MEC for Local Government, Housing and Traditional Affairs, KwaZulu-Natal v Yengwa

The MEC for Local Government, Housing and Traditional Affairs in KwaZulu-Natal issued directions to councillors of the Umvoti Municipality regarding the appointment of Mr MS Yengwa as Municipal Manager, contending that Yengwa did not meet the minimum qualification requirements prescribed by regulation 38(1) of the regulations issued under the Local Government: Municipal Systems Act 32 of 2000. Despite this, certain councillors voted to appoint Yengwa, considering him to be appropriately qualified. By the time the matter was heard in the KwaZulu-Natal High Court, Yengwa had withdrawn and declared himself unavailable for the post. The MEC nevertheless pursued an application seeking a personal costs order against the councillors. The High Court dismissed the costs application but went further to declare regulation 38(1) unconstitutional. The MEC appealed to the Supreme Court of Appeal.

The appeal was dismissed. The order of the KwaZulu-Natal High Court declaring regulation 38(1) invalid and unconstitutional was set aside. The MEC was ordered to pay the costs of the Umvoti Municipality and the third to thirteenth respondents (the councillors). No order was made in respect of Mr Yengwa.

The case is significant for clarifying that courts should not decide constitutional issues where the lis between the parties has fallen away, reinforcing judicial restraint. It also affirms statutory and constitutional protection for municipal councillors against personal costs orders for decisions taken in good faith in the exercise of their official duties.