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[2015] ZACC 10
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Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) (CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 19/11
In the matter between:
NTHABISENG
PHEKO
First Applicant
OCCUPIERS OF BAPSFONTEIN
INFORMAL
SETTLEMENT
776 Further Applicants
and
EKURHULENI METROPOLITAN
MUNICIPALITY
Respondent
and
SOCIO-ECONOMIC RIGHTS INSTITUTE
OF SOUTH
AFRICA
Amicus Curiae
Neutral
citation:
Pheko and Others v
Ekurhuleni Metropolitan Municipality (No 2)
[2015] ZACC 10
Coram:
Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ,
Madlanga J, Nkabinde J, Van der Westhuizen J and Zondo J.
Judgments:
Nkabinde J (unanimous)
Heard
on:
12 August 2014
Decided
on:
7 May 2015
Summary:
contempt of court — requisites for contempt —
judicial authority — court initiating proceedings
mero motu
— state’s duty to comply with court orders —
joinder — costs
de bonis propriis
— right to have
access to adequate housing — service requisite not met —
respondent not in contempt of court
ORDER
1. The Ekurhuleni
Metropolitan Municipality (Municipality) and Mr Bongani Khoza,
the Municipality’s attorney, are not held in contempt of this
Court’s orders of 6 December 2011 and 12 March 2014.
2. The rule
nisi
issued on 28 August 2014, in respect of the Executive Mayor and the
Municipal Manager, is discharged.
3. The Executive
Mayor and the Municipal Manager are joined as parties to the
proceedings
in relation to
Pheko and Others v Ekurhuleni
Metropolitan Municipality
[2011] ZACC 34
;
2012 (2) SA 598
(CC);
2012 (4) BCLR 388
(CC) (
Pheko I
) for the purpose of
implementing the supervisory order.
4. The Member of
the Executive Council for Human Settlements, Gauteng is joined as
a
party to the proceedings in
Pheko I
for the purpose of
implementing the supervisory order referred to in paragraph 3 above.
5. Mr Devraj
Chainee, the Head of Department for Human Settlements for the
Municipality,
is joined in his official capacity as a party to the
proceedings in
Pheko I
for the purpose of implementing the
supervisory order referred to in paragraph 3 above.
6. Mr Khoza and
the Municipality are each ordered to pay 50% of the applicants’
costs in the contempt proceedings. Mr Khoza is ordered to pay
costs
de bonis propriis
.
JUDGMENT
NKABINDE J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Leeuw AJ, Madlanga J, Van der Westhuizen J and Zondo J
concurring):
Introduction
[1]
The rule of law, a foundational value of the Constitution,
requires
that the dignity and authority of the courts be upheld. This is
crucial, as the capacity of the courts to carry
out their functions
depends upon it. As the Constitution commands, orders and
decisions issued by a court bind all persons
to whom and organs of
state to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning
of the courts.
It follows from this that disobedience towards court orders or
decisions risks rendering our courts impotent
and judicial authority
a mere mockery. The effectiveness of court orders or decisions
is substantially determined by the
assurance that they will be
enforced.
[2]
Courts have the power to ensure that their decisions
or orders are
complied with by all and sundry, including organs of state. In
doing so, courts are not only giving effect
to the rights of the
successful litigant but also and more importantly, by acting as
guardians of the Constitution, asserting their
authority in the
public interest. It is thus unsurprising that courts may, as is
the position in this case, raise the issue
of civil contempt of their
own accord.
[3]
These contempt proceedings are a sequel to the
supervisory relief
granted by this Court on 6 December 2011.
[1]
The Court decided that: (1) the respondent violated the applicants’
rights under section 26 of the Constitution; (2)
the respondent had a
duty to provide the applicants with suitable temporary accommodation;
(3) the respondent must meaningfully
engage with the applicants in
identifying alternative land in the immediate vicinity of
Bapsfontein, from which area the applicants
had been unlawfully
removed; and (4) this Court should exercise its supervisory
jurisdiction to enable the respondent to report
to the Court about
“whether land has been identified and designated to develop
housing for the applicants”.
[2]
[4]
The principal issue is whether the respondent,
its attorneys and
certain functionaries performing public functions or exercising
public power in terms of the Constitution or
any legislation have
shown good cause why they should not be held in contempt of court for
not complying with this Court’s
orders.
Parties
[5]
The parties in these contempt proceedings are as
cited in
Pheko
I
.
[3]
For completeness and ease of reference, they are briefly described
here. The applicants are the former residents of
Bapsfontein
Informal Settlement (Bapsfontein Settlement) who, having been
unlawfully removed from their demolished homes, remain
with no secure
tenure but only with temporary housing. The respondent is the
Ekurhuleni Metropolitan Municipality (Municipality),
in whose area
Bapsfontein Settlement is situated. The Municipality authorised
the relocation of the residents and the demolition
of the applicants’
homes. The Socio-Economic Rights Institute of South Africa
(SERI) was admitted in
Pheko I
as
amicus curiae
(friend
of the Court) and continues to be of assistance to this Court.
Background
[6]
Pheko I
concerned the lawfulness of the relocation by the
Municipality of hundreds of families that resided in Bapsfontein
Settlement.
This action was triggered by investigations that
the Municipality had commissioned into the land on which Bapsfontein
Settlement
is situated after complaints were made about the formation
of sinkholes in the area. The investigations concluded that the
land was dolomitic and that the residents of Bapsfontein Settlement
should be relocated to a safer area. Subsequently, Bapsfontein
Settlement was declared a disaster area under the Disaster Management
Act.
[4]
[7]
When the residents resisted relocation, they were
forcibly removed
and their homes were demolished at the instance of the Municipality.
The residents launched urgent interdictory
proceedings in the North
Gauteng High Court, Pretoria (High Court). The High Court
dismissed the application with costs,
stating that the applicants
could not be allowed “to stay in a danger zone” where
they could be “swallowed by
the earth”.
[5]
It further held that the application lacked urgency
[6]
and that PIE
[7]
did not apply in the circumstances.
[8]
The applicants then sought leave to appeal directly to this Court,
where they effectively vindicated their rights under sections
10 and
26 of the Constitution. A crucial element of the relief granted
was to enable the parties to contribute meaningfully
to discussions
aimed at finding an equitable solution. This included the
submission of reports from both sides at varying
stages of the
process.
[8]
Having been ordered to file a report detailing
the steps it had taken
to secure adequate housing for the applicants, the Municipality
consulted with the applicants. The
applicants organised
themselves into two groups: the N12 Community and the Mayfield
Community. The Municipality filed its
report on 30 November
2012. The report indicated that the N12 Community applicants
were willing to relocate to the Daveyton
Farm and parts of Putfontein
and Mayfield Extension, and that adequate provision of basic services
would be made available to them.
This community confirmed that
it was adequately consulted and its members were satisfied to move to
the identified land.
The report further indicated that the
Mayfield Community applicants would only occupy the proposed land on
condition that they
are allocated permanent houses with running water
and sewerage. Provision of these facilities was, at that time,
problematic
for the Municipality as a result of, among other things,
land use planning concerns. The report concluded that “[t]he
Municipality shall await the direction of the [C]ourt prior to
embarking on a process to have the [N12 Community applicants] moved
to the land identified by the Municipality, as per their wishes”.
The report failed to suggest a solution for the Mayfield
Community applicants.
[9]
The Mayfield Community applicants were unhappy
with the conclusions
drawn by the report and the quality of the consultations that
occurred between them and the Municipality.
As a result, in
their 24 December 2012 response to the report, the Mayfield Community
applicants requested to file an expert
report detailing why they were
dissatisfied with the relocation plans of the Municipality.
This Court acceded to their request
and directed that the expert
report be filed by 3 June 2013. The date passed without
any submissions to this Court.
After a successful condonation
application, the expert report was to be filed on
25 October 2013.
[9]
This Court received the expert report only on 7 July 2014. It
was attached to an application to admit a further affidavit.
[10]
On 21 November 2013 this Court directed the Municipality to file a
second report
by 29 November 2013, detailing: (1) the issues
surrounding the relocation of the N12 Community applicants, and (2)
progress on
its obligation to find suitable land for the Mayfield
Community applicants.
