THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
KAGISHO KLAAS TEISE
and
JOHN TAOLO GAETSEWE DISTRICT MUNICIPALITY
CLLR PULANE MOGATLE-THOANE: N.O.
EXECUTIVE MAYOR OF JOHN TAOLO
GAETSEWE DISTRICT MUNICIPALITY
CLLR IKGOPOLENG AISENG: N.O. SPEAKER OF
THE MUNICIPAL COUNCIL OF JOHN TAOLO
GAETSEWE DISTRICT MUNICIPALITY
ACTING MUNICIPAL MANAGER: JOHN TAOLO
GAETSEWE DISTRICT MUNICIPALITY
MEC FOR COOPERATIVE GOVERNANCE, HUMAN
SETTLEMENT AND TRADITIONAL AFFAIRS,
NORTHERN CAPE PROVINCE
Reportable/Not Reportable
Case no: 2026 - 172086
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent .
Fifth Respondent
2
Neutral citation: Teise v John Taolo Gaetsewe District Municipality and Others
(2026 - 172086) 25 August 2026.
Coram: Mamosebo J.
Heard: 24 July 2026.
Delivered: 25 August 2026.
Summary: Urgent application - Declaratory relief - Precautionary suspension of
Municipal Manager - Regulation 6 of local Government: Disciplinary Regulations for
Senior Managers, 2010 - Precautionary suspension not unlawful and not unfair.
ORDER
1. The forms, service and time periods provided for in the Uniform Rules of Court
are dispensed with, and the applicant's non-compliance therewith is
condoned, and the matter is heard as one of urgency in terms of Rule 6(12).
2. The application is dismissed with costs.
JUDGMENT
MamoseboJ
[1] The applicant, Mr Kagisho Klaas Teise, seeks urgent relief in the form of a
declaratory order to enforce his common law, contractual and constitutional
rights against the first to fourth respondents. The relief sought, as appearing
in the Notice of Motion, is couched in the following terms:
'1. Dispensing with the Rules relating to forms, service, and time periods as
prescribed by the Uniform Rules of Court and directing that this application be
enrolled and heard as an urgent application in terms of Rule 6(12).
3
2. That the notice calling for a Special Council meeting and issued by the Third
Respondent as well as the Special Council meeting held on Monday, 13 July
2026 at 12h00 be declared unlawful, invalid and be set aside.
3. That the notice of suspension served upon the Applicant dated 14 July 2026 be
declared unlawful, null and void and be set aside.
4. That the purported temporary suspension of the Applicant be set aside.
5. Directing that the Applicant must resume his duties as the Municipal Manager
of the First Respondent with immediate effect and on the date of making this
Order of Court.
6. That the First to Third respondents be ordered to comply with Regulation 6 of
the Local Government: Disciplinary Regulations for Senior Managers, 20101 in
relation to the process that must be undertaken preceding a lawful suspension
of the Applicant.
7. That the First to Third Respondents be ordered to pay the costs of this
application, jointly and severally, the one paying the others to be absolved.'
[2] The applicant has been the Municipal Manager of John Taolo Gaetsewe
District Municipality since 01 June 2023. The first respondent is John Taolo
Gaetsewe District Municipality ("the Municipalitt) . The second respondent is
Counsellor Pulane Mogatle-Thoane, in his/her capacity as the mayor of the
Municipality ("the Mayor"). The third respondent is Counsellor lkgopoleng
Aiseng, in his/her capacity as the speaker of the Municipality ("the Speaker").
The fourth respondent is the Acting Municipal Manager of the Municipality.
The fifth respondent is the Member of the Executive Council for Cooperative
Governance, Human Settlement and Traditional Affairs, Northern Cape
Province, who has filed a notice to abide the decision of the Court.
[3] The first to fourth respondents oppose this application on the merits, they did
not challenge this Court's jurisdiction. The applicant does not seek relief
1 GN 344, GG 34213, 21 April 2011.
4
under the Labour Relations Act 66 of 1995, nor does he allege an unfair
labour practice. His challenge is directed at the legality of the Municipal
Council's resolution and the alleged non-compliance with the Local
Government: Disciplinary Regulations for Senior Managers, 2010 and his
contract of employment. The matter therefore falls within this Court's
jurisdiction.
