IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

 CASE NO: 1428/2008

In the matter between

VUYO MLOKOTI Applicant

VS

AMATHOLE DISTRICT MUNICIPALITY 1^st Respondent

MLAMLI ZENZILE 2^nd Respondent

JUDGMENT

PICKERING J:

On 19 March 2008 the Amathole District Municipality advertised the post of Municipal Manager in the local press. The advertisement attracted in excess of twenty applicants, including Mr. Vuyo Mlokoti and Mr. Mlamli Zenzile. A short-listing process was undertaken from which it became apparent that Mr. Mlokoti and Mr. Zenzile were the two outstanding candidates. The remaining short-listed candidates were accordingly eliminated. Thereafter an assessment of the relative strengths and weaknesses of the two candidates was undertaken by an interviewing panel. Eventually, on 17 June 2008, the council of the Amathole District Municipality resolved to appoint Mr. Zenzile to the position and, on 23 June 2008, it informed Mr. Mlokoti that his application had been unsuccessful. 

Mr. Mlokoti was aggrieved thereby and, accordingly, on 28 June 2008, he launched the present application, citing as first respondent the Amathole District Municipality and, as second respondent, Mr. Zenzile, and seeking an order in the following terms:

"1. That the decision of the first respondent on the 17^th June 2008 to appoint the second respondent as the Municipal Manager as the first respondent be reviewed and set aside.

2. That the decision of the first respondent not to appoint the applicant as Municipal Manager of the first respondent, insofar as maybe necessary, be reviewed and set aside.

3. Substituting the decision of this honourable Court for the decision of the first respondent with an order that:

the applicant be and is hereby appointed Municipal Manager of the first respondent with effect from the

1^st July 2008, with full salary and benefits.

4. The first respondent, together with the second respondent in the event of the second respondent's opposing this application, pay the costs of this application, the one paying, the other to be absolved, such costs to include the costs of two counsel."

The application is opposed by the first respondent only. Such opposition relates not only to the merits of the matter but goes also to the issue of jurisdiction, first respondent contending that this is essentially a labour matter which ought to have been processed through the dispute resolution mechanism contained in the Labour Relations Act no 66 of 1995 or pursued under the provisions of the Employment Equity Act no 55 of 1998. First respondent's contentions in this regard are founded chiefly on the decision in Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC). Prior to this decision there existed no doubt whatsoever that a so-called external candidate for employment, such as applicant, was afforded no protection under the provisions of the Labour Relations Act. In this regard the following is stated by Grogan: Dismissal, Discrimination and Unfair Labour Practices: second edition at page 23:

"Under the principles of contract law, an application for work does not give rise to rights and obligations until it is accepted. The LRA extends protection to applicants for employment only in cases of ‘victimisation' - i.e. a refusal by an employer to engage an applicant on a number of impermissible grounds, including past, present or anticipated membership of a trade union. The EEA protects applicants for employment against unfair discrimination."

At page 43 the learned author states the following:

"Unlike the EEA, the LRA affords no protection against unfair labour practices, as defined, to applicants for employment; only employees can be promoted or demoted ..."

It is furthermore clear from the definition of "employee" that the Labour Relations Act has no application to an external candidate for employment, subject, of course, to the provisions of s 5 of the Act.

"Employee" is defined as:

"(a) any person, excluding an independent contractor, who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer."

Section 5 of the Act is applicable to "employees and persons seeking employment." It is clear that these provisions are intended to prevent the victimisation on certain grounds of persons seeking employment. They are of no application to the present matter.

It does not appear to me therefore that applicant has any remedy which he could pursue under the Labour Relations Act.

In the circumstances I have some difficulty in grasping the basis upon which it is submitted that in terms of the Chirwa decision applicant was obliged to institute these proceedings in the Labour Court. As I understand that decision, leaving aside for the moment the debate concerning its effect on the matter of Fredericks v MEC for Education and Training 2002 (2) SA 680 (CC), it laid down the principle that an aggrieved person possessed of a remedy under the Labour Relations Act, was obliged to pursue that remedy in the Labour Court and not in the High Court, notwithstanding the reference in

s 157 (2) to the latter Court's concurrent jurisdiction.

In the circumstances I am satisfied that this Court has the requisite jurisdiction to deal with the matter.

In the event, however, that I might be wrong, I turn to consider Mr. Quinn's further submissions concerning the Chirwa decision.

That decision has excited much academic and judicial comment. Apart from decisions in other Divisions reference can be made in the High Courts of the Eastern Cape to Mbashe Local Municipality and Others v Nyabuse, unreported case no CA24/08, Transkei Division, and to Nomzamo Cleaning Service Cooperative v Appie and Others [2008] 9 BLLR 901 (Ck). For present purposes, however, it is fortunately not necessary for me to delve too deeply into that debate as there exists judicial authority in point, with which I agree.

In the matter of Mkumatela v Nelson Mandela Metropolitan Municipality, unreported, South Eastern Cape Local Division case no 2314/2006, Revelas J, in dealing with an application for the review of a decision not to appoint the applicant to a particular post, stated as follows at pages 3 - 4:

"In respect of the question of the jurisdiction of this Court, I invited supplementary heads of argument, because during the course of writing this judgment, the Constitutional Court handed down the judgment of Chirwa v Transnet Limited and Others unreported case number CCT 78/06 [2007] CC23 where the Constitutional Court (the majority) seems to have pronounced that cases about unfair dismissal disputes should fall within the exclusive jurisdiction of the Labour Court in certain circumstances. I thank the parties for their assistance in providing me with such heads.

The applicant submitted that the Chirwa case is not applicable because the Constitutional Court, unanimously decided in Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) SA 680 (CC), that the Labour Court did not have exclusive jurisdiction in all matters arising from an employment relationship. In the Chirwa judgment it was specifically emphasized by Skweyiya J that the judgment in Fredericks was distinguishable since no reliance was placed in that case on section 23(1) of the Constitution which protects the right to fair labour practices. In the Chirwa case, the applicant premised her case squarely in terms of the definition of an unfair dismissal in terms of the Labour Relations Act. The applicant stressed that, as was the case in Fredericks, he does not rely on the unfair labour practice provisions of the LRA.

Even though the Labour Relations Act is the primary source in matters concerning disputes about unfair dismissal and unfair labour practices, it would appear that a properly formulated right would not be excluded by the Chirwa judgment. In this application, the applicant challenges the failure of the first respondent to exercise the public power of implementing a policy document. Chirwa's complaint was that there had been a failure to comply with the mandatory provisions of items 8 and 9 of Schedule 8 of the Labour Relations Act. The two formulations are different.

The first respondent contended that had the applicant been successful in his application for the position, it would constitute a promotion and he would be entitled to formulate a cause of action with reference to section 186(2)(a) of the Labour Relations Act, contending that the first respondent had committed an unfair labour practice in not "promoting" him. That is correct, but in terms of the Fredericks case, read with the Chirwa case, the applicant had a choice as to which Court he could approach.

