CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 45/21
In the matter between:
MUNICIPAL MANAGER O.R. TAMBO
DISTRICT MUNICIPALITY First Applicant
O.R. TAMBO DISTRICT MUNICIPALITY Second Applicant
and
NOSIPHO PORTIA NDABENI Respondent
Neutral citation: Municipal Manager O.R . Tambo District Municipality and
Another v Ndabeni [2022] ZACC 3
Coram: Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Pillay AJ,
Rogers AJ, Theron J, Tlaletsi AJ and Tshiqi J
Judgment: Pillay AJ (unanimous)
Heard on: 9 November 2021
Decided on: 14 February 2022
Summary: Local Government Municipal Systems Act 32 of 2000 —
section 66(1) — section 66(3) and (5) — nullity of a court order
— court orders are binding until set aside.
2
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Eastern Cape Local Division, Mthatha):
1. Leave to appeal is granted.
2. The appeal succeeds to the extent that paragraph 2(b) and (c) of the order
of the Supreme Court of Appeal , which held the first and second
applicants to be in contempt of the order of the High Court issued on
13 December 2016 (Mjali J order) and required them to purge such
contempt, is set aside.
3. For the rest, the appeal is dismissed.
4. The first and second applicants are ordered to comply with the Mjali J
order within 30 days of the order of this Court.
5. The second applicant must pay to the respondent, Ms Nosipho Portia
Ndabeni, the costs of this application on an attorney and client scale.
6. Ms Nosipho Portia Ndabeni is given leave to apply on the pleadings in
this matter, supplemented as required, to a High Court having jurisdiction,
to enforce this order.
JUDGMENT
PILLAY AJ (Madlanga J, Madondo A J, Majiedt J, Mhlantla J, Rogers AJ, Theron J,
Tlaletsi AJ and Tshiqi J concurring):
PILLAY AJ
3
Introduction
“If the impression were to be created that court orders are not binding, or can be flouted
with impunity, the future of the judiciary, and the rule of law, would indeed be bleak.”1
[1] Is a party required to comply with a court order that it believes is a nullity? This
question is before us in relation to the order of the High Court of the Eastern Cape Local
Division, Mthatha , against the Municipal Manager of the O .R. Tambo District
Municipality and O .R. Tambo District Municipality (the Municipality). They are the
first and second applicants, together referred to as the “Municipal Parties” for
convenience. Ms Nosipho Portia Ndabeni , the respondent, secured that order which
declared her to be a permanent employee of the Municipality.
[2] Matters came to a head whe n the Supreme Court of Appeal held the Municipal
Parties to be in contempt of the High Court order. Hence the par ties find themselves
before us.
Background
[3] The Municipality employed Ms Ndabeni on 1 July 2005 on a fixed term contract
for a year as a Manager at the Aids Training Information and Counselling Centre
(ATICC). Her contract was repeatedly renewed until 2014 wh en her services were
terminated.
[4] On 30 January 2011 , the Municipality passed Resolution 10/11 to convert all
contract employees to permanent employees. Resolut ion 10/11 was not applied to
Ms Ndabeni. Aggrieved, Ms Ndabeni approached the High Court on 19 May 2015 for
an order declaring her employment to be permanent. On 14 July 2015 , the Municipal
Parties requested and obtained an extension from Ms Ndabeni to deliver their answering
affidavit.
1 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture Corruption and Fraud in the
Public Sector including Organs of State v Zuma [2021] ZACC 18; 2021 (5) SA 327 (CC) ; 2021 (9) BCLR 992
(CC) (State Capture) at para 87.
PILLAY AJ
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[5] A few days before their answering affidavit was due, the Municipal Parties
applied in terms of rule 30 of the Uniform Rules of Court, to declare the proceedings
irregular. On 5 April 2016, Ms Ndabeni applied to amend her notice of motion. Once
Ms Ndabeni opposed the rule 30 application, the Municipal Parties abandoned it. Leave
to amend her notice was granted on 25 October 2016 by consent.
