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[2021] ZASCA 8
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Ndabeni v Municipal Manager: OR Tambo District Municipality and Another (1066/19) [2021] ZASCA 8 (21 January 2021)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 1066/2019
In the matter between:
NOSIPHO
PORTIA NDABENI
APPELLANT
and
MUNICIPAL MANAGER:
OR
TAMBO DISTRICT MUNICIPALITY
(OWEN
NGUBENDE HLAZO) FIRST
RESPONDENT
OR
TAMBO DISTRICT MUNICIPALITY SECOND RESPONDENT
Neutral
citation:
Ndabeni v Municipal
Manager: OR Tambo District Municipality and Another
(Case
no 1066/19)
[2021] ZASCA 08
(21 January 2021)
Coram:
PETSE DP, ZONDI and DAMBUZA JJA and EKSTEEN and
POYO-DLWATI AJJA
Heard
:
10 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email
, publication on
the Supreme Court of Appeal website and released to SAFLII. The date
and time for hand-down is deemed to be 09h45
on 21 January 2021.
Summary:
Contempt of court proceedings –
failure to comply with court order – application for declarator
to that effect –
standard of proof required – applicant
for declarator required to prove non-compliance on a balance of
probabilities –
once existence of court order, service thereof
and non-compliance established, respondent bears evidentiary onus to
show that non-compliance
neither wilful nor
mala
fide –
respondents failing to
discharge evidentiary onus.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, Mthatha (Griffiths J, sitting as court of first
instance):
1.
The appeal is upheld with costs on an attorney and client scale.
2. The order of the
high court is set aside and replaced by the following:
‘
(a)
The respondents’ conduct in failing to comply with the order of
Mjali J (save for
para 2 thereof) issued on 13 December 2016 is
declared unlawful.
(b) The
respondents are declared to be in contempt of the aforesaid order.
(c) The
respondents are ordered to purge the aforesaid contempt within 30
days of the
date of this order.
(d)
The respondents are ordered to pay the applicant’s costs on an
attorney and client
scale’.
JUDGMENT
Poyo-Dlwati
AJA (Petse DP and Zondi JA concurring):
[1]
This appeal raises the question whether a court order issued by the
Eastern Cape Division of the High
Court, Mthatha (the high court)
(Mjali J) declaring the appellant, Ms Nosipho Portia Ndabeni, a
permanent employee of the second
respondent, the O R Tambo District
Municipality, by virtue of its resolution 10/2011 of 30 January 2011,
was a nullity because
its implementation would constitute a
contravention of s 66 of the Local Government: Municipal Systems Act
32 of 2000 (the Municipal
Systems Act). This question arises against
the following backdrop.
[2]
The appellant was, pursuant to an advertisement in a local newspaper
of 11 March 2005, employed by the
second respondent on a one-year
contract on 1 July 2005 as an Aids Training Information and
Counselling Centre Manager, later referred
to as Senior Coordinator
Manager. At the expiry of the initial one year period, her contract
was renewed from time to time until
30 January 2011 when the second
respondent took a resolution
[1]
to convert all its contract employees to permanent employees. For
unknown reasons, the appellant was excluded from benefiting from
this
resolution. The appellant tried, to no avail, to have her exclusion
resolved amicably. With the matter remaining unresolved,
the
appellant then launched an application in the high court pursuant to
which an order in the following terms was granted on 13
December 2016
by Mjali J:
‘
1.
The applicant is hereby declared the
permanent employee of the first respondent in her capacity as the
Manager at Aids Training
Information and Counselling Centre Manager
Section – ATICC by virtue of resolution 10/11 of 30
th
January 2011 and any contrary conduct or action taken by the
respondents is hereby declared a nullity;
2.
The post referred to as AIDS Training
Information and Counselling Centre Manager (ATICC) previously
occupied by the applicant is
hereby declared a permanent post in line
with resolution 10/11 of 30
th
January 2011;
3.
The respondents are directed to pay the
costs of this application jointly and severally one paying the other
to be absolved from
liability on attorney and own client scale;
4.