[10]
These directions were made on the understanding that, by agreement,
land had already been identified in respect of the N12
Community
applicants to the satisfaction of both the N12 Community applicants
and the Municipality. The Municipality failed
to report back to
this Court.
[11] A later order
of this Court, dated 12 March 2014, yet again required that the
Municipality’s report be filed, on this occasion providing for
a deadline of 14 April 2014. The order reads
as
follows:
“Following the [Municipality]’s
failure to comply with the Court’s directions dated 21 November
2013, the
Court makes the following order:
1.
The [Municipality] is
ordered to file, by no later than Monday, 14
April 2014, a report on the progress made in respect of the [N12
Community applicants]
regarding its undertaking towards the community
set out in the report dated 30 November 2012.
2.
The report must indicate
steps taken to ensure that—
a)
permanent housing will be
provided to the community;
b)
the land utilised is suitable
for occupation;
c)
bulk and link engineering
services will be available with sufficient
capacity for the proposed densities;
d)
all erven have access to
roads; and
e)
all erven are connected
to the internal water and sewer
infrastructure network.
3.
The [Municipality] is
ordered to report also on the progress made in
respect of its obligation to find suitable land for the Mayfield
Community applicants.
The report must address,
inter alia
—
a)
progress regarding the acquisition
of alternative land; and
b)
the processes to be completed
before such land is acquired.”
[12] Once more,
the Municipality tendered no response. Due to the
Municipality’s
non-compliance, this Court issued further
directions on 15 May 2014 setting the matter down for contempt
proceedings on 12 August
2014. The Municipality was directed to
“show cause . . . why it should not be held in contempt of this
Court for failing
to report to it in accordance with the Court’s
order dated 12 March 2014 on the progress made in fulfilling its
undertaking
to the [N12 Community applicants] that is set out in
the report to this Court dated 30 November 2012”.
[13] During the
hearing, the Municipality explained that it was not made aware of
this Court’s directions and orders by its attorneys of record
(Khoza & Associates Inc.). It said that Mr Khoza
(its
attorney) believed that the matter was no longer active and was in
the midst of relocating offices. On 29 August 2014
further
directions were issued calling upon the Municipality’s
attorneys to show cause why they should not: (1) be held in
contempt
of this Court for failing to make the Municipality aware of the
directions and order, and (2) jointly and severally with
the
Municipality, be ordered to pay costs of the applicants and the
Municipality from their own pocket (
de bonis propriis
)
.
[14]
Before the hearing, SERI sought to have the Executive Mayor (Mayor)
and Municipal
Manager joined to these proceedings.
[11]
The joinder was intended to ensure that the relevant responsible
officials of the Municipality comply with the future orders
of this
Court.
[15]
On 28 August 2014 this Court declared the Municipality to be in
breach of its
constitutional obligations by failing to abide by the
orders of this Court dated 6 December 2011 and 12 March 2014.
In addition, this Court issued an interim order (rule
nisi
)
calling upon the Mayor and Municipal Manager to show cause why they
should not be joined and indicate if there were any other
responsible
office bearers who should also be joined. The Court ordered the
Municipality to take steps to ensure the relocation
of the N12
Community applicants and to file a progress report canvassing the
main issues in the order of 6 December 2011.
[12]
[16]
The Mayor, Mr Mondli Gungubele, deposed to an affidavit in response
to the
order granted after the hearing. He acknowledged the
statutory powers and functions bestowed upon him as the political
head
of the Municipality. He asserted that he is not
responsible for the day-to-day administrative functions of the
Municipality.
Instead, the Municipal Manager and heads of
various departments of the Municipality responsible for various
specialised functions
like the provision of adequate housing, should
be held responsible. The Mayor stated further that he had asked
to be furnished
with reports related to these proceedings and that he
was so furnished in line with his responsibilities in terms of the
Local
Government: Municipal Structures Act.
[13]
However, the Mayor asserted that the contents of the reports did not
raise “any alarm bells”. It was only
after he was
furnished with the most recent court order that he established that
there had been a lack of progress on the part
of the Municipality.
The Mayor expressed his regret at the Municipality’s
non-compliance. He undertook to monitor
the matter “in
[his] role as the political head of the [Municipality]” while
surprisingly stating that if he were joined
to the proceedings he
would, in any event, rely on the Municipal Manager and the Head of
the Municipality’s Department for
Human Settlements (regional
department), Mr Devraj Chainee, to do that which the Court may direct
him to do.
[17] The Municipal
Manager, Mr Khaya Ngema, also deposed to an affidavit which generally
mirrored the affidavit of the Mayor. The Municipal Manager
offered two new points. First, he suggested that it is the
Gauteng Department of Human Settlements (Provincial Department) that
is accountable for the current predicament. He stated
that the
Municipality’s officials have, on several occasions, made
contact with the Provincial Department for the purposes
of compliance
with the court order of 6 December 2011, but that these efforts
have not been successful. The Municipality
intends to apply for
the joinder of the relevant persons in the Provincial Department to
these proceedings as they “will
unlock the process of moving
the community to their permanent houses”. Further, the
Municipal Manager stated that joinder
of those officials “will
go a long way to ensure that the officials not only take their
administrative functions seriously
but that they also learn to
appreciate the necessity of complying with Court orders timeously and
ensure that Court orders are
complied with without unnecessary
delay”. The Municipal Manager made the point that the
relevant officials in the Provincial
Department – for which the
Member of the Executive Council for Human Settlements (MEC) is
responsible – should be joined
because “they are
ultimately responsible for providing the financial resources and
support required by the [Municipality]
in order to comply with the
Court orders”. This was the first time, throughout the
history of this matter, that an
argument relying on the financial
constraints of the Municipality was brought to the attention of this
Court.
[18] Second, the
Municipal Manager identified Mr Chainee as the functionary
responsible
for “ensur[ing] that the [Municipality] fulfils its
obligation to provide adequate housing to its inhabitants”. He
alluded to a forthcoming affidavit by Mr Chainee wherein he
would explain that he is “the appropriate person, in so
far as
he has the relevant delegations of authority and responsibility, who
shall assume responsibility for ensuring that the Court’s
orders and directions are adhered to”. Even if the
Municipal Manager were joined to these proceedings, he asserted
that
he would rely on Mr Chainee to do what this Court directs him to do
since his office “does not have nor is it designed
to have the
capacity (of officials) to perform functions relating to the
provision of adequate housing”.
[19] In response
to the order of 28 August 2014 and the affidavits deposed to by
the
Mayor and Municipal Manager, the Municipality applied for an order:
(a) joining the MEC; (b) directing the MEC to provide it
with the
financial resources and delegations necessary to enable it to comply
and give effect to this Court’s order of 6 December 2011;
and (c) directing the MEC to devise and implement a comprehensive
plan to provide the Municipality with financial resources and
file a
report detailing that plan with the Registrar of this Court.
The Municipality stated that the facts related to the
joinder
application were better known by Mr Chainee, who deposed to the
supporting affidavit.
[20]
Referring to the MEC’s statutory obligations,
[14]
Mr Chainee supported the joinder of the MEC and motivated for his own
joinder. However, shortly thereafter, the Municipality
withdrew
the joinder application. The Municipality did so on the basis
that the issues pertaining to provision of the necessary
financial
resources and delegations to enable it to give effect to the order of
6 December 2011 had been resolved through a series
of collaborative
meetings with officials of the Municipality and Provincial
Department. In addition, the parties had since
come to agree on
the implementation of a comprehensive plan to provide the
Municipality with financial resources.
[21] Nevertheless,
the MEC, based on his obligations under the Housing Act, was directed
by this Court on 5 December 2014 to show cause why he should not be
joined to the contempt proceedings. Ms Xoliswa Mkhalali,
the
regional head of the Provincial Department, deposed to the affidavit
responding to the directions on behalf of the MEC.
She assured
this Court that, in principle, the MEC has no objection to being
joined but did not think that the joinder was necessary.
