IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: UM53/2023
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO

In the matter between:-

THABO APPOLUS	1st Applicant	
		
CLLR LERATO SETHLAKE	2nd Applicant	
		
CLLR LEBOGANG JACOBS	3rd Applicant	
		
CLLR VUYISWA MORAKILE	4th Applicant	
		
and		
		
NALEDI LOCAL MUNICIPALITY	 1st Respondent	
		
NALEDI LOCAL MUNICIPAL COUNCIL	2nd Respondent	
		
NELSON MONGALE N.O
(former Acting Municipal Manager)	3rd Respondent	
		
CLLR PGC GULANE N.O
(Speaker of the Council)	4th Respondent	
		
CLLR J GROEP N.O
(Mayor)	5th Respondent	
		
MR MODISENYANE SEGAPO N.O
(Newly appointed Municipal Manager)	6th Respondent	
		
THE MEC FOR COOPERATIVE GOVERNANCE HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS NORTH WEST PROVINCE	7th Respondent	
		
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION (SALAGA)	8th Respondent	
		
PROVINCIAL TREASURY	9th Respondent	

JUDGMENT

FMM REID, J:
Introduction:

[1]	This application is brought on an urgent basis and essentially seeks the setting aside of the appointment of the 6th Respondent (Segapo) as the Municipal Manager, with ancillary relief that the meeting on 10 March 2023 in which such decision was taken, be declared to be unlawful and invalid and set aside as such.

[2]	The following relief is sought as set out in the notice of motion:

2.1.	Dispensing with the Rules relating to forms, services and time periods as prescribed by the Uniform Rules of this court and directing that the matter be enrolled and heard as an urgent application in terms of Rule 6(12).

2.2.	Declaring the Council meeting held by the second Respondent on the 10th March 2023 to be unlawful and invalid.

2.2.1.	Setting aside the meeting.

2.3.	Declaring that all resolutions taken at the Council meeting held on the 10th March 2023 to be unlawful and invalid.

2.3.1.	Setting aside all resolutions taken thereat.

2.4.	The first and second respondent be ordered to re-advertise the position of the Municipal Manager and commence the recruitment process de novo.

2.5.	That the Municipality’s funds must not be used to defend these proceedings.

2.6.	Any respondents opposing the application be ordered to pay the costs of the application on an attorney and own client scale.

[3]	The 1st, 2nd, 4th, 5th and 6th respondents oppose the relief sought.

Material background facts

[4]	During October 2022 a vacancy of the Municipal Manager was declared by the municipal council which triggered the commencement of a recruitment process.  During September 2022 an advertisement for the vacancy was issued in accordance with the Resolution of Council.

[5]	Amongst others, the 6th Respondent (Segapo) and the 1st Applicant were candidates competing for the position.

[6]	This application was initially heard by this court on 24 March 2023. At that stage, the appointment of Segapo that was sought to be set aside, was submitted to the MEC for Cooperative Governance Human Settlement and Traditional Affairs (MEC) or Minister Cooperative Governance Human Settlement and Traditional Affairs to be considered.  At the time that the application was heard on 24 March 2023, the MEC has not revealed its findings on the appointment of Segapo as Municipal Manager.  As such the urgent application on 24 March 2023 was found to be premature and it was struck from the roll for lack of urgency.  

[7]	The report from the MEC has now been received and the MEC does not support the appointment of Segapo as Municipal Manager.  The report of the MEC is dated 26 April 2023 and titled “Report on the process of appointing the municipal manager at Naledi Local Municipality”.

[8]	The finding of the MEC is that the appointment of Segapo as Municipal Manager is not supported on the basis of the following:

8.1.	The MEC found procedural and substantive requirements in relation to the appointment of municipal senior managers, submitted as per Regulation 17(4) not to have been complied with.

8.2.	Amongst others, the following issues of non-compliance was highlighted in the MEC’s report:

8.2.1.	Interviews were conducted 44 days after the screening process, which is 23 days more than the period that is allowed in terms of Regulation 15(1).  Regulation 15(1) that deals with the appointment and conditions of employment of Senior Managers was not complied with.

8.2.2.	The screening report attached to the submission to the MEC was incomplete and there is no letter from the National Department of Cooperative Governance, Human Settlement and Traditional Affairs or evidence from the municipality that the request for security screening and vetting was sent to the National Department of Cooperative Governance, Human Settlement and Traditional Affairs.

8.2.3.	The MIE screening result is dated 1 July 2021 which is prior to the vacancy date of 31 October 2022 and as such irregular.

8.2.4.	The Minutes of the shortlisting process is non- compliant with the requirements in that the minutes attached to the report sent to the MEC did not mention the names of all the shortlisted candidates.  The minutes only referred to the re-advertisement of the post.

8.2.5.	The Minutes of the Interview process is non-compliant in that it does not mention the top three candidates and those recommended to undergo competency assessments.

8.2.6.	There was no written confirmation attached by the successful candidate that the does not hold any political office.

8.2.7.	The term of the contract as reflected on the letter of appointment is non-compliant as it exceeds the term of the Council by 4 months.

8.2.8.	The MEC found that the appointment of Segapo is contrary to the provisions of section 54A(3)(b) of the Local Government: Municipal Systems Act 2000

8.2.9.	The MEC concluded that the appointment of Segapo is not supported as Municipal Manager.  

[9]	Correspondence followed between the former acting Municipal Manager, the Mayor, the MMC of Finance and Corporate Services and the Whip of Council in which the abovementioned irregularities were highlighted.  

[10]	No steps were taken to remove Segapo as Municipal Manager, despite his appointment being in conflict with the regulations as highlighted in the report of the MEC.

