Simvumile Mambafula v Alfred Nzo District Municipality

The applicant applied for an externally advertised position of Director: Corporate Services at the respondent municipality. The post was advertised on 20 June 2023 with a closing date of 21 July 2023. Following a shortlisting and screening process, interviews were conducted on 12 October 2023, and the interviewing panel recommended the applicant for appointment to the post. On 7 November 2023, the Mayor wrote to the MEC for Cooperative Governance and Traditional Affairs reporting alleged irregularities in the interviewing process and recommending that the process be nullified and the post re-advertised. Despite this, on 30 November 2023, the Mayoral Committee recommended the applicant for appointment. On 15 January 2024, the MEC responded advising that the post must be re-advertised. A special council meeting on 23 February 2024 noted the report on recruitment and appointed an acting director while discrepancies were investigated. On 30 April 2024, the applicant was informed that the post would be re-advertised, which occurred on 3 May 2024. The applicant launched an urgent application on 4 July 2024 seeking to review and set aside the decision not to appoint him and to re-advertise the post, and alternatively seeking an order appointing him to the position.

• Whether the decision of the respondent not to appoint the applicant and to re-advertise the post constitutes administrative action under the Promotion of Administrative Justice Act (PAJA)
• Whether the decision not to appoint the applicant is reviewable under PAJA
• Whether the decision was taken rationally and in accordance with section 56 of the Local Government: Municipal Systems Act 32 of 2000
• Whether decisions of a municipal council regarding senior manager appointments are excluded from PAJA as executive or legislative functions
• Whether this constitutes an exceptional case warranting substitution of the decision under section 8(1)(c) of PAJA

The decision of the respondent not to appoint the applicant as per the recommendations of the interviewing panel and to re-advertise the post was reviewed and set aside. The court substituted the decision with an order appointing the applicant as Director: Corporate Services with effect from March 2024, with salary to commence on the date he assumes his duties. The respondent was ordered to pay the costs of the application.

The binding legal principles established are: (1) A municipal council's decision regarding the appointment of a senior manager under section 56 of the Local Government: Municipal Systems Act constitutes administrative action as defined in PAJA, as it involves the implementation of legislation rather than the formulation of policy or exercise of executive powers. (2) Administrative decisions must be based on proper factual and legal foundations; decisions based on unsubstantiated allegations without proper investigation are irrational and reviewable under PAJA. (3) A decision-maker acts unlawfully when it fails to take into account relevant considerations, takes into account irrelevant considerations, and acts on the unwarranted dictates of another person who was not part of the prescribed process. (4) The exclusion in PAJA of "executive powers or functions of a municipal council" does not immunize all municipal council decisions from review; the court must examine the nature of the power exercised to determine whether it is administrative, executive, or legislative. (5) Both the decision-making process and the decision itself must be rational and rationally connected to the purpose for which the power was conferred.

The court made several non-binding observations: (1) The court expressed concern about the chain of events, particularly that the Executive Mayor reported irregularities to the MEC but apparently did not inform his own Mayoral Committee, which subsequently recommended the applicant's appointment. (2) The court noted that it is "odd" for a council to take a decision based on reports of irregularities from a Mayor who was not part of the recruitment, selection, or interviewing panels. (3) The court observed that the respondent "literally put the cart before the horse" by acting on allegations of irregularities before verifying their veracity through a completed investigation. (4) The court commented that the respondent "demonstrated a lack of insight into its conduct" by contending in papers that it was proper to act without all relevant facts. (5) The court indicated that the respondent showed "a lack of regard for its statutory responsibility and a lamentable abdication of its duties."

This case establishes important principles regarding the nature of municipal council decisions in the appointment of senior managers. It clarifies that such decisions constitute administrative action under PAJA, not executive or legislative functions excluded from PAJA's ambit. The judgment reinforces that municipal councils must act rationally, with proper factual and legal bases, when making appointment decisions under section 56 of the Municipal Systems Act. It demonstrates that decisions based on unsubstantiated allegations and without proper investigation are reviewable and liable to be set aside. The case also illustrates circumstances where substitution of a decision under section 8(1)(c) of PAJA is appropriate, particularly where the original decision-maker has demonstrated a lack of regard for statutory responsibilities. It contributes to the jurisprudence on distinguishing between administrative, executive, and legislative functions in local government, emphasizing that the focus is on the nature of the function rather than the identity of the functionary.