Enoch Mgijima Local Municipality and Another v Dingani and Another; In re: Enoch Mgijima Local Municipality and Another v Dayi; In re: Enoch Mgijima Local Municipality and Another v Siqhaza (583/2019; 686/2019; 634/2019) [2020] ZAECGHC 125 (10 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE DIVISION: GRAHAMSTOWN]

CASE Nos: 583/2019; 686/2019; 634/2019

In the matter between:

ENOCH MGIJIMA LOCAL MUNICIPALITY

1st Applicant

VUYO MLOKOTHI N.O.

2nd Applicant

And

MZIWOXOLO DINGANI

1st Respondent

ZANDISILE NXANO

2nd Respondent

In Re:

SIMILO DAYI

3rd Respondent

VUYO MLOKOTHI N.O.

2nd Applicant

MOUNTAIN SIQHAZA

4th Respondent

JUDGMENT

JOLWANA J:

[1] On 12 May 2020 I delivered a judgment in which the appointment of the respondents as general managers of the applicant were reviewed and set aside and/or declared null and void. The 2nd and 3rd respondents have since applied for leave to appeal against the said judgment and orders. Hereunder, I refer to the parties as they were referred to in that judgment for the ease of reading and comprehension. I do not intend to deal with nor enumerate the various grounds of appeal. This is because I have given extensive reasons for my findings and conclusions in my judgment. I am not persuaded by the grounds of appeal or the submissions made thereon that another court might come to a different conclusion. In some ways they are not much more than a recapitulation of the same issues that were raised during the hearing and dealt with in that judgment, perhaps using different words.

[2] However, there is one ground of appeal which does not appear to have been pleaded in the papers nor raised during argument in court on behalf of the respondents, certainly not in the manner that it was in the application for leave to appeal. This ground of appeal is couched as follows in the application for leave to appeal:

“1. The first [applicant] did not have locus standi to bring the application before the Court a quo. Section 56(5) of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) provides that it is the MEC for local government who must take appropriate steps, which steps may include an application to a court, to enforce compliance with the Systems Act where there has been a contravention of section 56(1) (a).

2. Accordingly, the principle adopted by the Constitutional Court in CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (1) BCLR 1(CC) is applicable. The court held that it may mero motu raise a point of law that is apparent on the papers but not dealt with initially by the parties in instances where the ultimate decision would be one premised on an incorrect interpretation of the law.”

[3] As I understand the 2nd and 3rd respondents’ contentions in this regard, the ordinary locus standi of the first applicant or any municipality to bring an application to court for the review and setting aside of its own decisions regarding an appointment which it considers to have been done in contravention of the Local government: Municipal Systems Act 32 of 2000[1](the Systems Act) is ousted by section 56(5) thereof.

[4] Section 56(5) reads:

“If a person is appointed to a post referred to in subsection (1)(a) in contravention of this Act, the MEC for local government must, within 14 days of becoming aware of such appointment, take appropriate steps to enforce compliance by the municipal council with this Act, which steps may include an application to a court for a declarator on the validity of the appointment or any other legal action against the municipal council.”

[5] For this narrow interpretation of section 56(5) reliance was placed on the Labour Court’s decision in Mohlomi v Ventersdorp/Tlokwe Municipality and Another [2018] 4 BLLR 355 (LC); (2018) 39 ILJ 1096 (LC) para 83. In Mohlomi Snyman AJ said:

“[82] It is significant that despite the Systems Act providing for an appointment of a manager being null and void if it is not in

compliance with the Systems Act, it does not follow that the municipality (such as the first respondent) can simply revoke, ignore

or cancel the appointment. If the municipality wants to treat the appointment as null and void, then it must approach the Court for an order to that effect. In Mbashe Municipality v Dumezweni and Others the Court dealt with Section 54A (3) and said:

‘I do not understand subsection (3) to mean that the appointment of a municipal manager may be treated conclusively by a Municipality, or anybody else, as null and void without the intervention of a court. The principle of legality does not permit this. Contracts are binding but may be void or voidable.’

This ratio clearly applies to Section 56(2) as well.

[83] Therefore, and before any action is taken to enforce compliance with the Systems Act, there is first a duty on the MEC to investigate, gather all information, and if a contravention is found to exist, to then only take steps to enforce compliance with same. It is also clear that ‘enforcing compliance’ is not only limited to challenging the appointment in a Court, as this avenue is only one of the steps that may be taken. In my view, it is clear from the ratio in Merafong City Local Municipality that the phrase ‘take appropriate steps’ includes steps to bring about the termination of employment of the manager concerned without having to resort to legal action. Ordinarily, legal action would only be the appropriate course of action if the MEC or Municipality seeks to invoke Section 56(2) to declare the appointment null and void. So, and in short, where an appointment does not comply with Section 56(1)(b) of the Systems Act, the MEC is obliged to remedy the situation by either instituting process to bring about the termination of employment of the manager, or litigating to challenge the validity of the appointment.”

[6] There are a number of difficulties with the 2nd and 3rd respondents’ submissions in this regard. The first one is that it was never the first applicant’s case that Mr Dayi was a section 56 manager. In fact, it was recognised that he was employed in terms of section 55(1). The second problem is that as for Mr Nxano who I found to have been a section 56 manager, there was clearly a glaring selective reading of certain parts or sentences in paragraph 83 of Mohlomi. This was done by ignoring certain other sentences in paragraph 83. Secondly para 83 seems to have been read to the exclusion of paragraph 82. Paragraph 82 of Mohlomi makes it clear that “[i]f the municipality wants to treat the appointment as null and void, then it must approach the Court for an order to that effect.” I am therefore unable to agree with the narrow interpretation of section 56(5) even on the basis of Mohlomi itself. The view that I take is that the interpretation that section 56(5) ousts the ordinary standing of a municipality to approach court where an appointment of a manager has been done in contravention of section 56(1) is far-fetched and consequently unsustainable.

[7] The test for an application for leave to appeal was set out as follows in S v Smith 2012 (1) SACR 567 (SCA) para 7:

“What the test of reasonable prospects of success postulates is a dispassionate decision based on the facts and the law, that a court

of appeal could reasonably arrive at a conclusion different to that of the trail court. in order to succeed, therefore, the

appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not

remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[8] I have considered, dispassionately, I might add, all the grounds of appeal and the submissions made in regard thereto as well as the main judgment. I am not at all convinced that the applicants for leave to appeal have, on proper grounds, established realistic prospects of success on appeal on any of those grounds of appeal. Accordingly, the application for leave to appeal must fail.

[9] In the result, the following order shall issue:

1. The application for leave to appeal is dismissed with costs.

_________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the Applicants: S C RORKE SC

Instructed by: NETTELTONS ATTORNEYS

Grahamstown

Counsel for the 2nd and 3rd Respondents: W. MOKHARI SC

Instructed by: WERKMANS ATTORNEYS

Sandton

Heard on: 21 October 2020

Delivered on: 10 November 2020

[1] In this judgment, as was the case in the main judgment reference to the Systems Act means the Local Government: Municipal Systems Act 32 of 2000 as amended in terms of Local Government: Municipal Systems Amendment Act 7 of 2011