About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 209
|
|
Meadow Glen Home Owners Association and Others v City of Tshwane Metropolitan Municipality and Another (767/2013) [2014] ZASCA 209; [2015] 1 All SA 299 (SCA); 2015 (2) SA 413 (SCA) (1 December 2014)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 767/2013
In
the matter between:
MEADOW
GLEN HOME OWNERS
ASSOCIATION
.....................................................................................................
FIRST
APPELLANT
MEADOW
RIDGE HOME OWNERS
ASSOCIATION
................................................................................................
SECOND
APPELLANT
MORELETA
PARK EXTENSION 44
RESIDENCE
ASSOCIATION
............................................................................
THIRD
APPELLANT
MOOIKLOOF
EIENAARSVERENIGING
..................................................
FOURTH
APPELLANT
WOODHILL
HOME OWNERS
ASSOCIATION
.............................................
FIFTH
APPELLANT
and
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
................................................................................................
FIRST
RESPONDENT
FANIE
FENYANI
..........................................................................................
SECOND
RESPONDENT
Neutral
citation:
Meadow Glen Home Owners Association v City of
Tshwane Metropolitan Municipality
(767/2013)
[2014] ZASCA 209
(1
December 2014)
Coram
:
CACHALIA, WALLIS and ZONDI JJA and SCHOEMAN and DAMBUZA AJJA
Heard
:
11 November 2014
Delivered
:
1 December 2014
Summary
:
Contempt of court — suspended sentence — whether there
was substantial compliance with court order — wilful
default
required —
appropriateness of
incarceration of municipal official for failure by municipality to
comply with court order — whether contempt
of court appropriate
means for enforcing a structural order
ORDER
On
appeal from: North Gauteng High Court, Pretoria (Kubushi J sitting as
court of first instance):
1
The costs order in the high court is set aside and replaced with an
order that each party pay their own costs.
2
The appeal is otherwise dismissed
3
Each party is to pay their own costs of appeal.
JUDGMENT
Wallis
JA and Schoeman AJA
(
Cachalia
and Zondi JJA and Dambuza AJA
concurring
)
[1]
Since
some time prior to 2006, a property owned by the City of Tshwane
Metropolitan Municipality (the Municipality) in Moreleta
Park has
been occupied by poor people who have constructed rudimentary homes
for themselves out of corrugated iron, wood, plastic
and similar
materials. They call the settlement Woodlane Village. The appellant
home owner associations, have concerns arising
from the proximity of
this settlement to their own properties. They wish to prevent it from
expanding from the present nearly 900
homes and to arrive at a
situation where a more formal residential area is established for the
residents of the settlement. To
that end they have instituted various
proceedings against the Municipality contending that the settlement
exists in conflict with
town planning regulations and seeking
broad-ranging relief in the form of what have come to be called
structural orders.
[1]
Several
such orders have been granted in their favour against the
Municipality, usually by consent. All have lacked the usual feature
of such orders that the process set out therein is supervised by
means of reports and the court retaining jurisdiction to deal
further
with the case.
[2]
The appellants have consistently complained
that the Municipality makes no proper attempt to comply with the
terms of these orders.
This appeal arises from an attempt by them to
have Mr Fanie Fenyani, the Municipality’s Director: Housing
Resource Management,
committed to prison for contempt of court
arising from an alleged failure by the Municipality to comply with
one of those orders.
The attempt failed before Kubushi J in the high
court and the appeal is with her leave.
[3]
A number of issues arise in the appeal.
First, there is the fact that the Municipality consented to the court
making the orders
giving rise to a dispute and implicitly agreed that
it had not complied with those orders. In a country based on the rule
of law
that is a situation that cannot be countenanced particularly
when it involves an organ of state at the third tier of government.
But whether the incarceration of one of its employed officials is the
way in which to address this problem lies at the heart of
the case.
Second, we must consider the basis upon which courts are asked to
make these structural orders and whether their terms
are sufficiently
definite to form a foundation for a citation for contempt. Third, one
must question whether the blunt instrument
of contempt of court is
the appropriate means of securing enforcement of orders directed at
resolving complex social issues. Those
issues in this case involve
the provision of housing and other basic amenities for the
desperately poor and vulnerable, while being
sensitive to the
interests of those more fortunate in our society, whose interests in
terms of health, security and the protection
of their property are
also valued and protected under the Constitution.
Background
[4]
It
is convenient to commence a description of relevant events on
31 March 2006, when the Municipality, together with other
public
entities, unlawfully evicted the occupants from the area in and
around this property and destroyed their homes. This court,
in the
matter of
Tswelopele
Non-Profit Organisation v City of Tshwane Metropolitan
Municipality
,
[2]
inter alia ordered the municipality:
‘…
to
construct for those individual applicants who were evicted on 31
March 2006, and who still require them, temporary
habitable
dwellings that afford shelter, privacy and amenities at least
equivalent to those that were destroyed, and which are capable
of
being dismantled, at the site at which their previous shelters were
demolished.’