This,
she stated, was because, up until the moment of the joinder
application, the MEC and the Provincial Department had no knowledge
of the happenings in Bapsfontein Settlement. She pointed to
certain inaccuracies in the Municipality’s papers –
for
example, that there was no evidence of the Provincial Department
being requested for assistance in December 2012.
[22]
In the ordinary course, Ms Mkhalali explained, the Provincial
Department’s
involvement would only begin at the point of
housing construction. Ordinarily, she said, a municipality
would apply for approvals
during the pre-planning stage so that the
Provincial Department can budget and plan for the development.
Yet in this instance,
no such application was tendered to the
Provincial Department. A letter, allegedly sent to the
Provincial Department requesting
assistance, was discussed at the
meetings that came of the joinder application. However, the
Municipality acceded to the fact that
this letter may not have
actually been sent to the Provincial Department. Ms Mkhalali
also confirmed that the Municipality
does not require any delegations
or authorisations to commence the work required by the order of 6
December 2011, nor does it rely
on the Provincial Department for
conducting feasibility studies; further, the bulk and internal
services are generally done
prior to the Provincial Department’s
involvement.
[15]
[23] Despite the
recalcitrance imputed to the Provincial Department because of its
inaction, Ms Mkhalali reassured this Court that—
“
[n]otwithstanding
the fact that the MEC was not previously notified of the Court Order
or of the Municipality’s failure to
engage with the
[Provincial] Department on this issue, of primary importance is the
fact that there is a need for government to
respond to the housing
needs of the Applicants.”
The genuineness of this acknowledgement
is supported by evidence of the resolutions adopted at the meetings
that took place between
the Municipality and the
Provincial Department. These resolutions demonstrate that
it has been collaboratively decided
that: (a) the Municipality and
the Provincial Department are to work together to give effect to the
Court’s directives; (b)
officials in both offices are to
jointly develop a plan to identify land and resolve the N12 Community
applicants’ housing
backlog; (c) the Provincial Department is
going to budget for the purchasing of land, the provision of services
and housing construction;
and (d) the Municipality, too, will budget
for these costs through the Urban Settlements Development Grant.
[16]
Issues
[24] It is against
this backdrop that the following issues must be determined—
(a)
whether the Municipality has shown good cause why it should not be
held in contempt of the
order of 12 March 2014;
(b)
whether the Municipality’s attorney was in contempt;
(c)
whether that attorney should pay the costs of the contempt
proceedings from his own pocket;
(d)
whether the Mayor and Municipal Manager should be joined to these
contempt proceedings;
and
(e)
whether the MEC should be joined to these contempt proceedings.
Contempt of court orders
[25]
Before I deal with these issues, it is important to outline the
current status
of our law regarding contempt of court orders with
reference to the decision of the Supreme Court of Appeal in
Fakie.
[17]
I do so while keeping in mind the difficulties inherent in compelling
compliance from recalcitrant state parties in a manner
that displays
the courts’ discontent with disregard for the rule of law.
[26]
The starting point is the Constitution. It declares its own
supremacy
and this supremacy pervades all law.
[18]
Section 165 vouchsafes judicial authority. It provides that
courts are vested with judicial authority and that no person
or organ
of state may interfere with the functioning of the courts.
[19]
The Constitution explicitly enjoins organs of state to assist and
protect the courts to ensure their independence, impartiality,
dignity, accessibility and effectiveness.
[20]
In order to ensure that the courts’ authority is effective,
section 165(5) makes an order of court binding on “all
persons
to whom and organs of state to which it applies”. These
obligations must be fulfilled. It is significant
that this
subsection specifically mentions organs of state, for “justiciability
and powers of constitutional review make
sense only if non-judicial
authorities cannot and do not undo court orders and/or their
consequences”.
[21]
These sections, read alongside the interpretive injunction of the
supremacy clause, demonstrate why continual non-compliance
with court
orders and decisions would, inevitably, lead to a situation of
constitutional crisis.
[27]
Notwithstanding this clear constitutional imperative that the
authority of
our courts is to be respected and upheld, certain state
parties have, on occasion, displayed a troubling disregard for
judicial
orders. It is not difficult to reference examples of
cases involving contempt, by state organs, of court orders where,
most
troublingly, constitutional rights are in issue.
[22]
The cases are by no means exhaustive of state parties’
non-compliance with the orders and decisions of our courts;
they are
included merely to illustrate the extent and nature of this
phenomenon. What they show is not merely that state
parties are
failing, in a very serious way, to meet their constitutional
obligations, but that these failures have real and serious
consequences for those whose interests they are there to serve.
[23]
[28]
Contempt of court is understood as the commission of any act or
statement that
displays disrespect for the authority of the court or
its officers acting in an official capacity.
[24]
This includes acts of contumacy in both senses: wilful disobedience
and resistance to lawful court orders.
[25]
This case deals with the latter, a failure or refusal to comply with
an order of court. Wilful disobedience of an order
made in
civil proceedings is both contemptuous and a criminal offence.
[26]
The object of contempt proceedings is to impose a penalty that will
vindicate the court’s honour, consequent upon the
disregard of
its previous order, as well as to compel performance in accordance
with the previous order.
[27]
[29]
The courts’ treatment of contempt has been developed over the
years.
Under the common law, there are different
classifications of contempt: civil and criminal,
in facie curiae
(before a court) or
ex facie curiae
(outside of a
court).
[28]
The forms of contempt that concern us here, namely those occurring
outside of the court, could be brought before court in
proceedings
initiated by parties, public prosecutors or the court acting of its
own accord (
mero motu
).
[29]
[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.
[30]
Civil contempt is a crime,
[31]
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.
[32]
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
.
[31]
Coercive contempt orders call for compliance with the original order
that has
been breached as well as the terms of the subsequent
contempt order. A contemnor may avoid the imposition of a
sentence by
complying with a coercive order.
[33]
By contrast, punitive orders aim to punish the contemnor by imposing
a sentence which is unavoidable.
[34]
At its origin the crime being denounced is the crime of disrespecting
the court, and ultimately the rule of law.
[35]
[32] The
pre-constitutional dispensation dictated that in all cases, when
determining
contempt in relation to a court order requiring a person
or legal entity before it to do or not do something (
ad factum
praestandum
), the following elements need to be established on a
balance of probabilities:
(a)
the must order exist;
(b)
the order must have been duly served on, or brought to the notice of,
the alleged contemnor;
(c)
there must have been non-compliance with the order; and
(d)
the non-compliance must have been wilful or
mala fide
.
[36]
The import of Fakie
[33]
The question for consideration in
Fakie
was whether it was
acceptable, in the light of the constitutional protections afforded
to “accused persons”, to commit
someone to prison found
guilty of contempt where reasonable doubt exists as to any one
element of the crime.
[37]
The majority in
Fakie
noted that with our Constitution coming
into force, the need has arisen to ensure that the principles of
contempt accord with constitutional
dictates.
[38]
[34]
In an instructive judgment the majority, per Cameron JA, outlined the
history
of contempt in South African law and how it has been dealt
with by other courts. The majority observed that the
application
for committal is a “peculiar amalgam”, as it
is a civil proceeding that has in its arsenal the threat or
consequence
of criminal sanction.
[39]
Though the successful litigant’s interest is in compelling
compliance, the courts are able to grant the sanction of
committal
because there is a public interest being protected
[40]
– that is, the obedience to court orders and the maintenance of
the rule of law.
[41]
Acknowledging this amalgam leads to the question of whether the
distinction between civil and criminal contempt orders exists.
[42]
The Supreme Court of Appeal concluded that in reality there is not as
strict a distinction as previously believed and, in
fact, the
Constitution demands that the common law be amended to protect the
rights of those upon whom the sanction of imprisonment
may be visited
on being unsuccessful in contempt proceedings.
[43]
[35]
After surveying the remaining case law, international sources and the
arguments
of either side,
Fakie
concluded that this standard
for a finding of contempt where committal is the sanction is not in
keeping with constitutional values
and that the standard should
rather be beyond a reasonable doubt.
[44]
Despite the fact that it is acknowledged that this mechanism
(especially when employed by civil litigants) retains its civil
character, the possibility of imprisonment requires the importation
of protections.
