Notyawa v Makana Municipality and Others (683/2017) [2017] ZAECGHC 95; [2017] 4 All SA 533 (ECG) (24 August 2017)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 683/2017

DATE HEARD: 26/07/2017

DATE DELIVERED: 24/08/2017

In the matter between

MBULELO PAUL GLADSTONE NOTYAWA

APPLICANT

and

MAKANA MUNICIPALITY

1ST RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL:

CO-OPERATIVE GOVERNANCE AND TRADITIONAL

AFFAIRS: EASTERN CAPE NOMINE OFFICIO

2ND RESPONDENT

PAMELA YAKO NOMINE OFFICIO

3RD RESPONDENT

JUDGMENT

ROBERSON J:-

[1] The applicant seeks the following order:

“1. That the decision of the first respondent, on the 24th of April 2015, to re-advertise the position of municipal manager at the first respondent purportedly on the basis that the appointment of the applicant was in contravention of Section 54A of the Local Government: Municipal Systems Act No 32 of 2000 (“the Act”)

for want of minimum competency requirements of the National Treasury Regulations of 2007, be reviewed and set aside.

2. That the decision of the second respondent not to appoint the applicant as municipal manager of the first respondent, alternatively, the refusal of the second respondent to appoint the applicant as municipal manager of the first respondent, be reviewed and set aside.

3. That the decisions of the first respondent to re-advertise the position of municipal manager at the first respondent be reviewed and set aside;

4. That the decision of the first respondent, purportedly to rescind the first respondent’s Resolutions on the 12th of March 2015 and the 26th June 2016 be reviewed and set aside.

5. A declarator that the applicant was lawfully appointed to the post of municipal manager by proper resolution of the first respondent’s council on 12 March 2016.

6. That the respondent be directed to comply with the Provisions of Section 57(1)(a) of the Act by concluding with the applicant, within seven (7) days of service upon it of the order of this court, a written employment contract complying with the Provisions of Section 57 of the Act with effect from the 1st April 2015, with full salary and benefits.

7. That the first respondent, together with the second respondent, (and in the event of the third respondent opposing this application, all the respondents), pay the costs of this application, jointly and severally, the one paying, the other to be absolved, such costs to include the costs of two counsel and on the scale as between attorney and client.”

[2] In brief, as can be gleaned from the relief prayed, the applicant was appointed by the Council of the first respondent (the Municipality) as its Municipal Manager. The second respondent (the MEC) informed the Municipality that he was not satisfied with the appointment and that he did not confirm the appointment on the basis that the applicant did not meet the minimum requirements for the post. The MEC instructed the Municipality to re-advertise the vacant post of Municipal Manager. The Council of the Municipality thereafter rescinded the applicant’s appointment and decided to re-advertise the post.

[3] The third respondent is cited as the former Administrator of the Municipality and no relief is claimed against her.

[4] This application is expressly brought as a legality review and not a review in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

[5] It is useful to set out at this stage the relevant legislation pertaining to the appointment of Municipal Managers. Section

54A of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) provides:

“54A. Appointment of municipal managers and acting municipal managers.—

(1) The municipal council must appoint—

(a) a municipal manager as head of the administration of the municipal council; or

(b) an acting municipal manager under circumstances and for a period as prescribed.

(2) A person appointed as municipal manager in terms of subsection (1) must at least have the skills, expertise, competencies and qualifications as prescribed.

(2A) (a) A person appointed in terms of subsection (1) (b) may not be appointed to act for a period that exceeds three months.

(b) A municipal council may, in special circumstances and on good cause shown, apply in writing to the MEC for local government to extend the period of appointment contemplated in paragraph (a), for a further period that does not exceed three months.

(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.

(4) 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.

(5) The municipal council must re-advertise the post if there is no suitable candidate who complies with the prescribed requirements.

(6) (a) The municipal council may request the MEC for local government to second a suitable person, on such conditions as prescribed, to act in the advertised position until such time as a suitable candidate has been appointed.

(b) If the MEC for local government has not seconded a suitable person within a period of 60 days after receipt of the request referred to in paragraph (a), the municipal council may request the Minister to second a suitable person, on such conditions as prescribed, until such time as a suitable candidate has been appointed.

(7) (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.

(8) If a person is appointed as municipal manager in contravention of this section, the MEC for local government must, within 14 days of receiving the information provided for in subsection (7), take appropriate steps to enforce compliance by the municipal council with this section, which may include an application to a court for a declaratory order on the validity of the appointment, or any other legal action against the municipal council.

(9) Where an MEC for local government fails to take appropriate steps referred to in subsection (8), the Minister may take the steps contemplated in that subsection.

(10) 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) if it is unable to attract suitable candidates.

(11) A person who has been appointed as acting municipal manager before this section took effect, must be regarded as having been appointed in accordance with this section for the period of the acting appointment.

(12) Any pending legal or disciplinary action in connection with an appointment made before this section took effect, will not be affected by this section after it took effect.

[6] Section 57 (1) and (2) of the Systems Act provides:

“Employment contracts for municipal managers and managers directly accountable to municipal managers

(1) A person to be appointed as the municipal manager of a municipality, and a person to be appointed as a manager directly accountable to the municipal manager, may be appointed to that position only-

(a) in terms of a written employment contract with the municipality complying with the provisions of this section; and

(b) subject to a separate performance agreement concluded annually as provided for in subsection (2).

