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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

CASE NO. 13820/2024P

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL

FOR CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS (KWAZULU-NATAL)                           APPLICANT

 

and

 

NONGOMA LOCAL MUNICIPALITY                           FIRST RESPONDENT

 

THE MUNICIPAL COUNCIL OF NONGOMA

LOCAL MUNICIPALITY                                           SECOND RESPONDENT

 

NHLAKANIPHO SYDNEY FREEDOM ZULU               THIRD RESPONDENT

 

BRIAN MZWANDILE DUBE                                    FOURTH RESPONDENT

AND 43 OTHER RESPONDENTS

 

                                       

ORDER

 

The following order is granted:

1.       The second respondent’s decision to appoint:

(a)      the third respondent as acting municipal manager for a period of three months; and

(b)      the fourth respondent as acting chief financial officer for a period of three months;

be and is hereby reviewed and set aside.

2.       In terms of section 172(1)(b) of the Constitution, and as an interim measure only in the event of the disciplinary enquiry in respect of the incumbent municipal manager not having been finalised, the applicant is directed and authorised to second a suitable person at his discretion, who has the skills, expertise, competencies, and qualifications as prescribed by the Local Government: Municipal Systems Act 32 of 2000 to act in the position of municipal manager of the Nongoma Municipality in terms of regulation 20 of the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers of 17 January 2014.

3.       It is directed that each party shall pay its own costs.

 

JUDGMENT

 

E Bezuidenhout J

 

Introduction

[1]             This matter came before me as an urgent application on 11 September 2024. The applicant, the MEC for Co-operative Governance and Traditional Affairs (KwaZulu-Natal) (the MEC), sought relief contained in two parts against the first respondent, the Nongoma Local Municipality (the Municipality); the second respondent, the Municipal Council of the Nongoma Local Municipality (the Municipal Council); the third respondent, the acting municipal manager (Mr Zulu); the fourth respondent, the acting chief financial officer (Mr Dube); and 44 councillors.

 

[2]             In part A, the first order prayed for reads inter alia as follows:

‘2.        That pending the final determination of the Second order Prayed referred to hereunder:

2.1       That the Second Respondent’s decision taken on 30 August 2024 to appoint:-

2.1.1    Third Respondent as the Acting Municipal Manager for a period of three months;

2.1.2    Fourth Respondent as the Acting Chief financial Officer for a period of three months;

be and are (sic) hereby suspended forthwith.

2.2       That First and Second Respondents are interdicted and restrained from appointing third and fourth Respondents into such acting positions in the future.

2.3       That First and Second Respondents are directed to seek a secondment of duly qualified officials from Applicant to fill these temporary vacancies.

2.4       That the First and Second Respondent pay costs of the First Order Prayed on an attorney and client scale.

2.5       Alternatively, the cost for First Order Prayed be reserved for decision by the court hearing the Second Order Prayed.’

 

[3]             In part B, the second order for prayed reads as follows:

‘1.        That the Second Respondent’s decision taken on 30 August 2024 to appoint: -

1.1            Third respondent as the Acting Municipal Manager for a period of three months; and

1.2            Fourth Respondent as the Acting Chief Financial Officer for a period of three months;

be and are (sic) hereby set aside on review alternatively, are set aside as being contrary to the law and the principle of legality.

2.         That any decision made by the Third or Fourth Respondents in their acting capacities aforesaid be and are (sic) hereby set aside.

3.         That the Councillors who were party to the said decision of Council and Third and Fourth Respondents be and are hereby held in contempt of Court of the judgment of his Lordship Mr Justice Bezuidenhout in Case No. 11032/2024 and the judgment of her Ladyship Acting Justice Marion in Case No. 12291/2024P.

4.         That the said Councillors being Fifth to Twenty-Sixth respondents herein are directed to appear before this Honourable Court at a time and date fixed by the Registrar for this Honourable Court to decide the sanction for the said contempt of court.

5.         That the said Councillors, being Fifth to Twenty-Sixth respondents herein are directed to pay the costs of this application personally, alternatively;

That the costs of this application are to be paid by First and Second Respondents, jointly and severally on the basis as between attorney and client.’

 

[4]             At the hearing of the matter, I was informed that the parties had agreed to proceed with the hearing of the review, as set out in Part B of the notice of motion, which I agreed to hear on an urgent basis on 19 September 2024, provided the papers were complete by 17 September 2024. The record of the proceedings apparently only consisted of the resolution taken by the Municipal Council on 30 August 2024.

 

[5]             I requested the parties to agree on a joint list of issues, which list was duly filed on 18 September 2024. The issues consisted of two parts, namely the legality issue and the factual issue. The legality issue was set out as follows:

(a)            Did the Municipal Council have the lawful power to make the appointments in terms of section 54A(1)(b) and section 56(1)(a)(ii) of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act)?

(b)            Is it lawful or legal to make acting appointments, as contemplated in sections 54A and 56 of the Systems Act, for municipal managers or chief financial officers after the expiry of the initial three-month period or six-month period after an extension?

(c)             If no such power exists for the Municipal Council to have made the appointments, can a court make an order in terms of section 172(1)(b) of the Constitution and if so, what just and equitable order should be granted by this court in terms of section 172(1)(b) to cater for the necessity of the appointment of an acting municipal manager and acting chief financial officer of the Municipality while the incumbents are suspended?

 

[6]             The factual issue to be decided was whether it was unlawful to appoint Mr Zulu and Mr Dube either on the basis of their qualifications or on the basis of Mr Zulu’s conduct or Mr Dube’s resignation. The issues relating to the alleged contempt of court were not pursued before me.

 

[7]             At the conclusion of the hearing, I requested counsel appearing for both sides to prepare draft orders of the relief they deemed appropriate, especially in light of the fact that I was being asked to consider making a just and equitable order in terms of section 172(1)(b) of the Constitution, which was duly done. I will deal with their proposals in due course.

 

Legislative framework

[8]             Central to the issues to be decided, in particular the legality issue, are the provisions of sections 54A and 56 of the Systems Act. The relevant portions read as follows:

‘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 or acting 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 …; and

(b)        select from the pool of candidates a suitable person …

(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)       …

(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.

…

56.   Appointment of managers directly accountable to municipal managers. —

(1)(a)   A municipal council, after consultation with the municipal manager, must appoint—

(i)         a manager directly accountable to the municipal manager; or

(ii)        an acting manager directly accountable to the municipal manager under circumstances and for a period as prescribed.

(b)       A person appointed in terms of paragraph (a) (i) or (ii) must at least have the skills, expertise, competencies and qualifications as prescribed.

(c)        A person appointed in terms of paragraph (a) (ii) may not be appointed to act for a period that exceeds three months: Provided that 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.

(2)       A decision to appoint a person referred to in subsection (1) (a) (i) or (ii), 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, unless the Minister, in terms of subsection (6), has waived any of the requirements listed in subsection (1) (b).

(3)       If a post referred to in subsection (1) (a) (i) becomes vacant, the municipal council must—

(a)        advertise the post…; and

(b)        select from the pool of candidates a suitable person...

(4)        The municipal council must re-advertise the post if there is no suitable candidate...

(5)(a)   The municipal council must, within 14 days of the date of appointment, 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.

(6)       If a person is appointed to a post referred to in subsection (1) (a) in contravention of this Act, the MEC for local government must, within 14 days of becoming aware of such appointment, take appropriate steps to enforce compliance by the municipal council with this Act, which steps 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.

(7)       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 (1) (b) if it is unable to attract suitable candidates…’

 

[9]             Section 56 contains no provision equivalent to section 54A(6), in terms of which a municipal council may request the MEC to second a suitable person to act in the advertised position until a suitable candidate has been appointed.

 

[10]         The definition for ‘prescribe’ is important, as there are various references to ‘prescribed’ in sections quoted above. Section 1 defines the word ‘prescribe’ as meaning ‘prescribe by regulation or guidelines in terms of section 120, and “prescribed” has a corresponding meaning’. The following definitions are also relevant: (a) A municipal manager is defined as ‘appointed in terms of section 54A’; and (b) Secondment is defined as ‘an employee who perform duties in terms of an agreement between their employer and the relevant official in organ of state receiving the employee’.

 

[11]         Section 172(1)(b) of the Constitution provides that:

‘(1)       When deciding a constitutional matter within its power, a court—

(a)        …

(b)        may make any order that is just and equitable, including—

(i)         an order limiting the retrospective effect of the declaration of invalidity; and

(ii)        an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.’

 

[12]         There are various regulations which are relevant. The Municipal Regulations on Minimum Competency Levels[1] (the Minimum Competency Regulations) as amended by the Amendments to Municipal Regulations on Minimum Competency levels, 2007,[2] set out the minimum competency levels for accounting officers and chief financial officers.

 

[13]         Regulation 3 sets out the minimum competency levels for an accounting officer, the municipal manager in other words,[3] but was subsequently amended as mentioned. An accounting officer is required to have a higher education qualification of ‘At least a Bachelor degree or a relevant qualification registered on the National Qualifications Framework at a NQF level 7 with a minimum of 360 credits’. The prescribed work-related experience is a ‘Minimum of 5 years at senior management level’. A number of other standards to be complied with are also listed but are not relevant for current purposes.

 

[14]         Regulation 5 deals with the minimum competency levels for a chief financial officer, some of which were likewise amended in the notice referred to above. A distinction is made between municipalities with an annual budget below R1 billion and those with a budget over R1 billion. It appears that the Municipality falls within the first category. A chief financial officer is required to have a higher education qualification of ‘At least a Bachelor degree in Accounting, Finance or Economics or a relevant qualification registered on the National Qualifications Framework at a NQF level 7 with a minimum of 360 credits’. The prescribed work-related experience is a ‘Minimum of 5 years at middle management level’. As before, a number of other standards are also listed but are not relevant for present purposes.

