KZN Cogta MEC wants appointment of two municipal managers set aside

• KwaZulu-Natal Cooperative Governance and Traditional Affairs MEC wants the appointments of two municipal managers set aside.
• The High Court in Pietermaritzburg previously ruled in favour of the MEC, setting aside the appointments.
• But the Supreme Court of Appeals overturned the decision, stating that the delay in launching the application for review was unreasonable. 

The appointments of two KwaZulu-Natal municipal managers (MM) should be declared null and void and should be set aside.  

KwaZulu-Natal Cooperative Governance and Traditional Affairs (Cogta) MEC Sipho Hlomuka wants Mthonjaneni municipal manager Philani Sibiya and Nkandla's MM, Langelihle Jili, booted from their posts. 

On Tuesday, the Constitutional Court heard that the two municipal managers did not comply with the required qualifications. 

The KwaZulu-Natal High Court in Pietermaritzburg ruled in favour of the MEC in January 2019, setting aside the appointments.

However, that decision was overturned by the Supreme Court of Appeal in Bloemfontein. 

The Appeal Court found that the MEC failed to act timeously. It also said the MEC's delay could not be excused.

Now, the MEC is appealing the SCA decision.  

On Tuesday, advocate Alastair Dickson SC, on behalf of the MEC, said "much of the delay was caused by the municipalities". 

He said what his client wanted was for the apex court to make a "decision that favours corporate governance, the uplifting of municipalities and qualification of people who work for municipalities ".

The MEC relied on section 54A of the Systems Act, seeking a declaratory ruling which would render the appointments invalid under the principle of legality. But from 9 March 2019, the section was declared invalid and no longer exists in law. 

The municipalities argued that the issues raised by the MEC were moot. 

Advocate Griffiths Madonsela, representing the respondents, said Section 54A was declared unconstitutional by the Constitutional Court.

He said the MEC's case was built on a repealed section, adding the application should be dismissed.  

Madonsela also said the MEC should have acted within the 14 days stipulated in the Act, but failed to do so.

"It should be the end of the matter because the 14 days which is provided, by the now defunct 54A was meant to make sure that the appointment of municipal officers is executed swiftly or stopped before it is found unlawful," he told the justices on Tuesday.

He added that the Act required the MEC to act swiftly, but that he "missed the boat". 

He said that when the issue was transferred to the minister, he "missed the boat" too.

Meanwhile, Dickson, when questioned why he relied on a section that didn't exist, replied that the matter was not moot.

He added that the court action happened while the invalidity of the Act was suspended.

He also said: 

Jili was appointed in January 2017 as municipal manager at Nkandla municipal council, while Sibiya was appointed in December 2016 as municipal manager of the Mthonjaneni municipality.

When the MEC was informed about Jili's appointment, she wrote to the mayor, saying that Jili's selection was not in compliance with the legislative requirements.

He appeared not to have a minimum of five years' experience at senior management level.

The MEC called on the municipality to take remedial action to address the issue, and the MEC took no further steps.

Jili assumed his position as municipal manager in February 2017. According to court papers, in November 2017, an official from the MEC's office wrote to the municipality demanding that it take remedial action. This, however, did not happen.

The MEC was also informed about the Mthonjaneni Municipality's decision to appoint Sibiya in December 2016.

The MEC then informed the mayor and minister that "she was of the view" that Sibiya did not have the required experience. She requested the municipality to take remedial action to remedy the alleged irregularity.

Sibiya still assumed the position of municipal manager the same month. The MEC launched two review applications in 2018 in the High Court seeking to set aside the appointments - which found in her favour, but which was later overturned.

Judgment has been reserved.