(2) The performance agreement referred to in subsection (1) (b) must-

(a) (i) be concluded within 60 days after a person has been appointed as the municipal manager or as a manager directly accountable to the municipal manager, failing which the appointment lapses: Provided

that, upon good cause shown by such person to the satisfaction of the municipality, the appointment shall not lapse; and

(ii) be concluded annually, thereafter, within one month after the beginning of each financial year of the municipality;

(b) in the case of the municipal manager, be entered into with the municipality as represented by the mayor or executive mayor, as the case may be; and

(c) in the case of a manager directly accountable to the municipal manager, be entered into with the municipal manager.”

[7] Section 57 (6) (a) of the Systems Act provides:

(6) The employment contract for a municipal manager must-

(a) be for a fixed term of employment up to a maximum of five years, not exceeding a period ending one year after the election of the next Council of the municipality;

[8] The relevant portion of Annexure B to regulation 8 of the Act is reproduced:

ANNEXURE B

MINIMUM COMPETENCY REQUIREMENTS FOR SENIOR MANAGERS

1. Definitions

The terms defined below must be used to interpret the higher education qualification, the level of experience and the work-related

experience when appointing senior managers—

“middle management level” means a management level associated with persons in middle management positions responsible for supervising staff, and includes—

(a) An official directly accountable to a manager in the senior management level; or

(b) A person that occupied a position in a management level substantially similar to middle management level, outside the local government sphere;

“senior management level” means a management level associated with persons in senior management positions responsible for supervising staff in middle 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 municipality; or

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

“work-related experience” means the expertise of a person or skills attained by a person whether in the course of formal or informal employment.

2. Municipal Manager

(a) HIGHER EDUCATION QUALIFICATION Bachelor Degree in Public Administration/Political Sciences/Social Sciences/Law; or equivalent. (b) WORK-RELATED EXPERIENCE AND KNOWLEDGE Years of Experience Type of Experience 5 years • Relevant experience at a senior management level; and • Have proven successful institutional transformation within public or private sector. Knowledge Type of Knowledge • Advanced knowledge and understanding of relevant policy and legislation; • Advanced understanding of institutional governance systems and performance management; • Advanced understanding of Council operations and delegation of powers; • Good governance; • Audit and risk management establishment and functionality; and • Budget and finance management.

[9] In his founding affidavit the applicant set out his qualifications and experience. He has the BProc, HED and LLB degrees, the last of which he obtained in 2002. He has certificates in educational development, labour relations dispute resolution

procedures, competency in supply chain management bid committees, and competency in the role and responsibilities of municipal councillors in municipal finance management. He was a legal advisor of the South African Public Administration Student Association from 1996 to 1998, chief legal advisor of the Masakhane Community Development Service Centre from 1998 to 2002, and a senior lecturer at Edu-City College from 2001 to 2002. He was a lecturer at the Border Technicon at Walter Sisulu University during 2002 and a part-time lecturer at UNISA East London during 2002. He was head of the legal division and intelligence of the South African Communist Party in 2003, and a senior judge’s clerk and researcher at the High Court Grahamstown in 2003 and 2004. He was head of “political and labour” at NUMSA in 2004 and national spokesperson and legal advisor for COSATU from 2004 to 2006. He was the provincial organiser and head of the provincial legal desk of SADTU from 2006 to 2013. From 2013 to 2014 he was employed in the legal section and was contracts manager of a consulting engineering firm. He was a full-time councillor of the Municipality from 2011 and a member of the executive committee until September 2015, and claimed that on this ground alone he had four years in a senior managerial position at the Municipality.

[10] The advertisement for the post of Municipal Manager was advertised during November 2014 and the minimum requirements for the post were stated in the advertisement as:

· A Bachelor Degree in Public Administration or Public Management/Social Sciences/Law; or equivalent;

· A Certificate in Municipal Financial Management or Certificate Program in Municipal Development (CPMD) will be an added advantage;

· Relevant five years proven experience in a senior management position;

· A Post-graduate Degree would be an added advantage.

[11] The applicant applied for the position and attached to his application various certificates pertaining to his qualifications and work experience A selection panel of five, including the Executive Mayor, was appointed. The applicant was present at the meeting when the selection panel was appointed but did not participate or vote. The MEC’s legal advisors enquired about the applicant’s presence at the meeting when the selection panel was appointed and advised that the applicant should

recuse himself in all recruitment processes for the post. The applicant thereafter recused himself from every Council meeting when the appointment of a Municipal Manager was discussed. After interviews were held, the applicant was shortlisted with five others. He underwent verification procedures and performed a competency test and he was eventually the selection panel’s

first choice. A report was prepared by the Municipality’s human resources manager which was submitted to the Council. In the report the applicant’s relevant experience was stated as SADTU provincial organiser and head of the provincial legal desk, and national spokesperson and legal advisor to COSATU.

[12] The applicant was appointed as Municipal Manager at a full Council meeting held on 12 March 2015. There were 17 votes in favour, four against, and two abstentions. In the minute of the meeting it was recorded, inter alia, that the applicant’s non-disclosure of his candidacy (presumably when the selection panel was appointed) was condoned.

[13] Prior to his appointment, during February 2015, the applicant was requested by the Executive Mayor to attend at the City Hall where he was advised by one Andile Lungisa and one Viola Mtongana that it had been decided at a joint meeting of the Regional Executive Committee and the Provincial Executive Committee of the African National Congress (the ANC) that the applicant should withdraw his candidacy for the post of Municipal Manager. The applicant declined and was told that he would be dealt with harshly for “disturbing the Mayor from ruling freely in Makana”.

