Notyawa v Makana Municipality   

Municipal manager appointments under the spotlight in the Constitutional Court and a decision expected today concerning leave to appeal.

“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.”

Essence

Municipal manager appointments under the spotlight in the Constitutional Court and a decision expected today concerning leave to appeal.

Decision

CCT 115/18 : Date of hearing: 3 September 2019

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Reasons

Discussion by GilesFiles
Court summary

MEDIA SUMMARY
_____________________________________________________________________

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