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1
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
NKETOANA LOCAL MUNICIPALITY
and
MALINGA NTOI\IIBIZODWA ALICE
MOTLOUNG MA THAPELO SELINAN
BOLIBE ALINA MEKODI
SIMELA DIPUO
MAKHOBA MAMOQEBELO ANNAH
MLANGENIPALESAPRUDENCE
THLANAKWE NTHABISENG
MOKOENA MMAMOLOYI ALINA
IVITHEMBU ADELINA
TSOTETSI MOSELAN T JA MAGRET
MNGUNI GCINIMUZI MIKE
LENDABABALA HEYA SE!NA
MOKOENA PALESA
MODISE PAKISO MERRIAM
NKABINDE SI8O1\!GILE INGRIOT
LEKOT JOLA MATHAPELO SELINA
JANT JIE EUSIWE
APPLICANT
Reportable
Case no: 3136/2025
FIRST RESPONDENT
SECOND RESPONDENT
TI-IIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
ELEVENTH RESPONDENT
TWELViH RESPONDENT
THIRTEENTH RESPONDENT
FOURTEENTH RESPONDENT
FIFTEENTH RESPONDENT
SIXTEENTH RESPONDENT
SEVENTEENTH RESPONDENT
MOTSOENENG MORONGOE LUCIAH
SIBEKO NTOMBIZODWA
MOFOKENG PUSE JOHANNES
MOFEKENG MATLAKALA LUCY
TSHABALALA MOIPONE YVONNE
MLANGENIBONGANIKOOS
MOSIKIDI MANTOA LORRAINE
MOTLOUNG MATELA SAMUEL
MOTAUNG MMAl<WENA MERRIAM
MOHLABANE RAMOETI DANIEL
MOEKENA MAMOT JHATO JERMINA
MAHLASELA MATSHEDISO
DHLAMINI JOSEF KGOBONYE
~<HOMBELWAYO MBOESWA AMOS
MOKOENA PAKISO JONAS
SEJAKE REBECCCA MMAFUSI
MOSIA MOHAU ABRAM
MTHEMBU NTHABISENG LUANDA
MOHLABANE PULE JOSEPHINE
MOTLOUNG THABISO SIMON
MOKOENA TEBOHO ERNEST
MOKOENA MADINT JA ADELINAH
MOTAUNG MADIJENG MEGAN
LESENYEHO SEPHENA JOSEPH
MOHOLO TLALEN G EVODIA
MOTAUNG MMAPHALA CICILIA
MOEKETSI MANS SHADRAC K
MOTLOUNG KEKETSO ELIAS
MOTAUNG NTAFUWA
MOSIA HLOPHEHO VINCENT
MASOPHA NTSIKI VICTOR
SIFOMBE ANELE JONAS
MALINDI KENEUWE YVONN
NZIMANDE MAMOTUBA SELINA
2
EIGHTEENTH RESPONDENT
NINETEENTH RESPONDENT
TWENTIETH RESPONDENT
TWENTY-FIRST RESPONDENT
TWENTY-SECOND RESPONDENT
TWENTY-THIRD RESPONDENT
TWENTY-FOURTH RESPONDENT
TWENTY-FIFTH RESPONDENT
TWENTY-SIXTH RESPONDENT
TWENTY-SEVENTH RESPONDENT
TWENTY-EIGHTH RESPONDENT
TWENTY-NINTH RESPONDENT
THIRTIETH RESPONDENT
THIRTY-FIRST RESPONDENT
THIRTY-SECOND RESPONDENT
THIRTY-THIRD RESPONDENT
THIRTY-FOURTH RESPONDENT
THIRTY-FIFTH RESPONDENT
THIRTY-SIXTH RESPONDENT
THIRTY-SEVENTH RESPONDENT
THIRTY-EIGHTH RESPONDENT
THIRTY-NINTH RESPONDENT
FORTIETH RESPONDENT
FORTY-FIRST RESPONDENT
FORTY-SECOND RESPONDENT
FORTY-THIRD RESPONDENT
FORn' -·FOURTH RESPONDENT
FORTY-FIFTH RESPONDENT
FORTY-SIXTH RESPONDENT
FORTY-SEVENTH RESPONDENT
FORTY-EIGHTH RESPONDENT
FORTY-NINTH RESPONDENT
FIFTIETH RESPONDENT
FIFTY-FIRST RESPONDENT
RAMMILE PATRICK JONAS
MOKOENA MOHANEO PETRUS
MOKWENA MOOKGO JULIA
MOKOENA TELLO JANABARIE
MABASO MADINGAAN JOHANNA
MOKOENA DIKELEDI JEANETT
MASEKO PULENG LIESBETH
MOLETE PHINDI\J\JE CONSTANCE
NALE MAHADIYO EVA
DHLAMINI MAMOKETE SHIRLEY-ANN
RADEBE SEBONGILE IMMACULATE
RADEBE MAFA GOODWILL
NKA TLO DIHLABI PATRICK
RADEBE PHAKISO
MPHUTI MODISE
LETETE MA•<HOLOTSO LIZBETH
MASEKO MZONDEKI ABRAM
MOTSOENENG iVIAHLOMOLA CEDRICK
IVIOTSOENENG BETALIS
NYAMA MOHLOPHEHI PETRUS
MNGUNI MFIKI JAMES
SIKHOSANA SIMON
SIKHOSANA PASEKA
3
FIFTY-SECOND RESPONDENT
FIFTY-THIRD RE.SPONDENT
FIFTY-FOURTH RESPONDENT
FIFTY-FIFTH RESPONDENT
FIFTY-SIXTH RESPONDENT
FIFTY-SEVENTH RESPONDENT
FIFTY-EIGHTH RESPONDENT
FIFTY-NINTH RESPONDENT
SIXTIETH RESPONDENT
SIXTY-FIRST RESPONDENT
SIXTY-SECOND RESPONDENT
SIXTY-THIRD RESPONDENT
SIXTY-FOURTH RESPONDENT
SIXTY-FIFTH RESPONDENT
SIXTY-SIXTH RESPONDENT
SIXTY-SEVENTH RESPONDENT
SIXTY-EIGHTH RESPONDENT
SIXTY-NINTH RESPONDENT
SEVENTIETH RESPONDENT
SEVENTY-FIRST RESPONDENT
SEVENTY-SECOND RESPONDENT
SEVENTY-THIRD RESPONDENT
SEVENTY-FOURTH RESPONDENT
Neutral citation: Nketoana Local Municipality v Malinga Ntombizodwa Alice and Others
(3136/2025) (2026] ZAFSHC 242 (17 April 2026)
Coram:
Heard:
NAIDOO J et CRONJE AJ
16 February 2026
Delivered: This judgment was handed down electronicc;1lly by circulation to the parties'
representatives by email and released to SAFLI I. The date and time for the hand-down is
deemed to be 1 SH00 on 17 April 2026.