[14] Following his appointment the applicant was invited to attend a meeting with the Minister of Water and Sanitation and others,

including the MEC. An allegation was made at the meeting that ANC councillors and Democratic Alliance councillors had collaborated

to have the applicant appointed. The applicant was criticised for not standing down and was made aware that his candidacy was not supported by the ANC. The MEC told the applicant that he should write a letter declining the appointment because he was a deployee. The applicant wrote the letter under duress but did not deliver it to the Municipality and thereafter took legal advice. The MEC was informed that if he received a copy of the letter he was to ignore it because it did not reflect the applicant’s intention.

[15] Thereafter the applicant’s attorneys wrote to the acting Municipal Manager and the MEC reminding them of their various

statutory duties in relation to the appointment.

[16] By letter dated 24 April 2015 the MEC informed the Mayor as follows:

“APPOINTMENT OF MR MPG NOTYAWA AS THE MUNICIPAL MANAGER FOR MAKANA LOCAL MUNICIPALITY

The recruitment report regarding the appointment of Mr Notyawa as the Municipal Manager for Makana Local Municipality has reference.

Upon receipt of your correspondence, I have gone through the contents of the documentation to ascertain whether all the Recruitment and Selection processes as well as procedures as outlined in the Municipal Systems Amendment Act, Act No. 7 of 2011 as well as the Local Government Regulations have been followed.

I am NOT satisfied that the said appointment is in line with the provisions of Section 54 of the Amendment Act.

Your municipality will have to take the following into account:

· The MEC does not confirm the compliance of the appointment of Mr Paul Notyawa as the Municipal Manager at Makana Local Municipality as he does not meet the minimum requirement in terms of the Municipal Systems Act, Act No. 32 of 2000 as amended.

· The municipality must re-advertise the vacant post of the Municipal Manager as the other candidates also do not meet the Minimum Competency Requirements of the National

Treasury regulations of 2007.

· The department will be available to assist the municipality with technical expertise in the prescribed processes and avoid a repeat of some of the recruitment irregularities reflected in the recruitment report.”

[17] According to the applicant this was the first time that anyone had suggested that he was not qualified for the position. The applicant maintained that the reason given by the MEC was spurious and that the MEC was acting in accordance with a political decision taken by someone in the ANC.

[18] The applicant alleged that thereafter the acting Municipal Manager drafted a fraudulent minute reflecting that on 8 May 2015 the Council resolved to accept the findings of the MEC and decided to re-advertise the position. This minute was submitted to the Council which then elected a five member multi-party committee to listen to the tape recording of the meeting of 8 May 2015. The minute which the applicant claimed was forged read as follows:

“APPOINTMENT OF THE MUNICIPAL MANAGER

The Council NOTED the report from the MEC, COGTA (EC) in respect of the appointment of the Municipal Manager.

The Council RESOLVED:

(a) THAT the Council ACCEPTS the findings of the MEC, COGTA and the position of the Municipal Manager be re-advertised.

(b) THAT resolutions SC 8.1 (Appointment of a selection panel for the appointment of the Director: Engineering and Infrastructural Services) and SCC 1 (Appointment of a selection panel for the appointment of Chief Financial Officer) Council meeting dated 23 April 2015 be RESCINDED.

(c) THAT the COGTA MEC be invited to work close with the institution with regards to the appointment process (sic).”

[19] On 29 May 2015 the applicant received a letter from the Executive Mayor to the effect that the MEC did not concur with the Council’s recommendations and that the applicant’s application was therefore unsuccessful.

[20] On 9 June 2015 the Municipality’s attorneys wrote to the applicant’s attorneys advising them that the applicant had acted as judge in his own case by voting for the selection panel and that he did not have the requisite five years’ experience at senior management level. It was stated that the Municipality had submitted a report to the MEC in terms of s 54A (7) of the Systems Act and reference was made to the MEC’s letter of 24 April 2015. It was further stated that on 8 May 2015 the Council had resolved to re-advertise the position and that the position had been re-advertised the previous week.

[21] On 26 June 2015 the five Council members submitted a report to the Council after listening to the tape recording of the meeting of 8 May 2015. A resolution was taken by the Council to confirm the minutes of 12 March 2015 subject to certain additions and amendments. In the minutes which were to replace the minutes of the meeting of 12 March 2015 the details of the voting and the resolution to appoint the applicant as Municipal Manager were included.

[22] The transcript of the meeting of 8 May 2015 was annexed to the founding affidavit. It is a five page document and I shall

summarise the relevant portions. A “male person” referred to the appointment of the applicant and stated that the report from the MEC indicated that the MEC did not approve the recommendation of the Council and directed that the position should be re-advertised. The Chief Whip moved for an acceptance of the MEC’s recommendations and additionally referred to the disappointment and frustration experienced when Council thought they had acted correctly only to be told that they had not done so. The Chief Whip recommended that “Provincial Kota” should meet with Council to ensure that their processes complied fully with what was expected of Council. The word “agreed” followed.

[23] On 24 August 2015 the Council met. The minute of that meeting recorded:

“The Council recommended and endorsed Clr P Notyawa’s appointment to the post of Municipal Manager in its Resolution dated 12 March 2015. When the Council on the 8 May 2015 accepted the findings of the MEC: COGTA of not confirming Clr Notyawa’s appointment, the Council tacitly rescinded its resolution of 12 March 2015 and consequently its revised version of the 26th June 2015. The item was brought to Council to effectively and formally rescind its decision to endorse Clr Notyawa’s

appointment as Municipal Manager.”