The first respondent be ordered to pay the
applicant’s salary and other benefits, retrospectively from the
date upon which
such payments ceased; and
5.
An order compelling the Municipality to pay
the applicant’s salary and other benefits, in future, in
accordance with benefits
and service conditions applicable to an
employee of her status’.
[3]
It is apposite at this stage to mention that the application before
Mjali J was unopposed as the respondents
had not filed any answering
affidavits despite having been placed on terms to do so. On the day
on which the matter served before
Mjali J for hearing, the
respondents applied for an adjournment to enable them to file their
answering affidavits. The respondents’
application for
adjournment was opposed by the appellant and refused by the learned
Judge. The hearing proceeded without the respondents.
After hearing
argument, the high court granted the order mentioned in the preceding
paragraph. The learned Judge subsequently refused
the respondents’
application for leave to appeal. A further application for leave to
appeal to this Court, which was brought
out of time, also suffered
the same fate.
[4]
It is apparent from the record that the respondents were intent on
lodging an application for leave
to appeal to the Constitutional
Court but, when they realised that their envisaged application to
that Court would have been woefully
out of time by some nine months,
the intended application was abandoned. According to the appellant,
this Court’s order refusing
leave to appeal was served on the
respondents on 30 July 2018. Despite their knowledge of the two
orders refusing leave and Mjali
J’s order of 13 December 2016,
the respondents still failed to comply with the latter order. This
led to the appellant launching
a contempt of court application on 1
February 2019, as she viewed the respondents’ failure to comply
with Mjali J’s
order as contempt of court and therefore
unlawful. On 19 February 2019, Mbenenge JP issued a rule
nisi
calling upon the respondents to show cause why they should not be
held in contempt of the Mjali J’s order.
[5]
The respondents opposed the application on various grounds. In their
opposition, they never denied the
existence of the order and that the
order had been served on them. Their main grounds of opposition, in
summary, were that employing
the appellant would result in a portion
of the funds meant to finance the second respondent’s service
delivery initiatives
being diverted to pay the appellant’s
salary. This, asserted the respondents, would be the case because the
appellant’s
position was not provided for in the second
respondent’s staff establishment. Furthermore, the respondents
contended that
the first respondent, the municipal manager would have
to enter into an employment contract under circumstances where doing
so
would, in terms of subsecs (3) and (4) of s 66 of the Municipal
Systems Act, be null and void.
[2]
For
his part, the first respondent asserted that employing the applicant
in those circumstances would expose him to serious repercussions
as
he would be held liable for any resultant irregular or fruitless and
wasteful expenditure. Consequently, the respondents denied
that their
non-compliance with the Mjali J’s order was wilful and mala
fide.
[6] In due course, the
application for contempt of court came before Griffiths J. At this
hearing the appellant
expressly abandoned any relief for criminal
contempt against the first respondent. Thus, the only issues for
determination were:
whether the respondents’ conduct, in
failing to comply with the court order, was unlawful; and whether the
respondents were
indeed in contempt of the Mjali J’s order.
After hearing the application, which was by then opposed,
Griffiths J discharged
the rule
nisi
. In so doing, the learned
Judge held:
‘
In my view, the situation here
is directly analogous to that which pertained in the
Motala
matter. Having found that paragraphs 33 – 35 of the answering
affidavit (which deal with the factual basis for the contention
that
no such post as referred to in Mjali J’s order exists in the
staff establishment) do not fall to be struck out, and
thus remain
unchallenged by the applicant, the prohibition in subsection (3) is
squarely applicable. Accordingly, the only conclusion
that I can
reach is that Mjali J was not empowered to grant the order which she
did and that it is, in the circumstances, a nullity
[3]
’
.
[7]
Dissatisfied with this outcome, the appellant applied for and was
granted leave to appeal to this Court.
As already indicated, the
existence of the order and its service on the respondents were not in
dispute and, for the reasons set
out later, its validity is
unassailable. Consequently, the respondents bore the evidentiary
burden to satisfy the high court that
their failure to comply with
the Mjali J’s order was neither wilful nor mala fide.
