of the report shows that AFIS not
only disregarded the ELM Report but also the documents delivered on 18 August 2021
when making certain of its conclusions and recomme ndations. While AFIS admits that it
was placed in possession of some of the documents, it maintains that where it did not
have the information, it had to make use of what was available to reach certain
conclusions and recommendations.
[66] N eedless to state that if that was the attitude of AFIS, the probability that in some

[66] N eedless to state that if that was the attitude of AFIS, the probability that in some
instances it wou ld have made incorrect assumptions, conclusions and recommendat ions
cannot be ruled out. A proper approach to the lack of information, either because the
people who are expected to supply it refuse to heed the request or because it never

28
existed, is to record the difficulties experienced in the report and state clearly why it was
not possible to reach a conclusion on those matters. It cannot be acceptable to contrive
evidence to satisfy the hypothesis of the principal.
(67] It is also concerning that AFIS was reticent when confronted about the Report that
had leaked to social me dia and public platforms around March 2022. This Report was
initially thought of as an interim report, but it turned out that it was, in fact, the final version
and one w ith all the damning findings and recommendations against the Applicants. This
occurred in circumstances whe re Mr Mayisela had on several occasions asked to make
representations before AFIS compiled its report on the investigation. This approach of
AFIS, of course, smacks of blatant disregard for the audi alteram partem rule that is
enshrined in the Constitution of the Republic.
(68] The above conclusion is inexorable if one considers that on 14 March 2022, the
Applicants' attorneys wrote to the MEC and the Ministers of COGTA and Finance
expressing their dissatisfaction and misgivings contained in the AFIS Report. Still thinking
of the report as interim, the attorneys of the Applicants requested the MEC to confirm
whether the report was provisional or final. If interim, the MEC was to undertake to receive
and consider their representations prior to finalisation and adoption. Lastly, the letter
asked the MEC to furnish proof of compliance w ith section 106(3) of the MSA by supplying
copies of the statements submitted to the NCOP , Minister of Finance and COG TA.
(69] On 23 March 2022, instead of addressing the questions posed by the Applicants,
COGTA, on behalf of the MEC , denied knowledge of the leaked report and proceeded to
propose that it would be convenient to address the matters in the letter after the
finalisation and consideration by the Municipality and Provincial Executive Councils. On

finalisation and consideration by the Municipality and Provincial Executive Councils. On
24 March 2022, the attorneys addressed yet another letter threatening to launch an urgent
application interdicting the MEC to table the AFIS Report prior to receiving and
considering the representations of the Applicants.

29
[70] When the MEC declined to make the presentation, the Applicants made good their
threat by launching the urgent application. In her affidavit, the MEC specifically stated that
the AFIS Report had not been finalised yet. Additionally, she said that she lacked the
authority to consider the representations of the Applicants - only AFIS was authorised to
do so, she added. The MEC would not even consider a settlement proposition that AFIS
could simply receive the representations and incorporate them later when finalising the
report. Similarly, AF IS declined to entertain the Applicants on the grounds that the urgent
proceedings were not aimed at it. The urgent application was ultimately struck off the roll
for lack of urgency.
[71] AF IS confirmed to the Applicants on 20 April 2022 that it had submitted its report
to the MEC incorporating its findings and recommendations stemming from the
investigations. AFIS advised the Applicants that it would not consider their
representations unless it had authority from the MEC. AFIS further stated that it did not
have any further express instructions to act in the matter post the submission of the report
to the MEC . Both the MEC and AFIS were openly disingenuous, tossing the Applicants
between them.
[72] The point is that, of course, the MEC , as the party that gave instructions to AFIS,
could alter them at any point of the investigation. Her answer that the matters would be
best addressed after tabling the report before the Provincial Council was nonsensical.
How could the representations be submitted after findings and recommendations have
been made? The MEC's answer does not seem to appreciate that the purpose of the
representations was to expose AFIS to another version of the matter to ascertain that it
assessed the case with a sufficient factual matrix to ultimately ensure a balanced product.
[73] It is hard to shake off the feeling that the denial by AFIS and the MEC that the

[73] It is hard to shake off the feeling that the denial by AFIS and the MEC that the
report that was making rounds in the media was final was a strategy to stop the Applicants
from taking measures to protect themselves against the devastating outcome of the
Report. AFIS would neither, despite having been directly confronted, inform the
App licants of the date on which the final report was presented to the MEC , nor wou ld it

30
confirm that the report was the same as the one that the Applicants had used for the
urgent application. The Applicants only conclusively established that the Report was final
through the media on 13 July 2022 and that the findings and recommendations stood.
The report had, at that stage, been approved and recommended for implementation by
COGTA.
[74] For the reasons above, it is conceivable and reasonable to infer that AFIS carried
a mandate to ensure that the Applicants and whoever else was targeted by these
investigations would be tarnished by the findings of the Report and be rendered
unsuitable to continue employment in their current positions. The MEC may well have
been inspired by the prevalence of corruption in the Municipality, but if a decision to
investigate was necessary, the process ought to succumb to legal requirements and live
up to scrutiny. If the MEC was genuine, she would have made certain to receive and
consider the representations of the Applicants, would not have perjured herself, AFIS
would have considered the contents of the ELM Report, which pertinently dealt with the
matters raised in the Section 106(1 )(a) Notice and she would not have blatantly lied that
she would consider their representations after the tabling of the AFIS Report before the
Provincial Council.
[75] In the result, the review must succeed and I make the following order:
1. The MEC 's decision in terms of section 106(1 )(b) of the MSA to designate AF IS to
investigate allegations of maladministration, fraud, corruption or any other serious
ma lpractices within the Municipality is hereby reviewed and set aside;
2. The AFIS Report titled: Investigation in terms of section 106(1)(8) of the Local
Government: Municipal Systems Act, No . 32 of 2000 -Emalahleni Local Municipality, is
reviewed and set aside;
3. The MEC 's decisions to adopt the AFIS Report and to table the Report in the
Provincial Executive Council are hereby reviewed and set aside.;

Provincial Executive Council are hereby reviewed and set aside.;
4. The MEC and AFIS are jointly and severally liable for the costs of the Applicants
occasioned by this application.

31
BA MASHILE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
Counsel for the Applicant: Adv 0. Ben-Zeev
Instructed by: Morgan Law
Counsel for the First Respondent: Adv ZZ Matebese SC
Instructed by: Matsane Attorneys
Counsel for the Second Respondent: Adv LF Laugh land
Instructed by: Adam s Attorneys
Date of Judgment: 21 August 2025