Notyawa v Makana Municipality   

Municipal manager appointments examined and found that leave to appeal had to be refused because there were no prospects of success and the discretion had been properly exercised by the high  court.

“As was noted in Affordable Medicines Trust, what was the ultra vires ground of review under the common law is now a breach of the legality principle under the Constitution. The Constitution demands that all government decisions must comply with it, including the principle of legality which forms part of the rule of law, and which is one of our constitutional founding values. Consequently, the essence of Mr Notyawa’s assertion was that his was a legality review. However, this by no means suggests that the application of PAJA to a particular review depends on the applicant’s characterisation or a reference to it in the papers, as Mr Notyawa has asserted. PAJA’s application depends on the nature of the impugned decision. If it is administrative, PAJA applies. But if it is executive action PAJA does not apply. In those circumstances the matter becomes a legality review.

As the parties diverge on the characterisation of the impugned decisions here, ordinarily the determination of this issue would have been necessary. However in the present circumstances that determination has no bearing on the outcome. This is because the High Court expressly recorded that it would have reached the same conclusion even if the application was a legality review. As a result the matter would be approached on the footing that Mr Notyawa instituted a legality review. What needs to be determined is whether it is in the interests of justice to grant leave and this question depends on whether the High Court had exercised the discretion improperly.” [paras 38 – 39]

Essence

Municipal manager appointments examined by Constitutional Court and leave refused because high court exercised discretion properly.

Decision

(CCT115/18) [2019] ZACC 43 (21 November 2019)

On appeal from the High Court of South Africa, Eastern Cape Division:

            The application for leave to appeal is dismissed.

Judges

Coram: Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J Mathopo AJ, Theron J and Victor AJ

Judgments:

  • Jafta J (majority): [1] to [56] – see below
  • Froneman J (concurring): [57] to [65] – to follow

Heard on: 3 September 2019

Decided on: 21 November 2019

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at  

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2019) 

Van Niekerk and Smit (Managing editors) et al [email protected] 4ed 612 pages (LexisNexis 2018) at 

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Reasons

Interference with discretion on appeal

“Our law vests in the court of first instance the discretion to condone a delay by an applicant in instituting review proceedings. The exercise of this discretion may not be interfered with on appeal on the basis that the decision was incorrect. Whether the appeal court would have exercised that discretion differently is irrelevant. The intervention of the appeal court may be justified only on narrow specified grounds.

The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law. If none of these two grounds is established, it cannot be said that the exercise of discretion was not judicial. In those circumstances the claim for interference on appeal must fail. [paras 40 – 41]

Court summary

‘Local Government: Municipal Systems Act 32 of 2000 — unreasonable delay — interests of justice — Promotion of Administrative Justice Act 3 of 2000 — legality review’

MEDIA SUMMARY – 21 November 2019
______________________________

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

‘On Thursday, 21 November 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the High Court of South Africa, Eastern Cape Division, Grahamstown (High Court). The question to be decided in this matter was whether in refusing to overlook the unreasonable delay on the part of the applicant to institute review proceedings, the High Court had failed to properly exercise its discretion.

The applicant, Mr Mbulelo Paul Gladstone Notyawa (Mr Notyawa), applied for the post of municipal manager of the first respondent, Makana Municipality. Six candidates including Mr Notyawa were shortlisted. These candidates were interviewed by a panel established by the Municipality. They were also required to take a competency test. In March 2015, the municipal council of Makana Municipality resolved to appoint Mr Notyawa as its municipal manager. As required by section 54A of the Local Government Municipal Systems Act (Systems Act), a report on this appointment was submitted to the MEC for Co-operative Governance and Traditional Affairs, Eastern Cape (second respondent). The MEC recorded that he was not satisfied that the appointment complied with section 54 of the Systems Act as Mr Notyawa, in the MEC’s opinion, did not meet the minimum requirements under the Systems Act. The Municipality accepted the MEC’s suggestion that the post be re-advertised and did not confirm Mr Notyawa’s appointment. As a result of these events litigation ensued.

During July 2015, Mr Notyawa launched an application in the High Court in which he sought to have the decisions of the MEC and the Municipality pertaining to the failure to appoint him as municipal manager reviewed and set aside. This application was opposed by the Municipality and the MEC who filed opposing papers in September 2015. Mr Notyawa took no steps to ripen the matter for hearing. The Municipality and the MEC set the matter down for hearing on 12 February 2016, as they had lodged counter applications for an order declaring Mr Notyawa’s appointment to be null and void. On that date Mr Notyawa requested a postponement. The High Court refused to postpone the matter and Mr Notyawa’s legal team withdrew his review application. The municipality subsequently re-advertised the municipal manager post. Mr Notyawa responded by launching an application to restrain the Municipality from filling the post. Mr Notyawa however did not pursue this application and the matter was removed from the roll.

Soon after this Mr Notyawa instituted another application in which he sought rescission of the Municipality’s decision to re-advertise the post, its decision to reverse his appointment and a declarator that he was lawfully appointed as municipal manager of the Municipality.

