Greater Taung Local Municipality and Another v Mahura (CIV APP HC 8/15) [2015] ZANWHC 76 (26 November 2015)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: Civ. App. HC 8/15

In the matter between:

GREATER TAUNG LOCAL MUNICIPALITY

First Appellant

KATLEGO TRAVEL GABANAKGOSI

Second Appellant

and

LEKOKO A. MAHURA

Respondent

CIVIL APPEAL – FULL BENCH

LEEUW JP, HENDRICKS J & LANDMAN J

J U D G M E N T

LEEUW JP:

Introduction

[1] This appeal, with the leave of the Court a quo, is against an order setting aside the appointment of the second appellant as a Municipal Manager of first appellant, which appointment was approved through a resolution adopted by the Municipal Council (Council) and subsequently referred by the Mayor to the Member of the Executive Council for the Department of Local Government and Traditional Affairs in the North West Province (The MEC).

[2] The first appellant, the Greater Taung Local Municipality (the Municipality), is an organ of State in the local sphere of government

as defined in the Constitution.[1] The second appellant is Katlego Travel Gabanakgosi (Mr Gabanakgosi) who is employed by the Municipality as its Municipal Manager. The respondent, Lekoko A. Mahura (Mr Mahura) is a member of the Council.

Background

[3] The vacant post of Municipal Manager was duly advertised in the City Press Newspaper of the 25 August 2013. Mr Gabanakgosi was one of the candidates who applied for the position. The Council appointed a selection panel that

short-listed the candidates on the 16 September 2013.

[4] The interviews of the short-listed candidates were conducted on the 16 October 2013. Mr Gabanakgosi scored the highest points and was recommended for appointment. The selection panel submitted its recommendation

to the Council for consideration. The appointment of Mr Gabanakgosi was confirmed at a special meeting of the Council on the 28 January 2014 as per Resolution No.124/2014. Mr Gabanakgosi was appointed with immediate effect through a letter dated 29 January 2014 signed by the Mayor. The appointment was with effect from 3 February 2014. On 4 February 2014, in compliance with section 54A(7) of the Municipal Systems Act[2] (Municipal Systems Act), the Mayor informed the MEC about the appointment of Mr Gabanakgosi.

[5] Mr Mahura’s grounds for review in the Court a quo were that the appointment of Mr Gabanakgosi is irregular and unlawful and consequently that Resolution 120/2014 should be set aside for the following reasons:

(a) that the panel that interviewed Mr Gabanakgosi committed certain irregularities during the interviews and was biased in favour of Mr Gabanakgosi;

(b) Mr Gabanakgosi does not have the required qualifications for the position;

(c) that the Executive Committee of Council did not consider the appointment of Mr Gabanakgosi before it was submitted to the Council.

In the court a quo

[6] The Learned Judge Gura J held the view that it was irregular for the selection panel to lower the minimum prescribed requirements for the position of Municipal Manager; that Mr Gabakgosi did not have the prescribed qualifications for the position and further that it was imperative that the recommendation of the selection panel first serve before the Executive Committee of Council before it could be considered by the Council. The learned Judge then made the following order:

“1. The decision to appoint the second respondent is hereby reviewed and set aside;

2. The resolution taken by the municipal council or the joint sitting of the municipal council and the executive committee of the first respondent on 28 January 2014, appointing the second respondent as its municipal manager is hereby declared ultra vires, unlawful and void ab initio;

3. The first respondent is ordered to re-advertise the vacant position of its municipal manager and to follow the prescribed procedure in filling it;

4. All the respondents are ordered to pay the costs jointly and severally, payment by one of them absolves the rest.”

[7] Issues

1. Whether the appointment of Mr Gabanakgosi was irregular and in contravention of the relevant statutory provisions.

2. Whether Mr Gabanakgosi was qualified for the position of Municipal Manager.

3. Whether the appointment of Mr Gabanakgosi is null and void.

4. Remedy.

5. Costs.

Statutory provisions regulating the appointment of the Municipal Manager as at 3 February 2014:

[8] The appointment of a Municipal Manager was previously governed by section 82 of the Municipal Structures Act,[3] which was amended by section 121 of the Municipal Systems Act and repealed by section 15 of Act 7 of 2011. Section 54A of the Municipal Systems Act was inserted by section 2 of Act 7 of 2011. The appointment of Municipal Managers is presently governed by section 54A with effect from 5 July 2011.

