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[2025] ZAKZPHC 120
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Mabaso v Ethekwini Municipality and Others (530/2025P) [2025] ZAKZPHC 120 (7 November 2025)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NUMBER:
530/2025P
In the matter between:
JOSEPH BHEKI
MABASO
APPLICANT
And
ETHEKWINI
MUNICIPALITY
FIRST RESPONDENT
BONGUMUSA MBHELE:
CITY MANAGER
(ETHEKWINI)
SECOND RESPONDENT
CYRIL XABA:
THE MAYOR ETHEKWINI MUNICIPALITY
(KZN)
THIRD RESPONDENT
THE COUNCIL OF THE ETHEKWINI
MUNICIPALITY
FOURTH RESPONDENT
KZN: MEC FOR COOPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
FIFTH RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant brought an application seeking:
1.
Reviewing and setting aside the appointment of the selection panel
purportedly done pursuant
to regulation 12(4) of the Regulations on
Appointment and Conditions of Employment of Senior Managers (GNR.21)
published under
GG27245 dated 17 January 2014 to recruit and select a
city manager of First Respondent.
2.
Reviewing and setting aside the appointment of Second Respondent as
Municipal Manager for
First Respondent.
The application is opposed by First to
Fourth Respondents.
[2]
Applicant is a principal clerk employed by First Respondent. He
submits in his founding
affidavit that as an employee of First
Respondent he has an interest in whether or not the most senior
person in the First Respondent
has been lawfully appointed.
[3] It
has been contended by Applicant that the selection panel for the
appointment of a new manager
was constituted as follows:
The Deputy Mayor, Three Executive
Committee Members and Dr. Thandeka Ellenson Mosses, Katane institute
CEO serving as an independent
person a municipal manager was
nominated and appointed and assumed his duties pursuant to the
appointment on 1 October 2022.
[4]
Heads of argument were filed by both Applicant and First to Fourth
Respondents. At the commencement
of the hearing counsel
appearing on behalf of First to Fourth Respondents did not pursue
what was contained in their heads of argument
but submitted that
there is a legal point which he has found which in his view will
dispose of the matter and accordingly that
was what was going to be
submitted on behalf of First to Fourth Respondents. First to
Fourth Respondents filed a notice in
terms of Rules 6(5)(d)(iii) of
the Uniform Rules of Court that a point of law was going to be raised
on 30 October 2025 the day
the matter was to proceed.
[5] This
was objected to by Applicant’s counsel as it was submitted that
it was received late.
Respondents counsel submitted they will
withdraw the notice and argue the matter on the papers. The
same issues can be raised
on the papers.
[6] It
was submitted on behalf of Applicant that in terms of circular
number 7 of 2022 which
was sent out by the MEC, the Fifth Respondent,
set out that in terms of Regulation 12 that for the appointment of a
Municipal Manager
there may only be two councilors on the panel and
in case of Senior Managers only one councilor and one person who is
not a councilor.
Regulation 12(3) referring to the panel in
respect of municipal managers there had to be a minimum of 3 and
maximum of 5 members.
I was referred to the decision of the
Majority of the Court in the case of the Member of the Executive
Council Local Government
Environmental Affairs and Development
Planning, Western Cape v Prince Albert Municipality and George
Charles Van Der Westhuizen
where it was held in paragraph 37:
“
Therefore, I
agree with the appellant that the only sensible manner to read
regulation 12(4)(c) is to interpret it not only as dealing
with the
mandatory third member, but also the optional fourth and fifth
members of the selection panel. The constitution
of the
selection panel which appointed the second respondent consisted of
four councilors and was therefore not in accordance with
the
prescripts of regulation 12(4)”
It also held in paragraph 6 of the
said judgment:
“
The validity
and/or interpretation of regulation 12(4) will directly impact on the
appointment of managers directly accountable
to municipal managers
throughout the country.”
It continues to set out that it will
apply to managers who are directly accountable to the municipal
manager. Regulation 12(4)
of the regulations in terms of the
Local Government Municipal Systems Act 32 of 2000 (The Act) relates
to the appointment and conditions
of employment of senior managers.
Regulation 12(4) reads as follows:
“
The
selection panel for the appointment of a manager directly accountable
to a municipal manager must consist of at least three
and not more
than five members constituted as follows:
(a) The municipal manager will
be the chair person.
(b) A member of a mayoral
committee or councillor who is portfolio head of a relevant portfolio
and
(c) At least one other
person who is not a councillor or staff member of the municipality
and who has expertise or experience
in an area of the advertised
post.”
The appointment of the committee also
appears at page 186 of volume 2 of the record of decisions which is
as set out in paragraph
3 above.
[7]
Reports for the selection process for the municipal manager’s
post to the executive committee
was prepared on 25 August 2022 as
appears at page 239 and to the member of the executive council at
page 250 of the papers.
It was submitted that in the case of
Buffalo City v Asla Construction
2019 (4) SA 331
(CC) it was held in
paragraph 60 that the state had a higher duty to respect the law and
to fulfil its procedural requirements.
I was also referred to
paragraph 66 of the said judgment where it held:
“
When would
the Gijima Rule apply? Gijima dictates that where the unlawfulness of
the impugned decision is clear and not disputed,
then this court must
declare it as unlawful. If it is unlawful then section 172 of
the Constitution must apply.”
