Nkanyiso Ndlovu v City of Bulawayo and Charles Malaba

The applicant and 6 others, including the 2nd respondent (Charles Malaba), attended interviews conducted by the 1st respondent (City of Bulawayo) from September 2017 to May 2018 for the post of Assistant Director of Health Services (Environmental Health). Both the applicant and 2nd respondent were already employed by the 1st respondent in different capacities. At the end of the recruitment process, the 2nd respondent was appointed to the post with effect from May 2018. The applicant was aggrieved by this decision and filed an application for a declaratur alleging that the 1st respondent's decision to appoint the 2nd respondent was unreasonable, unfair and unlawful. The applicant criticized the 2nd respondent's academic qualifications and credentials, particularly focusing on the Masters' degree requirement. The 2nd respondent had 22 years more experience with the 1st respondent than the applicant, having joined in 1991 compared to the applicant's 2003, and had previously trained the applicant and held senior positions to which the applicant reported.

• Whether the 1st respondent's decision to appoint the 2nd respondent was unreasonable, unfair and unlawful
• Whether the court could set aside an appointment decision made by a municipal council
• The legal meaning and effect of 'recommendation' in section 141 of the Urban Councils Act
• Whether a recommending body's recommendation binds the council in making appointments
• Whether the application for a declaratur was the proper legal remedy
• Whether internal recruitment policies that allegedly contravene a ministerial circular are unlawful
• Whether costs on an attorney and client scale were appropriate

The application was dismissed with costs on the attorney and client scale.

1. In terms of section 141(1)(a) of the Urban Councils Act, while a municipal council must receive a recommendation from the Town Clerk before making an appointment, the recommendation is advisory only and does not bind the council. A 'recommendation' means a 'report to advise' and does not direct or demand appointment of a particular person. 2. The Council retains sole prerogative to make the final decision on appointments, provided it considers the recommendation and matters with probative value. 3. Courts cannot make orders that usurp the statutory powers granted to municipal councils to appoint employees. To do so would transform the court into an employer, which is beyond its jurisdiction. 4. Even in terms of sections 3 and 4 of the Administrative Justice Act, courts cannot make orders directing a public authority to appoint a specific person to a position. 5. The discretion granted to the High Court under section 14 of the High Court Act requires proper grounds to be established before relief such as a declaratur can be granted.

The court made several non-binding observations: 1. A trend should never be inculcated where rival candidates in job interviews are allowed to tear each other's credentials to pieces to get the job - that is not the purpose of an interview. 2. It is completely improper for an interviewee to obtain minutes of internal deliberations, recommendations and objections and then use them to push for his appointment. 3. An interviewee cannot tie down an employer to particular requirements for an interview and then demand appointment - such an employee would literally have employed himself and would be difficult to deal with. 4. A party who conceals circumstances or distorts facts does disservice to himself and takes away the court's confidence in him telling the truth elsewhere in his case. 5. Ministerial circulars, even if properly before the court, have no legal force or effect - they are not statutory provisions and are not law. 6. The court expressed its view that the proper remedy should have been review rather than declaratur, though this point in limine was apparently abandoned by the 2nd respondent at the hearing.

This case clarifies important principles of administrative law in Zimbabwe regarding municipal appointments and the role of courts in reviewing such decisions. It establishes that recommendations made to a municipal council in terms of section 141 of the Urban Councils Act are advisory only and do not bind the council. The case affirms the principle of separation of powers, holding that courts cannot usurp the statutory powers of public authorities by substituting their own decisions for those of the empowered body. It also demonstrates the limits of judicial review in employment matters, particularly that courts will not turn themselves into employers. The judgment reinforces procedural propriety in litigation, warning against concealment or distortion of facts and imposing punitive costs where baseless allegations are made. The case serves as authority for the proposition that internal processes and recommendations, while important, do not fetter the ultimate decision-making authority of the statutorily empowered body.