 

[15]         The Local Government: Disciplinary Regulations for Senior Managers, 2010[4] (the 2010 Regulations) set out the disciplinary code and procedures in chapter 2. Regulation 6, in particular, deals with the precautionary suspension of a senior manager on full pay if there are allegations of misconduct. In terms of regulation 6(6)(a), the disciplinary hearing of a senior manager on suspension must commence within three months after the date of suspension, failing which the suspension will automatically lapse. The period of three months may not be extended by a municipal council, as per regulation 6(6)(b). The presiding officer conducting the hearing must, in terms of regulation 10(6), provide written reasons for his finding and a copy of the sanction within 10 days after the last day of the hearing. The regulations are silent on the period within which the disciplinary process must be finalised.

 

[16]         The Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers[5] (the 2014 Regulations) set out the general requirements for the appointment of senior managers in regulation 8 and the competence requirements in regulation 9. In regulation 1, a senior manager is described as ‘a municipal manager or acting 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’.   

 

[17]         Chapter 4 deals with conditions of employment, such as sick leave and maternity leave (four consecutive months leave is permitted) and chapter 6 deals with the termination of service through retirement, termination of the employment contract, and dismissal for misconduct, incapacity, or operational requirements. These regulations do not deal with the suspension of a senior manager.

 

[18]         The 2014 Regulations further deal with various issues such as recruitment, selection, and advertising of vacant positions. Regulation 10 deals with the advertisement of vacant posts, after receipt of approval from council. Regulation 20 deals with secondment. In terms of regulation 20(1):

‘If a person is seconded to a municipality to act as a municipal manager in terms of section 54A(6) of the Act, an agreement must be entered into between the relevant seconding authority and receiving municipality.’

 

[19]         Regulation 20(4) is of particular importance and reads as follows:

‘(4)       A person seconded in terms of sub-regulation (1) must report monthly to the MEC or the Minister, in terms of section 54A (6), on the following—

(a)        steps taken to fill the vacant post to which he or she is seconded;

(b)        the development and implementation of any municipal institutional recovery plan for which the seconded official is responsible;

(c)        monitor and assess the adherence to policy, principles and frameworks applicable to the municipality;

(d)        develop a turnaround strategy for the municipality including a strategy to promote good governance;

(e)        ensure implementation of municipal council resolutions by the administration;

(f)         implement a system to control and approve all expenditure;

(g)        implement all governance systems and procedures; and

(h)        ensure implementation of financial systems, policies and procedures.’

 

[20]         The MEC attached to its papers, and relied upon, Municipal Governance and Administration Circular 22 of 2023, the subject being ‘The lawful duration of appointment for acting senior manager’, issued by the MEC and addressed to mayors and municipal managers. The copy attached to the papers is undated but it is assumed that it was written in 2023. The circular draws attention to sections 54(2A) and 56(1)(c) of the Systems Act and the effect of the amendments to the Systems Act. Reference is further made to two judgments, namely Notyawa v Makana Municipality and others[6] and Member of the Executive Council for Local Government, Environmental Affairs and Development and Development Planning, Western Cape Province v Knysna Municipality and others.[7] I will refer to the judgments later on in my judgment.

 

[21]         The circular concluded with a directive that municipalities must comply with the legislative provisions, which stipulate that an acting appointment for a senior manager should not exceed six months. In the event that the post is not filled after an acting appointment of six months, municipalities have the option of requesting a secondment from the MEC. Municipalities were further urged to expedite the recruitment process.

 

Background and previous litigation

Application under case number 11032/2024P

[22]         On 16 July 2024, the Municipality, issued an application as first applicant under case number 11032/2024. The second applicant was Mr Sipho Bhekisizwe Nkosi (Mr Nkosi), at the time the acting municipal manager of the Municipality, and the third applicant was Mr Bhekokuhle Otto Menyuka (Mr Menyuka), the acting chief financial officer. The MEC was cited as the first respondent. Ms A B Mnikathi (Ms Mnikathi) and Mr B W Ndlovu (Mr Ndlovu) were cited as the second and third respondents, respectively, being the persons the MEC had decided to second to the Municipality.

 

[23]         The relief claimed was for an interdict pending the finalisation of a review, and included inter alia an order that the MEC’s decision to second Ms Mnikathi and Mr Ndlovu be suspended and that Mr Nkosi and Mr Menyuka be authorised to perform their functions in their acting positions in accordance with a council resolution dated 24 June 2024.

 

[24]         It is apparent from the application papers, which were made available to me, that the incumbent municipal manager and chief financial officer were placed on special leave pending the outcome of a bail application on 28 March 2024. Mr Nkosi and Mr Menyuka were appointed as acting municipal manager and acting chief financial officer, respectively, for a period not exceeding three months, commencing on 1 April 2024. The MEC was informed, as required, in a letter dated 28 March 2024 and subsequently approved the appointments for a period not exceeding the three months.

 

[25]         During a council meeting held on 15 May 2024, the incumbent municipal manager and chief financial officer were suspended for three months on full pay.

 

[26]         During another council meeting held on 21 June 2024, the Municipal Council decided to extend the contracts of Mr Nkosi as well as Mr Menyuka for a further period of three months effective from 1 July 2024. On 24 June 2024, the Municipality addressed a letter to the MEC wherein it made submissions for the extension of the aforementioned acting appointments and requested the MEC to concur with the extensions of the appointments.

 

[27]         On 15 July 2024, the MEC addressed a letter to the Municipality in which its attention was drawn to the provisions of sections 54A(2A) and 56(1)(c) of the Systems Act in terms of which a municipality had to apply in writing in special circumstances and upon good cause shown for the MEC to extend the period of appointment. The MEC also stated that the Municipal Council acted ultra vires as it did not have the authority to approve the extension of the acting appointments. The MEC did not approve the appointments and further informed the Municipality that it had decided, in terms of section 105 of the Systems Act, read with section 154 of the Constitution, to second Ms Mnikathi and Mr Ndlovu as acting municipal manager and acting chief financial officer for a period of three months, with effect from 15 July 2024.

 

[28]         The application was heard on 19 July 2024. The MEC opposed the application which was argued before P Bezuidenhout J on the same day. The MEC only filed a provisional answering affidavit, explaining inter alia that the Municipality had failed to set out exceptional circumstances or good cause in its letter of 24 June 2024. It did not even provide an explanation of the progress made with the disciplinary processes of the incumbent municipal manager and chief financial officer. The MEC also stated that the two proposed acting officials had allegedly already committed serious financial irregularities whilst in these positions from April to May 2024, which included obtaining overdraft funds and using infrastructure grant money to cover operating expenditure, which actions are prohibited. The cash flow deficit had increased from R9,8 million in May to R58,59 million in June 2024. The MEC consequently took a decision to second two proven and financially competent persons in terms of his powers as mentioned above.

 

[29]         In a judgment handed down on 31 July 2024, P Bezuidenhout J held that the council of the Municipality acted incorrectly when it extended the acting appointments and only thereafter requested the MEC to extend it.[8] There was furthermore no valid request to the MEC to do so, as no special circumstances or good cause was set out in the request. The court also found that the MEC did not in the circumstances have the necessary authority to second staff on its own accord and that the secondment was not valid and therefore had to be rescinded.[9] The court only granted orders affecting the MEC’s secondment of Ms Mnikathi and Mr Ndlovu. No order was granted that would allow Mr Nkosi and Mr Menyuka to continue to perform their duties. The costs were reserved for decision by the court hearing the review. The Municipality has not proceeded with the review.

 

Application under case number 12291/2024P

[30]         On 12 August 2024, the MEC issued an application under case number 12291/2024P against the Municipality as first respondent; the Municipal Council as second respondent; Mr Nkosi, the acting municipal manager, as third respondent; and Mr Menyuka, the acting chief financial officer, as fourth respondent. The fifth to twenty-sixth respondents were councillors of the Municipality. Subsequently, a further 22 councillors were joined as respondents.

 

[31]         The MEC sought interdictory relief that the Municipal Council’s decision to appoint Mr Nkosi as acting municipal manager and Mr Menyuka as acting chief financial officer for a period of three months be suspended pending the finalisation of a review.

 

[32]         It appears from the founding affidavit that the application once again centred around the ability in law of the Municipal Council to re-appoint Mr Nkosi and Mr Menyuka as acting municipal manager and acting chief financial officer when they had already served in these acting positions for three months ending 1 July 2014. Ample reference was further made to the previous application that came before P Bezuidenhout J and the findings made by him in his judgment.

 

[33]         It appears that after the judgment of 31 July 2024, the MEC, on 5 August 2024, received a letter from the mayor of the Municipality, advising that it had resolved to appoint Mr Nkosi and Mr Menyuka for a period not exceeding three months, commencing on 6 August 2024. It also stated that it had made a ‘fresh appointment’ in terms of section 54A(1)(b) of the Systems Act and that there is no need to request the MEC’s concurrence. The MEC was merely informed ‘out of courtesy’. The mayor further denied that the Municipality was in financial difficulties.

 

[34]         On 6 August 2024, the MEC responded in writing to the mayor and informed him that the Municipal Council had acted unlawful by making the two appointments and that the description of ‘fresh appointments’ was an attempt to ‘get around’ the judgment of P Bezuidenhout J and the provisions of sections 54A and 56 of the Systems Act. The Municipal Council was called upon to rescind the appointments. Needless to say, the mayor did not agree, which lead to the application being brought. It was heard on 15 August 2024 before Marion AJ.

 

[35]         The MEC relied on the same grounds as in the previous application as far as the objections to Mr Nkosi and Mr Menyuka were concerned. The MEC also indicated that if the Municipality were to seek a secondment from him, he would gladly oblige with secondments of properly qualified persons.

