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2023
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[2023] ZAFSHC 211
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Molaoa v Molaoa and Others (5723/2021) [2023] ZAFSHC 211 (26 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5723/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MOEKETSI
JOHN MOLAOA
1
st
Applicant
and
MOTLAGOMANG
VIOLET MOLAOA
1
st
Respondent
THE
MANGAUNG METROPOLITAN MUNICIPALITY 2
nd
Respondent
THE
DIRECTOR-GENERAL OF THE FREE STATE
3
rd
Respondent
PROVINCE
N.O
THE
DEPUTY DIRECTOR: LAND TENURE
4
th
Respondent
SUB-DIRECTORATE
N.O
THE
MEC, FREE STATE DEPARTMENT OF
5
th
Respondent
HUMAN
SETTLEMENT N.O
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN N.O
6
th
Respondent
CORAM:
MOLITSOANE, J
HEARD
ON:
18
MAY 2023
JUDGMENT BY:
MOLITSOANE, J
DELIVERED ON:
This judgment was
handed down electronically by circulation to the parties'
representatives
by email and by released to SAFLII. The date and time
for hand-down is deemed to be 12h30 on 26 May 2023
[1]
The
Applicant seeks an order in the following terms;
a)
That the second, third, and fifth
respondents be found to be in contempt of the order of the court of
Mhlambi, J granted on 28 April
2022 under case number 4373/2021;
b)
That the Municipal Manager of the
respondents be imprisoned for a period of one month, alternatively,
that this court impose upon
them such sentence as it considers
appropriate;
c)
Directing the respondents to pay the costs
of this application, jointly and severally, the one to pay and the
others to be absolved,
on a scale as between attorney and client.
[2]
Only the second respondent opposes the relief sought. The second
respondent
also raised various defences including,
in limine
,
the non-joinder of the Municipal Manager
[3]
I declined to adjudicate the merits of this application and only
heard arguments
on non-joinder of the Municipal Manager. For the
purposes of the decision on non-joinder, it is unnecessary to discuss
the merits
of the application.
[4]
The test to determine the question of non-joinder of a party is
whether such
a party has a direct and substantial interest in the
outcome of the case before court.
[5]
In
Matjhabeng
Local Municipality vs Eskom Holdings Ltd and Others; Mkhonto and
Others v Compensation Solutions (Pty)Ltd
[1]
(
Matjhabeng
)
the Court said:
“
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 consistent with the
Constitution.”
[6]
It is contended on behalf of the second respondent that a committal
order
may only be granted in circumstances where one becomes a party
to the proceedings and his side had been heard. The Second Respondent
contends that it should be uncontentious that the Municipal Manager
is not a party to these proceedings. To this end, the second
respondent seeks an order dismissing this Application with costs.
[7]
On the other hand, the submission of the applicant is that the
Municipal Manager,
which includes the current Acting Municipal
Manager in this case, is the accounting officer of the municipality.
It is contended
that in terms of section 55 of the Local Government:
Municipal Systems Act 32 of 2000, the Municipal Manager is
responsible and
accountable for all income and expenditure of the
municipality, the discharge of all liabilities and the proper and
diligent compliance
with the Municipal Finance Management Act.
Counsel for the applicant contends that there can be no dispute that
the the Municipal
Manager is the accounting officer tasked with
overseeing the implementation of the court orders granted against the
municipality.
[8]
During the hearing of this application, both Counsels were asked to
address this Court
on whether this case is distinguishable from the
case of
Matjhabeng
referred to above. Not much need be said on
the submissions raised by the parties as in effect Counsels rehashed
the submissions
raised in the
affidavits. Me Macakathi, for the applicants also contended that in
the
Matjhabeng
matter, the functionaries were committed to
imprisonment in a summary procedure
.
[9]
The blow to the applicant is the fact that no court can make a
finding to any person’s
interest, without the said person first
be being a party to the proceedings before it.
[2]
It is not in dispute that the Acting Municipal Manager is
not
a party to these proceedings. It is appropriate to refer to the
following excerpt from
Matjhabeng
as it is dispositive of any argument by the applicants regarding non-
joinder of the Municipal Manager. The court held thus:
“
[103] Bearing in
mind, that the persons targeted were the officials concerned −
the Municipal Manager and Commissioner in
their official capacities −
the non-joinder in the circumstances of these cases, is thus fatal.
Both Messrs Lepheana
and Mkhonto should thus have been cited in
their personal capacities − by name − and not in their
nominal capacities.
They were not informed, in their personal
capacities, of the cases they were to face, especially when their
committal to prison
was in the offing. It is thus inconceivable
how and to what extent Messrs Lepheana and Mkhonto could, in the
circumstances,
be said to have been in contempt and be committed to
prison.”
[10]
The failure to cite and join the Municipal Manager is fatal to the
applicant’s case. I
accordingly decline to hear the merits of
this case.
[11]
There is no reason why the applicant should not be ordered to pay the
costs of the Second Respondent.
I accordingly make this order:
ORDER
1.
The application is removed from the roll
pending the formal joinder of any functionary to be affected by the
order;
2.
The Applicant shall bear the costs of the Second Respondent
on party
and party scale;
P.E. MOLITSOANE, J
On behalf of the
Applicants:
Adv I. MACAKATI
Instructed by:
McIntyre van der Post
Attorneys
BLOEMFONTEIN.
On behalf of the
Second Respondent:
Adv. P.T MASIHLEHO
Instructed by:
Phatshoane Henney
Attorneys
BLOEMFONTEIN.
[1]
2018(1)
SA1 (CC) at para 91.
[2]
Matjhabeng(supra)
para 92.