Municipality's Failure To Appoint Candidate To An Advertised Position May Constitute Reviewable Administrative Action

In the case of Mambafula v Alfred Nzo District Municipality, Mr Simvumile Mambafula instituted urgent proceedings in the Eastern Cape Division – Mthatha of the High Court of South Africa ("the High Court") in which he sought an order reviewing and setting aside the Alfred Nzo District Municipality's ("the Municipality") decision not to appoint him as the Director: Corporate Services and to re-advertise the post.

Background

On 20 June 2023, the Municipality, acting in terms of the applicable Regulations on Appointment of Senior Managers, advertised externally the position of Director: Corporate Services. The advertisement invited all qualified persons to apply for the position. Following the shortlisting of candidates, interviews were conducted and the interviewing panel recommended that Mr Mambafula be appointed as the Director: Corporate Services.

Subsequently, on 7 November 2023, the Mayor of the Municipality wrote a letter to the MEC for Department of Co-operative Governance and Traditional Affairs, Eastern Cape Province ("the MEC"), in which he reported some serious irregularities in the interviewing process. He recommended that the whole process be nullified and the post of Director: Corporate Services be re-advertised.

On 30 November 2023, a Mayoral Committee meeting was held wherein Mr Mambafula was recommended for appointment as Director: Corporate Services and Ms A Ganya was appointed as the second-best candidate in the event that Mr Mambafula does not accept the position.

On 15 January 2024, the MEC responded to the mayor's letter and asserted that he will ensure that a report is compiled and made available to the mayor. He also said that given the gravity of the allegations and the necessity to uphold the highest standards of governance, the post must be re-advertised.

On 23 February 2024, a special council meeting was held where it was decided that whilst the discrepancies regarding the recruitment process were being investigated, Mr S Quzu would be appointed as Acting Director: Corporate Services for a period of three months.

Subsequently, Mr Mambafula received a letter thanking him for applying for the position and advising him that the post will be advertised again and he was encouraged to apply again. The post was re-advertised on 3 May 2024.

Issue for determination

The main issue before the High Court was whether the Municipality's decision not to appoint Mr Mambafula and to re-advertise the post constitutes administrative action under the Promotion of Administrative Justice Act, 2000 ("PAJA") and, if so, whether it is reviewable.

Mr Mambafula's case

Mr Mambafula contended that:

1. during the selection and interviewing stages, all procedures were followed and there were no complaints about irregularities;
2. the recruitment, selection, and interviewing panels were properly constituted;
3. Mr Mambafula was the best qualifying candidate;
4. he was recommended for appointment to the advertised position; and
5. the decision not to appoint him falls squarely within the definition of administrative action and is susceptible to be reviewed under PAJA

Municipality's case

The Municipality's case was that:

1. during the interviews it was discovered that sensitive information about the recruitment process was leaked to the public in contravention of the policy protocols;
2. in the shortlisting process, it was discovered that certain candidates that qualified for the advertised post were not shortlisted and were excluded from the interview;
3. these irregularities tainted the entire recruitment process;
4. the decision to nullify the recruitment process and to re-advertise the post was based on the fact that the investigation revealed material irregularities that cannot be condoned as they rendered the whole process futile;
5. Mr Mambafula is not entitled to the decision to make his appointment final, as per the recommendation of the interviewing panel, as the decision to make an appointment is the sole prerogative of the Municipality's council; and
6. the decision not to appoint Mr Mambafula was taken in an employment context by the Municipality in its capacity as his employer. Therefore, it had no direct and external effect on any other person other than Mr Mambafula. Furthermore, the decision was taken during the Municipality's council's deliberative process which does not fall under the definition of administrative action under PAJA. It is therefore excluded from being reviewed as it is the outcome of a deliberative process of a legislative body.

Court's findings

The High Court first considered whether the decision in question fits the definition of administrative action. In this regard, the court considered whether the Municipality, when it took the decision which is being challenged, was exercising public power, whether in terms of a legislation or some empowering provision, and if so, whether decision can be described as administrative in nature.

The appointment of senior managers accountable to the municipal manager is regulated by section 56 of the Municipal Systems Act, 2000 ("the Systems Act"). In terms of section 56(1)(a)(ii) a municipal council, after consultation with the municipal manager, must appoint a manager directly accountable to the municipal manager under the circumstances and for a period as prescribed.

The Municipality's counsel conceded that the position that was advertised is a senior managerial one directly accountable to the municipal manager as described in section 56(1)(a)(i) of the Systems Act. Therefore, when the Municipality's council took the decision in question, it exercised a power bestowed to it in terms the provisions of section 56 of the Systems Act. The Municipality's council was also exercising a public power or performing a public function conferred upon it by section 56 of the Act.

The court further held that Mr Mambafula's appointment as Director: Corporate Services would not amount to a mere promotion, which has previously been held not to amount to administrative action. Rather, Mr Mambafula, armed with his qualifications, experience and skills, made himself available to the position that was advertised externally and was recommended for appointment.

The High Court then considered whether the failure to appoint Mr Mambafula was a legislative or administrative decision. The court held that when a municipal council executes the functions that it is mandated to perform in terms of section 56, in particular those that relate to the appointment of a manager directly accountable to the municipal manager, it does not perform the functions as a legislative body. The court further held that it is clear that it cannot be so because its role was to implement what had already been prescribed in the legislation, namely in section 56 of the Systems Act.

The High Court ultimately found that the Municipality's decision amounted to administrative action. The High Court's conclusion aligns with the findings in Mlokothi v Amathole District Municipality and Another, Notyawa v Makana Municipality and others and Tshabalala v Council of the Maluti-A-Phofung Local Municipality and Another where it was held that a decision of the municipal council to appoint a municipal manager constitutes an administrative action.

The High Court then proceeded to determine whether such administrative action should be set aside. In this regard, the court found that:

1. the information regarding the alleged irregularities was not disclosed in the Municipality's papers;
2. there was no investigative report presented to the Municipality's council before it took the decision not to appoint Mr Mambafula and to re-advertise the post;
3. there is also evidence that the discrepancies in the recruitment process were being investigated at the time the decision was taken. Therefore, without having verified the accuracy of the allegations of irregularities, the council acted on them; and
4. the Municipality's council had insufficient information before it when it took the decision complained of and therefore failed to take into account relevant considerations. Instead, it took into account irrelevant considerations and took a decision based on the unwarranted activities of another person, the Executive Mayor, who was not even part of the recruitment process.

Conclusion

The High Court thus concluded that the decision not to appoint Mr Mambafula and to re-advertise the post contravenes the provisions of section 56 of the Systems Act and/or is not authorised by that empowering provision. Consequently, the Municipality's decision was reviewed and set aside under PAJA.

Furthermore, the High Court substituted the Municipality's decision with an order that Mr Mambafula is appointed as Director: Corporate Services. The High Court found that the exceptional circumstances in this case persuaded the court that no useful purpose would be served by remitting the matter to the Municipality for a decision since the Municipality demonstrated a lack of regard for its statutory responsibility and a regrettable disregard of its duties by taking a decision without having all the relevant facts put before it.

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