[9] The power and authority to appoint a Municipal Manager vests in the Council.[4] Section 54A(4) provides that:

“If the post of municipal manager becomes vacant, the municipal council must—

(a) advertise the post nationally to attract a pool of candidates nationwide; and

(b) select from the pool of candidates a suitable person who complies with the prescribed requirements for appointment to the post.”

[10] Furthermore, Council is vested with the power to re-advertise the post where a suitable candidate cannot be appointed[5] and may request the MEC to second a suitable candidate to act in the position of Municipal Manager and also prescribe the requirements for appointment to the post.[6] After the interview and appointment of a suitable candidate, the Council must within 14 days, inform the MEC of the appointment

process and outcome thereof.[7] Section 54A(4) does prescribes the procedure to be followed during the interview and selection of candidates.

[11] However, section 120 of the Municipal Systems Act empowers the Minister responsible for Local Government to make regulations or issue guidelines not inconsistent with this Act concerning, amongst others section 54A. The Municipal Performance Regulations for Municipal Managers and Managers directly accountable to Municipal Managers, were promulgated under section 120 in Regulation No.28895 dated 1 August 2006 (2006 Regulations). The entire 2006 Regulations deal amongst others, with the employment contracts and Performance Agreements of Municipal Managers and Managers directly accountable to Municipal Managers. Chapter 4 of these Regulations, provides for the job description of Municipal Managers, and in particular, Regulations 35 outlines the job description; Regulation 36: the “job purpose”; Regulation 37: Main accountabilities and Regulation 38: the “Inherent Requirements” of the job of the Municipal Manager. The 2006 Regulations, and in particular, Regulations 35 to 38 thereof, were repealed by Regulations 55 of the “Regulations of Appointment and Conditions of Employment of Senior Managers” which came into operation on the 11 January 2014 (2014 Regulations). The 2014 Regulations do not apply retrospectively.[8]

[152] It is however, important to note that although the 2006 Regulations dealt with the performance of the Municipal Managers and Managers directly accountable to the Municipal Manager, the 2014 Regulations provide for a comprehensive procedure for the recruitment, selection and appointment of employees including the Municipal Manager. The present procedure for the appointment of a Municipal Manager is therefore that the Council, in exercising its power of filling that position as prescribed in section 54A (4), must be guided by and apply the procedure prescribed in the 2014 Regulations. Prior to the 11 January 2014, when Mr Gabanakgosi was interviewed on the 16 October 2013 and subsequently recommended for appointment on 28 January 2014. The 2006 Regulations were still applicable to him.

Qualification of the Municipal Manager

[13] Mr Mahura places reliance on the 2014 Regulations which were not in operation at the time of the interview and recommendation for appointment by the selection panel. The court a quo correctly held that Regulation 38(1) of the 2006 Regulations was the applicable legislation at the time of the interview of Mr Gabanakgosi. The “inherent requirements” of the job of the Municipal Manager prescribed in the 2006 Regulations are:

(1) a recognised B degree in public administration, or relevant fields;

(2) a minimum of five (5) years experience at senior management level;

(3) the core competencies which must distinguish between core managerial competencies and core occupational competencies; and

(4) core occupational and dynamic creativity to improve the functioning of the municipality.

[14] Despite finding that the 2006 Regulations were applicable when Mr Gabanakgosi was interviewed, the court a quo nevertheless proceeded to apply the requirements for the position of Municipal Manager prescribed in the 2014 Regulations which are: (i) Honours degree in Public Administration/Political Science/Law or equivalent; (ii) a Certificate in Programme for Municipal Development; (iii) Professional Registration with a Recognised relevant professional body. With regard to work experience and knowledge: the requirements are (i) 7 – 8 years experience at senior management level; and (ii) have a proven successful organizational transformation and turnaround of a large/medium corporate/public sector organisation. These requirements are stipulated in Annexure C of the 2014 Regulations set out a higher bar than that required in the 2006 Regulations. Thus the court a quo erroneously held that Mr Gabanakgosi did not qualify for the position of Municipal Manager based on a Regulation that was not in operation.

