IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: EAST LONDON CIRCUIT COURT)
Case no: EL1983/2022
In the matter between:
AKHONA NELISA TINTA Applicant
and
AMATHOLE DISTRICT MUNICIPALITY First Respondent
THE EXECUTIVE MAYOR, AMATHOLE
DISTRICT MUNICIPALITY Second Respondent
THE SPEAKER OF COUNCIL, AMATHOLE
DISTRICT MUNICPALITY Third Respondent
ACTING CHIEF EXECUTIVE OFFICER, AMATHOLE
ECONOMIC DEVELOPMENT AGENCY Fourth Respondent
AMATHOLE ECONOMIC DEVELOPMENT AGENCY Fifth Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Appels AJ
Introduction
[1] The applicant w as appointed as Chief Executive Officer (“CEO”) of the fifth
respondent on 19 September 2022. The fifth respondent, is the Amathole Economic
Development Agency, also known as Aspire (“Aspire”), a municipal entity
established by the first respondent (“the m unicipality”) in terms of the Local
Government Municipal Systems Act, 32 of 2000 (“the Systems Act”). It is also a
statutory owned company, as envisaged in the Companies Act, 71 of 2008 (“the
Companies Act”). The municipality is its sole shareholder.
[2] On 1 November 2022, pursuant to the conclusion of a contract of
employment, the applicant assumed her duties as CEO. However, the following day,
2 November 2022, the second respondent (“the executive mayor”) attended her
workplace and proceeded to introduce the fourth respondent as CEO. The mayor did
so notwithstanding that the applicant’s contract of employment remained valid and in
force and had not yet expired.
[3] The executive mayor’s conduct in this regard followed a municipal council
resolution taken by the m unicipality on 13 October 2022, in terms of which it
removed the Board that appointed the applicant and appointed the fourth respondent
as the acting CEO of Aspire.
[4] On 15 November 2022, the applicant approached this court in the main
application and sought and obtained, inter alia , interdictory relief against the
respondents. The court issued a rule nisi, calling on the respondents to show cause
why an order in accordance with paragraph 2.1, declaring unlawful and setting aside
the resolution of the municip al council of 13 October 2022, in which it appointed the
fourth respondent as acting CEO, should not be made final.
[5] The court also granted interim interdictory relief in terms of which: a) the
fourth respondent was interdicted from in any manner passing h imself off as the
acting CEO of Aspire; b) the municipality was restrained and interdicted from
unlawfully and without following due process appointing any person to act as the
acting CEO of Aspire whilst the applicant’s employment contract was still valid ; and
c) the respondents were interdicted from in any manner interfering, tampering or
obstructing the applicant from executing her duties as CEO.
[6] The municipality initially opposed the main application, seeking to launch a
collateral challenge against the validity of the applicant’s appointment as CEO.
However, this collateral challenge was abandoned in favour of a counter -application.
In filing the counter -application, the municipality and the executive mayor conceded
that the applicant was entitled to co nfirmation of paragraph 2.1 of the rule nisi.
However, they sought an order that the decision by Aspire to appoint the applicant
as its CEO and the conclusion of the fixed -term employment contract between
Aspire and the applicant on 19 September 2022, be declared invalid in terms of
section 172(1)(a) of the Constitution, 1996 and set aside.
[7] It is important to note at this juncture that even though the impugned decision
is a decision by Aspire, the municipality and the executive mayor did not seek costs
against Aspire but against the applicant personally.
[8] Since the municipality conceded that the applicant is entitled to confirmation
of paragraph 2.1 of the rule nisi, only the issue of costs in the main application and
the relief sought in the counter-application required determination.
The Facts
[9] On 24 May 2022, the Board of Aspire had a meeting during which they inter
alia approved the composition of a five-member shortlisting and interview panel (“the
selection panel”) in respect of the recruitment of the CEO. The selection panel so
approved, comprised of the Board chairperson, Professor Adendorff, the chairperson
of the Board’s finance committee, Dr N Williams, the chairperson of the Board’s
projects committee, Mr L Mbokotho, the chairperson of the Board’s social and ethics
projects committee, Mr L Mbokotho, the chairperson of the Board’s social and ethics
committee, Mr S Khanyile. The shareholder representative of the municipality was
elected as the fifth member.
[10] Regarding the shareholder representative, it should be noted that Section 93D
of the Systems Act, provides that the council of a parent municipality must d esignate
a councillor or an official of the parent municipality, or both, as the representative or
representatives of the parent municipality to represent the parent municipality as a
non-participating observer at meetings of the Board of directors of the municipal
entity concerned. The shareholder representative should also attend shareholder
meetings and exercise the parent municipality’s rights and responsibilities as a
shareholder, together with such other councillors or officials that the council may
designate as representatives. The shareholder representative was therefore elected
to be on the selection panel in order to comply with Section 93D. Mr Xhanti Mngxaso
(“Mr Mngxaso”) was at all relevant times the councillor who has been designated as
the shareholder representative.
