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[2017] ZASCA 43
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Mashamaite and Others v Mogalakwena Local Municipality and Others, Member of the executive Council for Coghsta, Limpopo and Another v Kekana and Others (523/2016, 548/2016) [2017] ZASCA 43; [2017] 2 All SA 740 (SCA) (30 March 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 523 & 548/2016
In
the matter between:
TLHALEFI
ANDRIES MASHAMAITE
FIRST APPELLANT
L
D
LANGA
SECOND APPELLANT
N
S
MONTANE
THIRD APPELLANT
M
A
TSEBE
FOURTH APPELLANT
M
R
LEBELO
FIFTH APPELLANT
VAALTYN
KEKANA
SIXTH APPELLANT
SANNY
TLHAKU
EIGHTH APPELLANT
LESIBA
JACOB MASHALA
NINTH APPELLANT
LESIBA
JACKSON MATHEBATHE
TENTH APPELLANT
RAMASELA
LINAH MAHLAELA
ELEVENTH APPELLANT
MOKGAETI
FRANCINAH MUTSHIMYA
TWELFTH APPELLANT
RAMOKONE
MINKY MOLEKOA
THIRTEENTH APPELLANT
DAVID
MAGONGOA
FOURTEENTH APPELLANT
LESETJA
CHARLES KGANYAGO
FIFTEENTH APPELLANT
MONICCA
SENOAMADI
SIXTEENTH APPELLANT
ERNEST
RANTHUPA
SEVENTEENTH APPELLANT
NELSON
NGWETJANA
EIGTHTEENTH APPELLANT
NAKEDI
MABULA
NINETEENTH APPELLANT
NELLY
MONENE
TWENTIETH APPELLANT
LESIBA
JAIRUS LEBELO
TWENTY-FIRST APPELLANT
L
G LEGODI
TWENTY-SECOND APPELLANT
EMILY
MANGANYE
TWENTY-THIRD APPELLANT
LEBOGANG
BRENDA MOKGOTHO TWENTY-FOURTH
APPELLANT
MAPHUTHI
RAHAB LEBELO
TWENTY-FIFTH APPELLANT
MAMMA
MILOANA
TWENTY-SIXTH APPELLANT
ENOCK
MANAMELA
TWENTY-SEVENTH APPELLANT
LAWRENCE
SOMO
TWENTY-EIGHT APPELLANT
RAISIBE
ANDRINA MATSEMELA
TWENTY-NINETH APPELLANT
ZUNAID
SURTEE
THIRTIETH APPELLANT
MANKOPANE
MICHAEL RAPATSA
THIRTY-FIRST APPELLANT
MALESELA
FRANS MOKWELE
THIRTY-SECOND APPELLANT
LESETJA
PHILLEMON ERIC GWANGWA
THIRTY-THIRD APPELLANT
MAHLODI
JOSEPHINE MADIBA
THIRTY-FOURTH APPELLANT
MADIBANA
CATHY LENTSOANE
THIRTY-FIFTH APPELLANT
MAPULA
SHIRLEY TEFU
THIRTY-SIXTH APPELLANT
MANKALE
SOLOMON MOLABA
THIRTY-SEVENTH APPELLANT
and
MOGALAKWENA
LOCAL MUNICIPALITY
FIRST RESPONDENT
SHELLA
WILLIAM KEKANA
SECOND RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL
THIRD RESPONDENT
FOR
COGHSTA, LIMPOPO
And
MEMBER
OF THE EXECUTIVE COUNCIL
FIRST APPELLANT
FOR
COGHSTA,
LIMPOPO
MOGALAKWENA
LOCAL MUNICIPALITY
SECOND APPELLANT
and
SHELLA
WILLIAM KEKANA
FIRST RESPONDENT
THAPELO
MATLALA
SECOND RESPONDENT
TLHALEFI
ANDRIES MASHAMAITE
THIRD RESPONDENT
L
D
LANGA
FOURTH RESPONDENT
N
S
MONTANE
FIFTH RESPONDENT
M
A
TSEBE
SIXTH RESPONDENT
M
R
LEBELO
SEVENTH RESPONDENT
VAALTYN
KEKANA
EIGHTH RESPONDENT
SANNY
TLHAKU
NINTH RESPONDENT
SAMUEL
MATHEBULA
TENTH RESPONDENT
LESIBA
JACOB MASHALA
ELEVENTH RESPONDENT
LESIBA
JACKSON MATHEBATHE
TWELTH RESPONDENT
RAMASELA
LINAH MAHLAELA
THIRTEENTH RESPONDENT
MOKGAETI
FRANCINAH MUTSHIMYA FOURTEENTH
RESPONDENT
RAMOKONE
MINKY MOLEKOA
FIFTHTEENTH RESPONDENT
DAVID
MAGONGOA
SIXTEENTH RESPONDENT
LESETJA
CHARLES KGANYAGO
SEVENTEENTH RESPONDENT
MONICCA
SENOAMADI
EIGHTEENTH RESPONDENT
ERNEST
RANTHUPA
NINETEENTH RESPONDENT
NELSON
NGWETJANA
TWENTIETH RESPONDENT
NAKEDI
MABULA
TWENTY-FIRST RESPONDENT
NELLY
MONENE
TWENTY-SECOND RESPONDENT
LESIBA
JAIRUS LEBELO
TWENTY-THIRD RESPONDENT
LG
LEGODI
TWENTY-FOURTH RESPONDENT
EMILY
MANGANYE
TWENTY-FIFTH RESPONDENT
LEBOGANG
BRENDA MOKGOTHO
TWENTY-SIXTH
RESPONDENT
MAPHUTI
RAHAB LEBELO
TWENTY-SEVENTH RESPONDENT
MAMMA
MILOANA
TWENTY-EIGHTH RESPONDENT
ENOCK
MANAMELA
TWENTY-NINETH RESPONDENT
LAWRENCE
SOMO
THIRTIETH RESPONDENT
RAISIBE
ANDRINA MATSEMELA
THIRTY-FIRST RESPONDENT
ZUNAID
SURTEE
THIRTY-SECOND RESPONDENT
MANKOPANE
MICHAEL RAPATSA
THIRTY-THIRD RESPONDENT
MALESELA
FRANS MOKWELE
THIRTY-FOURTH RESPONDENT
LESETJA