[4]
[8]
The logical starting point in this matter is the Constitution
[5]
itself. Section 165(5) of the Constitution provides that an order or
decision issued by a court binds all persons to whom and organs
of
state to which it applies. There is no doubt that court orders, once
issued, are binding and must therefore be complied with.
As Madlanga
J explained in
Moodley
v Kenmont School and Others
[6]
(
para 36):
‘
I cannot but again refer to
section 165(5) of the Constitution which provides that “[a]n
order or decision issued by a court
binds all persons to whom and
organs of state to which it applies”. This is of singular
importance under our constitutional
dispensation which is founded on,
amongst others, the rule of law. The judicial authority of the
Republic vests in the courts.
Thus, courts are final arbiters on all
legal disputes, including constitutional disputes. If their orders
were to be obeyed at
will, that would not only be “a recipe for
a constitutional crisis of great magnitude”, “[i]t
[would] strike
at the very foundations of the rule of law” and
of our constitutional democracy’. (Footnotes omitted.)
[9]
It is trite that ‘an order of a court of law stands until set
aside by a court of competent jurisdiction.
Until that is done the
court order must be obeyed even if it may be wrong.’
[7]
This principle was affirmed most recently by this Court in
Whitehead
and Another v Trustees of the Insolvent Estate of Dennis Charles
Riekert and Others
.
[8]
Whilst counsel for the appellant sought to attack the competency of
Griffiths J in setting aside Mjali J’s order as a nullity,
this
was not pursued with any vigour before us, correctly so in my view.
Nothing prevented Griffiths J from declaring the order
a nullity, had
his reasons for doing so been correct. He had the necessary
jurisdiction and authority to do so. However, as will
be demonstrated
below, in the context of the facts of this case, the learned Judge
erred in doing so.
[10] In finding Mjali J’s
order to be a nullity, the high court accepted the respondents’
explanation
that they encountered difficulties in implementing the
order because what was required of them would be in
contravention
of subsecs (3) and (4) of s 66 of the Municipal Systems
Act. In reaching its conclusion, the high court had regard to the
decisions of this Court in
Master
of the High Court (North Gauteng High Court, Pretoria) v Motala NO
and Others
[9]
and
Minister of
Rural Development and Land Reform v Normandien Farms (Pty) Ltd and
Others
[10]
;
as well as the decision of the Constitutional Court in
Department
of Transport and Others v Tasima (Pty) Ltd
.
[11]
Also, after analysing the provisions of s 66 (3) and (4), the high
court found that ‘the determination of the staff establishment
of a municipality is the preserve of the municipal manager, subject
to the approval of the Council, as are the job descriptions,
remuneration and other conditions of employment’.
[11]
The high court further held that once such staff establishment has
been so developed, subsec (3) appears to be
cast in imperative terms
in forbidding the employment of any person unless the post to which
he or she is appointed is indeed for
the staff establishment so
developed. True, subsec (4) declares that any contract concluded in
the circumstances is null and void
if the appointment was made in
contravention of subsec (3). The imperative nature of the prohibition
in subsec (3) is reinforced
by subsec (5).
[12]
It is manifest that this section holds any person who takes a
decision contemplated in subsec (4) personally liable for fruitless
and wasteful expenditure that a municipality may incur as a result of
the invalid appointment.
[12]
The learned Judge proceeded to hold that in his view, the situation
in this matter was directly analogous to that
which obtained in
Motala
.
Having found that paragraphs 33-35 of the answering affidavit (which
dealt with the factual basis for the contention that no such
post as
referred to in Mjali J’s order existed in the staff
establishment) do not fall to be struck out and thus remain
unchallenged by the applicant, he held that the prohibition in subsec
(3) was squarely applicable. He further found that the only
conclusion that he could reach was that Mjali J was not empowered to
grant the order which she did and that it was, in the circumstances,
a nullity. In my view, this conclusion is insupportable.
[13]
As this Court held in
Motala
(
para 14):
[13]
‘
[I]n my view, as I have
demonstrated, Kruger AJ was not empowered to issue and therefore it
was incompetent for him to have issued
the order that he did. The
learned judge had usurped for himself a power that he did not have.