[11] It appears from minutes of the Board meeting of 24 May 2022 that the
applicant was present at the meeting as an “invitee” in her capacity as Acting CEO.
The municipality and the executive mayor relied on the minutes of the meeting which
records the applicant's presence at this meeting, as evidence that she had access to
and insight into material information relating to the recruitment process for the
position of CEO which was not available to the other applicants. The applicant,
however, alleges that she was excused from the meeting by the chairperson when
the recruitment of the CEO position was discussed.
[12] A further meeting of the Board was held on 11 August 2022, in which meeting
the applicant was also present as acting CEO. It is evident from the minutes of that
meeting that the process plan and the advertisement for the recruitment of the CEO
were noted. The municipality and the executive mayor also point to the presence of
the applicant at this meeting as evidence that the proces s was manifestly unfair. I
the applicant at this meeting as evidence that the proces s was manifestly unfair. I
will return to this issue later in the judgment.
[13] On 11 August 2022 there was a change in the political leadership of the
municipal council of the municipality and a new executive mayor, speaker and chief
were appointed. Shortly a fter this, on 22 August 2022, the executive mayor sought
an urgent meeting with the Board on 23 August 2022 and was advised that because
two members of the Board were abroad, the meeting could not take place and that it
would be scheduled upon their return.
[14] The advertisement for the vacant position of CEO was published in the edition
of the Mail & Guardian of 12 to 18 August 2022. The advertisement informed
potential applicants that the job profile, qualifications and competencies could be
found on the Asp ire website. It should be noted that the qualifications and
competencies which an applicant for CEO of a municipal entity must meet are
regulated by statute. It is apparent from the advertisement that it did not include the
statutory requirements relating to minimum competency levels for accounting officers
in respect of financial and supply chain management competency areas or the core
managerial and occupational competencies.
[15] In this regard, section 119(1) of the Local Government: Municipal Finance
Management Act 56 of 2003 (“the MFMA”) requires that the accounting officer, that
is the chief executive officer, of a municipal ent ity, must meet the prescribed
competency levels. 1 These competency levels are set out in Regulation 3 of the
Local Government: Municipal Regulations on Competency Levels, 2007,
promulgated under the MFMA (“the competency regulations”).
[16] Furthermore, regulation 3 provides for 18 unit standards in relation to financial
and supply chain management standards which an accounting officer of a municipal
entity must achieve in order to qualify for appointment. The applicant applied for the
position of CEO notwiths tanding the fact that she did not meet the minimum
competency requirements in accordance with regulation 3. She was nonetheless
shortlisted and interviewed for the position of CEO.
[17] In this regard, it is important to note that the applicant had not achieved five of
the specified unit standards for financial and supply chain management standards. In
this regard, she did not meet unit standard 11658, relating to strategic leadership
this regard, she did not meet unit standard 11658, relating to strategic leadership
and management, unit standard 116342 and 116362 (relating to strategic financi al
1 Section 119(1) provides that: “The accounting officer and all other officials of a municipality or
municipal entity involved in the implementation of the supply chain management policy of the
municipality or municipal entity must meet the prescribed competency levels.” [my emphasis]
management), unit standard 116341 (relating to financial and performance reporting)
and unit standard 116348 (relating to stakeholder relations).
[18] Despite the Board being unable to meet with the executive mayor on 23
August 2022, it nevertheless proceed ed, without making itself available for the
requested meeting with the executive mayor, to conduct the virtual shortlisting of
candidates for the CEO position, followed by virtual interviews of the shortlisted
candidates on 31 August 2022 and 6 September 2022 respectively.
[19] Despite the fact that the selection panel that was approved by the Board of
Aspire comprised of a five -member panel, it is evident from the report of the
chairperson of the panel, that only three members of the selection panel, namely,
Professor Adendorff, Dr Williams and Mr Khanyile participated in the aforementioned
virtual interviewing process. Notably, Mr Mbokotho and the shareholder
representative, Mr Mngxaso were absent.
[20] Following the interview process, the applicant was recommended for
appointment as CEO in the report compiled by the chairperson. It does not appear
from the report that a competency assessment was conducted to ensure that the
applicant possessed the prescribed core competencies.
[21] The report compiled by the chairperson also contains a recommendation on
the salary at which the applicant should be appointed. The recommendation on the
salary was based on a benchmarking report focussing on development agencies
with similar attributes in the Eastern Cape.