[15] Furthermore, the requirements for the position of a Municipal Manager as they appeared in the advertisement of the post published in the City Press Newspaper on the 25 August 2013, were that:

“Applicants must be in possession of a relevant appropriate B degree in Public Management/Admin or equivalent qualification. The key competencies in line with the Municipal Regulations on minimum competency levels as published under GNR.493 in GG 29967 dated 15 June 2007. A minimum of 5 years’ experience at Senior Management level in a Local Government environment. Must demonstrate experience in management of a substantial staff and significant budget in a regulated environment, preferably the knowledge of MFMA, in pursuing promotion of economic development by government. Knowledge and understanding of the local government Legislative Framework. Extensive knowledge of legislation pertaining to Local Government and financial management, service delivery innovations and strategic capabilities. Successful candidates must have good communication, leadership and problem solving skills. Computer literacy. Valid driver’s license.” (emphasis added)

[16] The requirements for the position of Municipal Manager, in the case of Mr. Gabanakgosi are those prescribed in Regulation No.493

published in the Government Notice dated 15 June 2007 (2007 Regulations). The 2007 Regulations were promulgated in terms of the Municipal Finance Management Act No. 56 of 2003 (MFMA). The only Regulations promulgated under section 120 of the Municipal Systems Act are the 2006 Regulations which provide for employment contracts related to performance.[9]

[17] In the 2007 Regulations, a Municipal Manager’s level falls under the category of senior management level.[10] He or she is head of administration and is an accounting officer subject to the policy directions of the Council. Regulation 2 of these regulations provides that:

“General competency levels for accounting officers

2. (1) The accounting officer of a municipality must generally have skills experience and capacity to assume and fulfil the responsibilities and exercise the functions and powers assigned in terms of the Act to the accounting officer of the municipality.

(2) The accounting officer of a municipal entity must generally have the skills, experience and capacity to assume and fulfil the responsibilities and exercise the functions and powers assigned in terms of the Act to the accounting officer of municipal entity.

(3) An accounting officer must note that specific financial management responsibilities, functions and powers are entrusted by the Act to accounting officers and that any failure to comply with these may constitute financial misconduct.”

Furthermore, Regulation 3 of the 2007 Regulations, requires a Higher Education Certificate of at least NQF Level 6 or certificate in Municipal Financial Management (SAQA Qualification ID No.48965). For work-related experience, a minimum of 5 years at senior management level.

[18] Regulations 7 of the 2007 Regulations prescribes that the minimum competency levels for senior managers of a municipality with an annual budget of below R500 million, must have a Higher Education Qualification and “at least NQF Level 6 in a field relevant to the senior management position, or certificate in Municipal Financial Management (SAQA Qualification ID No.48965) and a work-related experience of a minimum of 5 years at middle management level. In respect of a municipality with an annual budget of R500 million and above, the Higher Qualification is at least NQF Level 7 in a field relevant to the senior management position and work-related experience of a minimum of 7 years at senior and middle management level, of which at least 2 years must be at senior management level. The issue of the annual budget of the Municipality was not raised in the Court a quo.

[19] Mr Gabanakgosi has a higher education qualification in B. Tech in Civil Engineering, which is a post-diploma qualification and has work related experience of more than 5 years at senior management level in that he occupied a position of Director Infrastructure at the Moses Kotane Local Municipality since December 2006. He has a minimum competency level in financial and supply management which is a CPMD obtained from the University of Witwatersrand (WITS). This is confirmed by David Hendrick De Jager (Mr De Jager) the Human Resources Manager of the Municipality, who states that he verified the qualification with WITS. He also states that Mr Gabanakgosi did satisfy the minimum competency qualification for the position of Municipal Manager. The selection panel considered the qualifications and experience in the local government sphere of all candidates in accordance with the 2007 Regulations. The Court a quo misdirected itself when it made a ruling that Mr. Gabanakgosi was not qualified for the post.

Is the appointment of Mr Gabanakgosi null and void?

[20] The Council, agreed at its meeting of the 29 August 2013, that the “recommendations of the Interview Panel be made to the Executive Committee”. It is common cause that the recommendation of the selection panel did not serve before the Executive Committee of Council. This begs the question whether this flaw renders the appointment of Mr Gabanakgosi as Municipal Manager null and void.[11]

[21] The Council is empowered to delegate some of its functions.[12] However, the delegation must not be in conflict with the Constitution, the Municipal Structures Act or the Municipal Systems Act;[13] it must be in writing;[14] may be withdrawn by the Municipal Council;[15] and does not divest the Council of the responsibility concerning the exercise of the power or the performance of its duty.[16]

[22] Furthermore, in terms of section 60(1) (b) of the Municipal Systems Act, the Council may delegate its power to determine or alter the remuneration benefits or other conditions of service of the Municipal Manager, only to the Executive Committee.[17] This provision should be read with section 30(5)(c) of the Municipal Structures Act, which provides that:

“Before a municipal council takes a decision on any of the following matters it must first require its executive committee or executive mayor, if it has such a committee or mayor, to submit to it a report and recommendations on the matter of –

(a)

(b)

(c) the appointment and conditions of service of the municipal manager and a head of a department of the municipality.”

