About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2019
>>
[2019] ZAECMHC 28
|
|
Ndabeni v Municipal Manager and Another (344/2019) [2019] ZAECMHC 28 (6 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION : MTHATHA
CASE NO. 344/2019
REPORTABLE
In
the matter between:
NOSIPHO
PORTIA NDABENI
Applicant
and
THE
MUNICIPAL MANAGER
1
st
Respondent
(OWENI
NGUBENDE HLAZO)
OR
TAMBO DISTRICT MUNICIPALITY 2
nd
Respondent
JUDGMENT
GRIFFITHS
J:
[1]
The central issue in this opposed application is as to whether or not
the first respondent
may avoid being found in contempt of court for
his failure to comply with a court order. Conceding the existence of
the court order
and his failure to comply therewith, the respondents
maintain that the terms of the relevant court order do not lend
themselves
to lawful compliance and, on this basis, that the first
respondent’s failure to comply therewith is not unlawful and/or
mala fide
.
[2]
On 13 December 2016 the applicant came before Mjali J by way of
application seeking
an order, in essence, that she be declared a
permanent employee of the second respondent. The respondents were
represented at that
hearing by their attorney who made an oral
application from the bar for a postponement of the matter in order to
file an answering
affidavit. Although this was apparently the first
time that the matter had been set down for a hearing on the merits,
Mjali J was
not prepared to accede to such application largely
because it had not been formally made
[1]
.
I was informed from the bar that the respondent’s attorney (who
had only been instructed to apply for the postponement)
was forced
thereafter to withdraw and the matter proceeded, in effect, by
default thus the court was not given the benefit of an
answering
affidavit from the respondents setting out their contentions, and in
particular their contention that she was not empowered
by statute to
grant such an order. Accordingly, Mjali J issued the following order:
“
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 Manager Section –
ATICC
by virtue of
Resolution No. 10/11
of
30
th
January 2011
and any contrary conduct or action taken by the
respondents is hereby declared a
nullity
;
2.
The post referred to it as (sic)
AIDS Training Information and
Counseling Centre Manager (ATICC)
previously occupied by the
applicant is hereby declared a permanent post in line with
Resolution
No. 10/11
of
30
th
January 2011
;
3.
The respondents are directed to pay costs of this application
jointly
and
severally
one paying the other to be absolved from
liability on
attorney and own client scale
.
4.
The first respondent be ordered to pay the applicant’s
salary
and other benefits, retrospectively from the date upon which such
payments ceased;
5.
An order compelling the
Municipality
to pay the
applicant’s
salary
and other benefits, in future, in accordance with benefits
and service conditions applicable to an employee of her status.”
[3]
Dissatisfied with this result, the respondents duly applied for leave
to appeal based
largely on the contention that the order of 13
December 2016 was incapable of being carried into effect as payment
of salary benefits
in an unspecified amount, on an unknown salary
scale, from an indefinite date and for an indefinite period relating
to a post not
provided for, could not meet the requirements of
certainty in order to found an application for contempt of court.
Mjali J, having
heard full argument in this regard from all parties,
dismissed the application for leave to appeal in a full judgment
delivered
on 22 March 2018. In dealing with the aforementioned ground
she stated:
“
There
is no uncertainty in the order as the applicant had advertised in
Annexure “ND 1” that post as stipulated in the
amended
notice of motion and the Court order. Further that in response to the
aforesaid advertisement the respondent applied and
was the incumbent
of that post for a considerable period of time. The applicant has a
record of such a period and also the record
of salaries and benefits
pertaining to that post. The mere fact that the designation changed
to Senior Coordinator Manager in the
approved organogram does not
render the order granted incapable of being put into effect as on the
papers the respondent makes
it clear which position she sought to be
absorbed in. The Council took a resolution to convert contract post
to permanent employees.
That resolution of the municipal council was
communicated to the respondent in a letter addressed to her and other
employees whose
positions were subsequently converted but for the
respondent. Once the resolution is adopted, its officials are bound
to execute
it, whatever view they might have on the merits of the
resolution, in law or otherwise, until such time as it is either
rescinded
or set aside on review.”
[4]
Once again, unhappy with this result the respondents duly petitioned
the Supreme Court
of Appeal for leave to appeal the order of 13
December 2016. This petition was dismissed which decision was
communicated by that
court in a letter dated 30 July 2018 to which
the relevant SCA order was attached.
