THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  20424/2014
Reportable

In the matter between:

MULDERSDRIFT SUSTAINABLE DEVELOPMENT FORUM                APPELLANT

and

THE COUNCIL OF MOGALE CITY LOCAL

FIRST RESPONDENT
MUNICIPALITY

THE EXECUTIVE MAYOR NO
SECOND RESPONDENT
DAN METLANA MASHITISHO

THIRD RESPONDENT

Neutral citation:
Muldersdrift Sustainable Development Forum v Mogale City
(20424/14) [2015] ZASCA 118 (11 September 2015)
Coram:
Lewis, Tshiqi, Petse and Willis JJA and Baartman AJA

Heard:
25 August 2015

Delivered:
11 September 2015

Summary:
Applicant for relief must demonstrate legal basis for order sought:
applicant had no legal interest in, and no locus standi, to seek
declaratory order that municipal manager’s appointment to the post
was invalid.

ORDER

On appeal from:  Gauteng Division of the High Court, Pretoria (Hughes J sitting as
the court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Willis JA (Lewis, Tshiqi and Petse JJA and Baartman AJA concurring):
[1] The appellant, an unincorporated voluntary association, sought an order in the
Gauteng Division, Pretoria (Hughes J) declaring that the third respondent, Mr Dan
Metlana Mashitisho had not been duly appointed as municipal manager of the first
respondent (the municipality). The court a quo dismissed the application. The
appellant appeals, with the leave of this court, against the order of the court a quo.

The Background Facts
[2] The second respondent, the executive mayor of the municipality and Mr
Mashitisho concluded a contract appointing him as municipal manager on 2 October
2006. The duration of the appointment was stipulated as being for a fixed term of five
years but pertinently left open the possibility of its renewal and extension. The
contract expired on 30 September 2011. In the meantime, the executive mayor had
recommended to the municipality that Mr Mashitisho’s appointment be extended.

[3] On 9 June 2011 the municipality resolved that various of its powers and
functions, ‘other than those non-delegable ones mentioned hereunder’, be delegated
to the executive mayor. No mention was made of the appointment of the municipal
manager. Purporting to act on behalf of the municipality, the executive mayor
concluded a written agreement with Mr Mashitisho on 11 November 2011 extending
his appointment to 30 September 2016. In this regard, the mayor had been

supported by the municipality’s mayoral committee. The appointment was reported
to the municipal council on 28 February 2012. The municipal council simply noted
the fact. At that meeting, Mr Mashitisho was congratulated on his second
appointment by the council.

[4] In the meantime, on 22 October 2012, the appellant had brought an
application to review and set aside the municipal manager’s decision to establish an
emergency site and service centre on the remainder of portion 10 (a portion of
portion 3) of the farm Honingklip 178 IQ, falling within the municipality’s area of
jurisdiction. After it had brought that application, the appellant became aware that the
municipal manager had been re-appointed and considered that the proper
appointment process had not been followed. The appellant informed the executive
mayor accordingly on 6 December 2012. In February 2013, more than a year after
the municipal manager had been appointed, the appellant launched a separate
application – the one at issue in this appeal – to declare the appointment invalid.

[5] The appellant complains that the renewal of the appointment did not comply
with the Local Government: Municipal Systems Act 32 of 2000 (the LGMS) and, in
particular, sections 54A(1)(a), 54A(3)(b), 54A(4)(a), 57(1)(a) and 57(3)(b). It sought
an order that the appointment was invalid and the contract void. It avers that the
appointment could properly have been made only by the municipal council itself and
not by either the executive mayor or the mayoral committee; that the appointment
had been made without prior advertising nationally for applications to fill the post and
that, moreover, the contract of employment had not been extended in writing before
it had expired. The first application has been held in abeyance pending the decision
in this matter. The underlying reason for the appellant’s application is that the
appellant wishes to contest the establishment of the emergency site and service
centre. The  rationale appears to be that, if the municipal manager was appointed in
a procedurally defective fashion, the appellant might have greater success in
opposing the development.