[23] The power exercised by the Executive Committee in terms of section 30(5)(c) is delegated by the Council in terms of section 60(1)(b). These powers are limited to the determination or alteration of the Municipal Manager’s remuneration, benefits or other conditions of service. The Council delegates some of its power in order “to maximise administrative and operational efficiency and provide for adequate checks and balances…”.[18] However, this cannot extend to the appointment of the Municipal Manager since the power to interview and select a suitable candidate for the position of a Municipal Manager vests in the Council.

[24] The following remarks by Nugent JA in Manana v King Sabata Dalinyebo Municipality[19] at para [14] to [17] on delegation of powers are apposite.

“[14] The Act provides the framework within which a municipality must function. As is to be expected, the Act is replete with provisions recognising that executive authority vests in the council and in nobody else. Indeed, ordinary legislation is not constitutionally capable of divesting a municipal council of its executive authority – or any part of it – and the construction of a statute that would produce that result must be avoided if it is possible to do so.

[16] A municipal council is not capable in practice of exercising its executive authority by running the day-to-day affairs of the municipality and it employs to do that on its behalf. In the past, it was common for municipal councils to confer the appropriate authority upon their staff by delegation of all or some of its executive powers. Such a delegation of power does not ordinarily divest the delegator of the power to perform the particular function itself. As the authors of De Smith’s Judicial Review express it:

“[I]t has sometimes been stated that delegation implies a denudation of authority…. This cannot be accepted as an accurate

general proposition. On the contrary, the general rule is that an authority which delegates its powers does not divest itself of them…”

[17] In my view, section 55(1) is no more than a statutory means of conferring such power upon municipal managers to attend to the affairs of the municipality on behalf of the municipal council. There is no basis for construing the section as simultaneously divesting the municipal council of any of its executive powers. Indeed, as I have already pointed out, the Constitution vests all executive authority – which includes the authority to appoint staff – in the municipal council and legislation is not capable of lawfully divesting it of that power. To the extent that there might be any ambiguity in the statute in that respect it must be construed to avoid that result.” (emphasis added)

[25] In interpreting the meaning and intention of section 54A and section 60(1)(b) read with section 30(5)(c), the guidelines adumbrated by Majiedt AJ in Cool Ideas v Hubbard[20] should be considered:

“[28] A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general principle, namely:

(a) that statutory provisions should always be interpreted purposively;

(b) the relevant statutory provision must be properly contextualised; and

(c) all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso to the general principle is closely related to the purposive approach referred to in (a).”

[26] The ordinary grammatical meaning of the word “must” in section 30(5)(c) is peremptory. However, this must be interpreted in the context of the powers delegated to the Executive Committee in terms of section 60(1)(b). A cursory reading of section 30(5)(c), especially the word “appointment”, seems to contradict the provisions of section 54A(4).[21] To interpret section 30(5)(c) as vesting the power to appoint the Municipal Manager in the Executive Committee, will result in an absurdity. Section 54A(4) is also peremptory: “... the Municipal Council must ... (b) select from the pool of candidates a suitable person who complies with the prescribed requirements for appointment to the

post”. This is an executive authority conferred to it by section 160(1)[22] of the Constitution. This power cannot be delegated to the Executive Committee.

[27] The authority and powers of the Executive Committee in section 30(5)(c) are not clearly defined. It may be inferred from the section that the Executive Committee is vested with the power to determine the conditions of service,[23] which authority, when read with section 60(1)(b), includes the determination of the remuneration, benefits or other conditions of service of the Municipal Manager. However, the executive committee’s report must be submitted to the Council for consideration and appointment of the Municipal Manager.[24]

[28] Because of the vague and general terms in which section 30(5)(c) is been couched, this provision should be interpreted in accordance with section 39(2) of the Constitution, which provides that: “when interpreting any legislation, and when developing the common law customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.

[29] In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (10) BCLR 1079 (CC), Langa DP, (as he then was), stated the following in interpreting section 39(2):

“Interpreting statutory provisions under the Constitution

[21] Section 39(2) of the Constitution provides a guide to statutory interpretation under this constitutional order. It states:

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the Constitution. The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole.”

