IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
In the matter between:
REPORTABLE
Appeal Case Number: A27 /2025
Court a quo Case No: 4913/2024
MZINGISI GRATITUDE NKUNGW ANA APPELLANT
and
MNYAMEZELI JACKSON PENXA RESPONDENT
In Re: [Proceedings before the court a quo)
MNY AMEZELI JACKSON PENXA APPLICANT

and
THE CENTRAL KAROO DISTRICT
MUNICIPALITY
THE EXECUTIVE MAYOR OF THE
CENTRAL KAROO DISTRICT
MUNICIPALITY
THE SPEAKER OF THE CENTRAL
KAROO DISTRICT MUNICIPALITY
MZINGISI GRATITUDE NKUNGWANA
RUDOLPH ROLAND LINKS
ANTON BREDELL: THE WESTERN CAPE
PROVINCIAL GOVERNMENT: MINISTER OF
LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING
2
pt RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
5th RESPONDENT
6th RESPONDENT
Neutral citation: Mzingisi Nkungwana v Mnyamezeli Jackson Penxa
(Appeal Case no: A27/2025) [2025] ZAWCHC (1 September 2025)
Coram: MANT AME J, NUKU J, AND MAY OSI AJ
Heard: 25 July 2025
Delivered: 1 September 2025

3
Summary: Local government - municipal law - Local Government:
Municipal Systems Act 32 of2000- in terms of s 54A(2) a person appointed
as a municipal manager must at least have the prescribed skins, expertise,
competencies and qualifications as prescribed in the Regulations on
Appointment and Conditions of Employment of Senior Managers and
Annexures A and B thereof - Regulation 9(1) in terms of which a person
appointed as a municipal manager must have the competencies set out in
Annexure A -s 54A(l 1) which stipulates the special circumstances in which
a municipal council may waive the requirements listed in subsection (2).
ORDER
1 On appeal from: The judgment and orders of Thulare J, sitting as a
court of first instance.
2 The appeal is dismissed with costs, including the costs of counsel, on
scale B.
JUDGMENT
Mayosi AJ:
Introduction and relevant background
[1] The factual genesis of this appeal is a decision by the Central Karoo
District Municipality (the Municipality) to appoint the appellant as its

4
municipal manager after a recruitment process initiated by the Municipality
on 6 June 2023, when it published an advertisement calling for applications
for the position. Applications closed on 26 June 2023, and the three candidates
shortlisted for the position were the respondent, the appellant and a Mr Ralph
Links (Mr Links).
[2] As shortlisted candidates, they each underwent a Municipal Leadership
Competency Assessment ( the competency assessment) under the auspices of
the South African Local Government Association (SALGA), which evaluated
their proficiency across a range of senior managerial competencies.
[3] The respondent was rated "competent" in the eight competencies
evaluated by SALGA, and obtained an overall achievement level of
"competent". The significance of, and meanings attached to, the various
achievement levels is addressed in more detail further on in this judgment.
[4] The appellant was rated competent in three of the eight competencies
evaluated, and he was rated basic in the remaining five that were assessed. He
achieved an overall achievement level of"basic'', as did Mr Links. Moreover,
the assessors characterised the appellant's profile as "moderate risk",
indicating some risk factors in his competency and behavioural profile.
[5] Following the interviews and competency assessments, the appellant
was selected as the preferred candidate for appointment to the position, having
attained the highest overall score in the interview process. On 10 January
2024, the Municipality's Council resolved to appoint the appellant as its
municipal manager, notwithstanding him having obtained a basic level of

5
achievement in the proficiencies assessed, as opposed to the respondent's
competent level of achievement.
[6] Aggrieved by the Municipality's decision to appoint the appellant, the
respondent instituted review proceedings seeking an order reviewing and
setting aside the Municipality's decision to appoint the appellant. The
appellant and Mr Links were the fourth and fifth respondents, respectively, in
the review proceedings.
[7] The core of the respondent's challenge was that the appointment of the
appellant as municipal manager was unlawful on account of his having
obtained only an overall "basic" level of achievement in his competency
assessment. The respondent contended that on a proper interpretation of
section 54A(2) of the Local Government: Municipal Systems Act 32 of2000
(the Systems Act, alternatively, the Act), read with the Local Government:
Regulations on Appointment and Conditions of Employment of Senior
Managers published under GN 21 in GG 37245 of 17 January 2014 (the
Regulations), only a candidate with an achievement level of "competent" as
he had, or higher, satisfies the prescribed competency requirements for
appointment as a municipal manager. On this basis, the respondent contended
that the appellant lacked the prescribed competencies, rendering his
appointment null and void in tenns of section 54A(3)(a) of the Systems Act.
[8] The Municipality, along with its Executive Mayor and Speaker were
also respondents in the review application. Their opposition to the application
was premised on a different interpretation of the applicable legislation,
arguing that the appellant met the requirements for appointment to the position

6
despite his "basic" rating. They contended that his "basicn achievement level
was sufficient for appointment and that the appellant, as municipal manager,
could be supervised and developed by the Mayor, given his "basic" rating.
[9] On 5 June 2024, the court a quo reviewed and set aside the
Municipality's decision to appoint the appellant, and remitted the matter back
to the Municipal Council. It is against this judgment and order that the
appellant appeals.
[10] Leave to appeal was refused on 13 August 2024, but was granted to the
Full Court by the Supreme Court of Appeal on 30 October 2024.
[11] Even though in the court a quo the Municipality opposed the
proceedings to review ils decision to appoint the appellant as its municipal
manager, it adopted a different position after the judgment ofThulare J. After
the matter was remitted back to its Council, the Municipality removed the
appellant as a result of his appointment having been found to be unlawful, and
appointed the respondent to the position of municipal manager.
[12] The Municipality opposes this appeal, explaining that upon reflection
after the judgment of the court a quo, it now accepts and endorses the findings
of Thulare J and asserts that section 54A of the Systems Act and its
Regulations require a municipal manager to possess at least a "competenf'
rating, save for exceptional circumstances. Moreover, so the Municipality
submits, it participates in this appeal for the additionaJ reason that, going
forward, it and other municipalities require certainty on the correct legal