[6] The municipality resisted the present application on two main grounds: (a)
that the appellant lacks locus standi in iudicio to bring the application and (b) that the

bona fide renewal or extension of the contract is not governed by the provisions of
the LGMS, upon which the appellant has relied.

[7] In its answering affidavit, the municipality has said that Mr Mashitisho ‘served
his five-year term successfully and his performance as Municipal Manager was
beyond criticism’ but has not denied that the appointment was made without
advertising the post nationally and that his service on the extended term began
before the written contract of employment to this effect had been concluded. The
executive mayor of the municipality has said that he extended Mr Mashitisho’s
appointment by virtue of powers delegated to him in terms of a resolution of the
council taken on 14 June 2011. The resolution makes no reference to the
appointment of any persons, including the municipal manager. The minutes of a
meeting of the municipal council held on 28 February 2012 record that the
appointment of Mr Mashitisho as municipal manager had been done in the manner in
which it was so as not to ‘delay service delivery’.

[8] The court a quo dismissed the application on the basis that the proper
procedure, which the appellant had not followed, would have been for the appellant
to have brought a review application in terms of s 33 of the Constitution. This section
relates to the right of every person to fair administrative action. The Promotion of
Administrative Justice Act 3 of 2000 (PAJA) is designed to give effect to this
constitutional requirement.1

The legal basis upon which the appellant seeks to challenge the re-
appointment of the municipal manager
[9] The appellant did not bring its application in terms of s 38 of the Constitution,
which relates to alleged infringements of rights enshrined in the Bill of Rights.
Indeed, the appellant expressly disavowed any such intention. Furthermore, the
appellant did not rely on PAJA and did not seek to review the decision on the
common law grounds relating to legality. The appellant relied simply on the

1 See for example Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others 2004 (4) SA
490 (CC) para 22; (CCT 27/03) [2004] ZACC 15.  See also Giant Concerts CC v Rinaldo Investments
(Pty) Ltd & others 2013 (3) BCLR 251 (CC) para 29; (CCT 25/12) [2012] ZACC 28 and Tulip
Diamonds FZE v Minister for Justice and Constitutional Development & others 2013 (10) BCLR 1180
(CC) para 30; (CCT 93/12) [2013] ZACC 19.

provisions of s 19(1)(a)(iii) of the  Supreme Court Act 59 of 1959, which has been
repealed, and replaced by s 21(1)(c) of the Superior Courts Act 10 of 2013. The
subsection provides that a court has the power:
‘in its discretion and at the instance of any interested person, to enquire into and
determine any existing, future or contingent right or obligation, notwithstanding that
such person cannot claim any relief consequential upon the determination.’
I shall deal with the question whether the appellant is entitled to rely on the
subsection in due course.

[10]  Before making that enquiry, it should be noted, at the outset, that one cannot
snatch a remedy from the air. In a unanimous judgment of this court in Oudekraal
Estates (Pty) Ltd v City of Cape Town & others2 Howie P and Nugent JA, referred
with approval to the following passage in Wade’s Administrative Law:3
‘The truth of the matter is that the Court will invalidate an order only if the right remedy is
sought by the right person in the right proceedings and circumstances. The order may be
hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff’s lack of
standing, because he does not deserve a discretionary remedy, because he has waived his
rights, or for some other legal reason.’4
Although the passage deals with an administrative decision it would apply equally, in
my view, to the right to claim a declaratory order under s 21(1)(c).

The procedural defects in the municipal manager’s re-appointment
[11] Section 54A(1)(a) of the LGMS provides that it is the municipal council itself
that must make the appointment of the municipal manager. The portions of the
LGMS, relating to the appointment of a municipal manager, upon which the appellant
has relied are:
(i)
Section 54A(1)(a), which provides that:

‘The municipal council must appoint –
(a) a municipal manager as head of the administration of the municipal
council; or
... ’

2 Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA); (25/08) [2009]
ZASCA 85.
3 H W R Wade and C F Forsyth Administrative Law 7ed (1994) at 342.
4 Id para 28.