Urgency
[4] In the applicant's founding affidavit, he contends that the application is urgent
because the Municipal Council's decision to place him on a precautionary
suspension with immediate effect (i.e. before affording him an opportunity to
make representations) is unlawful and affects his right to dignity as a senior
officer in the Municipality. The applicant further maintains that his suspension
directly violates the Local Government: Disciplinary Regulations for Senior
Managers, 2010, and his contract of employment. Because the current term
of the councillors ends in November 2026, a hearing in due course may be
academic, so avers the applicant.
[5] The respondents countered the submission of urgency, contending that the
matter is not urgent. They aver that the applicant has failed to set forth
explicitly the circumstances that render the matter urgent. The respondents
insist that the application does not satisfy any of the established principles on
urgency. They go further and argue that it is an abuse of court process,
brought to frustrate and delay finality of the investigations by the Municipality,
and must be struck from the roll.
[6] The impugned decision immediately affected the applicant's ability to perform
his functions as a municipal manager and raised questions concerning the
legality of a decision that has already been implemented. In those
circumstances, I am satisfied that the applicant will not obtain substantial
redress at a hearing in due course.
5
Point in limine
[7] The applicant's attorneys had caused a notice contemplated in Rule 7(1) of
the Uniform Rules of Court to be served on the first to fourth respondents'
(hereinafter collectively referred to as the respondents) attorneys disputing the
authority of Koikanyang Incorporated to act on the respondents' behalf. Before
Mr Ramonyai made his submissions on behalf of the respondents, but after
Mr Chwaro had completed his arguments on behalf of the applicant without
raising the Rule 7(1) notice, Mr Ramonyai sought clarity regarding the
Rule 7(1) challenge. Before the Court could hear him further on that aspect,
Mr Chwaro submitted that the applicant's instructing attorney has indicated to
him that he is withdrawing the challenge. This was a rather unexpected turn
of events, but an aspect that need not detain us any further.
Merits
[8] A synopsis of the facts leading to this application is necessary. The applicant,
together with two other senior members of the Municipality, was arrested by
members of the Directorate for Priority Crime Investigation (colloquially known
as the Hawks) on 29 June 2026 at his workplace. The reason for the arrest is
described differently by both the applicant and the respondents. According to
the applicant, the arrest relates to the outcome of a competency assessment
of one of the unsuccessful applicants for a senior managerial post. However,
according to the deponent to the respondents' answering affidavit, the
Speaker, the arrest followed investigations of corruption, fraud, cyber fraud,
cyber forgery, uttering and the contravention of the Local Government:
Municipal Finance Management Act 56 of 2003 ("MFMA") resulting from
allegations to the effect that the applicant unlawfully interfered with recruitment
processes. The criminal case is postponed to 30 August 2026 for transfer to
the Commercial Crimes Court, avers the Speaker. The applicant and the two
colleagues are each admitted to bail in the amount of R10 000. The Speaker
colleagues are each admitted to bail in the amount of R10 000. The Speaker
maintains that the applicant deliberately withheld the investigation from the
Municipality.
6
(9] . Following the arrest of the applicant, the Mayor addressed an email dated 01
July 2026 to the applicant, "KKT1", inter alia, to this effect:
'Following your arrest and subsequent release on bail in relation to allegations
concerning the recruitment of a Senior Manager, I have considered the
circumstances and you are hereby requested, as a precautionary measure, to place
you on compulsory leave with immediate effect.' (Sic.)
(1 O] Pursuant to receipt of the email, the applicant engaged his erstwhile attorneys,
EB Reetsang Incorporated, to draft a response to the Mayor, contending that
placing him on leave would be invalid and unlawful. Reetsang attorneys
addressed a four-page letter, "KKT2", to the Mayor who in turn availed that
copy to the Municipality's attorneys (Koikanyang Incorporated). On 06 July
2026, Koikanyang attorneys responded to the letter by merely stating that they
were taking further instructions.