[8] It
was submitted that although it deals with senior managers the
circular would also apply to
municipal managers because why would
they be so important to be treated differently. It must apply.
[9] On
29 August 2022 the fifth Respondent was informed in writing of the
decision of the municipal
council to appoint Mr. Mbhele as the
municipal manager from 1 September 2022.
[10] It was
submitted on behalf of Respondents that the appointment of municipal
managers are treated differently
and is specifically dealt with in
section 54A of the Act. It was submitted that section 54A(7)(a)
State:
“
The
municipal council must within 14 days inform the MEC for local
government of the appointment process and outcome as may be
prescribed.”
This was indeed done as appears at
page 250 of the record and referred to in paragraph 9 above. It
was further submitted that
section 54A(7)(b) states:
“
The MEC for
local government must, within 14 days of receipt of the information
referred to in paragraph (a) submit a copy thereof
to the Minister.”
Section 54A(8) states:
“
If a person
is appointed as municipal manager in contravention of the section,
the MEC for the local government must within 14 days
of receiving the
information provided for in subsection(7) take appropriate steps to
enforce compliance by the municipal
council with the section,
which may include an application to court for a declaratory order on
the validity of the appointment,
or any other legal action against
the municipal council.”
It then continues in subparagraph (9):
“
Where an MEC
for local government fails to take appropriate steps referred to in
subsection (8) the Minister may take the steps
contemplated in that
subsection.”
[11] Section
54(10) of the Act states as follows:
“
If the MEC
for Local Government fails to respond to the appointment process and
outcome within the timeframes, as contemplated in
subsection (8), or
the Minister fails to respond as contemplated in subsection (9), the
appointment of the municipal manager or
acting municipal manager will
be deemed to be in compliance with Act. Provided the municipal
council submit all relevant
documents as prescribed.”
I have not been referred to any
decision relating to this amended subsection (10). I have also
not been able to find a case
dealing directly therewith. There
is no submission by any of the parties that the relevant
documentation was not submitted
to the MEC. As appear from
paragraph 9 above the First Respondent was informed but did not
respond nor did the Minister respond.
Neither did they allege
it was non compliant. Accordingly on a reading of this
subsection it would appear that in terms thereof
on the facts set out
the appointment of the municipal manager was deemed to be in
compliance with the Act.
[12] An application
was commenced to join the Minister but Applicant withdrew such
joinder.
[13] Regulation 12
appears in the Regulations published in the Government Gazete 37245
of 17 January 2014 which
was issued in terms of the Act. It
deals with the recommendations for the appointment of candidates to
vacant senior manager
positions. It also deals with the
appointment of municipal managers in Regulation 12(3). If one
reads the Act it is
clear that it specifically distinguishes between
senior managers and municipal managers. It would therefore
appear to me
that the provisions of Regulation 12(4) only deals with
managers accountable to the municipal manager and not to municipal
managers.
Therefore the decision in the case of the Member of
the Executive Council Local Government Environmental Affairs and
Development
Planning, Western Cape v Prince Abler Municipality and
another does not to deal with the appointment of a municipal manager
and
does not assist Applicant.
[14] It would
therefore appear that even though there may have been more members or
the committee dealing with
the election process there were not more
than 5. As neither First Respondent or the Minister took any
further steps after
being informed of the panel and of the
appointment. The appointment of the municipal manager was
therefore in terms of section
54A(10) of the Act deemed to be in
compliance with the Act and the appointment can therefore not be
attacked on the basis that
the selection committee consisted of one
person more than what was allowed. Applicant also based his
relief on Regulation
12(4) which does not refer to municipal
managers.
[15] Counsel for
Applicant appeared
pro bona
and in the circumstances I am of
the view that costs should not follow the result and that no cost
order should be made.
Accordingly the following order is
made:
The application is dismissed.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
30
OCTOBER 2025
JUDGMENT
HANDED DOWN:
7
NOVEMBER 2025
COUNSEL
FOR APPLICANTS:
M
TITUS
Instructed
by:
Macgregor
Erasmus Attorneys
Durban
Tel:
031 201 8955
Email:
mpho@meattorneys.co.za
gaby@meattornyes.co.za
Ref:
Mr M Titus/gb/MAB1/001
c/o:
Grant & Swanepoel Attorneys
Pietermaritzburg
Tel:
033 342 0375
Email:
saxon@gsalaw.co.za
sharika@gsalaw.co.za
Ref:
S Pillay/SA/05M093924
COUNSEL
FOR FIRST TO FOURTH
RESPONDENTS:
J
NXUSANI SC
Instructed
by:
Ethekwini
Municipality
Durban
Tel:
031 304 3655
Email:
litigation@nhadebeattorneys.co.za
Ref:
MSH/nn/EM/031/25
c/o:
Ngwane and Associates Inc
Pietermaritzburg
Tel:
033 432 6895
Email:
mecpa@kzncogta.gov.za
FIFTH
RESPONDENTS:
Instructed
by:
KZN/
MEC for Cooperative Governance and Traditional Affairs
Pietermaritzburg
Tel:
033 897 5600
Email:
mecpa@kzncogta.gov.za