In United National Public Servants Associations of SA v Digomo NO and Others [2005] 26 ILJ 1957 (SCA) several employees challenged a decision not to promote them. Nugent JA said the following about the nature of their claim:

"The appellant's claim ... was not that the conduct complained of constituted an ‘unfair labour practice giving rise to the remedies provided for by the Labour Relations Act, but that it constituted administrative action that was unreasonable, unlawful and procedurally unfair. Its claim was to enforce the right of its members to fair administrative action - a right that has its source in section 33 of the Constitution and that is protected by section 33 - which is clearly cognizable in the ordinary courts."

In my view the first respondent (a municipality) cannot argue that promoting its employees does not constitute administrative action. It is an organ of state and in promoting employees, it exercises a public power and it performs a public function in doing so. It clearly performs an administrative act when acting in terms of its policies and implementing them. This Court therefore has the necessary jurisdiction to entertain this application."

In Makambi v MEC for Education, Eastern Cape 2008 (5) SA 449 (SCA) the following was stated by Farlam JA at paragraph 14:

"Ms Collett also submitted, relying on the recent decisions of Revelas J in the South Eastern Cape Local Division in Mkumatela v Nelson Mandela Metropolitan Municipality, case no 2314/2006, delivered 28 January 2008, and Froneman J in the Bhisho High Court in Nakin v MEC, Department of Education, Eastern Cape Province, case no 77/2007, delivered on 22 February 2008 that the Constitutional Court in Chirwa did not overrule its earlier decision in Fredericks v MEC for Education and Training Eastern Cape 2002 (2) SA 693 (CC) ((2002) 23 ILJ 81: 2002 (2) BCLR 113), and that the applicant was entitled on the strength of that decision to bring her claim in the High Court."

At paragraph 15 the learned Judge stated that "[i]t is true that the majority in Chirwa did not overrule Fredericks but were content to distinguish it." In this regard he referred to paragraph 58 of the judgment of Skweyiya J in Chirwa where the following appears:

"Notably, the applicants in Fredericks expressly disavowed any reliance on s 23(1) of the Constitution, which entrenches the right to a fair labour practice. Nor did the claimants in Fredericks rely on the fair labour practice provisions of the LRA or any other provision of the LRA."

In his separate concurring judgment Nugent JA adverted at 455 C - D to the fact that the Chirwa case "purported to distinguish, but not overrule, its earlier contrary decision" in Fredericks. At 460 G the learned Judge stated that the decision in Fredericks "seems to me to be good law until it is overruled..."

In the light of what has been stated in Makambi the statement by Erasmus J in the Nomzamo Cleaning Service case, supra, at 916 A - B to the effect that "[i]t must be accepted therefore that they [the majority in Chirwa] intended to overrule Fredericks to the extent that their judgments are in conflict with that of O'Regan J" is with respect clearly wrong. I would respectfully align myself with the views expressed in this regard by Froneman J in Nakin's case supra a decision which has now been reported at 2008 (6) BCLR 643 (Ck). It follows too, in my view, that the decision of Revelas J in Mkumatela's case, based as it is on the Fredericks case, is correct. At the very least I am not persuaded that it is clearly wrong and I am accordingly bound thereby.

It must be remembered that the decision in Mkumatela's case involved an applicant for promotion who was obviously already in the employ of the respondent. In the present matter applicant was a so-called external candidate and his case is therefore, in my view, an a fortiori one. Furthermore, applicant has placed no reliance whatsoever on either s 23 (1) of the Constitution; the Labour Relations Act, or the Employment Equity Act. With regard to this latter Act one may search in vain through applicant's affidavits for any hint of a suggestion that applicant might have alleged some sort of discrimination such as would have brought the provisions of that Act into play. Section 6 of that Act provides that no person may unfairly discriminate against an "employee", in any employment policy or practice on one or more grounds:

"including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth." 

None of the grounds of discrimination referred to therein have any relevance whatsoever to applicant's situation. I should mention that, although the definition of "employee" in the Employment Equity Act is identical to that in the Labour Relations Act, s 9 of the Employment Equity Act provides that for purposes of s 6 "employee" includes "an applicant for employment."

The submission by Mr. Quinn S.C., who with Mr. Wade appeared for first respondent, that applicant ought to have pursued his remedy in terms of the Employment Equity Act is in the circumstances singularly devoid of merit.

In all the circumstances I am satisfied that first respondent, in making the appointment of Municipal Manager, acted in terms of the public powers invested in it by the provisions of s 67 of the Local Government: Municipal Systems Act no 32 of 2000 and that this Court accordingly has the requisite jurisdiction to adjudicate this matter.

I turn then to consider the merits of the matter.

The appointment of the Municipal Manager of the first respondent is governed by the first respondent's "Recruitment Policy". The purpose of that policy is set out in paragraph 1 thereof, the relevant paragraphs of which read as follows:

"1.1 To apply consistent, transparent, procedurally and substantively fair recruitment and selection procedures;

1.2 To give effect to fair recruitment and selection processes.

1.3 To ensure that the recruitment process complies with the relevant legislations;

 ...

 ...

1.6 To ensure that all candidates are selected objectively and on merit;

1.7 To attract and retain the interests of suitable candidates and to project a positive image of the Municipality to outsiders."

In paragraph 4.1.4 the following appears:

"The Municipality encourages the policy of open recruitment of individuals to positions on the basis of qualifications and suitability and with due regard to the provisions of the pertinent employment legislations."

A "suitably qualified person" is defined in paragraph 3.7 as meaning "any one of, or any combination of that person/s:

A Formal qualifications

B Prior learning

C Relevant experience

D Capacity to acquire, within a reasonable time, the ability to do a job."

In paragraph 4.1.5 it is stated that the Municipality "is determined to fill vacant

 position(s) with the best qualified and best suited candidates."

That first respondent in appointing the Municipal Manager was obliged to follow the recruitment policy is not in dispute. It is also common cause that the provisions of s 67 of the Local Government: Municipal Systems Act are of application. Section 67 provides as follows:

"67(1) A municipality, in accordance with applicable law and subject to any applicable collective agreement, must develop and adopt appropriate systems and procedures to ensure fair, efficient, effective and transparent personnel administration, including -

(a) the recruitment, selection and appointment of persons as staff members."

Section 195 of the Constitution is also relevant, providing as it does that public administration at all levels of government be governed by the democratic values and principles that efficient, economic and effective use of resources must be promoted (s 195(1)(b)) and that good human resource management and career development practices, to maximise human potential, must be cultivated (s 195(1)(h)).

Applicant contends that arising out of the aforesaid recruitment policy as well as the provisions of s 67 of the Local Government: Municipal Systems Act first respondent was obliged to select as Municipal Manager the best qualified and best suited candidate. With reference also to the provisions of s 6 of the Promotion of Administrative Justice Act no 3 of 2000 (PAJA) he contends that the decision to appoint second respondent and not himself was, inter alia, irrational, unreasonable and unjustifiable. A second contention contained in a supplementary affidavit was that the decision also fell foul of the provisions of s 6(2)(e)(iv) of PAJA because of the unauthorised or unwarranted dictates of another person or body. Applicant further contends that the resolution passed by first respondent's council whereby second respondent was appointed was invalid and unlawful in that, in contravention of the applicable legislation, no vote had been taken prior thereto.