7
interpretation of the competency framework applicable to mooicipal
managers, as outlined in the Systems Act.
[ 13] The respondent has made no submissions to this Court, and accordingly
does not participate in the appeal. In the result, legal arguments were
presented, in the main, by the appellant and the Municipality. The Minister of
Local Government, Environmental Affairs and Planning in the Western Cape
Provincial Government (the MEC) was the sixth respondent in the review
application and, on appeal, he abides the decision of this Court. Nevertheless,
on the eve of the hearing, the MEC sought to make submissions regarding
what in his view was the correct interpretation to be given to section 54A and
the Regulations in the context of the facts of this case. These written
submissions were allowed, and additionally oral submissions in support of
them were entertained at the bearing.
[14] Before proceeding to consider the merits of the appeal, this Court had
to deaJ with three procedural issues raised by the parties. The Court's role in
dealing with these preliminary issues became no more than cursory at the
hearing, due mainly to cooperation between the parties. This is because there
was general agreement between the parties as to how to proceed regarding the
procedural issues raised; which were:
a) The appellant's application to reinstate the appeal. The
Municipality's initial opposition to the appellant's
reinstatement was withdrawn.

8
b) Whether or not the Municipality can take part in the appeal in
light of the appellant's challenge to the authority of its
attorney of record.
c) The condonation application for the late filing of the
Municipality's heads of argument, to which there was no
opposition.
[15] Condonation for the appel1ant's application to re-instate the appeal and
late filing of the Municipality's heads of argument was granted on the day of
the hearing. The parties were therefore ad idem that the appeal could proceed
as the appelJant did not persist with the challenge to the authority of the
Municipality's attorneys of record. The Municipality at this juncture had filed
an explanatory affidavit as proof of the requisite authority of its new attorneys
of record. As a consequence, the hearing proceeded without the need for this
Court to delve into the merits of these procedural issues.
[16] The centraJ question for determination in this appeal is whether, upon
a proper interpretation of sections 54A(2) and (3) of the Systems Act, read
with Regulation 9( 1) of the Regulations and Annexure A thereto, a candidate
who obtains a basic leve] of achievement in the statutory competency
framework for senior managers may lawfully be appointed as a municipal
manager.
[17] An analysis of the appellant's submissions in support of this appeal
necessitates first setting out the statutory scheme in which the competency
assessment framework that is at issue, is located.

9
The Systems Act
[ 18] The objects of the Systems Act are relevant to the purposes sought to
be achieved by it in, inter alia, the appointment of municipal managers for
municipalities. One of the objects of the Act is to provide for the mechanisms
that are necessary to enable municipalities to move progressively towards the
social and economic upliftment of local communities, and ensure universal
access to essential services that are affordable to all. To my mind, given the
strategic and operational functions that must be performed by a municipal
manager, the requirement that a municipal manager must possess at least a
competent level of proficiency in the competencies that are prescribed is but
one of the cogs in the arsenal of mechanisms that the Act creates towards the
achievement of this and its other objectives in relation to municipalities.
[ 19] This is because a municipal manager heads the administration of a
municipality's municipal council. Section 55(1) of the Systems Act imposes
no less than seventeen functions for which a municipal manager is responsible
and accountable. Five of these functions, in no particular order of importance,
are the formation and development of an economical, effective, efficient and
accountable administration; the management of the provision of services to
the local community in a sustainable and equitable manner; the management,
effective utilisation and training of staff; the administration and
implementation of the municipality's by-laws and other legislation; and

10
developing and maintaining a system whereby community satisfaction with
municipal services is assessed.
[20] In addition, a municipal manager is the accounting officer of the
municipality, in which capacity he is responsible and accountable for: (a) all
the income and expenditure of the municipality; (b) all its assets and the
discharge of all of its liabilities; and ( c) proper and diligent compliance with
the Municipal Finance Management Act.
[21] A municipal manager's position is therefore akin to that of a chief
executive officer in a corporate entity. I venture to say that it is no
exaggeration to posit the view that the effectiveness of a municipality is often
highly dependent on the competence and proficiencies possessed by its
municipal manager. In Notyawa, 1 the Constitutional Court entrenched the
importance of municipal managers when it said that the role they play is
crucial to the delivery of services to local communities and the proper
functioning of municipalities, whose main function is to provide services to
local communities. 2
[22] The Act provides for procedures and competency criteria for municipal
manager appointments, and for the consequences of appointments made
otherwise than in accordance with such procedure and criteria. As the
Supreme Court of Appeal stated in Mawonga, 3 what this illustrates is that the
legislature was alive to the need to prevent irregular appointments of
1 Notyawa v Makana Municipality and Others 2020 (2) BCLR l36 (CC)
2 Para [4]
3 Mawonga and Another v Walter Sisulu Municipality and Others (Case no574/l 9) [2020] ZASCA 125 (7
October 2020)

