Mayor Nomhle Gaga expressed relief at a ruling that may allow Makana Municipality to proceed with the process of appointing a full-time municipal manager. However, Paul Notyawa, who has pursued his two-year battle for the post has another seven days to appeal the judgment handed down in the High Court in Grahamstown last week.
Judge Judith Roberson last Thursday dismissed with costs Notyawa’s application to have Makana and the Co-operative Governance MEC declare him to have been lawfully appointed as municipal manager in March 2015, and provide him with an employment contract. Notyawa had also held that the decision to readvertise the post on the basis he didn’t meet the minimum competency requirements should be set aside.
Makana Municipality was in April 2017 interdicted from proceeding with the process of appointing a new MM, pending the outcome of this case.
The basis of the case was the decision by Cogta MEC Fikile Xasa not to approve Notyawa’s appointment. Because of instructions given to him by local, regional and national ANC leadership during the subsequent period, Notyawa held that Xasa’s decision, and the ANC-controlled Makana Council’s recognition of it, constituted political interference in what should have been an administrative decision.
In her judgment Roberson conceded that while it was clear that the MEC was against Notyawa’s appointment for party political reasons, the decision was in fact supported by the Municipal Systems Act (Section 54A) which stipulates specific qualifications. While Notyawa had qualifications and experience, these were not the qualifications stipulated as a requirement for the post.
Roberson cited Notyawa’s delay in bringing the application as a further reason for her judgment. Notyawa withdrew his first application in February 2016 and launched the most recent one in February 2017.
“During all this time that the applicant delayed, the Municipality was obliged to appoint an acting Municipal Manager, resulting in the inability to achieve the desired level of stability and consistency in the management of the Municipality,” Roberson said.
She also said the terms under which the application had been brought were incorrect. While it was brought as a legality review, it should in fact have been in terms of the Promotions of Administrative Justice Act (PAJA).
Also referred to in the judgment was the fact that should Notyawa be appointed in the post of municipal manager, he could only hold it until the end of this month. This is because of legislation that rules any appointment by a sitting council remains in force only one year after a new council is voted in. Local government elections in August 2016 saw the election of a new council.
Notyawa this week did not confirm whether he would appeal the judgment.
“My lawyers are studying the judgment and will come to a decision,” he told Grocott’s Mail.
Acting municipal manager Dali Mlenzana said the the appointment of a permanent MM as soon as possible was an extremely high priority for the municipality.
He said while they waited for the 14 days allowed for Notyawa to appeal to lapse, they were investigating their options. The issue had been discussed in a confidential session of yesterday’s Special Council meeting.
“We need to compile a report on the matter to find closure,” Mlenzana said. “Based on regulations regarding the appointment of senior managers, the time period has lapsed. However, we are investigating whether this might be condoned on the basis of the delay the interdict caused.”
Failing a special ruling to allow the process to continue, and unless Notyawa appealed the ruling, the post would be readvertised.