(ii)
Section 54A(3)(b), which provides that:
‘A decision to appoint a person as municipal manager, and any contract
concluded between the municipal council and that person in consequence of
the decision is null and void if  –
(b) the appointment was otherwise made in contravention of this Act.’
(iii)
Section 54A(4)(a), which provides that:

‘If the post of municipal manager becomes vacant, the municipal council

must –

(a) advertise the post nationally to attract a pool of candidates nationwide;

and

. . . ’

(iv)
Section 57(1)(a), which provides that:
‘. . . the municipal manager . . . may be appointed to that position only –
(a) in terms of a written employment contract with the municipality. . .’ and
(v)
Section 57(3)(b), which provides that:
‘The employment contract referred to in subsection (1)(a) must –
(b)  be signed by both parties before the commencement of service.’

[12]   Section 59 of the LGMS, which relates to the delegation of powers within a
municipality, provides that:
‘(1)  A municipal council must develop a system of delegation that will maximise
administrative and operational efficiency and provide for adequate checks and balances,
and, in accordance with that system, may —
(a)
delegate appropriate powers, excluding a power mentioned in section 160 (2)
of the Constitution and the power to set tariffs, to decide to enter into a service
delivery agreement in terms of section 76 (b) and to approve or amend the
municipality’s integrated development plan, to any of the municipality’s other
political structures, political office bearers, councillors, or staff members;
(b)
instruct any such political structure, political office bearer, councillor, or staff
member to perform any of the municipality’s duties; and
(c)
withdraw any delegation or instruction.

(2)  A delegation or instruction in terms of subsection (1) —
(a)
must not conflict with the Constitution, this Act or the Municipal Structures Act;
(b)
must be in writing;
(c)
is subject to any limitations, conditions and directions the municipal council
may impose;
(d)
may include the power to sub-delegate a delegated power;
(e)
does not divest the council of the responsibility concerning the exercise of the
power or the performance of the duty; and
( f )
must be reviewed when a new council is elected or, if it is a district council,
elected and appointed.
(3)  The municipal council—
(a)
in accordance with procedures in its rules and orders, may, or at the request in
writing of at least one quarter of the councillors, must, review any decision
taken by such a political structure, political office bearer, councillor or staff
member in consequence of a delegation or instruction, and either confirm, vary
or revoke the decision subject to any rights that may have accrued to a
person; and
(a) may require its executive committee or executive mayor to review any
decision taken by such a political structure, political office bearer, councillor
or staff member in consequence of a delegation or instruction.

(4)
Any delegation or sub-delegation to a staff member of a power conferred on
a municipal manager must be approved by the municipal council in accordance with the
system of delegation referred to in subsection (1).’

[13] The requirement, in s 54A(1)(a) of the LGMS, that it is the municipal council
which must appoint the municipal manager, read together with s 59(2), that a
delegation must not conflict with the provisions of the LGMS itself, indicate that the
delegation by a municipal council of its obligation to appoint a municipal manager is
not permissible. The re-appointment of the municipal manager was indeed

procedurally defective. I am fortified in this view by reference to Mgoqi v City of Cape
Town & another; City of Cape Town  v Mgoqi & another5 in which Van Zyl J said:
‘From a perusal of the relevant legislation, it would appear that there is no provision in terms
of which the municipal council may delegate to the executive mayor the all-important power
to appoint a municipal manager. It gives rise to the irresistible inference that it was never the
intention of the Legislature to sanction such a delegation.’6
The judge continued:
‘If indeed it had been possible to delegate such power to the executive mayor, it would, as
pointed out by Mr Binns-Ward, lead to an absurd situation. A municipal council wishing to
appoint a municipal manager would be obliged to comply with s 30(5)(c) of the Structures
Act, which requires that the executive mayor submit a report and a recommendation
regarding his appointment and conditions of service. An executive mayor clothed with
delegated power of making such appointment could, however, dispense with such
requirement on the basis that he or she could not be expected to render a report or make a
recommendation to himself or herself. This would amount to the municipal council delegating
greater powers to the executive mayor than it itself possessed.’7
And, later:
‘The city’s second ground of review is an alternative to the first and relates to the city’s
system of delegations. It likewise contains no provision that the council may delegate the
power to appoint a municipal manager to an executive mayor. It is common cause that the
system of delegations contains an exhaustive list of all relevant delegations made by the
council. The appointment of a municipal manager is not one of them.’8

[14] Accordingly, Van Zyl J concluded that the appointment of a municipal
manager could not be delegated by the municipal council. The court’s conclusion
related, inter alia, to the interpretation of another statute, the Local Government:
Municipal Structures Act 117 of 1998, but the principles of interpretation in regard to
the issues before us remain the same.