The minute recorded that 13 were in favour of rescinding and six were against. It was further recorded that:

“The Council resolved that the following resolution adopted by Council on 12 March 2015 and consequently revised on 26th June 2015 be rescinded.”

[24] By this time the applicant had launched a review application (the first review). The Municipality’s then Counsel provided it with an opinion in which he stated that the Council had not complied with the requirements for rescission and that the resolution to appoint the applicant had not been lawfully rescinded. Counsel advised that the failure to rescind its resolution would be fatal unless immediately rectified.

[25] The applicant was charged by the ANC for defying an ANC caucus decision on 13 March 2015 (that he should decline the appointment)

and thereby brought the ANC into disrepute. He was found guilty by the provincial disciplinary committee on 15 November 2015.

He appealed to the national disciplinary committee of the ANC and his appeal was upheld. The national committee found that the caucus exceeded the limits of organisational discipline in issuing its directive to the applicant. The conviction and five year suspension were reviewed and set aside.

[26] The present application was launched on 17 February 2017. Although there was no prayer in the notice of motion for condonation,

the applicant asked for condonation in his founding affidavit, and explained the delay as follows. The first review was launched

on 23 July 2015 and was opposed by the Municipality and the MEC. The Municipality’s answering affidavit was filed on 21 September 2015 on which date the Municipality and the MEC brought counter-applications for an order declaring that the applicant’s

appointment was null and void in terms of s 54A (3) of the Systems Act. The Municipality and the MEC set the matter down for hearing on 12 February 2016 and the applicant was advised by his former attorneys to apply for a postponement so that he could

supplement his founding affidavit and file a replying affidavit to deal with various issues, including the transcript of the Council

meeting of 8 May 2015. The alleged fraudulent minute had taken him by surprise and he needed a postponement in order to listen to the tape recording of the meeting of 8 May 2015 and to have the record transcribed. The applicant’s application for a postponement was refused. The applicant had not had the opportunity to transcribe the record of the meeting of 8 May 2015 and in order to prevent irreparable harm to his case, on the advice of his attorneys and counsel, withdrew the application. The MEC withdrew his counter-application on 16 February 2016, and the Municipality withdrew its counter-application on 8 June 2016.

[27] The applicant was advised by his former legal representatives to proceed by way of action but learned that the Municipality was re-advertising the post. On 13 October 2016 the applicant launched proceedings for an interdict pending the institution of an action. The interdict application was opposed by the Municipality which brought an application to stay the application

pending payment of the taxed costs incurred as a result of the withdrawal of the first review. On 13 February 2017 the application to stay was removed from the roll by the Municipality. The applicant said that he at all times relied on legal advice and

the delay in launching the present application was through no fault on his part.[1]

[28] The Municipality’s answering affidavit was deposed to by Mr Mandisi Planga, the acting Municipal Manager of the Municipality.

He pointed out that in the light of s 57 (6) of the Systems Act (see para [7] above), and the municipal elections in August 2016, if the applicant were to succeed in this application, his appointment would run until a date in August 2017.

[29] Planga expressed the view that the explanation for the delay in bringing this application was not acceptable and that the delay

caused serious prejudice to the Municipality. As a result of the application the Municipality has been obliged to appoint acting Municipal Managers and the Municipality has been unable to achieve the required level of consistency and stability that would occur with the appointment of a permanent Municipal Manager.

[30] Planga contended that the applicant did not meet the minimum requirements for appointment and that the applicant did not establish

that his experience was at senior management level as defined. He referred to the human resources report and what was stated as the applicant’s relevant experience. The selection panel had debated whether the applicant satisfied the experience criteria of the regulations. The Mayor and another member of the selection panel were of the view that the applicant did not satisfy the criteria. However this view was not adopted by the majority and it was decided not to mention the debate in the report submitted to the Council. However the MEC was alerted to the issue and when the matter of the appointment was referred to the Council, it was decided that the selection panel and the Council had erred in accepting that the applicant met the requirements contained in the regulations.

[31] With regard to the alleged fraudulent minute and the transcript of the record of the meeting of 8 May 2015 Planga stated that the transcript needed to be read with the agenda for that meeting, which Planga himself prepared. It was in the form of a report by Planga to the Council to consider the MEC’s report. It recommended that the Council should decide that the report from the MEC be considered and that if the Council accepted the findings of the MEC, the position of Municipal Manager should be re-advertised. Planga identified himself as the male speaker in the transcript of the meeting of 8 May 2015. He said that the transcript accorded with the agenda paper read with the minute.

[32] Planga pointed out that the five member panel was appointed to listen to the recordings of the meeting of 12 March 2015, resulting in the adoption of a replacement minute of that meeting on 24 June 2015. This was merely a correction of the minute of 12 March 2015 and not a decision to appoint the applicant. Planga said that the resolution of 24 August 2015 was regarded as a “formalisation” of the implied rescission of the decision to appoint the applicant which occurred on 8 May 2015.