11
inadequately skilled persons, and to ensure that the person appointed as
municipal manager is suitably qualified with the necessary expertise and
competence.4
[23] Section 54A sets out a very specific procedure for the appointment of a
municipal manager. In Mawonga 5 the SCA explained that the section was
introduced into the Systems Act in order to curb the prevailing
mismanagement of municipalities, and confirmed that this much had been
stated by the Constitutional Court in South African Municipal Workers'
Union v Minister of Co-operative Governance and Traditional Affairs6
which characterised the purpose of the Amendment Act (that introduced
section 54A) as being to:
' ... address what was perceived to be the alarming increase in the instances of
maladministration within municipalities. The Amendment Act introduced means to
ensure that professional qualifications, experience and competence were the
overarching criteria governing tbe appointment of municipal managers or managers
directly accountable to municipal managers in local government, as opposed to
party political affiliation.'
[24] In terms of section 54A (2), the interpretation of which is at issue in this
appeal together with the Regulations promulgated under the Act, a person
appointed as a municipal manager must at least have the skills, expertise,
competencies and qualifications as prescribed. The language used is
peremptory; and the phrase "at least" means "not less than"; or "at the
4 Mawonga, para [22]
5 Mawonga, para (21)
6 [2017) ZACC 7; 2017 (5) BCLR 641 {CC) para 4 and fn 7 where reference is made to the debates in the
National Assembly on 24 March 2011, as reflected in Hansard at 2006-2010.

12
minimum". The section envisages that candidates who are best qualified for
the job must be recruited for the position. 7
[25] The educational experience, work-related experience and knowledge
required of a municipal manager are outlined in Annexure B of the
Regulations. It is uncontentious on the papers that the appellant possessed the
formal qualifications and work experience prescribed for a municipal
manager, in that he met the requirements set out in Annexure B, which include
appropriate higher education qualifications and a minimum of 5 years'
relevant experience.
[26] The section nullifies any appointment made in contravention of the
Systems Act, including the appointment of a person who does not possess the
prescribed skills, expertise, competencies and qualifications. This is in terms
of section 54A(3), which stipulates that a decision to appoint a person as
municipal manager, and any resultant contract with them are null and void if
the person appointed does not have the prescribed skills, expertise,
competencies or qualifications; or the appointment was otherwise made in
contravention of the Systems Act. In Speaker of the Knysna Municipal
Council8 Pangarker AJ, as she then was, asserted the import of this section
when she held: 'To be clear, if the appointed person did not have the
prescribed skills, expertise, competencies or qualifications, then the decision
7 Notyawa supra, para [4]
8 Democratic Alliance v Speaker of the Knysna Municipal Council and others (4247/2023) [2024)
ZAWCHC 130 (10 May 2024)

13
to appoint him/her [is] null and void; or,9 if the appointment wa s ma de in
contravention of the A ct, then too, it [is] null and void. ,,a
[27] What has been referred to by the parties as a safety-valve provision for
a municipality is set out in section 54A(ll), in terms of which a municipal
council may, in special circumstances and on good cause shown, apply in
writing to the Minister (responsible for Jocal government) to waive any of the
requirements listed in subsection (2) if it is unable to attract smtable
candidates. The interpretation of this provision, on the facts of this appeal, is
addressed later in this judgment.
The Regulations
[28] For the definition of "competence", and the competency framework
that has been put in place to assess and arrive at what is a suitably qualified
candidate for the position of municipal manager, one must have regard to the
Regulations together with Annexure A. It is in the Regulations and Annexure
A that the prescribed competencies of which section 54A(2) speaks, and the
required proficiencies linked to those competencies (the so-called levels of
achievement) in order to qualify for appointment as municipal manager, are
set out.
[29] In the Regulations, "competence" is defined to mean having the
necessary higher education qualification, work experience and /..,--nowledge to
9 Pangarker AJ's em phasis
10 Para (151)

14
obtain at least a com petent level of achievement.11 The ordinary dictionary
meaning of the word "competence" is "the ability to do something well";
whereas "competent" means "having the necessary skill or knowledge to do
something successfully. "12 I explain the different levels of achievement later
in this judgment.
[30] The provisions of Regulation 9(1) are important. It stipulates that a
person appointed as a senior manager (which includes a municipal manager)
must13 have the competencies set out in Annexure A, which also outlines the
levels of achievement, which essentially denotes the proficiencies in the
prescribed competencies.
AnnexureA
[31] The competency framework in Annexure A outlines a mechanism for
assessing the competence and proficiencies of potential appointees to the
position of municipal manager, with reference to what are called core
competencies on the one hand, and leading competencies on the other,
underpinned by the benchmark of what are referred to as levels of
achievement.
[32] Core competencies are said to cut across all levels of work in a
municipality and enhance contextualised leadership that guarantees the
impact of service delivery; whilst leading competencies are competencies that
11 E mp hasis added.
12 T he O xford Dictionarv & Thesaurus 2nd ed
13 Em ph~i_s added •

15
are required to develop clear institutional strategy, initiative, drive and
implement programs to achieve long-tenn sustainable and measurable service
delivery results.
[33] According to Item 2.2 of Annexure A, a person appointed as a
municipal manager must14 have the competencies as set out in the competency
framework contained in Annexure A, with particular focus to be placed on the
following key factors, inter alia:
a) Critical leading competencies that drive the strategic intent
and direction of local government; and
b) Core competencies which senior managers are expected to
possess, and which drive the execution of the leading
competencies.
[34] There are six leading competencies, i.e.; strategic direction and
leadership; people management; program and project management; financial
management; change leadership and governance leadership.
[35] The shortlisted candidates in the appeal that is before us were assessed
in three of these six leading competencies; i.e., strategic leadership;15 people
14 Emphasis added
15 A "basic" rating for strategic leadership means that the candidate: (1) understands institutional and
departmental strategic objectives, but Jacks the ability to inspire others to achieve the set mandate; (2) can
describe how specific tasks link to institutional strategies but has limited influence in directing strategy; (3)
has a basic understanding of institutional performance, manage me nt, but lacks the ability to integrate systems
into a collective whole; and ( 4) demonstrates a basic understanding of key decision-makers. Trus is in terms
ofltem 5 of Annexure A.