PHILLEMON
ERIC
GWANGWA
THIRTY-FIFTH RESPONDENT
MAHLODI
JOSEPHINE MADIBA
THIRTY-SIXTH RESPONDENT
MADIBANA
CATHY LENTSOANE
THIRTY-SEVENTH RESPONDENT
MAPULA
SHIRLEY TEFU
THIRTY-EIGHTH RESPONDENT
MANKALE
SOLOMON MOLABA
THIRTY-NINETH RESPONDENT
P
P
SELEPE
FORTIETH RESPONDENT
Neutral
citation:
Mashamaite
& others v Mogalakwena Local Municipality & others
(523
/2016) and
MEC,
Limpopo & another v Kekana & others
(548/2016)
[2017] ZASCA 43
(30 March 2017)
Coram:
Maya
AP, Theron and Dambuza JJA and Fourie and Schippers AJJA
Heard:
28
February 2017
Delivered:
30
March 2017
Summary
:
Res
Judicata
:
the same cause, between the same parties for the same relief : the
court a quo was precluded from granting a substantive order
of
reinstatement.
Motion
proceedings : an applicant must, in the founding papers, disclose
facts that would make out a case for the relief sought
: the relief
granted by the court a quo was inconsistent with the facts and
averments contained in the papers : relief improperly
granted.
Employee
on suspension : an employee who is suspended does not have authority
to act on behalf of an employer during the period
of suspension,
unless called upon to perform duties during that period.
Section
16(1)
(a)(
i)
of the
Superior Courts Act 10 of 2013
: mootness :
circumstances
have altered to such an extent that part of the judgment has become
moot : order will have no practical effect.
Contempt
of court : respondents failing to establish that the MEC acted
wilfully and mala fide in failing to comply with a court
order : not
entitled to a declarator.
Costs
order : discretionary and not lightly interfered with on appeal :
absence of grounds on which a court, acting reasonably,
could have
made the order : appeal court entitled to interfere.
__________________________________________________________________
ORDER
__________________________________________________________________
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Hiemstra AJ sitting as court of
first instance):
1
The appeal is upheld with costs including the costs of two counsel.
2
The order of the court a quo is set aside and substituted with the
following:
‘
(a)
The application is dismissed.
(b)
The second applicant is directed to pay the costs of the application
including the costs of two counsel.
(c)
The second applicant is directed to pay the costs reserved on 23
December 2014.’
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Theron
JA (Maya AP, Dambuza JA, Fourie and Schippers AJJA concurring):
Introduction
[1]
This appeal concerns the affairs of the first respondent, the
Mogalakwena Local Municipality, Limpopo
(the municipality) and what
has in effect become a power struggle between the municipality, its
councillors and the municipal manager.
Background
[2]
Mr Kekana, (Kekana) (second respondent in Case No 523/2016), was
previously the municipal manager of
the municipality. The subject
matter of this appeal is an urgent application (Case No 89657/14)
launched on 19 December 2014 by
Kekana, with the municipality as
co-applicant against the appellants, in which he sought certain
interdictory relief, pending the
finalisation of review proceedings.
In that application, the first appellant,
the
Member of the Executive Council of the Limpopo Province responsible
for the Department of Co-operative Governance Human Settlements
and
Traditional Affairs (the MEC), was cited as the first respondent.
The second to thirty-seventh appellants (the appellants)
were
councillors of the municipality at the time.
