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ConCourt ends former councillor's marathon bid to be a municipal manager

21 November 2019 - 13:35 By ERNEST MABUZA
The Constitutional Court has dismissed an appeal by a former ANC councillor who wanted to be appointed as municipal manager.
The Constitutional Court has dismissed an appeal by a former ANC councillor who wanted to be appointed as municipal manager.

A former ANC councillor in the Eastern Cape has failed in his marathon bid to be appointed municipal manager at Makana municipality.

The constitutional court dismissed Paul Notyawa's appeal on Thursday against a judgment passed by the high court in Grahamstown (Makana) in 2017.

The high court had held that Notyawa failed to bring an application to review an earlier  decision to rescind his appointment within 180 days.

The question to be answered by the constitutional court was whether the high court, in refusing to overlook an unreasonable delay on the part of Notyawa in instituting review proceedings, failed to properly exercise its discretion.

The case has its genesis in March 2015 when Notyawa was appointed municipal manager by the Makana council.

But then MEC for co-operative governance and traditional affairs (Cogta) Fikile Xasa told the municipality he was not satisfied with the appointment.

Xasa did not confirm the appointment, on the basis that Notyawa did not meet the minimum requirements for the post in terms of the Municipal Systems Act. 

Xasa instructed the municipality to re-advertise the post.

The municipality rescinded Notyawa’s appointment in April 2015 and decided to re-advertise the post.

In July 2015, Notyawa brought a court application to review and set aside the decision to re-advertise the post. He also sought to review and set aside the decision by Xasa not to appoint him as municipal manager.

The matter was set down for hearing on February 12 2016, but Notyawa sought a postponement on the day, which the court refused. Notyawa’s lawyers then withdrew his review application.

Notyawa instituted the application again on February 2017, but it was dismissed with costs by the high court in Grahamstown in August 2017.

The court held that he failed to bring his review application within 180 days in terms of the Promotion of Administrative Justice Act. His application for leave to appeal was refused.

The Supreme Court of Appeal also dismissed a petition for leave to appeal, leading to Notyawa applying for leave to appeal to the Constitutional Court.

In a unanimous judgment written by Justice Chris Jafta, the apex court held that the high court had discretion to condone a delay by Notyawa in instituting review proceedings.

Jafta said intervention by the appeal court may be justified only on narrow specified grounds. “The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially,” Jafta said.

He found that all the relevant facts were correctly taken into account by the high court in determining whether the delay was unreasonable.

However, the court held that despite losing, Notyawa should not be ordered to pay costs as the matter raised constitutional issues.