That power had been expressly left
to the Master by the Act. His
order was therefore a nullity. In acting as he did, Kruger AJ served
to defeat the provisions of
a statutory enactment. It is after all a
fundamental principle of our law that a thing done contrary to a
direct prohibition of
the law is void and of no force and effect
(
Schierhout v Minister of Justice
1926 AD 99
at 109). Being a nullity a pronouncement to that effect
was unnecessary. Nor did it first have to be set aside by a court of
equal
standing. For as Coetzee J observed in
Trade
Fairs and Promotions (Pty) Ltd v Thomson and Another
1984
(4) SA 177
(W) at 183E: “[i]t would be incongruous if parties
were to be bound by a decision which is a nullity until a Court of an
equal number of Judges has to be constituted specially to hear this
point and to make such a declaration”.’
[14]
It bears emphasis that the facts in
Motala
are materially distinguishable from
those of the present case. There, the high court was found to have
impermissibly appropriated
to itself a statutory power that vested
exclusively in the Master of the High Court by virtue of s 429 of the
Companies Act 61
of 1973 therein under consideration. However, in
this case the issue is factual, did Mjali J order the respondent to
‘employ’
the appellant or merely declare that she is in
fact employed. Section 66 of the Municipal Systems Act deals with
staff establishment
within the sphere of local government.
Subsections (3) and (4) of s 66 of the Municipal Systems Act deal
with employment by a municipality.
Mjali J’s order, properly
construed, did not, in my view, have the effect of employing the
appellant, contrary to what the
high court found. All it did was to
declare that the appellant was equally a member of the class of
temporary employees targeted
by resolution 10/11. Accordingly, there
was no basis to exclude her from the resolution’s ambit.
[15]
Before us the high court’s finding that the Mjali J’s
order had the effect of employing the appellant
was enthusiastically
embraced by the respondents. It suffices merely to state that the
respondents’ reliance on this finding
is misplaced. The truth
of the matter is that all that Mjali J did was simply to issue a
declaratory order pursuant to resolution
10/11 of the second
respondent’s Council which converted all its contract employees
into permanent employees. Put differently,
she declared that the
appellant’s employment had been converted from contract to
permanent employment. As previously mentioned,
the existence of the
Council’s resolution was never disputed by the respondents.
[16]
Curiously, the respondents elected not to take the high court into
their confidence and explain to the high court
how this resolution
was to be implemented and why it was never applied to the appellant.
Despite the fact that the resolution concerned
was their document, it
was not placed before the high court. Nor was its absence explained
by the respondents. Accordingly, it
does not avail the respondents to
contend that there was no position for the appellant in their staff
establishment. The Council
had passed a resolution in terms of which
all temporary positions were converted into permanent positions. What
then remained was
for the first respondent to implement resolution
10/11 and revise the second respondent’s staff establishment to
align it
with such resolution. But lo and behold the high court was
not told why this resolution was not implemented, given that there
has
been no suggestion that it was subsequently varied or rescinded.
It is necessary to emphasize that the provisions of s 66 of the
Municipal System Act, erroneously thought by the high court to be an
insurmountable hurdle for the appellant, were clearly not
applicable.
This must be so because one is here not dealing with a decision to
employ the appellant but rather the implementation
of the second
respondent’s resolution in so far as it related to temporary
employees, and, in particular, the appellant.
[17]
Furthermore, there was no genuine dispute of fact that when Council
took resolution 10/11 the appellant was a contract
employee in the
second respondent’s employ. As it was put in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
:
[14]
‘
When the facts averred are
such that the disputing party must necessarily possess knowledge of
them and be able to provide an answer
(or countervailing evidence) if
they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial
the court will generally have
difficulty in finding that the test is satisfied’.
[18]
Moreover, there was no dispute about the existence or correctness of
the Council resolution itself. In any event
as this Court held in
Manana v King Sabata
Dalindyebo Municipality
:
[15]
‘
No
doubt a municipal council is entitled to rescind or alter its
resolutions. And no doubt an interested party is entitled to
challenge
its validity on review. But once a resolution is adopted,
in my view, its officials are bound to execute it, whatever view they
might have on the merit of the resolution, in law or otherwise, until
such time as it is either rescinded or set aside on review’.