[22] The municipality and the executive mayor allege that the municipality had not
in respect of the applicant determined the upper limits of the salary and other
benefits of the CEO as it was required to do in terms of the applicable prescripts. In
this regard, they point out tha t the municipality had last made such a determination
in December 2018, but that determination was based on incorrect categorisation of
in December 2018, but that determination was based on incorrect categorisation of
the municipality as a category 7 municipality. It is alleged that the municipality has
obtained a court order declaring its categorisation as a category 7 municipality to be
unlawful and altering that categorisation to a category 6 municipality. The also allege
that the benchmarking report on which the recommendation on the applicant’s salary
was based had not been shared with them.
[23] Furthermore, Mr Xhanti Mngxasa, the councillor who is the person designated
by the municipality to represent it at meetings of the Board of Aspire in terms of
section 93D of the Systems Act, was not notified that he was required to attend
either the shortlisting meeting or the interviews, or indeed that he was appointed as
a member of the selection panel. Therefore, notwithstanding that the Board
approved the selection panel which makes provision for the shareholder
representative to be a member of the selection panel, the shareholder representative
was not informed that he is a member of the selection panel, nor was he given notice
of meetings of the selection panel.
[24] The applicant, in her answering affidavit, admitted that Mr Mngxasa is the
shareholder representative that was appointed to be present at Board meetings of
Aspire and that he was not present at the Board meeting of 19 September 2022. She
also admitted that only three of the selection panel members approved by the Board
conducted the i nterview and shortlisting processes and made the recommendation
to the Board.
[25] On 19 September 2022, notwithstanding the absence of Mr Mngxaso, the
shareholder representative and Mr Mbokotho from the shortlisting interview and
selection processes, the Boar d considered the report of the three members of the
selection panel and appointed the applicant as CEO, even though the selection
panel was not constituted in accordance with its approval, dated 24 May 2022. The
applicant was appointed on the salary as con tained in the recommendation by the
chairperson. The municipality alleges that the appointment was made without
affording the municipality an opportunity to determine the upper limits of the
applicant’s salary. The salary at which she was appointed is the equivalent of the
applicant’s salary. The salary at which she was appointed is the equivalent of the
maximum upper limit for managers directly accountable to the municipal manager of
a category 6 municipality.
[26] The shareholder representative, Mr Mngxaso was also not present at the
Board meeting of 19 September 2022 when the Board resolved to appoint the
applicant as CEO. The shareholder representative’s absence was solely due to the
fact that Aspire failed to notify him of the meeting or to take any steps to secure his
attendance at the meeting.
[27] It was only after the meeting of 19 Septemb er 2022 that it came to Mr
Mngxaso’s attention that a CEO has been appointed by the Board. This is evident
from a Whatsapp text message sent by Mr Mngxaso to the chairperson, in which he
stated it had come to his attention that a new CEO has been appointed by the Board
and in which he requested confirmation that such appointment had indeed taken
place.
[28] It was also only on 20 September 2022, following the appointment of the CEO
that arrangements were made for a meeting between the Board and the executive
mayor. The municipality alleges that the Board deliberately appointed the applicant
in haste in order to avoid scrutiny and oversight by the municipality. The meeting
eventually took place on 3 October 2022. In the meeting it was resolved that a report
by the chairperson on the recruitment of the CEO be submitted within 48 hours. The
report, together of the employment contract of the applicant was sent to the
executive mayor on 5 October 2022.
[29] On 13 October 2022, the council of the municipality resolved to di ssolve the
Board of Aspire as the relationship between the parties had broken down. It was also
resolved that, the fourth respondent should be appointed as Acting CEO.
[30] On 1 November 2022, the applicant duly assumed her duties as CEO.
However, on 2 November 2022, the executive mayor attended her workplace and
proceeded to introduce the fourth respondent as CEO. This was done, despite the
fact that the applicant’s contract of employment remained valid and in force and had
not yet expired.
[31] Accordingly, the applicant approached this court on 15 November 2022 on an
urgent basis in the main application and obtained interim interdictory relief against
the municipality and the executive mayor.
[32] On 27 March 2023, the applicant’s employment was terminated by A spire.
Subsequently, the applicant approached the High Court under case number
713/2023 to challenge the termination of her employment. The matter was struck
from the roll for lack of urgency. Thereafter, the applicant launched proceedings in
the Labour Court, seeking her retrospective reinstatement. The matter is still pending
in the Labour Court.
Analysis
Mootness
[33] On the day of the hearing of the matter, the applicant’s counsel argued that
the issues in the matter are moot, in that: a) the municipal manager and mayor
conceded that the applicant is entitled to the confirmation of the rule nisi; and b) on
27 March 2023, the applicant’s fixed term of employment was unilaterally terminated
by Aspire.