[5]
Although there is some dispute as to the precise date or time when
this was communicated
to the respondents, it is clear that they, as
the applicants in the petition, ought to have been apprised of the
result within
days of 30 July 2018. However, notwithstanding this the
applicant’s attorneys took the precautionary measure of having
the
SCA order served by the deputy sheriff on the second respondent
on 13 September 2018 and on the first respondent, on 11 October
2018.
It was also emailed to the respondents’ attorneys. Despite
protestations from the respondents in this regard, there
can be
little doubt but that they received timeous notice of the outcome of
their own petition to the SCA.
[6]
The next relevant step in this saga was the communication by way of a
letter dated
22 November 2018 from the respondent’s attorneys
of their intention, albeit out of time, to lodge an appeal against
the SCA
order with the Constitutional Court. The respondents have
however not done so. They have given as their reason the fact that
their
original counsel were not available, that they instructed new
counsel, that such new counsel delayed unduly over the Christmas
period and that all these delays, cumulatively, resulted in their
being unable to pursue the matter due to the extensive delay.
This
delay, and non-compliance with the order, resulted in the launch of
the present application.
[7]
In their answering affidavit the respondents, as I have indicated,
accept the existence
of the court order and accept that they have
failed to comply therewith. Their resistance to the relief sought is
based on two
legs: firstly, they maintain that the municipal manager,
as first respondent herein, has been cited in his official capacity
and
that, in order for contempt proceedings to ensue against him, he
ought to have been joined in his personal capacity. Secondly, they
maintain that compliance with the court order would be unlawful owing
to the fact that section 66 of the Municipal Systems Act
[2]
(“MSA”) effectively prohibits employment in such a
municipality “
unless
the post to which he or she is appointed, is provided for in the
staff establishment of that municipality
.”
[3]
It is their contention that no such post indeed exists within the
second respondent municipality and that, accordingly, it is
prohibited from employing the applicant.
[8]
Pursuant to the foregoing and on 19 February 2019 this court granted
a Rule Nisi in
the following terms:
“
3. The first
respondent is called upon to show cause, if any, on 5 March 2019 at
09H30 or so soon thereafter why his conduct in
failing to comply with
the order issued by this court on 13 December 2018 by Mjali J under
case number 1429/2015 should not be
declared unlawful and in contempt
of the following paragraphs of the order:
3.1 The applicant is
hereby declared a permanent employee of the respondent in her
capacity as the Manager at AIDS Training Information
and Counselling
Centre Manager Section – ATICC by virtue of Resolution No.
10/11 of 30 January 2011 and any contrary conduct
or action taken by
the respondents is hereby declared a nullity.
3.2 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 10/11 of 30 January 2011.
3.3 The respondents are
directed to pay costs of this application, jointly and severally, the
one paying the other to be absolved
from liability, on an attorney
and client scale.
3.4 The respondents are
ordered to pay the applicant’s salary and other benefits,
retrospectively from the date upon which
such payments ceased.
3.5 An order compelling
the municipality to pay the applicant’s salary and other
benefits in accordance with benefits and
service conditions
applicable to an employee of her status.
4. The respondents are
called upon to show cause, if any, why they should not be directed to
purge the contempt set out in paragraphs
3 and 3.1 to 3.5 within ten
(10) days from date of granting this order.
5…..
6. The first respondent
is called upon to show cause, if any, (why) he should not be directed
to pay the costs of this application
on an attorney and own client
scale.”
[9]
The first contention was laid to rest by Mr Kunju (who appeared on
behalf of the applicant)
in his opening address when he indicated
that the applicant would not proceed with any form of criminal
sanction against the first
respondent and would only seek
confirmation of paragraphs 3, 4 and 6 of the above-quoted order.
Accordingly, and as accepted by
Mr Dodson (who appeared in behalf of
the respondents), it was unnecessary to join the municipal manager in
his personal capacity.