Applicable legislation
[11]	In the matter of Malema and Another v Dr Ruth Segomotsi Mompati District Municipality and Others (UM68/2021) [2021] ZANWHC 59 (20 May 2021) which is a matter from this Division, this Court per Makoti AJ, held as follows in relation to the compliance with all the legislative requirements in considering appointment as an acting municipal manager:

[16]      When making submissions in Court, counsel for the Respondents conceded that the said Gaanakgomo does not meet the basic requirements for appointment as acting municipal manager. He, however, sought to persuade me to find that the decision to appoint Gaanakgomo as acting municipal manager should be accepted in terms of the authority in Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others 2010 (1) SA 333 (SCA) (3 September 2009) to be of legal force and effect in that it has not been set aside by a Court having jurisdiction. I do not understand this authority to be suggesting that compliance with legal prescripts that have been clearly spelt out in legislation should be ignored. Also, it is important to always keep in mind that this provision was enacted to prevent wrongful appointments of persons as municipal managers. Mawonga and Another v Walter Sisulu Local Municipality and Others 2021 (1) SA 377 (SCA). To embrace the appointment which is in breach of the legislative prescripts would be tantamount to promoting an illegality. I cannot do that as the main function of the Court is to uphold the law, and to do so without favour, fear or prejudice.”
(own emphasis)

	and 

“[19]      This Country’s higher Courts have been at the forefront of cautioning and admonition functionaries in the public service to act only within the ambit of powers that have been reposed unto them and to uphold the rule of law. The concept of the rule of law was again discussed by the Constitutional Court in Pharmaceutical Manufacturers of SA; In re: Ex Parte application of Pres of RSA 2000 (3) BCLR 241 (CC) at para [40] as follows:
 
“The rule of law is specifically declared to be one of the foundational values of the constitutional order, fundamental rights are identified and entrenched, and provision is made for the control of public power including judicial review of all legislation and conduct inconsistent with the Constitution.”
 
[20]      There can be no debate in my view that the Respondents were equally enjoined to follow legislative and policy dictates when taking and implementing the impugned decisions. The Courts have made it clear in many judgments through the past number of years that nobody is permitted to exercise power and authority over others, which was not conferred upon him or her in terms of the law. Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247 (CC) Thus, all conduct must be viewed and assessed through the prism that is the rule of law. State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited 2018 (2) BCLR 240 (CC).”

[12]	The Constitutional Court held in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC) that:

“[56]	These provisions imply that a local government may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition – it is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful. The rule of law – to the extent at least that it expresses this principle of legality – is generally understood to be a fundamental principle of constitutional law. This has been recognised in other jurisdictions. In The Matter of a Reference by the Government in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada the Supreme Court of Canada held that:

“Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p.455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source.”
(own emphasis; footnotes omitted) 

[13]	In application of the facts to the law, the appointment of Segapo has to be set aside as it was not done in terms of the legislation and without the MEC’s approval.

[14]	In as far as the setting aside of the meeting dated 10 March 2023 and all resolutions taken in that meeting, this court cannot determine whether the meeting was correctly constituted, conducted and mandated.  The applicants did not make out a substantive case to grant the relief to have the meeting and the resolutions (save for the appointment of the Municipal Manager) set aside.  This is the position since there are several factual disputes relating to mandates, proxy’s and other issues which this court is not going to entertain in this urgent pplication.

[15]	The applicant has, aside from setting aside the appointment of Segapo, not made out a case that the remainder of the resolutions taken at the meeting be reviewed and set aside.  The relief sought in setting aside the other resolutions can thus not be granted.

Costs
[16]	The applicants ask that the cost of the defence of this application should not be paid by municipal funds.

[17]	However, the respondents are all cited in their official capacities (nomino officio).  

[18]	A cost order that the respondents should pay the cost personally would accordingly be unfair.

[19]	The normal principle is that the successful party is entitled to its costs.  I find no reason why the normal principle should not find application.

Order:
[20]	In the premises I make the following order:

i)	The court dispenses with the Rules relating to forms, services and time periods as prescribed by the Uniform Rules of this court and directs that the matter be enrolled and heard as an urgent application in terms of Rule 6(12).

ii)	The appointment of the sixth respondent Mr Modisenyane Segapo as Municipal Manager from 10 March 2023 is set aside as invalid and unlawful.

iii)	The first and second respondents are ordered to re-advertise the position of the Municipal Manager and commence the recruitment process de novo.

iv)	The respondents which opposed the application are ordered to pay the costs of the applicant individually and severally, the one paying the other to be absolved, on a scale as between party and party.

v)	The costs are to include the cost of two (2) counsel where so instructed.

FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG

DATE OF HEARING:		27 JULY 2023

DATE OF JUDGMENT:	19 SEPTEMBER 2023

APPEARANCES:
FOR THE 1ST TO 4TH APPLICANTS:	ADV CZ MUZA

INSTRUCTED BY:		MABAPA ATTORNEYS INC							C/O TMK ATTORNEYS INC
11 SHIPPARD STREET
MAHIKENG
mabapaattorneys@gmail.com
tlotlo@tmkattorneys.co.za
084 848 1229
064 655 0748 

FOR 1st, 2nd, 4th, 5th, 6th RESPONDENTS:	
ADV JH MOLLENTZE

INSTRUCTED BY:		DU PLESSIS VIVIERS INC
C/O SMIT NEETHLING
WARREN STREET MAHIKENG
REF: LK RENOSTER

FOR 3RD RESPONDENT:	ADV M MPYA
					
INSTRUCTED BY:		YENA ATTORNEYS
					vena@yenaatorneysinc.com

FOR 7TH RESPONDENT:	NO APPEARANCE

FOR 8TH RESPONDENT:	NO APPEARANCE

FOR 9TH RESPONDENT:	NO APPEARANCE