[34] Accordingly, it was argued on behalf of t he applicant that the main point of
contention, i.e. the validity of the applicant’s appointment, had become moot. Mr
Rorke SC however argued that the matter is not moot in that the applicant still seeks
her reinstatement in the Labour Court. Accordingly, he contended, the legality of her
appointment remains a live controversy. The applicant’s counsel in turn, from the
bar, stated that the applicant only seeks compensation for the unlawful termination of
her contract and no longer seeks reinstatement.
[35] A matter is moot when a court’s decision will have no practical effect because
the underlying dispute ceased to exist or events have overtaken the dispute.2 A court
is empowered to refuse to hear a matter if the judgment would have no practical
effect. It sho uld generally refrain from determining abstract, and academic or
hypothetical questions and should only resolve live disputes with concrete
2 Minister of Tourism v Afriforum NPC [2023] ZACC 5 at para 23.
consequences.3 Mootness is however not an absolute bar, only a discretionary
principle.4
[36] Where there are still p ractical legal consequences flowing from the
determination or the outcome may affect rights, applications and or remedies in
other proceedings or a declaration will bring certainty or clarity to the legal position of
other parties, the matter is not moot.
[37] The applicant has challenged the termination of her employment in separate
proceedings. Whether she seeks reinstatement or compensation, the legality of her
appointment is still a live dispute. In this regard it should be noted that a finding that
her appointment was unlawful directly affects the legal consequences flowing from
the termination of her appointment, in particular whether she is entitled to
reinstatement or compensation.
[38] Furthermore, it is in the public interest, grounded in the principle of l egality,
that clarity is obtained on whether the Board acted lawfully in appointing the
applicant. The appointment of a CEO of a municipal entity is an exercise of public
power with implications for governance, accountability and compliance with statutory
prescripts. A determination on legality serves an important function beyond the
personal position of the applicant.
[39] Given these considerations, the dispute is not academic. A decision on the
validity of the appointment will have practical legal consequence s. Accordingly,
notwithstanding the termination of her employment on 27 March 2023, the issues
raised in the counter-application are not moot.
3 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 at
para 15.
4 President of the Republic of South Africa v Democratic Alliance and Others (664/17) [2018] ZASCA
79 (31 May 2018) at para 12.
The Legality of the Applicant’s Appointment as CEO
[40] For its argument on why the appointment of the applicant is unlawful, the
municipality relies on a breach of the principal of legality, alternatively the breach of
the provisions of section 6 of the Promotion of Administrative Justice Act, 3 of 2000
(“PAJA”).
[41] It is important to note at the outset that this is not a self-review. Therefore, the
impugned decision could, in principle, be reviewed either under PAJA or under the
principle of legality. The principle of legality applies to all exercises of public power,
whether or not they constitute an administrative acti on as defined in PAJA. It
requires that all public power be exercised lawfully and in compliance with
mandatory statutory prescripts. I am therefore empowered to dispose of the counter -
application on the basis of legality alone.
[42] The legality of the appoint ment of the applicant is challenged on various
grounds. These are that: a) the decision to appoint the applicant was not taken in
consultation with the executive mayor of the municipality; b) the shortlisting and
interview panel was not properly constitute d; c) the municipality has not determined
the upper limits of the applicant’s remuneration and the Board’s determination
thereof was also irrational; d) collusion and favouritism; e) the meeting of the
previous Board of Aspire on 19 September 2022 was not properly constituted; and f)
the previous Board of Aspire failed to ensure that the applicant met the prescribed
competency levels.
[43] The Board was required to act in accordance with its delegations of authority
which obliged it to take the decision to appo int the applicant as CEO in consultation
with the executive mayor of the municipality. An extract of the delegations is
attached to the founding affidavit in the counter -application and there is no factual
dispute in this regard. What is in dispute is whether this required consensus between
dispute in this regard. What is in dispute is whether this required consensus between
Aspire and the executive mayor or whether it is was sufficient for the Board to inform
the executive mayor, as it did on 5 October 2026, only after the decision to appoint
was taken.
[44] Where a functionary is required to ac t ‘in consultation with’ another
functionary, this means that there must be concurrence between the functionaries. 5
In other words, consensus must be reached and it is not sufficient to act without
consultation and inform the other functionary after the a ct has been completed.
Therefore, in the absence of consultation with the executive mayor, the Board had
no authority to make a decision to appoint the applicant as chief executive officer.
[45] In addition to the failure to appoint the applicant in consultati on with the
executive mayor, there were multiple other serious governance defects in the
appointment process. These included the improperly constituted selection panel, the
exclusion of the shareholder representative which constituted non -compliance with
section 93D of the Systems Act. Each of these defects independently provides
sufficient grounds for declaring the decision to appoint the applicant invalid.