[3]
In Part A of the urgent application, Kekana sought an order, inter
alia, (i) interdicting Mr Lebelo
(Lebelo) (fifth appellant in Case No
523/2016) from convening meetings of the council; (ii) interdicting
the appellants from executing
certain resolutions adopted by the
council; (iii) interdicting Mr Mashamaite (Mashamaite), (first
appellant in Case No 523/2016)
the then mayor, from performing
any acts as mayor of the municipality; (iv) interdicting all
councillors of the municipality from
giving instructions to officials
unless authorised by legislation; (v) interdicting Mr Selepe (Selepe)
(fortieth respondent in
Case No 548/2016) from performing any
functions as acting municipal manager and (vi) declaring that he,
Kekana, was the municipal
manager of the municipality. He also sought
a rule nisi calling upon the MEC to show cause why she should not be
held in contempt
of an order issued by Tuchten J under Case No
35248/2014 on 17 June 2014. In Part B of the application (the review)
Kekana
sought the review and setting aside of, inter alia, the
decision taken by the MEC to convene a special council meeting on 6
November
2014, resolutions taken by the council on 6 November 2014
and 4 December 2014 and the decision to appoint Selepe as acting
municipal
manager.
[4]
It was common cause that at the time Kekana launched the application,
he was on suspension pending a
disciplinary enquiry, having been
placed on suspension by the council on 4 December 2014. Part A of the
application was heard on
23 December 2014. The court a quo (Ismail
J), did not grant interim relief and that portion of the matter was
adjourned sine die.
The review continued in the ordinary course.
[5]
In the meanwhile the municipality proceeded with the disciplinary
enquiry against Kekana. He was found
guilty of gross misconduct and
dismissed by the municipality on 31 March 2015. On 20 April 2015,
Kekana launched an urgent application
in the Gauteng Division,
Pretoria, challenging his suspension, the disciplinary proceedings
and his dismissal. On 1 June 2015,
the urgent application was
dismissed on the ground that that court did not have jurisdiction to
entertain the matter. Hughes J
found that the Labour Court had
jurisdiction to ‘adjudicate the dispute as asserted’ by
Kekana.
[6]
Kekana then approached the Labour Court, seeking an order reviewing
and setting aside the decision of
the council to dismiss him and
seeking reinstatement. The Labour Court (Baloyi AJ) reserved
judgment. While judgment in the Labour
Court was pending, the review
application was heard in the court a quo on 3 and 4 February 2016.
Judgment in respect of the review
application was also reserved. On
26 February 2016, the Labour Court dismissed the application with
costs. An application for leave
to appeal against such dismissal is
pending before the Labour Court. On 1 April 2016, the court a quo
(Hiemstra AJ) granted an
order declaring that the MEC was in contempt
of the order granted by Tuchten J, reinstating Kekana as municipal
manager, declaring
the meetings held on 6 November and 4 December
2014 unlawful and setting aside all decisions and resolutions taken
by the council
at these meetings. It is against this order that the
appellants appeal, with the leave of the court a quo.
[1]
[7]
It is necessary, prior to dealing with the issues in this matter, to
set out the history of the relationship
between Kekana and the
appellants. During the course of 2014 and 2015, Kekana had brought
multiple applications on behalf of the
municipality against various
council members, including the appellants.
[8]
Kekana asserted the conflict between him and Mashamaite arose in 2013
and was caused by his resistance
to bow to pressure from Mashamaite
and his supporters to engage in corrupt activities and unauthorised
and irregular spending of
the municipality’s funds. According
to Kekana, Mashamaite and his supporters had, on 12 July 2013,
orchestrated his removal
as municipal manager. He was however
reinstated as municipal manager on 11 October 2013. It would appear
that Kekana was instrumental
in the decision of the council to
appoint forensic investigators, KPMG, to investigate alleged
irregularities by Mashamaite and
certain other council members. The
investigation found that Mashamaite had abused the mayor’s
discretionary fund and he was
subsequently removed from office as
mayor on 17 April 2014. Twenty three councillors who had supported
Kekana and had, on 11 October
2013, voted for his reinstatement as
municipal manager, were subjected to disciplinary proceedings and
expelled from the ANC on
21 September 2014. The Speaker and Mayor
were among those dismissed, leaving the municipality without these
functionaries.
[9]
In his founding affidavit, Kekana explained that he had, on 4
November 2014 brought an urgent application
under Case number
80496/2014 to remove the South African Police Service (SAPS) and the
appellants from the premises of the municipality
which they had
violently invaded and occupied during the afternoon of 3 November
2014.
[10]
By notice dated 4 November 2014, the MEC invited councillors of the
municipality to a special council meeting to
be held on 6 November
2014. It was at this meeting that Lebelo was elected as Speaker and
Mashamaite re-elected as Mayor. Kekana
alleged that as from 6
November 2014, there were two factions, each claiming to be the
legitimate council of the municipality with
the one faction allegedly
under the leadership of Mashamaite and Lebelo.
[11]
Kekana stated that a number of councillors had, on 24 November 2014,
and with the assistance of members of the
SAPS, violently invaded the
municipal premises, which resulted in him bringing an urgent ex parte
application on 26 November 2014.
