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[2022] ZAECBHC 29
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Peter v Member of the Executive Council, Department of Health, Eastern Cape and Another (711/2018) [2022] ZAECBHC 29 (27 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BISHO)
CASE
NO: 711/2018
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
SINDISWA
ALMEIDA
PETER
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN CAPE
First Respondent
THE
HEAD OF DEPARTMENT, DEPARTMENT
OF
HEALTH, EASTERN
CAPE
Second Respondent
J
U D G M E N T
DREYER
AJ
[1]
The Department of Health, Eastern Cape
terminated the applicant’s, Sindiswa Almeida Peter (“Peter”),
employment
in 1998. After initially disputing the fairness of
her termination, Peter accepted the decision of the Public Health and
Welfare Sector Bargaining Council on 8 April 2001, confirming the
fairness of her dismissal...
[2]
The Department of Health did not submit the
requisite Government Employees’ Pension Fund (“the GEPF”)
to facilitate
Peter’s election that she be paid out her pension
benefits on the termination of her employment.
[3]
In 2003, Peter instituted review
proceedings that the failure by the then Member of the Executive
Council for Health’s (“the
MEC Health”), Mr Bevan
Goqwani, to furnish the GEPF with the relevant documents to
facilitate the payment of Peter’s
pension monies, was reviewed
and set aside.
[4]
On 5 February 2004, this Court, per Judge
Van Zyl (as he then was), granted an order (“the 2004 Order”)
that:
“
1.
The respondent’s administrative action in failing to furnish
the Government Employees Pension Fund
and the relevant documents
necessary to procure the payment of the applicant’s pension
monies in terms of the Government
Employees Pension Law, is directed
to be reviewed.
2.
The respondent is directed to furnish the Government Employees
Pension Fund such documentation
as may be necessary so as to procure
the payment of the applicant’s pension monies.
3.
The respondent is directed to pay the applicant, interest on the
applicant’s pension
monies which may become due, owing and
payable to her by the Government Employees Pension Fund at the legal
rate of 15.5% calculated
as from 1 December 1998 capitalised
annually to date of payment.
”
[5]
On 1 October 2005, Peter received the
capital portion of her pension monies due to her in the sum of
R18 372.81. The
MEC Health, did not pay interest on
Peter’s pension monies as required in paragraph 3 of the 2004
Order.
[6]
The MEC Health’s, failure to pay the
accrued interest resulted in further litigation. On 4 December
2018, Acting Judge
Nqumse granted a further order (“the 2018
Order”). The incumbents Helen Sauls August, as MEC Health
and Thobile
Mbengashe as HOD Health were cited both in their
representative capacity and their personal capacity. The 2018
order required,
“
1.
The respondents take all administrative steps to ensure that
paragraph 3 of the order granted on 5 February
2004 under case
4918/2013 is complied with within 20 days as from this order having
been served on the respondents.
2.
The respondents deliver a report in writing to the registrar of the
court and to the applicant’s
attorneys within 20 days of this
order having been served on them, of the manner and extent of the
respondents’ compliance
with the order granted in paragraph 1
above.
3.
If the respondents fail to comply with the order referred to in
paragraphs 1 and 2 above,
the applicant is given leave to supplement
the notice of motion and founding affidavit and to enrol on
reasonable notice to the
respondents for a further order or on such
further relief as the applicant may seek.
”
[7]
On 12 March 2021, the Department of Health,
through its attorneys of record, the State Attorney, paid Peter the
sum of R26 853.61.
This amount, on the Department’s
calculation fully discharged its indebtedness to Peter in accordance
with the 2004 order.
[8]
On the Department of Health’s
calculation, interest was only payable on the capital portion of the
pension money from the
due date of payment, namely 1 December 1998,
until the actual date of payment namely 1 October 2005.
[9]
Peter disagreed that this was the only
interest due and payable. Peter contends that she was due
payment of an amount of interest
calculated from 5 October 2005 until
the payment of the interest on 12 March 2021. This dispute
gives rise to the current
proceedings.
[10]
In these proceedings, the relief that Peter
seeks in the notice of motion is couched as follows:
“
1.
Directing that the first respondent Nomakhosazana Meth show cause to
this court on a date to be determined
by this court why she should
not be committed to prison for such period as this honourable court
may seem meet, on account of her
contempt of court for failing to
comply with the order granted in this matter on 4 December 2018.
2.
Directing that the further order granted herein be served by way of
personal delivery by
the State Attorney on the said Ms Nomakhosazana
Meth.