(11] Meanwhile, the applicant ignored the Mayor's communication and continued
to report for work. On 06 July 2026, the Speaker issued a Notice for a Special
Council Meeting. The parties differ on whether the special meeting was
convened. According to the applicant, the meeting did not convene on the 6th,
whereas the Speaker avers that the said meeting was held on the 6th but was
rolled over to 13 July 2026 for the adoption of the decision to place the
applicant on suspension. The Speaker annexed the Council meeting minutes
for both the 6th and 13th July 2026 to the papers.
(12] The following were recommendations, in relevant part, made on 13 July 2026:
'1. That Council notes the arrest and charges against JTGDM Municipal Manager:
Mr. KK Teise.
2. That Mr. KK Teise be placed on precautionary suspension with immediate
effect, with full-pay pending the outcome of a disciplinary hearing and/or
finalization of the criminal matter, in terms of Regulation 5 of the Disciplinary
Regulations for Senior Managers.
7
Reason: His continued presence may interfere with investigations, prejudice
witnesses, and compromise the integrity of the municipa/Uy.
3. That Mr. KK Teise be afforded an opportunity to make written representations
within 7 working days as to why his precautionary suspension should not be
effected, in line with fair labour practice.
4. That Council appoints the Acting Municipal Manager with immediate effect until
the finalisation of the disciplinary process or appointment of the new Municipal
Manager, but not exceeding a period of three (3) months without review on a
month-to-month basis.'
[13] On 14 July 2026, the Mayor issued a notice of precautionary suspension
against the applicant, informing him that the decision to suspend him was in
terms of Regulation 6 of the Local Government: Disciplinary Regulations for
Senior Managers, 2010, and was taken at a Special Council Meeting held on
13 July 2026. In terms of the conditions of suspension, he was further
expected to vacate the workplace by close of business day on 14 July 2026,
as his continued presence could jeopardise the investigations into his alleged
misconduct, be detrimental to the stability of the Municipality, and interfere
with potential witnesses. The suspension was precautionary, with immediate
effect, pending his representations within seven working days of receipt of the
notice. The applicant accordingly stopped reporting for duty on 14 July 2026.
[14] On 15 July 2026, the applicant's present attorneys addressed a letter to the
Municipality taking issue with, inter alia, the immediacy of the suspension and
alleging non-compliance with Regulation 6 and the employment contract
clause 14. Further alleging that the Municipality was acting ultra vires because
the "interim/temporary" precautionary suspension is not provided for in the
Regulations or the employment contract. The letter urged the Municipality to
withdraw the 14 July 2026 notice, failing which litigation would be imminent.
withdraw the 14 July 2026 notice, failing which litigation would be imminent.
[15] The Municipality's attorneys responded on 16 July 2026 with a letter
explaining that the applicant was misunderstanding the 14 July 2026 notice in
that, his precautionary suspension would take effect only on 22 July 2026 after
8
the lapse of the 7-days he is provided to submit representations for Council's
consideration. The letter expressed that during the 7-day period, the applicant
was placed on compulsory paid leave pending the receipt of his
representations. Further, it was expressed that the applicant had already
contacted employees, contrary to the "instructions" provided to him on 14 July
2026. Finally, the applicant was urged to submit representations.
[16] The applicant then launched these proceedings with a Notice of Motion dated
17 July 2026. The Speaker contends in the answering affidavit that, although
the applicant's representations were to be received by 21 July 2026, the
Municipality had not received them to date. Counsel for the respondents, Mr
Ramonyai, submitted that by the time the matter was argued on 24 July 2026,
the representations had still not been received. It is this decision by the
Council, taken at the Special Council Meeting of 13 July 2026, that forms the
subject of this application.
[17] Counsel for the applicant submitted that the Municipal Council did not adhere
to Rule 5 of the South African Local Government Association ("SALGA")
Standing Orders and Rules for meetings of Council (which the Municipality
adopted on 1 July 2008) in convening the meeting held on 13 July 2026. The
argument is that the 48-hour notice period required by the SALGA Rule 5 was
not met as the notice was issued on Friday, 10 July 2026, for a meeting to be
held on Monday, 13 July 2026. The respondents' response to this challenge •
was that, first, the fact that the meeting was scheduled for the 6th and
adjourned to the 13th meant that the notice did not strictly have to comply with
the 48-hour rule; and, besides, if a matter is urgent, a shorter period of notice
is permissible. The respondents added that, in any event, the 48-hour rule
applied to councillors only and the applicant was not a councillor but an
administrator.
applied to councillors only and the applicant was not a councillor but an
administrator.