 

[36]         The Municipality and its council filed a preliminary answering affidavit wherein it, inter alia, stated that it would not be in the interests of justice if it were left without a municipal manager and chief financial officer. It also referred to there being a ‘hiatus’ in the Systems Act as it only deals with acting appointments where there is a vacancy that was to be filled urgently. It, however, does not deal with the situation which prevails in Nongoma at present, with the municipal manager and chief financial officer being suspended pending a disciplinary hearing. Unless and until they are found guilty of misconduct and then dismissed, there will be no vacancy and accordingly no post can be advertised. It was further stated that the MEC's power to second under section 54A(6) only applies to an advertised post and at present, there was none and it was unlikely to be for some time.

 

[37]         The Municipality stated that it tried to resolve the impasse by identifying other competent and suitably qualified internal officials, whose names would be submitted to the MEC with a request that they be seconded ‘even if in law he actually does not have the power to make the secondment’. The MEC was, however, not willing to accept the names of any officials to be submitted by the Municipality, which resulted in a stalemate.

 

[38]         In a judgment handed down on 28 August 2024, Marion AJ made extensive reference to the judgment of P Bezuidenhout J, and held that these findings were clear and unambiguous that the Municipality had acted incorrectly by unlawfully extending the appointments. Marion AJ further found the appointment of Mr Nkosi and Mr Menyuka under the guise of ‘fresh’ applications to be invalid, inter alia, because the further appointments of the two officials could result in irreparable harm, especially in light of the allegations of serious misconduct. The court also held that the respondents’ actions of reappointing the same officials without the MEC's approval and in light of P Bezuidenhout J’s judgment, were unlawful. The court granted an order in terms of which the appointments of Mr Nkosi and Mr Menyuka were suspended and that the Municipality and its council were interdicted from appointing the two officials into such acting positions in the future. The relief relating to the review was adjourned sine die and has not been proceeded with since then. Costs were reserved for decision by the court hearing the review application.

 

Present application

[39]         The present application is the third instalment in this saga. The application was issued on 6 September 2024. It appears from the MEC's founding affidavit that after the handing down of Marion AJ's judgment, the Municipality appointed the third and fourth respondents, Mr Zulu and Mr Dube, as acting municipal manager and acting chief financial officer, respectively, on 30 August 2024. The MEC was provided with the Municipal Council’s resolution, the third and fourth respondents’ curriculum vitae (the CVs) and their qualifications. The MEC subsequently received a departmental briefing report on their appointments, which, allegedly established that the two appointees were not possessed of the required skills, expertise, competencies, and qualifications as prescribed in the Minimum Competency Regulations. The appointments were, therefore, said to be null and void in terms of sections 54A(3) and 56(2) of the Systems Act. The briefing report is attached to the founding affidavit as annexure ‘TBD 6’.

 

[40]         The MEC stated that he engaged the Municipality on the appointments, but to no avail. The decision was made to approach the court on an urgent basis, in terms of section 54A(8) of the Systems Act. The MEC further stated that the Municipality has taken every step to avoid having a properly qualified seconded official from assisting with the financial circumstances in which the Municipality finds itself.

 

[41]         The initial objection against Mr Zulu was that he does not have a bachelor’s degree in public administration, management, or law. He apparently holds a postgraduate diploma in project management (NQF level 8), obtained from the Regent Business School in 2023, a national diploma in engineering (civil) from the Durban University of Technology obtained in 2005, and a certificate in municipal finance management programme (MFMP) obtained in 2016. Mr Zulu was apparently studying towards his MBA degree but there was no evidence that he had the minimum bachelor’s degree.

 

[42]         Mr Zulu allegedly did meet the criteria in respect of five years’ senior management experience. According to his CV, he served in the following positions:

(a)      Acting Director: Technical Services at the Ubuhlebezwe Local Municipality for three months from March 2024 to June 2024.

(b)      Acting Director: Technical Services at the Imbabazane Local Municipality for a period of two years and ten months from February 2013 to December 2015.

(c)      Acting Director: Technical/Municipal Manager at the Mpofana Municipality for one year from January 2019 to December 2019.

(d)      Acting Director: Technical/Municipal Manager at the uMkhanyakude District Municipality for two years and eleven months from January 2016 to December 2018.

(e)      Chief Executive Officer (CEO)/Managing Director at Mageba Consulting Engineers and Project Managers for three months.

 

[43]         In a supplementary founding affidavit by the MEC filed on 9 September 2024, it was stated that new information had been discovered regarding Mr Zulu’s working experience at the municipalities listed in his CV, after the relevant municipalities had been contacted. The information was contained in a supplementary briefing report, submitted to the MEC, and was attached to the supplementary founding affidavit as annexure ‘NGK 1’:

(a)         The Ubuhlebezwe Municipality confirmed that Mr Zulu acted as Director: Technical Services for one month only.

(b)         The Imbabazane Municipality had been disestablished, so his experience of two years and ten months could not be confirmed.

(c)         The Mpofana Municipality confirmed that Mr Zulu acted as Director: Technical Services for 12 months from December 2018 to December 2019. He, however, did not act as municipal manager as stated in his CV.

(d)         The uMkhanyakude District Municipality confirmed that Mr Zulu acted as General Manager: Technical Services from 4 April 2016 to 31 March 2017. He was not appointed as acting municipal manager as stated in his CV.

 

[44]         It was further stated that only 25 months of Mr Zulu’s experience in local government could be confirmed. Neither the experience at the former Imbabazane Municipality nor the private sector experience could be confirmed. It was alleged that his CV contained misrepresentations and that he therefore did not possess the necessary qualifications, skills, expertise, and competence to be appointed as acting municipal manager.

 

[45]         The supplementary founding affidavit also made mention of a report by Inkazimulo Consulting, who investigated irregular, fruitless, and wasteful expenditure at the Mpofana Municipality. The report found that there were irregularities warranting disciplinary proceedings against Mr Zulu in respect of non-compliance with supply chain management procedures, but he had resigned in the meantime.

 

[46]         The Chief Directorate: Municipal Finance commented in the first briefing report regarding an allegation that Mr Zulu was apparently owed an amount of R17 000 by the Municipality. He was, however, not listed as a creditor. Allegations further suggested that Mr Zulu’s company previously undertook work on infrastructure projects but payments made for the work did not align with actual deliverables on the ground, which allegedly contributed to the Municipality receiving a qualification from the Auditor General during that financial year.

 

[47]         As far as Mr Dube was concerned, the MEC stated that although he appeared to possess the requisite qualifications, he did not have the required experience of five years at middle management level. According to his CV, he served in the following positions:

(e)         CEO at Thorn Financial Group (Pty) Ltd (Thorn) for 19 years and 2 months from July 2014 to present.

(f)         During the same time, he was also the chief financial officer of Gearmax (Pty) Ltd (Gearmax) from April 2017 to November 2021.

(g)        Expenditure manager at Vega Financial Management Services from February 2015 to July 2019.

(h)        Senior accountant at Roth Equity from January 2013 to January 2016.

(i)         Accountant at the Mtubatuba Municipality for 17 months from September 2010 to April 2011.

 

[48]         According to the briefing report and the Minimum Competency Regulations, there are no prescriptions on whether experience can be in the private sector or whether it must be in local government. It was, however, stated that there is no evidence that Mr Dube’s experience is substantially similar to the local government sphere. The Municipality would need to evaluate past work experience, inter alia, by contacting past employers and obtaining copies of job descriptions. Bearing in mind the limited record of proceedings, there does not appear to be any indication that such an exercise was conducted. It was also noted that Mr Dube failed to attach to his CV copies of all his qualifications mentioned therein, making it difficult to conduct the assessment.

 

[49]         The Chief Directorate: Municipal Finance commented that although Mr Dube holds the title of CEO in a company he owns, it does not necessarily equate to the requisite experience to effectively lead the budget and treasury office. The experience as an accountant at the Mtubatuba Municipality was a junior position, which does not equip him with the strategic oversight or managerial skills necessary for the chief financial officer position, which requires comprehensive financial planning, budget management, and the ability to navigate the intricacies of municipal finance.

 

[50]         The MEC further stated that four qualified, experienced, and competent officials had been offered to the Municipality to choose from to be seconded on two separate occasions, but the Municipality did not respond. The MEC re-iterated that the Municipality is in a serious financial state and the appointment of unqualified persons without the requisite skills, experience, or competence will worsen the position of the Municipality. The MEC inter alia relied on a report drafted by Dr H Krishnan, the Chief Director: Municipal Finance, attached to the papers as annexure ‘TDB 13’, which deals with the Municipality’s cash flow projections and financial viability.

 

[51]         The speaker of the Municipal Council, Ms BH Sithole, attested to an interim answering affidavit. She stated that there are no ‘temporary vacancies’ as referred to in para 2.3 of the prayers in the notice of motion. The incumbent municipal manager is suspended pending the outcome of his disciplinary process. She stated further that the Municipal Council must appoint an acting municipal manager ‘under circumstances and for a period as prescribed’ but unfortunately there was a lacuna because no regulations prescribing the circumstances and period have been published. The power to appoint, which lies with the Municipal Council, was duly exercised because the suspension rendered it necessary. It was submitted that the power to appoint does not lie with the MEC, having regard to the applicable constitutional status of municipalities and the clear distinction made between the role of a municipal council and the oversight role of the MEC.

 

[52]         With regard to the factual issue, in particular Mr Zulu’s qualifications, it was stated that he has a postgraduate diploma in project management, which is allegedly equivalent to an honours degree as it is weighted at NQF level 8, which is a greater weight than a bachelor’s degree, which is weighted at NQF level 7. It is an equivalent qualification as contemplated by the Minimum Competency Regulations. Mr Zulu furthermore has almost completed his MBA. It was submitted that he was qualified and was accordingly lawfully appointed by the Municipal Council.

 

[53]         Ms Sithole also drew attention to the fact that Mr Zulu had previously been ‘seconded’ to various municipalities by the MEC’s department as a director on the strength of his qualifications and to positions which required a bachelor's degree or equivalent and it was accepted that his qualification was equivalent to a degree. It is not clear to me to which secondments reference is being made, as Mr Zulu’s CV did not refer to any secondments by the MEC.

