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2024
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[2024] ZAECMHC 7
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Mabasa and Another v Municipal Manager: O R Tambo District Municipality and Others (2503/2022) [2024] ZAECMHC 7 (23 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 2503/2022
In
the matter between:
SITHEMBISO
MABASA
1
st
Applicant
DEMOCRATIC
ALLIANCE
2
nd
Applicant
And
MUNICIPAL
MANAGER: O R TAMBO
DISTRICT
MUNICIPALITY
1
st
Respondent
OR
TAMBO DISTRICT MUNICIPALITY
2
nd
Respondent
INDEPENDENT
ELECTORAL COMMISSION
3
rd
Respondent
ZWELINZIMA
NTSODO
4
th
Respondent
JUDGMENT
JOLWANA J:
Introduction.
[1]
This application concerns an order granted by this Court, per
Griffiths J, on 19 July 2022
[1]
(the
court order). In terms of that court order Mr Mabasa was declared as
the Democratic Alliance’s elected councillor in
the O.R. Tambo
District Municipality (the municipality).
The
court further directed the first respondent (the municipal manager)
to take all steps necessary to recognise Mr Mabasa as the
Democratic
Alliance’s councillor in that municipality within three days of
the service of the said court order. Other ancillary
relief was
granted consequent upon the granting of the above-mentioned main
relief.
[2] Mr Mabasa is a member
of the Democratic Alliance. He, together with the Democratic Alliance
have approached this Court as the
first and second applicants
respectively, seeking an order declaring the municipal manager in
contempt of the above-mentioned court
order. They further seek
on order directing the municipal manager to purge his contempt with
twenty-four hours. They also
seek an order committing the municipal
manager to prison for a period of ninety days which committal is to
be suspended for a period
of ten days to allow the municipal manager
to cure the contempt by taking all steps necessary to appoint Mr
Mabasa as the Democratic
Alliance’s councillor in the
municipality.
Background.
[3] The background facts
leading to this application are not controversial and are briefly the
following. On 1 November 2021
there were local government
elections in this country for the election of councillors for all
district, metropolitan and local
municipalities. The Democratic
Alliance won one seat in the municipality. It thereupon informed the
third respondent (the IEC)
on 19 November 2021 that Mr Mabasa would
take up the single seat won by it in the municipality. However, on 01
December 2021 the
fourth respondent (Mr Ntsodo), also a member of the
Democratic Alliance, was incorrectly sworn in as the Democratic
Alliance’s
councillor instead of Mr Mabasa. After a number of
unsuccessful attempts by the Democratic Alliance, to have the matter
resolved,
the municipal manager failed to recognise Mr Mabasa as its
duly elected councillor of the municipality. This is what led to the
court order dated 19 July 2022 being granted.
The applicants’
case.
[4] The applicants are
now before this Court alleging non-compliance with the said court
order by the municipal manager and seeking
the relief referred to
above. They allege that the court order dated 19 July 2022 imposed an
obligation on the municipal manager
to take all steps necessary to
recognise Mr Mabasa as the Democratic Alliance’s councillor in
the municipality. Furthermore,
section 23(5) of the Local Government:
Municipal Structures Act 117 of 1998 (the Structures Act) provides
that an elected councillor
is deemed to assume office on the date of
the declaration of the results by the IEC. In addition to that, in
terms of section 26(2)
of the Structures Act a person assumes office
as a councillor when declared elected or when appointed, as the case
may be.
[5] In terms of the court
order dated 19 July 2022 read with the provisions of the Structures
Act, a municipal manager is obliged
to give effect to the electoral
results. The municipal manager of the municipality must
therefore recognise Mr Mabasa as
the Democratic Alliance’s
councillor. He must do so by swearing him in and allowing him to
commence his duties and receive
his salary as such.
[6] On 27 September 2022
the sheriff served the court order at the municipal manager’s
office. The relevant returns of service
indicate that the said court
order was served upon one Mawethu Rasi at the address of the
municipal manager and the municipality
who accepted service thereof
on their behalf. On 29 September 2022 the applicants’ attorneys
addressed electronic correspondence
to the municipal manager advising
that Mr Mabasa would attend at the municipality to assume office as
the councillor on 30 September
2022.
