[MEDIA SUMMARY] MEC for Local Government, Housing and Traditional Affairs, KwaZulu-Natal v Yengwa

The MEC for Local Government, Housing and Traditional Affairs sought an order for costs against certain councillors of Umvoti Municipality who had voted contrary to his directions on the appointment of Mr MS Yengwa as Municipal Manager. The MEC contended that Yengwa did not qualify for the post as he lacked a Bachelor's degree in Public Administration or another relevant field, as required by regulation 38(1) of the Regulations published under the Local Government: Municipal Systems Act 32 of 2000. The councillors had considered Yengwa to be 'appropriately qualified' despite his lack of academic qualifications. By the time the case was heard in the KwaZulu-Natal High Court, Yengwa had declared himself unavailable for the post, but the MEC continued with his application for costs against the councillors.

• Whether the High Court should have dealt with the validity of regulation 38(1) when the substantive issue (lis) between the parties had ceased to exist
• Whether the MEC was entitled to recover legal costs from councillors in proceedings involving the performance of their functions or duties as councillors
• Whether regulation 38(1) prescribing a Bachelor's degree qualification for appointment as Municipal Manager was invalid and unconstitutional

The SCA dismissed the appeal by the MEC, set aside the order of the KwaZulu-Natal High Court declaring regulation 38(1) invalid, and ordered the MEC to pay the costs of both the Umvoti Municipality and the councillors concerned (third to thirteenth respondents). No order of any kind was made concerning Mr Yengwa.

The binding legal principles established are: (1) A court should not deal with the constitutional validity of a regulation when the substantive issue (lis) between the parties has ceased to exist and such determination is no longer necessary; (2) Section 28(1)(b) of the Local Government: Municipal Structures Act 117 of 1998 protects councillors against personal liability for legal costs in proceedings involving the performance of their functions or duties as councillors; (3) An MEC is not entitled to recover legal costs from councillors in their personal capacity for actions taken in the performance of their official duties.

The court noted that by the time the litigation commenced, Mr Yengwa, who was the first respondent, had fallen out of the picture. The court made no observations on the substantive merits of whether regulation 38(1)'s requirement of a Bachelor's degree for Municipal Manager appointments was indeed unconstitutional, as this issue became moot following Yengwa's withdrawal from consideration for the post.

This case is significant in South African jurisprudence as it clarifies the protection afforded to municipal councillors against personal liability for costs in proceedings involving the performance of their official functions and duties. It reinforces the principle that courts should not determine constitutional validity of regulations when the underlying dispute has become moot. The judgment also demonstrates the application of the principle of judicial restraint in constitutional matters, where courts should avoid deciding constitutional issues unnecessarily.