Member of the Executive Council for KwaZulu-Natal of the Department of Co-Operative Governance and Traditional Affairs v Inkatha Freedom Party

• Jurisdiction: South Africa
• Judge: Lopes J
• Judgment Date: 13 November 2013
• Docket Number: 10304/13
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 07 November 2013
• Citation: 2013 JDR 2569 (KZD)

Lopes J:

[1]

Prior to setting out the question I am required to determine in this application, it is helpful to set out the history of the dispute thus far :

(a)

it became necessary for the Abaqulusi Municipal Council ('the Council') (the third respondent in this application) to appoint a new municipal manager;

(b)

applications were received and on the 16th October 2012, an interview panel shortlisted various candidates including, Vusumuzi Joseph Mthembu ('Dr Mthembu') ( the second respondent in this application) ;

(c)

on the 7th November 2012 the executive committee of the Abaqulusi Municipal Council (the 'Executive Committee') (the fourth respondent in this application) resolved to recommend to the Council the appointment of Dr Mthembu as the municipal manager;

(d)

although suggestions were made that Dr Mthembu had misrepresented his credentials in applying for the post of municipal manager, on the 4th December 2012 the Council adopted the recommendation of the Executive Committee to appoint Dr Mthembu as the municipal manager. On the 6th December 2012 the mayor of the Council, P N Khaba, ('the Mayor') (the fifth respondent in this application) notified the Member of the Executive Council for KwaZulu-Natal of the Department of Co-operative Governance and

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Lopes J

Traditional Affairs ('the MEC') (the applicant in this application) of the Council's resolution to appoint Dr Mthembu as the municipal manager;

(e)

despite a response by the Mayor that she had noted that the reference checks on the credentials put up by Dr Mthembu revealed that he had misrepresented his position, on the 5th March 2013 and at an adjourned special Council meeting, the appointment of Dr Mthembu as municipal manager was confirmed, with the direction that he was to assume duties with immediate effect on the 6th March 2013. It was also recorded at that Council meeting that the Executive Committee would discuss the conditions of service and the employment contract of Dr Mthembu and finalise the process by noon on the 7th March 2013;

(f)

the Executive Committee and the Mayor did not, however, ensure the finalisation of Dr Mthembu's conditions of service and employment contract including his salary package as per the minutes of the Council meeting of the 5th March 2013. The Inkatha Freedom Party (the first respondent in this application) and Dr Mthembu accordingly sought a mandamus from this court ordering the Executive Committee and the Mayor to implement the resolution of the 4th December 2012 as confirmed in the subsequent resolution of the 5th March 2013, for the appointment of Dr Mthembu as municipal manager for the Abaqulusi Municipality;

(g)

that application came before Ntshangase J and on the 30th August 2013 he granted an order in terms of which the Executive Committee and the Mayor were ordered to implement the resolutions of the Council of the 4th December 2012 and the 5th March 2013;

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Lopes J

(h)

the order provided that the Executive Committee and the Mayor were to do all things necessary to install Dr Mthembu as municipal manager and to that end were required, in terms of s 57 of the Local Government : Municipal Systems Act, 2000 ('the Municipal Systems Act') :

(aa)

to negotiate Dr Mthembu's employment contract and salary package within five days of the date of the order;

(bb)

to negotiate Dr Mthembu's performance contract within sixty days of the date of his appointment;

(i)

on the 2nd September 2013 six councillors of the Council requested the Mayor to call a meeting to deal with the order of Ntshangase J and the appointment of Dr Mthembu as municipal manager. The Mayor set that meeting down for the 5th September 2013;

(j)

on the 4th September 2013 those councillors met (in the absence of the Mayor, and without her knowledge) and took a decision to appoint Dr Mthembu as municipal manager;

(k)

on the same day, a matter of hours later, an attorney for the Department of Co-operative Governance and Traditional Affairs notified the parties of the MEC's intention to apply for leave to appeal against the decision of Ntshangase J. A notice of application for leave to appeal was delivered to all parties on that day.

[2]

Despite the MEC's notice of application to apply for leave the appeal, the Inkatha Freedom Party and Dr Mthembu have taken the view that the appointment of Dr Mthembu as municipal manager of the Abaqulusi municipality pursuant to the meeting of the 4th September 2013 is to stand, and that any possible appeal by the

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Lopes J

MEC has become perempted. That attitude has precipitated this application in which the MEC seeks:

(a)

an interdict restraining all the cited respondents from giving effect to the appointment of Dr Mthembu as the municipal manager of the Abaqualusi municipality.;

(b)

an order that any employment contract or salary package in respect thereof, or any performance contract, or any appointment of Dr Mthembu, be suspended pending the final determination of the MEC's appeal processes,

(c)

an order declaring that the application for leave to appeal delivered by the MEC suspends the effect and implementation of the judgment of Ntshangase J, and that all purported compliance with that court order prior to delivery of the notice of application for leave to appeal is declared to be invalid and a nullity;

(d)

that the meeting of the executive committee of the 4th September 2013 is declared to be illegal and of no force and effect in law and all resolutions passed thereat to be declared invalid.

[3]

This application came before Poyo-Dlwati AJ who, on the 1st October 2013, granted a rule as sought by the MEC, together with interim relief effectively interdicting and restraining the respondents from giving any effect to the appointment of Dr Mthembu as municipal manager. I am now required to consider whether that order should be made final.

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Lopes J

[4]

Mr Phillips who appeared for the first and second respondents together with Ms Pudifin-Jones...