[15] The renewal of the municipal manager’s contract was thus procedurally
defective. Only the council had the power to conclude such a contract, and its later
ratification was not sufficient, given the wording of s 30(5)(c) of the Municipal

5 Mgoqi v City of Cape Town & another; City of Cape Town  v Mgoqi & another 2006 (4) SA 355 (C).
6 Id para 105.
7 Id para 106.
8 Para 109.

Structures Act which requires the mayor to submit a report and recommendation
before making any appointment. Applying the principles set out in Oudekraal above,
however, the procedural irregularity in the re-appointment of the municipal manager
does not, without more, entitle the appellant to the relief which it has sought.

The interest of the appellant
[16] In each of the cases upon which the appellant has relied, and which dealt with
s 19(1)(a)(iii) of the Supreme Court Act, it was made clear that, in order to succeed
in obtaining a declaratory order, a party must establish a legally recognised interest
in obtaining it.9 In the circumstances of this case, the appellant has established no
such interest. It is also far from clear that, had the municipal council acted correctly
in the manner of the appointment of the municipal manager, it would have made any
material difference to the interests which either the appellant or its members seek to
advance. Recently, in Illovo Opportunities Partnership #61 v Illovo Junction
Properties (Pty) Ltd & others10 this court affirmed that, in order to obtain a
declaratory order in terms of the s 21(1)(c) of the Superior Courts Act, the applicant
must have a ‘direct and substantial interest’ in the order sought.11  The appellant’s
interest cannot be so described.

The discretion of the court to grant a declaratory order
[17] It also needs to be emphasised that there is a two-stage substantive enquiry
leading to the decision whether or not to grant a declaratory order: not only must the
court be satisfied that the applicant has the necessary interest but also that the case

9 See Eye of Africa Developments  (Pty) Ltd v Shear 2012 (2) SA 186 (SCA) paras 30 and 31;
(863/2010) [2011] ZASCA 266; Municipal Manager: Qaukeni Local Municipality & another v FV
General Trading CC 2010 (1) SA 356 (SCA) para 23;(324/2008) [2009] ZASCA 66.  Langa CJ v
Hlophe 2009 (4) SA 382 (SCA) para 28; (697/08) [2009] ZASCA 36. Trinity Asset Management (Pty)
Ltd & others v Investec Bank Ltd & others 2009 (4) SA 89 (SCA) para 16; (574/07) [2008] ZASCA
158. Cordiant Trading CC v Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) paras 15 to
18; (237/2004) [2005] ZASCA 50.
10 Illovo Opportunities Partnership #61 v Illovo Junction Properties (Pty) Ltd & others (490/13) [2014]
ZASCA 119.
11 Id para 14. See also The Public Protector v Mail & Guardian Ltd & others 2011 (4) SA 420 (SCA)
para 29; (422/10) [2011] ZASCA 108 and Cabinet of Transitional Government for Territory of South
West Africa v Eins 1988 (3) SA 369 (A) at 388B-I; (522/86) [1988] ZASCA 32 and the authorities
therein collated.

is a proper one for the exercise of the discretion given to the court.12

[18]  Of course, the ratepayers – and indeed the residents – of a municipality have
an interest in its municipal manager being properly appointed but this does not,
without further ado, qualify it as a ‘necessary’ interest: something more is required.13
In other words, it is not ‘any old’ interest that will suffice: the interest must be one
that, in the eyes of the law, may deserve the intervention by the court on behalf of
the applicant. There are insufficient considerations, appearing from the papers, to
confer upon the appellant the necessary interest for it to derive locus standi. This is
all the more so, given the period of a year between the appointment of the municipal
manager and the challenge to it.