After hearing oral evidence Preller
J granted an order directing that the SAPS, Mashamaite and the other
respondents in that matter,
immediately vacate the municipal
premises.
[12]
It was common cause that Lebelo, in his capacity as Speaker, had, on
4 December 2014, convened a meeting of the
council and it was at this
meeting that the council adopted a resolution to suspend Kekana.
Kekana alleged that the purported council
led by Mashamaite and
Lebelo had adopted resolutions with far reaching consequences for the
municipality. According to Kekana,
this had led to the shutdown of
ordinary municipal services as well as the financial department of
the municipality. He alleged
that the main purpose of the December
2014 application was to restore the municipality to a functional
state.
Issues
[13]
It is against this backdrop that the following issues must be
decided:
·
Was
the court a quo precluded from granting the relief of reinstatement
on the basis of the doctrine of
res
judicata
?
·
Did
Kekana have authority to institute proceedings on behalf of the
municipality?
·
Are
some of the orders appealed against moot?
·
Was
it established that the MEC’s non-compliance with the order
granted by Tuchten J was wilful and mala fide?
·
Was
the court a quo justified in directing that the appellants pay the
reserved costs of the hearing on 23 December 2014?
Was
the court a quo precluded from granting the relief of reinstatement
on the basis of the doctrine of res judicata?
[14]
It was contended on behalf of the appellants that having regard to
the doctrine of
res judicata
, it was not competent for the
court a quo to have granted the relief of reinstatement when the same
relief had previously been
sought by Kekana before Hughes J and
dismissed with costs.
[15]
Res
judicata
is
the Latin term for ‘a matter adjudged’ and is the legal
doctrine that bars continued litigation for the same cause,
between
the same parties and where the same thing is demanded.
[2]
The
underlying rationale of the doctrine of
res
judicata
is to give effect to the finality of judgments
[3]
and
an ‘avoidance of a multiplicity of litigation or conflicting
judicial decisions on the same issue or issues’.
[4]
[16]
The court a quo justified its pronouncement on the issue of
reinstatement as follows:
‘
[59]
On 13 May 2015 the 2
nd
applicant brought an urgent application against the Municipality, the
MEC, Mr P.P. Selepe, the newly appointed Acting Municipal
Manager,
and other interested parties in this court under case number
28113/15. He sought to have his suspension and the disciplinary
proceedings against him set aside. The matter came before Hughes J.
She dismissed the application on the grounds that the High
Court
lacked jurisdiction in the matter. She found that only the Labour
Court had such jurisdiction. The 2
nd
applicant then instituted proceedings in the Labour Court where
judgment is still pending.
[60]
In my respectful opinion the judgment of Hughes J on this score is
clearly wrong.’
[17]
On the facts, both the definitional requirements of the
res
judicata
doctrine and its justification are met. The cause of
action was the same. The dispute before Hughes J primarily concerned
Kekana’s
suspension and the disciplinary proceedings against
him. The parties were the same, namely, Kekana, the municipality and
the MEC.
The relief sought was the setting aside of his suspension
and dismissal.
[18]
The logic of the doctrine is an avoidance of a multiplicity of
proceedings, with its consequent risk of producing
conflicting
outcomes on the same subject matter. The rationale for the doctrine
was defeated by the approach taken by the court
a quo. The court a
quo concluded that Hughes J was ‘clearly wrong’ and that
it could as a result disregard her judgment.
In doing so, it created
the very problem which the operation of the doctrine seeks to avoid –
a multiplicity of litigation
with conflicting judgments on the same
issues.
[19]
In any event, the court a quo, consisting of a single judge, had no
jurisdiction to sit as an appeal court in respect
of the order of
Hughes J and, in effect, set it aside. It is clear from the
passage of the judgment quoted in paragraph 16
above, that the court
a quo was aware that Kekana had instituted proceedings in the Labour
Court challenging his suspension and
dismissal and that these
proceedings were pending in that court. It is difficult to understand
how the judge, with full knowledge
of the pending litigation in the
Labour Court, could nevertheless order that Kekana be reinstated. In
the circumstances, the court
a quo erred in granting a substantive
order of reinstatement.
[20]
Furthermore, and as already mentioned, at the time Kekana launched
the application, he was on suspension. He had,
in the application,
sought the setting aside of his suspension and had set out the facts
in support of this relief.
[21]
It is trite that an applicant in motion proceedings must, in the
founding papers, disclose facts that would make
out a case for the
relief sought, and sufficiently inform the other party of the case it
was required to meet.
[22]
Kekana could not, when he launched the application, have demonstrated
circumstances justifying an order for reinstatement
as he had not yet
been dismissed. It was further common cause that the relief of
reinstatement had not been sought by Kekana
or argued on his behalf
in the court a quo. The relief granted by the court a quo was
inconsistent with the facts and averments
contained in the papers and
did not accord with the relief sought in the notice of motion.
In my view, a case for reinstatement
was not made out in the papers.