[5]
Thereafter the settlement was established
in Woodlane Village within a demarcated, fenced area. From an early
stage there appear
to have been attempts to limit the number of
residents and prevent the expansion of the settlement. This included
issuing residents
with identity cards to determine their entitlement
to reside in Woodlane Village. Whatever the Municipality did in this
regard
it did not satisfy the appellants. They sought and obtained a
number of court orders. Those that are relevant to the present matter
are the following.
[6]
On 21 August 2009 Hartzenberg J ordered by
consent:
‘
1.
…
2.
THAT the first respondent [the municipality] maintain the fence which
has been erected around the demarcated area in a condition
suitable
to prevent free access into and egress from the demarcated area,
save at the two existing gates.
3.
THAT the first respondent [the municipality] employ and maintain the
presence of a security officer on a full-time basis at
each of the
two gates which permit access into and egress from the demarcated
area in order with effect from 1 September 2009
to prevent any
persons, other than those to whom the first respondent has already
issued access cards in respect of the demarcated
area as at date of
this order, to enter upon the demarcated area; provided that persons
wishing to visit occupiers of the demarcated
area may be allowed
reasonable temporary access.
4.
THAT the first respondent takes all such steps as are reasonable and
necessary to prevent any persons other than those to whom
the first
respondent has already issued access cards in respect of the
demarcated area as at date of this order, to enter upon
or take
occupation of the demarcated area.
5.
THAT the first respondent continue to provide sufficient potable
water and a sufficient number of portable chemical toilets
and a
sufficient number of refuse bins (which are to be emptied by the
first respondent on a regular basis) for the use of the
persons who
occupy the demarcated area.
6.
THAT the first respondent is interdicted from allocationing (sic) to
any person any stand in the demarcated area, other than
the 916
stands already allocated.
7.
THAT the first respondent is interdicted with effect from 1 September
2009 from permitting any persons, other than those who
already
occupy one of the 889 shacks in the demarcated area and in respect of
whom the first respondent has issued access cards
in respect of the
demarcated area as at date of this order, to enter upon or occupy
the demarcated area, provided that persons
wishing to visit occupiers
of the demarcated area may be allowed reasonable temporary access.
8.
…
9.
…
10.
THAT the applicants and the fourth respondent shall within one month
of date of this order nominate not more than two persons
each to
serve on a committee with which the first respondent shall consult in
regard to the plan, as contemplated in paragraph
8 above, and which
committee shall monitor the implementation of the plan and
compliance by the first respondent with the terms
of this order.
11.
…
12.
THAT the applicants, the first respondent and the fourth respondent
shall be entitled, on good cause shown, to apply to the
Court on the
same papers, supplemented as may be necessary, for the variation or
amplification of any of the terms of this order.’
[7]
No doubt when it agreed to an order in
these terms the Municipality intended to carry it out. However, the
generality of its terms
was such as would, almost inevitably, lead to
disputes between the Municipality and the appellants. Some of these
should be highlighted.
What, for example, was meant by the obligation
in para 1 to maintain the fence in a condition to prevent free access
to the settlement?
When counsel for the appellants was asked this in
the course of argument his answer was that it should be patrolled
throughout
the day and any breaks in the fence repaired within a day
of them occurring. Counsel for the Municipality contended for a far
less
onerous regime. If the Municipality employed the requisite
number of security guards specified in para 2, would it nonetheless
be in breach of the order if they were slack in performing their
duties? What steps would be reasonable and necessary in order to
prevent people from entering and occupying the settlement? There was
simply no clear-cut answer to these questions. Accordingly
the terms
of the order provided fertile grounds for future disputes and that is
precisely what happened.
[8]
Having said that, the Municipality
consented to the court making an order in those general terms. That
obliged it to make serious
good faith endeavours to comply with it.
That is what we are entitled to expect from our public bodies. If
they experienced difficulty
in doing so then they should have
returned to court seeking a relaxation of its terms. If there was a
dispute between them and
the appellants regarding the scope of the
order and what needed to be done to comply with it, it was not
appropriate for the Municipality
to wait until the appellants came to
court complaining of non-compliance in contempt proceedings. It
should have taken the initiative
and sought clarification from the
court. Its failure over a protracted period to take these steps is to
be deprecated.