The High Court took the view that the impugned decisions constituted administrative actions to which the Promotion of Administrative Justice Act (PAJA) applied and that the delay in bringing the application had to be assessed in terms of PAJA. The High Court pointed out that section 9 of PAJA required a substantive application for condonation and that Mr Notyawa had failed to make that application. The High Court found that even if the matter were approached on the charitable footing that a substantive application was made on the papers, the explanation furnished for the delay was unsatisfactory. In the circumstances, the High Court concluded that the delay was unreasonable. The High Court further concluded that the matter had become moot and that the prospects of success on the merits were poor. The High Court exercised its discretion against condonation. It pointed out that even if the matter were to be approached on the assumption that it was a legality review, it would have come to the same conclusion.

The High Court dismissed the application with costs and refused to grant Mr Notyawa leave to appeal. His petition to the Supreme Court of Appeal was also dismissed for lack of prospects of success. He then applied for leave to appeal to the Constitutional Court.

In a unanimous judgment penned by Jafta J the Constitutional Court held that what needed to be determined was whether it was in the interests of justice to grant leave and this question depended on whether the High Court had exercised its discretion improperly. The Court held that our law vests in the court of first instance the discretion to condone a delay by an applicant in instituting review proceedings. It further held that the intervention of the appeal court may be justified only on narrow specified grounds. The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially.

This Court found that all the relevant facts were correctly taken into account by the High Court in determining whether the delay was unreasonable. This Court further held that the High Court followed a two-stage approach in conducting the inquiry. First, it determined whether the delay was unreasonable. Second, once it found that the delay was unreasonable, the High Court considered whether the delay could be condoned. This Court held that the High Court applied the right principles to the correct facts.

A separate concurrence penned by Froneman J agreed that the application for leave to appeal should be dismissed, but for reasons that precede the delay issue. By the time the review was eventually heard in the High Court, the matter had become moot such that any determination on the merits would have no practical effect for either the parties or others. The applicant’s reliance on the possibility of consequential remedy, in the form of a future claim for damages, could not be raised for the first time before the Constitutional Court in an attempt to keep the dispute live. Froneman J concluded that, for these reasons alone, it was not in the interests of justice to grant leave to appeal and there was accordingly no need to entertain questions relating to the High Court’s treatment of the delay enquiry.

In the result, the application for leave to appeal was dismissed.”

MEDIA SUMMARY – 3 September 2019 
_____________________________________________________________________

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“On Tuesday, 3 September 2019 at 10h00, the Constitutional Court will hear an application for leave to appeal against a judgment of the High Court of South Africa, Eastern Cape Division, Grahamstown (High Court).

In the High Court the applicant, Mr Notyawa, sought to review and set aside certain decisions of the Makanda Municipality (Municipality) and the MEC for Co-operative Governance and Traditional Affairs: Eastern Cape relating to the rescission of his appointment as Municipal Manager.

The High Court found that when the MEC indicated that he was not satisfied with the appointment of the applicant and instructed the Council to re-advertise the post, he was exercising his powers in terms of section 54A(8) of the Local Government: Municipal Systems Act 32 of 2000 (Systems Act). This, according to the High Court, was an exercise of public power. The High Court further found that when the Municipality acceded to the instruction of the MEC and rescinded the appointment and thereafter re-advertised the post, it too was doing so within the framework of the Systems Act. According to the High Court, these decisions constituted administrative action as envisaged in the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and, consequently, the applicant could have them reviewed only ns in terms of PAJA. The High Court also found that the delay in bringing the application was unreasonable and was not fully explained and, therefore, the review application could not be entertained. In the circumstances, the High Court dismissed the application with costs.

The applicant then filed an application for leave to appeal at the High Court which was refused. Following this, the applicant’s petition to the Supreme Court of Appeal was also dismissed.

In this Court, the applicant submits that the Municipality and MEC are duty-bound to review their own previous decisions and should it be determined that those decisions are unlawful, they should be set aside. The applicant further submits that this matter should be reviewed under the principle of legality and that the relevant decisions did not constitute administrative action. The applicant submits that the impugned decisions related to executive oversight functions of the MEC. In the alternative, the applicant submits that the decisions rescinding his appointment were a termination of his employment and not administrative action in terms of PAJA. The applicant further submits that the assertion that he lacked relevant managerial experience is not supportable on the basis relied upon by the Municipality and the MEC. On the issue of mootness, the applicant submits that a declaratory order would have important consequences for him as it would have an influence on the type of damages that he could claim.

The Municipality submits that the High Court was correct in its treatment of the nature of the review. The appointment of a Municipal Manager has to proceed in terms of the relevant provisions of the Systems Act. Even though the final decision has to be taken by the municipal council, it does so exercising a public power in terms of legislation. This is therefore not an executive function as set out in the exclusions in the PAJA definition. The Municipality further submits that the applicant did not have the required skills for the position. It argues that by virtue of section 54A(3)(a) of the Systems Act, an appointment of a person who does not have the prescribed skills, expertise, competencies or qualifications is null and void and that the MEC is given oversight of the appointment process.

On the issue of mootness, the Municipality submits that it is not open to a court acting in terms of PAJA to make an order which is justified on the basis that the applicant may use its order to found a future action for constitutional damages. The MEC submits further that the High Court was correct in finding that the impugned decisions constituted administrative action in terms of PAJA. In addition to this, the MEC agrees with the High Court’s assessment of the unreasonableness of the delay by the applicant in bringing the application.”

Quotations from judgment

Note: Footnotes omitted and emphasis added