[19] Fraud or gross irregularity in the conduct of a public body may justify an
exception to the more usually circumscribed approach to an applicant’s ‘necessary
interest’ in the matter.14 From the papers in the present case, the flaws in the
appointment of the municipal manager seem to derive from no more than an error on
the part of the municipal council.

[20] The appellant’s difficulties would have persisted, even if it had relied on
section 38 of the Constitution or PAJA. I shall briefly consider these aspects, in turn.

Section 38 of the Constitution

12  See  Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [2006] 1 All SA 103
(SCA) para 16; (237/2004) [2005] ZASCA 50. Shoba v Officer Commanding, Temporary Police
Camp, Wagendrift Dam, Maphanga v Officer Commanding, South African Police Murder & Robbery
Unit & others  1995 (4) SA 1 (A) at 14F; (500/93,525/93) [1995] ZASCA 49.  Ex Parte Nell 1963 (1)
SA 754 (A) at 759H-760B; [1963] 2 ALL SA 55 (A) and  Durban City Council v Association of Building
Societies 1942 AD 27 at 32
13 See, for example, Kruger v President of Republic of South Africa & others 2009 (1) SA 417 (CC)
para 26. In this court it has been said that, in general, in order to have locus standi, the interest must
be direct and substantial. See for example Gross & others v Pentz 1996 (4) SA 617 (A) at 632C-G;
(414/95) [1996] ZASCA 78 and Sandton Civic Precinct (Pty) Ltd v City of Johannesburg & another
2009 (1) SA 317 (SCA) para 19; (458/2007) [2008] ZASCA 104. See also Tulip Diamonds FZE v
Minister for Justice and Constitutional Development & others 2013 (10) BCLR 1180 (CC) paras 31
and 40; CCT 93/12) [2013] ZACC19.
14 Giant Concerts CC v Rinaldo Investments (Pty) Ltd (supra) paras 34 and 38 and Tulip Diamonds
FZE v Minister for Justice and Constitutional Development & others 2013 (supra) para 45.

[21] If the appellant were to have relied on s 38 of the Constitution in bringing its
application, it would have encountered hurdles affecting its locus standi or standing
to do so. The bar which has to be straddled is not formidably high. In Freedom Under
Law v Acting Chairperson:  Judicial Service Commission & others15 this court
affirmed that a broad, rather than a narrow approach, should be adopted in regard to
standing.16

[22] In Tulip Diamonds FZE v Minister for Justice and Constitutional Development
& others17 it was made clear that the overriding consideration for a court not only in
deciding whether to hear an application in terms of s 38 of the Constitution but also
whether to grant relief, is ‘the interests of justice’.18 In broad terms, there are two
types of locus standi that derive from s 38: ‘own interest’ and ‘public interest’, the
latter of which are brought by way of what are generally known as ‘class
applications’.  Tulip Diamonds dealt with an ‘own interest’ application. This appeal is
brought by an association acting in the interest of its members. Nevertheless, for the
reasons set out above, even if the appellant had relied on s 38, the interests of
justice would not have required that the court should come to its assistance: not only
is its interest insufficient but the circumstances of the case do not call for the
exercise of a discretion in its favour.

PAJA
[23] Counsel for the appellant contended that PAJA was irrelevant to the issue in
question. Even if the appellant had relied on PAJA, the following aspect would be
relevant: acting on the assumption that the appointment of the municipal manager
would have constituted ‘administrative action’ in terms of s 1 of PAJA, the appellant
would, in any event, have been way out of time in terms of the 180-day time limit
provided for in s 7(1) of PAJA.  In the circumstances of this case, the importance of
finality would, almost certainly, have overridden other considerations, even if the