Summary: Review of illegal state action terms of s 172 of the Constitution - municipality
appointing 67 general workers without complying with applicable legislation - more
4
workers employed than were budgeted for and advertised - appointing seven contract
workers into permanent positions - appointments illegal - appointments reviewed and
set aside - workers acting bona fide when accepted appointments - each party pays its
own costs.
5
ORDER
1 The appointment of the first to seventy-fourth respondents as general workers and
thus employees of the applicant on or about 15 or 25 April 2025 is reviewed and declared
unlawful and set aside.
2 In accordance withs 172 of the Constitution of the Republic of South Africa, 108
of 1996, the first to seventy-fourth respondents are to be remunerated for services
rendered in their capacities as employees until the end of September 2025.
3 Each party shall pay its own costs.
JUDGMENT
Cronje AJ
[1] This is a legality review in terms of s 172 of the Constitution of the Republic of
South Africa. A government institution cannot review its own administrative decisions
under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) but must do so in
terms of s 172 of the Constitution. The applicant is a local sphere organ of state
(municipality) provided for ins 151 of the Constitution, which leads to this s 172 review.
[2] It is created and regulated by a number of legislative instruments, of which the
Constitution, the Local Government: Municipal Structures Act 117 of 1998 (Structures
Act), the Local Government: Municipal Systems Act 32 of 2000 (Systems Act), and the
Municipal Finance Management Act 56 of 2003 (MFMA) are material to this application.
The applicant (the municipality) governs the municipal affairs of the small rural towns of
Reitz, Petrus Steyn, Lindley, and Arlington in the Free State Province. It serves a
population of approximately 69,000.
(3] Some of the respondents are members of the Independent Municipal and Allied
Trade Union (lmatu), while others are members of the South African Municipal Workers'
6
Union (Samwu). lmatu and Samwu appeared to have funded the litigation on behalf of
their respective member respondents, on whose behalf several preliminary (in limine)
points were raised. The court was advised at the start of the hearing that the point in
respect of jurisdiction was being abandoned.1 The other points in limine will be dealt with
in the judgment as they are intertwined with the merits.
[4] One of the preliminary points raised is that Samwu and lmatu should have been
joined to the proceedings in their capacities as unions. The municipality states that neither
union has standing to represent members or to argue their case. The legal principles of
joinder are trite. Direct and substantial interest in the subject matter before the court is
the prerequisite for joinder. I.f a direct and substantial interest is established, a joinder of
a party is necessary. In my view, the unions are unlikely to be affected by the outcome.2
The judgment in this matter has no adverse effect to them; this judgment affects the
respondents personally and has no bea~ing on their membership of a union. Although not
all respondents have filed supporting affidavits, I will accept that all are affected in a
similar fashion and granting the relief that the municipality seeks binds them.
The municipality's case
[5] The municipality advertised 43 vacant positions for which it budgeted on its
existing staff establishment. The first to sixty-seventh respondents were shortlisted and
interviewed. During the same period, the sixty-eighth to seventy-fourth respondents
(referred to as 'the Seven'), who were contract employees, were permanently appointed
to positions in which they had been acting. They could not permissibly be appointed
permanently as their appointments were the consequence of an incorrect application of
a collective agreement.
[6] The applicant states that it may do no more and perform no more functions than
[6] The applicant states that it may do no more and perform no more functions than
those conferred upon it by legislation. It relies on s 195(1) and (2) of the Constitution,
which broadly provides that public administration must be governed by the democratic
values and principles enshrined in the Constitution, including that a high standard of
professional ethics must be promoted and maintained, efficient, economic and effective
1 Reference was made to Booysen v Beaufort West Municipality and Another (2025] ZALAC 49; (2025]
10 BLLR 981 (LAC); (2026) 47 ILJ 129 (LAC).
2 J.C.S v J.J.S and Others [2021} ZAGPPHC 647 para 25-27.
7
use of resources must be promoted, public administration must be accountable,
transparency must be fostered by providing the public with timely, accessible and
accurate information, and good human-resource management and career-development
practices must be cultivated to maximise human potential.
[7] The municipality alleges further that its duties, powers and obligations are also
governed by the Systems Act, the relevant sections of which I deal with briefly herein.
Section 55(1)(e) of the Systems Act provides that as head of administration, the municipal
manager is, subject to the policy directions of the municipal council, responsible and
accountable for the appointment of staff other than those referred to in s 56(a) of the
Employment Equity Act 55 of 1998.