Section 6 (2)(h) of PAJA provides that, if a decision "is so unreasonable that no reasonable person could have exercised the power" it will be reviewable. In this regard O'Regan J has stated that the section requires a simple test namely, that an administrative decision will be reviewable if it is one that a reasonable decision-maker could not reach. See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 44. In para 45 the leaned Judge states as follows:

"What will constitute a reasonable decision will depend on the circumstances of each case, much as what will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to determining whether a decision is reasonable or not will include the nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected. Although the review functions of the Court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The Court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness as required by the Constitution."

In paragraph 46 the learned Judge states further that the need for Courts to treat decision-makers with appropriate deference or respect "flows not from judicial courtesy or etiquette but from the fundamental constitutional principle of the separation of powers itself."

In paragraph 48 the learned Judge continues as follows:

"In treating the decision of administrative agencies with the appropriate respect, the Court is recognising the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker."

The learned Judge concludes that a Court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker.

In developing his argument Mr. Quinn stressed in particular that a choice between two possible candidates was not a matter which could be resolved by the application of a scientific or mathematical formula but was rather a decision incorporating "a large dose of subjectivity" especially inasmuch as it involved the weighing up of issues and considerations which are not ordinarily capable of precise definition or quantification and also entailed an assessment of competing personalities and perceived attributes and potential. Counsel submitted further that (in the context of a promotion dispute per se) in order for an applicant to establish unfairness, he was required to show more than that he was qualified for appointment. It had also to be shown, so it was submitted, that the decision to appoint someone else was unfair in the sense that the employer's action was either frivolous or arbitrary. In this regard reference was made to Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1653 (LC) at 1655 - 1656 where the following was stated:

"It can never suffice ... for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as University degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. This will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise."

I bear these authorities and considerations in mind.

Before turning to the facts of the matter it is necessary to deal with a submission by Mr. Quinn to the effect that the application should be dismissed on the grounds of applicant's alleged unreasonable delay in launching this application. It is common cause that applicant was informed in writing on 23 June 2008 that his application had been unsuccessful. Applicant's application was served on first respondent on 2 July 2008. Mr. Quinn submitted that it was reasonable for applicant to have assumed that second respondent would be appointed at or about the same time that he had learned that his application was unsuccessful but that, notwithstanding this, he had not proceeded on the basis of urgency. It was submitted that he should have launched proceedings, inter alia, to interdict the appointment of second respondent as Municipal Manager. He, however, failed to do so and elected instead to institute the present application on the basis of a time table that was inappropriate. All of this, submitted Mr. Quinn, occasioned severe prejudice to first respondent who has employed second respondent and concluded a fixed term contract.

I am satisfied, however that applicant acted with the utmost expedition in launching these proceedings. Furthermore, the Executive Mayor was well aware of the fact that applicant was dissatisfied with the selection process and, indeed, on 24 June 2008 advised second respondent accordingly. In the circumstances first respondent proceeded to appoint second respondent at its own peril. In my view there is no merit in this submission. 

Both applicant and second respondent are men of considerable academic and practical experience. Applicant, who obtained his National Senior Certificate in 1983, further obtained a Secondary Teachers Diploma in 1987; a Bachelor of Arts degree from the University of Transkei in 1990; a Certificate in Public Management and Development from the University of Fort Hare in 1997 and a further Certificate of Executive Leadership in Public and Development Management from the University of Fort Hare in 1999. He is presently finalising his Master's degree in Public Administration at the University of Pretoria. 

His work experience is extensive. He was employed as a junior lecturer at the University of Transkei from 1990 to 1991; a lecturer at Bensonvale College of Education from 1991 to 1994 and was co-chairperson of the Drakensberg Regional Services Council in 1995. His further work experiences are as follows: Regional Director at the Department of Local Government and Housing, Eastern Cape from 1995 to 2000; Chairperson of the Township Board, Eastern Cape from 1996 to 2001; Member of the Eastern Cape Development Tribunal from 1998 to 2002; Executive Committee Member of the National Municipal Demarcation Board from 1999 to 2004; Director (Provincial) for Local Government and Traditional Affairs from 2000 to 2002; Municipal Manager of the Amathole District Municipality, Eastern Cape from 2002 to 2004 and, finally, Chairperson of the Municipal Demarcation Board from 2004 to date.

As appears from what is set out above he was previously Municipal Manager of the first respondent from 2002 to 2004. He resigned as Municipal Manager upon being requested by the President to become chairperson of the Municipal Demarcation Board in Pretoria, a position he has held from 2004. He states that he has vast experience and qualifications in local government management.

It appears from the curriculum vitae of second respondent that he holds the following tertiary qualifications: An Advanced Certificate in Housing Development from the University of Natal; a B Juris and an LLB from the University of Transkei and a LLM from Rhodes University. From 1997 to 1999 he was employed as a Co-ordinator at German Technical Corporation (GTZ), a German Government Development Agency. From 1999 to 2002 he was a field worker at PELIP Housing Company, a company formed by the Port Elizabeth Municipality in partnership with the Swedish Government to deliver housing; from 2001 to 2002 he was Assistant Director of the Department of Housing in Pretoria; from 2002 until the present he has been employed by first respondent as Deputy Director of Administration.

Prior to their interviews both the applicant and second respondent were psychometrically assessed on 20 May 2008. It appears from the report of the selection panel that both applicant and second respondent achieved a "good level" in the psychometrical assessment. The reports states as follows:

"The psychometric assessment was used to test various competencies such as Problem solving, Decision making, Communication, Business awareness, Set vision and Strategic thinking and Leadership. On the scale of 0 - 4 where 0 means very low level and 4 means very good level that is required for the position, the average scores of individual candidates as shown in the results are as follows:

 Mlokoti 2.98 Good level

 Zenzile 2.59 Good level."

The following remarks were made concerning applicant:

"Strong in decision-making, communication and leadership. All areas assessed yielded above average scores therefore no areas of development identified."

In respect of second respondent the following remarks are made:

"Strong in communication, decision-making and leadership. All areas assessed yielded above average scores."

Thereafter applicant and second respondent were interviewed by a selection panel consisting of eleven members on 26 May 2008. Their performance during the interview was scored by each of the panel members by way of percentage. It would appear that the results of two of the panellists were not considered as they had apparently not used the score sheets provided. Each panel member was required to list the "best performed candidate and score" as well as the "second best performed candidate and score". The results were given as follows:

I should mention with regard to the reference throughout the selection papers to "Dr. Mlokoti" that applicant is the holder of an honorary doctorate.

After the interviews the panellists were afforded an opportunity to give, in no particular order, the names of three preferred choices of candidates. It was at the conclusion of this exercise that the short-listed candidates other than applicant and second respondent were eliminated. The scores of applicant and second respondent in the interviews were then summarised as follows:

The interviewing panel then undertook an assessment of the relevant strengths and weaknesses of applicant and second respondent. In this regard the following was recorded in respect of applicant:

 "STRENGTHS

He has all the requisite experience and exposure as obtained from past employment including his service with different District Municipalities and in particular the Municipal Demarcation Board.