[9]
On 15 September 2011, and by consent,
Muller AJ ordered that Mr Fenyani be committed to imprisonment for a
period of one month for
contempt for failing to comply with the order
granted in this matter by Hartzenberg J on 21 August 2009. This
committal order was
suspended on condition that the Municipality
complied with paragraphs 2, 3 and 4 of that order pending the final
determination
of an application to amend and supplement it. The
paragraphs relevant to the suspension related to the maintenance of
the fence;
the employment and presence of security guards at the two
gates of the demarcated area; the control of the gates to restrict
entrance
into and egress from the property; and finally to prevent
the occupation of the property or access of persons who were not in
possession
of access cards.
[10]
On
5 June 2012 Van der Byl AJ substantially varied the order of
Hartzenberg J, and in the course of doing so amended the conditions
of the suspension order. He ordered that the order for committal to
imprisonment imposed on Mr Fenyani be further suspended on
condition
that the Municipality complied with paragraphs 2-7, of the order by
Hartzenberg J. The order of Van der Byl AJ continued
to oblige the
Municipality to provide basic services to the occupiers of the
demarcated area; to ensure the Municipality did not
allocate further
stands to any other person within the demarcated area; and to
prohibit the entry of persons without access cards
who were not
occupiers of the 889 shacks. However, it went further in that it
obliged the Municipality to establish a township
in respect of the
area of the settlement and adjacent land; to allocate serviced
residential erven to certain residents (described
as ‘qualified
persons’) and to bring proceedings to evict the remaining
residents (described as unlawful occupiers).
If a township was not
established by 30 November 2013, within about 18 months of the order,
they were obliged to evict everyone
from the settlement. How it was
thought that this was to be achieved in the light of the established
jurisprudence of this Court
[3]
and the Constitutional Court
[4]
in regard to evictions is difficult to see. Furthermore, it is
difficult to see on what basis, consistent with a proper appreciation
of the separation of powers,
[5]
it was permissible for a court to order the Municipality to establish
a township or evict people to whom it owed obligations to
provide
access to housing. However that is typical of the problems that these
orders posed.
[11]
Matters came to a head when in November
2012 the appellants brought an application for the committal of Mr
Fenyani to prison for
a period of one month, thereby seeking the
implementation of the suspended sentence imposed by Muller AJ and
extended by Van der
Byl AJ. The application was based on the
Municipality’s alleged failure to comply with paragraphs 2 and
3 of the order by
Hartzenberg J, in that the fence was not maintained
and the security guards that were stationed at the gates, did not
monitor the
persons entering and exiting the property. As noted above
the application failed and this appeal is the result.
[12]
The events giving rise to the application
happened some time ago. Accordingly, this court requested affidavits
from the parties
in the following terms:
‘
1
The Tshwane Municipality is to deliver an affidavit by 31 October
2014 deposed to by the municipal manager, setting out in detail
the
steps it has taken to comply with the order of Hartzenberg J, as
amended by the order of Van der Byl AJ, since the delivery
of its
answering affidavit in the present proceedings. The affidavit must
identify all officials charged with responsibility for
securing
compliance with the order and their superiors responsible for
ensuring that they comply with their obligations in that
regard.
2
The Appellants are to deliver an affidavit by 31 October 2014
detailing any respects in which they say (if at all) that there
has
been further or continued non-compliance with that order since the
delivery of their replying affidavit in the present proceedings.
3
Both parties are to deliver supplementary heads of argument, no
longer than 10 pages in extent, on the source, nature and extent
of
the Court's power to enforce orders
ad factum praestandum,
such
as the one in this case, by way of committal of an official of a
local authority arising from the local authority's failure
to comply
with the terms of such an order. The heads must deal with the
appropriateness of committal as a remedy in this type of
case and
whether in our constitutional dispensation it is open to the courts
to grant such an order. The parties are referred to
Nyathi v
MEC for Department of Health, Gauteng & another
2008 (5) SA
94
(CC) paras 75, 76 and 78.’
[13]
The municipal manager of the Municipality
and a director of the first appellant deposed to affidavits. Further
heads of argument
were filed. None of the parties addressed the
question of the ‘appropriateness of committal as a remedy in
this type of case
and whether in our constitutional dispensation it
is open to the courts to grant such an order’, or referred to
Nyathi.
They
did, however, provide a considerable amount of further information
about what had occurred in the interim. Consistent with
the stand-off
that has characterised their relationship, they disagreed about the
nature and extent of, and reasons for, the problems.
The appellants
contended in vigorous terms that the Municipality was guilty of
on-going non-compliance and that the Municipality
had ‘no
respect for the orders granted’. For its part the Municipality
complained that the problems with the fence
were due to residents
breaking it at a particular point in order to obtain easier access to
their homes and that the access cards
given to residents had been
duplicated and forged so that the security guards could not do what
was expected of them.
[14]
These further affidavits revealed that
there had been further and subsequent court proceedings. On 3
February 2014 Webster J issued
an order (again by consent). The
salient terms were:
‘
1.
…
2.