[8] Section 66 of the Systems Act provides that no person may be employed in a
municipality unless the post to which he or she is appointed, is proyided for in the staff
establishment and a decision to employ a person in a municipality, and any contract
concluded between the municipality and that person in consequence of the decision, is
null and void if the appointment was made in contravention of subsection (3). It appears
that several persons applied and were interviewed, whereafter 67 were recommended for
appointment. These appointments took effect on 25 April 2025. The municipality states
that this was the first irregularity, as there were only 43 vacancies advertised.
[9] Section 67 of the Systems Act provides that a municipality, in accordance with
applicable law and subject to any applicable collective agreement, must develop and
adopt appropriate systems and procedures, consistent with any uniform standards
prescribed in terms of s 72(1 )(c), to ensure fair, efficient, effective and transparent
personnel administration, including the recruitment, selection and appointment of persons
as staff members.
[1 OJ It is common cause between the parties that the salient provisions of the Local
[1 OJ It is common cause between the parties that the salient provisions of the Local
Government: Municipal Staff Regulations3 (Staff Regulations), with the exclusion of
Regulation 19, were adhered to. The divergence between the municipality and the
respondents arises in respect of regulation 19, which provides that reference checks and
3 GNR.890 of 20 September 2021: Local Government: Municipal Staff Regulations, Government
Gazette No. 45181, with effect on 1 July 2022.
8
personal credential verification for shortlisted candidates must be conducted by verifying
the candidate's suitability for the position with the current or previous employer and
establishing the validity of the candidate's qualifications. It includes determining whether
the candidate has been dismissed previously for misconduct or poor performance by
another municipality or employer, and, if so, the nature of that misconduct or poor
performance; and verifying any other additional personal credentials as may be required
by the nature of the job such as criminal records, identification document, security
clearance and, where necessary, credit checks. Critically, a substantive written report on
the outcome of the reference checks and personal credential verification must be
compiled and considered before the appointment is concluded. It is not a mere checklist.
Regulation 20 provides that before deciding to appoint, the municipal manager or
delegate must satisfy himself or herself that the candidate meets the relevant
requirements of the post.
[11] The municipality adopted a Recruitment Policy (the policy).4 The policy is
unsigned, and when the respondents disputed it, the municipality states that it was
adopted during a virtual meeting of the council held on 30 June 2022. Item 137 /06 in the
minutes indicates that the council noted that the Staff Regulations apply to all
municipalities and staff members. In Item 138/05, it was noted that the council approved
the recruitment policy. The policy is attached to the minutes. I am not convinced that the
respondents' dispute is a genuine dispute of fact. The respondents did not refer to any
other document, except for the Local Government: Guidelines for the Implementation of
the Municipal Staff Regulations5 (the guidelines) and alleged verification to show how the
statutory prescripts were complied with. I am satisfied that the policy was lawfully
adopted, and even if I am wrong, the staff regulations still govern the process.
adopted, and even if I am wrong, the staff regulations still govern the process.
(12] The municipality states that the policy was applied when it advertised the 43
positions. It provides for conducting reference checks and credential verifications of all
shortlisted candidates for a specific position. A written report must be compiled pursuant
to these steps being undertaken and be considered before the appointments are made.
4 Reviewed Recruitment Policy 2022-2023, Nketoana LM.
5 Local Government: Guidelines for the Implementation of the Municipal Staff Regulations, promulgated
. under s 72, read with s 120 of the Local Government: Municipal Systems Act 32 of 2000, published in
Government Gazette , No. 45181, Notice 891 on 20 September 2021.
9
According to the municipality, no such reports were compiled and were not considered
before the appointments were made. This was unlawful, and there is no room for
differentiating among those appointed. The policy in this material respect mirrors the
regulations.
[13] In respect of the Seven, the municipality states that they were appointed at a
meeting of the Local Labour Forum6 (LLF) held on 11 April 2025. The municipality states
that LLF is not an independent, autonomous, and recognised decision-making body for
conclusive, outward, and effective action. Attached to the minutes is a list containing the
names of the Seven. They would be employed at Reitz. Item 011/04 in the minutes of the
meeting concerns the permanent appointment of contractual employees. It reads:
'Section 61 of the Local Government Municipal System [sic] Act No. 32 of 2000 direct [the]
municipality, in accordance with law and subject to any collective agreements to develop and
adopt appropriate systems and procedures, consistent with any prescribed in terms of section
72(1 )(c) to ensure fair, effective and transparent personnel administration.
Kindly find the attached list of employees that ere [sic] on contract now permanently appointed,
and a list of those that are still on contract that needs to be confirmed as permanent employees
of the municipality.
Resolved :
That the Local Labour Forum take note and condone the confirmation of contractual employees
to permanent bases.' (Own emphasis.)
[14] In respect of the Seven, the South African Local Government Association
(SALGA) collective agreement provides in clause 18 for the appointments and promotions
of employees. The municipality states that there are two provisos for such appointments.
Firstly, the position and the remuneration associated with it must be budgeted for by the
municipality; secondly, the position itself must have been established in terms of s 66 of
the Systems Act. The collective agreement does not provide for temporary workers
the Systems Act. The collective agreement does not provide for temporary workers
appointed under a temporary contract to be appointed permanently. All seven were
appointed on temporary employment contracts, and these positions do not form part of
the staff establishment. Beyond providing temporary work, the municipality has not
budgeted for those positions. After the LLF meeting and erroneously so, the Seven were
appointed. This was unlawful.
6 These structure s are workpla ce forums established in Chapter V of the Labour Relations Act.
[15] Clause 18.2 provides:
'18.2 The affected employees in a section that qualifies for a promotional position that
becomes available must be considered and having regard to the following:
18.2.1 to follow due formal processes;
18.2.2 be informed by the approved recruitment policy of the municipality;
18.2.3 to be transparent and fair and;
10
18.2.4 in the event that the policy does not exist .the process of promotion must form subject of
consultation in the Local Labour Forum.' (Own emphasis.)
