Nala Local Municipality v Tokwana

• Jurisdiction: South Africa
• Judge: Rampai J, Ebrahim J
• Judgment Date: 28 February 2008
• Docket Number: 2240/2006
• Court: Orange Free State Provincial Division
• Hearing Date: 10 December 2008
• Citation: 2008 JDR 1056 (O)

Rampai J:

[1]

The applicant has approached this Court and sough to have the decision of its predecessor in title on 14 February 2006 whereby the employment contract of its then municipal manager, the 1st Respondent, was extended, reviewed and set aside. In the alternative the applicant sought to have the

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resolution giving effect to this decision, declared invalid. The 1st Respondent contends that the extension of his contract of employment was constitutionally valid and that no legal basis exists for this Court to intervene in the matter. As I understood the argument it is that the basis for this Court invoking its powers of review, is non-existent in this matter.

[2]

It is common cause that the applicant municipality acted intra vires the statutory instrument enabling a municipal council to appoint a municipal manager and to extend his employment contract. See section 57(6) of the Municipal Systems Act, 32 of 2000. It is also not in dispute that the power to extend the municipal manager's contract of employment rests exclusively in the municipal council and is not capable of being delegated at all.

MGOQI v CITY OF CAPE TOWN: in re: CITY OF CAPE TOWN v MGOQI AND ANOTHER [2006] 9 BLLR 873 (C).

It is also common cause that the Nala Local District Municipality is a municipality which is governed by the Local Government Municipal Systems Act, 32 of 2000 ("Systems

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Act"), as well as the Local Government Municipal Structures Act, 117 of 1998 ("Structures Act"). In terms of the Structures Act municipalities are governed by municipal councils which are formed in the manner set out in chapter 3 of that Act. Essentially the councillors on the municipal councils are elected officials who are voted in free public elections and they represent the various political parties. In terms of section 30(3) as read with section 30(5) of the Structures Act, the appointment of a municipal manager must be decided by a majority vote of the councillors present and forming a quorum at a council meeting. The decision to appoint a municipal manager is thus only taken through a voting system.

[3]

The relevant background history to this dispute is common cause and may be briefly set out as follows:

3.1

On 14 February 2006 and two weeks prior to the forthcoming municipal elections, which were to be held on 1 March 2006, a decision was taken by the members of the incumbent municipal council to extend the fixed term contracts of all of the respondents. The 1st Respondent was, in terms of such resolution,

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required to sign a new contract of employment within 72 hours of the decision having been taken.

3.2

At the time there existed a rift in the ruling party, the African National Congress, dividing the party into two factions. After the municipal elections held on 1 March 2006 new councillors were appointed who belonged to the political faction led by the erstwhile and late mayor one Nkone. The old councillors were ousted. It is common cause that Nkone and the 1st Respondent were involved in a political power struggle at the time prior to Nkone's death and that Nkone had sought to remove the 1st Respondent from his position as municipal manager because he, Nkone, bore a grudge against the 1st Respondent.

3.3

Prior to the elections being held the existing councillors of the then municipal council launched an unsuccessful urgent application before this Court because they had not been placed on the list of candidates for nomination as councillors on the incoming council. This application was dismissed and all the existing

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councillors at that stage knew that their term of office would not be renewed as they were not on the list. The 1st Respondent was not a party to that application.

3.4

Three days prior to the hearing of the urgent application the meeting of the incumbent municipal council was called under circumstances where the official opposition parties had no knowledge of the resolution that was to be decided upon. The members of the Democratic Alliance Party in the council did not receive prior notice of the intention to pass the resolution to extend the appointment of the 1st Respondent and just prior to...