[46] I, however, prefer to determine the legality of the applicant’s appointment on
the basis of whethe r she met the mandatory statutory requirements for appointment
as CEO in respect of the minimum competency levels.
[47] Regulation 2 of the competency regulations provides that the accounting
officer of a municipal entity must generally have the skills, experience and capacity
to assume and fulfil the responsibilities and exercise the functions and powers
assigned to the accounting officer of a municipal entity. Section 119(1) of the MFMA
requires that the accounting officer, that is the chief executive officer, of a municipal
entity, must meet the prescribed competency levels. These competency levels are
mandatory and are set out in regulation 3 of the competency regulations.
[48] In this regard, in Nelson Mandela Bay Municipality v Qaba and Others 6,
Eksteen J has rejected an argument that the prescripts in respect of the minimum
prescribed competency level are “ no more than gu idelines”. With regards to a
prescribed competency level are “ no more than gu idelines”. With regards to a
contention that the minimum prescribed competency levels are not prescriptive, he
held as follows:
5 McDonald and Others v Minister of Minerals and Energy and Others 2007 (5) SA 642 at para 18.
6 Nelson Mandela Bay Municipality v Qaba and Others (3042/2023) [2024] ZAECQBHC 27 (9 April
2024) at para 37.
‘The interpretation contained for is untenable. I have set out earlier the responsibilities that
the MFMA imposes upon the CEO a nd the extent of his financial functions. In interpreting
the provisions of regulation 2 of the competency regulations in the context of the general
scheme of legislation, which I have discussed earlier it is imperative for a CEO to have
achieved at least the minimum competency requirements for the financial management
entrusted to him.’7
[49] At the time of the applicant’s appointment with the municipality, she had not
achieved five of the specified mandatory unit standards in respect of financial and
supply c hain management competency areas as set out in regulation 3 of the
regulations. This is an undisputed fact.
[50] Regulation 15(2) of the regulations provides an indulgence to a limited extent
in respect of the appointment of certain officials. The regulation provides:
‘A person appointed as a financial official on or after the date of the commencement of this
regulation which does not meet the minimum competency level in the unit standards for a
competency area, required for the position in terms of these regu lations, must attain that
minimum competency level within 18 months of the date of appointment.’
[51] Regulation 16 stipulates that when an official is appointed who does not meet
the minimum competency requirements, attainment of that minimum competency
requirement within the timeframe stipulated in regulation 15, must be included in that
official’s contract of employment and it must state that if not attained, it must be
terminated automatically within one month after the applicable period.
[52] It follows therefor e that the failure to meet the minimum competency
requirements is not an absolute bar to appointment, provided that the official’s
appointment is made conditional upon meeting the minimum competency
requirements within 18 months. An unqualified person may therefore be appointed
requirements within 18 months. An unqualified person may therefore be appointed
on condition that the contract of employment complies with the provisions of
regulations 15 and 16 in that an express term is incorporated into his contract of
7 Nelson Mandela Bay Municipality v Qaba and Others, supra at para 37.
employment that he or she will attain the competency levels within the pr escribed
period, failing which the appointment will automatically terminate.8
[53] Despite the fact that the applicant did not have the required competencies, the
employment contract which was concluded pursuant to her appointment, is an
unconditional fixed term contract and does not contain an express term requiring her
to attain the minimum competency levels within a required period of time. This was
undoubtedly unlawful.
[54] The appointment of CEO of a municipal entity constitutes the exercise of
public power. As such, it is subject to the principle of legality, which requires that all
exercises of public power must be lawful, rational and in compliance with statutory
prescripts. In the absence of compliance with mandatory statutory requirements in
the ap pointment of the applicant as CEO, the decision to appoint her as such is
unlawful and ought to be declared invalid and set aside. Once a breach of legality is
established, the court is obliged to declare the conduct inconsistent with the
constitution and invalid in terms of section 172(1)(a). In my view, the appropriate
relief in the circumstances of this matter is to set aside the decision to appoint the
applicant as CEO of the fifth respondent.
Collusion
[55] The municipality and the executive mayor rely on allegations of collusion and
favouritism to justify a cost order against the applicant in both the main application
and the counter -application. In these circumstances, it is necessary to determine
whether the evidence establishes such conduct on the part of the applicant, as it
impacts directly on the appropriateness of any adverse cost order against her.