3.
Directing that the State Attorney deliver to this court within 10
days of granting of the
further order a report in writing certifying
that such service has been effected, and that a copy thereof be
served on the applicant’s
attorney of record.
”
[11]
It is not clear from the notice of motion
what relief is actually sought, whether Peter seeks payment of the
outstanding interest,
if any, or whether what Peter seeks is an order
to hold the current MEC, Ms Nomakhosazana Meth, in contempt of
court and commit
her to a period of incarceration. When this
Court posed the question to Peter’s legal representative, her
answer was
“
the relief as set out
in the notice of motion
”.
This answer is singularly unhelpful.
[12]
Contempt
proceedings are not appropriate relief to compel a functionary to
make payment of an outstanding debt.
[1]
Execution proceedings are.
[2]
The Constitutional Court held in
Pheko
2
[3]
that
civil contempt remedies other than incarceration should be considered
to compel compliance. None are proposed by the
applicant,
Peter.
[13]
If the relief that Peter seeks is that Ms
Meth, the current MEC, Health is brought before court to give an
explanation why she should
not be held in contempt of court for
failure to pay any interest that may be due in terms of the 2004
order read with the 2018
order then contempt proceedings would be
appropriate.
[14]
As
stated by the Constitutional Court in
Secretary
of the Judicial Commission of Enquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
:
[4]
“
Contempt
of court proceedings exist to protect the rule of law and the
authority of the judiciary. As the applicant correctly
avers,
the authority of the courts and obedience of their laws – the
very foundation of constitutional order founded on the
rule of law –
depends on public trust and the respect of the courts.
”
[15]
Any
disregard of this Court’s order and the judicial process
requires this Court to intervene. As enunciated in
Victoria
Park Ratepayers Association v Greyvenhouw CC
,
[5]
contempt jurisdiction, whatever the situation may have been before 27
April 1994, now also involves the vindication of the Constitution.
[6]
[16]
The
test for contempt, a deliberate intentional disobedience of an order
of a competent court, is threefold: firstly, an order was
granted
against the alleged contemnor, secondly, the alleged contemnor was
served with the order or had knowledge of it and, lastly,
that the
alleged contemnor failed to comply with the order.
[7]
[17]
Once
these elements are established, it is established beyond a reasonable
doubt that the contemnor is in contempt of court unless
the contemnor
establishes reasonable doubt relating both to wilfulness and
mala
fides
.
[8]
[18]
Contempt
is not an issue
inter
partes.
It
is an issue between the court and the person who has not complied
with the order.
[9]
[19]
It is trite that, personal service must be
effected on the contemnor for the contemnor to be held in contempt of
court. Absent
personal service, it must be shown that the
contemnor has knowledge of the court order.
[20]
The current MEC, Health, Ms Meth, and HOD,
Health Dr Wagner, refute that Peter is entitled to any of the relief
she seeks.
Firstly, they contend, neither the 2004 Order nor
the 2018 Order was served on them personally and, secondly, the debt
that Peter
seeks to enforce has, in fact, been paid.
20.1
On 2 March 2011, the 2004 order was served
on a Ms L Mooi in Legal Services, who accepted service, both for the
accounting officer
of the Department of Health, Eastern Cape (that is
the Head of Department) and the MEC of Health, Eastern Cape
20.2
On 18 December 2018, the 2018 Order was
served on a Mrs Z Mephlo, the office manager of the
Superintendent General of
Health, Dr TD Mbengashe, as the person
designated by him to accept service on his behalf in terms of the
State Liability Act.
20.3
On 13 December 2018, the 2018 Order was
served on a Ms Z Gangana, the person in charge of Shared
Legal Services at the
office of the Premier, who accepted service on
behalf of the MEC for Health, Helen Sauls August and the HOD for
Health, Thobile
Mbengashe.
20.4
Service in this fashion does not constitute
personal service.
[21]
These returns of service clearly indicate
that there was no personal service of either the 2004 Order or the
2018 Order on the persons
occupying either the position of MEC
Health, or that of HOD Health, both in 2011 and in 2018. The
current application, which
includes both these court orders, was
served solely on the State Attorney as the legal representative of
the MEC Health and HOD
Health. There are no returns of service
in the papers evidencing personal service on the current incumbents
Ms Meth or Dr Wagner.
[22]
There is no evidence on the papers that the
current MEC, Ms Meth, has any knowledge of the 2004 Order or the 2018
Order or these
current proceedings Consequently, there is no scope to
contend, as Peter does, that the MEC is in wilful disregard of these
court
orders.
