Democratic Alliance v Speaker of the Knysna Municipal Council and Others

The Knysna Municipality advertised the position of municipal manager multiple times. Three candidates were shortlisted: Messrs Adonis, Smit, and Sebola. An independent assessment report by Roy Steele and Associates (Steele report) ranked Adonis and Smit as 'Advanced' and Sebola as 'Needs development/Competent', recommending that either Adonis or Smit be appointed. The Selection Panel and Executive Mayor recommended Sebola, citing his highest interview score and transformation goals. On 25 January 2023, the Knysna Municipal Council appointed Sebola as municipal manager. The Democratic Alliance (DA) and the MEC for Local Government challenged the appointment. It emerged that not all relevant documents (e.g., competency assessments, the Gijima report, and the Fundudzi report) were placed before the Council. The Municipality conceded the appointment was flawed.

• Whether the DA has legal standing to challenge the appointment of a municipal manager under section 54A of the Local Government: Municipal Systems Act (Systems Act).
• Whether the court must determine all grounds of review raised by the applicant when the parties agree that the appointment was procedurally flawed and should be declared null and void.
• What is the appropriate just and equitable remedy under section 172(1)(b) of the Constitution, including whether all decisions taken by the invalidly appointed municipal manager should be set aside.
• The proper interpretation of section 54A(3) of the Systems Act regarding appointments made in contravention of the Act being null and void.
• Whether the DA's alternative relief (a suspended order of invalidity) is competent or appropriate.

In case 4247/2023: (1) Condonation granted for late filings; (2) Striking out application granted in part; (3) The decision of 25 January 2023 to appoint Sebola is declared null and void; (4) The appointment is set aside with prospective effect, not affecting prior decisions; (5) Matter remitted to Municipality to re-advertise; (6) Costs orders: respondents pay DA's costs up to 3 June 2023; DA pays respondents' costs from 4 June 2023; counsel to submit notes on costs scale. In case 4441/2023: (1) Same declaration of nullity and setting aside with prospective effect; (2) Matter remitted to re-advertise; (3) First to third respondents pay MEC's costs up to 1 June 2023; thereafter each party pays own costs.

1. A political party represented on a municipal council has sufficient own-interest standing to challenge the lawfulness of the appointment of a municipal manager in the interests of ensuring public power is exercised lawfully. 2. Where an appointment of a municipal manager is procedurally flawed due to failure to place all relevant information before the council, it is 'otherwise made in contravention of this Act' and thus null and void under section 54A(3)(b) of the Local Government: Municipal Systems Act. 3. The invalidity of an appointment does not automatically invalidate all subsequent decisions taken by the appointee; where such decisions are not legally dependent on the validity of the first act and the appointee acted with colourable authority, a just and equitable remedy under section 172(1)(b) of the Constitution may limit the declaration of invalidity to prospective effect only, preserving decisions taken before the court order.

The court expressed a view that the distinction between an order declaring an appointment 'null and void' and an order 'setting aside' the appointment is largely one of semantics, as once a court finds the appointment unlawful, it has no legal force and must be set aside. The court also commented that while the Systems Act entrusts the MEC with supervisory enforcement, this does not preclude another litigant from approaching the court, though the remedy sought should not usurp the MEC's statutory role.

The case clarifies the legal standing of a political party to challenge municipal manager appointments under the Systems Act, affirming a broad approach to standing in constitutional matters. It also reinforces the principle of judicial avoidance/minimalism where parties agree on a dispositive ground, and provides guidance on the appropriate just and equitable remedy when declaring an appointment null and void, distinguishing between the invalidity of the appointment itself and the validity of subsequent administrative acts performed by the de facto office holder.