The judge found the removal of the CFO was, based on the facts before the court, actuated by malice, sinister motives, and desire to perpetuate illegality.
The Mpumalanga High Court has declared the termination of Mbombela’s Chief Financial Officer unlawful after finding that provincial officials abused their power to orchestrate her removal.
Acting Judge MI Mangena ruled that the MEC for Cooperative Governance had no legal authority to force the municipality to rescind her appointment.
Delight Ntombifuthi Sibanyoni was appointed as CFO on a five-year contract starting 1 February 2023. Her contract was set to run until 31 January 2028.
The Municipal Council terminated her employment on 30 April 2025 following pressure from the provincial government.
Mangena described the removal as being driven by unlawful interference.
“Those with power instigated the termination of her appointment, and the Municipal Council of the City of Mbombela succumbed to the pressure,” the judge stated in the judgment delivered on 2 October 2025.
Sibanyoni applied for the CFO position while acting in the role.
She went through all recruitment processes before the Council confirmed her appointment on 31 January 2023.
The municipality notified the then MEC for local government, Mandla Msibi, of the appointment within the prescribed 14-day limit as required by section 56(5) of the Local Government Municipal Systems Act.
Sibanyoni had already assumed her position by this point.
MEC intervention and allegations
The court heard that on 12 April 2023, Msibi wrote to the mayor stating that Cogta had received allegations of misrepresentation on Sibanyoni’s CV.
He requested that the investigation be completed by 18 April 2023, giving the municipality only five days.
The mayor conducted the investigation and submitted a report dated 12 May 2023.
“On 12 July 2023, Msibi, having received the report from the Executive Mayor, notified the municipality that he does not concur with the appointment of Sibanyoni (the applicant) as the CFO of the City of Mbombela Local Municipality based on misrepresentation.”
He directed the council to rescind its decision within 30 days.
The Speaker of the Council refused to comply. According to him, the MEC had 14 days to indicate any legal contraventions in the appointment.
When Msibi failed to raise issues within that timeframe, the council proceeded with the appointment. The speaker maintained that the MEC was free to approach the court for relief.
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Legal proceedings and personal allegations
Msibi then instituted legal proceedings seeking condonation for any delay and a declaration that Sibanyoni’s appointment was null and void.
He also sought an alternative order directing the speaker to convene a special council meeting to consider the validity of the appointment.
In her opposing affidavit, Sibanyoni comprehensively dealt with allegations about her suitability for the post.
She implied that Msibi interfered inappropriately in the tender process because of alleged financial interests.
However, she also noted that he had agreed to her appointment, as he was involved in the recruitment process throughout.
Sibanyoni further alleged that Msibi was motivated by malice stemming from a personal relationship.
“She says Msibi was actuated by malice and vindictiveness due to their love relationship that started in 2016 when he was the Speaker of the Council of the Municipality of Mbombela and ended in 2018.
“Msibi is accordingly using his official power to settle personal scores and is determined to derail her career progress whenever he can,” she claimed in court papers.
Withdrawal and renewed pressure
Msibi was removed from the Cooperative Governance portfolio and succeeded by Speedy Katisho Mashilo.
Almost a year after Msibi instituted proceedings, Mashilo withdrew the application through his lawyers on 29 October 2024.
Mangena noted that this should have ended the matter.
“Ordinarily, this would have been the end of the ordeal for the applicant, but not in the Mbombela Municipality, which has become a feeding trough for avaricious politicians and business people alike,” he wrote.
The withdrawal proved temporary. On 4 April 2025, Mashilo wrote to the executive mayor, stating that the municipality had previously been advised that the MEC’s office did not support the appointment due to CV misrepresentation.
“The department still maintains that the advice that was provided through a letter dated 12 July 2023 still stands,” Mashilo wrote.
Council termination
On 30 April 2025, the Executive Mayor persuaded the Speaker to call a Council meeting, during which a report was adopted to rescind the 2023 appointment decision, effectively terminating Sibanyoni’s appointment as of 1 June 2025.
In response, Sibanyoni approached the High Court seeking urgent relief, challenging the legality of the Council’s decision, the MEC’s directive, and the City Manager’s report.
While the Mayor, council, and MEC opposed her application, the speaker supported her position, filing an affidavit asserting that only a court— not the council — has the authority to overturn its previous decisions.
Preliminary issues and urgency
The matter first came before Judge Fourie on 13 May 2025, who struck it from the urgent roll for want of urgency.
Fourie ordered Sibanyoni to pay costs on a party-and-party scale. He directed parties to approach the Registrar for allocation of a trial date on the normal motion court roll.
“The Judge President, writing in response to the request, said: The parties can re-enrol their matter on the urgent court roll should they wish to do so. However, they are directed to comply with the Rules of Court and the Practice Directive.”
When the case was heard by Judge Mangena on 9 September 2025, he questioned whether the matter was still urgent.
The respondents argued that Sibanyoni still needed to prove urgency, while her counsel maintained that the Judge President had specially allocated the case to the urgent court, confirming its urgency.
Mangena ruled that the matter was urgent. He cited the ultimate test established in East Rock Trading: whether the applicant would obtain substantial redress if the matter were heard on a normal roll.
“The respondents argued strenuously that the applicant cannot use financial hardship as a reason to support her contention for urgency,” he noted.
However, respondents did not seriously contest that Sibanyoni was suffering harm from the impugned decision.
Mangena agreed with the arguments that the court needed to vindicate the rule of law as an incident of legality.
“People employed to exercise public power should at all material times observe the limits of their power and exercise it within the bounds of the constitution,” he stated.