16
management16 and change management.17 The appellant was rated basic in all
three of the six leading competencies that were assessed. Therefore, when
regard is had to the definition of leading competencies in Annexure A, these
results can only have meant that he was assessed as possessing an elementary
ability to develop clear institutional strategy, initiative, drive and to
implement programs to achieve long-term sustainable and measurable service
delivery results.
[36] The respondent, on the other hand, received a competent rating in all of
the leading competencies that were assessed, 181920 meaning that he was
16 Item 5 of Annexure A states that a "basic" rating for people management means that the candidate: (I)
participates in team goal-setting and problem solving; (2) interacts and collaborates with people of diverse
backgrounds; (3) is aware of guidelines for employee development, but requires support in implementing
development initiatives.
17 In tenns of Item 5, a "basic" rating in change management means the candidate: (1) displays an awareness
of change interventions, and the benefits of transformation initiatives; (2) is able to identify basic needs for
change; (3) identifies gaps between the current and desired state; ( 4) identifies potential risks and challenges
to transformation, including resistance to change interventions; (5) participates in change programs and
piloting change interventions; and (6) understands the impact of change interventions on the institution within
the broader scope of Local Government.
18 A "competent" rating for strategic leadership is obtained by a candidate who: (1) can give direction to a
team in realising the institution's strategic mandate and set objectives; (2} has a positive impact and influence
on the mo rale, engagement and participation of team members; (3) develops action plans to execute and
guide strategy; (4) assist in defining performance measures to monitor the progress and effectiveness of the

institution; (5) displays an awareness of institutional structures and political factors; (6) effectively
communicates barriers to execution to relevant parties; (7) provides guidance to all stakeholders in the
achievement of the strategic mandate; and (8) understands the aim and objectives of the institution and relates
it to their own work .. This is in terms ofltem 5 of Anne x.ore A.
19 fll tenns of Item 5, a " competent" rating in people management means that the candidate: ( 1) seeks
opportunities to increase team contribution and responsibility; (2) respects and supports the diverse nature of
ithers and is aware of the benefits of a diverse approach; (3) effectively delegates tasks and empowers others
to increase contribution and execute functions optimally; (4) applies relevant employee legislation fairly and
consistently; (5) facilitates team goal-setting and problem-solving; and (6) effectively identifies capacity
requirements to fulfil the strategic mandate.
20 A "competent" rating for change management is obtained by a candidate who: ()) performs an analysis of
the change impact on the social, political and economic environment; (2) m aintain calm focus during change;
(3) is bale to assist team members during change and keep them focused on the deliverables; (4) volunteers
to lead change efforts outside of own work team; (5) is able to gain buy-in and approval for cl1ange from
relevant stakeholders; (6) identifies change readiness levels and assist in resolving resistance to change; and
(7) designs change interventions that are aligned with the institution •s strategic objectives and goals.

17
assessed as a candidate who could successfully and effectively de]iver in those
leading competencies.
[37] The framework further involves six core competencies whlch are moral
competence; planning and organising; analysis and innovation; knowledge
and information management; communication and results and quality focus.
These core competencies are said to act as drivers to ensure that the leading
competencies are executed at an optimal level.
[38] The competency assessors assessed the shortlisted candidates in five of
the six core competencies; 1.e.; moral competence;21 planning and
organising;2223 analysis and innovation;24 communication,25 as well as results
21 Under Item 5, a "compe tent" rating for moral competence means tlie candidate: (1) conducts tl1cmsclvcs
in alignment with the values of Local Government and the institution; (2) is able to openly admit own
mistakes and weaknesses and seek assistance from others when unable to deliver; (3) actively reports
fraudulent activity and corruption within local government; (4) understands and honours the confidential
nature of matters without seeking personal gain; and (5) is able to deal with situations of conflict of interest
promptly and in the best interest of local government. This is in terms of Item 5 of Annexure A.
22 In terms of Item 5 of Annexure A, a "basic" rating for planning and organising means that the candidate:
(l) is able to follow basic plans and organise tasks around set objectives; (2) understands the process of
planning and organising but requires guidance and development in providing detailed and comprehensive
plans; (3) is able to follow existing plans and ensure that objectives are met; (4) focuses on short-terms
objectives in developing plans and actions; and (5) arranges information and resources required for a task,
but requires further structure and organisation.
23 The "competent" rating obtained by the respondent for planning and organising meant that he

23 The "competent" rating obtained by the respondent for planning and organising meant that he
demonstrated that he could: (l) actively and appropriate]y organise information and resources required for a
task; (2) recognise the urgency and importance of tasks; (3) balance short and long -tenn plans and goals and
incorporate into the team's perfonnance objectives; (4) schedule tasks to ensure they are performed within
budget and with efficient use of time and resources; and (S)measures progress and monitors performance
resu]ts.
24 For which, in terms ofltem 5, a "competent" rating means that the candid.ate: (1) demon strates logical
problem solving techniques and approaches and provides rationale for recommendations; (2) demonstrates
objectivity, insight, and thoroughness when analysing problems; (3) is able to break down complex problems
into manageable parts and identify solutions; (4) consults internal and external stakeholders on opportunities
to improve processes and service delivery; (5) clearly communicates the benefits of new opportunities and
innovative solutions to stakeholders; (6) continuously identifies opportunities to enhance internal processes;
and (7) identifies and analyses opportunities conducive to innovative approaches and proposes remedial
intervention.
25 A "competent" candidate in the communication core competency is one who: (1) expresses ideas to
individuals and groups in formal and informal settings in a manner that is interesting and motivating; (2) is
able to understand, tolerate and appreciate diverse perspectives, attitudes and beliefs; (3) adapts