Such relief was improperly granted.
Did
Kekana have authority to institute proceedings on behalf of the
municipality?
[23]
The appellants have both in the court a quo and on appeal, challenged
the authority of Kekana to cite the municipality
as a co-applicant in
the December 2014 application. In his founding affidavit, Kekana
alleged that as municipal manager, he was
the Head of Administration
of the municipal council and its accounting officer and as such
responsible for the safety of the employees
of the municipality and
for ensuring that the municipality provided services to the public
and conducted its business in an orderly
fashion. He relied on a
resolution adopted by the council on 21 July 2014 which authorised
the municipal manager to seek legal
advice, approach an appropriate
legal forum and do whatever may be necessary ‘to protect the
interests of the municipality’.
[24]
An employee who is on suspension does not perform her usual duties.
Feetham J in
Gladstone
v Thornton’s Garage
[5]
put
the matter thus:
‘
When
an employee is “suspended” it appears to me that apart
from any express instructions he must hold himself available
to
perform his duties if called upon; though for the time being he is
debarred from doing his work.’
It
must follow that an employee who is suspended does not have authority
to act on behalf of an employer during the period of suspension,
unless called upon to perform duties during that period.
[25]
The resolution on which Kekana relied authorised the municipal
manager to take legal steps to protect the interests
of the
municipality. He was suspended from his position as the municipal
manager at the time he instituted these proceedings and
as a result
of his suspension, was debarred from performing any duties as
municipal manager.
[26]
During January 2015, the municipality filed a notice withdrawing as a
party to the proceedings. In its judgment,
the court a quo recorded
that whether or not the municipality was a party to the proceedings
was an issue in the proceedings. Although
it did not make a clear
pronouncement on this issue, a reading of the judgment as a whole
suggests that it found that the municipality
was a party to the
proceedings. It is evident from the following extract of the judgment
that the judge did not consider the notice
of withdrawal to be valid:
‘
On
25 January 2015 the impugned council
purported
to withdraw the Municipality
as
an applicant in this matter’. [Emphasis added.]
On
appeal, Mr Dreyer, informed the court that he appeared on behalf of
both Kekana and the municipality.
[27]
In any event, the municipality was a necessary party to these
proceedings and had to be before court as it had
a direct and
substantial interest in any order that might issue.
[6]
In
the circumstances, and for the purposes of this judgment, it is
accepted that the municipality was before court in these proceedings.
Are
some of the orders appealed against moot?
[28]
In terms of paragraphs 6 and 7 of the order of the court a quo, the
resolutions taken at the meetings of 6 November
and 4 December 2014
relating to the election of Lebelo and Mashamaite as Speaker and
Mayor of the council, respectively, the election
of the new executive
committee of the council and the suspension of Kekana, were declared
unlawful and set aside. These issues
have become moot, mainly in
consequence of the local government elections that were held in
August 2016. It was common cause that
Lebelo ceased to be the Speaker
and a new Speaker had been elected and that a new Mayor had been
elected in the place of Mashamaite.
A new executive committee has
also been constituted. Furthermore, the decision to suspend Kekana
has become academic as it was
subsequently overtaken by his dismissal
on 31 March 2015.
[29]
Section 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
is relevant and reads:
‘
When at
the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
The
Constitutional Court has stated that ‘a case is moot and
therefore not justiciable if it no longer presents an existing
or
live controversy which should exist if the Court is to avoid giving
advisory opinions on abstract propositions of law.’
[7]
[30]
Having regard to the facts in this matter, I am of the view that
paragraphs 6 and 7 of the order granted by the
court a quo will have
no ‘practical effect or result’ within the meaning of
s
16(
2)(
a
)(i)
of the
Superior Courts Act. This
is a case in point where, after
judgment in the court a quo, circumstances have altered to such an
extent that part of the judgment
has become moot.
[8]
[31]
It is apposite to mention at this stage that the respondents
steadfastly defended this relief and persisted in
the contention that
it was not moot. This will be relevant when determining the question
of costs.
Was
it established that the MEC’s non-compliance with the order
granted by Tuchten J was wilful and mala fide?
[32]
Para 1.1.2 of the order granted by Tuchten J on 17 June 2014
interdicted the (then) MEC from:
‘
interfering
in any way whatsoever with the ability or right of the council of the
applicant, its municipal manager or any of its
officials to exercise
powers or perform functions vested in them under the Constitution or
any other applicable legislation’.
[33]
Kekana alleged that the MEC, in calling the SAPS to the municipal
premises, convening the council meeting of 6
November 2014 and
appointing Selepe as acting municipal manager, violated the order of
17 June 2014. In respect of the first indictment
regarding the SAPS,
Kekana relied on a radio interview in which the MEC had said:
‘
I
believe the Council has the power, if he [Kekana] continues to close
them out that is why you have seen the police there on Monday.
