Mahura v Greater Taung Local Municipality and Others (M83/2014) [2014] ZANWHC 58 (28 November 2014)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: M83/2014

In the matter between:

L W MAHURA...............................................................................................................APPLICANT

and

THE GREATER TAUNG LOCAL

MUNICIPALITY...............................................................................................1ST RESPONDENT

K T GABANAKGOSI......................................................................................2ND RESPONDENT

MEC: NORTH WEST PROVINCIAL

GOVERNMENT DEPARTMENT OF LOCAL

GOVERNMENT AND TRADITIONAL AFFAIRS.......................................3RD RESPONDENT

JUDGMENT

GURA J:

Introduction

[1] The applicant seeks the following remedy:

“1.1 The applicant’s failure to adhere to this court’s rules relating to time periods and service be condoned, and that the application be heard as an urgent review application in terms of Rule 53 read with Rule 6(12).

1.2 The resolution taken by the Municipal council of the first respondent on 28 January 2014, appointing the second respondent as its Municipal Manager be declared ultra vires, unlawful, illegal and void ex tunc.

1.3 Consequent upon the declaration contemplated in prayer 2 above, that the appointment be reviewed and set aside.

1.4 The first respondent be ordered to re-advertise the then vacant position of Municipal Manager at the first respondent, and to follow the process contemplated in clause 5 of the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers, published in Government Gazette no. 37248 on 17 January 2014 for the filling of this position.

1.5 The first respondent be ordered to pay the costs of the application. Alternatively, and in the event of the second respondent opposing, then and in that case that the second respondent be ordered to pay the costs together with the first respondent, jointly and severally, payment by one the other to be absolved.

1.6 Further and/or alternative relief.”

Factual Background

[2] The vacant position of a municipal manager, which was previously occupied in an acting capacity by one Mr Mofokeng, was advertised by the first respondent in a newspaper circulating nationally, City Press, on 25 August 2013.

[3] The selection panel, appointed by the municipal council, sat on 16 September 2013 to shortlist those candidates who met the minimum competency requirements for the post as specified in the advertisement and a total of ten candidates were shortlisted.

They were invited to attend interviews which were conducted on 16 October 2013.

[4] Following the interview process, the panel recommended three candidates, including the second respondent, to the municipal council

for possible appointment of any one of them and in order of preference, as municipal manager of the first respondent. The

second respondent, as per the scoring was the preferred candidate.

[5] The municipal council convened a special sitting for 28 January 2014 where the recommendation of the interview panel was considered and a resolution was taken (by the said council) to appoint the second respondent as the municipal manager. The appointment was then made by the Mayor on 29 January 2014.

[6] Following upon the letter of appointment, the Mayor, (acting on behalf of the first and the second respondents) entered into a written fixed term contract of employment for a period of three years and six months.

[7] Thereafter the municipal council referred the matter to the MEC for Local Government and Traditional Affairs for sanctioning and the MEC, after due consideration endorsed and/or sanctioned the appointment of the second respondent.

Grounds for review

[8] Mr Grobler, for the applicant raised what he terms three anomalies which point towards an irregularity in the whole procedure of appointment of the second respondent.

8.1 Firstly, it is common cause that the executive committee of the municipality did not report (as prescribed) to the municipal council on the appointment of the second respondent prior to the council appointing him;

8.2 Secondly, the second respondent did not possess the minimum competency levels, skill and experience (by means of a prescribed tertiary degree and work experience) when he was appointed; and

8.3 Thirdly, the interview panel decided to lower the minimum prescribed requirements of the post leading to the appointment of the second respondent without the intervention of the MEC.

[9] Mr Grobler further referred this Court to what he calls further incongruities in this matter:

9.1 The law of meetings had been violated by the appointment itself on 28 January 2014, as the proposed agenda did not cater for the consideration of the appointment of the second respondent. The rules and orders of the municipality were violated;

9.2 All the members of the selection panel had not been appointed by the municipal council, when the selection panel made its recommendation, etc.