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Jurisdiction question dismissed
Respondents argued the High Court lacked jurisdiction and that Sibanyoni should have approached the Labour Court. Mangena found no merit in this argument.
He cited a Constitutional Court decision which stated that the mere fact that a dispute is located in the realm of labour and employment does not exclude High Court jurisdiction.
“If only the Labour Court could deal with disputes arising out of all employment relations, remedies would be wiped out, because the Labour Court (being a creature of statute with only selected remedies and powers) does not have the power to deal with the common-law or other statutory remedies,” Mangena quoted.
He noted that Sibanyoni challenged the MEC’s power to dictate that the Council rescind its decision. These matters are located in the constitution as they implicate the exercise of public power.
“Absent lawful power, the decision is unlawful and a court of law, including the High Court, has jurisdiction to review and set it aside on the basis of the principle of legality,” Mangena ruled.
MEC’s lack of power
Mangena examined the matter from Msibi’s 12 April 2023 letter requesting an investigation into the CFO’s CV.
The letter did not state the source of his power to make the request. However, Mangena found nothing wrong with an MEC acting on allegations of maladministration and irregular appointments in a municipality under his jurisdiction.
The problem lay with the word “concurrence.” Section 56 does not require an MEC to concur in appointing a manager.
“All that it says is that the Municipal Council must, within 14 days of the date of appointment, inform the MEC for local government of the appointment process and outcome,” Mangena explained.
“Nowhere does it use the word ‘concur’, nor does it give him/her power to play any role in the appointment process.”
Mangena said if an MEC becomes aware that a section 56 post was filled in contravention of the Systems Act, the MEC must take steps to enforce compliance within 14 days. Those steps may include a court application.
Mangena cited the MEC for Local Government, Western Cape case, which explained section 106 as “part of the system for the monitoring, by provincial executive, of local governments so that the performance of local governments may be strengthened and improved, and municipal officials be held accountable for their administration.”
Investigation timeline and malice
The court stated that Msibi was correct to request an investigation and report. However, the five-day timeline was too short for meaningful investigation.
“This suggests in the strongest way that the request was more of a compliance than a need to conduct a fair, objective and independent investigation,” Mangena found.
The applicant challenged the investigation as malicious and not for a lawful purpose. Mangena noted that Msibi was represented throughout the recruitment process, making it difficult to dismiss this contention.
Upon receiving the report, Msibi wrote that he did not “concur” with the appointment.
“As stated above, this was an exercise of power he did not have,” Mangena ruled. “He was wrong to think that he was required to concur. All actions following this erroneous belief were consequent upon his exercising an unlawful power.”
Mangena stated that councillors perform constitutional duties and are not legally allowed to submit to unlawful MEC instructions.
Court application and withdrawal
When the municipality did not act on his dictates, Msibi launched a court application challenging the lawfulness of the council’s resolution to appoint Sibanyoni.
Only Sibanyoni joined the issue with Msibi, supported by the Speaker. In opposing the application, she detailed her qualifications, experience, and the appointment process. The application was not pursued after Msibi left office.
The new MEC, Mashilo, considered the facts and decided to withdraw the application in his capacity as successor.
“The withdrawal of the application brought to an end a legal dispute between the applicant and the MEC (Mashilo) insofar as her appointment to the position of the CFO is concerned,” Mangena found.
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Speaker’s unchallenged evidence
Key evidence came from the Speaker’s affidavit, stating that Mashilo withdrew the review application, resolving the matter.
The speaker recounted a meeting where Mashilo asked Sibanyoni to respond to allegations of misrepresentation, which she did. In a follow-up meeting, Mashilo, with the Head of Department present, confirmed their internal investigation found no merit to the claim.
“They have concluded that there was no merit in the allegation that the Applicant has misrepresented in her CV,” the speaker noted.
These facts were not disputed by the Mayor or Municipal Manager, and Mashilo did not respond.
Mangena emphasised, “In motion proceedings, affidavits serve as evidence, and what comes from the Speaker is unchallenged evidence.”
He concluded that Mashilo had properly considered Sibanyoni’s suitability and found the council had supported the withdrawal.
Subsequent unlawful actions
Mashilo’s subsequent decision on 4 April 2025 to still require the council to table the issue was unlawful.
“The decision made previously that there was no merit to the allegations against the CFO remained valid until reviewed or set aside,” Mangena ruled.
Additionally, the executive mayor’s decision to table a report without notice to the Speaker and Sibanyoni violated her right to be heard on an issue where she had a vested right.
The termination letter from the City Manager stated that the Council resolved to terminate the appointment “as a result of MEC for Cogta not concurring with your appointment.”
“The termination was effected for the wrong reason and unrelated to the allegation of misrepresentation,” Mangena found.
“The Council relied on a non-existent law to terminate the appointment of its employee, acting on the dictates of the MEC, who does not clearly understand his powers and duties. Or he simply acted ignorantly to perpetuate an unlawful removal of the CFO,” Mangena stated.
Mangena found the removal of the CFO was, based on the facts before the court, actuated by malice, sinister motives, and desire to perpetuate illegality. “It was not for a lawful purpose.”
Judgment and costs
Mangena therefore declared the Mbombela City Council’s resolution of 30 April 2025 unlawful and set it aside.
“The municipality, more especially the Executive Mayor and the Council, failed in their duties and allowed themselves to be dictated to by the MEC, Mashilo.”
Mangena ordered that they should all be liable for costs on an attorney-client scale, jointly and severally liable, with one party paying the other to be absolved.
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