The
police were sent by the MEC
,
because the councillors were feeling pain because people who were
expelled were in offices and they went to report a case of
trespassing and the police went there and removed them, and even now
council will take a resolution if he [Kekana] continues to
stop them
from entering the municipality’. (Emphasis added.)
[34]
The MEC has alleged that she had seconded Selepe to the municipality
as its acting manager ‘upon request
by [the] council of the
[municipality] through a resolution that was properly adopted by that
council to that effect’. She
relied on the provisions of s
54A(6)(
a
) of the Local Government: Municipal Systems Act, 32
of 2000 (the Systems Act) which provides that a municipal council may
request
the MEC for local government to second a person, ‘to
act in the advertised position’ as municipal manager, until
such
time as a suitable candidate has been appointed.
[35]
As previously mentioned, the MEC had, on 6 November 2014, convened a
meeting of councillors of the municipality.
In her affidavit the MEC
explained that she had received a written request from 36 council
members that she convene a special meeting,
in terms of s 29(2) of
the Local Government : Municipal Structures Act 117 of 1998 (the
Structures Act), for the purpose of electing
a Speaker and a Mayor as
these posts were vacant following the expulsion of the 23
councillors.
[36]
The MEC made the following averments as to why she convened a special
meeting of the council:
‘
17.
. . . The second applicant is aware that 23 ANC councillors had been
expelled by the ANC and by virtue of their expulsion they
ceased to
be members of council . . . Among the 23 expelled councillors, both
the Mayor and the Speaker were expelled. This means
that the
municipality was left without a Speaker and an Executive Mayor. The
meeting could not be convened by the Speaker because
there was no
Speaker. The meeting could not be convened by the Municipal Manager
("Kekana") because he did not recognize
the PR Councillors
who were appointed and he flatly refused to convene any meeting . . .
18.
As I have pointed out above, the second applicant made it abundantly
clear that he was not going to call any meeting because
he did not
recognize the new councillors. In the absence of the Municipal
Manager and the Speaker I am authorized by the Structures
Act to
convene such meeting in order to ensure that the municipality is able
to get on with the business of the municipality of
service [delivery
by] ensuring that both the Speaker and the Mayor are elected. It
would have been a serious dereliction of duty
on my part if I elected
to do nothing and allow the municipality to be held to ransom by the
second applicant.
…
21.1
I confirm that the second applicant’s attorneys addressed a
letter to me . . . [The letter recorded that the proposed
meeting
would be unlawful and in violation of the interdict granted by
Tuchten J on 17 June 2014 restraining the MEC from interfering
with
the affairs of the municipality.] It is clear from the reading of the
said letter that the second applicant’s attorneys
have no
understanding whatsoever of the provisions of the Structures Act nor
do they appreciate the statutory obligation imposed
on me as the
Member of the Executive Council. The contents of the said letter were
clearly misguided and wrong.’
[37]
The court a quo made an order that:
‘
1
The first respondent is declared to be in contempt of the order
granted by His
Lordship Mr Justice Tuchten under case number
35248/2014 on 17 June 2014.
2
The first respondent is incarcerated for a period of 60 days.
3
The order contained in paragraph 2 above is suspended for a period of
five
years on condition that the first respondent does not unlawfully
interfere with the affairs of the Mogalakwena Local Municipality
during the period of suspension. This order applies to any successor
to the MEC.’
[38]
In granting this order, the court a quo reasoned:
‘
63.
As appears from the above, the MEC has thereafter, in alliance with
Mashamaite and his supporters, imperiously interfered in
the affairs
of the council. Amongst others, she was instrumental in the violent
invasion of the council offices on 3 November 2014
and 24 November
2014; she invited councillors to a special council meeting to be held
on 6 November 2014 at the request of a contrived
majority of
councillors; she unlawfully convened the meeting of 6 November 2014
and she appointed the 40
th
respondent as acting municipal manager without any statutory
authority to do so.
64.
Counsel for the MEC, Mr Mokhari SC, pretended to be utterly perplexed
about the basis upon which it is alleged that the MEC
had been in
contempt of the order. His perplexity is curious. The order is
unambiguous. The MEC had been interdicted from interfering
in the
affairs of the municipality. Despite the order she blatantly
continued to interfere in the most high-handed manner’.
[39]
I consider now whether the requirements for the grant of the order
had been satisfied. It has been held, with the
advent of the
Constitution, that the principles of contempt must accord with
constitutional dictates.
[9]
One
of these dictates is that the order must be served on or brought to
the attention of interested persons.
[10]
The
failure to notify interested parties of an order granted against them
violates all precepts of fairness and what can be considered
just in
a constitutional democracy.
[40]
The first difficulty in this matter and one recognised by the court a
quo, is that there was uncertainty as to
which MEC was before court
when the order of Tuchten J was issued. This is apparent from the
following paragraph of the judgment:
‘
I
cannot determine from the papers who exactly the MEC was from time to
time during the events that are the subject matter of these
proceedings. In the earlier stages the MEC was Mr Kgetjepe and in the
later stages it was Ms M.G. Makhurupetje’.