[10]
The second leg of the defence is dependent entirely on the legality
of such reinstatement and
the payment of emoluments related thereto,
the contention being that as there is no such position provided for
in the second respondent’s
staff establishment (section 66 of
the MSA prohibiting such employment) the order was not lawfully
granted. It was accordingly
submitted by the respondents that, whilst
it exists, Mjali J’s order is a nullity in law. The applicant’s
response
to this contention is twofold. Firstly, the applicant
contends that paragraphs 33 to 35 of the answering affidavit, which
succinctly
raise the question of the lawfulness of the order, fall to
be struck out as
res judicata
because they were dealt with by
Mjali J in her judgment on the application for leave to appeal and by
the SCA in refusing the petition.
Secondly, she denies that the order
is a nullity.
[11]
The requirements for contempt of court in the circumstances are
clear. They have been succinctly
set out in the case of
Fakie
NO v CCII Systems (PTY) LTD
[4]
as follows:
“
To
sum up:
(a)
The civil contempt procedure is a valuable and important
mechanism for securing compliance with court orders, and survives
constitutional
scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an 'accused person',
but is entitled to analogous protections as are appropriate to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of
contempt (the order; service or notice; non-compliance; and
wilfulness
and
mala fides
) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice,
and non-compliance, the respondent bears an evidential burden in
relation to wilfulness and
mala fides
: Should the respondent
fail to advance evidence that establishes a reasonable doubt as
to whether non-compliance was wilful
and
mala
fide
,
contempt will have been established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain
available to a civil applicant on proof on a balance of
probabilities.”
[12]
It is common cause between the parties that, in order to succeed, the
applicant must establish
on a balance of probabilities:
1. The
existence of the order;
2. The
service or notice of the order on the part of the person sought to be
held in contempt;
3.
Non-compliance with the order;
4.
Mala
fides
and wilfulness.
[13]
The first three requirements, namely the order, service or notice and
non-compliance are all
common cause, save that, as I have already
said, the respondents go further and submit that the order is a
nullity. Because of
this, the respondents submit that such
noncompliance cannot be either
mala fide
or wilful as the
order is incapable of compliance. Alternatively, they have submitted
that because the first respondent believed
on reasonable legal
grounds that the order was indeed a nullity, his actions in refusing
to comply with the order were not
mala fide
.
The
strikeout application
[14]
As dealt with above, it is the applicant’s contention that
paragraphs 33 to 35 of the answering
affidavit raising, as they do,
the question as to whether the order was a nullity, should be struck
out as being
res judicata
. For the sake of completeness, I set
out hereunder the content of these paragraphs:
“
33. The second
respondent is, in law, forbidden from employing a person unless the
position in which the person is being employed
and/or appointed, is
provided for in the second respondent’s staff establishment. In
consequence, compliance with the order
would have meant that the
second respondent had to:
33.1 Accept the applicant
as it (sic) permanent employee in her capacity as Manager at AIDS
Training Information and Counselling
Centre Manager Section –
ATICC;
33.2 Pay the applicant’s
salary and other benefits in view of her being the second
respondent’s permanent employee in
her capacity as Manager at
AIDS Training Information and Counselling Centre – ATICC; and
33.3 Extend to the
applicant, in future, a salary with benefits and the service
conditions applicable to an employee of her status.
34. At the same time the
second respondent would have had to conclude a contract of employment
with the applicant, stating the details
of her basic conditions of
employment and benefits. Such a contract of employment would have had
to be concluded in circumstances
where it is known to me and the
second respondent that same is null and void and cannot be given
effect to, absent provision of
the applicant’s position to the
second respondent’s staff establishment, even if concluded.
35. My and the second
respondent’s compliance with the order in circumstances such as
narrated above and our knowledge of
the legality of the applicant’s
employment to the position would have opened up myself to be held
personally liable for the
irregular or fruitless and wasteful
expenditure that the second respondent would have incurred paying
applicant’s salaries
and benefits in view of her objectionable
employment with the second respondent. Needless to state that I do
not know what benefits
and salaries the applicant would have been
entitled to because only in the event the position in issue was
catered for in the second
respondent’s staff establishment
would it be known (i) what her job description is, (ii) what her
remuneration is, (iii)
what the conditions of service are.”
[15]
The requirements for a finding of
res
judicata
were
succinctly set out by Friedman JP in the matter of
Bafokeng
Tribe v Impala Platinum Ltd and Others
[5]
as
follows:
“
From the
aforegoing analysis I find that the essentials of the
exceptio res
judicata
are threefold, namely that the previous judgment was
given in an action or application by a competent court (1) between
the same
parties, (2) based on the same cause of action (
ex eadem
petendi causa
), (3) with respect to the same subject matter or
thing (
de eadem res
).”