WEAKNESSES

Some panel members expressed concerns about the applicant's commitment to remain with the institution given his short lived service in the past."

With regard to second respondent the following was recorded:

 "STRENGTHS

He has sound institutional memory on the operations of the institution supplemented by educational qualifications and, being an internal candidate could soon grasp the fundamentals of the position if properly guided and nurtured.

 WEAKNESSES

His lack of managerial experience is evident and this sent discomforting concerns from the majority of the panel members. His abilities and command of local government issues were far outweighed by those of his contender (Dr. Mlokoti)."

The panel thereafter unanimously agreed that the two names be recommended to first respondent's council.

According to the documents contained in the record filed by first respondent in terms of Rule of Court 53, a special meeting was held by the first respondent's council on 17 June 2008, at which, inter alia, the appointment of the Municipal Manager was discussed. It transpires, however, that even before that date wheels were turning within wheels because, included in the record is an opinion dated 3 June 2008 from an attorney and labour law practitioner Mr. Wesley Pretorius of Wesley Pretorius and Associates, addressed to the Executive Mayor of first respondent with regard to the appointment of the Municipal Manager. 

In the opinion Mr. Pretorius states that the question referred to him was "whether or not the municipality is entitled to appoint Advocate Zenzile, despite the fact that Dr. Mlokoti is the best candidate."

After reference to various authorities; to applicant's Recruitment Policy; to s 67 of the Local Government: Municipal Systems Act and; to the respective strengths and weaknesses of applicant and second respondent, Mr. Pretorius concluded that first respondent would be acting contrary to its legal obligations should it, in the circumstances of the matter, appoint a candidate other than the best candidate.

The Executive Mayor was clearly not satisfied thereby because, as appears from the record, Senior Counsel, Mr. Buchanan SC, was instructed by Mr. Pretorius to furnish first respondent with his opinion as a matter of urgency. Mr. Buchanan duly furnished his opinion on 5 June 2008. He agreed fully therein with the opinion of Mr. Pretorius and concluded that absent any objectively justifiable basis to reject the best candidate the first respondent was obliged to give effect to the statutory and constitutional framework binding upon it and to appoint the best candidate.

Be that as it may the council of first respondent duly held its special meeting on 17 June 2008. The Minutes of that meeting reflect that the African National Congress councillors supported the appointment of second respondent on the grounds that "he was still young and knew the institution well and it was believed that he would take the institution to greater heights with his level of education and expertise."

For their part the Democratic Party and Pan Africanist Congress councillors supported the appointment of applicant who "they believed scored higher in terms of performance overall" and in terms of experience.

It was resolved that second respondent be appointed. Whether or not this resolution was passed consequent upon a vote having been taken is a matter to which I will return hereunder. 

With regard to this council meeting, the first respondent's Executive Mayor Mr. Somyo states that he was present and presided thereat. He then continues as follows:

"The council meeting was, as is customary, preceded by a meeting of the ANC caucus during which the panel's recommendations were discussed and evaluated. The caucus considered, and this was carried forward into the council meeting, that should the second respondent be appointed such appointment would facilitate a smooth transition since the second respondent was then, and had been the deputy director: administration of the first respondent, for some seven years. Another factor was that the second respondent was not considered to lack managerial skills and in short, he was a known entity, who in the past had worked well with the executive authority of the first respondent." 

Noteworthy from this exposition is that the caucus appears to have paid no regard to applicant's skills and the fact that he too was a "known entity" having in the past been first respondent's Municipal Manager.

Mr Somyo then states:

"Ultimately I cannot account for that which motivated individual councillors of the first respondent's council to decide in favour of employing second respondent."

That this statement was disingenuous in the extreme will be become apparent hereunder. Thereafter, on 19 June 2008, first respondent's council received a letter written by the Executive Director of the Border-Kei Chamber of Business, Mr. Holbrook, who, was also a member of the selection panel which had earlier interviewed applicant and second respondent. In this letter Mr. Holbrook states inter alia as follows:

"When the Municipality approached the Chamber and requested our assistance with the appointment of the Municipal Manager, this writer responded by indicating that the Chamber would be delighted to do so. In fact, we expressed ourselves as being honoured to being asked to assist with this very important position. The writer further indicated that because of past experiences of our participation in other similar circumstances with other Government related positions (not ADM) being nothing more than a futile exercise (sometimes of rubber stamping) we would in this instance expect total involvement. The point we made was as follows: In accepting your request we wish to emphasise our commitment to the process by confirming that we will only participate on the following conditions:

That a candidate has not already been identified and that the process is merely a rubber stamping exercise; that our involvement albeit as part of the process is deemed to be important and that our input is not ignored or undermined; that transparency will prevail. The decision of Council therefore to completely ignore the process and the findings of not only the writer but the panel is nothing short of disrespect and lacks any form of good corporate governance and responsibility. By proposing that the position be awarded to a candidate whom in the stated opinion of the writer was NOT appointable is gravely concerning. For the record, the recommendation of the writer - given at the interview meeting was Mr. Vuyo Mlokoti was the best candidate. None of the other candidates met the requirements of the position as advertised. Accordingly the Chamber records its dissatisfaction should Council to proceed to appoint any other candidate other than Mr. Mlokoti." (sic)

Meanwhile, on 18 June 2008, applicant became aware that his application had been unsuccessful and that second respondent had been appointed. Accordingly on that date a letter was addressed by applicant's attorney to first respondent inter alia requesting reasons as to why second respondent had been preferred in preference to applicant. No response was ever received to this letter. 

Thereafter on 23 June 2008 applicant received a letter from the Executive Mayor informing him that his application for the position had been unsuccessful. These proceedings were then instituted on 28 June 2008. 

At some time in September, after first respondent's answering affidavits had already been filed, applicant came into possession of a letter written by the Executive Mayor on first respondent's official letterhead addressed to "The Chairperson, African National Congress, Eastern Cape Province, 48 Alexander Road, King William's Town" and dated 23 June 2008. This letter was duly filed on 15 October 2008 as annexure VM23 to applicant's replying affidavit. Because of the somewhat startling nature of this letter it is necessary to set it out in full. The letter reads as follows:

 "Re: Appointment of Municipal Manager

 1. The above matter refers

2. As you are aware the Municipality recently engaged in the selection of a new Municipal Manager.

3. The purpose of this memorandum is to brief you on the developments and to seek your guidance regarding the further conduct of the matter.

4. The selection panel included a representative from the Department of Provincial and Local Government, Mr. E. Afrika, and the Executive Director of the Border-Kei Chamber of Commerce, Mr. Les Holbrook.

5. In short, and after a comprehensive selection process, two candidates were short listed for appointment, namely Dr. V. Mlokoti and Adv. M. Zenzile.

6. Dr. Mlokoti was consistently rated as the better candidate by the selection committee. In respect of Adv. Zenzile the committee found that his ‘abilities and command of local Government issues were by far outweighed by those of' Dr. Mlokoti.

