Member of the Executive Council for Cooperative Governance and Traditional Affairs, KwaZulu-Natal v Nkandla Local Municipality and Others

The MEC for the Department of Cooperative Governance and Traditional Affairs, KwaZulu-Natal challenged the appointments of two municipal managers: Mr Langelihle Siphiwokuhle Jili (appointed by Nkandla Local Municipality on 24 January 2017) and Mr Philani Philemon Sibiya (appointed by Mthonjaneni Local Municipality on 19 December 2016). The MEC contended both appointments were made in contravention of section 54A(2) of the Local Government Municipal Systems Act 32 of 2000 (Systems Act) because the appointees lacked the prescribed minimum five years' experience at senior management level, rendering the appointments null and void under section 54A(3). The MEC was notified of both appointments in January 2017 but significantly delayed taking action, launching review applications only 15-18 months later. Between the High Court hearing and the Constitutional Court judgment, the Constitutional Court declared section 54A unconstitutional in SAMWU, with the order of invalidity taking effect on 9 March 2019 after a 24-month suspension period. By the time of the Constitutional Court hearing, Messrs Jili and Sibiya had served in their positions for over four years of their five-year terms, with no complaints about their performance.

• Whether the application was moot following the declaration of invalidity of section 54A of the Systems Act in SAMWU
• Whether it was in the interests of justice to grant leave to appeal
• Whether the Constitutional Court could declare the appointments unlawful and set them aside after section 54A ceased to be in force
• Whether the MEC's delays in taking action under section 54A(8) and in instituting review proceedings were reasonable
• Whether unreasonable delay should be condoned in the circumstances
• The effect of the prospective invalidity order in SAMWU on pending litigation concerning appointments made under section 54A
• The application of the principle of legality versus PAJA to challenges to municipal manager appointments

Leave to appeal refused.

The binding legal principles established are: (1) Where a statutory provision is declared invalid with prospective effect after suspension, and the suspension period expires, applications seeking relief based on that provision become moot if the applicant seeks only prospective relief from the date of final judgment (per majority). Alternatively, such applications are not moot because the court's power to declare conduct unlawful derives from section 172(1) of the Constitution and the principle of legality, not from the now-invalid empowering provision, and the declaration describes the lawfulness of conduct at the time it occurred (per concurrence). (2) Prospective invalidity orders are intended to preserve legal consequences of decisions made under the invalidated law, including causes of action, and should not be interpreted to render pending proceedings moot. (3) In considering whether to grant leave to appeal in circumstances where appointments are nearly expired, courts must weigh: the seriousness of the constitutional or legal breach; whether illegality is clearly established; the impact on service delivery and the public; the performance record of appointees; prejudice to parties; and the time remaining in appointments. (4) Organs of state must comply with statutory timelines and section 237 of the Constitution requires constitutional obligations to be performed diligently and without delay. (5) The reasonableness of delay in review proceedings must be assessed based on explanations actually offered by the applicant, not speculation by courts. (6) Unexplained or inadequately explained delays are unreasonable as a matter of law.

The majority observed that allowing appointees whose qualifications were questioned to serve for over four years of their five-year term was troubling, reflecting systemic failure to enforce compliance promptly. The majority noted the undesirability of having municipal managers whose credentials were questioned but balanced this against prejudice to appointees and service delivery impacts. The concurring judgment noted it was unnecessary to decide whether challenges to municipal manager appointments constitute administrative action under PAJA or common law review under the principle of legality, as the outcome would be the same under either approach. The concurrence observed that if PAJA applied, the applicant's prospects would be even dimmer due to the 180-day limitation period. The concurrence criticized the conflation by courts below of the two stages of the Khumalo test: (1) whether delay is reasonable (not an exercise of discretion), and (2) whether unreasonable delay should be condoned (a true discretion subject to limited appellate interference). The concurrence emphasized that the High Court engaged in impermissible speculation about cooperative governance motivations rather than assessing actual explanations for delay. The majority noted that courts have remedial powers under section 172(1)(b) to craft just and equitable orders even where conduct is unlawful, and may decline to set aside unlawful conduct depending on circumstances.

This case addresses the complex interaction between declarations of constitutional invalidity and pending litigation based on the invalidated provision. The majority's approach suggests that once an empowering provision is declared invalid and the suspension expires, courts cannot make orders enforcing that provision even for conduct that occurred while it was in force. This has significant implications for the finality of legal proceedings and the temporal effect of constitutional invalidity orders. The concurring judgment presents an alternative view more consistent with the doctrine of objective constitutional invalidity and preserving the intended prospective effect of the SAMWU order. The case also reinforces principles regarding unreasonable delay in review proceedings under the principle of legality, emphasizing that: (1) organs of state must comply with statutory timelines diligently (section 237 of the Constitution); (2) delays must be explained by the applicant, not speculated about by courts; (3) unexplained delays are necessarily unreasonable; and (4) in exercising discretion to condone delays, courts must consider the impact on service delivery, performance of officials, prejudice to parties, and proximity to the natural end of challenged appointments. The judgment highlights tension between enforcing strict compliance with municipal appointment requirements and practical considerations of service delivery and fairness after long periods of unchallenged service.