18
and quality focus.2627 The appeJlant received a basic rating for two of these;
and a competent rating for the remaining three core competencies assessed.
The respondent was assessed to be competent in all five ofthem.28
[39] The prescribed competencies are underpinned by four achievement
levels that act as a benchmark for, inter alia, appointments and development
interventions. These achievement levels are classified as: basic; competent;
advanced and superior. They are set out in Item 6 of Annexure A where the
proficiencies associated with each achievement level also appear.
[ 40] Candidates who are assessed to have a basjc level of achievement have
the following proficiencies: they are able to apply basic concepts, methods,
and understanding of local government operations, but require supervision
and development.29 The appellant obtained a basic level of achievement.
communication content and style to suit the audience and facilitate optimal information transfer; (4) de]ivers
content in a manner that gains support, com mitment and agreement from relevant stakeholders; and (5)
compiles clear, focused, concise and well-structured written documents. Again, as per item 5 of Annexure
A.
26 As per Item 5 of Annexure A, a " basic" rating under the core competency of results and quality focus
means that the candidate: (1) understands quality of work but requires guidance in attending to important
matters; (2) shows a basic commitme nt to achieving the correct results; (3) produces the minimum level of
results required in the role; (4) produces outcomes that are of a good standard; (5) focuses on the quantity of
output but requires development in inc-0rporating the quality of work; and (6) produces quality work in
general circumstances; but fails to meet expectations when under pressure.
27 Whereas the "competent" rating obtained by the respondent under this core competency means that he: (1)

demonstrated an ability to focus on high-priority actions and would not become distracted by lower-priority
activities; (2) displayed firm commitment and pride in achieving the correct resuJts; (3) could set quality
standards and design processes and tasks around achieving set standards; (4) could produce output of high
quality; (5) demonstrated that he was able to balance to quantity and quality of results in order to achieve
objectives; and (6) demonstrated an ability to monitor progress, quality of work, and use ofresources; provide
status updates, and make adjustments as needed.
28 A "competent" rating for planning and organising means that the candidate: (1) actively and appropriately
organises infonnation and resources required for a task; (2) recognises the urgency and importance of tasks;
(3) balances short-terms and long-term plans and goals and incorporates into the team's performance
objectives; (4) schedules tasks to ensure they are performed within budget and with efficient use of time and
resources; and (5) measures progress and monitors perfonnance results. This is in tenns of Item 5 of
AnnexureA.
29 My emphas is.

19
[ 41] A competent level of achievement is obtained by a candidate assessed
as capable of developing and applying more progressive concepts, methods
and understanding; one who plans and guides the work of others and executes
progressive analyses. This is the level of achievement that was obtained by
the respondent.
[ 42] A candidate with an advanced achievement level is proficient in
developing and applying complex concepts, methods and understanding;
effectively directs and leads a group and executes in-depth analyses. A
candidate with a superior level of achievement has a comprehensive
understanding of local government operations; is or is able to be critical in
shaping strategic direction and change; and develops and applies
comprehensive concepts and mdho<ls.
[ 43] The provisions of Item 6.1 of Annexure A are instructive and important
in order to give effect to the purpose of the legislative scheme, i.e.; to appoint
the most suitable candidate for municipal manager. Item 6.1, which resorts
under the heading "Achievement Levels", stipulates that individuals falling
within the basic range are deemed unsuitable for the role of municipal
manager, and caution should be applied in promoting and appointing such
persons. The ordinary dictionary meaning of the adjective "basic" is:
·"consisting of the minimum required or offered"; also synonymous with the
word "elementary".
[ 44] Having set out the statutory and regulatory scheme thus) I now tum to
the questions posited by the appellant as framing this appeal.

20
The grounds of appeal with reference to the proper interpretive approach
[45] As stated above, the central question in this appeal is whether or not,
upon a proper interpretation of section 54A(2) and (3) of the Systems Act,
read with Regulation 9(1) and Annexure A, a candidate who receives an
overall achievement level of "basic" in the statutory competency assessment
may lawfully be appointed as a municipal manager.
[ 46] The lodestar in the proper approach to statutory interpretation has
become Wallis JA's judgment in Endumeni 30 when, writing for the Court in
the SCA, he held as follows:
'The present state of the law can be expressed as follows. Interpretation is the
process of attributing meaning to the words used in a document, be it legislation,
some other statutory instrument, or contract, having regard to the context provided
by reading the particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming into existence. Whatever
the nature of the document, consideration must be given to the language used in the
ligbt of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material
known to those responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of all these factors. The
process is objective not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike for the words
30 Natal Join/ Municipal Pension Ftlnd v Endumeni Municipality (2012) ZASCA 13 ; [2012) 2 All SA 262
{SCA); 2012 (4) SA 593 (SCA) para [18)

21
actually used. To do so in regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation ... The "inevitable point of departure
is the language of the provision itself', read in context and having regard to the
purpose of the provision and the background to the preparation and production of
the document.'
[47] As if it had not been made clear enough by the SCA in Endumeni, this
interpretive approach was further entrenched by the Constitutional Court
some two years later in Cool Ideas31 at para [28] when Majiedt AJ (as he then
was) wrote:
'A fundamental tenet of statutory interpretation is that the words in a statute must
be given their ordinary grammatical meaning, unless to do so would resuJt in an
absurdity. There are three important interrelated riders to this general principle,
namely:
(a)
(b)
that statutory provisions should always be interpreted purposively;
the relevant statutory provision must be properly contextualised;
and
( c) all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions ought to
be interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to the purposive approach
referred to in (a).'
[ 48] What this means is that all indications from the legislative intent, the
wording used, the structure of the Systems Act, related provisions in the
Regulations and its annexures, and the apparent purpose of the scheme must
be considered together to arrive at a sensible interpretation. Interpretation is
not a mechanical process of looking at text or purpose alone, but rather a
31 Cool Ideas 1188 CC vHubbard and Another2014 (4) SA 474 (CC)