7. In view of the early indications that the matter might become controversial, the Municipality proceeded to obtain a legal opinion from a firm of attorneys and a further opinion from a senior Advocate. Both opinions advise the Municipality that, in the absence of any objectively justifiable basis for rejecting a candidate who has fared the best in the selection process, the Municipality is obliged to appoint such candidate and that the Municipality would otherwise leave itself open to attack in an application before the High Court.

8. The above matter was discussed within the ANC caucus in ADM in presence of the Regional Secretary and the legal opinions were disclosed. After considerable debate the caucus decided to withhold the opinions from council although they were primarily obtained to advise the council. The REC's instruction, to appoint Adv. Zenzile was then accepted by caucus.

9. Council took a decision to appoint Adv. Zenzile with the PAC and DA registering their dissent.

10. It is my view that the caucus was not entitled to withhold the legal opinions, or even the fact that legal opinions were obtained, from the council.

11. I am further of the view that the ANC erred by not resolving to appoint Dr. Mlokoti as he was clearly the most suitable candidate as the purpose of the recruitment process was to find to most suitable candidate. In this case there has been no compelling professional and/or political considerations advanced for avoiding to appoint the suitable candidate.

12. Dr. Mlokoti has, through his attorneys, threatened to take legal action and a challenge in this regard seems inevitable. There is a significant risk that a Court may ultimately agree with Dr. Mlokoti and set aside Adv. Zenzile's appointment. All of this will cause serious instability in the organisation.

13. There is also a real risk that the matter will receive adverse coverage in the media. In this regard I have already received a complaint from Mr. Holbrook, a member of the selection panel, which I annex.

14. In these circumstances I would urge that you reconsider the matter and advise the writer on the further conduct of the matter. My faith remains with the organisation, the African National Congress."

The letter was signed by Mr. Somyo above the title "Executive Mayor, Amathole District Municipality."

On 24 June 2008 a letter was written by Mr. Somyo to second respondent advising him that he had been appointed to the post of Municipal Manager with effect from 1 August 2008. The Executive Mayor states further in the letter that "it is equally fair for me to indicate to you that one of the candidates who was interviewed for the Municipal Manager's position and was unsuccessful, has intimated his intent to mount a legal challenge of your appointment in the Court."

Surprising as it may seem, no attempt was made by first respondent prior to the hearing of this matter to file any further affidavits in response to the filing by applicant of the letter, annexure VM23. However, when Mr. Smuts S.C., who appeared for applicant, proceeded to address argument to the Court in respect of the letter Mr. Quinn, stating that it had been hoped that applicant would not seek to place reliance upon a private and confidential letter improperly obtained, sought leave to file already prepared affidavits dealing therewith. Despite Mr. Smuts' initial objection thereto I allowed the affidavits to be filed in the interests of the full and thorough ventilation of the issue. I must add, however, that it must have been obvious to first respondent that applicant did indeed intend to rely on the letter and Mr. Smuts' heads of argument make this plain as well. In the circumstances first respondent would in my view have been well advised to have sought leave to file the further affidavits immediately upon receipt of the replying affidavit instead of adopting the unusual approach it did.

The further affidavits filed have been attested to by Ms. Mlondleni, the first respondent's Speaker, Mr. Gantolo, a councillor of first respondent and by the Executive Mayor, Mr. Somyo. Mr. Somyo states therein that the letter (VM23) was a private and confidential communication of a political nature written by him in his personal capacity to obtain guidance and advice from the "relevant structure" of the ANC. According to him he had decided to seek legal opinion on his own initiative without reference to members of the mayoral committee or first respondent's councillors. He reiterated that the facts to which he had deposed in first respondent's answering affidavit were the truth.

First respondent's Speaker, Ms. Mlondleni states that she was present both at the ANC caucus meeting which preceded the council meeting as well as that meeting. She states, inter alia, that Mr. Somyo informed the ANC caucus that he had obtained legal opinions. According to Ms. Mlondleni "one or more legal opinions were in Somyo's possession. Copies were not available and the documents were not circulated." It was pointed out to Mr. Somyo that since the agenda for the special council meeting had been settled and circulated without the opinions having been "copied, circulated and considered by all councillors" no further reference could be made to them.

According to Ms. Mlondleni she "well recalls" that first respondent's whip had stated that "insofar as the opinions sought to pronounce upon which of the applicants should be appointed to the position of Municipal Manager, they attempted to usurp the powers of the council and in any event the opinions might be wrong since much depended upon the instructions given."

Thereafter the special meeting was convened. At no stage did Mr. Somyo express dissatisfaction or reservations about the decision of the caucus and the resolution of the council to appoint second respondent. In fact, says Ms. Mlondleni, "Somyo voted in favour of the appointment of the second respondent to the post." She accordingly expresses her surprise at the fact that Somyo had expressed the view in the letter VM23 that applicant should have been appointed.

In his affidavit Mr. Gantolo confirmed in particular that Somyo had voted in favour of second respondent's appointment.

In the light of these averments it will be convenient to deal at this stage with applicant's contention that in fact no voting took place at the special meeting and that on this basis alone second respondent's appointment was invalid and irregular. In response to this averment Somyo replied that "applicant appears to be unaware of the standing rules of procedure of the first respondent's council" and that the decision to appoint second respondent was made in accordance with a proper and lawful procedure."

The nature of the arguments addressed to the Court require that the relevant portion of the minutes of the special council meeting on 17 June 2008 be set out in full. They read as follows:

"The meeting was informed that the Report presented by the Executive Mayor contained two names, those of Dr. V. Mlokoti and Advocate M. Zenzile. The meeting was further informed that the report contained in it, the strengths and weaknesses of both candidates. The ANC raised that they were moving for the appointment of Advocate Mr. M. Zenzile and the motivation was that he was still young and knew the institution well and it was believed that he would take the institution to greater heights with his level of education and expertise.

The Democratic Alliance raised that they were for the appointment of Dr. V. Mlokoti who they believed scored higher in terms of performance overall and that he was more experienced than Advocate M. Zenzile.

The Speaker after consulting and reading the ADM Rule of Council reported that considering that there were two different positions on the matter, the matter would have to be taken to a vote.

Arising from a request by the DA to go and caucus for 5 minutes the meeting adjourned for 5 minutes and reconvened thereafter.

The PAC raised the name of Dr. V. Mlokoti that he be appointed as the new ADM Municipal Manager.

It was requested that it be recorded that the Democratic Alliance was alleging that in the whole process Council policies were flouted and that the DA had not specifically pointed where Council policies had been flouted.

The Speaker indicated that there were two (2) positions which had been raised, the name of Adv. Zenzile and that of Dr. Mlokoti and that the matter would have to been taken to a vote.

The Speaker concluded that the ANC supported by the UDM were moving for the appointment of Advocate M. Zenzile to the position of Municipal Manager and the Democratic Alliance and the PAC were to be recorded as having dissented.

That it be noted that Council could not go to vote on the matter as the motion by the DA to vote on the matter was not submitted timeously and was not written down."

The Minutes then reflect that a resolution was passed appointing second respondent to the post.

