Composing selection panels to appoint senior managers in municipalities
The cases of Moerane v Buffalo City Metropolitan Municipality and Others; and Member of the Executive Council, Local Government, Environmental Affairs and Development Planning, Western Cape v Prince Albert Municipality and Another; demonstrate that the rules are not always complied with. In both judgments, the Court nullified the appointment of a manager directly accountable to the municipal manager (MM) – the so-called section 56 managers - on the basis of improperly constituted selection panels.
In Moerane v Buffalo City Metropolitan Municipality and Others, Ms. Neo Moerane wanted the Court to order Buffalo City Metropolitan Municipality to implement a council resolution appointing her, on a permanent basis, as head of the directorate responsible for municipal services. Moerane argued that the council resolution is not “administrative action” in terms of the Promotion of Administrative Justice Act of 2000, and that it therefore could not be reviewed by a court. She also argued that the Acting MM could not challenge the lawfulness of the council resolution or oppose an application based on the council resolution without the express authority of the council. On the other hand, the Acting MM submitted that the resolution constituted “administrative action”. It was further argued that the council resolution was either null and void, or unlawful for a number of reasons. First, it was submitted that the selection panel which presided over the selection process was improperly constituted. Second, it was argued that when the council took this resolution it did not have all relevant information required for it to make an informed decision. Lastly, the Acting MM submitted that Ms Moerane failed a competency assessment and therefore was not fit for the job. Hence, the Acting MM’s counter application was for the Court to review and set aside the council resolution to appoint her as a section 56 manager.
On whether the council resolution constituted “administrative action”, the Court reasoned that -
“the test for determining whether conduct constitute ‘administrative action’ is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute ‘administrative action’. Similarly, judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to whether conduct is ‘administrative action’ is not on the arm of government to which the relevant actor belongs, but on the nature of the power he or she is exercising.”
The Court referred to Mlokoti v Amathole District Municipality and Another and Notyawa v Makana Municipality where it was decided that the appointment of municipal managers by municipal councils constituted “administrative action”. This equally applies to the appointment of section 56 managers. Thus, the Court ruled that the decision of the municipal council to appoint Ms Moerane constituted “administrative action” and was therefore reviewable in court. Hence, the Acting MM was competent to challenge the appointment.
The Court turned to the second issue regarding the validity of the council resolution. In terms of section 56 of the Municipal Systems Act of 2000, the appointment of a manager directly accountable to the MM is null and void if a person without the requisite skills is appointed. The Court agreed with the Acting MM that Ms Moerane lacked the requisite skills since she failed a competency assessment. The Court highlighted that section 56(1)(b) of the Municipal Systems Act as well as its Regulations on the Appointment and Conditions of Employment of Senior Manager of 2005 are clear that candidates recommended for appointment as a section 56 manager must undergo a competence assessment.
The Court also examined the composition of the selection panel which recommended the appointment of Ms Moerane. Regulation 12(4) requires that the selection panel be constituted by the MM, a member of the mayoral committee or councillor who is the head of the relevant portfolio and “at least one other person, who is not a councillor or a staff member of the municipality, and who has expertise or experience in the area of the advertised post”. The Court found that the panel did not include that “other person” who was not a councillor or staff member. Thus, the panel was improperly constituted and the decision it took was null and void. In conclusion, the Court ruled that the council resolution approving the appointment of Neo Moerane as a section 56 manager was “unlawful in that a mandatory and material procedure or condition prescribed by Regulation was not complied with”. Hence, it set aside the resolution and dismissed the application with costs.
The composition of the selection panel was also at the centre of Member of the Executive Council, Local Government, Environmental Affairs and Development Planning, Western Cape v Prince Albert Municipality and Another. The MEC for local government wanted the Court to review and set aside the appointment of a selection panel established to recruit and select an Operational Manager for the Prince Albert Municipality and the appointment of Mr George Charles Van der Westhuizen as the Operational Manager, i.e. a section 56 manager.
The MEC argued that even though the matter had become academic (Mr Van der Westhuizen was no longer employed by the Municipality), it was important for the Court to provide guidance and direction on how Regulation 12(4) should be implemented. The majority of the judges on the bench agreed with the MEC in that the matter was of significant public interest and therefore ought to be heard. The second question which the Court had to determine was whether the Regulations) were valid given that the Constitutional Court had struck down the Municipal Systems Amendment Act of 2011. The majority judgment also agreed with the MEC that Regulation 12(4) was valid since it was not adopted in terms of the Municipal Systems Amendment Act of 2011. Instead, the Regulation was adopted in terms of section 72 read together with section 120 of the Municipal Systems Act, which empowers the national Minister to make regulations on matters relating to municipal personnel administration.
Turning to the issue of the composition of the selection panel, the MEC argued that whether or not a selection panel has three, four or five members, it can only have two members/officials of a municipality i.e. the municipal manager and a mayoral committee member or a councillor who is the head of the relevant portfolio. The Court agreed and ruled that it is clear from Regulation 12(4) that only persons falling under the category “other persons” (who is not a councillor or staff member of a municipality) could be more than one on the selection panel. In this case, the selection panel had four councillors. It was thus improperly constituted and the appointment of the selection panel was set aside.
Commentary
A few key lessons emerge. First, municipalities must appoint people with requisite skills as senior managers, otherwise the appointment will be invalid. Second, if a candidate fails a competency test, he or she may not be appointed. Third, selection panels must be properly constituted. There may not be more than one councillor on a selection panel established to recruit and select a candidate for a section 56 position. Furthermore, there must be at least one qualified person from outside the municipality on the panel. If any of these conditions are not complied with, the appointment risks being struck down by the courts.