[6] Still t he Municipal Parties failed to deliver their answering affidavit .
Notwithstanding the long delay since July 2015, at the hearing before the High Court
on 13 December 2016, the Municipal Parties formally applied for an adjournment for
two weeks to file their answering affidavits. The primary reason advanced for the
adjournment was that the Municipal Parties could not provide witnesses to their
attorneys while the Municipality was under audit between 25 Octobe r and
1 December 2016. Ms Ndabeni opposed the application for adjournment.
Unsurprisingly, considering that the application had been launched in May 2015, the
High Court refused the adjournment. The matter then proceeded u nopposed. The
High Court granted an order in favour of Ms Ndabeni.
[7] That order, henceforth referred to as the “Mjali J order”, read as follows:
“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 Manage r Section – ATICC by virtue of R esolution
No. 10/11 of 30 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 No.10/11 of 30 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 an attorney and
own client scale;
PILLAY AJ
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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 condit ions
applicable to an employee of her status.”
[8] On 22 March 2018, the High Court refused leave to appeal. Belatedly and
unsuccessfully, the Municipal Parties petitioned the Supreme Court of Appeal. After
30 July 2018, when the Supreme Court of Appeal refused the petition, the Municipal
Parties remained inert. Allegedly, they received the order of the Supreme Court of
Appeal late. After delays in securing counsel, further delays were encountered in getting
papers back from counsel to apply for leave to appeal to this Court. By January 2019,
having missed the opportunity to seek leave to appeal to this Court, the Municipal Parties
decided to abandon their application. They allege that it would have been in the interests
of justice to comply with the Mjali J order. But they did not.
[9] On 1 February 2019 , Ms Ndabeni applied to the High Court to hold the
Municipal Parties in contempt of the Mjali J order and have imprisoned the erstwhile
Municipal Manager, Mr Owen Ngubende Hlazo. She alleged that her employment had
been unlawfully terminated, and that in terms of the Mjali J order she was entitled to be
treated as a permanent employee. Mbenenge JP issued a rule nisi, calling on—
(a) The Municipal Manager to show cau se why his conduct in failing to
comply with the Mjali J order should not be declared unlawful a nd in
contempt of that judgment;
(b) The Municipal Parties to show cause why they should not be directe d to
purge their contempt; and
(c) The Municipal Manager to show cause why he should not be committed
to jail for contempt and directed to pay costs on an attorney and client
scale.
PILLAY AJ
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[10] On the return day , the Municipal Parties and their attorney alleged that they
became aware of the order of the Supreme Court of Appeal only on 19 November 2018
due to their change of email address. Ms Ndabeni successfully refuted this allegation
by proving that the order had been served physically by the sheriff on the
Municipal Manager on 13 September 2018 and on the Municipality on
11 October 2018.
[11] Almost four years had passed since the litigation started. Only then did it dawn
on the erstwhile Municipal Manager that implementing the order when there was no
post on the staff establishment would result in him being held personally liable for
irregular and wasteful expenditure, in terms of section 66(5) of the Local Government:
Municipal Systems Act2 (Systems Act). Seemingly, the erstwhile Municipal Man ager
awakened to his responsibilities only when he was at risk of being held personally liable.
To defend themselves, t he Municipal Parties contended in their answering papers that
the Mjali J order was a nullity that could be disregarded with impunity.
[12] In reply, Ms Ndabeni indicated that she was no longer pursuing an order for
committal or other penal sanction. But, she persisted, the paragraphs of the Municipal
Parties’ answering affidavit setting out their nullity defence, should be struck out on the
basis that the issue was res judicata (already adjudicated) . The High Court rejected
Ms Ndabeni’s objection by reasoning that the issue of nullity was being raised in a
different cause of action.3 Her striking out application failed. Because Ms Ndabeni had
omitted to plead over , the alleged nullity of the Mjali J order stood as the
Municipal Parties’ defence against contempt of that court order.