[16] The Chief Financial Officer (CFO) reported the irregularities in a memorandum
to the Director of Corporate Services. He states that discrepancies were identified and
needed to be addressed before the persons could be added to the payroll. Twenty-eight
of the positions were not advertised, which would cost the municipality R3 620 131.48 per
annum in basic salaries alone. The Director of Corporate Services was made aware that
the MFMA dictates that the CFO is to ensure that unauthorised, irregular, fruitless and
wasteful expenditure and any other loss be prevented in terms of s 78(1)(c).
[17] Section 172(3) provides that a senior manager or other official of a municipality
exercising financial management responsibilities and to whom a power or duty was
delegated in terms of s 79, commits an act of financial misconduct if that senior manager
or official deliberately or negligently fails to carry out the delegated duty, contravenes or
fails to comply with a condition of the delegated power or duty, makes an unauthorised,
irregular or fruitless and wasteful expenditure, or provides incorrect or misleading
information to the accounting officer for the purposes of a document referred to
in subsection (1 )(d).
[18] After the CFO's concerns came to the municipal manager's attention, he ordered
an internal investigation. The municipality held a meeting with the affected persons on 11
June 2025 and with lmatu and Samwu on 13 June 2025, but no resolution was reached.
June 2025 and with lmatu and Samwu on 13 June 2025, but no resolution was reached.
Both lmatu and Samwu state that the application is premature. An internal investigation
is already underway and incomplete. The outcome of that investigation may be resolved,
narrowed, or altered, rendering the present application speculative and a waste of judicial
resources.
11
[1 ~] In reply to lmatu's members' answering affidavit, the municipality emphasises
that the answers are bald, vague, and merely dismissive of the assertion that verification
checks were not conducted. If a report was compiled, both lmatu and Samwu would have
had access to it. Although a court may exercise its discretion under s 172 of the
Constitution, the question of prejudice does not arise in assessing whether an irregularity
has occurred. The municipality lacks the funds to remunerate all the respondents ·and
cannot incur unlawful or unauthorised expenditure. The municipality maintains tt,at clause
5 of the guidelines mirrors the requirements of regulation 19. It demonstrated its
sympathetic stance by making payments to the respondents until the end of September
2025. It acted equitably and justly. It needs to appoint 43 work~rs, for whom it has
allocated a budget. It cannot use funds from other sources to fund the illegality.
lmatu's version
[20) lmatu is not a party to the proceedings but represents some of the respondents.7
It appears that these opposing respondents, although not 43 individuals, maintain that
their positions should be differentiated because their appointments were lawful.
According to them, they were appointed following a formal recruitment process that
included comprehensive shortlisting and properly conducted interviews. Accordingly, the
first 43 candidates were part of the recruitment process. Only the 43 shortlisted
candidates had their appointments recommended. This has, in my view; important
implications for all the respondents.
[21] The process was fair, transparent and lawful. It appears that councillors and
political office-bearers purportedly demanded and submitted the names of preferred
• candidates who were not part of the recruitment and selection process and were
introduced after the fact. The municipality, as the custodian of the recruitment
documentation, should be able to distinguish between those lawfully appointed to the
documentation, should be able to distinguish between those lawfully appointed to the
advertised and budgeted positions and those not appointed. After the short-listing
process was completed, Ms Libuseng, a shop steward of lmatu, participated in the LLF
meeting where it was agreed that certain employees on fixed-term contracts for more
than two years should be permanently absorbed. This was apparently intended to avoid
7 The first, second, twelfth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, twenty-seventh,
twenty-eighth, thirty-first, thirty-second, thirty-fourth to thirty-seventh and fifty-eighth respondents.
12
potential labour disputes being referred by lmatu and Samwu.
[22] The respondents assert, without distinguishing between the 43 individuals and
the remaining ~andidates, that there was full compliance with the Systems Act. They
maintain that the recruitment and appointment processes complied in all material respects
with the staff regulations. They contend that they met or exceed the minimum standards
required for the positions and therefore satisfy the competency and qualification
requirements mandated by the regulations. According to them, reference checks were
conducted. This assertion is, however, qualified when they state: 'However, in the unlikely
event that this Honourable Court finds that some references or credentials were not
properly verified, I am advised, which advice I accept, that such failure constitutes a
procedural irregularity of a minor and non-material nature.'
[23] The respondents argue that a well-established principle in administrative and
labour law holds that minor procedural deficiencies that do not compromise the
substantive fairness of a process or the legality of a decision do not automatically render
a contract void or unlawful. If verification of references or credentials was not conducted,
such an omission does not fundamentally undermine the contractual relationship nor
disqualify the respondents from their positions. Such an oversight cannot serve as a valid
ground for the review or invalidation of appointments, especially where the respondents
clearly demonstrate that they meet the requisite qualifications and experience. They
assert that the recruitment and appointment processes followed complied with the
guidelines, which set out detailed procedural requirements to ensure transparency,
fairness, and legality. They pgree that clause 5 of the guidelines stipulates that reference
checks and personnel credential verifications must be conducted in accordance with
Regulation 19. They aver that the checks were conducted, but if the court finds _any
Regulation 19. They aver that the checks were conducted, but if the court finds _any
deficiencies, these shall constitute minor procedural irregularities that do not invalidate
the appointments, particularly when other substantive criteria and procedural safeguards
were satisfied.
[24] It is contended that not all 67 appointments are irregular or unlawful. There is no
basis for distinguishing between those appointed to the original 43 positions and the
others. It is later stated that there is a clear and material distinction between those
appointed to the approved and budgeted posts and those whose appointments may be
13
in dispute. Their appointments (apparently those ~n whose behalf the affidavit is drawn)
were valid and lawful and should be upheld, and that any attempt to cluster them with
other appointees in discrimination is factually incorrect and legally unfounded.