[18] Section 29 and 29A of the Local Government: Municipal Structures Act 117 of
1998 deals with meetings of municipal councils and provides:
'29 Meetings of municipal councils
9
(1) The speaker of a municipal council decides when and where the council meets
subject to section 18(2), but if a majority of the councillors requests the speaker
in writing to convene a council meeting, the speaker must convene a meeting
at a time set out in the request.
29A Public notice of meetings of municipal councils
The municipal manager of a municipality must give notice to the public, in a manner
determined by the municipal council, of the time, date and venue of every-
(a) ordinary and special meeting of the council or a meeting of a committee of a
council;
(b) ordinary or special meeting of the council or a meeting of a committee of a
council that was postponed; and
(c) urgent meeting of the council or meeting of a committee of a council, except
when time constraints make this impossible.'
Section 18(2) of the Act directs a munic ipal council to meet at least quarterly.
No standing orders , rules, by-laws or other admissible material were placed
before the Court to substantiate the applicant's contention that a mandatory
48-hour notice period applied in the circumstances. In the absence of
admissible material establishing the existence and applicability of the alleged
48-hour requirement, the challenge cannot succeed .
[19] Regulation 6 of the Local Government: Disciplinary Regulations for Senior
Managers, 2010 deals with precautionary suspens ion and stipulates:
'(1) The municipal council may suspend a senior manager on full pay if it is alleged
that the senior manager has committed an act of misconduct, where the
municipal council has reason to believe that -
(a) the presence of the senior manager at the workplace may -
(i) jeopardise any investigation into the alleged misconduct;
(ii) endanger the well-being or safety of any person or municipal
property; or
(iii) be detrimental to stability in the municipality; or
(b) the senior manager may -
(i) interfere with potential witnesses; or
10
(ii) commit further acts of misconduct.
(2) Before a senior manager may be suspended, he or she must be given an
opportunity to make written representations to the municipal council why he or
she should not be suspended, within seven (7) days of being notified of the
council's decision to suspend him or her.
(3) The municipal council must consider any representation submitted to it by the
senior manager within 7 days.
(4) After having considered the matters set out in sub-regulation (1), as well as the
senior manager's representations contemplated in sub-regulation (2), the
municipal council may suspend the senior manager concerned.
(5) The municipal council must inform -
(a) The senior manager in writing of the reasons for his or her suspension on
or before the date on which the senior manager is suspended; and
(b) The Minister. and the MEC responsible for local government in the
province where such suspension has taken place, must be notified in
writing of such suspension and the reasons for such within a period of
seven (7) days after such suspension.
(6) (a) If a senior manager is suspended, a disciplinary hearing must commence
within three months after the date of suspension, failing which the
suspension will automatically lapse.
(b) The period of three months referred to in paragraph (a) may not .be
extended by council.'
[20) Clause 14 of the employment contract between the applicant- and the
Municipality, in relevant parts, states:
'14.1. The Municipality may suspend the Municipal Manager on full pay if he is
alleged to have committed a serious offence and the Municipality believes
his presence at the workplace might jeopardise any investigations into the
alleged misconduct or endanger the wellbeing or safety of any person or
municipal property provided that before a Municipal Manager is suspended
as a precautionary measure, he must be given an opportunity to make
representation on why he should not be suspended.
representation on why he should not be suspended.
14.2. The Municipal Manager who is to be suspended must be notified, in writing,
of the reasons for his suspension. He shall have a right to respond within
seven (7) working days.'
11
[21] It is clear that clause 14 of the contract of employment is analogous to
Regulation 6. The respondents submitted that the contract gives way to
Regulations should there be a discord between the interpretation of clause 14
and that of Regulation 6. It is also noted that the respondents' case in their
answering affidavit is that the applicant was on a compulsory paid leave rather
than an interim precautionary suspension during the 7-day period pending his
representations. Of course, such would be incongruous with the 14 July 2026
notice of suspension which makes no mention of a mandatory paid leave and
is clear that the terms and conditions of suspension were to take effect
immediately. I especially express this to dispel the notion that the applicant
misunderstood the notice of suspension. Indeed, throughout these
proceedings, the applicant's understanding is that he has been placed on
interim precautionary suspension and has couched his case with such an
understanding. This is this Court's understanding as well and this matter shall
accordingly be decided as such.