[45]
[36]
These protections are mandated by the Constitution. However in
importing
them we must be cognisant of the context of contempt
proceedings: a respondent in contempt proceedings,
Fakie
said,
is not an “accused person” as envisioned by section 35
of the Constitution, and the protections afforded
to a contemnor
should not supersede the capacity of a non-state litigant who may not
have the administrative might to establish
motive.
[46]
Therefore the presumption rightly exists that when the first three
elements of the test for contempt have been established,
mala
fides
and wilfulness are presumed unless the contemnor is able to
lead evidence sufficient to create reasonable doubt as to their
existence.
[47]
Should the contemnor prove unsuccessful in discharging this
evidential burden, contempt will be established.
[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,
[48]
a mandamus demanding the contemnor to behave in a particular
manner,
[49]
a fine
[50]
and any further order that would have the effect of coercing
compliance.
[51]
[38] I now deal
with the above issues.
Should the Municipality be held in contempt?
[39]
The key issue is whether, in the circumstances of this case, the
Municipality
has shown good cause why it should not be held in
contempt of this Court’s orders. There can be no doubt
that the Municipality
has not complied with this Court’s
directions and orders.
[52]
However, the service of the order upon the Municipality, an essential
element to a finding of contempt, is wanting.
[40] The
Municipality submitted that it did not receive the directions and
order
of this Court due to its attorney’s change of fax number
and email address, and that it was an oversight not to furnish this
Court with a notice of the change of address. This much was
confirmed by the attorney, who allegedly became aware of the
directions and order only on 14 June 2014, once he was contacted by
the Deputy Registrar of this Court. The Municipality
submitted
that there was no wilful default on its part and that the applicants
suffered no prejudice. The Registrar had transmitted
the
directions and order to an e-mail address and fax number that had
been changed during the period preceding transmission.
But the
Municipality neither specified the dates on which the addresses were
changed nor explained why it was necessary for the
attorney to change
his e-mail address and not provide any forwarding service addresses.
The Municipality simply said that
it only became aware of the order
of 12 March 2014 and the set down direction
in casu
on 14 June
2014.
[41] The
applicants contended that the explanation is inadequate. They
could
not, nonetheless, refute the averments regarding the
Municipality’s non-receipt of the directions and order. They
urged
us to order the Municipality to take steps to move the N12
Community applicants and pay costs on a punitive scale. SERI
submitted
that the Municipality should be held in contempt and that a
declaration should be granted to safeguard the Court’s
institutional
authority and ensure compliance. It submitted
that, in addition to a rule
nisi
being issued for joinder of
the Mayor and Municipal Manager, we should draw an inference that the
Municipality was served or had
become aware of the order. SERI
also sought a punitive costs award against the Municipality.
[42]
While courts do not countenance disobedience of judicial authority,
it needs
to be stressed that contempt of court does not consist of
mere disobedience of a court order, but of the contumacious
disrespect
for judicial authority.
[53]
On whether this Court should make a civil contempt order
against the Municipality, it is necessary to consider whether, on
a
balance of probabilities, the Municipality’s non-compliance was
born of wilfulness and
mala fides
.
[43] One has to
accept readily that the Municipality’s explanation may not
be
adequate. However, the undisputed evidence, confirmed under
oath by its attorney, in particular that the order was not
served and
the Municipality was not made aware of it, negates a finding that
proper service is established. This Court cannot,
in the
circumstances, draw an inference of wilfulness and
mala fides
.
As a result one cannot safely conclude that the Municipality is in
contempt of the order. It follows that the Municipality
has
shown good cause why it should not be held in contempt.
[44] This
conclusion does not, however, detract from the fact that the
Municipality
has breached its constitutional obligations by failing
to abide by the orders dated 6 December 2011 and 12 March 2014.
The source and scope of these obligations are found in the
Constitution: section 152 which deals with the objects of local
government
provides:
“(1)
The
objects of local government
are —
(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the
provision of services to communities
in a
sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment;
. . .
(2)
A municipality must strive
, within its financial and
administrative capacity,
to achieve the objects
set out in
subsection (1).” (Emphasis added.)
[45]
In addition, section 73 of the Municipal Systems Act
[54]
outlines the general duty placed on municipalities. It
provides:
“(1)
A municipality must give effect to the provisions of the Constitution
and—
(a)
give priority to the basic needs of the local community
(b)
promote the development of the local community; and
(c)
ensure that all members of the local community have access to at
least the minimum
level of basic municipal services.
(2)
Municipal services must—
(a)
be equitable and accessible;
(b)
be provided in a manner that is conducive to-
(i)
the prudent, economic, efficient and effective use of available
resources; and
(ii)
the improvement of standards of quality over time;
(c)
be financially sustainable;
(d)
be environmentally sustainable; and
(e)
be regularly reviewed with a view to upgrading, extension and
improvement.”
[55]
[46]
The effect of
Pheko I
, in terms of these obligations, entitled
the applicants to relief.
[56]
Also,
Pheko I
clearly outlined the exact steps to be followed
in order to effect that relief.
[57]
All of these obligations served as a basis for the Court’s
order of 28 August 2014. The obligations
continue to
form the basis of the Municipality’s ongoing responsibilities
toward the applicants.
Should Mr Khoza be held in contempt?
[47]
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.
[58]
The reason for extending the ambit of contempt proceedings in
this manner is to prevent any attempt to defeat and obstruct
the due
process of justice and safeguard its administration.
Differently put, the purpose is to ensure that no one may, with
impunity, wilfully get in the way of, or otherwise interfere with,
the due course of justice or bring the administration of justice
into
disrepute.
[59]
[48] The attorney
confirmed that he did not inform the Municipality of the directions
and order. This, he said, was because he did not receive them
since they were transmitted to a fax number that was no longer
linked
to his changed e-mail address. He said that the e-mail address
was changed on or about August 2013 because it had
become
unreliable. In addition, in July 2012, his offices were
relocated to new premises, which resulted in the change of
telephone
numbers and fax numbers.
[49] The attorney
explained that before the relocation he enquired from the Registrar
of this Court whether further directions had been issued. He
asked because, he said, “the applicants themselves had
been in
contempt of this Court by failing to comply with the directions
issued by the Court”. As a result he “gained
the
impression that the applicants no longer intended to proceed with the
matter”. And he did not therefore “inform
the
Registrar of the change of address”. He acknowledged that
“[t]his . . . was incorrect as the applicants later
applied for
condonation for the late filing of the reports which they were
directed to file”. The attorney also made
the enquiry
because the Municipality was itself waiting for this Court to issue
further directions as to whether it should commence
with the process
of relocating the N12 Community applicants.
[50] The standards
of proof are those set out in
Fakie
: a balance of
probabilities in respect of civil remedies and a reasonable doubt in
respect of a committal order. While the
existence of the order
and non-compliance have been established, the requisite of service
has not. It follows that without
one of the requisites being
established, no inference of wilfulness and
mala fides
can be
drawn. The attorney’s undisputed evidence dispels any
notion of wilfulness and
mala fides
on his part. I
conclude therefore that contempt on the part of the attorney has not
been established.
Should the attorney pay costs from
his own pocket?
[51]
Costs
de bonis propriis
are costs which a representative
[60]
is ordered to pay out of his or her own pocket as a penalty for some
improper conduct, for example, if he or she acted negligently
or
unreasonably.
[61]
Whether a person acted negligently or unreasonably must be decided in
the light of the particular circumstances of each and
every case.
[62]
[52] The attorney
submitted that this costs award is punitive and awarded against
attorneys only in exceptional circumstances where, for example, the
court finds that a legal representative did something out of
the
ordinary and of an unusual nature. He submitted that his
failure to inform the Municipality of the directions and order
of
this Court was not as a result of gross negligence. I disagree.
[53] Mr Khoza is
not only an attorney of record for the Municipality but also an
officer of this Court. He knew that the matter was pending and
there was no basis for him to believe that the applicants
no longer
intended to pursue the matter. Furthermore, he knew that the
Municipality was awaiting further directions regarding
its
obligations to the N12 Community applicants; indeed, that was one of
the reasons he proffered for making enquiries with the
Registrar.