There
was also no evidence that as at January 2011, when the resolution was
taken, the appellant’s position was not on the
staff
establishment. The organogram attached to the first respondent’s
answering affidavit was unhelpful as it was not dated
and there was
no averment as to when it was adopted or approved by the second
respondent.
[19]
Inexplicably, the respondents sought to dispute that the appellant
was ever employed by them. But this contrived
denial was at variance
with what the respondents themselves averred in their answering
affidavit in the contempt application in
which they set out details
of the salary that was paid to the appellant before the termination
of her employment in 2014. In any
event, in the absence of any cogent
explanation from the respondents one can safely conclude that prior
to the appellant’s
position being advertised in March 2005, her
post must have been in the second respondent’s staff
establishment hence the
need for that post to be filled. She was then
employed on a year to year basis for an extended period and occupied
that position
until 2014 when her services were, without rhyme or
reason, summarily terminated.
[20] This then brings me to the crux of this
appeal. In essence, this appeal pertinently raises the question
whether
the respondents discharged their evidentiary duty that their
non-compliance with the Mjali J’ order was neither wilful nor
mala fide. In determining this issue, the high court said the
following (para 35):
‘
Even if I am wrong in this
conclusion, it is clear from all the facts in this matter that the
first respondent has sincerely believed
throughout that these
contentions are correct. Indeed, his own legal team (as led by an
eminent senior counsel) have clearly held
that view which was
advanced before me. Furthermore, as mentioned earlier in this
judgment, this question has exercised the minds
of some of the top
judges in this country and one can hardly expect a municipal manager
(who may well be facing personal liability
pursuant to subsection
(4)) to believe otherwise. In the circumstances, it can hardly be
said that he acted mala fide in not carrying
out the order of Mjali
J’.
[21] The deponent to the second respondent’s
answering affidavit resisting the contempt of court proceedings
stated
the following in paragraph 37.2:
‘
I
as the second respondent have
deliberately
refused
to give effect to the order. In
this regard, I refer this court to my allegations under the rubric
reasons for non-compliance.’
(My
emphasis.)
In
their reasons for non-compliance, the respondents, in essence, stated
that the appellant’s employment was hit by the prohibition
contained in s 66(3) and (4) of the Municipal Systems Act to which
reference has already been made above.
[22] The question here is not whether or not
s 66 applies, but whether the first respondent believed that it
applied.
The high court found that he believed that it prevented him
from giving effect to the order. The reason, it seems to me, why his
explanation cannot be accepted is that both Mjali J and this Court
had already given consideration to the reasoning in the high
court
judgment and found there to be no prospects on appeal. Accordingly,
the respondents’ reliance on s 66 is no more than
a ruse
employed to justify their misguided attempts not to implement
resolution 10/11 which, in the absence of evidence to the
contrary,
must be taken to be still of force and full effect. In these
circumstances, the high court should have found that the
respondents
dismally failed to discharge the evidentiary onus resting on them
that their non-compliance with the Mjali J’s
order was neither
wilful nor mala fide.
[23]
As I have said, the respondents have provided no explanation for
their failure to apply resolution 10/11 to the
appellant. This grave
omission leaves a huge void in the respondents’ case. And this
void ineluctably leads to one conclusion,
namely that the respondents
failed to discharge the evidentiary burden that they bore.
[24]
The final issue to consider is whether this Court should confirm the
Mjali J’s order in its entirety without
falling foul of
usurping a power that it does not have. As discussed above, paragraph
1 of that order is in line with Council’s
resolution 10/11.
Paragraphs 4 and 5 are consequential to paragraph 1. Insofar as
paragraph 2 is concerned, different considerations
apply. In my view,
the terms of paragraph 2 are overbroad to the extent that they in
effect create a permanent post in the second
respondent’s staff
establishment when the power to do so is an exclusive preserve of a
municipal Council. Thus, to that limited
extent paragraph 2 of the
Mjali J’s order falls to be deleted.