[33] The MEC, Mr Fikile Xasa, deposed to the answering affidavit on his own behalf. In response to the allegation of political

interference he said that all ruling party political deployees such as the applicant are subject to the dictates of the party, must respect party process and decisions, and must conduct themselves as disciplined cadres. He admitted that he was part of the political intervention on 13 March 2015 but denied that this involvement impacted on his statutory responsibilities. It was only when his department received full notification of the Municipality’s decision to appoint the applicant that he became obliged to intervene. He said it was clear from the information which he received from the Municipality that the applicant did not have the required qualifications for the position of Municipal Manager. He properly applied his mind to the facts and circumstances of the Municipality’s decision as contained in the information provided to him. He maintained that the applicant’s appointment was null and void.

[34] The MEC referred to his answering affidavit in the first review and asked that it be incorporated in this application. In that affidavit, inter alia, he explained why he had not acted within the 14 day period prescribed in s 54A (8) of the Systems Act. He said that his department received voluminous documentation from the Municipality under cover of a letter dated 25 March 2015. Additional documents had to be requested. When the documentation was complete and had been considered by the relevant officials in the department, as well as the MEC, he signed the letter of 24 April 2017, which gave effect to the recommendations of the departmental officials, and reflected his own assessment that the applicant did not meet the necessary requirements for the position. He denied that he acted for an ulterior purpose.

[35] The grounds for the review were essentially that the Municipality had not validly rescinded the applicant’s appointment for want of the proper procedure, and that the MEC’s intervention was unlawful, in that he had not complied with the time period contained in s 54A (7) of the Systems Act, that there was no basis for intervention, and that he had acted for an ulterior (party political) motive and thereby abused his powers. The applicant, so it was submitted, did have the required managerial experience and the MEC was not empowered to decree unilaterally that the applicant lacked the required managerial experience.

[36] One of the grounds on which the Municipality and the MEC opposed this application was that the decisions sought to be reviewed and set aside amounted to administrative action and the application should have been brought in terms of PAJA. That being the case, the applicant had not applied in terms of s 9 of PAJA for an extension of the 180 day period within which the application for the review of administrative action should be brought. It was submitted that a decision upholding this ground of opposition would be dispositive of the application.

[37] In PAJA administrative action is defined as:

“administrative action” means any decision taken, or any failure to take a decision, by—

(a) an organ of state, when—

exercising a power in terms of the Constitution or a provincial constitution; or

exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include—

(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in sections 79 (1) and (4), 84 (2) (a), (b), (c), (d), ( f ), (g), (h), (i) and (k), 85 (2) (b), (c), (d) and (e), 91 (2), (3), (4) and (5), 92 (3), 93, 97, 98, 99 and 100 of the Constitution;

(bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121 (1) and (2), 125 (2) (d), (e) and ( f ), 126, 127 (2), 132 (2), 133 (3) (b), 137, 138, 139 and 145 (1) of the Constitution;

(cc) the executive powers or functions of a municipal Council;

(dd) the legislative functions of Parliament, a provincial legislature or a municipal Council;

(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial functions of a traditional leader under customary law or any other law;

(ff) a decision to institute or continue a prosecution;

(gg) a decision relating to any aspect regarding the nomination, selection, or appointment of a judicial official or ay other person, by the Judicial Service Commission in terms of any law;

(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or

(ii) any decision taken, or failure to take a decision, in terms of section 4 (1);”

[38] Section 7 (1) of PAJA provides:

“7. Procedure for judicial review.—(1) Any proceedings for judicial review in terms of section 6 (1) must be instituted without unreasonable delay and not later than 180 days after the date—

(a) subject to subsection (2) (c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection (2) (a) have been concluded; or

(b) where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.”

[39] Section 9 of PAJA provides:

“9. Variation of time.—(1) The period of—

(a) 90 days referred to in section 5 may be reduced; or

(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period,

by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned.

(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require.”

[40] When the MEC indicated that he was not satisfied with the appointment of the applicant and instructed the Council to re-advertise the post, he was exercising his powers in terms of s 54A (8) of the Systems Act to take appropriate steps to enforce compliance by the Council with s 54A. In my view he was exercising a public power. His decision related to the management of the Municipality by a person fit to hold the position of Municipal Manager in accordance with the requirements of the Systems Act. In his oversight role he had and has a responsibility to the residents of the Municipality and his decision therefore had a significant public component. When the Municipality acceded to the instruction of the MEC and decided to rescind the appointment and re-advertise the post, it was doing so within the framework of the Systems Act, following an instruction by the MEC exercising a public power in terms of the Systems Act. In both cases these were decisions taken in the exercise of public power in terms of the Systems Act, which decisions adversely affected the rights of the applicant and had the capacity adversely to affect the rights of the residents of the Municipality. They were final decisions with a direct external legal effect.[2]

[41] In Mlokoti v Amathole District Municipaltiy and Another 2009 (6) SA 354 (E) the applicant applied to review and set aside the decision of the first respondent municipality to appoint the second respondent as Municipal Manager. Pickering J considered the decision to appoint the second respondent to be administrative action. At 376B-377I he said:

“Mr Quinn, however, had a second string to his bow, namely that the decision of first respondent’s council to appoint second respondent as its municipal manager was not an administrative act subject to review in terms of either the provisions of PAJA or the common law but was, instead, a political decision taken by first respondent. In this regard he submitted that it was idle to suggest that political considerations would not have come into play given that the post of municipal manager clearly had a political dimension. In view of the fact that the municipal manager had to oversee political decisions of the council it was imperative that the appointee be a person who could co-operate closely with his political masters. In this regard he referred to the Fedsure case, supra, where in para 41 the following was stated:

‘The Council is a deliberative legislative body whose members are elected. The legislative decisions taken by them are influenced by political considerations for which they are politically accountable to the electorate…. Whilst this legislative framework is subject to review for consistency with the Constitution, the making of by-laws and the imposition of taxes by Council in accordance with a prescribed legal framework cannot appropriately be made subject to challenge by ‘every person’ affected by them on the grounds contemplated by section 24 (b) … The deliberation ordinarily takes place in an assembly in public where the members articulate their own views on the subject of the proposed resolutions. Each member is entitled to his or her own reasons for voting for or against any resolution and is entitled to do so on political grounds. It is for the members and not the Courts to judge what is relevant in the circumstances.’