 

[54]         As far as Mr Dube was concerned, Ms Sithole addressed his apparent lack of experience as alleged by the MEC. It was stated that the position he held as Manager: Expenditure, was not a junior position as he reported directly to the chief financial officer and it is therefore categorised as a middle management position. It, however, appears from his CV that he held this position at a private entity, Vega Financial Management Services, during 2015 to 2019, whilst simultaneously holding other positions. Ms Sithole also stated that Mr Dube held a position as Manager: Expenditure at the Municipality but this appears to be an error. She contended that having more than eight years’ experience as the chief financial officer of Gearmax made him suitable to be appointed as acting chief financial officer.

 

[55]         Ms Sithole contended that a municipal council is the only body empowered to appoint an acting municipal manager and acting chief financial officer. She stated that the MEC only has an oversight function to question the qualifications of persons and lacks the lawful right to interfere in the decision of the Municipality to appoint suitable persons of its choice, which includes suitable persons to act in the aforementioned posts where necessary.

 

[56]         As far as allegations of financial distress by the MEC were concerned, Ms Sithole stated that the MEC had other mechanisms available and could not rely on section 54A of the Systems Act to resolve the Municipality’s administrative shortcomings. She, however, denied that the Municipality was in financial distress and stated that the MEC has failed to provide any evidence of the Municipality’s financial position.

 

[57]         Mr Zulu filed a confirmatory affidavit. He confirmed that he possesses a postgraduate diploma in project management, weighted at NQF level 8, which is equivalent to an honours degree. He, therefore, more than meets the requirement of a bachelor's degree in management. He attached his statement of results in respect of his postgraduate diploma. It shows his results as obtained between July 2022 and January 2023. The NQF level was indicated as 8, but the total credits were only listed as 120 as opposed to the 360 credits referred to in Regulation 3 of the Minimum Competency Regulations. Mr Zulu also confirmed that he was enrolled for his master’s degree and was three study units away from completing it. He denied that he was not suitable for appointment.

 

[58]         In reaction to the MEC's supplementary founding affidavit containing statements regarding his employment history, Mr Zulu denied that he misrepresented the nature of his appointment at the uMkanyakude Municipality. He stated that although he was appointed as Director: Technical Services, he would act as municipal manager from time to time on an ad hoc basis at the behest of the incumbent municipal manager.

 

[59]         As far as the alleged financial irregularities at the Mpofana Municipality were concerned, Mr Zulu stated that it was the first time that he had been made aware of the report by Inkazimulo Consulting. He disagreed with the findings against him. He further stated that he had subsequently applied for and had been shortlisted by the Mpofana Municipality for the position of Technical Director, which is odd if the allegations were true that he presided over financial irregularities. He was invited to attend an interview on 4 April 2024. He does not say whether his application was successful or not.

 

[60]         Mr Dube likewise attested to a confirmatory affidavit. He stated that he had more than five years’ experience at middle management level, which included experience in the private sector. He contended that the experience required in terms of the Minimum Competency Regulations is not confined to experience in the public sector. Mr Dube further stated that he had not updated his CV but that he actually worked as group chief financial officer of Gearmax from 2017 up to 2021. He contended that on that experience alone, he meets the threshold of five years’ experience at middle management. He did not address the concerns raised by Dr Krishnan.

 

[61]         On 11 September 2024, the MEC filed another supplementary affidavit, again attested to by Ms Khanyile, the Acting Chief Director: Municipal Governance and Administration in the MEC’s department, which contained new information about Mr Zulu discovered since the signing of the founding affidavit. It was alleged that the new information would demonstrate that he was not qualified to be appointed as he had been, and if the Municipality had conducted a proper assessment and verification of his experience, it would not have appointed him.

 

[62]         Based on information received, it has come to light that Mr Zulu had apparently submitted an application for a permanent appointment to the Mpofana Municipality in 2019. It was accompanied by a SAPS clearance certificate and a letter dated 26 June 2019 from the Criminal Record and Crime Scene Management Office. The letter stated that his convictions for fraud dated 24 February 2010 were expunged in terms of section 271B of the Criminal Procedure Act 51 of 1977 (the CPA). It was signed by Brigadier NB Baloyi. During its vetting process, the Mpofana Municipality instructed its attorney to confirm with the SAPS whether it was indeed the author of the letter dated 26 June 2019, confirming the expungement. On 23 July 2019, a letter was received from Captain Paul Marais of the SAPS, who recorded that the aforementioned letter and clearance certificate were not authored by the SAPS. Captain Marais inter alia explained that the third respondent did not qualify for an expungement of his criminal record.[10]

 

[63]         Mr Zulu subsequently submitted another letter from the SAPS, this time dated 26 July 2019, to the Mpofana Municipality, which recorded that his criminal convictions were expunged. It was again accompanied by a clearance certificate dated 30 July 2019. The Mpofana Municipality’s attorney again wrote to the SAPS and asked for confirmation of the authenticity of the letter and clearance certificate. In a letter dated 5 November 2019, Captain Marais again refuted the authenticity of the letter and certificate submitted by the third respondent. The Mpofana Municipality subsequently terminated Mr Zulu’s acting appointment as Director: Technical Services, which led to litigation between the parties.

 

[64]         Ms Khanyile alleged that Mr Zulu had perpetrated a fraud on the Mpofana Municipality and that if the Municipality had conducted a proper assessment and evaluation of his application, it would have realised that he is not suitable to be appointed as acting municipal manager.

 

[65]         Needless to say, the Mr Zulu filed a further answering affidavit to deal with these latest allegations. He denied submitting fraudulent police clearance certificates. He stated that

‘like every citizen in this country, I attended to the Mpofana SAPS to apply for the expungement of my criminal record. I filled a form and my fingerprints were taken to accompany the form. I left everything in the capable hands of the police officials for onwards transmission to the relevant office.’

According to him, he attached the clearance certificate which he had received back from the SAPS to his application form. When there was a query regarding the clearance certificate, he returned to the police station to inquire about the issue. He was informed that there had been a mistake and the process was restarted for a fresh certificate. He received the new clearance certificate and again submitted it to the Mpofana Municipality, with the same result. Mr Zulu’s contract was terminated as mentioned above, and he was charged with fraud. He appeared in the Mooi River Magistrates’ Court. After making representations to the prosecutor, the charges were withdrawn. He attached the representations made to the prosecutor, wherein he stated inter alia that he ‘had a record in 2008’. It, however, appears from what has been mentioned above, that he was only convicted on 24 February 2010. He also stated that he desperately needed to seek employment ‘and having a criminal record is a huge obstacle in this regard’.

 

[66]         Mr Zulu stated that on 14 February 2024, he received a letter from the SAPS, confirming that his criminal record has been expunged. He had no idea why the SAPS twice issued an invalid clearance certificate. He also stated that the Municipality and its council had assessed his application based on the letter of 14 February 2024, which referred to his convictions on two counts of fraud dated 24 February 2010 being expunged. Mr Zulu, however, did not explain on what basis he applied for his record to be expunged in June 2019, when the 10 year period referred to in section 271B of the CPA clearly had not yet elapsed. I find it strange that a police official would accept and process such an application when it does not comply with the stipulated time period for such applications.

 

[67]         The MEC filed its replying affidavit attested to by Ms Khanyile. She highlighted that the Municipality’s answering affidavit failed to explain why the Municipal Council was entitled to make further appointments. This would ordinarily require an application to the MEC, demonstrating that special circumstances and good cause exist, which would justify an extension of such acting appointments.

 

[68]         They also failed to explain why they were entitled to appoint Mr Zulu and Mr Dube for a period of three months, despite having appointed Mr Nkosi and Mr Menyaka in the acting positions from 1 April 2024 up until 28 August 2024, when Marion AJ interdicted them from holding these positions. Ms Khanyile stated that as a result of the Municipality’s refusal to approach the MEC for an appointment in terms of sections 54A and 56 of the Systems Act, the Municipality has been without a lawfully appointed acting municipal manager and chief financial officer since 1 July 2024.

 

[69]         It was contended on behalf of the MEC that on the correct interpretation of section 54A, the MEC would be entitled to second someone to the position of municipal manager upon a request from a municipality. It was also contended that the MEC was legally permitted to second senior managers to a municipality in terms of section 6 of the Public Administration Management Act 11 of 2014,[11] provided that it was done in consultation with the relevant municipality and its council. At the hearing of the matter, the MEC’s counsel however placed on record that section 6 has not yet been put into operation. Ms Khanyile stated further that the only reason a secondment has not been affected is because the Municipality has refused to request or consult with the MEC, despite the MEC’s repeated attempts to engage the Municipality. The Municipality’s attitude and actions are in complete disregard of the effect on the stability of the Municipality, which in turn affects the people of Nongoma.

 

[70]         Ms Khanyile dealt with the position of Mr Dube and stated that the respondents have failed to place material information before the court relating to his employment before and after the institution of these proceedings. It was alleged that according to Mr Dube’s CV, he is currently the chief financial officer of Thorn. The Municipality has, however, previously published an intention to award a tender to Thorn as part of its panel of financial experts (this related to internal audit services), for a period of 36 months. The intention to award is attached to the papers as annexure ‘NGK 12’. Mr Dube is accordingly the chief financial officer of an entity that is providing services to the Municipality and he is therefore precluded from being appointed as a senior manager because it will, inter alia, create a serious conflict of interest, which disqualifies him. I pause to mention that Mr Pillemar SC, appearing on behalf of the respondents, submitted from the bar that the tender is no longer before the Municipal Council and that Mr Dube is no longer employed by the entity. However, looking at what is before me, this was clearly not the position when the Municipality appointed Mr Dube initially.