[7] It appears that there
was no response to the said correspondence. As a result, on 26
October 2022 the applicants’ attorneys
addressed another
correspondence to the municipal manager. In that correspondence, the
municipal manager was advised that since
the court order dated 19
July 2022 was brought to his attention on 27 September 2022, he was
acting in contempt thereof in failing
to do what it directed him to
do. He was further advised that should he not take steps immediately
to remedy his contempt by complying
with the said court order by
close of business on 27 October 2022, the applicants would proceed
with contempt of court proceedings.
The municipal manager did not
respond to the said correspondence and failed to take any steps to
comply with the said court order.
His non-compliance resulted
in Mr Mabasa remaining unrecognised as a duly elected councillor in
the municipality.
[8] The applicants
contend that the said court order, not only being in existence but
also having been served, and not having been
complied with, the fact
of wilful and
mala fide
non-compliance should be inferred.
The inference sought to be drawn would be subject to the municipal
manager, through evidence,
raising doubt as to the wilfulness and bad
faith in his non-compliance.
The first respondent’s
case.
[9] The application is
opposed by the acting municipal manager who, in his answering
affidavit, says the following. He assumed the
position of the acting
municipal manager of the municipality at the end of December 2022.
At the time relevant to the events
leading up to the institution of
the proceedings which led to the granting of the court order dated 19
July 2022, he was not the
incumbent municipal manager. However,
because the relief sought is against the municipal manager in his/her
official capacity he
considered it prudent to put up a version about
the non-compliance especially during the period of his incumbency.
Essentially,
he says he could not be in contempt of the said court
order because he was simply not occupying the office of the municipal
manager
at the time the court order was granted and served in the
office of the municipal manager.
[10] With regard to the
duties of an incumbent municipal manager concerning the election of
councillors he states the following.
A municipal manager would
receive the outcome of the allocation of council seats from the IEC.
This is done by the IEC by
means of a publication of the outcome of
the allocation of seats in the government gazette. This is the
only legitimate and
only independently verifiable means by which any
municipality would know who is supposed to be sworn in as a
councillor. Without
this, a municipal manager would not know who
should be invited for swearing in. Relying on political parties to
indicate who should
be sworn in would lead to a chaotic situation. He
accepts that once the election results for local government elections
are proclaimed
by the IEC, all municipalities must give effect to the
proclaimed results which are in any event, binding on them. They
cannot
for instance place the last candidate on the list of a
political party at the top of that list and vice versa as they have
no discretion
or role to play in that regard.
[11] After the conclusion
of the local government elections in November 2021 the results were
proclaimed by the IEC in the government
gazette on 09 November 2021.
In terms of the said proclamation, it was Mr Ntsodo who won the
single seat of the Democratic Alliance
in the council of the
municipality. This is the result that the municipal manager was
required to give effect to and did so by
swearing in Mr Ntsodo.
It is only if the councillor in that political party ceases to hold
office, an event which must be
declared by the IEC in writing, could
the name of a person on top of the applicable party list, fill the
vacancy. That declaration
is not done by the political party
concerned but by the IEC. The court has no jurisdiction to make
the declaration, it being
the IEC that is the statutory repository of
that power. All that the court can do is, upon an application being
made to it, direct
the IEC to declare in writing the person whose
name is on top of the applicable political party list to be elected
to the vacancy
should the IEC fail to make the declaration when it
was required in law to do so.
[12] On the basis of
these facts, the then acting municipal manager contends that it was
impossible to comply with the terms of
the court order on the basis
of which the municipal manager was sought to be held in contempt of
court. However, because
even the court that granted the order
dated 19 July 2022 lacked jurisdiction to do so, the court order
itself is a nullity and
therefore unenforceable. Therefore, it
cannot avail of the applicants to hold anyone in contempt thereof.
I must hasten
to point out that counsel for the municipal respondents
placed on record during oral submissions in court that the
contentions
in the answering affidavit which sought to question the
jurisdiction of the court that granted the court order, and therefore
the
validity of the court order were being abandoned. It was being
accepted on behalf of the municipal respondents that the court order
dated 19 July 2022 was valid having been properly granted by the
court which had jurisdiction to grant it. As will become clear
hereinbelow, this concession was correctly made.