[23]
The current HOD, Dr Wagner, gained
knowledge of this court order in these proceedings. Dr Wagner
is the deponent to the answering
affidavit. Her defence is that
the court order has been complied with, as the outstanding interest,
calculated from date
the pension ought to have been paid (that is 1
December 1998) until actual payment (that is 1 October 2005) has been
paid.
[24]
Peter has only shown the first leg of the
test for contempt of court, namely, that an order was granted against
the MEC Health on
5 February 2004 and that a further court order
was granted against the MEC and HOD Health as well as the incumbents,
Helen
Sauls August and Dr Thobile Mbengashe, on 4 December 2018.
[25]
Peter has failed to meet the second leg of
the contempt test namely that there was service of these orders on
the current incumbents
or that the incumbents had knowledge of the
court orders prior to the institution of these proceedings.
[26]
Whether there is actually any amount
payable in terms of the court orders is dispositive of any question
of non-compliance with
the court orders by both the incumbent MEC
Health and the HOD Health, irrespective of the manner of service of
the court orders.
[27]
Paragraph
3 of the 2004 Order requires payment of interest on the pension
monies capitalised annually.
Euro
Blitz 21 v Secena Aircraft Investments CC
[10]
recognised that the term “
the
capitalisation of interest
”
is interchangeable with the compounding of interest.
[28]
Where
interest is capitalised, the capitalised interest does not lose its
character as interest. It does not become part of
the capital
amount for the purpose of the
in
duplum
rule.
[11]
The
in
duplum
rule prevents a creditor from claiming payment of interest in excess
of the capital sum. In this instance, the capital sum
payable
to Peter for her pension benefit was the sum of R18 872.81.
Consequently, in accordance with the
in duplum
principle, the maximum amount of interest Peter could claim on this
amount is the capital sum, namely, R18 872.81.
[29]
The payment made by the Department of
Health on 12 March 2021, in the sum of R26 853.61 was R8 480.80
in excess of the interest
that was properly due and payable to
Peter. The amount of R8 480.80 was paid to Peter
sine
causa
. As the MEC, Health has not
instituted a counter application for the repayment of this amount, I
say no more regarding this
overpayment.
[30]
The MEC Health and HOD Health have
established reasonable doubt for any failure to comply with the court
orders relating both to
their wilfulness and
mala
fides
. The court orders were
fully complied with on 12 March 2021, when the interest on the
pension monies was paid. This
happened prior to the institution
of these proceedings.
[31]
Peter has failed to show that the
incumbents are in contempt of court.
[32]
In the result, I make the following order:
the application is dismissed with costs.
DREYER
AJ
ACTING
JUDGE OF THE HIGH COURT
Representation
for applicant
Counsel:
Adv Sothenjwa
Instructed
by:
Hutton & Cook
Representation
for respondents
Counsel:
Adv Phashera
Instructed
by:
The State Attorney, King William’s Town
Date
matter heard:
1 September 2022
Date
matter handed down:
27 September 2022
[1]
Hawkin
v Hawkin
1932
WLD 190
@192;
Nyathi
v MEC Department of Health, Gauteng
2008
(5) SA 94
(CC) @ para [76]
[2]
Swanepoel
v Bovey
1926
AD 457
@ 458
[3]
Pheko
(2) & other v Ekurhuleni Metropolitan Municipality
2015 (5) SA 600
(CC) @ para [37]
[4]
2021
(5) SA 327 (CC)
[5]
2004
(3) All SA 623
(E) at para [23]
[6]
Secretary
of the Judicial Commission of Enquiry into Allegations of State
Capture
at para [27]
[7]
This
is the test set out by the Supreme Court of Appeal in
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), at para [22], and approved by the
Constitutional Court in :
Pheko
(No 2)
supra
[8]
Southey
v Southey
109 ECD 133 at 137, affirmed by
Consolidated
Fish Distributors (Pty) Ltd
1968
(2) SA 517
(C) @ at 522E-H
[9]
Federation
of South African Schools (Gauteng) v MEC Education,
Gauteng
2002(1) SA 660 (T)
[10]
[2015]
ZASCA 21
(19 March 2005)
[11]
Casey
and
Another v First Rand Bank Ltd
2014 (2) SA 374
(SCA) at para [7];
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (in
liquidation)
[1997] ZASCA 94
;
[1998] 1 All SA 413
(SCA)