22
unitary exercise that seeks to reconcile the ordinary meaning of words with
their context and the statute's objectives.
[ 49] Against the backdrop of this interpretive approach, I turn now to
address the central question the inquiry into which, according to the appellant,
entails asking this further question: whether or not the prescribed
competencies in section 54A(2) are to be understood as referring only to
candidates assessed at a "competent" or above; or whether it includes those
assessed at the "basic" level within the Annexure A framework.
[50] My answer to this question, for the reasons set out more fully below, is
that the prescribed competencies referred in section 54A(2) for appointment
as a municipal manager refer to a candidate who has achieved a minimum
level of achievement of competent or higher. A can<lidate who has achieved a
level of achievement of basic is deemed not suitable for appointment, in the
first instance. More must be done in order to render that candidate, who is
deemed unsuitable for appointment, capable of being lawfully appointed
under the strictures of the Act. This is dealt with further in this judgment, in
the section dealing with section 54A (11).
[51] In terms of section 54A (2), a person appointed as municipal manager
must, as a minimum have, inter alia, the prescribed skills and competencies.
The language used in section 54A (2) is peremptory. After the Act, we look
to the Regulations where the prescribed skills and competencies are found.

23
[52] According to the Regulations, competence is having the necessary
higher education qualification, work experience, and knowledge to obtain at
least (meaning as a minimum) a competent level of achievement.
[53] A plain reading of this provision is that in order to be classified as a
candidate that is competent, and therefore able to perform successfully and
effectively in the position of municipal manager, the minimum that is required
is that the combination of your higher education qualification, work
experience and knowledge must be such as to enable you to obtain an
achievement level of competent. In other words, the candidate's Annexure B
criteria combined with their Annexure A competencies, when benchmarked
against the levels of achievement, must result in a level of achievement of
competent, as a minimum, as per the definition of "competence" in the
Regulations.
[ 54] The way I see it, the levels of achievement speak to the proficiencies
attached to the core and leading competencies required. In short, in the core
and leading competencies assessed, the candidate must have a proficiency
level of competent, as a minimum, for appointment to the position of
municipal manager.
[55] In the heads of argument filed on behalf of the appellant, there is no
mention made whatsoever of the definition of "competence" that is in the
Regulations. This is no surprise, for that definition, amongst other difficulties,
is destructive of the appellant's argument that a candidate with an
achievement level of basic is as appointable as a candidate with an
achievement level of competent and higher, to the position of municipal

24
manager. The appellant's proposition is clearly unsustainable, from this
definition alone. But there are other reasons why the submission cannot be
sustained.
[56] In my view, what is apparent from the statutory scheme, which includes
the competency assessment framework in the Regulations and Annexure A,
is that the legislature requires municipalities and their councils to eschew
mediocrity in the appointment of municipa1 managers, in favour of
competence, as a minimum requirement.
[ 57] The interpretation for which the appellant contends seeks to entrench
mediocrity in municipal appointments. In fact, it does more than that -it seeks
to elevate mediocrity even in instances where a candidate which the
competency framework has found to possess a basic level of proficiency
stands side-by-side with a candidate that the framework has assessed to have
a competent, advanced or superior level of proficiency. This interpretation
produces an absurd result, in that a candidate with a basic level of achievement
(which Annexure A says is deemed unsuitable for appointment) is as equally
appointable as a candidate with a competent, advanced or superior level of
achievement. This is simply unsustainable, once again when regard is had to
the purpose of the entire statutory scheme, which is to appoint the most
suitable candidate for the position of municipal manager in order to achieve
the purposes of the Act.
[58] And then there is Item 6.1 of Annexure A, which states that candidates
falling within the basic range are deemed unsuitable for the role of municipal
manager, and caution should be applied in their appointment.

25
[59] The appellant's argument is that a candidate assessed as possessing a
basic level of achievement can be appointed as municipal manager, even ( as
happened in this case) over a competent one because, so the argument goes,
Item 6.1 'does not flat-out forbid appointing a basic-range individual. It does
not say "a person with a basic rating may not be appointed'. This cannot be
correct, and needs only be said in order for its absurdity to become apparent
given what I have said previously in this judgment. This interpretation flies
in the face of the contextual and purposive approach that must be applied to
statutory interpretation. 32
[60] I am of the view that there is no ambiguity in the language of the Act
and the Regulations insofar as it evinces the legislative intent regarding the
minimum standards applicable for the appointment of municipal managers.
To the extent that the appellant seeks to impute some kind of ambiguity from
the language of Item 6.1 of Annexure A by advancing the argument that it
does not forbid appointing a basic rated individual in circumstances such as
those presented by this case, and does not say that a basic rated person may
not be appointed even when there is one assessed as competent, the
interpretation that best furthers the purpose of the provision - appointing the
most suitably qualified and competent candidate to the position of municipal
manager for effective local governance and service delivery - should be
preferred, so long as the text can reasonabJy accommodate that meaning. In
my view, the text accommodates this meaning beyond any doubt.
32 Natal Joint Municipal Pension Fund v Endwneni Municipality 2012 (4) SA 593 (SCA) at para 18