[13] As stated, t he nullity defence rested on the prohibition in section 66 of the
Systems Act against employment in posts not on the staff establishment which, if
transgressed, would result in personal liability for the Municipal Manager. Griffiths J
2 32 of 2000.
3 Nosipho Portia Ndabeni v the Municipal Manager , unreported judgment of the High Court of South Africa,
Eastern Cape Division, Mthatha, Case No 344/2019 (6 June 2019) (High Court judgment) at para 16.
PILLAY AJ
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upheld the nullity defence . He reasoned that even if he was wrong on that score , the
Municipal Parties’ failure to comply with the Mjali J order was neither wilful nor
mala fide (in bad faith).4
[14] Although an order holding the Municipal Parties in criminal contempt was no
longer in issue once Ms Ndabeni abandoned any criminal sanction against the
Municipal Manager, civil penalties remained an option. 5 After all, any disregard for
court orders and the judicial process requires the courts to intervene. 6 However, once
Griffiths J found that the failure to comply with the Mjali J order was neither wilful nor
mala fide, civil contempt and sanctions also fell away. After finding that the High Court
was not empowered to grant the Mjali J order and consequently that that judgment was
a nullity, Griffiths J discharged the rule nisi. On 17 September 2019, Griffiths J granted
leave to appeal to the Supreme Court of Appeal.
[15] The Supreme Court of Appeal split three-two. The majority held as follows:
“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:
4 High Court judgment above n 3 at para 35.
5 Pheko v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) ( Pheko II) at
para 30:
“The term civil contempt is a form of contempt outside of the court, and is used to refer to
contempt by disobeying a court order. Civil contempt is a crime, and if all of the elements of
criminal contempt are satisfied, civil contempt can be prosecuted in criminal proceedings, which
characteristically lead to committal. Committal for civil contempt can, however, also be ordered
in civil proceedings for punitive or coercive reasons. Civil contempt proceedings are typically
brought by a disgruntled litigant aiming to compel another litigant to comply with the previous
order granted in its favour. However, under the discretion of the presiding officer, when
contempt occurs a court may initiate contempt proceedings mero motu.”
And at para 37:
“However, where a court finds a recalcitrant litigant to be possessed of malice on balance, civil
contempt remedies other than committal may still be employed. These include any remedy that
would ensure compliance, such as declaratory relief, a mandamus demanding the contemnor
behave in a particular manner, a fine and any further order that would have the effect of coercing
compliance.”
6 State Capture above n 1 at para 27.
PILLAY AJ
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‘(a) The respondents’ conduct in failing to comply with the order of Mjali J
(save for para 2 thereof) issued on 13 Dece mber 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.’”
[16] The first point of departure was whether the Mjali J order was a nullity. The
second point turned on whether Griffiths J’s reliance on Motala7 was appropriate. The
majority answered both questions in the negative.8
[17] The third point was whether the Municipal Parties had acted mala fide in failing
to comply with the Mjali J order . While the minority agreed with Griffiths J’s
interpretation of section 66 of the Systems Act, the majority described the Municipal
Parties’ reliance on that section as a “ruse”. 9 The majority proceeded to hold the
Municipal Parties to be in contempt of the Mjali J order and ordered them to purge their
contempt.
[18] Fourth, the majority decided to confirm all but paragraph 2 of the Mjali J order.
The majority found the terms of paragraph 2 of the order to be overbroad to the extent
that they in effect created a permanent post in the Municipality’s staff establishment,
when the power to do so was the exclusive preserve of the Municipal Council.10 The
minority agreed with the majority on this aspect but went on to add that there was “no
valid basis to distinguish between paragraphs 1 and 2 of [ the Mjali J] order”.11 The
7 Id at paras 20-8 citing Master of the High Court (North Gauteng High Court, Pretoria) v Motala N.O. [2011]
ZASCA 238; 2012 (3) SA 325 (SCA) (Motala).