[25] The municipality has alternative remedies and must exhaust internal and
statutory procedures. They contend that the restriction on compensation for services
rendered after 1 July 2025 is arbitrary and unjust and constitutes a failure to comply with
the Labour Relations Act 66 of 1995 (LRA) and collective agreements. The respondents
rely on the validity of their appointments, undertake duties and responsibilities in good
faith, and would be unjustly deprived of their livelihoods if these matters are challenged,
thereby contravening their constitutional right to fair labour practices. Section 86 of the
LRA provides for joint decision-making in the LLF (workplace forums). A reading of the
section does not, in my view, answer whether the forum has the power to appoint contract
employees to the permanent staff establishment or even condone it. It can therefore not
be accepted that the staff structure overrides the explicit provisions of the regulations and
the staff policy.
Samwu's reply
[26) Samwu is not a party to the proceedings but represents so~e of the
respondents.8 Their case is virtually on all fours with the case of the respondents
represented by lmatu. They state that the municipal manager is authorised to appoint
them, did so, and failed to append the staff establishment. It is not within the municipality's
power to review the employment of all respondents because some may have been
appointed irregularly. The municipality should be able to differentiate between the
respondents. It is, however, also stated that-on the municipality's papers, it is impossible
to determine which 43 were, presumably, lawfully appointed.
[27] There are 83 vacant positions, which were budgeted for and the municipality
[27] There are 83 vacant positions, which were budgeted for and the municipality
needs the employees to ensure service delivery. The incorrect number of vacancie~ that
were advertised, is on their version, immaterial and of no consequence. If some
appointments were irregular the court retains a just and equitable discretion, presumably
8 The third to eleventh, thirteenth, eighteenth, twentieth to twenty-third, twenty-fifth, twenty-sixth, twenty
ninth, thirtieth, thirty-third, thirty-eighth to fifty-first, fifty-third-fifty-seventh, fifty-ninth-sixty-seventh
respondents.
14
to dismiss the application which would then confirm the appointments.They aver that it
has become common practice that the municipality does not perform reference checks.
[28] According to them the Seven's appointments were deemed to be permanent in
terms of the provisions of s 1980 _of the LRA. I could not find support for this assertion in
the section. They rely on the Code of Good Practice on the Integration of Employment
Equity into Human Resource Policies (the Code).9 The Code, in my view, does not
abolish the reference checks but provides that the checks should not be used
indiscriminately or for purposes that are unrelated to the requirements for the position. It
does not per se diminish the obligation or relevance of the checks. In their affidavit and,
to some extent, in the affidavit of the other respondents, there are hints of estoppel. I will
deal further with this aspect later in this judgment
Legal principles
[29) An illegality cannot be rectified by the actor itself. In Merafong City Local
Municipality v AngloGold Ashanti Limited,10 the Constitutional Court held:
'[41] The import of Oudekraal and Kirland was that government cannot simply ignore an
apparently binding ruling or decision on the basis that it is invalid. The validity of the decision
has to be tested in appropriate proceedings. And the sole power to pronounce that the decision
is defective, and therefore invalid, lies with the courts. Government itself has no authority to
invalidate or ignore the decision. It remains legally effective until properly set aside.
[42] The underlying principles are that the courts' role in determining legality is pre-eminent and
exclusive ; government officials, or anyone else for that matter, may not usurp that role by
themselves pronouncing on whether decisions are unlawful, and then ignoring them; and,
unless set aside, a decision erroneously taken may well continue to have lawful
consequences. Mogoeng CJ explained this forcefully, referring to Kirland, in Economic
consequences. Mogoeng CJ explained this forcefully, referring to Kirland, in Economic
Freedom Fighters . He pointed out that our constitutional order hinges on the rule of law:
"No decision grounded [in] the Constitution or law may be disregarded without recourse
to a court of law. To do otherwise would 'amount to a licence to self-help'. Whether the Public
Protector's decisions amount to administrative action or not, the disregard for remedial action by
those adversely affected by it, amounts to taking the law into their own hands and is illegal. No
9 Code of Good Practice on the lntegration of Employment Equity into Human Resource Policies and
Practices, published in GN 1358 of 4 August 2005, issued by the Minister of Labour on the advice of
the Commission for Employment Equity, in terms of s 54(1 )(a) of the Employment Equity Act 55 of 1998.
10 Merafong City Local Municipality v AngloGold Ashanti Limited (2016] ZACC 35; 2017 (2) BCLR 182
(CC); 2017 (2) SA 211 (CC).
15
binding and constitutionally or statutorily sourced decision may be disregarded willy-nilly. It has
legal consequences and must be complied with or acted upon. To achieve the opposite
outcome lawfully, an order of court would have to be obtained.'" (Footnotes omitted.)
[30] lmatu refers to State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Limited (Gijima)11 where the Court emphasised that self-review
, applications must be properly pleaded and substantiated. According to lmatu, the
municipality failed in this respect. I do not agree. The municipality pleaded illegality, and
I found sufficient support for this. The Court in Gijima held:
'(39] Pharmaceutical Manufacturers tells us that the principle of legality is "an incident of the rule
of law", a founding value of our Constitution. In Affordable Medicines Trust the principle of
legality was referred to as a constitutional control of the exercise of public power. Ngcobo J put
it thus:
"The exercise of public power must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an
incident of the rule of law, is one of the constitutional controls through which the exercise of
public power is regulated by the Constitution.''