Reference was also made to Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the RSA and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) where it was held that the power of the President to bring legislation into operation was a power derived from the legislation

itself and was incidental to the law-making process. The decision to bring the legislation into operation required a political judgment and did not constitute administrative action as it was closer to the legislative process than the administrative process. (See parag 79.)

With regard to the Mkumatela decision, supra, relied on also in this regard by Mr. Smuts, Mr. Quinn submitted that it was distinguishable inasmuch as it involved the review of a decision of a functionary performing administrative

functions whereas in the present case the court was concerned with the decision of an elected and deliberative body whose legislative

and executive authority flowed from the Local Government: Municipal Systems Act in terms whereof the task of selecting a Municipal Manager was given to the council, a political body. In these circumstances, he submitted, the above cited in the Fedsure and Pharmaceuti-

cal cases were applicable and it was not for the Court to interfere with the decision.

In my view, however, the flaw in these submissions is that they fail to distinguish between the task to be performed and the functionary

performing such task. See President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) where the following was stated in para 141 with reference to s 33 of the Constitution:

‘In s 33 the adjective “administrative” not “executive” is used to qualify “action”. This suggests that the test for determining whether conduct constitutes “administrative action” is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute “administrative action”. Similarly judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to whether conduct is “administrative action” is

not on the arm of government to which to relevant actor belongs, but on the nature of the power he or she is exercising.”

In any event, first respondent cannot seek, merely by attaching the epithet ‘political’ to its decision, thereby to evade its obligations in terms of the enabling legislation and its own recruitment policy to apply transparent and procedurally and substantively fair recruitment and selection procedures whereby candidates are selected objectively and on merit. The decision, in others words, is not thereby insulated from judicial scrutiny.

The case of Sebenza Forwarding and Shipping Consultancy (Pty) Ltd v Petroleum Oil and Gas Corporation of SA (Pty) Ltd t/a Petro SA and Another 2006 (2) SA 52 (C) is instructive in this regard. There an argument was raised to the effect that a decision taken by the second respondent, the Minister of Minerals and Energy Affairs, was a ‘political decision’ and not an administrative decision; that it did not concern the exercise of public power; and that it was consequently not reviewable. This argument was rejected by Bozalek J who held, at para 25, that the ‘fact that a politician may be the channel through which an organ of State is approached for certain relief or action does not, in itself, render a decision to take such action or not a political decision’.

Whilst, therefore, the formulation by first respondent of its recruitment policy may constitute executive action, the implementation thereof clearly constitutes administrative action. Seen against the enabling framework of the legislation, including the Constitution, it is clear in my view that the power given to a council to appoint municipal managers is a necessary administrative adjunct of its functioning.

In my view, therefore, the decision to appoint the second respondent was clearly an administrative act which is susceptible to review.”

[42] It was not suggested that Pickering J was wrong in his conclusion. It follows, as was submitted on behalf of the Municipality and the MEC, that the Municipality’s decision to rescind the appointment was similarly administrative action.

[43] It was submitted on behalf of the applicant that decisions regarding employment and labour issues do not amount to administrative action as contemplated by PAJA, although they involve the exercise of public power which is reviewable on the principle of legality.

Reference was made to the judgment in Gcaba v Minister of Safety and Security and Others 2010 (1) SA 238 (CC). At para [64] of that judgment the following was said:

“Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of s 33 is to deal with the relationship between the State as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the State as employer and its workers. When a grievance is raised by an employee relating to the conduct of the State as employer and it has few or no direct implications or consequences for other citizens, it does not constitute

administrative action.”

[44] The applicant did not bring this application as an employee and further, the appointment of a Municipal Manager does have direct

implications or consequences for other citizens. The stringent and rigorous requirements of the Systems Act and the regulations and the oversight roles of the MEC and the Minister relating to the appointment of a Municipal Manager, emphasise such implications and consequences. As Pickering J said in Mlokoti (supra) at 380C-D:

“It is clear that the councillors of the ANC supinely abdicated to their political party their responsibility to fill the position of the municipal manager with the best qualified and best suited candidate on the basis of qualifications, suitability, and with due regard to the provisions of the pertinent employment legislation as set out in para 1 of the recruitment policy. This was a responsibility owed to the electorate as a whole and not just to the sectarian interests of their political masters.”

