Municipal Manager OR Tambo District Municipality and Another v Ndabeni (CC) (unreported case no CCT 45/21, 14-2-2022)

The Constitutional Court (CC) had to discern whether a party is required to comply with a court order that it believes is a nullity in the matter of Municipal Manager OR Tambo District Municipality. The CC granted leave to appeal in the matter.

On 1 July 2005 the municipality employed Ms Ndabeni (the respondent) on a fixed-term contract for a year as a manager at the Aids Training Information and Counselling Centre (ATICC). Her contract was repeatedly renewed until 2014 when her services were terminated. On 30 January 2011 the municipality passed Resolution 10/11 to convert all contract employees to permanent employees. Resolution 10/11 was not applied to Ms Ndabeni. Aggrieved, Ms Ndabeni approached the High Court on 19 May 2015 for an order declaring her employment to be permanent.

On 4 July 2015, the municipal parties requested and obtained an extension from Ms Ndabeni to deliver their answering affidavit. A few days before their answering affidavit was due, the municipal parties applied in terms of the Uniform Rules of Court, to declare the proceedings irregular. On 5 April 2016, Ms Ndabeni applied to amend her notice of motion. Once Ms Ndabeni opposed the r 30 application, the municipal parties abandoned it. Leave to appeal to amend her notice was granted on 25 October 2016 by consent.

Still the municipal parties failed to deliver their answering affidavit. Notwithstanding the long delay since 2015, at the hearing before the High Court on 13 December 2016, the municipal parties formally applied for an adjournment for two weeks to file their answering affidavit. The primary reason advanced for the adjournment was that the municipal parties could provide witnesses to their attorneys while the municipality was under audit between 25 October and 1 December 2016. Ms Ndabeni opposed the application for the adjournment. Considering that the application had been launched in May 2015, the High Court refused the adjournment. The matter then proceeded unopposed. The High Court granted an order in favour of Ms Ndabeni.

That order, henceforth referred to as the ‘Mjali J order’, read as follows:

‘1. The applicant is hereby declared the permanent employee of the first respondent in her capacity as the Manager at Aids Training Information and Counselling Centre 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;

2. The post referred to as AIDS Training Information and Counselling Centre Manager (ATICC) previously occupied by the applicant is hereby declared a permanent post in line with Resolution No. 10/11 of 30 January 2011;
3. The respondents are directed to pay the costs of this application jointly and severally one paying the other to be absolved from liability on an attorney and own client scale;
4. The first respondent be ordered to pay the applicant’s salary and other benefit, retrospectively from the date upon which such payments cease; and
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.’

On 22 March 2018, the High Court refused leave to appeal. Belatedly and unsuccessfully, the municipal parties petitioned the Supreme Court of Appeal (SCA). After 30 July 2018, when the SCA refused the petition, the municipal parties remained inert. Allegedly, they received the order from the SCA late. According to the CC, after delays in securing counsel, further delays were encountered in getting papers back from counsel to apply for leave to appeal to the CC. The CC said that by January 2019, having missed the opportunity to seek leave to appeal to it, the municipal parties decided to abandon their application. The CC pointed out that municipal parties alleged that it would have been in the interest of justice to comply with the Mjali J order. But they did not.

On 1 February 2019, Ms Ndabeni applied to the High Court to hold the municipal parties in contempt of the Mjali J order and have imprisoned the erstwhile municipal manager, Owen Ngubende Hlazo. Ms Ndabeni alleged that the employment had been unlawfully terminated, and in terms of the Mjali J order, she was entitled to be treated as a permanent employee. Mbenege JP issued a rule nisi, calling on –

‘(a) The municipal manager to show cause why his conduct in failing to comply with the Mjali J order should not be declared unlawful and in contempt of that judgment;

(b) The municipal parties to show cause why they should not be directed to purge their contempt; and

(c) The municipal manager to show cause why he should not be committed to jail for contempt and directed to pay costs on an attorney and client scale’.

On the return day, the municipal parties and their attorney alleged that they became aware of the order of the SCA only on 19 November 2018 due to their change of e-mail address. Ms Ndabeni successfully refuted this allegation by proving that the order had been served physically by the sheriff on the municipal manager on 13 September 2018 and on the municipality on 11 October 2018. The CC said that almost four years passed since the litigation started. Only then did it dawn on the erstwhile municipal manger that implementing the order when there was no post on the staff establishment would result in him being liable for irregular and wasteful expenditure, in terms of s 66(5) of the Local Government: Municipal Systems Act 32 of 2000 (System Act).

The CC added that seemingly, the erstwhile municipal manager awakened to his responsibilities only when he was at risk of being held personally liable. To defend themselves, the municipal parties contended in their answering papers that the Mjali J order was nullity that could be disregarded with impunity. The CC said the first point of departure was whether the Mjali J order was a nullity. The second point was whether Griffiths J’s reliance on Motala was appropriate. The majority answered both questions in the negative. The third point was whether the municipal parties had acted mala fide in failing to comply with the Mjali J order. While the minority agreed with Griffiths J’s interpretation of s 66 of the System Act, the majority described the municipal parties’ reliance on that section as a ‘ruse’. The majority proceeded to hold the municipal parties to be in contempt of the Mjali J order and ordered them to purge their contempt.