[16]
The requirements set forth in (2) and (3) of the
Bafokeng
matter are clearly lacking in the present matter. Firstly, the cause
of action which served before Mjali J is different to that
with which
I am seized. In that matter, there was an application for substantive
relief which was granted by way of the order dated
13 December 2016.
In the present matter, the cause of action is contempt of court based
on the various requirements which need
to be established in this
regard, as listed above. Secondly, Mjali J did not give a full
judgment at the time of making the order,
she simply granted it. The
matters raised in paragraphs 33 to 35 of the answering affidavit were
not matters that served before
her when she made the order. Thus she
clearly did not consider them, and the evidential component (the
organogram and other evidence
which was in the supporting affidavit
in the application to the SCA) was not placed in evidence before
her.
[6]
She apparently only
“dealt” with the question of the legality of the order in
dealing with the application for leave
to appeal, as she had
disallowed the respondents time to file an answering affidavit in
which they would surely have raised this
point. It is only in the
application for leave to appeal that, for the first time, these
points were raised before her. An application
for leave to appeal can
never be decisive of such factual and legal matters. Her decision at
that stage was simply based on a consideration
as to whether or not
another court would come to a different conclusion to that which she
came. Accordingly, whatever she may have
said during the course of
that judgment was not dispositive of this issue.
[17]
Similar considerations apply to the application to the SCA for leave
to appeal. The evidential
component as referred to above could only
have properly served before the SCA had a successful application been
made to that court
for the leading of further evidence at the hearing
of the appeal. Furthermore, the matter was not argued before the SCA
and it
is more probable than not that the reason as to why the SCA
dismissed the application for leave to appeal was precisely because
there was no indication therein that an application to adduce such
evidence on appeal would be made, and the court was accordingly
entitled to disregard it. In any event, the appeal court provided no
reasons for its refusal.
[18]
Finally in this regard, it seems fairly clear that the two
applications do not relate to the
same subject matter. The order of
Mjali J given on 13 December 2016 related to the time period
preceding the granting of that order
and was based on facts which
arose during that period. The current proceedings relate to conduct
subsequent to the granting of
that order. In all the circumstances,
the application for striking out falls to be refused.
Is
the order of 13 December 2016 a nullity?
[19]
The respondents contend that the order is a nullity by virtue of the
prohibition contained in
subsections (3) and (4) of section 66 of the
MSA. The applicant’s riposte to this is that the respondents
have not established
that such a post does not exist, and that the
order of Mjali J fell to be complied with until such time as it is
set aside together
with the resolution of the second respondent which
preceded it to the effect that contract employees were to have their
contracts
converted to permanent posts.
[20]
There is considerable authority in support of the proposition that it
is important, from a rule
of law perspective, that the order upon
which a finding of contempt of court is sought, is valid in law. In
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO and Others
[7]
the court dealt with the question of contempt of court based on an
order (granted on an unopposed basis on 5 August 2010 by Kruger
AJ)
which placed a company under provisional judicial management and
appointed two named persons, Mr Van Vuuren and Mr. Mhlongo,
as joint
judicial managers. Subsequently, and on 19 August 2010, the Master
appointed two separate people, a certain Mr Motala
and a Ms Yuen,
together with Mr Mhlongo as provisional judicial managers. On 20
August 2010 a further order was granted by Mavundla
J upon an
application brought by Mr Van Vuuren and others in terms of which a
rule
nisi
was issued returnable on 26 October 2010 interdicting the Master from
appointing any judicial manager other than those identified
in the
earlier order of Kruger AJ. A subsequent interdict was granted by
Raulinga J restraining Van Vuuren from carrying out the
functions of
provisional judicial manager.
[21]
As a consequence of all this, Van Vuuren thereafter applied for a
discharge of the interdict
granted by Raulinga J. This application
served before Legodi J on 13 September 2010. Legodi J, apparently
mero motu
, directed the Master to file an affidavit by not
later than 15 September 2010 in which he was to explain why he should
not be found
in contempt of the court order dated 5 August 2010 for
his refusal to issue Mr Van Vuuren with letters of appointment as
judicial
manager. The Master duly complied and filed an affidavit in
which he sought to explain his actions.