 

[71]         Ms Khanyile further stated that the respondents have failed to inform the MEC, as well as the court, that Mr Dube resigned on 6 September 2024 as chief financial officer, as is evident from his resignation letter, attached as annexure ‘NGK 13’. Despite this letter, the Municipality filed an answering affidavit on 9 September 2024, persisting with its decision to appoint Mr Dube, well knowing that he had resigned.

 

[72]         I pause again to mention that Mr Pillemar submitted from the bar that Mr Dube had subsequently chosen to withdraw his resignation.

 

[73]         Ms Khanyile further contended that Mr Dube has provided no evidence that he has the experience required for the position of chief financial officer in a municipality or, alternatively, has substantially similar experience required in the local government sphere. He furthermore had to demonstrate that he is competent in financial and supply chain management, which would, inter alia, involve the management of municipal assets and liabilities and the design of supply chain management policies and systems. It was contended that he had failed to demonstrate that he has the competency to carry out these functions.

 

[74]         As far as Mr Zulu’s further answering affidavit was concerned, in which the issue of the alleged fraudulent documents was addressed, Ms Khanyile stated that although he sought to explain away the alleged fraud relating to his previous conviction, he did not dispute that he had a previous conviction for fraud. He furthermore ought to have known that, at the time, his criminal record was only 9 years old and that he did not qualify for an expungement. It was contended that this on its own is sufficient to render him unsuitable to be accountable for the Municipality’s assets and finances.

 

[75]         This is then the background against which the issues are to be determined.

 

The approach to interpreting statutes

[76]         Much has been said over time about the way to go about interpreting statutes.[12] In a restatement of Endumeni by Unterhalter AJA in Capitec Bank Holdings, it was held that:[13]

‘Our analysis must commence with the provisions of the subscription agreement that have relevance for deciding whether Capitec Holdings' consent was indeed required. The much-cited passages from Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni) offer guidance as to how to approach the interpretation of the words used in a document. It is the language used, understood in the context in which it is used, and having regard to the purpose of the provision that constitutes the unitary exercise of interpretation. I would only add that the triad of text, context and purpose should not be used in a mechanical fashion. It is the relationship between the words used, the concepts expressed by those words and the place of the contested provision within the scheme of the agreement (or instrument) as a whole that constitute the enterprise by recourse to which a coherent and salient interpretation is determined. As Endumeni emphasised, citing well-known cases, “(t)he inevitable point of departure is the language of the provision itself”.’ (Footnotes omitted.)

 

[77]         More recently it was held in Minister of Police and others v Fidelity Security Services (Pty) Ltd and others that:[14]

‘The interpretation of the Act must be guided by the following principles:

(a)        Words in a statute must be given their ordinary grammatical meaning unless to do so would result in an absurdity.

(b)        This general principle is subject to three interrelated riders: a statute must be interpreted purposively; the relevant provision must be properly contextualised; and the statute must be construed consistently with the Constitution, meaning in such a way as to preserve its constitutional validity.

(c)        Various propositions flow from this general principle and its riders. Among others, in the case of ambiguity, a meaning that frustrates the apparent purpose of the statute or leads to results which are not business-like or sensible results should not be preferred where an interpretation which avoids these unfortunate consequences is reasonably possible. The qualification “reasonably possible” is a reminder that Judges must guard against the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used.

(d)        If reasonably possible, a statute should be interpreted so as to avoid a lacuna (gap) in the legislative scheme.’ (Footnote omitted.)

 

[78]         In addition to what was held regarding a lacuna above, it was stated in Shiva Uranium (Pty) Ltd (In Business Rescue) and another v Tayob and others that:[15]

‘If at all possible, a statute must be interpreted so as to avoid a lacuna, and if the legislative intent is “clear and indubitable” the court may expand the literal meaning of words so as to avoid the lacuna.’ (Footnotes omitted.)

 

Just and equitable relief

[79]         The general principles applicable to relief sought in terms of section 172(1)(b) of the Constitution have been dealt with in a number of cases. Both counsel referred me to several decisions in their heads of argument. In Electoral Commission v Mhlope and others[16] the Constitutional Court held that:

‘Section 172(1)(b) clothes our courts with remedial powers so extensive that they ought to be able to craft an appropriate or just remedy, even for exceptional, complex or apparently irresoluble situations.  And the operative words in this section are “any order that is just and equitable”. This means that whatever considerations of justice and equity point to as the appropriate solution to a particular problem, it may justifiably be used to remedy that problem. If justice and equity would best be served or advanced by that remedy, then it ought to prevail as a constitutionally sanctioned order contemplated in s 172(1)(b).’

 

[80]         In Economic Freedom Fighters and others v Speaker of the National Assembly and another[17] the court, with reference to Head of Department, Mpumalanga Department of Education and another v Hoërskool Ermelo and another[18] held that:

‘[210] However, this court's remedial power is not limited to declarations of invalidity. It is much wider. Without any restrictions or conditions, s 172(1)(b) empowers courts to make any order that is just and equitable. In Hoërskool Ermelo the court said about a just and equitable remedy:

“The power to make such an order derives from s 172(1)(b) of the Constitution. First, s 172(1)(a) requires a court, when deciding a constitutional matter within its power, to declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency. Section 172(1)(b) of the Constitution provides that when this court decides a constitutional matter within its power it may make any order that is just and equitable. The litmus test will be whether considerations of justice and equity in a particular case dictate that the order be made. In other words the order must be fair and just within the context of a particular dispute.”

[211] The power to grant a just and equitable order is so wide and flexible that it allows courts to formulate an order that does not follow prayers in the notice of motion or some other pleading. This power enables courts to address the real dispute between the parties by requiring them to take steps aimed at making their conduct to be consistent with the Constitution. In Hoërskool Ermelo Moseneke DCJ declared:

“A just and equitable order may be made even in instances where the outcome of a constitutional dispute does not hinge on constitutional invalidity of legislation or conduct. This ample and flexible remedial jurisdiction in constitutional disputes permits a court to forge an order that would place substance above mere form by identifying the actual underlying dispute between the parties and by requiring the parties to take steps directed at resolving the dispute in a manner consistent with constitutional requirements. In several cases this court has found it fair to fashion orders to facilitate a substantive resolution of the underlying dispute between the parties. Sometimes orders of this class have taken the form of structural interdicts or supervisory orders. This approach is valuable and advances constitutional justice, particularly by ensuring that the parties themselves become part of the solution.”’ (Footnotes omitted.)

 

[81]         I was also referred to Rail Commuters Action Group and others v Transnet Ltd t/a Metrorail and others[19] where the court held that:

‘A declaratory order is a flexible remedy which can assist in clarifying legal and constitutional obligations in a manner which promotes the protection and enforcement of our Constitution and its values. Declaratory orders, of course, may be accompanied by other forms of relief, such as mandatory or prohibitory orders, but they may also stand on their own. In considering whether it is desirable to order mandatory or prohibitory relief in addition to the declarator, a court will consider all the relevant circumstances.’

 

Submissions on behalf of applicant

[82]         It was submitted by Mr Dickson SC, appearing on behalf of the MEC, that the parties find themselves in a legal cul-de-sac. It was submitted that the Municipality does not have the power to make a further appointment beyond the six months and the MEC does not have the power to second someone without being requested to do so, leading to a standoff between the parties. It was also submitted that there is a further issue that needs to be addressed: this is the absence of a provision in section 56 of the Systems Act granting the MEC the power to second a chief financial officer. It was further submitted that despite section 54A(1)(b) referring to the appointment of an acting municipal manager under circumstances and ‘for a period as prescribed’, no such regulations have been published. One must therefore have regard to what is set out in the remainder of section 54A, and in particular section 54A(2A), in terms of which an acting municipal manager may not be appointed for more than three months, and thereafter as extended by the MEC. It was submitted that the acting appointments should be set aside on, inter alia, the basis that Mr Zulu’s and Mr Dube’s acting appointments follow upon a set of other acting appointments which have expired and cannot be extended to six months because the Municipality did not seek an extension from the MEC, and the relevant sections do not contemplate a second set of appointments, making the acting appointments illegal. I was referred to Notyawa v Makana Municipality and others[20] where it was held that:

‘[8] It is quite apparent that Parliament has entrusted the MEC to monitor compliance with the Systems Act…

[9] Section 54A forms part of the backdrop against which the delay, which was central to the High Court’s decision, must be assessed. The section prescribes short periods within which certain steps are to be taken in the process of filling in a vacancy for the post of a municipal manager. This is the position even in the case of a stop-gap. The section precludes the appointment of acting municipal managers for a period in excess of three months. And where an extension is granted by the MEC, it may not exceed a further three months. This indicates that the section envisages that the appointment of a permanent municipal manager must be done within six months.

[10] Where this is not possible, the section affords two options to municipalities. The first is to solicit a secondment of a suitably qualified official from the MEC. If the latter fails to do so within 60 days, the municipality concerned is allowed to approach the relevant Minister who is required to second a suitable official to the municipality without delay. Even where an appointment is made, the monitoring function by the MEC must be carried out within 14 days from the date on which a report is received. For its part, a municipality is obliged to submit the report within 14 days from the date of appointment.

[11] All these tight time frames are not a surprise. The entire scheme of section 54A is predicated on having suitably qualified persons appointed as municipal managers. And having those appointments made within a short span of time because municipal mangers are vital to the proper administrative functioning of municipalities.’

 

[83]         Counsel emphasised the importance of the reference by the Constitutional Court to the MEC being entrusted to monitor compliance with the Systems Act. It was also submitted that what is stated in paras 9 and 10 confirms what is stated in the Systems Act but unfortunately does not deal with what is before me now.