On or before 28 February 2014 the First Respondent [the municipality]
shall repair the fence around the demarcated area in a
condition
suitable to prevent free access into and egress from the demarcated
area; and thereafter maintain such fence in good
order.
3.
The First Respondent [the municipality] shall from date of this order
employ and maintain the presence of 8 security officers
on a full
time basis, at the demarcated area working in two shifts with each
shift having four security guards present. These security
guards will
patrol the demarcated area on a 24 hour basis, which shall include
the monitoring of the fence and to permit access
into and egress from
the demarcated area solely to qualified persons and to prevent access
into and egress from the demarcated
area of and persons not qualified
[or] entitled to reside within the demarcated area as well as
occasional trespassers.’
[15]
This order led to another contempt of court
application. On 2 April 2014 Pretorius J found the municipality and
Mr Fenyani guilty
of contempt of court. They were ordered to pay a
combined fine of R60 000, which was suspended on condition that both
the Municipality
and Mr Fenyani comply with the orders of Webster J
within 30 days. As Mr Fenyani had not hitherto been under any
personal obligation
to comply with the earlier orders and it was
manifest that he did not have it within his power to comply with many
of their provisions,
that was a remarkable extension of his potential
liability. According to the affidavit filed on behalf of the
appellants, the Municipality
has not complied with all the conditions
of the suspension of the order of Pretorius J.
Contempt
of court
[16]
Although
some punitive element is involved, the main objectives of contempt
proceedings are to vindicate the authority of court
and coerce
litigants into complying with court orders. The foundation and bases
for a conviction of contempt of court have been
authoritatively set
out in
Fakie
NO v CCII Systems (Pty) Ltd
:
[6]
‘
To
sum up:
(a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements.
(b)
The
respondent in such proceedings is not an “accused person”,
but is entitled to analogous protections as are appropriate
to motion
proceedings.
(c)
In
particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides
)
beyond reasonable doubt.
(d)
But,
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and
mala fides
:
Should the respondent fail to advance evidence that establishes
a reasonable doubt as to whether non-compliance was wilful
and
mala
fide
,
contempt will have been established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.’
[17]
The goal of a suspended sentence in
contempt of court proceedings bears some resemblance to a suspended
sentence imposed in terms
of the
Criminal Procedure Act 51 of 1977
:
‘
A
suspended sentence is generally used as a weapon of deterrence
against the reasonable possibility that a convicted person
may again
fall into the same error (or at least one substantially similar).’
[7]
In
other words there is the element of coercion to compel the
transgressor to comply with the court order.
[18]
Furthermore,
in
Fakie
NO
Cameron
JA stated that:
[8]
‘…
there
is no true dichotomy between proceedings in the public interest and
proceedings in the interest of the individual, because
even where the
individual acts merely to secure compliance, the proceedings have an
inevitable public dimension - to vindicate
judicial authority.
Kirk-Cohen J
put it thus on behalf of the
Full Court:
“
Contempt
of court is not an issue
inter partes
;
it is an issue between the court and the party who has not complied
with a mandatory order of court.” [
Federation
of Governing Bodies of South African Schools (Gauteng) v MEC for
Education Gauteng
2002 (1) SA 660
at
673D-E]
Elaborating
this, Plasket J pointed out in the
Victoria Park Ratepayers
case [(511/03)
[2003] ZAECHC 19
(11 April 2003)] that contempt of
court has obvious implications for the effectiveness and legitimacy
of the legal system and
the legal arm of government: There is
thus a public interest element in every contempt committal. He
went on to explain that
when viewed in the constitutional context
“
it
is clear that contempt of court is not merely a mechanism for the
enforcement of court orders. The jurisdiction of the Superior
Courts
to commit recalcitrant litigants for contempt of court when they fail
or refuse to obey court orders has at its heart
the very
effectiveness and legitimacy of the judicial system … That, in
turn, means that the Court called upon to commit
such a litigant for
his or her contempt is not only dealing with the individual interest
of the frustrated successful litigant
but also, as importantly,
acting as guardian of the public interest.”'
[19]
In
Fakie
the
court was concerned with the onus of proof in cases of civil
contempt. It held that an order could only be made on proof of
the
contempt on the criminal standard of proof beyond a reasonable doubt.
We think it follows inevitably that bringing a suspended
order of
committal into operation requires proof of a wilful breach of the
conditions of suspension to a similar standard. Was
that standard met
in this case? One of the difficulties we face is that the committal
order in relation to Mr Fenyani was made
by consent. We accordingly
do not know on what factual basis the order was made. Indeed we do
not even know whether the two acting
judges who made these orders
formed an independent view on the subject. Consent orders are not
usually the subject of extended
judicial scrutiny in the environment
of a busy motion or opposed application court. Whilst it would
perhaps go too far to say that
a contempt order cannot be made by
consent, it will ordinarily be desirable for the judge to be
satisfied that there is adequate
proof of the contempt and to set
out, albeit briefly, the nature and extent of the contempt and the
reasons for suspending the
order. That will enable a court that is
subsequently asked to bring the order into operation to understand
fully the case before
it. That was not possible in this case.
