Mluleki Fihlani v Port St Johns Local Municipality and Others

Mluleki Fihlani was appointed as Municipal Manager of Port St Johns Local Municipality on 9 January 2023. On 22 November 2024, he was suspended pending an investigation into serious misconduct allegations. The investigation was completed on 21 January 2025, and the report was tabled on 22 January 2025. The municipal council resolved to extend his suspension until the disciplinary hearing was finalized, and resolved that the hearing must be conducted before 22 February 2025. However, the disciplinary hearing was not commenced within the three-month period prescribed by regulation 6(6) of the Local Government: Disciplinary Regulations for Senior Managers, 2010. Mr Fihlani's employment contract provided for a 60-day suspension period, while the Regulations provided for three months. Mr Fihlani reported for work on 3 February 2025 and again on 24 February 2025 but was denied entry. He challenged the lawfulness of the extension of his suspension. The municipality brought a counter-application challenging the constitutionality of regulation 6(6), arguing it violated its right to govern under section 151 of the Constitution.

• Whether the precautionary suspension of a municipal manager lapsed when the three-month period prescribed by regulation 6(6) expired without the commencement of a disciplinary hearing
• Whether the municipal council had the power to extend the precautionary suspension beyond three months
• Whether regulation 6(6)(b) of the Local Government: Disciplinary Regulations for Senior Managers, 2010, which prohibits extension of suspension, is constitutionally valid
• Whether regulation 6(6) violates a municipality's constitutional right to govern under section 151 of the Constitution
• Whether the municipality complied with procedural requirements under the Intergovernmental Relations Framework Act
• What constitutes 'commencement' of a disciplinary hearing for purposes of regulation 6(6)

1. It is declared that the precautionary suspension of Mr Mluleki Fihlani by the Port St Johns Local Municipality terminated on 21 February 2025. 2. The municipal council's decision to extend the suspension of Mr Fihlani is declared invalid and is reviewed and set aside. 3. It is declared that Mr Fihlani is entitled to return to work forthwith as the Municipal Manager of the municipality. 4. The municipal council is interdicted from unlawfully suspending or taking away from Mr Fihlani his right to render his contractual duties. 5. The Mayor and Speaker are directed to see to the immediate implementation of this order. 6. The municipality shall pay the costs of the main application, including costs of two counsel on scale C. 7. The counter-application is dismissed. 8. The applicants in the counter-application shall pay the costs thereof, including costs of two counsel on scale C.

1. Regulation 6(6) of the Local Government: Disciplinary Regulations for Senior Managers, 2010 is constitutionally valid and does not violate section 151 of the Constitution. 2. A precautionary suspension of a senior manager automatically lapses if a disciplinary hearing does not commence within three months of the suspension. 3. A municipal council has no power to extend a precautionary suspension beyond three months as regulation 6(6)(b) expressly prohibits such extension. 4. A disciplinary hearing 'commences' when the evidence leader reads out the charges to the senior manager at the actual hearing, not when the charge sheet is served (following regulation 10(3)(a) and Tshabalala v Moqhaka Municipality). 5. Labour relations do not fall within the scope of 'local government matters' over which municipalities have exclusive governance rights under section 156 and Schedules 4 and 5 of the Constitution. 6. The constitutional validity of legislation cannot be resolved through intergovernmental negotiation processes under the Intergovernmental Relations Framework Act; such matters must be determined by courts with appropriate jurisdiction. 7. Organs of state are subject to a higher duty to respect the law and act within constitutional and legislative constraints.

The court expressed deep concern about the municipality's pre-emptive resolution to appeal any adverse judgment 'for any reason' without first applying its mind to the court's reasoning. The court characterized this as 'a seriously shocking disregard for the rule of law and even an abuse of court process'. The court observed that organs of state have a constitutional duty to debate disputes publicly in court, carefully consider judicial reasons, and only appeal when deeply convinced of legal error, not to 'muscle their way through' using public funds. The court noted that the deponent's attempt to recharacterize the council resolution from an 'extension' to a 'new suspension' was 'brazenly disingenuous' and constituted deliberately misleading the court. The court commented on the municipality's 'obfuscatory approach' and suggested it was 'deliberately embarked on a crafty strategy' outside the regulatory framework. The court emphasized the broader public interest considerations, noting that senior manager suspensions affect service delivery, institutional stability, and taxpayer funds, particularly in municipalities serving poor communities where service delivery failures can be matters of 'life and death'.

This case is significant for clarifying the limits on municipal councils' powers to suspend senior managers under the Local Government: Disciplinary Regulations for Senior Managers, 2010. It confirms that regulation 6(6) is constitutionally valid and that municipalities cannot extend precautionary suspensions beyond three months. The judgment emphasizes that 'commencement' of a disciplinary hearing means the actual reading of charges at the hearing, not merely serving a charge sheet. The case reinforces the duty of organs of state to comply with the rule of law and constitutional obligations, and warns against municipalities pre-emptively authorizing appeals before considering court judgments. It also clarifies the scope of municipalities' constitutional right to govern under section 151, confirming that labour relations fall within national regulatory competence and do not form part of the exclusive local government matters listed in Schedules 4 and 5 of the Constitution. The judgment protects senior managers from indefinite suspensions while balancing institutional needs for accountability and efficient service delivery.