[22]
The gravamen of his explanation was an assertion that in terms of
section 429 of the Companies
Act
[8]
the courts only had the power and function to place a company under
provisional judicial management and did not have the statutory
power
to appoint a judicial manager, which function is reserved exclusively
for the Master. He also pointed out that he had made
the appointment
of Mr Motala and others before he received notice of the original
application for provisional judicial management.
[23]
Legodi J was however not satisfied with these explanations and found
the Master and her deputy
to be in contempt of the order given on 5
August 2010. The Master appealed this finding to the SCA which
considered the provisions
of section 429 of the Companies Act and
concluded that indeed the Master was correct in his submission that a
court had no power
to appoint a provisional judicial manager, holding
that it was “
plainly
impermissible for Kruger AJ to appoint the provisional judicial
managers
….”
[9]
[24]
Ponnan JA went on to say:
“
Like Kruger AJ
before him, Mavundla J, also misconceived the legal position.
Mavundla J went further than Kruger AJ, though, in
purporting to
compel the Master to act in a particular way. That with respect to
the learned judge, he could not do, for as Innes
CJ explained in an
analogous context in
Hoisain v Town Clerk
,
Wynberg
1916
AD 236
at 240:
‘
It is sought to
compel the Town Clerk to place the applicant’s name upon the
statutory list; he can only do that upon the
grant of a certificate
by the Council, which that body has definitely refused to give. Such
a certificate is not in truth in existence.
So that the Court is
asked to compel the Town Clerk to do something which this statute
does not allow him to do; in other words
we are asked to force him to
commit an illegality.’”
[10]
[25]
After indicating that in any event Mr. Van Vuuren did not qualify as
a person who could be appointed
as a provisional judicial manager,
the court went on to say:
“
[11] What appeared
to weigh with Legodi J was the following general proposition: all
orders of court, whether correctly or incorrectly
granted, have to be
obeyed until they are properly set aside… No doubt there are
important policy considerations why that
must be so. But, that raises
a logically anterior question, which Legodi J described as ‘the
most vexing aspect of this judgment’–
namely the status
of the order of Kruger AJ. The Master contended that it was a nullity
and could, without more, be disregarded.
Legodi J took a contrary
view.”
[26]
The SCA thereafter conducted an analysis of a number of judgments
which dealt with the question
as to whether or not an order which is
a nullity can, without more, be disregarded
[11]
and concluded as follows:
“
[14] In my view,
as I have demonstrated, Kruger AJ was not empowered to issue, and
therefore it was incompetent for him to have
issued, the order that
he did. The learned judge had usurped for himself a power that he did
not have. That power had been expressly
left to the Master by the
Act. His order was therefore a nullity. In acting as he did, Kruger
AJ served to defeat the provisions
of a statutory enactment. It is
after all a fundamental principle of our law that a thing done
contrary to a direct prohibition
of the law is void and of no force
and effect (
Schierhout v Minister of Justice
1926 AD 99
at
109). Being a nullity a pronouncement to that effect was unnecessary.
Nor did it first have to be set aside by a court of equal
standing.
For as Coetzee J observed in
Trade Fairs and Promotions (Pty) Ltd.
v Thomson and Another
1984 (4) SA 177
(W) at 183E:
‘
It would be
incongruous if parties were to be bound by a decision which is a
nullity until a Court of an equal number of Judges
has to be
constituted specially to hear this point and to make such a
declaration.’”
[12]
[27]
The court accordingly found that the conclusion of the court
a
quo
that the Master had acted in contempt of the order of Kruger AJ could
not be supported and the appeal succeeded.
[13]
[28]
Motala
has been referred to in subsequent judgments of the Constitutional
Court with both approbation
[14]
and some reprobation. However, the reprobation appears to have been
obiter
,
as indeed confirmed by the Constitutional Court itself. In the matter
of the
Department
of Transport and Others v Tasima (Pty) Ltd
[15]
Jafta J, in a minority judgment (concurred in by Mogoeng CJ, Bosielo
J and Zondo J) applied
Motala
pointing out that “
[i]n
law conduct or a decision taken in contravention of a statutory
provision is invalid
.”