His conduct is all the more concerning in the light of the importance
of the interests at stake and the harm that
the extensive delay has
already caused to the applicants. It follows that his conduct
has been egregious.
[54]
While the evidence may not establish wilfulness or
mala fides
,
it does establish a gross disregard for his professional
responsibilities. At the very least, the attorney had an
obligation
to notify the Registrar of this Court and his clients of
any change of address.
[63]
It is proper that he accepted that he inappropriately failed to
inform the Registrar of the change of his address.
This was
plainly not done. The failure to notify the Registrar does,
indeed, constitute gross negligence on his part.
[64]
[55] Accordingly,
Mr Khoza must be ordered to pay the costs from his own pocket to
mark
this Court’s displeasure at his gross negligence, particularly
as an officer of this Court. Next, is whether the
Mayor,
Municipal Manager and MEC should be joined to these proceedings.
Joinder of the Mayor, Municipal Manager and MEC
[56]
The test for joinder requires that a litigant has a direct and
substantial
interest in the subject matter of the litigation, that
is, a legal interest in the subject matter of the litigation which
may be
affected by the decision of the Court.
[65]
This view of what constitutes a direct and substantial interest has
been explained and endorsed in a number of decisions
by our
courts.
[66]
[57] In the light
of my finding that contempt of this Court’s order on the
part
of the Municipality has not been established, no purpose would be
served by joining the Mayor, Municipal Manager and MEC to
these
contempt proceedings.
[58]
However, by virtue of their constitutional and statutory
responsibilities,
the joinder of the Mayor and Municipal Manager in
respect of this Court’s continuing supervision of the
implementation of
the orders in
Pheko I
is appropriate
.
The general duty imposed on municipalities in respect of the
provision of municipal services includes giving effect to the
Constitution
by prioritising the basic needs of the community,
promoting the development of the community and ensuring that there is
access
to at least the minimum level of municipal services.
[67]
[59]
The Mayor and the Municipal Manager are tasked with the oversight and
management,
respectively, of the provision of services by
municipalities to the local community in a sustainable and, in the
case of the Municipal
Manager, equitable manner.
[68]
In addition to these responsibilities, the Municipal Manager is also
tasked with the implementation of national and provincial
legislation
applicable to the municipality, like the Housing Act.
[69]
Thus, despite Mr Chainee’s efforts to exonerate the Mayor and
the Municipal Manager, they nonetheless have Constitutional
and
statutory obligations in relation to the supervisory orders of
Pheko
I
.
[70]
[60]
As regards the joinder of the MEC, section 7 of the Housing Act makes
it obligatory
for him to take all reasonable and necessary measures
to support and strengthen the capacity of the Municipality in its
provision
of adequate housing.
[71]
When the Municipality fails to do so, the MEC is obliged to intervene
by taking appropriate steps.
[72]
Based on the evidence before us, the MEC’s office, in the
latest collaboration with the Municipality, has identified
personnel
in its ranks that will become directly responsible for the
implementation of steps to comply with this Court’s
orders.
In the light of the MEC’s statutory obligations in relation to
the provision of housing and his role in the
implementation of the
order of 6 December 2011, these steps are appropriate.
Those same obligations mean that he
should be joined as a party
having substantial interest in the execution of the supervisory
orders in
Pheko I
. Accordingly an order to that effect
will be made.
Concluding remarks
[61]
Finally, it needs to be stressed that the Constitution enjoins organs
of state,
like the Municipality, to adhere and give effect to its
principles and provisions, as they must to the court orders issued
thereunder.
[73]
Where an organ of state fails in its duty, a court must assume an
“invidious position of having to oversee state action”,
[74]
to address and correct the failures.
[62]
In response to the rule
nisi
calling on the Mayor and
Municipal Manager to show cause why they should not be joined to the
proceedings, the Mayor, Mr Gungubele,
disclaimed all
responsibility for the fact that his Municipality had failed to carry
out the Court’s orders. He sought
to do so on the basis
that he was not responsible for what he called the “day to day
administrative functions” of the
Municipality. Instead,
he pointed to a junior official, Mr Chainee (himself a new
appointment) whom he said was responsible.
[75]
For his part, the Municipal Manager, Mr Ngema, engaged an identical
disclaimer.
[76]
[63] These
disclaimers were unseemly and highly inappropriate. Who in a
local
authority, if not the Mayor and Municipal Manager, is
responsible for its failings of function? The offices they hold
exist
for the purpose of oversight in the interests of the community
they serve. It is wrong for them to shrug off responsibility
when their own municipal structure, the one at whose symbolic and
operational head they stand, conspicuously fails to fulfil a
duty
imposed by a court order. Nor can or should they be able to
plead ignorance. The order this Court issued on 6
December 2011
affected hundreds of families and households, perhaps thousands of
people. Their daily living, human dignity
and security and
comfort were directly at stake. It is precisely because of the
leadership entrusted to the Mayor and the
Municipal Manager, that
they have a duty to undertake responsibility for implementing Court
orders.
[64] This is not
to say that they have to be involved in the minutiae of executing
the
order and overseeing the practicalities of its realisation. But
what they must do is to ensure that the municipal structures,
for
which they carry ultimate legal and moral responsibility, respond
appropriately. This they owe to the courts. But,
much
more importantly, they owe it to the residents, those who put them in
power and who depend on their responsible exercise of
that power, to
act diligently and expeditiously.
[65] It bears
repeating that courts shall not hesitate to enforce their orders.
[66]
The remarks of Justice Brandeis in
Olmstead et al v United
States
[77]
which have been endorsed by this Court,
[78]
remain apposite here:
“In a government of laws,
existence of the government will be imperilled if it fails to observe
the law scrupulously. . .
. [G]overnment is the potent,
omnipresent teacher. For good or for ill, it teaches the whole
people by its example.
. . . If the government becomes a
law-breaker, it
breeds contempt
for the law; it invites every
man [or woman] to become a law unto himself [or herself]; it invites
anarchy.” (Emphasis
added.)
[67] The
Municipality, as an organ of state, is duty-bound to comply with the
orders
of this Court, as it is with all of its obligations under the
Constitution.
Order
[68]
The following order is made:
1.
The Ekurhuleni Metropolitan
Municipality (Municipality) and
Mr Bongani Khoza, the Municipality’s attorney, are not
held in contempt of this Court’s
orders of 6 December 2011 and
12 March 2014.
2.
The rule
nisi
issued on 28 August 2014, in respect of the
Executive Mayor and the Municipal Manager, is discharged.
3.
The Executive Mayor and
the Municipal Manager are joined as parties
to the proceedings in relation to
Pheko and Others v Ekurhuleni
Metropolitan Municipality
[2011] ZACC 34
;
2012 (2) SA 598
(CC);
2012 (4) BCLR 388
(CC) (
Pheko I
) for the purpose of
implementing the supervisory order.
4.
The Member of the Executive
Council for Human Settlements, Gauteng is
joined as a party to the proceedings in
Pheko I
for the
purpose of implementing the supervisory order referred to in
paragraph 3 above.
5.
Mr Devraj Chainee, the Head
of Department for Human Settlements for
the Municipality, is joined in his official capacity as a party to
the proceedings in
Pheko I
for the purpose of implementing the
supervisory order referred to in paragraph 3 above.
6.
Mr Khoza and the Municipality
are each ordered to pay 50% of the
applicants’ costs in the contempt proceedings. Mr Khoza
is ordered to pay costs
de bonis propriis
.
For the
Applicants : C
R Jansen, M Dewrance and N Muvangua instructed
by
Gilfillan Du Plessis Inc.
For the Respondents : K
Tsatsawane instructed by Khoza & Associates Inc.
For the Amicus Curiae : T
Ngcukaitobi instructed by the Socio-Economic
Rights
Institute of South Africa.
[1]
Pheko and Others v Ekurhuleni Metropolitan Municipality
[2011]
ZACC 34
;
2012 (2) SA 598
(CC);
2012 (4) BCLR 388
(CC) (
Pheko I
)
.