[13] The acting municipal
manager maintained the contention that it was Mr Ntsodo’s name
that was, on the consideration of
the government gazette, proclaimed
as its councillor in the municipality as at the 01 December 2021.
Therefore, any resolution
of the issue of the person entitled to be
sworn in by the municipal manager as the councillor of the Democratic
Alliance between
the IEC and the applicants as alleged ought to have
led to the IEC declaring Mr Mabasa in writing as the person whose
name was
on top of the list. That would have been consequent
upon a vacancy being created by the Democratic Alliance’s
removal
of Mr Ntsodo as its councillor. He accepted that a municipal
manager is indeed required to give effect to the results of the local
government elections of his municipality. He went as far as to
say that to not do so is a sacrilegious usurpation of and
the
undermining of the rights of the electorate.
[14] He had not been able
to induct Mr Mabasa as councillor of the Democratic Alliance when he
became the acting municipal manager.
This was because Mr Ntsodo
remained in office as councillor. He, as the acting municipality
manager and therefore the incumbent,
had no duty to remove him. It
was not his duty to tell the Democratic Alliance what to do in order
to remove Mr Ntsodo from
office. He maintained that until the IEC
would have declared Mr Mabasa as indicated hereinbefore, the
applicants should not be
entitled to the relief sought.
The issues.
[15] The facts leading up
to the granting of the court order dated 19 July 2022 are largely not
in dispute. That factual matrix
is, in any event, irrelevant to the
question whether or not the applicants are entitled to the relief
they seek. This is because
the existence of the said court order is
common cause. The second two requirements also present no
controversy. Those are
whether the acting municipal manager was
aware of the said court order. It is common cause that the municipal
manager did not comply
with the said court order having been duly and
properly served. The acting municipal manager also did not
comply with it.
He must have become aware of it at some point after
he got appointed as the acting municipal manager hence, he filed the
answering
affidavit citing the reasons that he does for his
non-compliance. That being the case the issue is whether or not
the acting
municipal manager’s non-compliance was justified,
based on his explanation for his non-compliance.
The analysis.
[16]
Before delving deeper into the requirements for a contempt of court
order and in particular, whether or not in this case the
order
finding the acting municipal manager guilty of the crime of contempt
of court would be appropriate, I consider it apt to
set out the
constitutional pillars upon which our jurisprudence on the law of
civil contempt is anchored. For the authority on
our jurisprudence in
this regard, I need look no further than the recent case of the
Secretary
of the Judicial Commission of Inquiry
[2]
(
the
SJCI)
.
In that case Khampepe ADCJ, writing for the majority, expressed
herself as follows:
“
As
this Court held in
Tasima 1
,
“the obligation to obey court orders has at its heart the very
effectiveness and legitimacy of the judicial system …
and is
the stanchion around which a State founded on the supremacy of the
Constitution and the rule of law is built”.
It is
perspicuous that the constitutional right of access to courts will be
rendered an illusion unless orders made by courts are
capable of
being enforced by those in whose favour the orders were made. In
SALC
, it
was said that “if the State, an organ of the State or State
official does not abide by court orders, the democratic edifice
will
crumble stone by stone until it collapses and chaos ensues”. A
complete denial of judicial mechanisms “would render
meaningless the whole process of taking disputes to courts for
adjudication and that is a recipe for chaos and disorder”.
Accordingly, it is necessary for this Court to send, by virtue of a
punitive sanction, an unequivocal massage that its orders must
be
obeyed.
Finally, I hasten to
point out that “contempt of court is not an issue
inter
partes
[between the parties]; it is an issue between the court
and the party who has not complied with a mandatory order of court.”