Mr. Quinn's submissions in this regard were twofold. Firstly, there had been a vote in compliance with first respondent's standing rules and, secondly, and in any event, the decision to appoint second respondent was an executive decision and not an administrative act susceptible to review by the Court.

It seems to me that on any rational reading of the minutes it is clear that no voting did in fact take place. As appears therefrom the Speaker indicated that there were "two positions" with regard to applicant and second respondent and that "the matter would have to been (sic) taken to a vote." Almost immediately thereafter it is noted that "Council could not go to vote on the matter as the motion by the DA to vote on the matter was not submitted timeously and was not written down." 

Undaunted, Mr. Quinn submitted that there had indeed been a vote. Voting, he submitted, if I understood him correctly, was merely a mechanism to determine the majority view of Council and did not necessarily entail a show of hands or a ballot in circumstances where the views of the majority of the councillors present were abundantly clear. In such circumstances the procedure prescribed by rule 75 of the standing rules of first respondent came into play.

Rule 75 reads as follows:

"(1) When the Speaker puts the question, any Councillor may, instead of demanding a vote, request the Speaker to formally record the opposition of the Councillor, or the Councillor's party, in the Minutes of Proceedings.

(2) The Speaker may order that a vote take place if 4 or more Councillors wish to record their individual opposition."

As was submitted by Mr. Smuts, however, the proposition that the standing rules may provide for a procedure in conflict with the enabling legislation is somewhat novel.

Section 160 (3) of the Constitution provides:

"3(a) A majority of the members of a Municipal Council must be present before a vote may be taken on any matter.

(b) All questions concerning matters mentioned in subsection (2) are determined by a decision taken by a Municipal Council with a supporting vote of a majority of its members.

(c) All other questions before a Municipal Council are decided by a majority of votes cast."

Section 30 of the Local Government: Municipal Structures Act no 117 of 1998 deals with the manner in which decisions must be taken by a Council.

It provides:

"(1) A majority of the councillors must be present at a meeting of the council before a vote may be taken on any matter.

(2) All questions concerning matters mentioned in section 160 (2) of the Constitution are determined by a decision taken by a Municipal Council with a supporting vote of a majority of the councillors.

(3) All other questions before a Municipal Council are decided by a majority of the votes cast, subject to section 34.

(4) If on any question there is an equality of votes, the councillor presiding must exercise a casting vote in addition to that councillor's vote as a councillor."

In Skelenge v Mnquma Local Municipality and six Others unreported case no 520/2002, Transkei Division, Jafta AJP (as he then was) stated as follows at page 5 thereof:

"It is quite clear from the heading of section 30 and the language

employed in it that it lays down the procedure to be followed by a Municipal Council in deciding any matter placed before it, except matters falling within the purview of section 34. The phrases ‘all questions' and ‘all other questions' are couched in wide terms which is indicative of the fact that the procedure laid down must be followed when every matter is placed before a Municipal Council with the exclusion of section 34 matters only, which are specifically exempted by the section itself from the procedure it lays down."

After referring to the provisions of section 160(3) of the Constitution the learned Judge continued as follows:

"Resolutions should always be an accurate reflection of the opinion of the Council on any matter and by necessity they should represent the majority view on a particular matter. In my view there is only one way of determining a majority view and that is by means of voting. During such voting three options would be available to Councillors, namely, voting in favour, voting against or abstaining. Therefore the contention by Mr. Tshiki to the effect that the majority of first respondent's councillors supported the motion for removing the applicant from office because only one councillor opposed it, cannot be correct. Without putting the motion to voting, the chairman could not determine the level of support thereto and consequently it cannot be said that the council has resolved to remove the applicant from office in terms of section 58 of Act 117 of 1998. By parity of reasoning, the same considerations would apply to the resolution in terms of which the fourth respondent was appointed."

Skelenge's case was followed by Schoeman J in Ncayiyana and 28 Others v The Municipal Manager: Mbizana Local Municipality and four Others unreported case no 1678/07, Transkei Division. In that matter it was common cause that there was no voting and no request to vote by the chairman or any of the applicants at the council meeting. There were before council only three motions that were proposed to appoint the third to fifth respondents as managers. These motions were seconded whereafter it was resolved that the said respondents be appointed in the various positions. The learned Judge set the appointments aside.

In her judgment refusing an application for leave to appeal Schoeman J dealt in extenso with the relevant authorities, including Everett v Griffith [1924] 1 KP 941; Myburgh v Danielskuil Munisipaliteit 1985 (3) SA 335 (NC); and Minister of Agriculture and Another v Peyper 1964 (1) SA 206 (T). It is clear from these authorities that some form of voting is required in order for a valid decision to be taken. The matter of S v Adrus 1987 (1) SA 772 (T) is clearly distinguishable. In that matter the respondent had been present when an unanimous decision had been reached. It was argued on behalf of the respondent that an unanimous vote did not entail voting. The Court held that the magistrate's conclusion, that unanimous decisions taken at the meetings could not be said to be equivalent to voting, would lead to absurdity. Although voting did not actually physically take place, as the resolutions were carried unanimously, it logically had to follow from the fact that there were no abstentions or votes against the resolutions, that upon a unanimous decision everybody had voted in favour, and that a voting had thus taken place. See too: Lewin: The Law, Procedure and Conduct of Meetings (5^th Ed) at 103 where the learned author states:

"In the discussion of an ordinary item of business in which no formal motion is made, but on which a conclusion is reached that appears to be generally acceptable, the chairman may simply ask if there is any objection, without taking a vote; if there is no objection, the conclusion is recorded as being that of the meeting."

The case of Everett v Griffith supra is also relevant in this regard. At 953 the following was stated:

"A man may give his vote in diverse ways, whether by writing or by hand, or by voice or by conduct, e.g. a nod. The form in which acquiescence is given matters not, if acquiescence is actually indicated."

Measured against these authorities the procedure adopted during first respondent's council meeting of 17 June 2008 falls woefully short of the requirements of the enabling legislation. 

It is clear therefore in my view that in adopting the procedure it did first respondent's council acted unlawfully and in contravention of the enabling legislation. What was said in Fedsure Life Assurance Limited and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) is apposite at para 56:

"a local government may only act within the powers lawfully conferred upon it. There is nothing startling in this proposition - it is a fundamental principle of the rule of law, recognised widely, that the exercise of public power is only legitimate where lawful."

The resolution appointing second respondent was therefore a nullity.

Mr. Quinn, however, had a second string to his bow, namely that the decision of first respondent's council to appoint second respondent as its Municipal Manager was not an administrative act subject to review in terms of either the provisions of PAJA or the common law but was, instead, a political decision taken by first respondent. In this regard he submitted that it was idle to suggest that political considerations would not have come into play given that the post of Municipal Manager clearly had a political dimension. In view of the fact that the Municipal Manger had to oversee political decisions of the council it was imperative that the appointee be a person who could co-operate closely with his political masters. In this regard he referred to the Fedsure case, supra, where at paragraph 41 the following was stated:

"The council is a deliberative legislative body whose members are elected. The legislative decisions taken by them are influenced by political considerations for which they are politically accountable to the electorate. Whilst this legislative framework is subject to review for consistency with the Constitution, the making of by-laws and the imposition of taxes by council in accordance with a prescribed legal framework cannot appropriately be made subject to challenge by ‘every person' affected by them on the grounds contemplated by section 24 (b) ... The deliberation ordinarily takes place in an assembly in public where the members articulate their own views on the subject of the proposed resolutions. Each member is entitled to his or her own reasons for voting for or against any resolution and is entitled to do so on political grounds. It is for the members and not the Courts to judge what is relevant in the circumstances."