[2]
The order reads:
“In the event, the following
order is made:
1.
Condonation is granted.
2.
Leave to appeal directly
to this Court is granted.
3.
The appeal is upheld.
4.
The order of the
North Gauteng High Court, Pretoria, under Case No
5394/11 is set aside.
5.
It is declared that
the removal of the applicants from their homes,
the demolition of the homes, and their relocation by the Ekurhuleni
Metropolitan
Municipality were unlawful.
6.
The Municipality
must identify land in the immediate vicinity of
Bapsfontein for the relocation of the applicants and engage
meaningfully with
them on the identification of the land.
7.
The Municipality
must ensure that the amenities provided to the
applicants and people resettled in terms of this order are no less
than the amenities
and basic services provided to them as a result
of the relocation of March 2011.
8.
The Municipality
must file a report in this Court confirmed on
affidavit by no later than 1 December 2012 regarding steps
taken in compliance
with para 6 of this order to provide access to
adequate housing for the applicants.
9.
The applicants may,
within 15 days of the filing of the
Municipality’s report, lodge affidavits in response to the
report.
10.
The Municipality is ordered to pay
the applicants’ costs in
this court and in the High Court, including, where applicable, costs
of two counsel.”
[3]
Pheko I
above n 1 at para 4.
[4]
57 of 2002.
[5]
Pheko and Others v Ekurhuleni Metropolitan
Municipality
[2011] ZAGPPHC 130
(
High Court judgment) at 5.
[6]
Id at 6.
[7]
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE).
[8]
High Court judgment above n 5 at 4.
[9]
Condonation was granted on 16 September 2013.
[10]
The directions read:
“The Chief Justice has issued
the following directions:
1.
The [Municipality] is directed to file, by no later than
Friday, 29
November 2013, a report on the progress made in respect of the [N12
Community applicants] regarding its undertaking
towards the
community set out in the report dated 30 November 2012. The
report must indicate steps taken to ensure that—
a)
permanent housing will be provided to the community;
b)
the land utilised is suitable for occupation;
c)
bulk and link engineering services will be available
with sufficient
capacity for the proposed densities;
d)
all erven have access to roads; and
e)
all erven are connected to the internal water and sewer
infrastructure network.
2.
The [Municipality] is directed to report also on the
progress made
in respect of its obligation to find suitable land for the Mayfield
Community applicants. The report must
address
inter alia
—
a)
progress regarding the acquisition of alternative land; and
b)
the processes to be completed before such land is acquired.
3.
Further directions may be issued.”
[11]
This interlocutory application was lodged under rule 31 of the Rules
of this Court. The rule provides:
“(1)
Any party to any proceedings before the Court and an
amicus
curiae
properly admitted by the Court in any proceedings shall
be entitled, in documents lodged with the Registrar in terms of
these
rules, to canvass factual material that is relevant to the
determination of the issues before the Court and that does not
specifically
appear on the record: Provided that such facts—
(a)
are common cause or otherwise incontrovertible; or
(b)
are of an official, scientific, technical or statistical nature
capable of easy verification.
(2)
All other parties shall be entitled, within the time allowed by
these rules for responding to such document, to admit, deny,
controvert or elaborate upon such facts to the extent necessary
and
appropriate for a proper decision by the Court.”
[12]
The order reads:
“1.
It is declared that the [Municipality] is in breach of its
constitutional obligations by failing to abide by the orders of this
Court dated 6 December 2011 and 12 March 2013.
2.
The [Mayor] and [Municipal Manager] are ordered to show
cause on
affidavit by no later than Monday, 15 September 2014, why
they should not be joined to these proceedings.
3.
The [Municipality] is ordered to identify any other office
bearers
and/or officials of the [Municipality] who are responsible for
compliance with orders of this Court and give notice of
such office
bearers and/or officials by no later than Monday, 15 September 2014.
4.
The [Municipality] is ordered forthwith to give effect
to its
agreement with the [N12 Community applicants] and to take the steps
necessary to ensure relocation of the [N12 Community
applicants].
5.
The [Municipality] is ordered to file, by no later than
Thursday, 27
November 2014, a progress report detailing steps taken to—
(a)
purchase the land identified by it in its report of 30 November
2012
with a view to relocating the [N12 Community applicants] to such
land as agreed to by them in their report dated 28 December
2012;
(b)
provide permanent housing to the [N12 Community applicants];
(c)
ensure that the land utilised is suitable for occupation;
(d)
ensure that bulk and link engineering services are available with
sufficient capacity for the proposed densities;
(e)
ensure that all erven have access to roads; and
(f)
ensure that all erven are connected to the internal water
and sewer
infrastructure networks.
6.
The applicants and the amicus curiae may respond to the
contents of
the progress report referred to in paragraph 5 above by no later
than Monday, 29 December 2014.”
[13]
117 of 1998.
[14]
See the
Housing Act 107 of 1997
, specifically
sections 7
and
9
thereof which provide:
“7.
Functions of provincial governments
(1)
Every provincial government, through its MEC, must, after
consultation
with the provincial organisations representing
municipalities . . . do everything in its power to promote and
facilitate the
provision of adequate housing in its province within
the framework of national housing policy.
(2)
For the purposes of subsection (1) every provincial government must
through its MEC—
(a)
determine provincial policy in respect of housing development;
. . .
(c)
take all reasonable and necessary steps to support and strengthen
the capacity of municipalities to effectively exercise their powers
and perform their duties in respect of housing development;
(d)
co-ordinate housing development in the province;
(e)
take all reasonable and necessary steps to support municipalities
in
the exercise of their powers and the performance of their duties in
respect of housing development;
(f)
when a municipality cannot or does not perform a duty imposed
by
this Act, intervene by taking any appropriate steps in accordance
with section 139 of the Constitution to ensure the performance
of
such duty; and
. . .
(3)
An MEC must—
(a)
administer every national housing programme and every provincial
housing programme which is consistent with national housing policy
and section 3 (2) (b), and for this purpose
may, in
accordance with that programme and the prescripts contained in the
Code, approve—
(i)
any projects in respect thereof; and
(ii)
the financing thereof out of money paid into the provincial housing
development fund as contemplated in section 12 (2);
. . .
(5)
The MEC may, subject to any conditions he or she may deem
appropriate
in any instance—
(a)
delegate any power conferred on him or her by this Act; or
. . .
. . . Provided that the delegation or
assignment does not prevent the person who made the delegation or
assignment from exercising
that power or performing that duty
himself or herself.
. . .
9.
Functions of municipalities
(1)
Every municipality must, as part of the municipality’s process
of integrated development planning, take all reasonable and
necessary steps within the framework of national and provincial
housing legislation and policy to—
(a)
ensure that—
(i)
the inhabitants of its area of jurisdiction have access to
adequate
housing on a progressive basis;
(ii)
conditions not conducive to the health and safety of the inhabitants
of its area of jurisdiction are prevented or removed;
(iii)
services in respect of water, sanitation, electricity, roads,
stormwater
drainage and transport are provided in a manner which is
economically efficient;
(b)
set housing delivery goals in respect of its area of jurisdiction;
(c)
identify and designate land for housing development;
(d)
create and maintain a public environment conducive to housing
development
which is financially and socially viable;
(e)
promote the resolution of conflicts arising in the housing
development
process;
(f)
initiate, plan, co-ordinate, facilitate, promote and enable
appropriate
housing development in its area of jurisdiction;
(g)
provide bulk engineering services, and revenue generating services
in so far as such services are not provided by specialist utility
suppliers; and
(h)
plan and manage land use and development.”
[15]
These statements as to the allocation of functions find
support in the National Department of Human Settlement’s
publication
National Housing Policy and
Subsidy Programmes
, specifically Section
One: “Simplified Guide to the National Housing Code”,
Part B: “Overview of the Current
National Housing Programmes”
which explains the various housing subsidy instruments that are
available to assist low income
households to access adequate
housing. Under the heading of “Housing Assistance in
Emergency Circumstances”
it is explained, at para 4.5, that
—
“[t]he projects will be
undertaken on the basis of a partnership of cooperative governance
between the relevant municipality,
the Provincial Department, and
the National Department.