[56] The allegations of collusion and favouritism relied upon by the municipality
and the executive mayor rests primarily on the fact that the applicant was present at
the Board meetings held on 24 May 2022 and 11 August 2022 at which aspects of
the Board meetings held on 24 May 2022 and 11 August 2022 at which aspects of
the recruitment process for the position of CEO were discussed. In my view those
8 Nelson Mandela Bay Municipality v Qaba and Others, supra at para 34.
facts, whether considered individually or cumulatively, are insufficient to establish
that the applicant colluded with the Board in her unlawful appointment.
[57] At the relevant times, the applicant was serving as acting CEO and attended
Board meetings in that capacity. Her presence at Board meetings was therefore
neither unusual nor improper. There is no evidence that she attended those
meetings as a decisionmaker in relation to her own appointment nor that she
participated in deliberations concerning the recruitment process. In respect of the
meeting of 24 May 2022, the applicant’s evidence is that she was excused from the
meeting when the recruitment of the CEO was discussed. Her evidence in this
regard was not seriously challenged by the municipality and the executive mayor.
[58] Even if she remained present, mere attendance does not without more ,
translate into influence, manipulation, or collusion. Similarly, the meeting of 11
August 2022 concerned the noting of a process plan and advertisement. There's no
evidence that the applicant shaped the criteria, controlled the process, or exercised
any influence over the Board's decisions. The minutes do not support an inference
that she used her presence to advance her own candidacy.
[59] Collusion and favouritism require proof of active participation, improper
influence or concerted conduct between the appl icant and the Board. There is not
sufficient evidence that this occurred. More particularly there's no evidence that the
applicant influenced the composition of the selection panel, participated in the
shortlisting or interview process, influenced the excl usion of the shareholder
representative, misrepresented her qualifications or competency status or induced
the Board to disregard the statutory competency requirements or to conclude an
unconditional contract of employment.
[60] The irregularities that ultimat ely rendered the appointment unlawful arose
[60] The irregularities that ultimat ely rendered the appointment unlawful arose
from governance failures by the Board, including the improper constitution of the
selection panel and the failure to comply with the regulatory framework governing
competency requirements. Those failures cannot b e attributed to the applicant
merely because she was present at meetings held in the ordinary course of her
duties. Even if it is accepted that the applicant had insight into aspects of the
recruitment process by virtue of her position, such knowledge does not establish
collusion.
[61] There is a material distinction between being aware of a process and actively
conspiring to subvert it. The regulatory scheme itself recognises that candidates who
do not meet all competency requirements may be lawfully appointed , provided that
the appointment is conditional and compliant with regulations 15 and 16. The
applicant’s decision to apply for the position despite competency gaps was therefore
not unlawful per se, nor does it suggest bad faith.
Costs
[62] The issue of costs m ust be determined in light of the outcome of both the
main application and the counter -application, as well as the conduct of the
respective parties throughout the litigation.
Costs in the Main Application
[63] In the main application, the applicant was substa ntially successful in obtaining
the introductory relief sought, including the setting aside of the municipal council
resolution of 13 October 2022 and the protection of her contractual position pending
final determination. Furthermore, the municipality and the executive mayor conceded
that the applicant was entitled to confirmation of the rule nisi in the main application.
[64] The general rule is that cost follows the result unless there are cogent
reasons to depart therefrom. The interdictory relief granted in the main application
protected the applicant from unlawful interference and restored legality pending final
determination.
[65] In these circumstances, not granting costs to the applicant in the main
application, would amount to a departure from the general rule and would undermine
the principle that a litigant who is compelled to approach a court to vindicate clear
legal rights should not be left out of pocket for having done so. There is nothing in
the applicant’s conduct in the main application that warrants depriving her of costs.
On the contrary, the litigation was necessitated entirely by the conduct of the
municipality and the executive mayor.
[66] The decisive consideration is the nature of the municipality and executive
mayor’s conduct that gave rise to the main application. The municipality and the
executive mayor did not approach the court at the outset to challenge the l awfulness
of the Board's decision to appoint the applicant. Their conduct represents a troubling
example of impermissible self-help by an organ of state.
[67] By 5 October 2022, they were in possession of a report from the chairperson
of the Board detailing th e process leading to the applicant's appointment, together
with her contract of employment. Armed with that information, they were fully aware
of both the fact of the appointment and the grounds upon which its lawfulness could
be challenged. At that stage, the applicant had not yet resumed her duties, and
nothing prevented the municipality from approaching a court urgently to review and
set aside the appointment before it was implemented. Instead, it resorted to self -help
by purporting to appoint the fourth respondent as acting CEO notwithstanding that:
a) the applicant's contract of employment remained extant and had not been set
aside; b) the Board's decision, even if unlawful, continued to produce valid
consequences until set aside by a court of law.