(40] What we glean from this is that the exercise of public power which is at variance with the
principle of legality is inconsistent with the Constitution itself. In short, it is invalid. That is a
consequence of what section 2 of the Constitution stipulates. Relating all this to the matter before
us, the award of the DoD agreement was an exercise of public power. The principle of legality
may thus be a vehicle for its review. The question is: did the award conform to legal prescripts? If
it did, that is the end of the matter. If it did not, it may be reviewed and possibly set aside under
legality review.' (Footnotes omitted.)
legality review.' (Footnotes omitted.)
[31] Raising estoppel against the clear provisions of statute will involve the
development of the common law. There are limits to this. In City of Tshwane Metropolitan
Municipality v RPM Bricks Proprietary Ud., 12 the Court held:
'(20] I accept, as did Boruchowitz J, that courts are enjoined to develop the common law, if this is
necessary. That power is derived from sections 8(3) and 173 of the Constitution. Section 39(2) of
the Constitution makes it plain that, when a court embarks upon a course of developing the
common law, it is obliged to 'promote the spirit, purport and objects of the Bill of Rights' (S v
11 State Information Technology Agency SOC Limited v Gijima Holdings (Pfy) Limited [2017] ZACC 40;
2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC).
12 City of Tshwane Metropolitan Municipality v RPM Bricks Proprietary Ltd. [2007) ZASCA 28; [2007)
SCA 28 (RSA); 2008 (3) SA 1 (SCA). •
16
Thebus 2003 (6) SA 505 (CC) para 25). This ensures that the common law will evolve, within the
framework of the Constitution, consistently with the basic norms of the legal order that it
establishes (Pharmaceutical Manufacturers Association of South Africa; In re Ex parte President
of the Republic of South Africa 2000 (2) SA 674 (CC) para 49). The Constitutional Court has
already cautioned against overzealous judicial reform. Thus, if the common law is to be
developed, it must occur not only in a way that meets the s 39(2) objectives, but also in a way
most appropriate for the development of the common law within its own paradigm (Carmichele v
Minister of Safety and Security 2001 (4) SA 938 (CC) para 55).
[21] Faced with such a task, a court is obliged to undertake a two-stage enquiry. First, it should
ask itself whether, given the objectives of s 39(2), the existing common law should be developed·
beyond existing precedent. If the answer to that question is a negative one, that should be the
end of the enquiry. If not, the next enquiry should be how the development should occur and
which court should embark on that exercise. (See S v Thebus para 26.)' (Footnote omitted.)
[32] This decision was referred to in Merifon (Pty) Umited v Greater Letaba Municipality
and Another 13 where the Constitutional Court also considered the application of the
Turquand rule, a species of estoppel:
'[42] This brings me to another submission advanced by Merifon, namely, its reliance on the
doctrine of estoppel and the Turquand rule. Does the Turquand rule apply in respect of
municipalities and where innocent third parties are involved? It is trite that void acts cannot be
resuscitated through the Turquand rule. It is also trite that the Turquand rule is a species of
estoppel and therefore cannot be raised to cure an action that is ultra vires, as opposed to one
that is intra vires (within one's legal powers), but suffers some other defect. The doctrine of legality
is applicable and decisively trumps Merifon's argument. Furthermore, Fedsure, as referred to by
the Supreme Court of Appeal, remains decisive authority especially in relation to acts in the local
government sphere. The incorrect number of vacancies that were advertised, is on their version,
• immaterial and of no consequence.' (Footnotes omitted.)
Discussion
[33] The respondents' plight is understood. They aspired for employment and jumped
through all the hoops, but one, to secure a position . They cannot be blamed for feeling
done in and for being disgruntled. One gathers from the lmatu respondents ' papers that
councillors and political office-bearers purportedly demanded and submitted the names
13 Merifon (Pty) Limited v Greater Letaba Municipality and Another [2022] ZACC 25; 2022 (9) BCLR
1090 (CC),
17
of preferred candidates who were not part of the recruitment and selection process and
were introduced after the fact.
[34] These councillors and political office holders have little, if any, say in how the
municipality's executive should perform its statutory duties. In all spheres of government,
legislation determines staff establishments, the approved number of positions, the
qualifications required for appointment, the budgets for filling positions, and the criteria
and processes to be followed in filling positions. The extent of politicians' involvement in
these processes, namely, members of municipal councils, is also regulated. When these
roles were blurred in the appointment of nearly twice as many persons as the posts
approved for advertisements, something was bound to go wrong, and it did.
[35] The Systems Act imposes onerous duties on all employees, particularly senior
managers and the municipal manager, who serves as the accounting officer. The Director
of Corporate Services' sympathetic stance towards the respondents is understandable,
but his views cannot oust the clear provisions of the operative instruments governing
appointm~nts.
[36] Unions in the wor,kplace play an indispensable role in protecting and advancing
their members' interests, but they also have a responsibility to ensure that prescribed
processes are followed. To that extent, they also act in the interest of the fiscus and the
public in general. They should have known that the reports were not prepared. The
categorical statement of the municipality and the ambivalence expressed by the union
representatives do not raise sufficient doubt about the veracity of the municipality's
version.
[37] It is impossible for a court to accede to a proposal that the municipality
differentiate between those lawfully appointed in the advertised and budgeted positions
and the others when there is no report, even if any of the respondents met or exceeded
and the others when there is no report, even if any of the respondents met or exceeded
the minimum standards required for the positions and satisfied the competency and
qualification requirements mandated by the regulations.
(38] Both sets of respondents rely on material compliance. lmatu itself argues that the
instruments establish minimum substantive and procedural safeguards. In support of this,
18
lmatu relies in part on South African Municipal Workers Union v Letsimeng Local
Municipality and Another.14 The facts in that matter, however, differ markedly. The court
did not determine the final relief but granted interim relief pending the substantive review
application. Regulation 19 did not enter the fray.
