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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 15337/2022

DATE: 18-06-2024

 

1. REPORTABLE:  YES / NO.

2. OF INTEREST TO OTHER JUDGES:  YES / NO.

3. REVISED.

  

In the matter between

 

MOTLALEKGOMO GOGGY MMOPE                          Plaintiff

 

and

 

MADIBENG LOCAL MUNICIPALITY                           Defendant

 

JUDGMENT

 

STRYDOM, J:  

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This is an ex-tempore judgment.   In the application for leave to appeal brought by the applicant in terms of Section 17 of the Supreme Court Act 10 of 2013, leave to appeal may only be given where the judge or judges concerned are of the opinion that;

 

"(a)(i) the appeal would have a reasonable prospect of success; or (ii) there is some other compelling reason why the appeal should be heard, including the conflicting judgments on the matter under consideration."

 

The other subsections of this Section 17 are not applicable and would not be referred to. 

 

I found that the decision to abandon the appointment process and to readvertise the position of municipal manager did not constitute administrative action as envisage in PAJA but fell under the exclusion in the definition of administrative action in Section 1 of PAJA.  This subsection excludes the executive powers or functions of a municipal council.  

 

As was pointed out in my judgment, some uncertainty still exists, what the legal position is in this regard as to the question whether the appointment by a municipal council of a municipal manger constitutes administrative action or not. 

 

In paragraph 41 of my judgment, I pointed out that the Constitutional court in the recent matter of Member of the Executive Council for Cooperative Governance and Traditional Affairs, KwaZulu-Natal versus Nkandla Local Municipality and Other 2001 ZACC 46, refrain from deciding whether appointment of municipal manager constituted administrative action as contemplated in PAJA. 

 

Accordingly, our apex court has not made a final decision on this issue.  In other courts findings were made that, the appointment does constitute administrative action whilst in others not.  In my view this is a compelling reason why leave to appeal should be granted.   A decision on this issue may affect my entire judgment, and for that reason leave to appeal should be granted against my whole judgment, excluding the cost order to the Supreme court of appeal. 

 

The following order is made;

 

1   Leave to appeal is granted to the applicant to appeal against my order dismissing the application; 

2   Leave to appeal is granted to the Supreme court of appeal;

3   Cost of this application for leave to appeal to be costs in the appeal.

 

That is the judgment.  

 

STRYDOM, J

JUDGE OF THE HIGH COURT

DATE:  ……………….

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