8 Ndabeni v Municipal Manager: OR Tambo District Municipality [2021] ZASCA 8 at paras 14-9.
9 Id at paras 22 and 32-6.
10 Id at para 24.
11 Id at para 30.
PILLAY AJ
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minority would have dismissed the appeal with costs. The three -two split decision of
the Supreme Court of Appeal is now before us in this application for leave to appeal.
Jurisdiction and leave to appeal
[19] The jurisdiction of this Court is engaged. Compliance with court orders by
public officials is a constitutional matter.12 The split decision in the Supreme Court of
Appeal heralds questions about the legality of the impugned Mjali J order. That raises
arguable points of law. Disagreement about whether the Municipal Parties were in
contempt and whether the Mjali J order was a nullity are reasons enough to grant leave
to appeal. Additionally, whether the Mjali J order was open to amendment when there
was no appeal against that order is disputed. Leave to appeal must be granted.
Issues
[20] The primary issue is whether the Municipal Parties should be compel led to
comply with the Mjali J order. That would depend on whether the Mjali J order is a
nullity and therefore unenforceable. Then, would a special order for costs against the
Municipality be justified?
[21] The secondary issue is whether the Municipal Parties are in contempt of the
Mjali J order and whether they should be required to purge such contempt. This issue
can be determined without much ado. Although Ms Ndabeni abandoned any criminal
sanction against the Municipal Manager , civil penalties remain ed an option . But
Griffiths J’s finding that the Municipal Parties’ non-compliance was neither wilful nor
mala fide, dispensed with this factual requirement to prove contempt. In addition to the
Municipal Parties ’ claim that they were acting on legal advice, Griffiths J and two
judges of the Supreme Court of Appeal agreed with them. Hence the Municipal Parties’
version was not so far-fetched or untenable that it c ould be rejected on the papers. As
the Supreme Court of Appeal could not refute Griffiths J’s factual finding, it could not
declare the Municipal Parties to be in contempt.
12 Section 165 of the Constitution. See also State Capture above n 1 at para 87.
PILLAY AJ
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[22] Consequently, the appeal against the order of the Supreme Court of Appeal
holding the Municipal Parties in contempt of the Mjali J order and directing them to
purge such contempt , must succeed and be set aside. Additionally, by the time the
matter reached this Court, the erstwhile Municipal Manager and the person primarily
responsible for implementing the Mjali J order, Mr Hlazo, had passed away. But it will
soon become clear that this victory is pyrrhic.
Complying with court orders
[23] Trite, but necessary it is to emphasise this Court’s repeated exhortation that
constitutional rights and court orders must be re spected.13 An appeal or review — the
latter being an option in the case of an order from the Magistrates’ Court – would be
the proper process to contest an order. A court would not compel compliance with an
order if that would be “patently at odds with the rule of law” .14 Notwithstanding, no
one should be left with the impression that court orders – including flawed court
orders – are not binding, or that they can be flouted with impunity.
[24] This Court in State Capture reaffirmed that irrespective of their validity, under
section 165(5) of the Constitution, court orders are binding until set aside.15 Similarly,
Tasima held that wrongly issued judicial orders are not nullities.16 They are not void or
nothingness, but exist in fact with possible legal consequences.17 If the Judges had the
authority to make the decisions at the time that they made them, then those orders would
be enforceable.18
13 State Capture above n 1 at para 85; Department of Transport v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA
622 (CC); 2017 (1) BCLR 1 (CC) (Tasima) at paras 147-9; and Pheko II above n 5 at paras 1 and 26.
14 State Capture above n 1 at para 85.
15 Id at para 59.
16 Tasima above n 13 at para 182. In Tasima, the court order at issue enforced a fixed term agreement, extending
it beyond its five years, allegedly in breach of section 217 of the Constitution and procurement law.