[68] It is a fundamental principle of administrative law, as formulated in Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others, 9 that an administrative act is valid
and binding until judicially reviewed and set aside. It is settled law that an organ of
state is not entitled to ignore or override an administrative decision merely because it
considers it to be unlawful. Organs of state are not exempt from the processes of
judicial review and must apply formally to a court to set aside an unlawful decision.10
[69] The municipality was therefore obliged to recognise the legal consequences
[69] The municipality was therefore obliged to recognise the legal consequences
of the Board's decision until a court declared it invalid. Instead of approaching the
court to review and set aside the Board’s decision, the municipality resorted to self -
9 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).
10 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute 2014 (3) SA 481 (CC) at para 64.
help. Such conduct is the very mischief that the principle as formulated in Oudekraal
seeks to prevent. It is not conduct expected of an organ of state, which bears a
constitutional obligation to act lawfully, rationally, and in accordance with due
process.
[70] The a ttempted installation of the fourth respondent as CEO while the
applicant’s contract subsisted, created a real risk of administrative chaos, uncertainty
in governance, and paralysis within a municipal entity. It was precisely this risk that
necessitated the applicant to approach the court in the main application for urgent
interdictory relief.
[71] In these circumstances it would be untenable to decline to follow the general
rule applicable to costs in respect of the main application. To do so would effectively
sanction the self -help by an organ of state, dilute the constitutional imperative of
legality, and leave the successful litigant to bear the financial burden of restoring
lawful administration.
[72] Therefore, when regard is had to the applicant’s undisputed success in the
main application, the concession of the relief sought therein, the municipality’s failure
to follow lawful review procedure and its resort to impermissible self -help with the
potential to destabilise public administration, a deviation from t he ordinary cost order
would not reflect a judicial exercise of discretion. On the contrary, the proper
principled exercise of discretion requires the municipality and the executive mayor to
pay the costs of the main application.
Costs in the Counter-Application
[73] The counter -application however stands on a different footing. In the order
that will be made below, the municipality and the executive mayor are successful in
obtaining relief declaring unlawful and setting aside the decision of Aspire to appoint
the applicant as its CEO, principally on the basis that the prescribed minimum
competency requirements have not been. To that extent the counter -application
succeeded.
[74] It is significant that the impugned decision was not that of the applicant, but
that of Aspire. It was Aspire that constituted and conducted the selection process,
failed to ensure that the selection panel was properly composed, failed to notify or
involve the shareholder representative, and failed to ensure compliance with the
statutory competency requirements. It was aware that the applicant does not meet
the requirements and still appointed her without including an express term in the
contract of employment that complies with regulations 15 and 16 of the competency
regulations. Notably, des pite it being the decisionmaker whose conduct was under
scrutiny, the municipality and the executive mayor nevertheless sought a cost order
against the applicant personally.
[75] In my view, such an approach is not justified on the facts of this matter. There
was no evidence that the applicant misrepresented her qualifications to the Board or
acted in bad faith in any way or was personally responsible for the procedural and
substantive defects that ultimately rendered her appointment unlawful. As set out
above, there was also no evidence of collusion.
[76] The blame for the defects in her appointment lies squarely at the door of
those who appointed her, i.e. the erstwhile Board of Aspire. In short, the applicant
was the beneficiary of an unlawful administrative act, but she was not its author.
[77] Regulation 15(2) expressly allows for the appointment of a person who does
not yet meet the minimum competency levels, subject to a post -appointment
compliance within 18 months. Applying for a position while failing to meet
competency requirements is not per se unlawful conduct by the applicant because
the regulatory scheme recognises that competency gaps are administratively
manageable and not automatically disqualifying. The duty to manage non -
compliance is placed squarely on the employer as regulation 16 requires the
compliance is placed squarely on the employer as regulation 16 requires the
appointing authority to ensure that performance agreements include attainment of
competencies and that the contract of employment expressly provides for automatic
termination if competencies are not attained within the prescribed time period. These
are governance obligations which lie entirely within the control of the municipal
entity, in this case Aspire, and not the successful applicant who gets presented with
an employment contract pursuant to a recruitment pro cess. Regulation 16 places
statutory obligations on the municipal entity, and it is the municipal entity’s conduct
which is unlawful if it does not comply with its statutory obligation.
[78] While it may be accepted that a person appointed as CEO ought to be familiar
with the applicable regulatory framework, including regulations 15 and 16, that does
not, without more, establish bad faith or collusion. There is no evidence that the
applicant drafted the contract of employment, misrepresented her competency
status, or induced the omission of the mandatory clause required by regulation 16.
At most her acceptance of the contract reflects acquiescence in a defective
administrative process, not dishonesty or deception.