Notwithstanding that this order derives its life force from
CCT295/20, these proceedings are a different creature altogether. We
are not required to pursue the same purpose as we did in CCT295/20:
to order Mr Zuma to attend the Commission. Indeed, in
Pheko
II
, this Court noted that “[a]t its origin the crime being
denounced is the crime of disrespecting the courts, and ultimately
the rule of law”. Although the harm caused to successful
litigants, like the applicant, through contempt of court is by no
means unimportant, the overall damage caused to society by conduct
that poses the risk of rendering the Judiciary ineffective and
eventually powerless is at the very heart of why our law forbids such
conduct. Therefore, as I have already said, the mischief
I am called
upon to address is not that Mr Zuma failed to comply with the
summons, but rather, that he failed to comply with the
order of this
Court”.
[17] In this matter the
mischief I am called upon to address is not that the municipal
manager failed to attend to the swearing
in of Mr Mabasa as the
Democratic Alliance councillor in the municipality after the election
results. That issue was before
Griffiths J, and he dealt with
it which resulted in the court order dated 19 July 2022 being issued.
The mischief I am called upon
to address is the failure and/or
refusal of the acting municipal manager to comply with the court
order of Griffiths J dated 19
July 2022 thereby undermining the
Constitution and rendering the Judiciary ineffective and powerless.
[18] As I earlier
indicated the existence of the court order is not in issue. It was
properly served if regard is had to the returns
of service. It
would therefore have come to the attention of the incumbent in the
office of the municipal manager at the
time of its service. The
acting municipal manager who deposed to the answering affidavit does
not deny being aware of it after
he was appointed. His contention
that this application should not succeed is, in the main, that Mr
Ntsodo remains in office as
he has not been removed from office as a
councillor by the Democratic Alliance. He contends that it is not his
duty to remove him
or to tell the Democratic Alliance what to do to
remove Mr Ntsodo from office. He further still maintains his
other contentions
about the declaration that the IEC must make.
This essentially, is about the proclamation in the government gazette
of who
should be sworn in, which he says it was Mr Ntsodo in this
case, there being no other name that has been declared by the IEC, as
he articulated his contention.
[19]
The legal position regarding compliance with court orders which was
referred to earlier as explained in
SJCI
is anchored on section 165 of the Constitution
[3]
,
particularly section 165(5). It is clear that in terms of section
165(5) of the Constitution, read with
section 18(1)
of the
Superior
Courts Act 10 of 2013
[4]
, absent
any appeal processes relating to the court order dated 19 July 2022,
the municipal manager was simply not entitled to rely
on his views on
the applicable legislation or any other legal basis for his
non-compliance. This is the case even if he may
hold the view
that a particular piece of legislation tells him otherwise. He
must assume that the court would have
been aware of and would have
considered the applicable law before it directed him to act in a
particular manner.
[20] Our law is very
clear as recently confirmed in
SJCI
. The duty to comply
with a court order is not and cannot be subject to a functionary’s
understanding of what the law
is. If that were to be so, it
would make a mockery of the very provisions of section 165 of the
Constitution and would inevitably
lead to the collapse of our
constitutional edifice stone by stone as the court said in
SJCI
.
Only an appropriate legal process such as an appeal process or
another court order could validly suspend a duty to comply
with a
court order. He did nothing and remained supine as if the court had
not directed him as it did or as if he had no duty to
comply with
it. This, seemingly based on his own understanding of the law.
This is to be deprecated for the reasons
aforestated.
[21] The court had, on 19
July 2022, declared Mr Mabasa as the elected councillor of the
Democratic Alliance. It further effectively
ordered that Mr Ntsodo
was no longer the Democratic Alliance’s councillor in that
municipality. Therefore, the vacancy
that the municipal manager
said needed to be created by the removal of Mr Ntsodo was in fact
created as the court removed him from
office. The acting
municipal manager, on being aware of the court order, did not need
another declaration or even the gazetting
of Mr Mabasa as the duly
elected councillor in that municipality as he seems to believe. His
duty was to implement the court order
by stopping Mr Ntsodo from
enjoying any right or privilege, be it access to council chambers as
a councillor or whatever else accrued
to him on the basis of the
IEC’s previous declaration and gazetting of his name. He could
have thereafter invited Mr Mabasa
and sworn him in as a councillor.
He did none of the above in complete defiance of the court order.
His conduct was an overt
impiety and denigration of our
constitutional framework.
Should the relief
sought therefore be granted?