[39] I agree that if the safeguards are the minimum to be complied with, the municipality
failed and therefore acted illegally. Any argument that there was substantive compliance
cannot succeed. The Regulations and the recruitment policy are clear on the
requirements to be met. It cannot be accepted that the Code waters down the prescribed
requirements. If it was intended to do so, it would have stated it explicitly. Wording to this
effect is ordinarily found where a document uses the word 'notwithstanding',· and this is.
not the case. Samwu relies on Al/pay Consolidated Investment Holdings (Ply) Ltd and
Others v Chief Executive Officer of the South African Social Security Agency and Others
(No 2) (Allpay)15 to support its argument that the materiality of the irregularity must be
determined and that what would be just and equitable should be considered. I do not
understand Al/pay to hold tha~ such . compliance renders illegality moot. The Court
accepted that the illegal actions had an effect, but also devised a mechanism for
correction. The Court inter alia held:
'[30] Logic, general legal principle, the Constitution, and the binding authority of this Court all point
to a default position that requires the consequences of invalidity to be corrected or reversed where
they can no longer be prevented. It is an approach that accords with the rule of law and principle
of legality.
[31] In the merits judgment this Court stated:
"Once a finding of invalidity ... is made, the affected decision or conduct must be declared
unlawful and a just and equitable order must be made. It is at this stage that the possible
unlawful and a just and equitable order must be made. It is at this stage that the possible
inevitability of a similar outcome, if the decision is retaken, may be one of the factors that will have.
to be considered. Any contract that flows from the constitutional and statutory procurement
framework is concluded not on the state entity's behalf, but on the public's behalf. The interests
of those most closely associated with the benefits of that contract must be given due weight. Here
it will be the imperative interests of grant beneficiaries and particularly child grant recipients in an
uninterrupted grant system that will play a major role. The rights or expectations of an
14 South African Muni<~ipal Workers Union v Letsimeng Local Municipality and Another [2024] ZALCJHB
106.
15 Al/pay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014 (6) BCLR 641 (CC); 2014 (4)
SA 179 (CC).
19
unsuccessful bidder will have to be assessed in that context."' (Footnotes omitted.)
[40] It is speculative that the municipality's investigation may show that all respondents
met the verification standards. This would still mean that only some of the applicants may
be appointed. Samwu relies on Chairperson: Standing Tender Committee and Others v
JFE Sapela Electronics (Ply) Ltd and Others16 for the proposition that, in appropriate
circumstances, a court will, in the exercise of its discretion, decline to set aside an invalid
administrative decision. The facts, however, are different from those before us. The Court
also remarked that the appellants' stance on the impracticability of restarting the tender
process to complete the remaining work strikes it as correct. The repair and maintenanc,e
components of the contracts were interrelated. The order of the court a quo, if
implemented, was likely to be not only disruptive but also to give rise to a host of
problems, not only in relation to a new tender process but also in relation to the work to
be performed.
[41] Samwu also relies on Khumalo and Another v Member of the Executive Council
for Education: KwaZulu Natal.17 In that matter, the court noted that despite trying to do
the right thing, the MEC delayed reprehensibly in bringing the application. She appointed
the Task Team with relative haste after hearing ofthe complaints; however, after receiving
the Task Team's Report, it took her about 20 months to bring the applic;:1tion, at which
point the employee had occupied the post for over four years. The MEC also did not
explain her delay.
[42] As indicated, the facts are different from. those before us, but there are elements
that may marginally favour the argument for prejudice. The Court in Khumalo also held:
'[67] Thus it appears as if Mr Khumalo did not meet the requirements of the post and that his
promotion , in consequence, was unfair. However, we are left with no means accurately to verify
whether the absence of reasons to motivate the departure from the requirements reflects that
there truly were no reasons or if those reasons are merely not discoverable at this late stage. A
full picture of the promotion's legality is thus not reliably ascertainable on the evidence before
the Court, nine years after the fact. While the MEC might not be responsible for the entire period
16 Chairperson: Standing Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and Others
[2005] ZASCA 90; 2008 (2) SA 638 (SCA); [2005) 4 All SA 487 (SCA).
17 Khu ma lo and Another v Member of the Executive Council for Education : KwaZulu Natal [2013] ZACC
49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC).
20
of the delay that affects the Court's assessment of the decision's lawfulness, objectively the
passage of the extended period of time since the decision was made stands in the way of this
Court making a clear determination of the promotion's unlawfulness. This is a consideration
rather peculiar to these facts and the particular basis of the challenge.
[68] The nature of the application and the strength of the merits do not favour overlooking the
delay. The delay was unreasonable and unexplained, and although we might ameliorate the
consequences of a possible finding of unlawfulness in remedy, the nature of the claim does not
warrant condoning the delay.
[69] The Labour Court erred in overlooking the delay. While the Court was correct to be cautious
in permitting the delay to non-suit the MEC, its simple reference to promoting public
accountability and the balance of convenience, as the basis on which to condone, is an
inadequate consideration of the depth of difficulties faced by a court when confronted with a
review in the labour context, following the passage of an extensive and unexplained delay of
this nature. While the Court accurately acknowledged its ability to ameliorate prejudice to Mr
Khumalo in the remedy, it did not adequately consider the fact that the MEC gave no
explanation for the delay or the extent to which the delay constrained an accurate review. In the
result, the Court misdirected itself in overlooking the delay and the grounds for this Court's
interference with its exercise of discretion are established. The delay should non-suit the MEC
in relation to her application for the review of Mr Khumalo's appointment.' (Own emphasis.)