26
[ 61] As I see it, the competency assessment framework outlined in Annexure
A is a tool for assessing how proficient candidates are in the leading and core
competencies prescribed in Annexure A, in circumstances where those
candidates have met the minimum requirements prescribed in Annexure B.
The Annexure B requirements are the first stage of the inquiry, in what may
in all probability involve a desk top exercise. 33 The prescribed competencies
(core and leading) and the proficiency matrix (the achievement levels) in
Annexure A therefore seek to distinguish between candidates who, on the face
of it, stand on the same footing after assessment of the Annexure B criteria, in
that they all possess the educational qualifications, work experience and the
basic34 knowledge required to operate in the local government space.
[ 62] However, the inquiry does not end there for the purposes of
appointment to the position of municipal manager. This is because the
statutory framework requires a demonstration of more than just basic
know ledge and proficiencies in order to be appointed as a municipal manager.
It requires, at the very least, the demonstration of competence, i.e., having the
necessary know ledge and skill to perform the functions of municipal manager
effectively and successfully. A candidate with a basic level of achievement
cannot do this, and if they are appointed, caution must be exercised and they
need assistance to close the various gaps inherent in their proficiency profile.
33 Item 4. Minimum Requirements: The minimum requirements that accompany the competency
framework, but do not govern the selected competencies, as set out jn annexure B to these regulations, refer
to the level of higher education qualification, work experience and knowledge that are needed to operate
effectively in the local government t."Ilvironmenl.
34 My emphasis.

27
[ 63] The regulatory framework clearly reflects an intention to ensure the
appointment of municipal managers who have more than an elementary
proficiency in the prescribed competencies. They are expected to possess a
higher than basic level of competence in order to fulfil the demands of the
post and achieve the objects and purpose of the Systems Act after their
appointment.
[ 64] It follows therefore that a basic level of achievement does not meet the
rrunimum requirements, and a candidate with this level of achievement is not
competent for appointment to the position without more, as the Regulations
are structured, and only if special circumstances exist necessitating the
appointment of such an individual ( after successful invocation of section
54A(l 1)) can the appointment of such an individual be made, and caution
must then bt: exercised. No such caution is required when appointing a
candidate with a competent or higher level of proficiency, quite simply
because they can do the job successfully and effectively, which the candidate
with elementary proficiencies cannot do. Logic dictates that this is why that
candidate is deemed unsuitable for appointment. Not without more. In the
statutory scheme that individual requires supervision and development
intervention, which none of the competent and higher proficiency levels do.
[ 65] So whilst the basic rating or level of achievement does indeed form part
of the competency assessment framework, in my view it is there purely for
the purposes of assessing who meets the minimum prescribed requirements
for competence and proficiency to qualify for appointment as a municipal
manager; and to set out what is to happen if no candidates with a competent
level of achievement are obtained, when only basic rated ones are produced

28
by the recruitment process. It is clear from the wording of Item 6.1. that the
basic level of achievement does not meet the minimum requirements for the
prescribed competencies for appointment as municipal manager.
[ 66] This interpretation is not a stretch. It is evident from the statutory
scheme.
[ 67] The position was stated in no clearer terms than by Gura J in the
judgment of Dilotsotlhe35 whose facts were similar in material respects to
those in this appeal, in that the municipality there had made the decision to
appoint as municipal manager a candidate who had obtained a basic overall
rating, overlooking two candidates who had been rated as competent. The
main issue in that application, as is the case in this appeal, was whether or not
by virtue of Item 6.1 the municipality was empowered, in those
circumstances, to appoint a candidate that had been assessed as basic in the
competency assessment. 36
[68] Gura J held as follows:
'[16] Item 6.1 in my view was never intended to empower the municipality to
overlook the basic requirements for filling a post of senior manager as set out in
Annexure A and B, as well as Regulation 9(1) and 16(5). It was submitted that Mr
Mokgwamme 37 met the basic requirements for appointment to a senior manager
position. I disagree. Once he is assessed as basic in the competency assessment, it
means he has not lived up to the prescribed minimum requirements of the post of
,s Dilotsotlhe v Mahikeng Local Municipality arul Others North West (Mahikeng) Case No UM 130/2020,
25 October 2021
* Para [10]
37 The appointee who had obtained a basic rating.

29
senior manager, and because of that, whoever wants to appoint him must exercise
caution. That is why there is no need for caution where a candidate has satisfied all
the requirements for the post.
[17] What has happened in this case is that the employer has used Item 6.1 to
exclude two candidates who were better than Mr Mokgwamme. These two
candidates ... passed the competency assessment. In my view, the municipality has
no power to overlook a candidate who has met aU the requirements of the senior
manager's post (including being successful in the competency assessment) in
favour of the one who was assessed as Basic in the competency assessment. It
therefore follows that if candidate A scores Basic and his/her two opponents (B and
C) are successful in the competency assessment, candidate A automatically drops
from the race at that stage, even before reaching the finishing line in the race track.
He/She cannot be considered for appointment because there are two best candidates
above him/her.'
[69] This is sound reasoning of which this Court approves. It aligns with the
purposive interpretation to be given to section 54A (2), the Regulations and
Annexure A.
[70] For all of the reasons set out above, the answer to the appellant's central
question is that, upon a proper interpretation of section 54A(2) of the Act, read
with Regulation 9(1) and Annexure A, a candidate who received an overall
level of achievement of basic in the statutory competency assessment may not
lawfully be appointed as a municipal manager over a candidate who received
a competent level of achievement and above. This is the question that this
appeal presents.