[22] In the main, counsel
for the municipal respondents, argued that there were serious
difficulties for the court to grant any
of the orders sought in the
notice of motion, to the extent that the municipal manager had been
cited only in his official capacity.
It was argued that the relief
sought for the municipal manager to be committed to prison for a
period of ninety days; the order
suspending the committal to prison
for 10 days to enable the municipal manager to cure the contempt; the
order sought for the court
to impose any other punishment deemed
appropriate by the court including imprisonment or a fine; and the
punitive order for the
costs of this application to be paid
personally by the municipal manager were all fraught with
difficulties. These orders
were problematic, so went the
submission, because the municipal manager was cited only and
specifically in his official capacity.
He was not also cited in a
personal capacity.
The personal costs
order.
[23]
I consider it convenient to start with the issue of the personal
costs order. The legal position regarding the circumstances
in
which an award of a personal costs order against public officials may
be granted was clarified in quite some detail in
Reserve
Bank
[5]
from which I quote copiously. The court said:
“
This
Court has previously granted
de bonis
propriis
costs (costs which a party is
ordered to pay out of her own pocket as a penalty for improper
conduct) against individuals in their
personal capacities where their
conduct showed a gross disregard for their professional
responsibilities, and where they acted
inappropriately and in an
egregious manner. The assessment of the gravity of the conduct is
objective and lies within the discretion
of the court.
This Court recently
affirmed the test for personal costs orders against public officials.
In
SASSA
, it held:
‘
It
is now settled that public officials who are acting in a
representative capacity may be ordered to pay costs out of their own
pockets, under specified circumstances. Personal liability for costs
would, for example, arise where a p
ublic
official is guilty of bad faith or gross negligence in conducting
litigation’.
In
SASSA
, the
Minister of Social Development contended that personal costs orders
against public officials like her are unconstitutional
because they
would breach the separation of powers. This Court rejected that
argument and held that the Constitution itself is
the source of the
judicial power to order personal costs against public officials who
are guilty of bad faith or gross negligence
in conducting litigation
and discharging their constitutional obligations. It reasoned that
the Constitution endows courts with
the responsibility to uphold and
enforce the Constitution, and the imposition of
personal liability for costs on public officials who act contrary to
their constitutional
obligations is an important tool to be used for
this purpose.
…
The
purpose of a personal costs order against
a
public offici
al
is to vindicate the Constitution. These orders are not inconsistent
with the Constitution; they are required for its protection
because
public officials who flout their constitutional obligations must be
held to account. And when their defiance of their constitutional
obligations is egregious, it is they who should pay the costs of the
litigation brought against them, and not the
taxpayer. This Court has repeatedly affirmed the principle that a
public official
who acts in a
representative capacity may be ordered to pay
costs out of their own pockets in certain circumstances.
…
The public protector
falls into the category of a public litigant. A higher duty is
imposed on public litigants, as the Constitution’s
principal
agents, to respect the law, to fulfil procedural requirements and to
tread respectfully when dealing with rights. The
need to hold
government to the pain and duty of proper court process is sourced in
the Constitution itself. This is because the
Constitution regulates
all public power and public officials are required to act in
accordance with the law and the Constitution”.
[24] There is no
difference between a municipal manager and a public protector other
than the instruments whence they come.
The argument that a
public official, in this case, the municipal manager, should not be
held personally liable for costs because
he was only cited in an
official capacity misses the point in my view. The real question is
whether, besides being cited in an
official capacity, a case has been
made for a conduct so egregious that an award of personal costs order
against the municipal
manager has been made. This is because,
throughout, and even when they violate the Constitution and act so
egregiously as to undermine
the Constitution, as they sometimes do,
public officials do so abusing public power. They, however, sometimes
elect to depart from
their constitutional duty and act,
mala fide
or grossly negligently sometimes in pursuit of other objectives thus
abusing their authority. Should they, in those circumstances,
escape personal liability for costs and thus cause the taxpayer to
foot the bill for their egregious conduct only because they
were not
cited in a personal capacity? I do not think so.
