As the attorney acting on behalf of the Muldersdrift Sustainable Development Forum (MSDF) I regard it as most important that the public and more specifically, the taxpayers of Mogale City Local Municipality (MCLM) be informed that the Supreme Court of Appeal found that the Mayor’s appointment of the municipal manager was defective procedurally and thus unlawful.
This matter started in 2012 when the MSDF applied for the review of a notice by the municipal manager of the intention of MCLM to use Plot 3/11 Honingklip, Muldersdrift for the purpose of emergency housing.
During the preparation process for the review application it was discovered that the mayor had appointed the municipal manager for a second term, not the municipal council as prescribed by the Municipal Systems Act. The MSDF then applied to the High Court of Pretoria for an order to declare the appointment of the municipal manager unlawful.
If successful this would have invalidated the notice issued by MCLM and the opposing statements made by the municipal manager in his capacity as municipal manager would have been rejected by the court. However, the High Court in Pretoria found that the appointment of the municipal manager was lawful and the MSDF then appealed to the Supreme Court of Appeal (SCA). The SCA found that power to appoint a municipal manager cannot be delegated to the Mayor and as stated above, and that his renewal of the contract of the municipal manager was unlawful.
The appointment of the municipal manager by the mayor also was reported in this newspaper in 2012. It appears from the minutes of a meeting of the council of 28 February 2012 that the mayor informed the City Council that he had extended the term of the municipal manager for a further five years. Mr Dennis Pretorius of the DA objected and pointed out to the mayor that he did not have the authority to appoint the municipal manager and that only the City Council could make such an appointment. The mayor disagreed and said the issue should be resolved by the court. The mayor also objected that the matter was reported to this newspaper by Mr Pretorius. At that stage the matter also was reported to the office of the MEC for Local Government, who did nothing.
Unfortunately the SCA dismissed the appeal and found that the MSDF did not prove enough interest in the matter. The Court reasoned that the interests of the ratepayers and residents would outweigh any possible advantage for MSDF because, if the declaratory order was granted it would have had the effect that any decisions made by him after 30 September 2011 in the capacity of Municipal Manager would be invalid. It is however very disappointing to see that the mayor is allowed to ignore the law and get away with it. It is just as disappointing to note that the opposition parties in the council had done nothing about this since the judgement in September.
The decision of the SCA sets an important precedent for other courts regarding the appointment of municipal managers and the court ruled that the judgement be reported.
