THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1066/2019
In the matter between:
NOSIPHO PORTIA NDABENI

APPELLANT

and

MUNICIPAL MANAGER:

OR TAMBO DISTRICT MUNICIPALITY
(OWEN NGUBENDE HLAZO)

FIRST RESPONDENT

OR TAMBO DISTRICT MUNICIPALITY    SECOND RESPONDENT

Neutral citation: Ndabeni v Municipal Manager: OR Tambo District
Municipality and Another (Case no 1066/19) [2021]
ZASCA 08 (21 January 2021)

Coram:
PETSE DP, ZONDI and DAMBUZA JJA and EKSTEEN and
POYO-DLWATI AJJA

Heard:
10 November 2020

Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and released to SAFLII. The date and time for hand-down
is deemed to be 09h45 on 21 January 2021.

Summary: Contempt of court proceedings – failure to comply with court
order – application for declarator to that effect – standard of proof required –
applicant for declarator required to prove non-compliance on a balance of
probabilities – once existence of court order, service thereof and non-
compliance established, respondent bears evidentiary onus to show that non-
compliance neither wilful nor mala fide – respondents failing to discharge
evidentiary onus.

ORDER

On appeal from: Eastern Cape Division of the High Court, Mthatha
(Griffiths J, sitting as court of first instance):

1.
The appeal is upheld with costs on an attorney and client scale.
2.
The order of the high court is set aside and replaced by the following:
‘(a)
The respondents’ conduct in failing to comply with the order of Mjali J
(save for para 2 thereof) issued on 13 December 2016 is declared unlawful.
(b)
The respondents are declared to be in contempt of the aforesaid order.
(c)
The respondents are ordered to purge the aforesaid contempt within 30 days
of the date of this order.
(d)
The respondents are ordered to pay the applicant’s costs on an attorney and
client scale’.

JUDGMENT

Poyo-Dlwati AJA (Petse DP and Zondi JA concurring):

[1] This appeal raises the question whether a court order issued by the
Eastern Cape Division of the High Court, Mthatha (the high court) (Mjali J)
declaring the appellant, Ms Nosipho Portia Ndabeni, a permanent employee
of the second respondent, the O R Tambo District Municipality, by virtue of
its resolution 10/2011 of 30 January 2011, was a nullity because its
implementation would constitute a contravention of s 66 of the Local
Government: Municipal Systems Act 32 of 2000 (the Municipal Systems
Act). This question arises against the following backdrop.

[2] The appellant was, pursuant to an advertisement in a local newspaper
of 11 March 2005, employed by the second respondent on a one-year contract
on 1 July 2005 as an Aids Training Information and Counselling Centre
Manager, later referred to as Senior Coordinator Manager. At the expiry of
the initial one year period, her contract was renewed from time to time until
30 January 2011 when the second respondent took a resolution1 to convert all
its contract employees to permanent employees. For unknown reasons, the
appellant was excluded from benefiting from this resolution. The appellant
tried, to no avail, to have her exclusion resolved amicably. With the matter
remaining unresolved, the appellant then launched an application in the high

1 Resolution 10/11, this resolution was not attached to the papers, but its existence was never disputed. It is
not in dispute that the purport of the resolution was to convert all temporary positions to permanent ones.

court pursuant to which an order in the following terms was granted on 13
December 2016 by Mjali J:
‘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 10/11 of 30th 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 10/11 of 30th 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 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; 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’.

[3] It is apposite at this stage to mention that the application before Mjali J
was unopposed as the respondents had not filed any answering affidavits
despite having been placed on terms to do so. On the day on which the matter
served before Mjali J for hearing, the respondents applied for an adjournment
to enable them to file their answering affidavits. The respondents’ application
for adjournment was opposed by the appellant and refused by the learned
Judge. The hearing proceeded without the respondents. After hearing
argument, the high court granted the order mentioned in the preceding
paragraph. The learned Judge subsequently refused the respondents’
application for leave to appeal. A further application for leave to appeal to this
Court, which was brought out of time, also suffered the same fate.

[4] It is apparent from the record that the respondents were intent on
lodging an application for leave to appeal to the Constitutional Court but,
when they realised that their envisaged application to that Court would have
been woefully out of time by some nine months, the intended application was
abandoned. According to the appellant, this Court’s order refusing leave to
appeal was served on the respondents on 30 July 2018. Despite their
knowledge of the two orders refusing leave and Mjali J’s order of 13
December 2016, the respondents still failed to comply with the latter order.
This led to the appellant launching a contempt of court application on 1
February 2019, as she viewed the respondents’ failure to comply with Mjali
J’s order as contempt of court and therefore unlawful. On 19 February 2019,
Mbenenge JP issued a rule nisi calling upon the respondents to show cause
why they should not be held in contempt of the Mjali J’s order.

