A court judgment that will have a far-reaching effect on how councils appoint municipal managers has found that no council may simply renew an existing city boss’s contract without first opening it up to a competitive process.
This means that after a five-year term, councils may not automatically renew or extend a city manager’s contract.
The incumbent must compete in an open, competitive process with other candidates, if they want a second term in the position, the Grahamstown high court has found.
This judgment is likely to affect all cases in which municipal manager positions were automatically renewed by councils.
In this particular case, Walter Sisulu local municipality’s former manager, Thembinkosi Mawonga, had challenged a council decision in January to rescind an earlier resolution in July 2017 to renew his contract.
In response, co-operative governance & traditional affairs (Cogta) MEC Fikile Xasa brought a counter application, asking the court to review and set aside the July resolution to renew Mawonga’s contract, which expired in July 2017.
Mawonga was appointed manager of Walter Sisulu’s predecessor local municipality, Gariep local municipality, in 2007. His contract was renewed before it ended in 2012.
The Municipal Systems Amendment Act was promulgated in 2011, requiring that all new appointments be advertised nationally and follow a competitive process.
In July 2017, after Gariep and Maletswai municipalities were amalgamated to form Walter Sisulu, the council again renewed his contract through a resolution of council.
This time, however, Xasa intervened and instructed they should meet the Municipal Systems Act (MSA) requirement of advertising nationally. It was after this that the council sought to rescind its resolution to renew Mawonga’s contract.
But the council failed to follow the rules for rescinding its own resolutions.
Judge Murray Lowe agreed that the council’s decision to rescind its resolution was flawed and should be set aside.
He also found that its original resolution to renew the contract was flawed as it did not comply with the MSA.
He set aside Mawonga’s renewed contract, and in doing so, disagreed with the argument that the MSA requirements only applied to a vacant position or where a contract had expired. It was argued for Mawonga that his contract had been renewed before it had expired and that the MSA requirements therefore never kicked in as the position never became vacant.
Lowe said the argument that the renewal of a contract outside of a competitive process permitted the retention of an existing municipal manager with historical institutional knowledge, was of no consequence.
He said it was clearly the objective of the law to ensure all municipal manager appointments were advertised and competitive, effectively excluding non-competitive renewal...