The
citation of Mr Fenyani
[20]
A further difficulty is that we do not know
on what basis Mr Fenyani became the subject of this order in the
first place. There
is a disquieting letter in the supplementary
affidavits in which the attorneys representing the appellants wrote
to the Municipality’s
attorneys, recording that they understood
that Mr Fenyani was no longer in the employ of the Municipality and
asking that they
‘nominate a successor in title’ to Mr
Fenyani. The clear inference is that Mr Fenyani was simply the
nominee of the
Municipality to be the scapegoat for any shortcoming
in its compliance with the order of Hartzenberg J. If that is so, it
is necessary
to say immediately that there is no basis in our law for
orders for contempt of court to made against officials of public
bodies,
nominated or deployed for that purpose, who are not
themselves personally responsible for the wilful default in complying
with
a court order that lies at the heart of contempt proceedings.
[21]
Mr
Fenyani is the Director: Housing Resource Management of the
Municipality. According to the supplementary affidavit by the
municipal
manager, he is the person responsible for seeing to the
maintenance of the fence and the provision of basic services. The
other
obligations of the Municipality, brought about by the various
court orders, must be performed and attended to by other officials.
However, according to the conditions attached to the suspension of
the order for his imprisonment he would also be subject to
incarceration if the Municipality did not, inter alia
,
take
the necessary steps to prevent people other than those with access
cards entering the demarcated area; issue and deliver access
cards;
bring eviction proceedings against all persons on the property; and
if the Municipality were to fail to establish and proclaim
a ‘…
township with serviced residential erven … in terms of the
Town Planning and Townships Ordinance 1986
by no later than 30
November 2013’.
[9]
According
to the affidavit by the municipal manager, it is the ‘land
invasion department’ of the Municipality that should
ensure
that no further residential units are erected or added to existing
ones within the demarcated area. In similar vein, it
is the Director:
Metro Police who is responsible for the control of access and the
appointment of security officers. Mr Fenyani
is not responsible for
the appointment of security guards but under this order he is
nevertheless held accountable for the non-compliance
of others with
those duties.
[22]
On
that ground alone the imprisonment of Mr Fenyani for the inadequacies
in the Municipality’s compliance with the order of
Hartzenberg
J, a non-compliance that, notwithstanding the difficulty of knowing
precisely what they had to do to comply with it,
they acknowledged
when the consent contempt order was granted, would be inappropriate.
We do not hesitate to endorse what Nugent
JA said in this court in
Kate
,
[10]
that ‘there ought to be no doubt that a public official who is
ordered by a court to do or to refrain from doing a particular
act,
and fails to do so, is liable to be committed for contempt, in
accordance with ordinary principles’. However, it must
be clear
beyond reasonable doubt that the official in question is the person
who has wilfully and with knowledge of the court order
failed to
comply with its terms. Contempt of court is too serious a matter for
it to be visited on officials, particularly lesser
officials, for
breaches of court orders by public bodies for which they are not
personally responsible.
[23]
There are numerous legislative provisions
regarding the person or persons responsible for the administration of
local authorities.
Section 82
of the
Local Government:
Municipal Structures Act 117 of 1998
determines that the municipality
must appoint a municipal manager as the person responsible for the
administration of the municipality
and such person will also be the
accounting officer of the municipality. In terms of
s 56(3)
of the
same Act, the executive mayor, in performing his duties must monitor
the management of the municipality’s administration
in
accordance with the direction of the municipal council
(s 56(3)(
d
))
and oversee the provision of services to communities in the
municipality in a sustainable manner
(s 56(3)(
e
)).
Section 54A
of the
Local Government: Municipal Systems Act 32 of 2000
also provides that the municipal council must appoint a municipal
manager as the head of administration of the municipal council.
Furthermore,
s 55
sets out the responsibilities of the municipal
manager as head of the administration, subject to the policy
directions of the municipal
council.
Section 55(1)(
b
)
determines that the municipal manager is responsible and accountable
for the management of the municipality’s administration.
Section 60 of the Local Government: Municipal Finance Act 56 of 2003
provides that the municipal manager is the accounting officer
of the
municipality.
[24]
From the abovementioned provisions it is
clear that the municipal manager is, so far as the officials of a
municipality are concerned,
the responsible person tasked with
overseeing the implementation of court orders against the
municipality. The municipal manager
would know, as the accounting
officer, what is feasible and what is not. The municipal manager
cannot pass responsibility for these
administrative duties to a
manager or director who is not directly accountable in terms of their
duties. It is unacceptable that
a person is ‘selected’ by
the municipality to be liable for imprisonment, when that person is
clearly not the one who
has control over all the facets and terms of
the order and it is clear that they are being made the scapegoat. The
municipal manager
is the official who is responsible for the overall
administration of the municipality and the logical person to be held
responsible.