[22] Counsel for the applicant invoked Biyase v Sisonke District Municipality and
Anothe~ ("Biyase"), Lebu v Maquassi Hills Local Municipality (1)3 ("Lebu 1")
and Mathe v Sedibeng District Municipality4 ("Mathe"), to support the
applicant's contention that his precautionary suspension must have been
preceded by an invitation to furnish representations within seven days.
[23] In Biyase, Mr Biyase fell within the definition of senior manager. He was served
with a letter under the heading "notice of intention to suspend" on 27 October
2011. Attached to the letter was a complaint sheet which had set out four
allegations of gross misconduct by Mr Biyase. He had until the close of
business on 31 October 2011 to submit written representations as to why he
should not be suspended. His attorneys submitted written representations on
his behalf on 01 November 2011, challenging the suspension as .unlawful
his behalf on 01 November 2011, challenging the suspension as .unlawful
and/or unfair. They took issue with the four-day period, contending that the
legislature prescribed a period of seven days as the period within which to file
2 (2012) 33 ILJ 598 (LC).
3 (J 2035 /11) [2011] ZALCJHB 170 (21 October 2011); (2012) 33 ILJ 642 (LC).
4 (2026/113853) [2026) ZAGPJHC 626 (11 June 2026).
12
representations. Mr Biyase's attorneys contended that he was therefore not
afforded adequate time within which to file such representations. The
municipality, however, resolved to suspend him on the same day, 01
November 2011. The municipality had also failed to explain why or whether
any of the circumstances/requirements in Regulation 6(2) had arisen/were
met.
[24] In Lebu, the municipal manager was suspended following a series of council
resolutions and litigation. The municipality had failed to articulate the purpose
of the suspension. In this regard, the Court observed that suspension is a
measure that must not be resorted to lightly. It observed that there was a
tendency in the public sector to adopt suspension as a measure of first resort
and almost automatically once a form of misconduct is alleged. The Court
explained that the purpose of removing an employee from work, even
temporarily and on full pay, must be conveyed to the employee concerned in
sufficient detail to enable him/her to make representations meaningfully.
[25) In Mathe, Mr Mathe - the municipal manager of Sedibeng Municipality, was
placed on precautionary suspension on suspicion that he may have committed
a misconduct relating to the disciplinary enquiry of the municipality's chief
financial officer. Whilst the municipality invited representations from Mr Mathe,
it did not give him the basis upon which the Regulation 6(1) requirements were
met. Notwithstanding, Mr Mathe submitted the representations. The municipal
council's resolution, however, stated that Mr Mathe failed to respond to the
allegations brought against him, and provided no reasons as to why he should
not be placed on precautionary suspension save for placing on record counter
allegations. He approached the High Court to set aside his suspension on the
basis that he was not heard on the municipality's reasons that the
requirements were met.
[26) The facts in Biyase, Lebu and Mathe are distinguishable from those in the
[26) The facts in Biyase, Lebu and Mathe are distinguishable from those in the
case before this Court. In this matter, the applicant was aware of the Hawks'
investigations and, according to the respondents, did not inform the
Municipality thereof until .l:lis arrest at the workplace. The respondents
13
regard the criminal charges that he is facing, and the charges he internally
faces as the municipality instituted its investigations, as serious. His case will
be heard at the Commercial Crimes Court, and he has not disputed those
allegations or the fact that he is admitted to bail. Further, as stated above, in
both Biyase and Mathe, the municipality had failed to explain why or whether
it believed that any of the circumstances in Regulation 6(2) had arisen.
Similarly, in Lebu, the municipality had failed to articulate the purpose of the
suspension. None of the above deficiencies arises in casu. Indeed, the
applicant's case is not that the reasons for his suspension were not provided
with sufficient detail for him to respond or that the Municipality did not establish
why or whether Regulation 6(1) requirements have been met. His case is
mainly that he was not afforded seven days to make representations. It is
therefore in light of this case's peculiar context that the Municipality's
compliance with Regulation 6 must be assessed.
