Automated Summary
Key Facts
Thulo Majoe (Applicant) was appointed as Acting Director Community Services by Nala Local Municipality (Respondent) on 27 May 2021. His acting appointment was terminated on 7 October 2022 via a council resolution. Majoe sought judicial review to set aside the termination and claim acting allowance, but the court dismissed his application for non-compliance with PAJA's 180-day time limit for judicial review. The respondent's conditional counter-application was also not adjudicated, with no cost order. The court emphasized the importance of timely review under PAJA and the invalidity of late applications, noting the position was later filled by another acting appointee.
Issues
- The applicant claimed his 15-month acting appointment (2021-2022) was lawful as s56 of the Systems Act had been declared unconstitutional in 2017. The respondent countered that the unconstitutional declaration didn't apply retroactively, requiring MEC involvement for extensions beyond three months.
- The court examined the legality of the termination of the applicant's acting appointment, focusing on non-compliance with the Promotion of Administrative Justice Act (PAJA) section 7 (180-day time limit for judicial review) and the Local Government: Municipal Systems Management Act's requirements for acting manager appointments, including the three-month term limit and MEC involvement for extensions.
- A key issue was determining if the municipal council's resolution to terminate the applicant's acting appointment qualified as an administrative action under PAJA, requiring judicial review without unreasonable delay. The court analyzed the seven criteria from Motau v Minister of Defence to conclude the resolution had legal effect and was subject to PAJA.
Holdings
- The applicant failed to comply with PAJA's 180-day time limit for judicial review.
- No cost order for the conditional counter-application.
- The main application is dismissed with costs, taxed on scale B.
Remedies
- The main application is dismissed with costs, such costs to be taxed on scale B.
- There shall be no cost order in relation to the conditional counter-application.
Legal Principles
- The court upheld the principle that administrative actions by public bodies must be lawful and subject to judicial review, ensuring adherence to statutory frameworks such as the Local Government: Municipal Systems Management Act. The validity of the council's resolution was assessed against these legal standards.
- The court applied the principles of judicial review under the Promotion of Administrative Justice Act (PAJA), emphasizing that proceedings must be instituted without unreasonable delay and within 180 days of the decision. The termination of the applicant's acting appointment was deemed an administrative action, requiring compliance with PAJA's procedural requirements.
Precedent Name
- Melato v Masilonyane Local Municipality
- Mlokoti v Amathole District Municipality and Another
- Penxa v Central Karoo District and Others
- Nguele v King Sabata Dalindyebo Municipality and Others
- South African Municipal Workers Union v Minister of Co-operative Governance and Traditional Affairs
- MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
- Nkandla Local Municipality and Others v MEC for the Department of Co-operative Governance and Traditional Affairs
- Minister of Defence and Military Veterans v Motau and Others
Cited Statute
- Basic Conditions of Employment Act 75 of 1997
- Promotion of Administrative Justice Act 3 of 2000
- Local Government: Municipal Systems Act 3 of 2022
- Local Government: Municipal Systems Management Act 32 of 2000
Judge Name
Reinders
Passage Text
- In my view I cannot declare a resolution unlawful, invalid or set it aside without reviewing it. Such a review must comply with the prescripts of PAJA. ... In casu eight months has lapsed since the applicant received his termination letter, and the eventual institution of these proceedings. The applicant is silent on an explanation of whatsoever nature for the late institution or even why such a lapse of time is reasonable under the circumstances, and the court is not requested to condone such.
- In view of my finding in paragraphs [20] and [21] that the applicant failed to comply with the prescripts of PAJA, the application cannot succeed which makes it unnecessary to decide any of the further disputes between the parties. The main application cannot succeed.
- It would again be impermissible of the court to come to the assistance of the Applicant who had not brought an application for judicial review of administrative action within the timeframes as prescribed in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000. Consequently, the invalid resolution has for all instances and purposes is to be regarded as valid together with all the consequences flowing from it...