The developer role will be fulfilled by municipalities
.
The Provincial Department can assist the municipality
if the
municipality lacks capacity
, and can assume the role of the
developer if the municipality cannot meet the project commitments.”
(Emphasis added.)
[16]
The Urban Settlements Development Grant (USDG) was created under
Schedule 4 of the Constitution. Its purpose is to upgrade
informal settlements – either by creating formal housing or by
upgrading services to informal settlements – where
the urban
population is growing, with an increasing number of poor people.
There has historically been a misalignment of
powers and functions
between the different spheres of government and the USDG would make
it more affordable for metropolitan
municipalities to acquire land.
(Ms Moore, Chief Director: Urban Development and
Infrastructure, National Treasury “National
Treasury briefing
on Urban Settlements Development Grant”
Meeting of the
Budget Committee on Appropriation
(12 September 2012), available
at
https://pmg.org.za/committee-meeting/14853/
.)
See al
so Ms Ndlovu, Director of Human
Settlements, Ekurhuleni Metropolitan Municipality “Ekurhuleni
Presentation”
Minutes of the
Committee Meeting of Human Settlements: Urban Settlements
Development Grant 3
rd
quarter spending for 2012/13 by Johannesburg, Tshwane and Ekurhuleni
Metros
(19 June 2013), available at
https://pmg.org.za/committee-meeting/16074/
–
where challenges facing the Municipality
were mentioned and specific attention was paid to Bapsfontein
Settlement:
“
The City did not have planned
relocations, and when it happened in Bapsfontein it had been just a
once off. There were people
who lived in environmentally
sensitive areas, and when the situation was critical, those people
were moved.”
[17]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA) (
Fakie
).
[18]
Section 1(c) of the Constitution provides:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(c)
Supremacy of the Constitution and the rule of law.”
[19]
Section 165(1) and (3).
[20]
Section 165(4).
Under section 239 of the Constitution, “organ of state”
is defined to mean—
“(a)
any department of state or administration in the national,
provincial
or local sphere of government; or
(b)
any other functionary or institution—
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms
of any legislation, but does not include a court or a judicial
officer.”
[21]
Du Plessis “Interpretation” in Woolman et al (eds)
Constitutional Law of South Africa
Service 6 (2014) 2 at
32-99.
[22]
See, for example,
Nyathi v MEC for the Department of Health,
Gauteng and Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9)
BCLR 865
(CC) (
Nyathi
);
N and Others v Government of South
Africa (No 3)
2006 (6) SA 575
(D) (
N and Others
)
; City
of Cape Town v Rudolph and Others
2004 (5) SA 39
(C); and
Federation of Governing Bodies of South African Schools (Gauteng)
v MEC for Education, Gauteng
2002 (1) SA 660
(T) (
Federation
of Governing Bodies
).
[23]
The extent of state parties’ non-compliance and the harm that
it can cause not only to the authority of the courts but
to the
public is illustrated the following cases:
In
Nyathi
id, the applicant
had obtained an unopposed High Court judgment against the state
respondent for negligent and improper care administered
to him at
two hospitals. That care had resulted in a stroke and severe
left hemiplegia, thereafter requiring full time
care and medical
treatment. The respondent admitted liability, leaving only the
issue of quantum to be addressed.
Unable to obtain an interim
payment from the respondent to cover his medical and legal fees, the
applicant obtained an unopposed
order from the High Court obliging
the respondent to make an interim payment. The respondent
failed to comply with that
order, however, requiring the applicant
to launch proceedings in the High Court challenging the
constitutionality of a provision
of the
State Liability Act, 20 of
1957
, which prevented execution against state property. The
respondent did not respond to the notice of motion. It was
only when the matter was set down in this Court for contempt
proceedings that the respondent made the payment, nearly two years
after the unopposed action had been commenced. The applicant
died two months after the payment was made.
Federation of Governing Bodies
id,
concerned the rights ancillary to the proper running of the school
system and provision of quality education. Having
obtained a
consent order, which in effect required that the respondent comply
with the relevant statutory prescripts, the applicant
brought
contempt proceedings contending that steps were being taken to close
pre-primary schools without engaging the affected
parties. The
High Court found for the applicants, holding that the respondent had
failed to comply with its obligations
under the consent order.
Similarly, in
N and Others
id,
the applicants, who were prisoners of Westville Correctional Centre
whose HIV status had deteriorated to and below a CD4
count of 200
cells/ml, had successfully sought an order compelling the state
correctional facility to provide them with
immediate antiretroviral
(ARV) treatment. That order included the requirement that the
respondents lodge with the court
Registrar an affidavit setting out
the manner in which it would comply. The respondents failed to
file such a report.
The reprehensibility of the state parties’
conduct in relation to this matter, which on the evidence included
denying public
interest groups the ability to enter the prison to
consult with the prisoners regarding their medical well-being, is
brought
home by the fact that one of the prisoners lost his life
shortly after the initial court order was granted.
[24]
Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others
1956 (1) SA 105
(N) (
Cape Times
) at 106A B.
[25]
Further, any interference with the administration of justice would
constitute a basis for a finding of contempt of court.
Id at
106A.
[26]
Fakie
above n 17 at para 6. Prior to the pronouncement
of
S v Beyers
1968 (3) SA 70
(A) there was uncertainty about
the ability of a civil order to attract public prosecution.
That case provided that even
where a litigant seeking a coercive
civil contempt order abandons their cause of action that does not,
depending on the nature
and seriousness of the contempt, preclude
the court from enforcing a criminal sanction such as committal, (see
Fakie
above n 17 at para 11).
[27]
Cilliers et al
Herbstein and Van Winsen
The Civil Practice
of the High Courts and the Supreme Court of Appeal of South Africa
5 ed (Juta, Cape Town 2009) volume 2 at1100.
[28]
Cape Times
above n 24 at 106C-D; Fakie above n 17 at para 11.
[29]
Id at 110C.
Comparable foreign jurisprudence is helpful in this regard:
In the United States, “it is
long settled that courts possess inherent authority to initiate
contempt proceedings for disobedience
to their orders”.
See
Young v United States ex rel Vuitton et Fils SA
481 US
787
(1987) at 793. By comparison, in Canada, courts may
institute contempt proceedings
ex mero motu
—
“[b]ut it is a drastic
procedure which should be used cautiously only to uphold the
authority of the Court and its process,
or to enable justice to be
properly administered, or to maintain the authority of the law.
It ought not to be used merely
to uphold and vindicate the processes
of the law for the benefit of one of the litigants.” (
R
v UFAW
[1967] 65 D.L.R. (2d) 579 (BCCA) at 591.)
And in the United Kingdom, civil
contempt is understood to vindicate the public’s interest in
the enforceability of court
orders. See Lowe and Sufrin,
The
Law of Contempt
3 ed (Butterworths, London 1996) at 559.
Therefore when contempt takes on a public dimension, “particularly
if the
offender is deliberately pursuing a policy of challenging a
court’s authority”, British courts are empowered to
initiate
contempt proceedings
mero motu
(id at 559, 659).
See also
Churchman v Joint Shop Stewards’ Committee of the
Workers of the Port of London and others
[1972] 3 All ER 603
(CA) at 608.
[30]
See Burchell
Principles
of Criminal Law
(Juta & Co Ltd,
3
rd
ed) at 955.
[31]
Above n 26.
[32]
Fakie
above n 17 at para 71.
[33]
Id at para 74. There are divergent views between the majority
and the minority as to the distinction to be drawn between
these two
classifications. However, the characterisation presented by
Heher JA, of the minority, appears to accurately
capture the common
law position in this regard.
[34]
Id at para 75.
[35]
York Timbers Ltd v Minister of Water Affairs & Forestry and
Another
2003 (4) SA 477
(T) (
York Timbers
) at 506D and
Mjeni v Minister of Health and Welfare, Eastern Cape
2000 (4)
SA 446
(Tk) at 456A-B. As explained id. See also section
1(c) of the Constitution.