Even if, as must necessarily be the case, the municipal
manager delegates tasks flowing from a court order to others it
remains
his or her responsibility
to secure
compliance therewith. It may be that certain of the political office
bearers may also be liable for a contempt but it
is unnecessary to
traverse the possible ambit of such responsibility here.
Was
there non-compliance?
[25]
The appellants’ approach to this
matter was to take the order as their starting point and then seek to
establish that the
conditions on which the order had been suspended
had not been fulfilled. There is certainly justification in the
evidence for many
of their complaints. It is clear, for example, that
the damage to the fence is a persistent problem. Under those
circumstances
it was argued, on behalf of the appellants, that the
municipality is required to inspect the fence and effect repairs
daily. That
seems excessive but it can be accepted that weekly
inspections were considered reasonable as gauged from the appellants’
founding affidavit, and the fact that it is what Mr Fenyani attested
to doing, according to the respondents’ affidavits. However,
if
his reports are considered it is clear that he inspected the fence
irregularly. He filed inspection reports on 1 August
2012, 14
September 2012, 16 October 2012, 16 November 2012 and 4 December
2012. The report of 14 September 2012 and all further
reports given
by him are in a more or less standard form and state that ‘During
my inspection, the Northern fence a hole
is opened for illegal
access. Jacaranda fencing company will be requested to repair the
damage’. However, according to his
affidavit he only contacted
the contractor on 20 December 2012 to effect the repairs, after this
application was served. The fence
was subsequently repaired in
January 2013. That was clearly an insufficient effort to comply with
the order.
[26]
In regard to the provision of security
guards to monitor access to the settlement it appears that the
Municipality contracted with
external firms to provide this service.
The regular reports furnished to the appellants by a representative
of a different security
firm paint a picture of an inadequate service
being rendered in this regard. There is little indication that the
Municipality did
anything to oversee the work of these contractors,
whether by explaining to them the exact nature of the duties required
of them,
or by regular inspections to ascertain whether they were
performing their contractual duties adequately. Although this was
drawn
to the attention of the Municipality there is no indication
that they did anything about it. This was not of course Mr Fenyani’s
responsibility.
[27]
There were undoubtedly challenges facing
the Municipality in giving effect to these orders. The evidence that
the holes in the fence
were cut by residents at the same place on a
regular basis in order to provide them with a more convenient point
of access to the
settlement was not disputed. The Municipality’s
suggestion that a further gate should be fitted at that point manned
by security
guards received the unhelpful response from the
appellants that this would be a breach of the court’s order. In
regard to
access cards these have been duplicated and it is difficult
to control the access due to such duplication. Whilst a further
consent
order required new access cards to be issued within four
weeks of the order, this does not appear to have taken into
consideration
the safeguards against duplication, which needed to be
built into the access cards and the costs and general feasibility
involved
in such re-issue.
[28]
Overall the impression is that the
Municipality was less than diligent in seeking to comply with these
orders. Even if allowance
is made for the broad terms in which they
were couched it does not seem that the Municipality and its
officials, of whom Mr Fenyani
was one, exerted any vigour to secure
compliance. The municipality’s affidavits are replete with
statements that it is a
‘challenge’ to give effect to the
order; the residents make it ‘difficult’ to maintain the
area; it is
not ‘practically possible for second respondent …
constantly to monitor the fence’; ‘… it is
difficult
for the respondents to control and maintain the behaviour
of the residents of the demarcated area’. And ‘It is
unfortunate
that the first respondent is not able to control the
behaviour of the residents of the demarcated area’. Paragraph
12 of
the order of Hartzenberg J envisaged that the Municipality
could apply for the variation or amplification of any of the terms of
the order. In spite of the obstacles faced by the Municipality and Mr
Fenyani, no application was brought to vary the orders.
Van der
Byl AJ recorded that an application for the variation of the earlier
order was withdrawn, but we know nothing of its terms
or the reason
for not proceeding with it. However, all of this was insufficient in
the light of the considerations set out above
to hold Mr Fenyani –
and the order sought was directed at him personally – in wilful
non-compliance with the provisions
of the order warranting his
imprisonment.
Events
have overtaken this appeal.
[29]
One further aspect of the matter cannot be
allowed to pass without mention. The current application was brought
during November
2012, nearly two years ago. There have been two
subsequent court orders dealing with the same issues. In one,
made by consent,
Webster J inter alia refined and established time
frames within which the fence had to be repaired, increased the
number of security
guards that had to be employed and increased their
duties. His order made paragraphs 2 and 3 of the original order
obsolete. The
appellants were asking that Mr Fenyani be committed to
prison based on paragraphs of an order that had been superseded by a
subsequent
court order. Non-compliance with Webster J’s order
was the subject of the proceedings before Pretorius J. That could not
be justified on any basis.