[5] The respondents opposed the application on various grounds. In their
opposition, they never denied the existence of the order and that the order had
been served on them. Their main grounds of opposition, in summary, were
that employing the appellant would result in a portion of the funds meant to
finance the second respondent’s service delivery initiatives being diverted to
pay the appellant’s salary. This, asserted the respondents, would be the case
because the appellant’s position was not provided for in the second
respondent’s staff establishment. Furthermore, the respondents contended that
the first respondent, the municipal manager would have to enter into an
employment contract under circumstances where doing so would, in terms of
subsecs (3) and (4) of s 66 of the Municipal Systems Act, be null and void.2For

2 Section 66 of the Municipal Systems Act in relevant parts provides:

his part, the first respondent asserted that employing the applicant in those
circumstances would expose him to serious repercussions as he would be held
liable for any resultant irregular or fruitless and wasteful expenditure.
Consequently, the respondents denied that their non-compliance with the
Mjali J’s order was wilful and mala fide.

[6] In due course, the application for contempt of court came before
Griffiths J. At this hearing the appellant expressly abandoned any relief for
criminal contempt against the first respondent. Thus, the only issues for
determination were: whether the respondents’ conduct, in failing to comply
with the court order, was unlawful; and whether the respondents were indeed
in contempt of the Mjali J’s order.  After hearing the application, which was
by then opposed, Griffiths J discharged the rule nisi. In so doing, the learned
Judge held:
‘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

‘(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 processor mechanism to regularly evaluate the staff establishment and, if necessary, review
the staff establishment and the remuneration and conditions of service.
. . .
(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).

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 nullity3’.

[7] Dissatisfied with this outcome, the appellant applied for and was
granted leave to appeal to this Court. As already indicated, the existence of
the order and its service on the respondents were not in dispute and, for the
reasons set out later, its validity is unassailable. Consequently, the respondents
bore the evidentiary burden to satisfy the high court that their failure to
comply with the Mjali J’s order was neither wilful nor mala fide.4

[8] The logical starting point in this matter is the Constitution5 itself.
Section 165(5) of the Constitution provides that an order or decision issued
by a court binds all persons to whom and organs of state to which it applies.
There is no doubt that court orders, once issued, are binding and must
therefore be complied with. As Madlanga J explained in Moodley v Kenmont
School and Others6( para 36):
‘I cannot but again refer to section 165(5) of the Constitution which provides that “[a]n
order or decision issued by a court binds all persons to whom and organs of state to which
it applies”. This is of singular importance under our constitutional dispensation which is
founded on, amongst others, the rule of law. The judicial authority of the Republic vests in
the courts. Thus, courts are final arbiters on all legal disputes, including constitutional
disputes. If their orders were to be obeyed at will, that would not only be “a recipe for a
constitutional crisis of great magnitude”, “[i]t [would] strike at the very foundations of the
rule of law” and of our constitutional democracy’. (Footnotes omitted.)

3 Ndabeni v Municipal Manager and Another [2019] ZAECMHC 28 para 34.
4 See Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 SCA.
5 The Constitution of the Republic of South Africa Act 108 of 1996.
6 Moodley v Kenmont School and Others [2019] ZACC 37; 2020 (1) SA 410 (CC); 2020 BCLR 74 (CC).

[9] It is trite that ‘an order of a court of law stands until set aside by a court
of competent jurisdiction. Until that is done the court order must be obeyed
even if it may be wrong.’7 This principle was affirmed most recently by this
Court in Whitehead and Another v Trustees of the Insolvent Estate of Dennis
Charles Riekert and Others.8 Whilst counsel for the appellant sought to attack
the competency of Griffiths J in setting aside Mjali J’s order as a nullity, this
was not pursued with any vigour before us, correctly so in my view. Nothing
prevented Griffiths J from declaring the order a nullity, had his reasons for
doing so been correct. He had the necessary jurisdiction and authority to do
so. However, as will be demonstrated below, in the context of the facts of this
case, the learned Judge erred in doing so.

[10] In finding Mjali J’s order to be a nullity, the high court  accepted the
respondents’ explanation that they encountered difficulties in implementing
the order because what was required of them  would be in contravention of
subsecs (3) and (4) of s 66 of the Municipal Systems Act. In reaching its
conclusion, the high court had regard to  the decisions of this Court in Master
of the High Court (North Gauteng High Court, Pretoria) v Motala NO and
Others9 and Minister of Rural Development and Land Reform v Normandien
Farms (Pty) Ltd and Others10; as well as the decision of the Constitutional
Court in Department of Transport and Others v Tasima (Pty) Ltd.11 Also, after
analysing the provisions of s 66 (3) and (4), the high court found that ‘the

7 Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 229B-C.
8 Whitehead and Another v Trustees of the Insolvent Estate of Dennis Charles Riekert and Others [2020]
ZASCA 124 para 18.
9 Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others [2011] ZASCA
238; 2012 (3) SA 325 (SCA).
10 Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and Others; Mathimbane
and Others v Normandien Farms [2017] ZASCA 163; [2018] 1 All SA 390 (SCA); 2019 (1) SA 154 (SCA).
11 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017
(2) SA 622 (CC).