30
[71] This position is not changed by the fact that the competency framework
includes in it basic ratings and the basic level of achievement. The latter level
of achievement does not meet the minimum standards for appointment to the
position of municipal manager. Not without more. Which brings us to the
provisions of section 54A(l 1) of the Act.
Section 54A (11)
[72] Another question posed by the appellant in this appeal, said to be the
second interlocking question to the primary question, is whether or not the
appointment of a basic rated candidate, in the absence of a Ministerial waiver
under section 54A ( 11 ), renders such appointment null and void under section
54A(3).
[73] Item 6.1 of Annexure A states in terms that a basic rated candidate is
unsuitable for the role of municipal manager. This is logical, given the fact
that this candidate only has a basic understanding of local government
operations and the minimum requirements for competence and competencies
in order to be appointed as a municipal manager sets a minimum standard
higher than that (i.e.; competent, with the proficiencies attaching thereto), as
expounded upon above.
[74] Another demonstration of why a basic rated candidate is not competent
for appointment as municipal manager, according to the minimum prescribed
requirements, is that a candidate who is basic rated and therefore not

31
competent must, if appointed, perform the municipal manager function under
supervision and development interventions, in order to be effective and
successful in that role. That says it all as far as meeting the minimum standard
is concerned. That, together with the fact that caution is to be exercised in the
appointment of this candidate to the position of municipal manager.
[75] The appointment of an unsuitable candidate is the appointment of a
candidate who does not possess the minimum prescribed competencies, inter
alia, required in terms of section 54A(2) of the Act. Such an appointment
therefore contravenes the Act, and the appointment is null and void in terms
of section 54A (3). Without more, and here we are led to section 54A(l l).
[76] The only way that a basic rated, and therefore unsuitable, candidate for
appointment as municipal manager can lawfully be appointed is if section
54A(ll) is invoked, which specificaJly caters for the instance when a
municipality has been unable to attract a suitable candidate, which must
include when the municipality has succeeded in attracting an unsuitable
candidate. I repeat, lest we lose sight of the point for the purposes of answering
this question posed by the appellant, that Item 6.1 deems a basic rated
candidate as unsuitable for appointment, and the entire legislative scheme is
aimed at recruiting the most suitable person for the position.
(77] The potential conundrum was captured well by Gura J in Dilotsotlhe38
in the following dictum:
38 Supra, at para [ 18]

32
'It will be a totally different picture, for instance, if al1 three candidates are assessed
as Basic in the competency assessment. It is here that the employer (municipal
council) should exercise caution when it considers appointing one of them. It is
common cause that the competitive process of appointing a municipa] manager
clearly goes to the appointment of the best possible candidate, amongst those who
applied and have the requisite skill, experience and qualification.' 39
[78] It bears mentioning that this was not such a case on the facts of this
particular matter. The Municipality had in fact succeeded in attracting a
candidate that was assessed as having obtained a competent level of
achievement but nevertheless proceeded to appoint one with a basic level of
achievement, notwithstanding the fact that a competent level of achievement
is the minimum proficiency level that is required for appointment to the
position of municipal manager. In the present case a competent candidate was
found in the recruitment process, and accordingly section 54A(l I) was not
triggered. The municipal council was not faced with a situation where they
were unable to find a suitable candidate.
[79] A recruitment process that produces only a candidate or candidates
with a basic level of achievement is one in which the municipality concerned
has failed to attract a suitable candidate. A candidate with a basic level of
proficiency is not appointable without more) and the more that must be done
to ensure a lawful appointment is set out in section 54A(l 1) of the Act.
[80] In terms of section 54A(3) a decision to appoint a person as municipal
manager is null and void if the person appointed does not have the prescribed
39 Para (18]

33
skills, expertise, competencies or qualification or the appointment was
otherwise made in contravention of the Act. A person who is unsuitable for
appointment because he has a basic level of achievement when the minimum
required is a competent level of achievement falls into this category.
[81] In my view, a candidate who has obtained a basic level of achievement
is unsuitable for appointment to the position of municipal manager, and this
is clearly stated in Item 6.1 of Annexure A. However, the fact that caution is
advised in the appointment of such a candidate means that there are
circumstances when they may be appointed. In other words, whilst this
candidate is unsuitable for appointment and may not lawfully be appointed to
the position of municipal manager when there are candidates whose level of
achievement is competent and higher, the basic rated candidate is nevertheless
appointable in the absence of all else. Under the strictures of section 54A(l 1 ),
because in those circumstances the municipality has been unable to recruit a
suitable candidate.
[82] Given that such a candidate is deemed unsuitable for appointment to
the position in the first instance, their appointment to the position can only be
lawful in the circumstances envisaged in section 54A(l 1) of the Systems Act,
i.e., these are special circumstances and good cause must be shown upon
written application to the Minister in order to permit such an appointment.
[83] If all that the municipality has been able to attract from a recruitment
process are basic rated candidates, who are deemed unsuitable under Item 6.1
(together with a reading of the entire statutory scheme), then it follows that in
that instance the municipality has not been able to attract suitable candidates

34
for the position. And if it wants to appoint one of those unsuitable candidates,
then in that case section 54A(l 1) is triggered. This serves as an additional
check and balance to achieve the purposes of the Act.
Conclusion
(84] For all the reasons set out in this judgment this appeal must fail. The
phrase
4
'prescribed competencies'' in section 54A (2) of the Act should be
understood as referring only to candidates assessed at a competent level of
achievement, and the appointment of a basic-rated candidate, in the absence
of a Ministerial waiver under section 54A (11), renders such appointment null
and void under section 54A (3) of the Act.
[85] In the circumstances, the following order is oposed: ,,
a) The appeal is dismissed with costs, incf din the costs of counsel on
scale B.
I agree, and it is so ordered.
I agree.
\ NMAYOSI
ACTING JUDGE O F T E HIGH COURT
BMANTAME
HIGH COURT
LNUKU
JUDGE OF THE HIGH COURT

APPEARANCES
For appellant: Advocate WA van Aswegen, Free State Society of
Advocates
For respondent: Advocate A Montzinger
Advocate R du Toit
Cape Bar of Advocates, Cape Town
35