Costs
[30]
The court below should have found that
there was culpable non-compliance by the Municipality. However, as
set out above, Mr Fenyani
was not the correct person to hold
accountable, as he was not responsible for the implementation of all
of the terms of the order
by Hartzenberg J, nor was the order made
against him. Indeed it could not have been. In this court, although
the applicants were
substantially successful in contending that there
had been non-compliance their remedy was ill chosen and they should
have realised
that events had overtaken the appeal. In those
circumstances the correct costs order in both this court and the
court below should
be that each party pay their own costs. That
requires an amendment of the order granted by Kubushi J.
Conclusion
[31]
It is apparent that in spite of the
numerous court orders (stretching over a period of at least eight
years) and applications for
contempt of court; the application for
the committal of Mr Fenyani to imprisonment; and an order that the
Municipality launch eviction
proceedings against all the occupiers of
the property, the problems of neither the neighbouring landowners nor
the residents of
Woodlane Village have been solved.
[32]
The
Municipality is obliged to respond to people’s needs and
encourage the public to participate in policy making and the
administration must be accountable.
[11]
Furthermore, the Municipality must adhere to the principles of
Schedule 2 of the Systems Act dealing with the code of conduct for
municipal staff members, and specifically s 3(
b
)
and (
c
)
thereof, which reads thus:
‘
Commitment
to serving the public interest —
A
staff member of a municipality is a public servant in a developmental
local system, and must accordingly—
(
a
)
…
(
b
)
foster a culture of commitment to serving the public and a collective
sense of responsibility for performance in terms of standards
and
targets;
(
c
)
promote and seek to implement the basic values and principles of
public administration described in section 195 (1) of the
Constitution;’
[33]
In
Nyathi
v MEC for Department of Health, Gauteng
[12]
dealing
with the issue whether the provision of
s 3(1)
of the
State Liability
Act 20 of 1957
that '(n)o execution, attachment or like process …
may be issued against the defendant or respondent in any action or
legal
proceedings or against property of the State' is
constitutional, Madala J said:
‘
The
English Courts have looked at the possibility of holding officials
responsible for wrongs that they have committed in their
official
capacity. They proceed on the premise that, in committing the wrongs,
such officials are stepping outside of the realm
of protection
afforded to public officials under the Crown Proceedings Act. The
possibility of a
similar route in South
Africa is, however tempting, impractical. The committal of public
officials would only result in the “naming
and shaming”
of such officials and would produce no real remedy for the aggrieved
litigant who is primarily concerned with
the payment of the judgment
debt. The potential disruption of already overburdened
State departments is also a result which
should be avoided.’
and
‘
Secondly,
State administration is inefficient and ineffective. The conduct of
State officials undermines the legitimacy of both
the judiciary and
the State. Generally, relevant State departments are in the best
position to assess the magnitude of the problems
faced by their
personnel
and are similarly in the best
position to address the systemic failure of State officials to
perform their duties. These State institutions
need to look at these
failings holistically and consider the best manner in which to deal
with the problems at hand. This court
is not in a position at this
stage to assess the problems faced.’
[34]
The
question of injunctive relief against the State was addressed in
Minister
of Health & others v Treatment Action Campaign & others (No
2)
[13]
After discussing the jurisprudence in foreign jurisdictions on the
permissible scope of court orders the court said in para 112:
‘…
The
various courts adopt different attitudes to when such remedies should
be granted, but all accept that within the separation
of powers they
have the power to make use of such remedies – particularly when
the State’s obligations
are not
performed diligently and without delay.’
And
it was held by the court in para 113:
‘
South
African Courts have a wide range of powers at their disposal to
ensure that the Constitution is upheld. These include mandatory
and
structural interdicts. How they should exercise those powers depends
on the circumstances of each particular case. Here due
regard must be
paid to the roles of the Legislature and the Executive in a
democracy. What must be made clear, however, is that
when it is
appropriate to do so, Courts may – and, if need be, must –
use their wide powers to make orders that affect
policy as well as
legislation.’
