N'wamitwa Solomon Mkhonto and Others v Bushbuckridge Local Municipality and Others

The applicants were regional office managers in Bushbuckridge Local Municipality (the municipality), which was divided into 11 regional offices acting as sub-municipalities. Following the dissolution of the Bushbuckridge Water Board in 2014 and the transfer of bulk water supply responsibilities to the municipality in 2019, the municipality restructured its organisational structure, centralising water services delivery. This restructuring rendered the positions of regional managers redundant. On 27 May 2021, the municipal council adopted resolution BLM 205 approving the new organisational structure. The applicants challenged this resolution, claiming they became aware of the proposed restructuring on 26 May 2021 and that the municipality failed to follow proper procedures. The applicants sought review of the resolution in the High Court, which dismissed their application. They then sought special leave to appeal from the Supreme Court of Appeal, which was refused. They then applied for reconsideration of that refusal.

• Whether exceptional circumstances existed warranting reconsideration of the refusal of special leave to appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013
• Whether the municipality complied with s 66(1) of the Local Government: Municipal Systems Act 32 of 2000 by having an approved policy framework for staff establishment
• Whether the municipality's 'Staff Placement Policy' constituted a valid policy framework under s 66(1) of the Systems Act
• Whether the municipality followed fair consultative procedures as required by the Promotion of Administrative Justice Act 3 of 2000 (PAJA)

1. The application for reconsideration of the order of this Court granted on 31 January 2024, dismissing the applicants' special leave to appeal, is struck from the roll. 2. The applicants shall pay the costs of the first respondent in the reconsideration application jointly and severally, the one to pay, the others to be absolved.

1. To obtain reconsideration under s 17(2)(f) of the Superior Courts Act, applicants must demonstrate exceptional circumstances beyond the requirements for special leave, linked to either the probability of grave injustice or circumstances where the administration of justice might be brought into disrepute. 2. Section 66(1) of the Local Government: Municipal Systems Act 32 of 2000 does not prescribe how a policy framework for staff establishment must be worded or framed; a policy framework cannot be rejected simply because parties disagree with its wording, provided it addresses the relevant subject matter. 3. Parties may not change the basis of their case from alleging non-existence of a policy to challenging its adequacy after the policy is produced in evidence, as this constitutes impermissible shifting of the goal posts contrary to pleading principles. 4. Section 17(2)(f) is not intended to afford disappointed litigants a further attempt to procure relief already refused or to pursue a 'second bite at the cherry'.

The Court noted but did not determine the municipality's argument that the municipal council's decision amounted to an exercise of executive power or function and thus could not be reviewed under PAJA as it did not constitute administrative action. The Court stated this issue was not dealt with by the High Court and was not pursued before the Supreme Court of Appeal, so it would not be addressed as the appeal could be disposed of on other grounds. The Court also observed, without exhaustively defining, that exceptional circumstances in the context of s 17(2)(f) should be understood in connection with its dictionary meaning in addition to the probability of grave injustice or situations where the administration of justice might be brought into disrepute.

This case clarifies the interpretation and application of s 17(2)(f) of the Superior Courts Act 10 of 2013 regarding exceptional circumstances required for reconsideration of refusals of special leave to appeal. It reaffirms that exceptional circumstances must demonstrate either grave injustice or that the administration of justice would be brought into disrepute, and that the provision is not intended as a parallel appeal process. The case also provides guidance on compliance with s 66(1) of the Local Government: Municipal Systems Act 32 of 2000, confirming that the Act does not prescribe specific content or format for policy frameworks governing staff establishment, and that municipalities have discretion in formulating such policies provided they address the relevant matters. The judgment reinforces procedural fairness principles in pleading, confirming that parties cannot change the basis of their case when confronted with evidence answering their initial allegations.