[16]
[29]
However, in the majority judgment the court criticized the judgment
of the SCA in
Motala
primarily on the basis that, in light of section 165 (5) of the
Constitution “
judicial
orders wrongly issued are not nullities. They exist in fact and may
have legal consequences
.”
[17]
After having made this observation, the court thereafter questioned
whether or not the authorities which had been relied upon in
Motala
regarding the nullity of court orders provided the necessary support
for its proposition.
[18]
[30]
Despite this, it does appear that the criticism levelled by the
Constitutional Court against
the decision in
Motala
was indeed
obiter. In paragraph 197 of the majority judgment in
Tasima
it
seems that the Constitutional Court, rather than overturning the
principle in
Motala
, confirmed it as follows:
“
In any event
Motala
dealt with a different issue. There, Kruger AJ, sitting
in the High Court, was found to have lacked jurisdiction to appoint
judicial
managers. The order was treated as a nullity because it
purported to exercise power that was specifically assigned to the
Master
by legislation. In the present matter, Mabuse J clearly had
jurisdiction to hear the case. As explained in
Tsoga
,
Motala
is only authority for the proposition that if a court is able to
conclude that what the court [that made the original decision]
has
ordered cannot be done under the enabling legislation, the order is a
nullity and can be disregarded. This is 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.”
[31]
The fact that the principal enumerated in
Motala
has, in effect, received Constitutional Court approval is confirmed
by the fact that
Motala
has recently been applied by the SCA in
Minister
of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and
Others, and Another Appeal
[19]
as follows:
“
Rule 64 (1) did
not empower Sardiwalla AJ to make the alterations in question.
Because he was
functus officio
, he lacked jurisdiction. The
amended order of 2 April 2014, insofar as it changed the wording of
para 4, was thus a nullity. It
thus fell within that relatively
narrow class of cases where a purported order can be disregarded
without taking steps to have
it formally set aside. It would have
been preferable for
Normandien
to have this clarified by way
of a timeous application, as was indeed contemplated at one stage
during the pre-trial conferences,
but this cannot affect the legal
conclusion that the amended order was a nullity.”
[32]
Section 66 of the MSA insofar as it is relevant provides as follows:
“
66 Staff
establishments
(1) A municipal manager,
within a policy framework determined by the municipal council and
subject to any applicable legislation,
must-
(a)
develop
a staff establishment for the municipality, and submit the staff
establishment to the municipal council
for approval;
(b)
provide
a job description for each post on the staff establishment;
(c)
attach
to those posts the remuneration and other conditions of service as
may be determined in accordance with
any applicable labour
legislation; and
(d)
establish
a process or mechanism to regularly evaluate the staff establishment
and, if necessary, review the staff
establishment and the
remuneration and conditions of service.
(2) ….
(3) No 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.
(4) A decision to employ
a person in a municipality, and any contract concluded between the
municipality and that person in consequence
of the decision, is null
and void if the appointment was made in contravention of subsection
(3).
(5) Any person who takes
a decision contemplated in subsection (4), knowing that the decision
is in contravention of subsection
(3), may be held personally liable
for any irregular or fruitless and wasteful expenditure that the
municipality may incur as a
result of the invalid decision.”
[33]
It appears from this that the determination of the staff
establishment of a municipality is the
preserve of the municipal
manager, subject to the approval of the Council, as are the job
descriptions, remuneration and other
conditions of employment. Once
such staff establishment has been so developed, subsection (3)
appears to be cast in imperative
terms in forbidding the employment
of any person unless the post to which he or she is appointed is
indeed provided for in the
staff establishment so developed. Indeed,
subsection (4) declares that any contract concluded in the
circumstances “
is null and void if the appointment was made
in contravention of subsection (3)
”. The imperative nature
of the prohibition in subsection (3) is reinforced by subsection (5).
As may be seen, this subsection
creates a personal liability in the
part of any person who takes a decision as contemplated in subsection
(4) for fruitless and
wasteful expenditure.
[34]
In my view, the situation here is directly analogous to that which
pertained in the
Motala
matter. Having found that paragraphs
33 – 35 of the answering affidavit (which deal with the factual
basis for the contention
that no such post as referred to in Mjali
J’s order exists in the staff establishment) do not fall to be
struck out, and
thus remain unchallenged by the applicant, the
prohibition in subsection (3) is squarely applicable. Accordingly,
the only conclusion
that I can reach is that Mjali J was not
empowered to grant the order which she did and that it is, in the
circumstances, a nullity.