17 Id.
18 Id at para 198.
PILLAY AJ
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[25] To distinguish the role of the litigants from the courts, the majority in Tasima
said:
“The act of proving something irresistibly implies the presence of a court. It is the
court that, once invalidity is proven, can overturn the decision. The party does the
proving, not the disregarding. Parties cannot usurp the court’s role in making legal
determinations.”19
[26] Court orders are effective only when their enforcement is assured.20 Once court
orders are disobeyed without consequence , and enforcement is compromised, the
impotence of the courts and the judicial authority must surely follow. 21 Effective
enforcement to protect the Constitution earns trust and respect for the courts. 22 This
reciprocity between the courts and the public is needed to encourage compliance, and
progressively, common constitutional purpose.
[27] Griffiths J relied on Motala in which the Supreme Court of Appeal held that an
order of the High Court was a nullity , because the High Court had no jurisdiction to
exercise the power to appoint persons as judicial managers; that power was specifically
assigned to the Master of the High Court by legislation. The majority in Tasima
regarded that finding in Motala to be “a far cry from the inference that any court order
that is subsequently found to be based on an invalid exercise of public power can be
ignored”.23 Whether any tension between Motala and Tasima should be resolved in this
judgment will depend on the answer to the question that follows.
Is the Mjali J order a nullity?
[28] Scrutiny of Mjali J ’s judgment reveals that the reasons cohere with the legal
material before the Judge. Included in that material was Resolution 10/11, in terms of
19 Id at para 191.
20 State Capture above n 1 at para 26 citing Pheko II above n 5.
21 Id at para 87.
22 Id at paras 26-7. See also Victoria Park Ratepayers’ Association v Greyvenouw 2004 (3) All SA 623 (SE).
23 Tasima above n 13 at para 197.
PILLAY AJ
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which the Municipality resolved to convert all contract employees to permanent
employees. The validity of Resolution 10/11 had not been impugned. In accordance
with that resolution, all contract employees, except for Ms Ndabeni, were converted to
permanent employees. Ms Ndabeni’s attorneys enquired about her status, but no
information was forthcoming from the Municipal Parties.
[29] It is not self-evident from a reading of Resolution 10/11 that it is inconsistent
with section 66(1) of the Systems Act. Section 66(1) obliges a Municipal M anager to
“develop a staff establishment for the municipality”, “within a policy framework
determined by the municipal council and subject to any applicable legislation”, “and
submit the staff establishment to the municipal council for approval”. Absent a ny
evidence in the proceedings before Mjali J, Resolution 10/11 appears in both form and
substance to provide the requisite policy framework.
[30] Furthermore, section 66(3) of the Systems Act provides: “[n]o 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.” Section 66(3) permits the applicant
to be appointed, subject to the fulfilment of a condition. It is not self-evident from the
legal material before Mjali J that the staff establishment did not provide for the
employment of Ms Ndabeni. Proving this precondition fell upon the Municipal Parties.
This they failed to do.
[31] Furthermore, the Municipal Parties failed to explain why they did not apply
Resolution 10/11 to Ms Ndabeni. If the plan was to transfer her to the Provincial
Department of Health, that did not happen. She was left unemployed. 24 Disclosure of
the plan to transfer Ms Ndabeni to the Provincial Department was made for the first
time in the Municipal Parties’ affidavit claiming nullity of the Mjali J order. 25 Hence
this plan was also not before Mjali J.
24 Supreme Court of Appeal judgment above n 8 at para 19.
25 High Court judgment above n 3 at para 16.
PILLAY AJ
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[32] The Municipal Parties delivered no answering affidavit , despite Ms Ndabeni
granting them extensions of time to comply with the rules. Hence the application before
Mjali J proceeded unopposed. Accordingly, in the absence of any jurisdictional or other
impediment, Mjali J granted the order in the amended notice of motion. The effect of
the order was to declare Ms Ndabeni to be em ployed permanently as an ATICC
Manager by virtue of Resolution 10/11. The Municipal Parties’ subsequent explanation
about the absence of a post for Ms Ndabeni and funding for the post are irrelevant for
determining the lawfulness of the Mjali J order. Consequently, it is not apparent from
the judgment of Mjali J that the declaration of Ms Ndabeni as a permanent employee is
null and void under section 66(3).