Submissions by Mr Grobler

[10] After dealing extensively with the law, Mr Grobler proceeded as follows: It is therefore common cause that the Act has been

violated. Moreover, the initial council resolution has also been violated, in the sense that it had provided that the interview

panel should report to the executive committee. It hardly warrants an argument that this constitutes an irregularity.

[11] The only basis upon which the respondents have explained this is that the municipal council does not need to consider any report submitted by the executive committee, as the municipal council retains the power to appoint “without the matter having served before the executive committee which exercised limited delegated powers and reports to the municipal council.” The respondents moreover wish to marginalise the wishes of the legislator entirely by stating that on a contextual interrogation, the executive committee played such a minimal role, that its input could not have had any significant bearing on the eventual outcome of the process.

[12] The encounter and clash of this contention with the Act is striking. The fundamental problems with these contentions are the following:

12.1 firstly, it ignores the wording of the Act entirely. It incorrectly states that what the executive committee was to do under the circumstances was to exercise delegated powers given to it by the municipal council. This is obviously incorrect; and

12.2 secondly, it wishes to marginalise the wishes of the apex Lawmaker and in effect argues that the municipality need not have complied with the peremptory provisions of the Act.

[13] The principle of delegation is wholly not applicable here. The legislator has conferred first-hand and primary obligations upon the executive committee, dealing with its report and the receiving of a report (from the interview panel) and making recommendations and submitting of a report of its own. These are not powers conferred upon the municipal council in terms of the legislation.

Powers that do not exist cannot be delegated.

Submissions by Mr Chwaro on behalf of the first and second respondents

[14] The applicant contends that the recommendations of the interview panel did not serve before the executive committee of the municipal council as required by section 30(5)(c) of the Local Government: Municipal Council Structures Act, No 11 of 1998 (the Structures Act). We submit that the interpretation of section 30(5)(c) above must be done in accordance with the constitutional

provisions relating to the powers and duties of a municipal council. In this regard, the provisions of section 151(2) of the Constitution of the Republic of South Africa Act 108 of 1996 become apposite. Section 151(2) of the Constitution provides thus:

“151(2) The executive and legislative authority of a municipality is vested in its Municipal council”.

It is equally apparent that an executive committee established by a municipal council can only function and perform its duties in accordance with the delegated powers granted to it by the municipal council and in accordance with the provisions of section 44(4) of the Structures Act which are more relevant in this regard and provide thus:

“(4) An executive committee must report to the municipal council on all decisions taken by the committee”.

[15] We therefore submit that the executive committee functions on the basis of delegated powers by the municipal council and as such, the municipal council, being vested with the executive authority by the Constitution, would not necessarily be divested of its power to deal and decide on any matter which has been delegated to the executive committee or the executive mayor either by delegations or by statutory provision like section 30(5)(c) of the Structures Act. In the event of any conflict in the interpretation of the proper context of the provisions, a reading which favours a constitutional outcome stands to be preferred. See Manana v King Sabata Dalindyebo Municipality 2011 (3) BLLR 215 (SCA) at para 14 to 17 relating to the exercise of delegated powers by the municipal council.

[16] We submit therefore that section 30(5)(c) must be read and understood against the backdrop of a constitutional power vested upon a municipal council by section 151(2) of the Constitution to the effect that it exercises the executive and legislative authority of a municipality and that the executive committee’s functions and powers are those that are limited by delegations or by law. We therefore submit that the fact that the recommendations of the interview panel did not serve before the executive committee does not necessarily render the resolution of the municipal council unlawful or illegal as the executive committee would only exercise its delegated powers and still make a recommendation to the municipal council. Section 30(5)(c) therefore does not divest the municipal council of its constitutionally vested powers. In any event, the municipal council is the principal political structure of a municipality and is clothed with the authority to appoint a municipal manager and nobody else. In the alternative to the above we submit that the fact that the municipal council decided to consider and resolve upon the recommendation of the interview panel without first having received the recommendation of the executive committee is an internal arrangement which should not be prejudicial on the interest of the second respondent, being his appointment as the municipal manager of the first respondent.

[17] In the matter of City of Tshwane Metropolitan Municipality v RPM Bricks 2008 (3) SA 1 SCA at para 12 the Supreme Court of Appeal, per Ponnan JA, held that an external party is entitled to assume that the municipality, in the performance of its executive role, had complied with its internal arrangements and any non-compliance by the municipality should and cannot be held against the innocent external party. We respectfully submit that this matter should be distinguished from other cases where the decision was taken by a person or body who has no authority to take such a decision without the authority or a municipal council.

[18] We further submit that by the nature of the composition of an executive committee, its members are all councillors who also

participated in the adoption of the resolution on 28 January 2014 and as matters stand, none of them raised any objection to the matter being discussed and resolved upon by the municipal council without first having served before the executive committee.

Submissions by Mr Mmolawa on behalf of the MEC

[19] From the attendance register forming part of the report submitted to the MEC, the meeting of 28 January 2014 was a special council meeting at which members of the executive committee were also present. They partook in the decision taken at the meeting, including the adoption of the resolution to appoint the second respondent as the municipal manager of the first respondent. There is no indication that any or some or all of them objected to the resolution to appoint the second respondent without the matter having served before them. Further submissions by Mr Mmolawa are in line with that of Mr Chwaro and I consider it unnecessary to repeat it here. That is then the end of the submissions on behalf of all the parties.

Was the executive committee bound to report to the Municipal council before the Council could appoint the Municipal Manager?

[20] Section 42(1) and (2) of the Structures Act reads:

“42 Only municipalities of certain types may establish executive committees

(1) Only municipalities of the types mentioned in sections 8(a), (b), (c) and (d), 9 (a) and (b) and 10 (a) may establish an executive committee.

(2) If a municipality of a type referred to in subsection (1) chooses to establish an executive committee, the provisions of this Part apply”.

It is common cause that the present municipality (the first respondent) qualifies to establish an executive committee and it has in fact done so. Section 44 of the Structures Act provides that such an executive committee is the principal committee of the Council of the Municipality. It reads:

“44(1) An executive committee is –

(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 own delegated powers.”

[21] The municipality and the second respondent aver that it was not the executive committee of the municipal council that had to appoint the second respondent. It was the municipal council itself which was to decide on the appointment. Section 30(5) of the Structures Act states:

“30(5) 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 recommendation on the matter –

(a) . . . . .

(b) . . . . .

(c) the appointment and conditions of service of the municipal manager and the Head of Department of the Municipality”.

(My emphasis)

[22] The issue which has been raised involves the interpretation of legal instruments. In this regard the following decision by the Constitutional Court becomes apposite: Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re: Hyundai Motor Distributors (Pty) Ltd v Smit 2000 10 BCLR 1079 (CC) at paras 21 – 26.

“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 the process of governance. . . . .The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.”

[23] The issue is whether the executive committee was obliged to report to the municipal council before the latter could appoint the municipal manager. The intention of the legislation is crystal clear in section 30(5) – there are at least two separate organs, apart from the selection panel and the interview panel, which have a finger in the pie in as far as the appointment of the municipal manager is concerned. It is the executive committee and the municipal council. This interpretation is in harmony also with the contextual as well as the purposive rules of interpretation.

[24] The fact that the subordinate organ (the executive committee) should report to the superior organ (the municipal council) is in consonant with the principles of democracy and openness. If the two organs sit separately, then robust discussions and debates about the suitability of the candidate will be fostered at two different stages. Democracy thrives where these two organs sit and debate separately from each other. The benefit of this is a wider cross-section of ideas. There is no potential that some members of the subordinate organ may feel intimidated by the presence of the superior organ during deliberations. The converse is also true.

[25] In my view, a proper reading and interpretation of section 30(5)(c) of the Structures Act is this: No municipal manager may be appointed until the executive committee has spoken. If the executive committee has not submitted a report and recommendation to the council, the latter’s hands are tied. The executive committee should not be bypassed in regard to the appointment of the manager. In other words, if the interview panel forwards the interview report and recommendation directly to the council, the latter cannot consider that report because the matter has not been properly placed before it (the council).

[26] Therefore if the two organs would combine under one roof to consider the suitability of a municipal manager candidate together, this would be a farce. It is, in brief, a mockery of justice and it undermines the very ethos or our constitutional democracy. A simple question arises: when the two organs sit jointly which organ will then submit a report and recommendation in the matter?

Secondly, to whom should such report and recommendation be forwarded because the superior organ is part of the deliberations? Clearly, the joint sitting of the two organs to consider the suitability of the appointment of a municipal manager flies in the face of section 30(5)(c) of the Structures Act.

[27] Let me now pay attention to the provisions of section 151(2) of the Constitution. It reads:

“The executive and legislative authority of a municipality is vested in its Municipal council.”

[28] In Manana v King Sabata Dalindyebo Municipality, supra, at paras 14 – 17 the Supreme Court of Appeal had the following to say about the exercise of delegated powers by the municipal

council:

“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 staff 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 on them. . . . .”

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”.

[29] If the Manana decision is applied to the present case, as suggested by the respondents, it would have absurd results – the municipal council would receive a report/recommendation directly from the interview panel. Therefore, the municipal council would bypass the executive committee. A worse scenario (which is implied) is that the municipal council may itself become an interview panel and also appoint a municipal manager. It boils down to this: the municipal council reports and recommends to itself about the suitability of a municipal manager candidate.

[30] Section 30(5)(c) sets out an elaborate procedure which must be followed before the appointment of the municipal manager can be made. Section 30(5)(c) is couched in peremptory terms. The municipal council cannot be an arbiter and an actor at the same time.

Minimum competency levels, skills and experience of a municipal manager

[31] Regulation 38(1) of the Local Government: Municipal Performance Regulations for municipal manager and Managers accountable to municipal managers, published in Government Gazette 29089 of 1 August 2006, was the applicable legislation as at the time of the interview of the second respondent. It prescribed the qualifications and competencies which were a pre-condition to the appointment of anyone as a municipal manager. The candidate must meet the following requirements:

31.1 Qualification

(i) Honours Degree in Public Administration/Political Sciences/Law or equivalent.

(ii) Certificate: Programme for municipal Development.

(iii) Professional Registration: Recognised professional body.

31.2 Work experience and knowledge

(i) 7 – 8 years’ experience at a senior management level; and

(ii) have a proven successful organizational transformation and turnaround of a large/medium corporate/public sector organization.

[32] The second respondent had the following qualifications/experience/ competency:

32.1 Education

· Senior Certificate;

· National Diploma – Civil Engineering (Technikon Northern Transvaal).

· Baccalaureus Technologiae – Civil Engineering (University of Johannesburg)

· Management Certificate in Local Government (CPMD) – (Wits Business School.

Work experience

Name of Firm Position Held and Period 1.North West Water Supply Authority 2. Murray and Roberts Civils: (Project 1) (Project 2) (Project 3) 3. Grinaker LTA 4. Botshelo Water Board (RSA) 5. Moses Kotane Local Municipality Trainee Technician : Jan 1994 to Dec 1997 Roads and Earthworks Engineer: Jan 1999 to Dec 1999. Engineer – Drainage, Structures and Costing : Jan 2000 to Dec 2001 Deputy Site Agent : Jan 2002 to June 2002 Sub-Agent June 2002 to Dec 2003 District Manager : Jan 2004 to Dec 2007 Director – Infrastructure & Technical Services : Feb 2008 to date (of appointment being 29 January 2014).

[33] It is clear that the second respondent does not have an Honours Degree either in Public Administration, Political Sciences or Law. The second problem against him is that all his qualifications relating to engineering and technology studies are not relevant to his present position. See in this regard Regulation 38(1). It should be noted that it is not each and every degree or diploma which adds credit to a candidate for a post of municipal manager.

[34] It is my considered view therefore that his qualifications disqualify him from being considered for a post of municipal manager either in October 2013 or January 2014.

[35] The next aspect is work experience. A senior manager is defined in Regulation 1 as “a municipal manager appointed in terms of section 54A of the Act and includes a manager directly accountable to a municipal manager appointed in terms of section 56 of the Act”. In terms of Regulation 3 the senior management of a municipality consist of all senior managers. See Local Government: Municipal Systems Act, 32 of 2000: Regulations and Conditions of Employment of Senior Managers.

[36] The post which the second respondent occupies demands (as at September – December 2013) as a prerequisite that its incumbent

must have at least seven to eight years’ experience at a senior management level. The second respondent does not have seven years’ experience at senior management level.

Lowering of the minimum prescribed requirements by the interview panel

[37] The shortlisting of candidates for this post was done on 16 September 2013. After evaluating all the applications in terms of minimum competency requirements only six candidates qualified to be shortlisted for interview. The second respondent was not part of the six candidates who had made a threshold to be interviewed.

[38] For some reasons, the interview panel was of the view that if they applied the prescribed minimum requirements to the letter, they would miss candidates who had a potential especial who had “experience, knowledge and good qualifications”. There was a feeling that regulations will have to be amended in future because as they are, they tamper the process of getting good candidates for the post. Generally, the panellists agreed that ten candidates should be shortlisted. It was accepted that the panel should also consider “engineers and their experience of management” and people with a junior degree. Consequently, four additional candidates were shortlisted and this led to a total of ten shortlisted candidates. The second respondent was now part of the four people who were shortlisted after the minimum requirements were relaxed by the panel.

[39] Interviews were conducted on 16 October 2013. The second respondent became the preferred candidate and was eventually appointed.

[40] After the appointment of the second respondent, the municipality submitted a report to the relevant MEC in terms of Section 54A(7)(a) of the Systems Act. The MEC, having been satisfied that the proper procedure had been followed in the appointment of the second respondent, confirmed the appointment.

[41] Section 54A(10) of the Systems Act provides that a municipal council may, in special circumstances and on good cause shown, apply in writing to the Minister to waive any of the requirements listed in subsection (2) (which deals with prescribed skills, expertise, competencies and qualifications) if it is unable to attract suitable candidates.

[42] It is common cause between the parties that the municipality did not apply to the Minister for the lowering of the prescribed criteria. On its own, the interview panel lowered the prescribed minimum requirements. The panel therefore usurped the powers of the Minister. The panel’s act (of relaxing the prescribed minimum requirements) is therefore null and void ab orginine because it is ultra vires the powers of the interview panel, the executive committee or the municipal council. Therefore, the second respondent did not qualify to be shortlisted, let alone to be interviewed or appointed.

Conclusion

[43] In view of the findings which this Court has already made, it becomes unnecessary to consider further grounds upon which the appointment of the second respondent was assailed by the applicant.

Order

[44] Consequently, the following order is made:

1.1 The decision to appoint the second respondent is hereby reviewed and set aside.

2.1 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 declares ultra vires, unlawful and void ab initio.

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

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

SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING: 21 AUGUST 2014

DATE OF JUDGMENT: 28 NOVEMBER 2014

COUNSEL FOR THE APPLICANT: ADV S. GROBLER

COUNSEL FOR THE RESPONDENTS: ADV O. K. CHWARO

ATTORNEYS FOR THE APPLICANT: SMIT STANTON INC.

ATTORNEYS FOR THE RESPONDENTS: KGOMO MOKHETLE & TLOU ATT.