 

[84]         I was also referred to Member of the Executive Council for Local Government, Environmental Affairs and Development and Development Planning, Western Cape Province v Knysna Municipality and others and a related matter,[21] where the court dealt with sections 54A(2A) and 56(1)(c).[22] The court, relying, inter alia, on Notyawa, held that acting appointments made in terms of  section 56(1)(a)(ii) are limited to a single three-month period which may, by application in writing to the MEC and in special circumstances and on good cause shown, be extended for a further once-off period of three months’.[23] In this matter, the municipality had inter alia appointed the same acting chief financial officer for further three-month periods without having applied to the MEC for an extension.

 

[85]         It was further submitted that to make sense of section 54A(6), it has to be read with sub-section (4), which sets out the steps to be taken once a post becomes vacant, which includes advertising the post. Once this has been done, the MEC can second someone suitable, in the advertised post, pending appointment of a suitable candidate. It was submitted that one must read into the word ‘vacancy’, a vacancy resulting from a suspension. If not, it would lead to an absurdity, because the acting appointments cannot be longer than six months. Although the legislation envisaged the process not taking longer than six months, the present case shows that six months later, the disciplinary process has still not been finalised. It was suggested that the reference in the 2010 Regulations to a three-month period of suspension without an option of an extension, within which to finish the process in order to create a vacancy, and only thereafter being able to request a secondment could well be a hiatus ( a break in continuity).

 

[86]         It was also submitted that in terms of  section 41 of the Constitution, which deals with the principles of co-operative government and intergovernmental relations, the Municipality can ask for assistance, which the MEC is able to provide. It was submitted that as a last resort, the MEC could ask the court, as a just and equitable remedy, to give it the power to second a suitable person in the present circumstances. As far as a just and equitable remedy was concerned, I was also referred to the following passage in Central Energy Fund SOC Ltd and another v Venus Rays Trade (Pty) Ltd and others:[24]

‘[36] A court in review proceedings, whether under the principle of legality or the provisions of PAJA, has a wide discretion to craft an appropriate remedy based on what is just and equitable in the circumstances of the case. The remedy must be fair to all those affected by it, and yet effectively vindicate the rights violated. In terms of s 172(1)(b) of the Constitution a court is authorised to make any order that is just and equitable pursuant to a declaration of constitutional invalidity.

[37] It is settled law that s 172(1)(b) of the Constitution confers on the courts very wide powers to craft an appropriate or just remedy even in “exceptional, complex or apparently irresoluble situations”. The Constitutional Court has held that —

“(t)he power to grant a just and equitable order is so wide and flexible that it allows courts to formulate an order that does not follow prayers in the notice of motion . . . [and] enables [them] to address the real dispute between the parties . . .”.’

 

[87]         It was submitted with reference to regulation 20 of the 2014 Regulations that the Municipality might find the obligation on a seconded person to report monthly to the MEC offensive, especially in light of the history between the parties. The Municipality was described as stubborn and determined to make sure that it could appoint someone themselves.

 

[88]         As far as the factual issue is concerned, it was submitted that the defences raised by Mr Zulu and Mr Dube were unconvincing, as the reports compiled by the MEC’s officials clearly showed. Reference was made to Mr Zulu’s employment at the Mpofana Municipality, in particular the report setting out certain irregularities. Despite him stating that he was never provided with the report, it still remains on record and was not dealt with because he resigned. The issue regarding his fraud convictions was also raised and it was submitted that he was not a suitable person to be appointed. It was lastly submitted that his appointment falls to be set aside on the grounds of an ordinary review for want of compliance with section 54A(2).

 

[89]         With reference to Mr Dube, it was submitted that he only had experience in the private sector and that he was not a suitable person to be appointed and his appointment should therefore be set aside. It was, however, submitted that it would still not assist the Municipality, which requires a solution to the legal issues. It was submitted that the only solution was for the Municipality to request a secondment, after which the MEC would provide a fully qualified and suitable person with the required skills, expertise, and competence.

 

Submissions on behalf of respondents

[90]         Mr Pillemar placed on record that the disciplinary hearing of the incumbent municipal manager had been finalised a week before the hearing and that the verdict was being awaited. Such a verdict must be provided within 10 days.

 

[91]         It was submitted that a municipal council is the only authority who can appoint a municipal manager or an acting municipal manager. It was submitted that this was the case even if the appointment was done by way of a request for a secondment, which request is from a municipality for a specific suitable person. It was contended that a municipality must choose and provide a suitable person, and the MEC must second this person if legislation makes provision for a secondment.

 

[92]         It was further submitted with reference to section 54A, that if there is no advertised vacancy but a necessity for a municipal manager, a municipal council has the power to make an appointment more than once and there was nothing in the Systems Act that says it cannot be done. It was contended that sections 54A(1), (2), (2A) and (3) apply to all situations. From section 54A(4) onwards, the Systems Act deals with what happens when a post becomes vacant and what follows thereafter. Section 54A(6), in no uncertain terms, refers to a person being seconded to act in ‘the advertised position’, which is clearly a reference to the vacant position which is now being advertised. It was submitted that this section has no application to suspensions.

 

[93]         In retuning to section 54A(1)(b), in terms of which an acting municipal manager can be appointed ‘for a period as prescribed’, it was submitted that there was a lacuna as the period prescribed is not dealt with in any regulations. If, however, one reads section 54A(2A)(a), it is capable of being interpreted that an appointment should not be for more than three months but that there may be more than one appointment. An acting appointment is not allowed to run forever so there must be a fresh appointment every three months. With reference to section 54A(2A)(b), it was submitted that if a municipality wanted to keep the same person for longer than three months, it has to obtain the MEC’s permission ‘to extend the period of appointment contemplated in paragraph (a), for a further period that does not exceed three months’, rather than making another fresh appointment. It was submitted that if this interpretation was wrong, and it is found that a municipal council cannot appoint people more than once every three months and that it has no power to make more than one three-month appointment, it would lead to an impossible situation as a municipal manager is part of the municipal structure. It should also be borne in mind that in some instances disciplinary proceedings can take a long time to be finalised and may not be concluded in the three-month period. A municipality cannot apply for a secondment in the absence of a vacancy. As it would be impossible for a municipality to fulfil its mandate, an order in terms of section 172(1)(b) of the Constitution could provide recourse where the court could structure just and equitable relief. It was submitted that the reading into section 54A(2A) of the power to make more than one appointment would provide the mechanism to achieve a just outcome.

 

[94]         With reference to Notyawa, it was submitted that it dealt with a situation where there was a vacancy that had been advertised and that in the present matter, the power to second is not available because there is no advertised vacancy.

 

[95]         As far as the factual question was concerned, it was submitted that both respondents have sufficiently explained the issues raised. Mr Zulu explained the circumstances surrounding his criminal record. It was submitted that Mr Dube had the required qualifications and experience. It was contended that it was furthermore only acting appointments and that one could be more lenient in respect of the requirements.

 

[96]         In closing, it was submitted that the key question to be dealt with to enable the parties to have an answer going forward, was whether a municipality could choose the person it wanted seconded by the MEC. The MEC believes that he can impose a person on a municipality but it wants to choose someone who it will be happy with and whose personality fits in. I was briefly addressed on the issue of costs, it being submitted that it is a constitutional issue that has arisen, which requires an answer by the court: costs should therefore not follow the result.

 

The applicant’s reply

[97]         Mr Dickson, in reply, submitted that although there is not a de facto vacancy, there is no one doing the job, resulting in a vacancy. Reference was made to Notyawa and in particular to the reference to a ‘stop-gap’.[25] This could be when someone  is on suspension. As far as the submission made on behalf of the respondents that the Municipality can nominate the person it wished to be seconded, it was submitted that this is clearly not mentioned in the relevant section. It was submitted that the MEC has to power to second and it must be according to his discretion. It was lastly submitted that the Municipality has had enough chances and now faces serious problems with its financial affairs: it cannot be allowed to nominate another person.

 

Relief sought by the respective parties

[98]         As mentioned at the outset, I asked the parties to provide me with draft orders of the relief they would be seeking, especially in light of both parties urging me to craft a just and equitable remedy. I will quote their proposals in full, despite the length of the respondents’ proposed draft order.

 

[99]         The applicant proposed the following relief:

‘1.        That the Second Respondent’s decision taken on 30^th August 2024 to appoint:-

1.1       Third Respondent as the Acting Municipal Manager for a period of three months; and

1.2       Fourth Respondent as the Acting Chief Financial Officer for a period of three months;

be and are (sic) hereby set aside on review alternatively, are set aside as being contrary to the law and the principle of legality.

2.         That in terms of Section 172 (1)(b) of the Constitution and as an interim measure pending the final determination of the disciplinary enquiries of the Municipal Manager and Chief Financial Officer the Applicant is directed and authorised to second suitable persons at his discretion who have the skills, expertise, competencies, and qualifications as prescribed by the Local Government: Municipal Systems Act 32 of 2000 to act in the positions of:-

Municipal Manager; and

Chief Financial Officer

of the Nongoma Local Municipality in terms of Regulation 20 of the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers 17 January 2014.

3.         That the costs of this application, and the reserved costs of Case Numbers 11032/24P and 12291/2024 be paid by First and Second Respondents.’

 

[100]     The respondents proposed the following relief in a rather cumbersome and taxing-to-read draft order:

‘1.        It is declared that upon a proper interpretation of section 54A of the Local Government: Municipal Systems Act, Act 32 of 2000 (“the Act”):

1.1            Where no vacancy as contemplated by section 54A(4) of the Act exists but a necessity to appoint a person to act as municipal manager arises due to the incumbent municipal manager being unable to perform or prevented from performing the functions of municipal manager for a temporary period due to ill-health, temporary suspension or otherwise, the municipal council has the duty in terms of section 54A(1)(b), read with section 54A(2) and section 54A(2A)(a) of the Act, to appoint an acting municipal manager who meets the requirements of section 54A(2) for a period not exceeding three months and, if the necessity for an acting appointment extends beyond the periods provided for in section 54A(2A) the municipal council has the duty in terms of section 54A(1)(b) to make an acting appointment and must do so, again subject to the time limitations imposed by section 54A(2A)(a) namely that each such appointment may not be for a period that exceeds three months.