[33] Coupled with the evidence about Ms Ndabeni’s employment with the
Municipality, Mjali J had jurisdiction to decide that the effect of Resolution 10/11 was
to convert Ms Ndabeni’s status to that of permanent employment. Once Mjali J had
jurisdiction, her order could not be impugned as a nullity. Whether that decision was
right or wrong on the merits d id not affect the binding force of the order , unless it was
set aside on appeal. However, the Supreme Court of Appeal vindicated the Mjali J order
by refusing the petition against her judgment. Six months after the Supreme Court of
Appeal’s refusal, the Municipal Parties abandoned any application for leave to appeal
to this Court to set aside that order. Accordingly, the Mjali J order remained extant.
[34] Manifestly, the Mjali J order is not a nullity; it is indeed a lawful order, issued
by a properly constituted Court having jurisdiction. On the facts, this case falls squarely
within the ambit of the ruling in Tasima. Motala is distinguishable. Unlike Motala, the
Mjali J order does not exceed the powers of the Court. Hence the Mjali J order is
competent.
Remedy
[35] All that Ms Ndabeni seeks is compliance by the Municipal Parties with the
Mjali J order. That order was not on appeal before the Supreme Court of Appeal when
PILLAY AJ
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it considered the appeal in the present proceedings . Consequently, it was not open to
the majority to exclude paragraph 2 of the High Court order . Having found that t he
majority also erred in declaring the Municipal Parties to be in contempt of the Mjali J
order, it will be necessary to uphold the appeal against the Supreme Court of Appeal in
these respects. As indicated above, this is not a victory for the Municipal Parties to
celebrate.
[36] In other respects, t he attack on the Mjali J order is unsustainable primarily
because the Municipal Parties allowed the matter to proceed unopposed. They ought to
have properly raised and ventilated their defence in an answering affidavit in the
proceedings before Mjali J. If complying with section 66 of the Systems Act was the
obstacle, the Municipal Parties offer no explanation why that reason could not have
been advanced timeously and not as an apparent afterthought . Crucially, that obstacle
turned on facts.26 Those facts should have been placed before Mjali J . And they were
not. Instead, the Municipal P arties delayed for more than a year and a half and
eventually failed to put up any defence at all. In these circumstances, this Court cannot
accept without more that the preconditions for complying with section 66 do not exist
or cannot be facilitated.
[37] Having found that the Mjali J order is lawful, it must be complied with. If there
are collateral consequences , they arise not from the implementation of this order, but
rather from the Municipal Parties’ failure to defend themselves against the granting of
the Mjali J order. To give effect to the Mjali J order, the remaining grounds of appeal
against the order of the Supreme Court of Appeal must be dismissed.
Costs
[38] Although the Municipal Parties escape being held in contempt, their dilatoriness,
inertia and unaccountability must be viewed through the lens of the Municipality’s
26 As I said earlier, the nullity defence rested on the prohibition in section 66 of the Systems Act against
employment in posts not on the staff establishment which, if transgressed, would result in personal liability for
the Municipal Manager. Whether a post exists on the staff establishment is a factual question.
PILLAY AJ
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heightened duty to comply with court orders. Organs of state, of which the Municipality
is one, are expressly enjoined to “assist and protect the courts to ensure the
independence, impartiality, dignity , accessibility and effectiveness of the courts” .27
They have obligations under the Constitution to respect the rule of law and the courts
as guardians of the Constitution.
[39] Tasima, which was handed down on 9 November 2016, was alrea dy published
by 2018 when the Municipal Parties elected to abandon their application for leave to
appeal to this Court. The Municipal Parties ought to have known that Tasima had
already affirmed that irrespective of their flaws, under section 165(5) of the
Constitution, court orders are binding until set aside. 28 Pertinently, Tasima held that
this Court would exercise its discretion to overlook an unreasonable delay, and
nevertheless consider a reactive challenge to the validity of an administrative deci sion
or court order. 29 And indeed, if the Municipal Parties sincerely believed that
Ms Ndabeni was seeking to coerce it to perform a constitutionally invalid act, then
Tasima could have given it the succour it sought. The majority in Tasima was willing
to allow state organs to challenge the lawfulness of exercises of public power in
appropriate circumstances.
