Irregular appointments of municipal managers: A key challenge to effective service delivery

Municipal managers are tasked with advising political structures and political office-bearers, managing communications between the municipality’s administration and its political structures and political office-bearers, and executing council decisions. Additionally, municipal managers exercise other powers or perform duties delegated to them by the council. Due to this dual role, the office of the municipal manager is vulnerable to political capture, often leading to irregular appointments by municipal councils. This issue frequently necessitates judicial intervention through self-review applications by the municipality or action by the MEC for Local Government in the province to review and set aside unlawful appointments.

This article discusses the regulatory framework applicable to the appointment of municipal managers and examines the case of Penxa v Central Karoo District and Others (4913/24) [2024] ZAWCHC 151 (5 June 2024), where the Court set aside the decision of the Central Karoo District Municipality to appoint Mzungisi Nkungwana (the fourth respondent) as the MM.

The role and functions of the Municipal Manager (MM)

Section 55 of the Systems Act outlines the duties of the MM. In addition to their responsibilities towards political structures and political office bearers as mentioned above, municipal managers steer the administration, serving both as the head of administration and the accounting officer.  As head of the administration, an MM is responsible for developing and maintaining an economical, effective, efficient and accountable administration capable of implementing the municipality’s Integrated Development Plan (IDP), budget, policies and by-laws. The duties of an MM include appointing, managing, training and disciplining staff. As the accounting officer, the MM is accountable for all income and expenditures and ensures diligent compliance with finance management legislation.

Criteria for appointing a Municipal Manager

Section 54A(2) of the Systems Act stipulates that a person appointed as an MM or acting MM must possess the skills, expertise, competencies and qualifications as prescribed. These requirements are set out in the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers published under GN 21 in GG 37245 of 17 January 2014 (the Regulations). Regulation 9(1) and (2) mandate that individuals appointed as senior managers, including municipal managers, must have the competencies outlined in Annexure A and meet the minimum requirements specified in Annexure B. Additionally, the Local Government: Municipal Regulations on Minimum Competency Levels also governs the minimum competencies that accounting officers, chief financial officers, senior managers, supply chain management officials and other financial officials in municipalities and municipal entities must meet to comply with minimum competency requirements of the Local Government: Municipal Finance Management Act 56 of 2003.  

Annexure A provides the competency framework for senior managers and distinguishes between leading and core competencies. Leading competencies are essential for developing institutional strategies and implementing programs to achieve long-term sustainable and measurable service delivery results. These competencies include institutional performance management, project planning and implementation, monitoring and evaluation, budget planning and execution, policy formulation, and risk and compliance management. Core competencies enhance leadership and guarantee service delivery impact, including moral competence, planning and organising, analysis and innovation, and results and quality focus.

Annexure B also specifies the minimum level of higher education qualification, work experience and knowledge required for a candidate to operate effectively as an MM. The minimum requirements for a candidate applying for an MM position are as follows:

• Bachelor’s degree in Public Administration, Political Sciences, Social Sciences,  Law, or equivalent;
• Five years of relevant experience at a senior manager level, with proven successful institutional transformation within the public or private sector; and
• Advanced knowledge and understanding of relevant policy and legislation, institutional governance systems, council operations, delegations and budget and finance management

Both Regulations 9(1) and (2) must be considered to determine whether a candidate is competent to be appointed as an MM. Candidates are then scored according to their achievement levels, categorised as basic, competent, advanced or superior. Section 6 of Annexure A provides that individuals falling within the basic range are deemed unsuitable for the role of a senior manager. Such candidates are, thus, not suitable for appointment as municipal managers unless the municipality is unable to attract persons with the achievement level of ‘competent’ or above (see Section 54A(11) of the Systems Act).

The case of Penxa v Central Karoo District and Others

In this matter, Mnymezeli Penxa (the applicant) and two other candidates applied for the position of MM and were subjected to a municipal leadership competency assessment. Penxa obtained an overall achievement of “competent”, whereas Mr Nkungwana achieved an overall level of “basic”. According to the assessors’ report, the fourth respondent had lower levels of assertiveness, making him vulnerable to being swayed by higher-ranking individuals. The report suggested that Mr Nkungwana was best suited to work in settings where he could capitalise on his knowledge, perform routine tasks with clear guidelines and performance feedback, and work under supervision as he could not produce practical ideas independently to take the municipality forward (para 8). It was also alleged by one of the candidates that Mr Nkungwana had previously been involved in the recruitment process while being a candidate himself, suggesting possible political connections. Despite these concerns and his lower competency scores, the council resolved to appoint Nkungwana over Penxa. The Court found that Mr Nkungwana did not possess the prescribed competencies and that the council failed to ensure that he met the relevant competency requirements set out in Annexure A of the Regulations. Consequently, the Court set aside the Council’s decision to appoint Mr Nkungwana as the MM and remitted the decision back to the municipality for reconsideration.

Remedies for responding to irregular appointments of municipal managers

Aggrieved parties, such as unsuccessful candidates, may approach the courts to review and set aside the appointment decision of the municipal council. Municipalities can also apply to the High Court to review and set aside their own appointment decision. Additionally, the MEC for Local Government in the province is responsible for ensuring that competent individuals are appointed to serve as senior managers and that such appointments comply with the Regulations set out in the competency framework. When irregular appointment decisions are made by municipal councils, the MEC for Local Government has a duty to respond appropriately by, for instance, issuing directives to the council to implement corrective measures or applying to the High Court to review and set aside the council's decision.   

Conclusion

Municipal managers are vital to the effective and efficient functioning of a municipality. The competency regulatory framework aims to attract candidates who have a demonstrable capacity to research, analyse data, understand the underlying circumstances of the municipality, and devise innovative and practical solutions to respond to governance challenges. The case of Penxa v Central Karoo District and Others underscores that meeting the minimum requirements specified in Annexure B is not enough to justify an appointment. Rather, the competencies and particularly the competency scores in Annexure A must also be given equal consideration when appointing an individual as an MM. Therefore, the appointment of an MM must comply with the competency regulatory framework to ensure that only qualified and competent individuals are appointed to serve as the head of the municipal administration and the accounting officer. However, the case also raises concerns about the credibility of assessors’ reports used in the appointment process. To ensure fairness, the conclusions drawn about the candidate’s ability to exercise effective and efficient leadership must be based on an objective analysis of the entire process, not speculation. Ensuring the credibility of these assessments is imperative to prevent subjective judgments about a candidate’s leadership abilities, promote merit-based appointments and professionalise municipal administrations.

By Jennica Beukes, Legal practitioner and Doctoral Researcher