[25]
Before making the order,
it has
unfortunately become necessary to comment on the way the respondents
conducted this litigation. The second respondent is
an organ of
State. Accordingly, it was duty bound to conduct itself in an
exemplary manner. For as Cameron J pointed out in
Merafong
City v Anglogold Ashanti Ltd
:
[16]
‘
This court has affirmed as
a fundamental principle that the state “should be exemplary in
its compliance with the fundamental
constitutional principle that
proscribes self-help”. What is more, in
Khumalo
this
court held that state functionaries are enjoined to uphold and
protect the rule of law by inter alia seeking the redress of
their
departments’ unlawful decisions. Generally, it is the duty of a
state functionary to rectify unlawfulness. The courts
have a duty “to
insist that the state, in all its dealings, operate within the
confines of the law and, in so doing, remain
accountable to those on
whose behalf it exercises power”. Public functionaries “must,
where faced with an irregularity
in the public administration, in the
context of employment or otherwise, seek to redress it”. Not to
do so may spawn confusion
and conflict, to the detriment of the
administration and the public’.
[26]
Although these remarks were made in a different context, in my view,
by parity of reasoning they apply with equal
force in the
circumstances of this case. The lackadaisical manner in which the
respondents conducted this litigation warrants a
punitive costs order
against them. They dragged the litigation unnecessarily to the
detriment of the appellant. Almost all their
responses to the
appellant were preceded by an application for condonation for the
late filing of their documents. They were not
candid with the court
and provided information scantily. They did nothing for at least nine
months until the appellant launched
the contempt application. This
must be frowned upon by this Court in line with what was said by
Cameron J in
Merafong.
[27] In the result, the following order is
made:
1. The appeal is
upheld with costs on an attorney and client scale.
2. The order of the
high court is set aside and replaced by the following:
‘
(a)
The respondents’ conduct in failing to comply with the order of
Mjali J (save for
para 2 thereof) issued on 13 December 2016 is
declared unlawful.
(b) The
respondents are declared to be in contempt of the aforesaid order.
(c) The
respondents are ordered to purge the aforesaid contempt within 30
days of the
date of this order.
(d)
The respondents are ordered to pay the applicant’s costs on an
attorney and client
scale’.
________________________
T P POYO-DLWATI
ACTING JUDGE OF APPEAL
Dambuza
JA (Eksteen AJA concurring):
[28]
I have had the benefit of reading the judgment (main judgment) penned
by my colleague Poyo-Dlwati AJA. Regrettably,
I am unable to agree
with my colleague’s reasoning and conclusion. In my view the
court a quo was correct in concluding that
the order of 13 December
2016 was a nullity and that, on the evidence before it, no finding of
wilfulness or mala fides could be
made against the respondents.
[29]
With regard to the validity of the order, the basis for the
conclusion, in the main judgment, that the court order
of 13 December
2016 was not a nullity, is that the judge neither ordered the
respondents to employ the appellant nor declared her
to be employed
by the second respondent. The order was merely a declarator that ‘the
appellant was equally a member of the
class of temporary employees
targeted by resolution 10/11’. For these reasons, the
provisions of s 66(3) and (4) of the Municipal
Systems Act were not
applicable in this case.
[30]
The reasons for my disagreement on this issue are that, by all
accounts, when the order of 13 December 2016 was
granted, the
appellant was not a permanent employee of the second respondent
municipality. The crux of her case before Mjali J
was that the
municipality should have employed her as a permanent employee in 2011
or as per Council Resolution 10/11. In finding
in her favour, Mjali J
granted an order declaring that: (a) she was a permanent employee of
the first respondent, (b) employed
in a specific post,
[17]
(c) the post in which she was employed was a permanent post’,
and (d) any contrary conduct or action taken by the respondents
was a
nullity. The respondents were ordered to implement the terms of the
order. The court order was therefore not a mere restatement
of
Council Resolution No. 10/11; it exceeded the terms of the
resolution, in as far as they were set out by the applicant, by far.
In this regard I find no valid basis to distinguish between
paragraphs 1 and 2 of the order. Each of these paragraphs
impermissibly
created a specified permanent post in the second
respondent’s staff establishment.