[36]
Fakie
above n 17 at para 12.
[37]
Id.
[38]
Id. See also sections 2, 12, 35 and 39(2) of the Constitution.
[39]
Fakie
above n 17 at para 8.
[40]
Id at paras 34 and 38-9.
This, as
Fakie
points out, is acknowledged by
incorporation in the test for contempt itself that the contempt must
have been committed wilfully
and with
mala fides
. Said
differently, having the requirements of
mala fides
and
wilfulness within the test for contempt acknowledges the fact that
contempt is an act done on purpose much like the intentional
component in other crimes (id at paras 11, 23 and 40). The
corollary of this is that good faith avoids the infraction.
This is because such a sanction cannot be lawfully imposed for a
mere disregard of a court order but should be for the “deliberate
and intentional violation of the court’s dignity, repute or
authority”. Therefore, the honest belief, even if mistaken,
that there is a justification for non-compliance does not accord
with that level of intent (id at paras 9-10).
By comparison, courts in Canada and the United Kingdom require
proof beyond a reasonable doubt that the contemnor intended to
commit an act disallowed by a clear and unequivocal order of which
the contemnor had notice. However, they do not require
a
showing that the contemnor intended to disobey the order or
interfere with the administration of justice. See
TG
Industries Ltd. v Williams
2001 NSCA 105
; [2001] 196 NSR (2d) 35
(
TG Industries
) at para 16-7;
Attorney-General v Times
Newspapers Limited
[1991] 1 AC 191
at 217;
[1991] 2 All ER 398
at 414b; and Lowe and Sufrin above n 29 at 565-7.
[41]
Compare Lowe and Sufrin above n 29 at 656 where the same is said
about English law:
“[I]t is obvious that disregard of a court order not only
deprives the other party of the benefit of that order but also
impairs the effective administration of justice.”
Compare
International Union, United Mine Workers of America v
Bagwell
[1994] USSC 43
;
512 US 821
(1994) (
Bagwell
) at 828 (noting that
the imposition of fines both vindicates the court’s legal
authority, associated with criminal contempt,
and coerces the
contemptuous party to comply with the court’s orders,
associated with civil contempt).
[42]
See
Fakie
above n 17 at paras 11-6 for the Supreme Court of
Appeal’s exposition of the civil and criminal dimensions of
contempt
in the common law. For comparison with other
jurisdictions, compare Miller
The Law of Contempt in Canada
(Carswell, Scarborough 1997) at 13:
“Because all alleged contempts must be proved beyond a
reasonable doubt, at the end of the day there is little practical
distinction between criminal contempts (summarily, those that have a
public character and offend against the administration of
justice
generally) and civil contempts (those that bear on litigation among
private parties, such as disobedience of orders or
rules of
procedure in such litigation).”
For a discussion of the distinction between civil and criminal
contempt in American law, see
Bagwell
id at 827 31.
For an English criticism of the maintenance of the distinction
between civil and criminal contempt, see
A-G Newspaper Publishing
plc
[1988] Ch 333
at 362;
[1987] 3 All ER 276
at 294.
[43]
Fakie
id at paras 34-41.
[44]
Id at paras 19, 29 and 39.
[45]
Id at para 24.
[46]
Id at paras 41 and 42.
[47]
Id at para 41.
[48]
See, for example,
York Timbers
above n 35 at 506C-D.
[49]
See, for example,
MEC, Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA) and
Kate v MEC for the Department of
Welfare Eastern Cape
2005 (1) SA 141
(SE) at para 21.
[50]
See, for example,
Jeebhai v Minister of Home Affairs and Another
2007 (4) SA 294
(T) at para 54 and
S v Mkize
1963 (3) SA 218
(N).
[51]
Some of the mechanisms employed in other jurisdictions include
community service, striking a written submission, an order that
the
contemnor tender security for compliance and sequestering the
contemnor’s property. See, Lowe and Suffrin above
n 29
at 557; Miller above n 42 at 129.
[52]
See above [10] to [12] and n 2.
[53]
Cape Times above n 24 at 106A B.
[54]
32 of 2000.
[55]
In addition,
section 9(1)
of the
Housing Act, quoted
in full above n
14, makes it obligatory for every municipality, as part of the
municipality’s process of integrated development
planning, to
take all reasonable and necessary steps within the framework of
legislation to ensure access to adequate housing
and living
conditions.
[56]
Pheko I
above n 1 at paras 49-50.
[57]
Id at para 53. In particular, see paras 6-8 of the order (for
the full text see above n 2).
[58]
Cape Times
above n 24 at 106D-E.
[59]
Id. See also
Fakie
above n 17 at paras 6 and 8.
[60]
See
Zalk v Inglestone
1961 (2) SA 788
(W) at 795A.
[61]
South African Liquor Traders’ Association and Others v
Chairperson, Gauteng Liquor Board, and Others
[2006] ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC) at para 54.
[62]
Grobbelaar v Grobbelaar
1959 (4) SA 719
(A);
[1959] 4 All SA
439
(A) at 725B-C. For the difference between costs
de
bonis propriis
and costs on an attorney and client scale see
Pieter Bezuidenhout-Larochelle Boerdery (Edms) Bpk en Andere v
Wetorius Boerdery (Edms) Bpk
1983 (2) SA 233
(O) at 236F-H.
[63]
Rule 1(8) of the Constitutional Court Rules, read with rules 4, 4A
and 16 of the Uniform Rules of Court.
[64]
Above n 61. See also
Machumela v Santam Insurance Co. Ltd
1977 (1) SA 660
(AD);
[1977] 2 All SA 53
(A) where similarly an
attorney cost the applicant money for not having obeyed the rules of
court, see 663H-664D.
[65]
Amalgamated Engineering Union v Minister of Labour
1949 (3)
SA 637 (A).
[66]
See, for example
, National Union of Metalworkers of South Africa
v Intervalve (Pty) Ltd and Others
[2014] ZACC 35
;
2015 (2) BCLR
182
(CC); (2015) 36 ILJ 363 (CC) at paras 186-7;
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) at paras 11-2;
Gordon v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) at para 9; and
Ex Parte Body Corporate of
Caroline Court
[2001] ZASCA 89
;
2001 (4) SA 1230
(SCA) at para
9.
[67]
Section 73(1) of the Municipal Systems Act above at n 54.
[68]
Section 56(3)(e)
of the
Local Government: Municipal Structures Act
117 of 1998
and section 55(1)(d) of the Municipal Systems Act
above n 54 respectively.
[69]
Municipal Systems Act above n 54 at section 55(1)(p).
[70]
Above n 72-5 and sections 152 and 156 read with
Schedule 4, Part A of the Constitution.
[71]
Above n 15.
[72]
Section 7(2)(f)
of the
Housing Act read
with 139 of the Constitution
and see also above n 16.
[73]
Contempt of court in all cases is to be prohibited and condemned,
but much more so where the order with which the state is unwilling
to comply concerns the provision of basic human rights. What
is more, the situation begins to look dire when the affidavits
deposed to by state parties contain bureaucratic babble that is
clearly aimed, not at assisting the judiciary to arrive at a
just
result, but rather at avoiding their constitutional obligations.
Often constraints on state parties, particularly
financial ones,
that may limit or delay their capacity to achieve certain results,
are acknowledged and moderated by courts through
reporting
requirements. In crafting the reporting mechanisms that
accompany declarations of positive obligations, not only
are courts
being sensitive to the very real resource constraints of the state,
they are engaging in a collaborative process in
which different
branches of government take ownership over their respective
constitutional obligations. Courts in such
circumstances serve
primarily to ensure that the state parties are working to meet those
obligations, while enabling them to
explain any difficulties or
delays that they may encounter in doing so.
[74]
Nyathi
, above n 22 at para 85.
[75]
As set out above at [16].
[76]
As set out above at [17] to [18].
[77]
[1928] USSC 133
;
277 US 438
(1928) at 485.
[78]
Mohamed and Another v
President of the Republic of South Africa and Others (Society for
the Abolition of the Death Penalty in
South Africa and Another
Intervening)
[2001]
ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at para 68.