[79] Therefore, merely being a party to a contract t hat is defective by virtue of its
non-compliance with the requirements of regulation 16 is in my view not sufficient to
make the applicant liable for the payment of all the costs of the counter -application.
There is no reason why the applicant should perso nally bear the costs of the judicial
review of a decision of an organ of state which is reviewed and set aside because of
the failure of that organ of state to comply with its statutory obligations.
[80] As authority for the proposition that the applicant should bear responsibility for
the unlawful appointment process, Mr Rorke SC, who acted on behalf of the
municipality and the executive mayor, referred me to the matter of Nelson Mandela
Bay Municipality v Afrisec Strategic Solutions (Pty) Ltd and Others (“Afrisec”)11,
where the court held as follows:
‘The potential ills of nepotism, patronage, or worse, however do not only lie with those who
may award contracts, but also with those who receive them.’12 [My emphasis.]
[81] The court in Afrisec also held as follows:
11 Nelson Mandela Bay Municipality v Afrisec Strategic Solutions (Pty) Ltd and others (865/07) [2007]
ZAECHC 155 (26 June 2007).
12 Nelson Mandela Bay Municipality v Afrisec Strategic Solutions (Pty) Ltd and others (supra) at para
29.
‘Participants in the public procurement of goods and services are not entitled to close their
eyes as to the propriety of their own involvement in that process; they have their obligation
and legal means to assert in the public rules of the game before they participate.’
[82] The dicta set out above are in the context of public procurement, where
private bidders actively participate in competitive processes governed by section 217
of the Constitution and may be complicit or turn a blind eye to illegali ties in order to
secure contracts. This matter concerns an employment appointment governed by a
distinct statutory framework which expressly places obligations on the appointing
authority. There was no evidence that the applicant misrepresented her
qualifications, induced the omission of regulatory safeguards, or participated in the
irregularities identified.
[83] Afrisec is therefore not authority for the proposition that a beneficiary of an
unlawful administrative act, absent active participation or deception , must pay the
legal costs associated with the judicial review of that unlawful administrative act.
[84] However, once the municipality and the mayor launched the counter -
application and set out, in clear and cogent terms the statutory and regulatory
defects that rendered the applicant’s appointment unlawful, there was no sustainable
basis upon which the applicant could properly persist in opposing the relief sought in
the counter-application. The material facts which rendered her appointment unlawful
were larg ely common cause. In those circumstances, the applicants continued
opposition served no legitimate purpose other than to delay the inevitable setting
aside of her unlawful appointment.
[85] It is understandable that the municipality did not seek a cost order ag ainst the
decisionmaker in this instance, being its own municipal entity. However, the
appropriate cost order in my view, would have been to seek costs only against those
appropriate cost order in my view, would have been to seek costs only against those
respondents opposing the relief sought in the counter-application.
[86] Having said that, there was simply no merit in the applicant’s opposition to the
counter-application. Had she from the outet conceded to the relief sought in respect
of the declaration of invalidity and the setting aside of her appointment, no adverse
cost order would have been warranted against her.
[87] In the exercise of my discretion, taking into account the principles applicable
to cost in matters involving the exercise of public power, in particular the fact that
she was not the decisionmaker whose conduct gave rise to the review, I am of the
view that she should not be mulcted with cost in respect of the counter-application as
a whole, but should be liable only for the cost occasioned by her opposition thereto,
as this opposition was wholly unmeritorious.
Order
[88] Accordingly, the following order is made:
1. Paragraph 2.1 of the rule nisi issued on 15 November 2022 in the main
application, declaring unlawful and setting aside the resolution of the first
respondent dated 13 October 2022, is hereby confirmed.
2. The first respondent shall pay the costs of the main application, including the
costs of counsel, taxed on Scale C.
3. The decision of the fifth respondent on 19 September 2022, to appoint the
applicant to the position of Chief Executive Officer of the fifth respondent, is
declared invalid in terms of section 172(1)(a) and set aside in terms of
section 172(1)(b) of the Constitution.
4. The conclusion of the fixed term employment contract between the applicant
and the fifth respondent on 19 September 2022 is declared invalid in ter ms
of section 172(1)(a) and set aside in terms of section 172(1)(b) of the
Constitution.
5. The applicant is ordered to pay the cost occasioned by her opposition to the
counter-application, including the costs of counsel, taxed on Scale C.
________________________
G APPELS
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicant: Mr L. Phaladi
Instructed by: MM Tshozi Incorporated
Office No 16 Suffolk Road
Berea
EAST LONDON
For the Respondents: Mr S. Rorke SC
Instructed by: Wesley Pretorius & Associates Inc
24 Tottenham Road
Baysville
EAST LONDON
Heard: 27 November 2025
Delivered: 31 March 2026