[35]
Both
this Court
[14]
and the
Constitutional Court
[15]
have
stressed the need for courts to be creative in framing remedies to
address and resolve complex social problems, especially
those that
arise in the area of socio-economic rights. It is necessary to add
that when doing so in this type of situation courts
must also
consider how they are to deal with failures to implement orders; the
inevitable struggle to find adequate resources;
inadequate or
incompetent staffing and other administrative issues; problems of
implementation not foreseen by the parties’
lawyers in
formulating the order and the myriad other issues that may arise with
orders the operation and implementation of which
will occur over a
substantial period of time in a fluid situation. Contempt of court is
a blunt instrument to deal with these issues
and courts should look
to orders that secure on-going oversight of the implementation of the
order. There is considerable experience
in the United States of
America with orders of this nature arising from the decision in
Brown
v Board of Education
[16]
and the federal court supervised process of desegregating schools in
that country. The Constitutional Court referred to it with
approval
in the
TAC
(No 2)
case.
[17]
Our courts may need
to consider such institutions as the special master used in those
cases to supervise the implementation of
court orders.
[18]
[36]
When
these matters were raised with them counsel for both parties
indicated that they would endeavour to find a workable solution.
This
is imperative, as the residents of Woodlane Village have been living
in squalid conditions over the past eight years without
any solution
in sight. Indeed their hopes for a solution have been repeatedly
dashed. The report of the Tswelopele Non-Profit Organisation
[19]
makes it clear that the residents have formed a community. Examples
of this are that 85 per cent of the households have at least
one
person in the formal employment sector; the dwellings are numbered
which enable the occupants to access medical facilities;
the people
have elected an executive committee and in addition to the five
members of the committee there are also 31 block leaders.
There is a
real likelihood of the parties finding a workable solution if there
is the will to do so, even under the authority of
an independent
overseer that could hold all parties accountable. In this instance
the parties must find innovative methods to resolve
the competing
interests of the different factions of the community.
Order
[37]
The following order is made:
1
The costs order in the high court is set aside and replaced with an
order that each party pay their own costs.
2
The appeal is otherwise dismissed
3
Each party is to pay their own costs of appeal.
____________________
M
J D WALLIS
JUDGE
OF APPEAL
____________________
I
SCHOEMAN
ACTING
JUDGE OF APPEAL
Appearances:
For
the Appellant: N G D Maritz SC (with him A P J Els)
Instructed
by:
Salomé
Le Roux Attorneys, Pretoria
Symington
& De Kok, Bloemfontein
For
the Respondent: L G Nkosi-Thomas SC (with her N Ntuli)
Instructed
by:
Kunene
Ramapala & Botha Inc, Pretoria
Lovius
Block Attorneys, Bloemfontein
[1]
They are sometimes referred to as structural interdicts but that is
often a misnomer in relation to an order that combines elements
of
an interdict and a mandatory order.
[2]
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality
and
Others
2007
(6) SA 511 (SCA).
[3]
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294
(SCA) and
Ekurhuleni
Metropolitan Municipality and Another v Various Occupiers, Eden Park
Extension 5
2014 (3) SA 23 (SCA).
[4]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
2012 (2) SA 104
(CC). The leading cases are collected in footnote
127 in
Head
of Department, Department of Education, Free State Province v Welkom
High School and Others
2014 (2) SA 228 (CC).
[5]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
2012 (6) SA 223
(CC) paras 63-71.
[6]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42.
[7]
S
v Gardener & another
2011
(1) SACR 570
(SCA) para 75; see also
S
v Beyers
1968
(3) SA 70
(A) at 76E-G.
[8]
P
ara
38.
[9]
Paragraph 2 of the order of Van der Byl AJ.
[10]
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA) para 30.
[11]
The
Constitution 1996, s 195(1)(
e
)
and (
f
).
Ngaka
Modiri Molema District
Municipality v Chairperson, North West
Provincial Executive Committee and Others
[2014] ZACC 31
paras 1, 9 and 12.
[12]
Nyathi
v MEC for Dept of Health, Gauteng
2008 (5) SA 94
(CC) paras 76 and 78.
[13]
Minister
of Health & others v Treatment Action Campaign & others (No
2)
2002
(5) SA 721 (CC).
[14]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of
the Republic of South Africa and Others v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources
Centre, Amici Curiae)
2004
(6) SA 40
(SCA) para 42;
Children's
Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013
(2) SA 213
(SCA) para 87.
[15]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 36 (per Sachs J): ‘The court is thus
called upon to go beyond its normal functions and to engage in
active judicial
management according to equitable principles of an
ongoing, stressful and law-governed social process. This has major
implications
for the manner in which it must deal with the issues
before it, how it should approach questions of evidence, the
procedures
it may adopt, the way in which it exercises its powers
and the orders it might make.’
[16]
Brown
v Board of Education
347 US 483
(1954).
[17]
Para
107.
[18]
See Geoffrey F Aronow ‘The Special Master in School
Desegregation Cases: The Evolution of Roles in the Reformation of
Public Institutions Through Litigation’ 7
Hastings
Constitutional Law Quarterly
739,
(Spring1980).
[19]
A
poverty alleviation and social development organisation that has
been involved with the occupiers of the property since the
establishement thereof.