[31]
The respondents’ explanation that they were prohibited from
employing a person unless the position to which
he or she was being
employed was provided for in the staff establishment, was a relevant
response to the allegation of failure
to comply with the order, and
was consistent with the provisions s66 of the Municipal Systems Act
on which they relied. Importantly,
their assertion that the position
specified in the order was not provided for in the staff
establishment of the municipality was
not disputed, as the court a
quo found.
[32]
The court a quo considered that the respondents’ answer,
including an organogram of the municipal staff establishment,
which
was annexed to their answering papers, had never been considered by
Mjali J before she granted the order of 13 December 2016,
and this
court when it considered the respondents’ application for leave
to appeal. It found that the factual basis on which
the contention
pertaining to the municipal staff establishment was based, was never
disputed by the appellant. In any event the
issue fell to be decided
on the respondents’ version.
[33]
The court a quo then went on to consider the provisions of s66 of the
Municipal Systems Act which provide that:
‘
66 Staff
Establishment–
(1) A
municipal manager, within a policy framework determined by the
municipal council
and subject to any applicable legislation, must –
(a) develop a staff establishment for
the municipality, and submit the establishment to the municipal
council
for approval;
(b) provide a job description for each post
on the staff establishment;
(c) attach to those posts the
remuneration and other conditions of service as may be determined in
accordance
with any applicable labour legislation and
(c) establish a process or mechanism
to regularly evaluate the staff establishment and, if necessary,
review the
staff establishment and the remuneration and conditions of
service’.
[34]
It interpreted s66 of the Municipal Systems Act to mean that:
‘
. . . the determination of staff establishment of
a municipality is the preserve of the municipal manager, subject to
the approval
of the Council, as are the job descriptions,
remuneration and other conditions of employment. Once such staff
establishment has
been so developed, subsection (3) appears to be
cast in imperative terms in forbidding the employment of any person
unless the
post to which he or she is appointed is indeed provided
for in the staff establishment so developed. Indeed subsection (4)
declares
that any contract concluded in the circumstances “
is
null and void if the appointment was made in contravention of
subsection (3)
”. The imperative nature of the prohibition
in subsection (3) is reinforced by subsection (5). As may be seen,
this subsection
creates a personal liability [o]n the part of any
person who takes a decision as contemplated in subsection (4) for
fruitless and
wasteful expenditure’.
[35]
I agree with this interpretation of s 66. I also agree that the order
of 13 December 2016, considered against
the background that the
staff establishment was the preserve of the first respondent, is
comparable to the order granted by the
high court in
Motala
which was declared a nullity by this court.
[36]
To put the matter beyond doubt, the court a quo went further to find
that even if the order had not been a nullity,
and there had been an
obligation on the respondents to comply with it, it could not be said
that the first respondent acted wilfully
or mala fide in failing to
do so. This is because, as the court found, he sincerely believed
that his understanding of s66 of the
Municipal Systems Act was
correct. There can be no basis for rejecting the respondent’s
explanation as unreasonable, let
alone, mala fide.
[37]
In
Fakie v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) the
test for when non-compliance with a civil court order constitutes
contempt of court was stated as follows:
‘
The test for when disobedience of a civil order
constitutes contempt has come to be stated as whether the breach was
committed “deliberately
and mala fide”. A deliberate
disregard is not enough, since the non-complier may genuinely, albeit
mistakenly, believe him
or herself entitled to act in the way claimed
to constitute the contempt. In such a case good faith avoids the
infraction. Even
a refusal to comply that is objectively unreasonable
may be bona fide (though unreasonableness could evidence lack of good
faith)’.
(Footnotes omitted.)
[38]
The deliberate refusal by the respondents to give effect to the terms
of the order was in the sense referred to
by this court in
Fakie.
The non-compliance in this case was not
driven by a deliberate and intentional violation of the court’s
dignity, repute or
authority.
[18]
[39]
I do agree, however, with the criticism of the shoddy manner in which
the respondents prosecuted their case in
the original application in
the high court.
[19]
This had the effect that issues were not properly ventilated as
timeously as they could have been. And the order of 13 December
2016
might have turned out differently had they acted diligently.