[45] It was further submitted that the decision of the MEC was not administrative action in the light of the exclusion in the definition

of administrative action of:

“the executive powers or functions of the Provincial Executive, including the powers or functions referred to in sections 121 (1) and (2), 125 (2) (d), (e) and ( f ), 126, 127 (2), 132 (2), 133 (3) (b), 137, 138, 139 and 145 (1) of the Constitution;”

Section 139 (1) of the Constitution was the focus of the submission in that it provides:

“139. Provincial intervention in local government.—

(1) When a municipality cannot or does not fulfil an executive obligation in terms of the Constitution or legislation, the relevant provincial executive may intervene by taking any appropriate steps to ensure fulfilment of that obligation,

including—

(a) issuing a directive to the Municipal Council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations;

(b) assuming responsibility for the relevant obligation in that municipality to the extent necessary to—

(i) maintain essential national standards or meet established minimum standards for the rendering of a service;

(ii) prevent that Municipal Council from taking unreasonable action that is prejudicial to the interests of another municipality or to the province as a whole; or

(iii) maintain economic unity; or

(c) dissolving the Municipal Council and appointing an administrator until a newly elected Municipal Council has been declared elected, if exceptional circumstances warrant such a step.

However in the present matter the MEC was not intervening with regard to an executive obligation of the Municipality but to an administrative act in terms of enabling legislation.

[46] I therefore conclude that the decisions sought to be reviewed and set aside amounted to administrative action as envisaged in PAJA.

[47] As already mentioned, this application is brought as a legality review and is expressly not brought in terms of PAJA. In the matter of State Information Technology Agency Soc Ltd v Gijima Holdings 2017 (2) SA 63 (SCA) the appellant’s application was for declaratory relief which was in substance a legality review (para [32]. It was found that PAJA was of application to the impugned administrative action. At para [33] Cachalia JA, writing for the majority, said:

“It is necessary to distinguish between a PAJA review, on the one hand and a legality review, on the other. PAJA was enacted to give effect to the right to lawful administrative action in s 33 of the Constitution. And, as it was intended to be, and in substance is, a codification of the rights in s 33, so the Constitutional Court said in New Clicks, it was not possible for litigants to go behind it, by relying either directly on s 33(1) or on the common law, when reviewing unlawful administrative actions as this would undermine the very purpose for which it was enacted. So, PAJA covers administrative action while private (contractual) power remains reviewable at common law. In short, if the unlawful administrative action falls within PAJA's remit there is no alternative pathway to review through the common law.”

And further at para [38]:

“In my view, the proper place for the principle of legality in our law is for it to act as a safety net or a measure of last resort when the law allows no other avenues to challenge the unlawful exercise of public power. It cannot be the first port of call or an alternative path to review, when PAJA applies. As this court said in National Director of Public Prosecutions and Others v Freedom Under Law:

'The legality principle has now become well established in our law as an alternative pathway to judicial review where PAJA finds no application.' [Emphasis added.]”

[48] It was submitted on behalf of the applicant that this judgment was in conflict with the judgment in Khumalo and Another v MEC for Education, KwaZulu-Natal 2014 (5) SA 579 (CC). In this matter the MEC sought to review and set aside her own Department’s decisions relating to promotion of certain employees. Skweyiya J, writing for the majority, expressly sought to discern the nature of the review (at para [23]) and identified it as “one for judicial review under the principle of legality” (at para [28]). At para [27] the distinction between a legality review and a review in terms of PAJA was acknowledged. Skweyiya J said:

“Admittedly the grounds of the review are ambiguously framed. Counsel for the MEC acknowledged in the hearing that the relief sought was deliberately framed in terms of the [Labour Relations Act] in an effort to avoid the time frames set by PAJA. Notwithstanding the ambiguity, in my view, these references to administrative action and PAJA are not meant to found the legal basis of her challenge but to motivate her standing to correct the impugned decisions. In any event, any direct reliance by her on s 33 of the Constitution or PAJA, to establish the grounds of review, would be misplaced in the light of this court’s

jurisprudence and the particular facts of this matter.”

I am therefore of the view that Gijima is not in conflict with Khumalo.

[49] In the light of the Gijima judgment the applicant in the present matter was obliged to proceed in terms of PAJA. He expressly did not do so.

[50] In Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality [2017] 2 All SA 677 (SCA) it was said at para [8] that:

“Section 9 [of PAJA] contemplates a substantive application to the relevant court or tribunal, by the person or administrator concerned. That application ought to have been made by the respondent when it first approached the court for relief. It did not do so. Once the appellant had raised the issue of compliance with PAJA, the respondent was obliged to launch an application in terms of this section for an extension of the fixed period. This application could thereafter have been consolidated with the review application. The correct procedure would have ensured that the relevant facts were placed before the court a quo, to enable it to exercise its discretion properly.”

In the present matter there is no such application.

[51] Reference was made in Asla Construction to what was said in Opposition to Urban Tolling Alliance v South African National Roads Agency [2013] 4 All SA 639 (SCA) at para [26]:

“Absent such extension the court has no authority to entertain the review application at all. Whether or not the decision was unlawful no longer matters, the decision has been “validated” by the delay….”

[52] Further reference was made to Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another [2010] 2 All SA 519 (SCA) where the following was said at para [54]:

“Section 9(2) however allows the extension of these time frames where ‘the interests of justice so require’. And the question whether the interests of justice require the grant of such extension depends on the facts and circumstances of each case: the party seeking it must furnish a full and reasonable explanation for the delay which covers the entire duration thereof and relevant factors include the nature of the relief sought, the extent and cause of the delay, its effect on the administration of justice and other litigants, the importance of the issue to be raised in the intended proceedings and the prospects of success.”