[35]
Even if I am wrong in this conclusion, it is clear from all the facts
in this matter that the
first respondent has sincerely believed
throughout that these contentions are correct. Indeed, his own legal
team (as led by an
eminent senior counsel) have clearly held that
view which was advanced before me. Furthermore, as mentioned earlier
in this judgment,
this question has exercised the minds of some of
the top judges in this country and one can hardly expect a municipal
manager (who
may well be facing personal liability pursuant to
subsection (4)) to believe otherwise. In the circumstances, it can
hardly be
said that he acted
mala fide
in not carrying out the
order of Mjali J.
[36]
One further observation needs to be made. It is by no means the
situation that court orders may
be disregarded with impunity in the
possible belief that they might amount to a nullity. As stressed in
the
Normandien
Farms
matter such orders fall “…
within
that relatively narrow class of cases where a purported order can be
disregarded…”
Where
it has been found that orders are a nullity, such orders have
generally been taken by default or at least in circumstances
where
countervailing evidence or submissions have not been placed before
the court.
[20]
Although the
impugned order in this matter did not result from a default judgment
simpliciter
,
it fell within the class of matters referred to in this jurisdiction
as “
Uncontested
opposed matters
”.
Because Mjali J refused to allow the respondents time for the filing
of an answering affidavit, and because the attorney
who appeared
before her had only been instructed with regard to the adjournment he
sought, she had neither the benefit of the factual
component which I
have before me nor the legal argument that goes therewith to assist
her in coming to a conclusion. It behoves
me to mention, once again,
that legal practitioners appearing in unopposed applications are
obliged to place before the court all
relevant matter including any
facts or law which might be seen to preclude the court from granting
the order or orders sought.
Over the years I have, unfortunately,
noticed a progressive failing in this regard.
[37]
As regards the question of costs, the respondents have, properly in
my view, conceded that this
is a matter where they will not be
seeking an order of costs against the applicant.
In
all the circumstances, the Rule Nisi granted on 19 February 2019 is
discharged.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
: Mr Kunju
INSTRUCTED
BY
: Keightley
Sigadla Inc.
COUNSEL
FOR RESPONDENT
: Mr
Dodson SC
INSTRUCTED
BY
: Sakhela Inc.
HEARD
ON
: 18
APRIL 2019
DELIVERED
ON : 06
JUNE 2019
[1]
A transcript of the proceedings on 13 December 2016 were placed
before me. However the transcript ends after argument and at
a stage
when the matter was stood down. What subsequently happened was not
transcribed but it was common cause between the parties
that the
oral application for a postponement was refused and that the order,
as prayed, was granted. This is furthermore confirmed
in the reasons
for judgment subsequently delivered by Mjali J.
[2]
No. 32 of 2000
[3]
Section 66(3)
[4]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at paragraph 42
[5]
1999 (3) SA 517
(B) at p 566 B - C
[6]
This is confirmed in her undated reasons for the order given
sometime subsequent to 13 December 2016 and in which she made it
clear that the only version which she considered was that which was
placed before her in the founding affidavit by the applicant,
which
made no mention of the prohibition in section 66 of the MSA. These
reasons were not placed before me in the contempt application
itself, but were contained in the respondents’ bundle headed
"Index to case law".
[7]
2012 (3) SA 325 (SCA)
[8]
No 61 of 1973
[9]
Motala
(note 7 above) at paragraph 8.
[10]
Ibid at paragraph 11.
[11]
Ibid at paragraph 11.
[12]
Ibid at paragraph 14.
[13]
Ibid at paragraph 15.
[14]
Provincial
Government; North West Province and Another v Tsoga Developers CC
and Others
2016 (5) BCLR 687
(CC) at paragraph 50;
Nkata
v First Rand Bank Ltd
2016 (4) SA 257
(CC) at paragraphs 161, 166 and 181.
[15]
2017 (2) SA 622 (CC)
[16]
Ibid at paragraph 98.
[17]
Ibid at paragraph 182.
[18]
Ibid at paragraphs 188 – 196.
[19]
2019 (1) SA 154
(SCA) at paragraph 53.
[20]
See for example
Motala
(note 7 above) especially at paragraph 7