1.2            Where there is an unfilled advertised vacancy and an acting municipal manager appointed in terms of section 54A(1)(b) has completed the period allowed for such acting appointment in terms of section 54A(2A), the municipal council must exercise the duty imposed on it in section 54A(1)(b), read with section 54A(2) and section 54A(2A)(a) of the Act, to appoint an acting municipal manager by requesting the MEC for local government to second a person nominated by the municipal council to perform the functions and role of the municipal manager, until such time as the need for such acting appointment ends; provided such person is suitably qualified to the reasonable satisfaction of the MEC for local government to be seconded, alternatively if the municipal council elects not to nominate a person of its choosing, it must exercise the duty imposed on the council in section 54(1)(b) by requesting the MEC to second a suitable person selected by the MEC and agreed to by the municipal council and the person to be seconded.

2.               It is declared that upon a proper interpretation of section 56 of the Act:

2.1            Where no vacancy as contemplated by section 56(3) of the Act exists but a necessity to appoint a person to act as chief financial officer arises due to the incumbent chief financial officer being unable to perform or prevented from performing the functions of municipal manager (sic) for a temporary period due to ill-health, temporary suspension or otherwise, the municipal council has the duty in terms of section 56(1)(a)(ii), read with section 56(1)(b) and (c) of the Act, to appoint an acting chief financial officer who meets the requirements of section 56(1)(b) for a period not exceeding three months and, if the necessity for an acting appointment extends beyond the periods provided for in section 56(1)(c), the municipal council has the duty in terms of section 56(1)(a)(ii) to make an acting appointment and must do so, again subject to the time limitations imposed by section 56(1)(c) namely that each such appointment may not be for a period that exceeds three months.

3.               The decision taken by the Second Respondent on 30 August 2024 to appoint the Third Respondent as acting municipal manager and the Fourth Respondent as acting chief financial officer were (sic) not contrary to law and the principle of legality.

4.               The application is dismissed and there is no order as to costs.

5.               Alternatively to paragraphs 1 to 4 above, in the event of it being held that a municipal council lacks the power to make a further appointment of an acting municipal manager under section 54A(1)(b) of the Act once the time period imposed in section 54A(2A) has expired, then the following order is granted:

5.1            It is declared that the Second Respondent lacked the lawful power to make more than one appointment under section 54A(1)(b) and section 56(1)(ii) of the Local Government: Municipal Systems Act, Act 32 of 2000 (“the Act”) and in the result the decision of the Second Respondent on 30 August 2024 to appoint the Third and Fourth Respondents as acting municipal manager and acting chief financial officer respectively is declared to be unconstitutional and the decision is set aside in terms of section 172(1)(a) of the Constitution, 1996.

5.2            In terms of section 172(1)(b) of the Constitution, 1996 and until the promulgation of regulations as contemplated by section 54A(1)(b) of the Act prescribing the period of appointment of acting municipal managers in circumstances where there is a necessity for an acting appointment but no vacancy to be advertised, it is directed that:-

5.2.1       Second Respondent (“the municipal council”) must exercise the duty imposed on it in section 54A(1)(b), read with section 54A(2) and section 54A(2A)(a) of the Act, to appoint an acting municipal manager who meets the requirements of section 54A(2) to the reasonable satisfaction of the MEC for local government for a period not exceeding three months and, if the necessity for an acting appointment extends beyond the periods provided for in section 54A(2A), the municipal council has the duty in terms of section 54A(1)(b) to make another appointment subject again to the time limitations imposed by section 54A(2A)(a) namely that no such appointment may be for a period that exceeds three months.

Alternatively, to 5.2.1

5.2.2       the municipal council must exercise the duty imposed on it in s54A(1)(b), read with section 54A(2) and section 54A(2A)(a) of the Local Government: Municipal Systems Act, Act 32 of 2000 (“the Act”), to appoint an acting municipal manager by requesting the MEC for local government to second a person nominated by the municipal council to perform the functions and role of the municipal manager, until such time as the need for such acting appointment ends, provided such person is suitably qualified to the reasonable satisfaction of the MEC for local government to be seconded, alternatively if it elects not to nominate a person of its choosing, by requesting the MEC to appoint a suitable person selected by the MEC and agreed to by the municipal council.

5.2.3       The municipal council must exercise the duty imposed upon it in section 56(1)(a)(ii), read with section 56(1)(b) and (c) of the Local Government: Municipal Systems Act, Act 32 of 2000 (“the Act”), to appoint an acting chief financial officer who meets the requirements of section 56(1)(b) of the Act for a period not exceeding three months and, if the necessity for an acting appointment extends beyond the periods provided for in section 56(1)(c), the municipal council has the duty in terms of section 56(1)(a)(ii) to make an acting appointment and must do so, again subject to the time limitations imposed by section 56(1)(c) namely that each such appointment may not be for a period that exceeds three months.

5.3            There is no order as to costs.’

 

Discussion and analysis

The legality issue

[101]     The nature of the issues in this matter has necessitated a lot of consideration and a careful scrutiny of the Systems Act and the relevant regulations. Sections 54A(1)(b) and (2A), in my view, clearly deal with situations where an acting appointment is required, for example when a municipal manager is on suspension or perhaps ill for an extended period. The maximum period for an acting appointment is six months. If the suspension or illness turns into a de facto vacant position, and the six-month period within which to fill the vacancy is coming to an end, then a municipality may request the MEC for a secondment of a suitable person to act in the advertised position.

 

[102]     Notyawa held that the appointment of a permanent manager must be done within six months.[26] There are, however, two further important paragraphs in Notyawa that are relevant to the issue at hand. The Constitutional Court went on to state the following:

‘[52] However, the present matter is distinguishable from Gijima. It does not involve a serious breach of the Constitution. Nor is the illegality of the impugned decisions clearly established on the facts. On the contrary, it appears that these decisions were taken in compliance with section 54A of the Systems Act…

[53] Moreover, in the context of section 54A, the Municipality must have had no less than four acting municipal managers to date. This is because each acting appointment may not exceed six months. The Municipality has been without a permanent manager from 2015 and this must have impacted negatively on service delivery to its residents.’

It appears from the factual background that an advertisement inviting candidates to apply for appointment as municipal manager was published in November 2014. It furthermore appears that after the vacant post had been advertised, various acting municipal managers had been appointed for six-month intervals. The different appointments of six months at a time of different persons, after the vacancy had been advertised, were not considered to be an illegality by the Constitutional Court.

 

[103]     I have to agree with Mr Pillemar that section 54A(2A) is to be interpreted to mean that a person can be appointed for three months, and thereafter, if the municipal council wants to retain the same person for a further period of three months, the MEC must be requested to extend that person's appointment for a further three-month period. A specific person can therefore only act for six months, whereafter another person must be appointed. In my view, this can continue until the post in fact becomes vacant and the appointment of a permanent municipal manager commences by advertising the post. The acting appointment can then only endure for a period of six months. If the process is not completed within the six months, the MEC may be asked to second someone suitable to act in the advertised position. In the case of a suspension, the timelines are prescribed by regulation 6(6)(a) of the 2010 Regulations. The disciplinary hearing must commence within three months, failing which, the suspension will lapse. Any concerns about dragged-out and repetitive acting appointments in the case of a suspension are, in my view, addressed by this time limitation.

 

[104]     In Knysna, where, as mentioned above, the court was dealing with successive acting appointments in terms of section 56(1)(a)(ii), it found that acting appointments were limited to a single three month period, which could be extended for a further once off period of three months. The court also issued a declarator to this effect[27].I agree with this finding in so far it refers to the once off acting appointment of a total of six months in respect of a specific person. The court however only had to consider whether the Council’s decision to re-appoint the same acting chief financial officer contravened section 56(1)(c), which it clearly did. The decision unfortunately does not assist in answering the question as to what happens after the six months and whether further appointments can be made.

 

[105]     The respondents, in their proposed draft order at para 1.1, want to do away with the requirement in section 54A(2A)(b) in terms of which the MEC may, upon application, extend the acting appointment for a further period of three months, when there is no vacancy. The Municipality clearly wants far-reaching relief in order to minimise any possible input or influence from the MEC, despite the recognised duty of the MEC to monitor compliance with the Systems Act.

 

[106]     As far as a secondment in terms of section 54A(6) is concerned, it has become clear that this is in fact the main bone of contention between the parties. A plain reading of the section suggests that the secondment can only be made at the request of a municipality once the post has been advertised.^[28] The Municipality wants the section to be interpreted to mean that it can choose a suitable person, who the MEC must then second to act in the advertised position. The MEC, on the other hand, holds the view that it chooses a suitable person who it then seconds. With regard to this application, the MEC, however, wants to take it a step further by requesting an order in terms of which it is directed to second suitable persons to act pending the final determination of the disciplinary enquiries of the municipal manager and chief financial officer. I will return to this below.

 

[107]     On a simple reading of section 54A(6), one would have to insert the words ‘of the municipality’s choosing’ after the words ‘to second a suitable person’ to give effect to the meaning the Municipality wants to ascribe to the subsection. If the legislator wanted a municipality to choose the person to be seconded, it would surely have said so in no uncertain terms. The wording of the section simply does not lend itself to the interpretation proposed by the respondents. One simply has to look at regulation 20(4) of the 2014 Regulations, which obliges a person seconded in terms of section 54A(6) to report monthly to the MEC on a number of issues. In my view, the wording of these provisions is indicative of an official having been appointed by the MEC, an outsider, who is stepping in, with a number of issues on which he or she must report to the MEC on a monthly basis. I can hardly imagine a situation where someone chosen by a municipality, being someone who fits in and whose personality is suitable to the municipal council and who is perhaps aligned with it, will be willing to report to the MEC on a monthly basis on the issues specifically prescribed by regulation 20. To give effect to the respondents’ interpretation, these regulations would have to be disregarded. In my view, it is the MEC, who, as part of its oversight and monitoring function, selects the person it deems suitable to second to act in the advertised position. I furthermore cannot see how the MEC can be required to simply rubberstamp and second a person nominated by a municipality in light of these functions.