[27] The critical aspect of the Regulation pertains to Regulation 6(2) that before a
senior manager may be suspended, he or she must be given an opportunity
to make written representations to the municipal council (within seven (7) days
of being notified of the council's decision to suspend him or her), explaining
why he or she should not be suspended.
[28) Regulation 6 is not a model of legislative clarity. As observed in Biyase,5
subregulation (2) appears, at first glance, to contain an internal tension. Whilst
it provides that a senior manager must be afforded an opportunity to make
representations before being suspended, it also refers to those
representations being made within seven days of being notified of council's
decision to suspend him or her. Subregulation (4), in turn, provides that the
mun,icipal council may suspend the senior manager only after considering
those representations.
those representations.
[29) Regulation 6 is unfortunately inelegantly drafted. Subregulation (2) stipulates
that, before a senior manager may be suspended, he or she must be afforded
5 Biyase paras 13-14.
14
an opportunity to make written representations within seven days of being
notified of the council's decision to suspend him or her. Read literally and in
isolation, subregulation (2) appears to contemplate both a decision to suspend
and a prior opportunity to make representations. Subregulation (4), however,
provides that the municipal council may suspend the senior manager only after
considering the representations contemplated in subregulation (2). It is
therefore necessary to construe the regulation as a coherent whole and in a
manner that gives effect to each subregulation.6
[30) In my view, the "decision to suspend" referred to in subregulation (2) is not
necessarily synonymous with the final act of suspension contemplated in
subregulation (4). The more sensible interpretation is that it refers to a
preliminary council determination that circumstances contemplated in
Regulation 6(1) exist and that precautionary suspension is under
consideration.7 Such a construction gives meaning to the requirement that the
employee be notified of council's decision while preserving the obligation in
subregulation (4) that representations be considered before the suspension
process is finally determined.
[31] The decisions in Biyase, Lebu 1 and Mathe do not compel a different
conclusion. Those cases emphasise the importance of affording a senior
manager a genuine opportunity to make representations before a final
decision on precautionary suspension is taken. They do not, however,
establish an inflexible rule that a municipal council is, in every circumstance,
prohibited from taking immediate protective measures where the jurisdictional
facts contemplated in Regulation 6(1) are objectively present. The enquiry
remains whether, viewed in context and having regard to the purpose of
Regulation 6, the procedure adopted by council was lawful and rational.
[32) In the present matter, the Council was confronted with the arrest of its
[32) In the present matter, the Council was confronted with the arrest of its
Municipal Manager by the Hawks, allegations involving corruption, fraud,
6 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA); 2012 (4) SA
593 (SCA) para 18.
7 See Lebu v Maquassie Hills Local Municipality and Others (2) (J 2695/11) [2011) ZALCJHB 248 (7
December 2011); (2012) 33 ILJ 653 (LC) para 14.
15
cyber fraud, cyber forgery, uttering and contraventions of the MFMA, an
ongoing criminal investigation and the likelihood that municipal employees
would be required to serve as witnesses. Unlike Biyase and Mathe, the
concerns relied upon by council were neither speculative nor abstract. They
arose from events that had already culminated in the applicant's arrest,
release on bail and pending prosecution before the Commercial Crimes Court.
(33) This interpretation is also consistent with the practical realities which
Regulation 6 seeks to address. Where council has reason to believe that the
continued presence of a senior manager may jeopardise investigations,
interfere with potential witnesses or be detrimental to stability within the
municipality, the protective purpose of Regulation 6(1) may justify interim
measures designed to preserve the integrity of the investigation pending
receipt and consideration of representations. Such measures are
precautionary and protective in nature and do not constitute a final
determination of the senior manager's suspension status or guilt on the
charges.
(34) Importantly, the notice issued to the applicant on 14 July 2026 drew an
express distinction between what it termed a "temporary precautionary
suspension" and the Council's subsequent determination whether that
suspension should be made final after receipt of representations. Whether that
terminology is entirely consistent with the wording of Regulation 6 need not be
finally determined. What is significant is that the applicant was afforded exactly
the opportunity contemplated in subregulation (2), namely an opportunity to
place facts and submissions before Council within seven days for
consideration before Council finally determined its position.