[25] In those situations,
I cannot see any basis for a just and equitable order including an
order for punitive costs, where it
is justified, not to be made
solely because, the same person who has been cited in an official
capacity has not also been cited
in a personal capacity. What
puts them in a position to act in an egregious manner sometimes is
the public power they wield
which they then abuse. Where there is no
doubt as to who committed the egregious offending conduct, his not
being cited in a personal
capacity should not stop the court from
marking its outrage against him by ordering him to pay the costs from
his own pocket. The
real issue, in my view, is whether the person
sought to be punished or visited with an appropriate censure or from
whose pocket
the costs must be paid was given a fair hearing and had
an opportunity to explain his conduct. It goes no further than
that
as far as I am concerned. I am emboldened in this view by
the fact that the court in
Reserve Bank
did not limit the
general discretion of the courts regarding costs by saying that it is
subject to that public official having
also been cited in a personal
capacity. If it wanted to limit the exercise of that discretion
the Constitutional Court would
have said so as clearly as it always
expresses itself.
[26] This brings me to
the actions of the acting municipal manager after he became aware of
the court order. The court order
dated 19 July 2022 was served
at a time when Mr Matomela, the deponent to the answering affidavit,
was not the incumbent in the
office of the municipal manager. He,
however, was appointed as the acting municipal manager in December
2022. He thereafter became
aware of the court order at some stage but
failed to comply with it which is why he got to depose to the
answering affidavit.
However, I am not satisfied that a case
has been made that Mr Matomela’s conduct as the then acting
municipal manager, his
failure to comply with the court order when he
became aware of it, was intentional, in bad faith, or grossly
negligent.
[27] It could very well
be that in conducting himself in the manner he did, Mr Matomela
genuinely believed, of course incorrectly,
that he needed to wait for
the IEC to gazette the name of Mr Mabasa if regard is had to his
explanation. It appears that
instead, he started philosophising
and being all sentimental about the applicable legal framework.
He could not and should
not have done so at the expense of his duty
to comply with the court order. His views about the court order
were utterly
irrelevant to the extent that they did not lead him to
lodge an appeal against it.
Is personal citation a
requirement in contempt of court proceedings?
[28] If regard is had to
the relief sought by the applicants, it would have been observed that
they want the municipal manager to
be found guilty of a crime.
This has very serious implications which include possible
incarceration for a period of time.
That could inevitably
result in the deprivation of personal liberty which is enshrined in
our Constitution. Therefore, the
very idea of a deprivation of
a personal right of a person, any person, without that person having
been heard is irreconcilable
with the jealousness with which the
right to personal liberty is and should be regarded and protected by
courts. Mr Matomela
who refused to comply with the court order
citing all manner of excuses was not cited in a personal capacity.
This means
he cannot be found guilty of contempt of the court order
as that could lead to a possible deprivation of his liberty.
This
is the legal position as I understand it.
[29]
The Constitutional Court dealt with and clarified the issue of the
need or requirement for personal joinder in
Matjhabeng
Local Municipality
[6]
.
It said:
“
A
question of non-joinder was also raised. On 3 December 2015,
the Chief Justice issued directions inviting parties to file
written
submissions on ‘whether municipal managers who fail to give
effect to court orders can be found guilty of contempt
in the absence
of their joinder to the proceedings’. It is common cause
that both Messrs Lepheana and Mkhonto were
convicted and sentenced
without having been joined as parties to the proceedings.
At common law, courts
have an inherent power to order joinder of parties where it is
necessary to do so even when there is no substantive
application for
joinder. A court could, mero motu, raise a question of joinder
to safeguard the interests of a necessary
party and decline to hear a
matter until joinder has been effected. This is
consisten
t
with the Constitution.
The law on joinder is
well settled. No court can make findings adverse to any
person’s interests, without that person
first being a party to
the proceedings before it. The purpose of this requirement is
to ensure that the person in question
knows of the complaint so that
they can enlist counsel, gather evidence in support of their
position, and prepare themselves adequately
in the knowledge that
there are personal consequences – including a penalty of
committal – for their non-compliance.
All of these
entitlements are fundamental to ensuring that potential contemnors’
rights to freedom and security of the person
are, in the end, not
arbitrarily deprived.