Counsel
for the respondents conceded that the order was not made against the
current MEC, but her predecessor. There was a feeble
attempt to evade
the consequences of this concession by contending that the order was
made against the office of the MEC. A reading
of the order puts paid
to this contention.
[41]
The prejudice to the MEC was real and significant. The order granted
by Tuchten J, which was not served on her,
had set in motion a
process that could lead to her incarceration in circumstances where
she may not have been aware of the details
of the order and the
obligations it placed on her.
[42]
Kekana did not prove that the order was served on the MEC. In any
event, the Constitutional Court has held that
it would suffice if the
order was brought to the notice of the alleged contemnor as against
personal service, stating that:
‘
When
a court order is disobeyed, not only the person named or party to the
suit but all those who, with the knowledge of the order,
aid and abet
the disobedience or wilfully are party to the disobedience are
liable’.
[11]
Kekana’s
attorneys did bring the existence of the order to the attention of
the MEC in a letter to her dated 6 November 2016,
advising her that
she had no authority to call the scheduled meeting and reminding her
of the order granted by Tuchten J. In any
event and having regard to
my finding below about the requirements of wilfulness and mala fides,
it is not necessary to decide
whether the order and the details
thereof, had been brought to the attention of the MEC with sufficient
particularity.
[43]
An applicant in civil contempt proceedings must prove the requisites
of contempt, namely, (a) the existence of
a court order; (b) service
or notice thereof; (c) non-compliance with the terms of the order;
and (d) wilfulness and mala fides
beyond reasonable doubt.
[12]
This
Court has held that the breach or non-compliance must have been
committed ‘deliberately and mala fide’.
[13]
[44]
Once an applicant has proved the required elements of contempt, the
respondent bears an evidential burden in relation
to wilfulness and
mala fides. The respondent must produce evidence that establishes a
reasonable doubt as to whether the non-compliance
was wilful and mala
fide, failing which contempt will have been established beyond a
reasonable doubt.
[14]
Cameron
JA in
Fakie
NO v CCII Systems (Pty) Ltd
,
[15]
explained
the nature of the test in determining 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).
These
requirements – that the refusal to obey should be both wilful
and
mala fide
, and that unreasonable non-compliance, provided
it is
bona fide
, does not constitute contempt – accord
with the broader definition of the crime, of which non-compliance
with civil orders
is a manifestation. They show that the offence is
committed not by mere disregard of a court order, but by the
deliberate and intentional
violation of the court’s dignity,
repute or authority that this evinces.’ (Footnotes omitted.)
[45]
There was no evidence to support a finding by the court a quo that
the MEC had ‘imperiously interfered in
the affairs of the
council’ and that she had been ‘instrumental in the
violent invasion of the council offices’.
This was incorrect
and is not borne out by the record. It is clear from her explanation
that the MEC had ‘sent’ police
to the municipality
because she believed that Kekana had unlawfully prevented newly
elected councillors from gaining access to
the municipality.
[46]
Section 54A(6)(
a
) of the Systems Act does authorise the MEC,
at the request of the municipality, to second a person to act as
municipal manager,
but the section seems to suggest that the
secondment can only be made once the post has been advertised. This
was not a point that
was argued before us.
[47]
It is accepted that the MEC did not have the power to convene the
meeting. In terms of s 29(1) of the Structures
Act the Speaker of a
municipality has authority to call meetings of the council, but a
majority of the councillors may, in writing,
request that the Speaker
convene a meeting. In terms of s 29(2) the municipal manager, and in
her absence, a person designated
by the MEC for local government in
the province, must, within 14 days after the council has been
declared elected, call the first
meeting of the council.
[48]
The decision of the MEC to convene the meeting of 6 November 2014
must be considered in context. This was not a
new council recently
elected, but an existing council where a substantial number of
councillors had been replaced pursuant to their
expulsion from the
party that had nominated them to the council. The duty to convene a
council meeting under s 29 would have ordinarily
fallen on the
Speaker, who was one of the expelled councillors. According to the
MEC, Kekana refused to call a meeting. The MEC
believed she had
authority to call the meeting and in fact considered it her duty to
ensure that a meeting was called to elect
a Speaker and a Mayor and
restore functionality to the municipality. The defence of the MEC is
that she believed that she acted
within her legitimate role of
overseeing the affairs of the municipality and if it is found that
she was in breach of the order
granted by Tuchten J, then such breach
was not wilful or mala fide. The MEC’s version must be
carefully scrutinised. It should
be rejected on the papers only if it
is far-fetched or clearly untenable.
[16]
[49]
In light of the explanation proffered by the MEC, her decisions to
second Selepe as acting municipal manager, convene
the council
meeting of 6 November 2014 and her role in reporting the matter to
the police, cannot be construed as a deliberate
and intentional
desire to show disrespect to the court by not complying with its
order. It thus cannot be said that her non-compliance
with the order
was wilful and mala fide. The contempt order against her ought not to
have been granted as all the requirements
for the grant of this
relief had not been met.