[35) It is, however, unnecessary in this matter to pronounce definitively on the outer
limits of council's powers under Regulation 6. Even if it is assumed in favour
of the applicant that the procedure adopted by council was not perfectly
of the applicant that the procedure adopted by council was not perfectly
aligned with the wording of Regulation 6, th.at does not conclude the enquiry.
The applicant was expressly afforded the opportunity contemplated in
Regulation 6(2) to place representations before Council within seven working
16
days. Council remained obliged by Regulation 6(3) to consider any such
representations and thereafter determine whether the precautionary
suspension should remain operative, thus, being final.
[36] The applicant elected not to avail himself of that opportunity. Unlike the
applicants in Biyase and Mathe, who submitted representations and
complained that those representations were either not properly
accommodated or not meaningfully considered, the present applicant
furnished no representations at all. It is appreciated that the abovementioned
cases were not the sort where suspension was effected immediately.
Nonetheless, the applicant's total absence of an effort to submit
representations cannot be ignored. From 14 July 2026 until the expiry of the
period afforded to him on 21 July 2026, he did not engage the process
contemplated by Regulation 6. Instead, he approached this Court before
Council had the opportunity to consider his position and complete the process
envisaged by the Regulation.
[37] This is what was pronounced by Wilson J in Mathe8
'In my view, Mr Mathe is plainly correct. The regulations afford Mr Mathe a right to
remain in post pending disciplinary proceedings taken against him unless the
regulation 6(1) requirements are met and he has been given a reasonable opportunity
to respond to the facts upon which a municipal council believes that they have been
met.' (My emphasis.)
[38] The applicant was afforded an opportunity to furnish representations directed
at the Council's concerns that his continued presence in office could prejudice
investigations, interfere with witnesses and negatively affect the
administration of the Municipality. In the circumstances of this case, that
constituted a reasonable opportunity to address the factual basis upon which
Council relied in invoking Regulation 6(1).
8 Supra fn 4 para 7.
17
[39] It is the respondents' contention that the applicant, occupying the position of
Municipal Manager, wields power and may interfere with witnesses or even
exert pressure on them as his subordinates during the • investigations.
According to the respondents, the matter first came to light when Ms
Tshabaemang sought intervention from the Court, albeit not prosecuting the
matter to finality, and subsequently reported it to the Hawks. The Municipality
avers that it could not conduct internal investigations as there was not enough
detail from Ms Tshabaemang's letter at the time. This Court cannot also ignore
the arguments presented on behalf of the respondents, particularly relating to
the act of dishonesty, as that impacts on his position as the accounting officer.
There is no reason why the respondents cannot be afforded the opportunity
to investigate the allegations while the applicant is placed on a precautionary
suspension with full pay.
[40] Nor can it be overlooked that the applicant occupies the most senior
administrative office within the Municipality and serves as its accounting
officer. The allegations under investigation concern dishonesty and
irregularities relating to recruitment processes. Having regard to the nature of
the office occupied by the applicant, the seriousness of the allegations and the
existence of ongoing criminal proceedings, the concerns articulated by
Council regarding interference with witnesses and prejudice to investigations
cannot be dismissed as fanciful or irrational.
[41] Furthermore, the applicant's interpretation would lead to anomalous results. A
municipal manager occupies the most senior administrative position within a
municipality and exercises extensive powers over personnel, records,
procurement processes and municipal administration. Where allegations
involve dishonesty, fraud, corruption or interference with recruitment
processes, the very mischief contemplated by Regulation 6( 1) may materialise
processes, the very mischief contemplated by Regulation 6( 1) may materialise
during the seven-day period. It is improbable that the legislature intended to
deprive a municipal council of the ability to take immediate protective
measures where it reasonably believes that the risks enumerated in
Regulation 6(1) are present.
18
[42] In any event, it is not in all circumstances that the lack of strict compliance with
Regulation 6 shall render a precautionary suspension unlawful. Mhlantla J for
the majority of the Constitutional Court in Liebenberg NO and Others v
Bergrivier Municipality9 ("Liebenberg'') elucidated:
'In Unlawful Occupiers, School Site v City of Johannesburg, the Supreme Court of
Appeal stated:
"(l)t is clear from the authorities that even where the formalities required by statute are
peremptory it is not every deviation from the literal prescription that is fatal. Even in that event,
the question remains whether, in spite of the defects, the object of the statutory provision had
been achieved."