15 Freedom Under Law v Acting Chairperson:  Judicial Service Commission & others 2011 (3) SA 549
(SCA); [2011] ZASCA 59; 52/2011 (31 March 2011).
16 Id paras 19 and 20.
17 Tulip Diamonds FZE v Minister for Justice and Constitutional Development & others 2013 (10)
BCLR 1180 (CC); CCT 93/12) [2013] ZACC19.
18 Id para 30. See also Freedom Under Law v Acting Chairperson:  Judicial Service Commission &
others (supra) paras 19 and 20.

appellant had otherwise been eligible to have an extension of the 180-day time bar

considered in terms of s 9 of PAJA.19

Conclusion
[24] Other than the procedural issues relating to the appointment of the municipal
manager, the appellant has not been able to demonstrate to this court what right it
seeks to protect, or what interest it has in setting aside the appointment of the
municipal manager. The only reason for the application appears to have been to
bolster the appellant’s case in the other application. It has advanced no reason to
impugn the conduct of the municipal manager or the municipality in that application.
The prejudice to the municipality and its ratepayers and residents in setting aside the
appointment at this stage would outweigh any possible advantage, including
protecting the integrity of the process of appointment of municipal managers. It
would undermine the interests of justice to declare that appointment invalid: certainty
in decision-making would not be achieved.

[25] The high court came to the correct decision in dismissing the application. The
appeal cannot succeed.

[26] The following order is made:
The appeal is dismissed with costs.

_________________________
N P WILLIS
JUDGE OF APPEAL

19 See for example Gqwetha v Transkei Development Corporation Ltd & others 2006 (2) SA 603
(SCA) para 21; (268/03) [2004] ZASCA 78.  Associated Institutions Pension Fund & others v Van Zyl
& others 2005 (2) SA 302 (SCA) para 46; (242/2004) [2005] ZASCA 51. Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41E-F; (CCT 12/07) [2007] ZACC 24. See
also Van Wyk v Unitas Hospital & another (Open Democratic Advice Centre as Amicus Curiae) 2008
(2) SA 472 (CC) para 20 and the authorities therein cited and Camps Bay Ratepayers’ and Residents’
Association & another v Harrison & another [2010] 2 All SA 519 (SCA) paras 53 to 56; (560/08) [2010]
ZASCA 3.

APPEARANCES:

For the Appellant:
JHL Scheepers
Instructed by:
Henk Venter, c/o Bares & Basson, Pretoria
c/o Symington & De Kok, Bloemfontein

For the Respondent:
WR Mokhari SC
Instructed by:
Twala Atorneys, c/o Matsego Ramagaga Attorneys,
Pretoria
c/o Webbers, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

11 September 2015

STATUS

Immediate

Muldersdrift Sustainable Development Forum v Mogale City (20424/14) [2015]
ZASCA 118  (11 September 2015)

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the Muldersdrift
Sustainable Development Forum, a residents’ association against Mogale City, a
municipality.

The appellant had sought an order declaring that Mogale City’s municipal manager,
whose contract had been renewed in 2012 for a further five-year term, had not been
duly re-appointed and that his appointment was therefore invalid. The rationale
appeared to be that the appellant wished to contest, in a separate application, the
municipal manager’s decision to establish an emergency site and service centre.

The Muldersdrift Sustainable Development Forum had founded its application on the
provisions of the Local Government: Municipal Systems Act 32 of 2000, which

required that it should be the municipal council and not the executive mayor that
made the appointment of the municipal manager and also that the post should be
advertised nationally and be made in writing.

The appellant had not relied on either s 38 of the Constitution or the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). The application had been brought way
out of time in terms of the 180- day time period stipulated in PAJA.

The SCA found that the extension of the municipal manager’s contract had indeed
been procedurally defective but this appears to have been the result of no more than
an error. Accordingly, in the circumstances of the particular case, the appellant did
not have a legally recognised interest in obtaining the order sought and therefore
had no locus standi or legal standing to bring the application.

The SCA also found that even if the appellant had brought the application in terms of
s 38 of the Constitution or the Promotion of Administrative Justice Act 3 of 2000
(PAJA), or some other legal basis, it would have undermined the interests of justice
to declare the appointment invalid in circumstances where certainty was required.

The SCA found that the high court had correctly dismissed the application.