…
It follows that the
objection of non-joinder by the municipalilty in
Matjhabeng
,
specifically where the potential contemnor’s s 12(1) rights are
in the balance, is not a purely idle or technical one –
taken
simply to cause delays and not from a real concern to safeguard the
rights of those concerned. There is however a
caveat:
this should not be understood to suggest that joinder is
always necessary. There may well be a situation where joinder
is
unnecessary, for example, when a rule nisi is issued, calling upon
those concerned to appear and defend a charge or indictment against
them. Undeniably, in appropriate circumstances a rule nisi may
be adequate even when there is a non-joinder in contempt of
court
proceedings. This means that the rule is not inflexible.”
Conclusion.
[30] My reading of
Reserve Bank
and
Matjhabeng Local Municipality
cases is
that the issue of personal liability for costs and that of a possible
deprivation of the section 12(1) constitutional
right to personal
freedom should not be muddled. In a situation in which a
criminal sanction rather than a civil remedy to
ensure compliance is
in the offing it is obligatory to thread carefully by, at the very
least, ensuring that the potential contemnor
understands that his
personal rights are at stake. Having expressed myself as I have
done on the issue of costs, in the exercise
of my discretion, I do
not think that this is an appropriate case for the imposition of a
personal liability for costs against
Mr Matomela, the erstwhile
municipal manager or even his predecessor. However, the
applicants are entitled to an order for
ordinary costs.
[31] In the result the
following order shall issue:
1.
The municipal manager is ordered to comply
with the court order of Griffiths J dated 19 July 2022 within ten
days of the service
of this order.
2.
The municipal manager is ordered to pay the
costs of this application.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicants
: S.
Sephton
Instructed
by
:
Minde Schapiro & Smith Inc.
c/o
Keightley Sigadla Nonkonyana Inc.
Mthatha
Counsel
for the 1
st
& 2
nd
respondents
: A
Bodlani SC
Instructed
by
:
N.Z. Mtshabe Inc.
Mthatha
Date
Heard
: 02
November 2023
Date
delivered
: 23
January 2024
[1]
The said court order reads as follows:
1.
It is declared that the First Applicant was elected as the Second
Applicant’s councillor
in the O.R. Tambo District
Municipality, Eastern Cape on 1 November 2021.
2.
To the extent necessary:
2.1
The First Respondent’s decision
to swear in the Fourth Respondent as the Second Applicant’s
councillor, and or
2.2
Any decision by the Second Respondent
purporting to recognise the Fourth Respondent as the
Second
Applicant’s councillor in the O.R. Tambo District Municipality
are declared inconsistent with the Constitution of
the Republic of
South Africa and invalid and set aside.
3.
The First and Second Respondents are directed to take all steps
necessary to recognise the First
Applicant as the Second Applicant’s
councillor in the O.R. Tambo District Municipality within three days
of service of
this order.
4.
Any decision taken by the Second Respondent while the Fourth
Respondent was purporting to act
as the Second Applicant’s
councillor shall remain valid notwithstanding his unlawful
participation.
5.
The Second Respondent to pay the costs of this application including
costs of two counsel where
so employed.
[2]
Secretary
of the Judicial Commission of Inquiry into
A
llegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of the State v Zuma
2021(5)
SA 327 (CC) paras 60-61.
[3]
Constitution of the Republic of South Africa, 1996. Section
165 reads:
(1)
T
he judicial authority of the Republic
is vested in the courts.
(2)
The courts are independent and subject only to the Constitution and
the law, which they must apply impartially and without
fear, favour,
or prejudice.
(3) No person or organ
of state may interfere with the functioning of the courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts to ensure the independence, impartial
ity
,
dignity, accessibility, and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
[4]
Section 18(1) reads:
Subject
to subsection
s
(2) and (3), and unless
the court under exceptional circumstances orders otherwise, the
operation and execution of a decision
which is the subject of an
application for leave to appeal or of
an
appeal, is suspended pending the decision of the application
or appeal.
4.
Public Protector v
South African Reserve Bank
2019 (9) BCLR113 (CC),
2019 (6) SA
253(CC)
at paras 146-8,153 and 155
.
[6]
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
2018
(1)
SA 1
(CC)
at
paras 90-2 and 94.