Reference was also made to Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the RSA and Others 2000 (2) SA 674 (CC) where it was held that the power of the President to bring legislation into operation was a power derived from the legislation itself and was incidental to the law making process. The decision to bring the legislation into operation required a political judgment and did not constitute administrative action as it was closer to the legislature process than the administrative process. (See paragraph 79)

With regard to the Mkumatela decision, supra, relied on also in this regard by Mr. Smuts, Mr. Quinn submitted that it was distinguishable inasmuch as it involved the review of a decision of a functionary performing administrative functions whereas in the present case the Court was concerned with the decision of an elected and deliberative body whose legislative and executive authority flowed from the Local Government: Municipal Systems Act in terms whereof the task of selecting a Municipal Manager was given to the Council, a political body. In these circumstances, he submitted, the above cited dicta in the Fedsure and Pharmaceutical cases were applicable and it was not for the Court to interfere with the decision. 

In my view, however, the flaw in these submissions is that they fail to distinguish between the task to be performed and the functionary performing such task. See President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) where the following was stated at para 141 with reference to s 33 of the Constitution:

"In s 33 the adjective ‘administrative' not ‘executive' is used to qualify ‘action'. This suggests that the test for determining whether conduct constitutes ‘administrative action' is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute ‘administrative action'. Similarly judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to whether conduct is ‘administrative action' is not on the arm of government to which to relevant actor belongs, but on the nature of the power he or she is exercising."

In any event, first respondent cannot seek, merely by attaching the epithet "political" to its decision, thereby to evade its obligations in terms of the enabling legislation and its own recruitment policy to apply transparent and procedurally and substantively fair recruitment and selection procedures whereby candidates are selected objectively and on merit. The decision, in others words, is not thereby insulated from judicial scrutiny. 

The case of Sebenza Forwarding and Shipping Consultancy (Pty) Ltd v Petroleum Oil and Gas Corporation of SA (Pty) Ltd t/a Petro SA and Another 2006 (2) SA 52 (C) is instructive in this regard. There an argument was raised to the effect that a decision taken by the second respondent, the Minister of Minerals and Energy Affairs, was a "political decision" and not an administrative decision; that it did not concern the exercise of public power; and that it was consequently not reviewable. This argument was rejected by Bozalek J who held, at para 25, that the "fact that a politician may be the channel through which an organ of State is approached for certain relief or action does not, in itself, render a decision to take such action or not a political decision."

Whilst, therefore, the formulation by first respondent of its recruitment policy may constitute executive action, the implementation thereof clearly constitutes administrative action. Seen against the enabling framework of the legislation, including the Constitution it is clear in my view that the power given to a Council to appoint Municipal Managers is a necessary administrative adjunct of its functioning. 

In my view therefore the decision to appoint the second respondent was clearly an administrative act which is susceptible to review. 

Mr. Quinn, however referred further to the provisions of paragraph 8.1 of the recruitment policy which state as follows:

"Any dispute relating to both the interpretation of the provisions of this policy as well as the Municipality's decision on any specific recruitment matter shall be dealt with in accordance with the dispute resolution mechanism provided for in the applicable Labour Relations Legislation."

He submitted that the applicant had failed to make any attempt to resolve the dispute in accordance with the applicable labour relations legislation and that accordingly he had failed in his duty to exhaust his domestic remedies and the application was for this reason premature. 

In my view this submission cannot be sustained. First of all, as I have found, there is in fact no labour relations legislation applicable to the present matter. Secondly, the remedy set out in paragraph 8.1 is not in fact an internal remedy but one requiring the aggrieved person to seek redress in another forum. Thirdly, it does not seem to me that applicant's entitlement, as an external candidate not in the employ of first respondent, to approach the Court for relief in order to set aside an unlawful decision, can be curtailed by a policy document of this nature. Fourthly, s 7(2) of PAJA provides that internal remedies "provided for in any other law" must be exhausted: the recruitment policy is self-evidently not a "law" as envisaged by PAJA.

The decision of first respondent's council therefore falls to be set aside on the basis that no vote was taken and that the resolution to appoint second respondent was therefore unlawful and a nullity. 

That is, however, not the end the matter. Applicant contends further that the decision to appoint second respondent is in any event fatally flawed by reason of the intervention and the involvement of the ANC Regional Secretary and the ANC Regional Executive Committee as appears from the letter (VM23) written by the Executive Mayor. No attempt has been made in the supplementary affidavits to refute such involvement and it must accordingly be accepted that, as set out in VM23, the matter was discussed in the presence of the Regional Secretary and the instruction by the Regional Executive Committee that second respondent be appointed, was accepted. 

Mr. Quinn submitted that there was nothing untoward, improper or sinister regarding the events at the caucus. The caucus was entitled to be informed and advised by whomsoever it wished and it was entitled to prefer a particular candidate over another on the basis of political considerations..

Whatever the merits of this submission may be the fact is that nowhere in first respondent's papers is such a reason for second respondent's appointment in preference to applicant alluded to. The reasons put forward by Somyo on behalf of first respondent were that second respondent's appointment would "facilitate a smooth transition since the second respondent was then, and had been, the Deputy Director: Administration of the first respondent, for some seven years. Another factor was that the second respondent was not considered to lack managerial skills. His past performance in the employ of the first respondent demonstrated this to be so. In short, the second respondent was a known entity, who in the past had worked well with the executive authority of the first respondent."

That the appointment of second respondent was in fact based upon an instruction by the ANC Regional Executive Committee only became apparent when VM23 came to light.

Although according to Somyo he wrote that letter in his personal capacity the probabilities are overwhelmingly to the contrary. It is clear that the letter was addressed to the ANC chairman by Somyo in his official capacity as Executive Mayor. The letter disclosed a number of disturbing features. First among these is the manner in which the legal opinions were dealt with at the caucus. In this regard Somyo states in his supplementary affidavit that he obtained the opinions in his personal capacity. That averment is given the lie by a statement in the letter that "the Municipality proceeded to obtain legal opinions" but is in any event utterly improbable. It is clear from the terms of the letter that Somyo, in his official capacity, was concerned about the implications of the appointment of second respondent for the first respondent, as indeed he should have been.

According to the letter there was "considerable debate" at the caucus concerning the opinions. In these circumstances the averments by Mlondleni and Gantolo as to how the opinions were dealt with by the caucus do not bear scrutiny. 