[43] It is not for this Court to decide which of the 43 candidates must be appointed or
retained for the 43 budgeted positions. There is no entitlement to be appointed in
unbudgeted positions. On the municipality's papers, it is impossible to determine which
43 succeeded or may succeed. The vacancies were advertised, and who fills them is
43 succeeded or may succeed. The vacancies were advertised, and who fills them is
material to the municipality and the communities to be served.
[44] A court cannot sanction an illegality. If the appointments are not set aside and left
to the municipality and the respondents to address the issue, the illegality will continue
and be given effect to. It is incomprehensible how a result that arose from the interference
• of politicians and counsellors, and from a lack of legislative compliance, can be lawful or
condonable. In Affordable Medicines Trust and Others v Minister of Health and Another, 18
on which lmatu also relies, it was affirmed that the doctrine of legality, which is an incident
of the rule of law, is one of the constitutional controls through which the exercise of public
18 Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) para 49-50.
21
power is regulated by the Constitution. It entails that both the legislature and the executive
'are constrained by the principle that they may exercise no power and perform no function
beyond that conferred upon them by law.'19 In this sense, the Constitution entrenches
the principle of legality and provides the foundation for the control of public power.
[45] It can be accepted, in favour of the respondents , that entering employment
contracts is not ultra vires the powers of the applicant. In South African Municipal Workers
Union and Others v Johannesburg Metropolitan Municipality and Others2° there was a
conversion of fixed-term employees to permanent employment. The court held that the
inference is that the conversion was not ultra vires. The respondent also regarded the
conversion as irregular rather than ultra vires. The court did not find it desirable or
necessary to determine whether the conversion fell within the powers delegated to the
executive mayor, whether the municipal manager approved the conversion (he certainly
supported it), what powers were delegated to the municipal manager, or whether the
respondent's officers were clothed with actual or ostensible authority. The court held .,
that the conversion certainly had legal consequences and could not be set aside
unilaterally. The employer's dedsion to rescind the conversion could not stand.21
[46] I could not find references in that case to the legislation applicable to the facts
before us. These were conversions and not fresh appointees from outside the
organisation. More importantly, there were no more appointees than advertised positions,
and the budgeting issue did not arise. A concerning fact is that the LLF apparently
condoned the appointments of contractual employees to a permanent basis. I could not
find a provision in the LRA that stretches its powers that far. In Department of Transport
and Others v Tasima (Pty) Limitecf22 it was held:
and Others v Tasima (Pty) Limitecf22 it was held:
'No constitutional principle allows an unlawful administrative decision to "morph into a valid act".
However, for the reasons developed through a long string of this court's judgments, that
declaration must be made by a court. It is not open to any other party, public or private, to annex
this function. Our Constitution confers on the courts the role of arbiter of legality. Therefore, until
a court is appropriately approached and an allegedly unlawful exercise of public power is
19 Ibid.para 49.
20 South African Municipal Workers Union and Others v Johannesburg Metropolitan Municipality and
Others [2024] ZAGPJHC 200; (2024) 45 ILJ 1134 (GJ).
21 Ibid para 41 .
22 Department of Transport and Others v Tasima (Pty) Limited [2016) ZACC 39; 2017 (1) BCLR 1 (CC);
2017 (2) SA 622 (CC) para 147.
22
adjudicated upon, it has binding effect merely because of its factual existence.'
Conclusion
(4 7] The appointment process was not finalised by a reference check, and the
compulsory r~port was not prepared and considered. There was a budget only for 43
positions. With apparent external influence and overreaching by the LLF, all the
respondents, including the Seven, were appointed. This is a classic case where the
appointments cannot stand. Although one can sympathise with the respondents, there is
no remedy available or reasonable discretion that can be exercised in their favour for this
flagrant breach of the law and the impossible situation in which the municipality finds
itself.
Costs
(48] The respondents applied for 43 positions. Whether they appreciated that more
people (than there were available posts) were appointed is unclear. However, when the
municipality made them aware of the illegality, they remained steadfast in enforcing their
contracts. They, assisted by their unions, should have appreciated the risks of this
litigation.
[49] The municipality's conduct is far from exemplary. The officials, and possibly
politicians and councillors, negated the requirements of which they should have been
aware. They, after all, adopted the recruitment policy in line with the regulations.
[50] The municipality succeeds with the application, and a successful party is normally
entitled to its costs. In this matter, however, it would not be fair and just to order the
respondents to pay the costs of opposing the application. They had everything to fight for,
but the law is unfortunately not in their favour. Considering the facts, arguments and the
law, it would be fair and just for each party to pay their own costs.
Order
[51) In the circumstances, I propose that the following order be made:
1 The appointment of the first to seventy-fourth respondents as general workers and
thus employees of the applicant on or about 15 or 25 April 2025 is reviewed, declared
23
unlawful ahd set aside.
2 In accordance with section 172 of the Constitution of the Republic of South Africa,
108 of 1996, the first to seventy-fourth respondents are to be remunerated for services
rendered in their capacities as employees until the end of September 2025.
3 Each party shall pay its own costs.
I concur, and it is so ordered
/ PRCRONJE
/
ACTING JUDGE OF THE HIGH COURT
/
1_...--
• S NAIDOO
HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the 1st, 2nd, 12th, 14th-17th,
19th 27th 28th 31st 32nd 34th_
f l f t I
37th and 58th Respondents:
Instructed by:
25th_25th I 29th_3Qth I 33rd I 3ath_51 st
53rd-571h, 591h-67th Respondents:
Instructed by:
24
Adv S Grabler SC
Niemann Grobbelaar, Bethlehem
c/o Phatshoane Henney Inc, Bloemfontein
L A Pretorius
Francois Du Plessis Attorneys
Pretoria
c/o Kleingeld Attorneys
Bloemfontein
T Du Preez
Kramer Weihmann Inc
Bloemfontein