A critique of the law regarding employment of municipal managers and the managers accountable to the municipal manager

• Jurisdiction: South Africa
• Date: 01 January 2013
• Published date: 01 January 2013
• DOI: 10.10520/EJC153140
• Pages: 265-278
• Published By: UNISA Press
• Author: Johnson Mathenjwa

A critique of the law regarding

employment of municipal managers and

the managers accountable to the

municipal manager*

Joh nso n M athe njwa**

1 Introduction

The employment of municipal managers and managers that are directly

accountable to municipal managers is regulated by various pieces of legislation in

the new democratic constitutional dispensation. Conflicting provisions in the

legislation have led to uncertainty and confusion about the legal position on the

employment of these managers. This issue was complicated when the Court of first

instance declared regulation 38(1) of the municipal performance regulations for

managers to be invalid. A further complication came with the subsequent overturn

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of this decision by the Supreme Court of Appeal in MEC KwaZulu-Natal v Yengwa2

without the Court making an affirming finding with respect to the legality of

regulation 38(1) of the municipal performance regulations for managers.

This paper analyses the relevant provisions of the Local Government:

Municipal Structures Act, the Local Government: Municipal Systems Act and the

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I wish to thank Estelle Hurter for her insightful comm ents on the draft of this paper

*

BIuris (UFH), LLB (Wits), LLM (Unisa). Senior Lecturer: Department of Criminal and Procedural

**

Law, Unisa, and Attorney of the High Court of South Africa.

See Department of Provincial and Local Government ‘Local government: Municipal performance

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regulations for mun icipal managers and managers dire ctly accountable to municipal managers,

2006’ GNR 805 in GG 29089 of 2006-08-01(hereafter the municipal performance regulations for

managers). The municipal performance regulations for managers seek to set out how the

performance of municipal managers and managers directly accountable to municipal managers will

be uniformly directed, monitore d and improved. It addresses the employment contracts and

performance agreements entered into between the mana gers and respective municipalities.

MEC KwaZul-Natal for Local Government, Housing and Traditional Affairs v Yengwa 2010 5 SA

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494 (SCA) (hereafter the Yengwa case).

Act 117 of 1998 (hereafter the Municipal Structures Act).

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Act 32 of 2000 (hereafter the Municipal Systems Act).

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