[30] Mr Gabanakgosi had the required qualifications for the position of Municipal Manager. What transpired pursuant to his interview and recommendation by the selection committee is an internal process that should not adversely affect his appointment to the post. Although the Council had agreed that the recommendations of the select panel should be submitted to the Executive Committee, there is no explanation as to why it was not done. It could be that the Council withdrew its delegation or instruction as provided for in section 59(1)(c) of the Municipal Systems Act, which action would not render the appointment of Mr Gabanakgosi irregular, since it is within the power of Council to make such an appointment.

[31] The power exercised by Council in terms of section 54A(1) read with section 30(5)(c) relates to the internal procedures exercised by the Municipality and its Council. The case of City of Tshwane Metropolitan Municipality v RPM Bricks Property Ltd[25] referred to by Counsel for the appellants is distinguishable in that it related to procurement of services where the Municipal Supply Chain Management policy was not followed. Mr Gabanakgosi’s appointment should not have been set aside for failure of submitting the recommendations of the selection committee to the Executive Committee of Council. Such failure, prior to the promulgation of the 2014 Regulations, did not warrant an order setting aside his appointment. Section 54A(3) of the Municipal Systems Act, cannot be invoked.[26]

Remedy

[32] I need not deal with the other issues raised by the respondent regarding the interviewing panel and the alleged reduction of the qualifying standards, since the Court a quo misdirected itself on the applicable Regulations. Mr Gabanakgosi is qualified for the position and was found to be wanting on the basis of the 2014 Regulations which did not apply to his situation. The decision of the Court a quo stands to be set aside.

Costs

[33] Mr Mahura did not raise the issue pertaining to the appointment of Mr Gabanakgosi with the Council when the opportunity presented itself. Had he done so, he could have realised that the 2014 Regulations were not in operation when Mr Gabanakgosi was interviewed. I am of the view that costs should follow the result.

Order

1. The appeal succeeds with costs.

2. The judgment of the Court a quo is set aside and altered to read as follows:

“Application is dismissed with costs.”

_________________

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

I agree

__________________

R. D. HENDRICKS

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING:

21 AUGUST 2015

DATE OF JUDGMENT:

26 NOVEMBER 2015

COUNSEL FOR THE APPELLANT : ADV MOGAGABE

COUNSEL FOR THE RESPONDENT: ADV GROBBLER

ATTORNEYS FOR APPELLANT: KGOMO ATTORNEYS INC.

ATTORNEYS FOR RESPONDENT: SMIT STANTON INC.

[1] Section 239(a) of the Constitution of the Republic of South Africa, 1996, (the Constitution) provides that “organ of State”

means any department of State or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution— (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.

[1] Section 239(a) of the Constitution of the Republic of South Africa, 1996, (the Constitution) provides that “organ of State”

means any department of State or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution

or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer.

[2] Section 54A(7)(a) and (b) of the Municipal Systems Act No 32 of 2000 provides that: (a) The municipal council must, within 14 days, inform the MEC for local government of the appointment process and outcome, as may be prescribed. (b) The MEC for local government must, within 14 days of receipt of the information referred to in paragraph (a), submit a copy thereof to the Minister.

[2] Section 54A(7)(a) and (b) of the Municipal Systems Act No 32 of 2000 provides that: (a) The municipal council must, within 14 days, inform the MEC for local government of the appointment process and outcome, as may be prescribed.

(b) The MEC for local government must, within 14 days of receipt of the information referred to in paragraph (a), submit a copy thereof to the Minister.

[3] Act No.117 of 1998: Section 82 provided as follows with regard to the appointment of a Municipal Manager: (1) A municipal council must appoint- (a) a municipal manager who is the head of administration and also the accounting officer for the municipality; and (b) when necessary, an acting municipal manager. (2) A person appointed as municipal manager must have the relevant skills and expertise to perform the duties associated with that post

[3] Act No.117 of 1998: Section 82 provided as follows with regard to the appointment of a Municipal Manager:

(1) A municipal council must appoint-

(a) a municipal manager who is the head of administration and also the accounting officer for the municipality; and

(b) when necessary, an acting municipal manager.