The CC pointed out that the fourth minority decided to confirm all but para 2 of the Mjali J order. The majority found the terms of para 2 of the order to be overboard to the extent that they in effect created a permanent post in the municipality’s staff establishment, when the power to do so was the exclusive preserve of the municipal council. The minority agreed with the majority on this aspect but went to add that there was ‘no valid basis to distinguish between paragraphs 1 and 2 of [the Mjali J] order’.

The CC said that the primary issue is whether the municipal parties should be compelled to comply with the Mjali J order. The CC added that, that would depend on whether the Mjali J order is a nullity and, therefore, unenforceable. Then, would a special order for costs against the municipality be justified? The secondary issue is whether the municipal parties are in contempt of the Mjali J order and whether they should be required to purge such contempt. The CC said that it is not self-evident from a reading of Resolution 10/11 that it is inconsistent with s 66(1) of System Act. Section 66(1) obliges a municipal manager to ‘develop a staff establishment for the municipality’, ‘within a policy framework determined by the municipal council and subject to any applicable legislation’, ‘and submit the staff establishment to the municipal council for approval’. Absent any evidence in the proceedings before Mjali J, Resolution 10/11 appears in both form and substances to provide the requisite policy framework.

The CC pointed out that s 66(3) of the System Act Provides: ‘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.’ Section 66(3) permits the applicant to be appointed, subject to the fulfilment of a condition. It is not self-evident from the legal material before Mjali J that the staff establishment did not provide for the employment of Ms Ndabeni. Proving this precondition fell on the municipal parties.

The CC said furthermore, the municipal parties failed to explain why they did not apply Resolution 10/11 to Ms Ndabeni. That if the plan was to transfer her to the Provincial Department of Health, that did not happen. She was left unemployed. The CC pointed out that disclosure of the plan to transfer Ms Ndabeni to the Provincial Department was made for the first time in the municipal parties’ affidavit claiming nullity of the Mjali J order, hence this plan was not before Mjali J. The CC added that coupled with the evidence about Ms Ndabeni’s employment with the municipality, Mjali J had jurisdiction to decide that the effect of Resolution 10/11 was to convert Ms Ndabeni’s status to that of a permanent employment. Once Mjali J had jurisdiction, her order could not be impugned as a nullity. The CC said whether the decision was right or wrong on the merits did not affect the binding force of the order unless it was set aside on appeal.

The CC said that the Mjali J order is not a nullity, that it is indeed a lawful order, issued by a properly constituted court having jurisdiction. The CC added that on the facts, this case falls squarely within the ambit of the ruling Tasima. The CC pointed out that all Ms Ndabeni was seeking was compliance by the municipal parties with the Mjali J order. That, consequently, it was not open to the majority to exclude para 2 of the High Court order. The CC having found that the Mjali J order was lawful, it said it must be complied with. The CC added that to give effect to the Mjali J order, the remaining grounds of appeal against the order of the SCA must be dismissed.

The CC granted the following cost:

‘Although the municipal parties escape being held in contempt, their dilatoriness, inertia and unaccountability must be viewed through the lens of the municipality’s heightened duty to comply with court orders. Organs of state, of which the municipality is one, are expressly enjoined to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”’. They have the obligations under the Constitution to respect the rule of law and the courts as guardians of the Constitution.

The CC said that if the municipal parties genuinely believed that the Mjali J order was nullity, then they had a public duty to pursue the appeal to correct the illegality. The CC added that by abandoning their appeal, they also forsook their obligation iterated in MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC)  to ‘do right, and . . . do it properly’. The CC said the municipal parties dragged Ms Ndabeni, an unemployed woman, through five courts over six years. While their litigation was at the expense of the public purse, Ms Ndabeni had to foot her own bills. The CC pointed out that the municipality as ‘the Constitution’s primary agent’ and employer of Ms Ndabeni had to do better.

The CC awarded a punitive costs order and included an order to give Ms Ndabeni leave to approach the High Court to facilitate her access to justice if the municipal parties failed with the order.

The following order was issued:

‘1. Leave to appeal is granted.

2. The appeal succeeds to the extent that paragraph 2(b) and (c) of the order of the Supreme Court of Appeal, which held the first and second applicants [Municipal Manager OR Tambo District Municipality and OR Tambo District Municipality] to be in contempt of the order of the High Court issued on 13 December 2016 (Mjali J order) and required them to purge such contempt, is set aside.
3. For the rest, the appeal is dismissed.
4. The first and second applicants are ordered to comply with the Mjali J order within 30 days of the order of this court.
5. The second applicant must pay to the respondent, Ms Nosipho Portia Ndabeni, the costs of this application on an attorney and client scale.
6. Ms Nosipho Portia Ngobeni is given leave to apply on the pleadings in this matter, supplemented as required, to a High Court having jurisdiction, to enforce this order’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (April) DR 23.