Notyawa v Makana Municipality and Others

In November 2014, Makana Municipality advertised for a municipal manager position. Mr Notyawa, then a municipal councillor, applied and was shortlisted along with five other candidates. In March 2015, the municipal council resolved to appoint Mr Notyawa as municipal manager. The appointment was reported to the MEC for Co-operative Governance and Traditional Affairs: Eastern Cape as required by section 54A of the Local Government: Municipal Systems Act 32 of 2000. In April 2015, the MEC responded that he was not satisfied the appointment complied with the Act, as Mr Notyawa did not meet minimum requirements, particularly lacking experience at senior management level within municipal administration. The MEC demanded the vacancy be re-advertised. Mr Notyawa had been a councillor from 2011-2016, and his management experience was obtained in non-municipal entities. In July 2015, Mr Notyawa launched review proceedings which he later withdrew in February 2016. The Municipality re-advertised the post. In October 2016, Mr Notyawa applied to restrain the Municipality from filling the post but did not pursue this. In February 2017, approximately 23 months after the original decision, Mr Notyawa launched the current application seeking rescission of the decisions and a declarator that he was lawfully appointed.

• Whether the unreasonable delay of approximately 23 months in bringing review proceedings should be condoned
• Whether it is in the interests of justice to grant leave to appeal against the High Court's refusal to condone delay
• Whether the High Court properly exercised its discretion in refusing to overlook unreasonable delay
• Whether the impugned decisions constituted administrative action under PAJA or executive action subject to legality review
• Whether the matter had become moot by the time of hearing
• The applicable test for interference with a lower court's exercise of discretion on appeal
• Whether condonation principles differ between PAJA reviews and legality reviews

The application for leave to appeal was dismissed. No costs order was made against the applicant despite his losing, as the matter raised constitutional issues and fell within the Biowatch principle (both respondents being organs of state).

An appellate court may only interfere with a lower court's exercise of discretion to condone delay where the discretion was not exercised judicially, meaning it was based on incorrect facts or wrong principles of law. Where a court correctly applies the two-stage test (determining if delay is unreasonable, then whether it can be condoned) to correct facts, considering relevant factors including the quality of the explanation, prejudice, prospects of success, and mootness, and applies correct legal principles, the exercise of discretion will not be disturbed on appeal. The fact that an appellate court might have exercised the discretion differently is irrelevant. In determining whether to grant leave to appeal, the interests of justice inquiry depends primarily on prospects of success where no other compelling public interest considerations exist. Where a matter has become moot and the relief sought would have no practical effect on the parties or others, and no broader public interest is engaged, it is not in the interests of justice to grant leave to appeal.

The Court observed that: (1) There are no "common law reviews" following Pharmaceutical Manufacturers - all reviews of public power are now controlled by the Constitution, with legality review being the constitutional equivalent of the former ultra vires ground. (2) Whether PAJA applies depends on the nature of the impugned decision (administrative vs executive action), not on the applicant's characterization in their papers. (3) While there is overlap between PAJA and legality review delay principles, they differ in some material respects as defined in Asla Construction, though these differences had no bearing on the outcome in this case. (4) The development brought by the Constitution and PAJA means courts can now use wide remedial powers under section 172(1)(b) to protect innocent parties from prejudice, rather than simply refusing to entertain reviews as at common law. (5) Where unlawfulness is clearly established, particularly involving serious constitutional breaches, courts may overlook unreasonable delay (per Gijima principle), but this is distinguishable from cases brought by individuals rather than state self-review. (6) It was unnecessary to determine whether the Gijima principle is limited to cases where the state is the applicant. (7) Section 54A of the Systems Act prescribes tight timeframes for municipal manager appointments, reflecting the importance of having suitably qualified persons in these positions for proper service delivery. (8) A declaratory order regarding validity may still be sought in subsequent damages proceedings even where the main review is dismissed.

This case provides important guidance on: (1) The proper approach to condonation of delay in review proceedings, confirming the two-stage test of determining whether delay is unreasonable, then whether it can be condoned. (2) The limited grounds for interfering with a lower court's exercise of discretion on appeal - only where based on incorrect facts or wrong legal principles. (3) The overlap and differences between delay principles under PAJA reviews and legality reviews. (4) The application of constitutional remedial powers under section 172(1)(b) to ameliorate prejudice in cases of delay. (5) The principle from Gijima that serious constitutional breaches may justify overlooking delay, but this is fact-dependent and distinguishable from individual applicants' cases. (6) The role of mootness in refusing leave to appeal, particularly where consequential relief is no longer available. (7) The importance of section 54A of the Systems Act requiring suitably qualified municipal managers with prescribed experience, and the MEC's monitoring function to ensure compliance. (8) That there are no longer "common law reviews" - all reviews of public power are controlled by the Constitution, with legality review applicable where PAJA does not apply to executive action.