Nevertheless, that does not detract from the illegal nature of
the
order as it is presently, and from the validity of the defence raised
by the respondents in the contempt application. For these
reasons I
would have dismissed the appeal with costs.
N
DAMBUZA
JUDGE
OF APPEAL
Appearances:
For appellant: V Kunju
Instructed by: Keightley
Sigadla Incorporated, Mthatha
Christo
Dippenaar & Crous Attorneys, Bloemfontein
For respondents: A M Bodlani
Instructed by:
Sakhela Incorporated, Mthatha
Eugene Attorneys, Bloemfontein
[1]
Resolution 10/11, this
resolution was not attached to the papers, but its existence was
never disputed. It is not in dispute that
the purport of the
resolution was to convert all temporary positions to permanent ones.
[2]
Section 66 of the Municipal Systems Act in relevant parts provides:
‘
(1)
A municipal manager, within a policy framework determined by the
municipal council and subject to any applicable legislation,
must—
(a)
develop a staff establishment for the municipality, and submit the
staff establishment to the municipal
council for approval;
(b)
provide a job description for each post on the staff establishment;
(c)
attach to those posts the remuneration and other conditions of
service as may be determined in accordance
with any applicable
labour legislation; and
(d)
establish a processor mechanism to regularly evaluate the staff
establishment and, if necessary, review
the staff establishment and
the remuneration and conditions of service.
.
. .
(3)
No person may be employed in a municipality unless the post to which
he or she is appointed, is provided for in the staff
establishment
of that municipality.
(4)
A decision to employ a person in a municipality, and any contract
concluded between the municipality and that person in consequence
of
the decision, is null and void if the appointment was made in
contravention of subsection (3).
[3]
Ndabeni v
Municipal Manager and Another
[2019] ZAECMHC 28 para 34.
[4]
See
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
SCA.
[5]
The Constitution of the Republic of South Africa Act 108 of 1996.
[6]
Moodley v Kenmont School
and Others
[2019]
ZACC 37; 2020 (1) SA 410 (CC); 2020 BCLR 74 (CC).
[7]
Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
(E) at 229B-C.
[8]
Whitehead and Another v
Trustees of the Insolvent Estate of Dennis Charles Riekert and
Others
[2020]
ZASCA 124
para 18.
[9]
Master of the High Court (North Gauteng High
Court, Pretoria) v Motala NO and Others
[2011] ZASCA 238; 2012 (3) SA 325 (SCA).
[10]
Minister of Rural
Development and Land Reform v Normandien Farms (Pty) Ltd and Others;
Mathimbane
and Others v Normandien Farms
[2017] ZASCA 163; [2018] 1 All SA 390 (SCA);
2019 (1) SA 154
(SCA).
[11]
Department of Transport and Others v Tasima
(Pty) Ltd
[2016] ZACC 39; 2017 (1) BCLR 1
(CC); 2017 (2) SA 622 (CC).
[12]
Section 66(5) of the
Municipal Systems Act provides that any person who takes a decision
contemplated in subsec (4), knowing that
the decision is in
contravention of subsec (3), may be held personally liable for any
irregular or fruitless and wasteful expenditure
that the
municipality may incur as a result of the invalid decision.
[13]
See fn 9 above.
[14]
Wightman t/a J W
Construction v Headfour (Pty) Ltd and Another
[2008]
ZASCA 6
; [2008] 2 All SA (SCA)
[2008] ZASCA 6
; ;
2008 (3) SA 371
(SCA) para 13.
[15]
Manana v King Sabata
Dalindyebo Municipality
[2010]
ZASCA 144
;
[2011] 3 All SA 140
(SCA);
[2011] 3 BLLR 215
(SCA) para
22.
[16]
Merafong City v Anglogold Ashanti Ltd
[2016]
ZACC 35
;
2017 (2) BCLR 182
(CC);
2017 (2) SA 211
CC para 61.
[17]
As ‘the Manager at Aids Training Information and Counselling
Centre – ATICC . . .’.
[18]
Fakie
para 10.
[19]
Paras 3 and 4 of the main judgment.