The appellant, an unincorporated voluntary association, sought to declare invalid the appointment of the third respondent (Mr Mashitisho) as municipal manager of Mogale City Local Municipality. Mr Mashitisho had initially been appointed as municipal manager on 2 October 2006 for a fixed five-year term expiring on 30 September 2011. On 11 November 2011, the executive mayor (second respondent) concluded a written agreement extending his appointment to 30 September 2016, purportedly acting on delegated powers. The municipal council noted the appointment on 28 February 2012 and congratulated Mr Mashitisho. The appellant had initially brought an application in October 2012 to review the municipal manager's decision regarding an emergency site and service centre. After becoming aware of the re-appointment, the appellant informed the executive mayor in December 2012 and launched a separate application in February 2013 (more than a year after the re-appointment) challenging the validity of the appointment on grounds that it violated the Local Government: Municipal Systems Act 32 of 2000 (LGMS). The high court dismissed the application and the appellant appealed with leave.
The appeal was dismissed with costs.
An applicant for a declaratory order under section 21(1)(c) of the Superior Courts Act must demonstrate a legally recognized, direct and substantial interest in the relief sought. The existence of a procedural irregularity or unlawful administrative action does not, without more, entitle an applicant to relief. There is a two-stage substantive enquiry: (1) the applicant must have the necessary interest, and (2) the case must be a proper one for the exercise of the court's discretion. The power to appoint a municipal manager under section 54A(1)(a) of the Local Government: Municipal Systems Act 32 of 2000 cannot be delegated by a municipal council to an executive mayor, as this would conflict with the provisions of the Act itself and section 59(2) which prohibits delegations that conflict with the Act.
The court observed that even if the appellant had relied on section 38 of the Constitution, the interests of justice would not have required the court to grant relief given the insufficient nature of the appellant's interest and the circumstances of the case. The court also noted that if the appellant had relied on PAJA, it would have been out of time under the 180-day time limit in section 7(1), and the importance of finality would almost certainly have overridden other considerations even if an extension under section 9 had been sought. The court suggested that fraud or gross irregularity in the conduct of a public body may justify an exception to the more circumscribed approach to an applicant's necessary interest, but found that the flaws in this case appeared to derive from no more than an error on the part of the municipal council. The underlying reason for the appellant's application appeared to be to bolster its position in a separate application challenging the establishment of an emergency site and service centre.
This case is significant in South African administrative and procedural law for clarifying the requirements for obtaining declaratory relief under section 21(1)(c) of the Superior Courts Act. It emphasizes that establishing procedural irregularity in administrative action is not sufficient without demonstrating a legally recognized interest in the relief sought. The judgment reinforces the principle that applicants must have a 'direct and substantial interest' in declaratory orders and that courts have discretion to refuse relief even where irregularities exist, particularly where delay has occurred and finality and certainty in decision-making are important considerations. The case also confirms that municipal councils cannot delegate the power to appoint municipal managers to executive mayors under the Local Government: Municipal Systems Act, following the reasoning in Mgoqi v City of Cape Town. It illustrates the importance of the 'interests of justice' as the overriding consideration in determining standing and whether to grant relief.
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