The Eastern Cape High Court has ordered Port St Johns Local Municipality to reinstate its municipal manager, Mluleki Fihlani, after finding that the council unlawfully extended his precautionary suspension and then attempted to justify its actions with arguments that the judge described as “brazenly disingenuous” and a “seriously shocking disregard for the rule of law.”
In a judgment delivered on July 8, with implications for municipalities across South Africa, Judge MS Jolwana also dismissed the municipality’s constitutional challenge to Regulation 6(6) of the Local Government: Disciplinary Regulations for Senior Managers, ruling that councils cannot simply extend precautionary suspensions beyond three months if disciplinary hearings have not commenced.
Fihlani, who was appointed municipal manager in January 2023, was suspended on November 22, 2024, pending an investigation into allegations of serious misconduct relating to the appointment of a senior manager for engineering services. After the investigation was completed, the municipal council resolved on January 22, 2025, to extend his suspension until the conclusion of his disciplinary hearing.
Fihlani approached the High Court, arguing that the municipality had no legal authority to extend his precautionary suspension beyond the period prescribed in the regulations.
Instead of only opposing his application, the municipality launched a counter-application to declare Regulation 6(6) unconstitutional.
It argued that the regulation unlawfully restricted municipal councils’ constitutional powers by preventing them from extending precautionary suspensions, where disciplinary hearings had not yet begun.
It further contended that forcing a suspended municipal manager to return to work could jeopardise disciplinary proceedings because witnesses could be influenced and evidence interfered with.
Jolwana rejected those arguments.
“In all the circumstances, Mr Fihlani must succeed in the main application as the extension of his suspension effected on 22 January 2025 was without any legal basis, it having been effected contrary to the clear provisions of Regulation 6(6) of the Regulations,” the judge ruled.
One of the municipality’s principal arguments was that there had been two separate suspensions, one pending an investigation and another pending the disciplinary hearing.
The judge was not convinced. “I do not understand the municipality’s pleaded case for two suspensions. I am not aware of any legal basis for this proposition which, in any event, flies in the face of the entire processes as set out in the Regulations.”Â
He noted that the municipality’s own council resolution expressly recorded that Fihlani’s suspension had been extended, contradicting later attempts to characterise it as a new suspension.
“The resolution of council of the municipality was, in no uncertain terms, to extend the precautionary suspension,” the judgment states.
The court reserved some of its strongest criticism for the municipality’s explanation of what had happened.
“Mr Sicotho’s bizarre averments about the suspension not having been extended… are him being brazenly disingenuous and, as a state functionary, deliberately misleading this court in an attempt to manipulate the council resolution,” Jolwana said.
“It exercised self-help” instead of approaching the courts for relief and “came up with a theory of two distinct suspensions” because it knew it could not lawfully extend the precautionary suspension.
The judge was equally critical of a municipal council resolution authorising an appeal before judgment had even been delivered.
He said the municipality had effectively resolved that it “would not apply its mind to a judgment that the court would deliver in due course,” but instead decided in advance that if it lost “for any reason”, it would appeal.
“For an organ of state not to apply its mind to a judgment and orders issued by a court but pre-emptively authorise an appeal, cannot possibly be anything else but a seriously shocking disregard for the rule of law and even an abuse of court process,” Jolwana wrote.
The court declared that Fihlani’s precautionary suspension terminated on February 21, 2025, reviewed and set aside the council’s decision to extend it.
It ordered that he return to work immediately, interdicted the municipality from unlawfully preventing him from performing his contractual duties, and ordered the municipality to pay the costs of both the main application and its unsuccessful constitutional challenge, including the costs of two counsel.
Lilita Gcwabe
iol.co.za