According to Mlondleni copies of the opinions were not available for distribution and circulation. The implications would appear to be that the caucus was not advised as to the content of the opinions. The deponents to the supplementary affidavits coyly refrain from stating whether or not Somyo divulged to the caucus what the conclusion reached in such opinions was. It is, in my view, utterly improbable that at the very least he would not have disclosed such conclusions, namely that absent any objectively justifiable basis to reject the best candidate, such candidate should be appointed. In this regard the statement by Mlondleni that the opinions "attempted to usurp the powers of council" is devoid of merit and startling in its lack of understanding of the purpose of the opinions.

In my view the probabilities are overwhelming that the caucus was aware of the content of the opinions.

In the circumstances the only plausible reason why the opinions were withheld from the council was because they ran counter to the instruction by the Regional Executive Committee that second respondent be appointed. In deciding to withhold the legal opinions from the full council the caucus acted improperly. The council, in debating the issue of the appointment of the Municipal Manager, was entitled to be placed in possession of all the relevant facts and circumstances pertinent thereto.

Be that as it may, one fact emerges clearly from VM23, a fact which is not in any way refuted, and that is that the Regional Executive Committee of the ANC instructed the caucus to appoint the second respondent and the caucus carried out this instruction. This is not an example of democracy in action as was submitted by Mr. Quinn, certainly not of constitutional democracy. It, rather than the two legal opinions, amounted to an usurpation of the powers of first respondent's council by a political body which, on the papers, does not appear even to have had sight of the documents relevant to the selection process including the findings of the interview panel. In my view, the involvement of the Regional Executive Council of the ANC in the circumstances described in VM23 constituted an unauthorised and unwarranted intervention in the affairs of first respondent's council. It is clear that the councillors of the ANC supinely abdicated to their political party their responsibility to fill the position of the Municipal Manager with the best qualified and best suited candidate on the basis of qualifications, suitability and with due regard to the provisions of the pertinent employment legislation as set out in paragraph 1 of the recruitment policy. This was a responsibility owed to the electorate as a whole and not just to the sectarian interests of their political masters. In Minister of Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA), Scott JA stated as follows at 199 C - E , para 20:

"A functionary in whom a discretionary power is vested must himself exercise that power in the absence of the right to delegate. In Hofmeyr v Minister of Justice and Another 1992 (3) SA 108 (C) at 117 F - G King J formulated the rule thus:

‘It is well established that a discretionary power vested in one official must be exercised by that official (or his lawful delegate) and that, although where appropriate he may consult others and obtain their advice, he must exercise his own discretion and not abdicate it in favour of someone else; he must not, in the words of Baxter Administrative Law (at 443), ‘pass the buck' or act under the dictation of another and, if he does, the decision which flows therefrom is unlawful and a nullity.'

As to the reliance on the advice of another, the functionary would at the least have to be aware of the grounds on which that advice was given. (See Vries v Du Plessis NO 1967 (4) SA 469 (SWA) at 481 f - G)."

In the circumstances it is clear that the councillors comprising the ANC caucus failed to exercise the discretion vested in them at all. That abdication of their discretionary powers must result in the decision to appoint second respondent being declared unlawful and being set aside.

Mr. Quinn submitted that in the event of a finding that the decision to appoint second respondent was unlawful this Court should not substitute its decision for that of the council of first respondent but should remit the matter to first respondent's council for reconsideration by it. He submitted that the facts of this case did not render it an "exceptional case" for the purposes of s 8(1)(c)(ii) of PAJA. In my view, however, the unusual and exceptional circumstances of this matter are such as to persuade me that no useful purpose would be served by remitting it to first respondent. The first respondent has demonstrated a lamentable abdication of its responsibilities by succumbing to a political directive from an external body, regardless of the merits of the matter. It continues, with an equally lamentable lack of insight into its conduct, to contend that it was proper for it to have done so. This Court is in at least as good a position to take the decision as was first respondent's council and in my view, in all the circumstances, it would be appropriate for me to do so.

Compare: Hangklip Environmental Action Group v MEC for Agriculture, Environmental Affairs and Development Planning, Western Cape, and Others 2007 (6) SA 65 (C) at 84G - 85B.

I have set out above all the relevant facts pertaining to the applicant and second respondent. It is clear therefrom that applicant was indeed by far the best candidate. He was consistently rated as such by the selection panel apart from also outscoring second respondent in the psychometric assessment. The only supposed weakness identified in his case was that "some" panel members had expressed concerns about his commitment to remain with first respondent given his "short lived service" in the past. Applicant has convincingly refuted these alleged concerns. It is clear from the averments in his affidavit, which are not denied, that he only left his employment as Municipal Manager of first respondent "upon request of the President to be chairman of the Municipal Demarcation Board in Pretoria." This alleged weakness can therefore be wholly discounted. Even had he resigned for other reasons a refusal to employ him because he might at some time in the future elect to terminate his employment prematurely would not be legitimate. 

Second respondent, on the other hand, has an "evident lack of managerial experience", and this "sent discomforting concerns from the majority of the panel members". It was further recorded that his abilities and command of local government issues were "far outweighed" by those of applicant. According to Somyo second respondent had the ability quickly to grasp the fundamentals of the position "if properly guided and nurtured." Applicant, on the other hand, had already been in the employ of first respondent as Municipal Manager and it is nowhere suggested in first respondent's papers that he had not performed his job satisfactorily. In his case there was no need whatsoever for guidance and nurturing. 

In terms of first respondent's Recruitment Policy, read with the provisions of s 195 of the Constitution and s 67 of the Local Government: Municipal Systems Act a fair and efficient selection process must be followed in order to ensure that all candidates are selected "objectively and on merit." It was correctly pointed out to first respondent in the two legal opinions obtained by it that, absent any objectively justifiable basis to reject the best candidate, the first respondent was obliged to appoint him. Applicant was without doubt the best candidate. There is, quite simply, no objectively justifiable basis on which applicant can be rejected in favour of second respondent. He was and is therefore entitled to be appointed.

I have given consideration to the submission by Mr. Smuts that a punitive costs order was warranted in the circumstances. In my view, however, such an order would not be appropriate.

 In the circumstances the application must succeed. Although in the Notice of Motion an order is sought appointing applicant with effect from 1 July 2008 Mr. Smuts sought instead an amended order that applicant be appointed with effect from 1 August 2008 with his salary to commence on the date on which he assumes duty. In the circumstances the following order will issue:

1. The decision of the first respondent on 17 June 2008 to appoint the second respondent as the Municipal Manager of the first respondent is hereby reviewed and set aside.

2. The decision of the first respondent not to appoint applicant as Municipal Manager of the first respondent is hereby reviewed and set aside.

3. The decision of first respondent is substituted by the following order:

Applicant be and is hereby appointed Municipal Manager of first respondent with effect from 1 August 2008 with his salary to commence on the date on which he assumes his duties with first respondent.

4. First respondent is ordered to pay the costs of this application.

_______________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Date argued: 30 - 31 October 2008
Date delivered: 6 November 2008

Appearing for applicant: Adv. I. Smuts S.C.
Instructing attorney: Wheeldon, Rushmere and Cole (Mr. Brody)

Appearing for respondent: Adv. R. Quinn, S.C. together with Mr. R.Wade
Instructing attorney: McCallum Attorneys (Mr. McCallum)