Was
the court a quo justified in directing that the appellants pay the
costs reserved at the hearing of 23 December 2014?
[50]
At the hearing of the urgent application on 23 December 2014, the
court dismissed certain prayers contained in
Part A of the notice of
motion and adjourned part of the application sine die. In addition,
it refused to grant interim relief
and struck the matter from the
roll due to lack of urgency. It reserved the question of costs for
later determination.
[51]
The court a quo ordered that the appellants were to be responsible
for the costs reserved on 23 December 2014.
It gave no reasons for
this order.
[52]
In awarding costs the court exercises a judicial discretion with
which a court of appeal will not readily or lightly
interfere. The
power of interference is limited to instances of vitiation by
misdirection or irregularity, or the absence of grounds
on which a
court, acting reasonably, could have made the order under
scrutiny.
[17]
The
latter applies in this matter.
[53]
Kekana was not successful in obtaining relief from the court on 23
December 2014. He had approached the court,
seeking urgent relief.
The matter was struck off the roll and prosecuted in the normal
course. In addition to that, certain relief
that he had sought, was
dismissed. There was no reasonable basis for the court a quo to grant
an order directing that the appellants
pay the costs reserved on 23
December 2014.
[54]
For these reasons, the following order is granted:
1
The appeal is upheld with costs including the costs of two counsel.
2
The order of the court a quo is set aside and substituted with the
following:
‘
(a)
The application is dismissed.
(b)
The second applicant is directed to pay the costs of the application
including the costs of two counsel.
(c)
The second applicant is directed to pay the costs reserved on 23
December 2014.’
________________
LV
Theron
Judge
of Appeal
APPEARANCES:
For
the Third Respondent:
WR Mokhari SC
(with KT Mokhatla)
in
Case No 523/2016 and
the
First Appellant in Case
No
548/2016:
Instructed
by:
Hogan Lovells (SA) Inc, Pretoria
Symington
& De Kok Attorneys,
Bloemfontein
For
the 1st to 37
th
Appellants:
TK Tsatsawane (with C Lithole)
in
Case No 523/2016 and the
2
nd
to 38
th
Respondents in Case
No
548/2016
Instructed
by:
The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
the Respondents in
JH Dreyer SC (with JAL Pretorius)
Case
No 523/2016 and the
Second
Appellant and First
Respondent
in Case No
548/2016:
Instructed
by:
Mohale Inc., Pretoria
Honey
& Partners, Bloemfontein
[1]
There were
two cases on appeal before us. In case number 523/2016 the
appellants are the 37 former council members of the municipality,
the municipality is the first respondent, Kekana the second
respondent and the MEC the third respondent. In case number 548/2016
the MEC is the first appellant, the municipality the second
appellant and Kekana a respondent together with the 37 former
council
members. Both cases are appeals against the judgment and
order of Hiemstra AJ. They were argued as one composite matter and
that
is how it will be dealt with in this judgment.
[2]
See generally
Molaudzi
v
S
(2015) ZACC 20
;
2015 (8) BCLR 904
(CC);
2015 (2) SACR 341
(CC) para
11.
Royal
Sechaba Holdings (Pty) Ltd
v
Coote
and another
[2014] ZASCA 85; (2014) 3 All SA 431 (SCA); 2014 (5) SA 562 (SCA).
[3]
Molaudz
i
para 16.
[4]
Royal
Sechaba
para 21.
[5]
1929 TPD 119.
[6]
Golden
Dividend 339 (Pty) Ltd & another v Absa Bank Limited
(569/2015)
[2016] ZASCA 78
(30 May 2016) para 10.
[7]
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) see fn 18 therein.
[8]
Minister
of Justice and Correctional Services and Others v Estate Late James
Stransham-Ford & others
(531/2015)
[2016] ZASCA 197
;
[2017] 1 All SA 354
(SCA) para 22.
[9]
Pheko &
others v Ekurhuleni City
[2015]
ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) para 33.
[10]
Ibid
,
para 32.
[11]
Pheko
,
para 47.
[12]
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 30;
Compensation
Solutions (Pty) Ltd v Compensation Commissioner
(072/2015)
[2016] ZASCA 59
; (2016) 37 ILJ 1625 (SCA) para 15.
[13]
Fakie
para 9;
Jayiya
v Member of the Executivee Council for Welfare, Eastern Cape &
another
2004 (2) SA 611
(SCA ) paras 18 and 19.
[14]
Fakie
para 42.
[15]
Ibid, paras 9
and 10.
[16]
Plascon-Evans
Paints Ltd
v
Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 653 C-D;
Els
v Weideman
2011 (2) SA 125
(SCA) paras 52-54.
[17]
Attorney
General, Eastern Cape v Blom & others
1988 (4) SA 645
(A) 670D-E;
Haupt
t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd &
others
[2006] ZASCA 40
;
2006 (4) SA 458
(SCA) para 50.