(2) A person appointed as municipal manager must have the relevant skills and expertise to perform the duties associated with that post

[4] Section 54A(1)(a)

[5] Section 54A(5)

[6] Section 54A(6)

[7] Section 54A(7)

[8] Regulation 54 provides that: “(1) Employment contracts for all senior managers, entered into before these regulations became into operational, remain in force until the contract lapses or is terminated”

[9] See para [11] supra

[10] Regulation 1: “Senior Management level” means a management level associated with persons in senior management positions responsible for supervising staff in middle management positions, and includes – (a) the municipal manager of a municipality or the chief executive officer of a municipal entity; (b) any manager directly accountable to – (i) the municipal manager, in the case of a municipality; or (ii) the chief executive officer, in the case of a municipal entity; or (c) a person that occupied a position in a management level substantially similar to senior management level, outside the local government sphere.

[10] Regulation 1: “Senior Management level” means a management level associated with persons in senior management positions responsible for supervising staff in middle management positions, and includes –

(a) the municipal manager of a municipality or the chief executive officer of a municipal entity;

(b) any manager directly accountable to –

(i) the municipal manager, in the case of a municipality; or

(ii) the chief executive officer, in the case of a municipal entity; or

(c) a person that occupied a position in a management level substantially similar to senior management level, outside the local government sphere.

[11] Section 54A(3) of the Municipal Systems Act: which provides that: 54A. Appointment of municipal managers and acting municipal managers.— (3) A decision to appoint a person as municipal manager, and any contract concluded between the municipal council and that person in consequence of the decision, is null and void if— (a) the person appointed does not have the prescribed skills, expertise, competencies or qualifications; or (b) the appointment was otherwise made in contravention of this Act.

[11] Section 54A(3) of the Municipal Systems Act: which provides that: 54A. Appointment of municipal managers and acting municipal managers.—

(3) A decision to appoint a person as municipal manager, and any contract concluded between the municipal council and that person in consequence of the decision, is null and void if—

(a) the person appointed does not have the prescribed skills, expertise, competencies or qualifications; or

(b) the appointment was otherwise made in contravention of this Act.

[12] Section 59 of Municipal Systems Act

[13] Section 59(2)(a)

[14] Section 59(2)(b)

[15] Section 59(1)(c)

[16] Section 59(2)(e)

[17] Section 60(1)(b): Municipal Systems Act provides that: The following powers may, within a policy framework determined by the municipal council, be delegated to an executive committee or executive mayor only: (b) the determination or alteration of the remuneration, benefits or other conditions of service of the municipal manager or managers directly responsible to the municipal manager.

[17] Section 60(1)(b): Municipal Systems Act provides that: The following powers may, within a policy framework determined by the municipal council, be delegated to an executive committee or executive mayor only:

(b) the determination or alteration of the remuneration, benefits or other conditions of service of the municipal manager or managers directly responsible to the municipal manager.

[18] Section 59 of the Municipal Systems Act. See also section 44(1) of the Municipal Structures Act which provides that: Functions and powers of executive committees.—(1) An executive committee is— (a) the principal committee of the council of a municipality of a type that is entitled to establish an executive committee; and (b) the committee of a municipal council which receives reports from the other committees of the council and which must forward these reports together with its recommendations to the council when it cannot dispose of the matter in terms of its delegated powers.

[18] Section 59 of the Municipal Systems Act. See also section 44(1) of the Municipal Structures Act which provides that: Functions and powers of executive committees.—(1) An executive committee is—

(a) the principal committee of the council of a municipality of a type that is entitled to establish an executive committee; and

(b) the committee of a municipal council which receives reports from the other committees of the council and which must forward these reports together with its recommendations to the council when it cannot dispose of the matter in terms of its delegated powers.

[19] [2011] 3 All SA 140 (SCA)

[20] 2014 (4) SA 474 (CC) at para [28]

[21] See para [9] supra

[22] Section 160 (1) of the Constitution provides that: “ (1) A Municipal Council— (a) makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality; (b) must elect its chairperson; (c) may elect an executive committee and other committees, subject to national legislation; and (d) may employ personnel that are necessary for the effective performance of its functions.

[22] Section 160 (1) of the Constitution provides that: “ (1) A Municipal Council—

(a) makes decisions concerning the exercise of all the powers and the performance of all the functions of the municipality;

(b) must elect its chairperson;

(c) may elect an executive committee and other committees, subject to national legislation; and

(d) may employ personnel that are necessary for the effective performance of its functions.

[23] Compare Bester v Sol Plaatjie Municipality and Others [2004] 2 All SA 31 (NC)

[24] See section 44(1) of the Municipal Structures Act and note 18

[25] 2008(3) SA 1 (SCA)

[26] Section 54A(3) of the Municipal Systems Act provides that: