Mawonga and Another v Walter Sisulu Local Municipality and Others (633/2019) [2018] ZAECGHC 142; [2019] 2 BLLR 196 (ECG); (2019) 40 ILJ 974 (ECG) (8 November 2018)

Mawonga and Another v Walter Sisulu Local Municipality and Others (633/2019) [2018] ZAECGHC 142; [2019] 2 BLLR 196 (ECG); (2019) 40 ILJ 974 (ECG) (8 November 2018)

The High Court has jurisdiction to adjudicate legality reviews concerning municipal manager appointments, as the applicant's claim was based on allegations of unlawfulness and procedural defects, not unfair dismissal under the Labour Relations Act. The renewal of the applicant's contract as municipal manager in July 2017 was subject to Section 54A of the Municipal Systems Act, which mandates a competitive appointment process, including national advertisement of the post. The saving provision in Section 16 of the Municipal Systems Amendment Act does not protect subsequent renewals or extensions of contracts entered into after the amendment took effect. The July 2017 renewal was therefore...

Citation
[2018] ZAECGHC 142
Parties
Applicant: Thembinkosi Mawonga; Applicant: Institute for Local Government Management of South Africa; Respondent: Walter Sisulu Local Municipality; Respondent: The Member of Executive Council for Cooperative Governance and Traditional Affairs N.O.; Respondent: The Administrator of Walter Sisulu Local Municipality
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
8 November 2018
Case Number
633/2019
Procedural Posture
Review Application / Final Judgment on Review and Counter Application
Outcome
The main application succeeds in setting aside the January 2018 rescission decision for procedural non-compliance, but the counter-application succeeds in declaring the July 2017 renewal of the applicant's contract null and void for non-compliance with Section 54A of the Municipal Systems Act.
Judges
M J Lowe
Legal Topics
Municipal Manager Appointment, Contract Renewal, Competitive Selection, Jurisdiction of High Court, Legality Review, Procedural Fairness
Administrative Law Labour Law Municipal Manager Appointment Contract Renewal Competitive Selection Jurisdiction of High Court Legality Review Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 23 Party arguments 2
Sign in to unlock

Parties

Thembinkosi Mawonga

Applicant

Institute for Local Government Management of South Africa

Applicant

Walter Sisulu Local Municipality

Respondent

The Member of Executive Council for Cooperative Governance and Traditional Affairs N.O.

Respondent

The Administrator of Walter Sisulu Local Municipality

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Counter Application

Legal Issues

  1. 1 Does the High Court have jurisdiction to review the rescission of the applicant's appointment as municipal manager?
  2. 2 Is the renewal of the applicant's contract as municipal manager subject to the competitive appointment process under Section 54A of the Municipal Systems Act?
  3. 3 Was the rescission of the applicant's appointment procedurally and legally valid?

Ratio Decidendi

The High Court has jurisdiction to adjudicate legality reviews concerning municipal manager appointments, as the applicant's claim was based on allegations of unlawfulness and procedural defects, not unfair dismissal under the Labour Relations Act. The renewal of the applicant's contract as municipal manager in July 2017 was subject to Section 54A of the Municipal Systems Act, which mandates a competitive appointment process, including national advertisement of the post. The saving provision in Section 16 of the Municipal Systems Amendment Act does not protect subsequent renewals or extensions of contracts entered into after the amendment took effect. The July 2017 renewal was therefore...

Court Disposition

The main application succeeds in setting aside the January 2018 rescission decision for procedural non-compliance, but the counter-application succeeds in declaring the July 2017 renewal of the applicant's contract null and void for non-compliance with Section 54A of the Municipal Systems Act.

Orders

  • The First Respondent's decision of 8 January 2018 to set aside the decision appointing the applicant on 20 July 2017 is set aside for want of procedural compliance.
  • The appointment of the applicant as First Respondent's Municipal Manager on 20 July 2017 (and subsequent contract) is set aside as being null and void for want of compliance with Section 54A(4) of the Local Government: Municipal Systems Act 32 of 2000.