This was amplified by the Supreme Court of Appeal in Nokeng Tsa Taemane Local
Municipality v Dinokeng Property Owners Association and Others where it was
stated:
"It is important to mention that the mere failure to comply with one or other administrative
provision does not mean that the whole procedure is necessarily void. It depends in the first
instance on whether the Act contemplated that the relevant failure should be visited with nullity
and in the second instance on its materiality . . . . To nullify the revenue stream of a local
authority merely because of an administrative hiccup appears to me to be so drastic a result
that it is unlikely that the Legislature could have intended it."
In African Christian Democratic Party v Electoral Commission and Others, this court,
in the context of assessing a local authority's compliance with municipal electoral
legislation, held that "(a) narrowly textual and legalistic approach is to be avoided".
Rather, the question is whether the steps taken by the local authority are effective
when measured against the object of the legislature, which is ascertained from the
language, scope and purpose of the enactment as a whole and the statutory
requirement in particular.
Therefore, a failure by a municipality to comply with relevant statutory provisions does
Therefore, a failure by a municipality to comply with relevant statutory provisions does
not necessarily lead to the actions under scrutiny being rendered invalid. The
question is whether there has been substantial compliance, taking into account the
relevant statutory provisions in particular and the legislative scheme as a whole.'
9 2013 (5) SA 246 (CC) paras 23-26.
19
[43] Relying on Liebenberg, amongst other authorities, the Labour Court in Mojaki
v Ngaka Modiri Molema District Municipality and Others10 ("Mojakf') found a
48-hours' notice to make representations not fatal to the decision to suspend
a municipal manager under "volatile" circumstances.
[44] Further, the importance of engaging the merits of the notice to suspend,
regardless of procedural shortcomings, was also underscored in Vermaak v
Greater Taung Local Municipality and Others.11 In that case, a chief financial
officer complained about the unlawfulness of the processes and did not
engage the grounds of suspension in his representations. The Court insisted
that "because, ... the nature of the allegations are considered to be serious .
. . it is not sufficient for the employee or his or her attorney to simply criticise
the process and refuse to make the submissions as requested" .12
[45] In so far as the reliance to contractual terms is concerned, I hold the same
sentiments as Molahlehi J in Mojaki that the circumstances in casu are
different.13 Contractual rights, like all rights, are not absolute and a contractual
term cannot circumvent legislative objectives. Further, as already stated, the
applicant was afforded seven days within which to make representations
before a "final" decision on his precautionary suspension was to be made and
he chose not to.
[46] Having regard to the applicant's position as a municipal manager, the nature
of the allegations, the fact that the municipal employees are potential
witnesses in the internal investigation and the pending criminal case, I am
satisfied that the Council had a rational basis to believe that the applicant's
continued presence at the workplace, even for seven days, could interfere with
witnesses and jeopardise ongoing investigations as contemplated in
Regulation 6(1 )(a)(i) and 6(1 )(b)(i).
10 (2015) 36 ILJ 1331 (LC).
11 (J490/17) [2018] ZALCJHB 442 (13 June 2018).
12 Ibid para 59.
13 Mojaki para 35.
20
[47] On the question of costs. Although the application raised an arguable issue
concerning the interpretation of Regulation 6, the applicant has been
unsuccessful. There is accordingly no basis to depart from the ordinary
principle that costs follow the result.
(48] As a result, the following order is made:
1. The forms, service and time periods provided for in the Uniform Rules of
Court are dispensed with, and the applicant's non-compliance therewith
is condoned, and· the matter is heard as one of urgency in terms of
Rule 6(12).
2. The application is dismissed with costs.
Appearances
For the Applicant:
Instructed by:
For the 1st - 4th Respondents:
Instructed by:
For the 5th Respondent:
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Adv. OK Chwaro
Modiboa Attorneys Inc
c/o Motlhamme Pino Attorneys
Adv. E Ramonyai
Koikanyang Inc
c/o Haarhoffs Inc
Office of the State Attorney
Kimberley