[53] In the present matter I am of the view that even if there had been a substantive application for an extension of the 180 day period, the applicant did not furnish a full and reasonable explanation for the delay in bringing the application. Even if one takes the date he received the letter from the Executive Mayor informing him that his application had been unsuccessful as the beginning of the 180 day period, this application was brought some 20 or 21 months later. This is a considerably long period of time.

[54] The applicant withdrew the first review on 12 February 2016. This was a conscious tactical decision because he wanted to obtain a transcript of the meeting of 8 May 2015 and did not want to harm his application irreparably. As pointed out on behalf of the MEC, it would not have taken long to obtain the transcript which ran to five pages. The applicant said that he was taken by surprise by the minute at the hearing of the first review. However that minute was annexed to his founding affidavit in the first review and the suggestion that he was taken by surprise is misleading. If he had the minute at the time he launched the first review, he gave no reason why he only decided on 12 February 2016 that he needed to obtain a transcript of the meeting. No reason was given for not having obtained a transcript of the record of the meeting at that stage. He stated that he had not had an opportunity to transcribe the minutes but did not say why, especially when he had the minute when he launched the first review.

[55] It is significant that it was the Municipality and the MEC who set the matter down for hearing on 12 February 2016. By this time the applicant had not filed his replying affidavit although the answering affidavits had been filed in September 2015. There was therefore considerable inertia or apparent lack of a desire to proceed on the part of the applicant even in respect of the first review. It took another year before the present application was launched. He did not have to wait for the Municipality’s counter-application to be withdrawn on 8 June 2016. It seems that the advice he received from his attorneys to proceed by way of action was given after the withdrawal of the Municipality’s counter-application. There was therefore no explanation for not proceeding afresh between February and June 2016. No explanation was given for not instituting an action, even though an interdict application was brought pending the action. This was only brought in October 2016.

[56] Effectively the applicant did nothing between June and October 2016. He could not sit back and wait for the Municipality to re-advertise the post before springing into action. Even though he launched the interdict application, the action was not instituted. The mere opposition to the interdict proceedings by the Municipality did not prevent the applicant from proceeding either by way of application or action. Nothing was done between October 2016 and February 2017 and no explanation was forthcoming. It did not assist the applicant to say that he relied on the advice of his attorneys. Days and months were going by. The decision to proceed by way of action was abandoned and it was decided to proceed again by way of application.

[57] The applicant’s explanation for the failure to institute this application within 180 days is therefore neither full nor

reasonable. He was the cause of the delay. It seems that time was spent while he decided how best to pursue his case.

This in itself is not in the interests of justice. Parties against whom relief is sought should not have to wait while an

applicant decides how and when to proceed, particularly in the case of a review of administrative decisions where finality is all

important.

[58] During all this time that the applicant delayed, the Municipality was obliged to appoint an acting Municipal Manager, resulting in the inability to achieve the desired level of stability and consistency in the management of the Municipality.

[59] In addition to the unsatisfactory explanation for the delay in bringing the application and the disruption to the Municipality, the granting of the relief claimed would have no practical effect. In his notice of motion the applicant specifically asked that the Municipality be directed to conclude a written employment contract with effect from 1 April 2015. This application was heard on 26 July 2017 when the employment contract of the applicant, had it been concluded, would have come to an end in a very short time, pursuant to the provisions of s 57 (6) (a) of the Systems Act. Municipal elections were held on 3 August 2016. This in my view renders a decision in the matter moot.

[60] In addition the prospects of success do not appear to be particularly strong. It was clear that the MEC, for party political reasons, was not in favour of the applicant’s appointment. However the question of whether or not the applicant met the prescribed requirements for the position is to be objectively determined. (See Merafong City Local Municipality v South African Municipality Workers Union ("SAMWU") and Another [2016] 8 BLLR 758 (LAC) at para [59].) It was submitted on behalf of the Municipality and the MEC that the applicant’s experience did not meet the prescribed requirements. There is merit in the submission that the applicant’s experience as a councillor, a political office, did not amount to managerial experience. There is also merit in the submission that his employment experience when working for COSATU, NUMSA and SADTU was not at senior management level, especially when one considers the definition of “senior management level” in Annexure B (see para [8] above).

[61] In the result the applicant did not bring the required application in terms of s 9 of PAJA for an extension of the 180 day period and even if he had he would not have established that it would be in the interests of justice to grant such an extension. I would add that even if this was a legality review, the application of the delay rule would not have favoured the applicant. The delay was self evidently unreasonable and not fully explained, and the same factors that I have considered would have militated against the granting of condonation. It follows that the application to review the impugned decisions cannot be considered.

[62] The application is dismissed with costs, including the reserved costs of the interdict proceedings, such costs to include, in the case of the second respondent, the costs of two counsel where so employed.

_____________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Adv I J Smuts SC, instructed by Wheeldon Rushmere & Cole Incorporated, Grahamstown

For the 1st Respondent: Adv T J M Paterson SC, instructed by Whitesides Attorneys, Grahamstown

For the 2nd Respondent: Adv R Quinn SC and Adv P Benningfield, instructed by NN Dullabh & Co, Grahamstown

[1] The interdict was subsequently granted on 31 March 2017, pending the decision in this application.

[2] In Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) Nugent JA, with reference to the qualification in the definition of administrative action “adversely affects the rights of any person”, said at para [23] “The qualification, particularly when seen in conjunction with the requirement that it must have a ‘direct and external legal effect’, was probably intended rather to convey that administrative action is action that has the capacity to affect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals.”