 

[108]     The respondents have proposed in para 1.2 of their draft order that the MEC is to be requested to second a person nominated by the municipal council ‘provided such a person is suitably qualified to the reasonable satisfaction of the MEC’. In the alternative, the MEC must, upon request, second a suitable person selected by the MEC ‘and agreed to by the municipal council and the person seconded’. Bearing in mind that the parties to this litany of litigation have been unable to co-operate with one another, I have no doubts that these suggestions have no prospects of resolving anything and will only lead to further litigation. The standoff between the Municipality and the MEC on the suitability of candidates because of ‘personalities’ and persons not fitting in is a clear indication that the co-operation is almost non-existent. The far-reaching effect of such an order on other municipalities and departments can furthermore not be ignored.

 

[109]     Not much has been said throughout about section 56 of the Systems Act, which deals with the appointment of managers who are directly accountable to the municipal manager, such as the chief financial officer. As mentioned above, it does not make provision for the secondment of a suitable person by the MEC. Regulation 20 of the 2014 Regulations, as mentioned above, only refers to the secondment of a person to act as municipal manager. It appears that the MEC has, prior to the first application being launched, seconded two officials to the Municipality, one being an acting municipal manager and the other being an acting chief financial officer. It is unclear in terms of what section the acting chief financial officer would have been seconded. The respondents, in para 2.1 of their draft order, proposed a declaratory order whereby a municipal council, if the acting appointment exceeds the initial period, has the duty to make an acting appointment not exceeding three months. The Municipality, therefore, once again wants to do away with what is clearly spelt out in section 56(1)(c), namely that the MEC may extend the period upon application by a municipality, on the basis that it is just and equitable.

 

[110]     In para 5 of their draft order, the respondents propose further relief in the alternative, containing variations of what has been proposed before, all with the central theme of deviating from what is, in my view, the clear wording of the relevant sections in order to limit the involvement, for want of a better word, of the MEC in the process of making acting appointments or secondments. The Municipality wants to make these decisions. I agree with the submissions by Mr Dickson that the Municipality has shown that it has been incapable of appointing suitable candidates, as the previous litigation demonstrates. The reports relied upon by the MEC speak for themselves as far as the financial position of the Municipality is concerned. Every appointment made thus far has been, on the face of it, problematic for the Municipality and clearly prejudicial to the people of Nongoma.

 

The factual issue

[111]     As far as the factual issue is concerned, neither Mr Zulu nor Mr Dube are, in my view, suitable persons to be appointed in their respective positions. There are clearly question marks about Mr Zulu’s past outings at the Mpofana Municipality. I agree with Mr Dickson that the report setting out his non-compliance with certain procedures while there is of significance. The fact that Mr Zulu claims not to know about the report nor having been provided with it at the time is, in my view, of little significance. He left before it became necessary to take action against him. And then there is the issue of the fraud conviction and the attempt to have his criminal record expunged. It is so that by now the fraud conviction has been expunged, but it has not really gone away. It is of grave concern to me that the Municipal Council apparently had no issue with this fraud conviction. In light of my findings above, I don’t deem it necessary to deal with the issue of Mr Zulu’s lack of qualifications.

 

[112]     Mr Dube clearly lacks experience in the local government finance sector. In my view, having experience in the private sector does not equate to having experience to lead the budget and treasury office of a municipality, as pointed out by Dr Krishnan in his report. Mr Dube has failed to address these concerns. There is, however, also the issue of his employer, Thorn, having been awarded a tender to provide internal audit services to the Municipality. The fact that he has resigned from his position at Thorn and that the tender is no longer before the Municipal Council, means nothing to me. He was the chief financial officer of Thorn at the time he was applying to be appointed in the acting position. He was therefore in Thorn’s employment as the chief financial officer when the tender was awarded, and then, a few months later, he is appointed as the acting chief financial officer of the Municipality, with his erstwhile employer providing internal auditing services. In my view, this is a clear indication that Mr Dube is not a suitable person to be appointed. I had hope when I read his resignation letter, thinking that it was an indication of integrity, but it was short lived, as he then ‘chose’ to or had been convinced to withdraw his resignation.

 

[113]     As mentioned above, there was in essence no record of the Municipal Council’s decision, only the actual resolution of the decision. There is no indication of what they took into account, apart from the CVs supplied to them, or what enquiries were made to verify experience and qualifications.

 

Conclusion

[114]     As far as the factual issue is concerned, I have no hesitation in coming to the conclusion that Mr Zulu and Mr Dube were not suitable in that they did not have the prescribed skills, expertise, or competencies to be appointed.

 

[115]     As is apparent from above, I was requested to nevertheless clarify the position on a number of aspects due to the events of the last few months.

 

[116]     In summary, I am of the view that acting appointments made in terms of section 54A(1)(b), read with section 54A(2), and section 56(1)(a)(ii) read with section 56(1)(b), in circumstances where an incumbent official is temporarily unable to perform his or her duties due to ill-health, suspension, or otherwise endure in terms of sections 54A(2A)(a) and 56(1)(c) for a period of three months. If a municipal council wants to extend the appointment of that same person who has been acting for a further period of three months, it may, in special circumstances and on good cause shown, apply to the MEC in writing to extend the period of appointment of that person for a further period that does not exceed three months. A specific person will therefore be able to act for a total period of six months, whereafter a different person will have to be appointed, if needed. In my view, this process can continue for as long as the incumbent official remains unable to perform his or her duties.

 

[117]     The 2010 Regulations set out the period within which the disciplinary process must begin, being three months, in the event of an official being on suspension. Once the position becomes de facto vacant, the prescribed short periods referred to in Notyawa[29] become applicable and the process must be finalised within six months. If this time frame is not possible, I am of the view that in terms of section 54A(6) the municipal council may request the MEC to second a suitable person, at the MEC’s discretion, to act as municipal manager in the advertised position until such time as a suitable candidate has been appointed. If the municipal council does not avail themselves to the option in section 54A(6) after six months, it has the practical effect of not having a municipal manager at all, which would clearly be extremely detrimental to the administration of a municipality, not to mention the community it serves.

 

[118]     I am of the view that a municipal manager is the only position in respect of which the MEC can make a secondment, as the option is not available in respect of acting appointments made in terms of section 56.

 

[119]     I have carefully considered the draft order submitted by the respondents. I am of the view that none of the orders proposed in paras 1, 2, 5.1, and 5.2 would be just and equitable to grant, as it represents a clear departure, in my view, from what is clearly set out in the relevant sections, which is not justifiable in light of what I have stated above.

 

[120]     The MEC’s draft order likewise contains a proposed order which entails a departure from what is contained in sections 54A and 56, as it wants to be permitted, pending the final determination of the disciplinary enquiries, to second an acting municipal manager, despite not being requested to do so by the Municipality, and an acting chief financial officer, despite section 56 containing no such provision. At the hearing, we were informed that the municipal manager’s hearing had been concluded and the verdict was awaited. Bearing in mind the specific circumstances of this case, as well as my wide discretion when crafting an appropriate or just order, I intend making an order with slightly different terms.

 

Costs

[121]     As far as costs are concerned, I am in agreement with the submission made by Mr Pillemar that due to the nature of the issues involved, each party should pay its own costs. The applicant included a prayer in its draft order to the effect that the reserved costs in the two earlier applications be incorporated in the cost order. Mr Dickson however made no submissions on the question of costs at the hearing and this issue was not canvassed in argument before me. The respondents’ attitude regarding the inclusion of these costs is therefore unknown.  Should the parties agree on these costs, they can approach me in chambers with a draft order to deal with the costs to finalise the two earlier applications.

 

Order

[122]     I accordingly grant the following order:

1.       The second respondent’s decision to appoint:

(a)      the third respondent as acting municipal manager for a period of three months; and

(b)      the fourth respondent as acting chief financial officer for a period of three months;

be and is hereby reviewed and set aside.

2.       In terms of section 172(1)(b) of the Constitution, and as an interim measure only in the event of the disciplinary enquiry in respect of the incumbent municipal manager not having been finalised, the applicant is directed and authorised to second a suitable person at his discretion, who has the skills, expertise, competencies, and qualifications as prescribed by the Local Government: Municipal Systems Act 32 of 2000 to act in the position of municipal manager of the Nongoma Municipality in terms of regulation 20 of the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers of 17 January 2014.

3.       It is directed that each party shall pay its own costs.

 

 

          E BEZUIDENHOUT

 

 

 Date of hearing:                               19 September 2024

Date of judgement:                           21 November 2024

 

APPEARANCES:

On behalf of the applicant:	Adv A J Dickson SC
Instructed by:	Garlicke & Bousfield inc.
	7 Torsvale Crescent
	La Lucia Ridge Office Estate
	Umhlanga, 4320
	Ref: P Magwaza
	Tel: 031-570 5572
	Email: phila.magwaza@gb.co.za
	c/o Stowell & Co
	195 Pietermaritz Street
	Pietermaritzburg
	Ref : S Myhill
	Tel no 033 835 0500
On behalf of the respondents:	Adv M Pillemar SC
	Adv T Palmer
Instructed by:	Mhlanga Incorporate
	Unit 2, First Floor
	21 Richefond Circle
	Ridgeside Office Park
	Umhlanga Park
	Tel: 031 305 7537
	Ref: Mr Mhlanga/nn/ Cvl: N 022/24
	c/o Sipho Ngubane Attorneys
	293 Burger Street
	Pietermaritzburg
	Tel 033 345 0371
	Email : siphongubaneattorneys@gmail.com

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