Moerane and Another v Buffalo City Metropolitan Municipality and Others (611/2017) [2017] ZAECGHC 126 (5 December 2017)

Moerane and Another v Buffalo City Metropolitan Municipality and Others (611/2017) [2017] ZAECGHC 126 (5 December 2017)

The court held that the council resolution appointing the applicant as Head of Directorate: Municipal Services constituted administrative action under PAJA, as it was a public power exercised in terms of legislation with direct external legal effect. The Acting Municipal Manager had the necessary authority to oppose the application and bring the counter-application. The appointment was null and void because the applicant failed the required competency assessment, and the selection panel was improperly constituted, lacking an independent expert as required by the regulations. The council's decision was ultra vires the Systems Act and its regulations, and could not be enforced. Condonation...

Citation
[2017] ZAECGHC 126
Parties
Applicant: Neo Moerane; Applicant: Vuyani Lwana; Respondent: Buffalo City Metropolitan Municipality; Respondent: The Acting Municipal Manager Buffalo City Metropolitan Municipality; Respondent: The Executive Mayor, Buffalo City Metropolitan Municipality; Respondent: The Speaker of the Municipal Council, Buffalo City Metropolitan Municipality; Respondent: The Member of Executive Committee (MEC) for Co-operative Government and Traditional Affairs, Eastern Cape Province
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 December 2017
Case Number
611/2017
Procedural Posture
Review Application / Final Judgment on Merits and Counter Application
Outcome
Application dismissed with costs; counter-application granted with costs.
Judges
M.J. Lowe
Legal Topics
Promotion of Administrative Justice Act, Municipal Appointments, Competency Assessment, Ultra Vires Decision, Review of Council Resolution
Administrative Law Civil Procedure Promotion of Administrative Justice Act Municipal Appointments Competency Assessment Ultra Vires Decision Review of Council Resolution

Case Brief

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Parties

Neo Moerane

Applicant

Vuyani Lwana

Applicant

Buffalo City Metropolitan Municipality

Respondent

The Acting Municipal Manager Buffalo City Metropolitan Municipality

Respondent

The Executive Mayor, Buffalo City Metropolitan Municipality

Respondent

The Speaker of the Municipal Council, Buffalo City Metropolitan Municipality

Respondent

The Member of Executive Committee (MEC) for Co-operative Government and Traditional Affairs, Eastern Cape Province

Respondent

Procedural Posture

Review Application / Final Judgment on Merits and Counter Application

Legal Issues

  1. 1 Whether the council resolution appointing the applicant as Head of Directorate: Municipal Services constitutes administrative action under PAJA.
  2. 2 Whether the Acting Municipal Manager had locus standi and authority to oppose the application and bring a conditional counter-application.
  3. 3 Whether the council's appointment decision was null and void due to failure of competency assessment and improper composition of the selection panel.

Ratio Decidendi

The court held that the council resolution appointing the applicant as Head of Directorate: Municipal Services constituted administrative action under PAJA, as it was a public power exercised in terms of legislation with direct external legal effect. The Acting Municipal Manager had the necessary authority to oppose the application and bring the counter-application. The appointment was null and void because the applicant failed the required competency assessment, and the selection panel was improperly constituted, lacking an independent expert as required by the regulations. The council's decision was ultra vires the Systems Act and its regulations, and could not be enforced. Condonation...

Court Disposition

Application dismissed with costs; counter-application granted with costs.

Orders

  • The application is dismissed.
  • The counter-application succeeds.