[40] The Municipal Parties elected to abandon their application for leave to appeal to
this Court because it was out of time. One of the reasons they advanced for being out
of time was that they had received late notice of the outcome of their petition to the
Supreme Court of Appeal. Griffiths J found this to be untrue.30
27 Section 165(4) of the Constitution.
28 Tasima above n 13 at paras 179-182.
29 Id at para 140:
“Drawing on this line of reasoning, the majority judgment in Merafong held that the
Municipality was not disqualified from raising an active challenge merely because it is an organ
of state. The same must apply here. It is both a logical and pragmatic consequence of the
aforementioned developments in our jurisprudence to allow state organs to challenge the
lawfulness of exercises of public power by way of reactive challenges in appropriate
circumstances. I therefore agree with the first judgment’s sentiment that the Supreme Court of
Appeal was incorrect to find that the Department was barred from bringing a reactive challenge
to the extension of the contract solely because it is a state functionary.”
30 High Court judgment above n 3 at para 5.
PILLAY AJ
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[41] If the Municipal Parties genuinely believed that the Mjali J order was a nullity,
then they had a public duty to pursue the appeal to correct the illegality. By abandoning
their appeal, they also forsook their obligation iterated in Kirland31 to “do right, and . . .
do it properly”.32 Self-interest, rather than any altruism, accompanied their decision to
abide by the Mjali J order after the refusal of the petition.
[42] In Kirland this Court emphasised that—
“there is a higher duty on the state to respect the law, to fulfil procedural requirements
and to tread respectfully when dealing wit h rights. Government is not an indigent or
bewildered litigant, adrift on a sea of litigious uncertainty, to whom the courts must
extend a procedure-circumventing lifeline.”33
Neither a procedural nor a substantive lifeline would be justified in this instance.
[43] The Municipal Parties dragged Ms Ndabeni, a n unemployed woman , through
five courts over six years. While their litigation was at the expense of the public purse,
Ms Ndabeni had to foot her own bills. The Municipality as “the Constitution’s primary
agent”34 and employer of Ms Ndabeni had to do better. A punitive costs order will
assuage some of the harm perpetrated against Ms Ndabeni. Including an order to give
Ms Ndabeni leave to approach the High Court will facilitate her access to justice if the
Municipal Parties fail to comply with this order.
Order
[44] The following order is issued:
1. Leave to appeal is granted.
31 MEC for Health, Eastern Cape v Ki rland Investments (Pty) Ltd [2014] ZACC 6; 2014 (3) SA 481 (CC); 2014
(5) BCLR 547 (CC) (Kirland).
32 Id at para 82.
33 Id.
34 Id.
PILLAY AJ
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2. The appeal succeeds to the extent that paragraph 2(b) and (c) of the order
of the Supreme Court of Appeal , which held the first and second
applicants to be in contempt of the order of the High Court issued on
13 December 2016 (Mjali J order) and required them to purge such
contempt, is set aside.
3. For the rest, the appeal is dismissed.
4. The first and secon d applicants are ordered to comply with the Mjali J
order within 30 days of the order of this Court.
5. The second applicant must pay to the respondent, Ms Nosipho Portia
Ndabeni, the costs of this application on an attorney and client scale.
6. Ms Nosipho Portia Ndabeni is given leave to apply on the pleadings in
this matter, supplemented as required, to a High Court having jurisdiction,
to enforce this order.
For the Applicants:
For the Respondent:
A Dodson SC and A Bodlani instructed
by Sakhela Incorporated Attorneys
V Maleka SC and V Kunju instructed by
Keightley Sigadla Incorporated