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’.

[11] The high court further held that once such staff establishment has been
so developed, subsec (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 for the staff establishment so developed. True, subsec (4) declares
that any contract concluded in the circumstances is null and void if the
appointment was made in contravention of subsec (3). The imperative nature
of the prohibition in subsec (3) is reinforced by subsec (5).12 It is manifest that
this section holds any person who takes a decision contemplated in subsec (4)
personally liable for fruitless and wasteful expenditure that a municipality
may incur as a result of the invalid appointment.

[12] The learned Judge proceeded to hold that in his view, the situation in
this matter was directly analogous to that which obtained in Motala. Having
found that paragraphs 33-35 of the answering affidavit (which dealt with the
factual basis for the contention that no such post as referred to in Mjali J’s
order existed in the staff establishment) do not fall to be struck out and thus
remain unchallenged by the applicant, he held that the prohibition in subsec
(3) was squarely applicable. He further found that the only conclusion that he
could reach was that Mjali J was not empowered to grant the order which she

12 Section 66(5) of the Municipal Systems Act provides that any person who takes a decision contemplated
in subsec (4), knowing that the decision is in contravention of subsec (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.

did and that it was, in the circumstances, a nullity. In my view, this conclusion
is insupportable.

[13] As this Court held in Motala (para 14):13
‘[I]n 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: “[i]t 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”.’

[14] It bears emphasis that the facts in Motala are materially distinguishable
from those of the present case. There, the high court was found to have
impermissibly appropriated to itself a statutory power that vested exclusively
in the Master of the High Court by virtue of s 429 of the Companies Act 61
of 1973 therein under consideration. However, in this case the issue is factual,
did Mjali J order the respondent to ‘employ’ the appellant or merely declare
that she is in fact employed. Section 66 of the Municipal Systems Act deals
with staff establishment within the sphere of local government. Subsections
(3) and (4) of s 66 of the Municipal Systems Act deal with employment by a
municipality. Mjali J’s order, properly construed, did not, in my view, have

13 See fn 9 above.

the effect of employing the appellant, contrary to what the high court found.
All it did was to declare that the appellant was equally a member of the class
of temporary employees targeted by resolution 10/11. Accordingly, there was
no basis to exclude her from the resolution’s ambit.

[15] Before us the high court’s finding that the Mjali J’s order had the effect
of employing the appellant was enthusiastically embraced by the respondents.
It suffices merely to state that the respondents’ reliance on this finding is
misplaced. The truth of the matter is that all that Mjali J did was simply to
issue a declaratory order pursuant to resolution 10/11 of the second
respondent’s Council which converted all its contract employees into
permanent employees. Put differently, she declared that the appellant’s
employment had been converted from contract to permanent employment. As
previously mentioned, the existence of the Council’s resolution was never
disputed by the respondents.

[16] Curiously, the respondents elected not to take the high court into their
confidence and explain to the high court how this resolution was to be
implemented and why it was never applied to the appellant. Despite the fact
that the resolution concerned was their document, it was not placed before the
high court. Nor was its absence explained by the respondents. Accordingly, it
does not avail the respondents to contend that there was no position for the
appellant in their staff establishment. The Council had passed a resolution in
terms of which all temporary positions were converted into permanent
positions. What then remained was for the first respondent to implement
resolution 10/11 and revise the second respondent’s staff establishment to
align it with such resolution. But lo and behold the high court was not told

why this resolution was not implemented, given that there has been no
suggestion that it was subsequently varied or rescinded. It is necessary to
emphasize that the provisions of s 66 of the Municipal System Act,
erroneously thought by the high court to be an insurmountable hurdle for the
appellant, were clearly not applicable. This must be so because one is here not
dealing with a decision to employ the appellant but rather the implementation
of the second respondent’s resolution in so far as it related to temporary
employees, and, in particular, the appellant.

[17] Furthermore, there was no genuine dispute of fact that when Council
took resolution 10/11 the appellant was a contract employee in the second
respondent’s employ. As it was put in Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another:14
‘When the facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing evidence) if they
be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial
the court will generally have difficulty in finding that the test is satisfied’.

[18] Moreover, there was no dispute about the existence or correctness of
the Council resolution itself. In any event as this Court held in Manana v King
Sabata Dalindyebo Municipality:15
‘No doubt a municipal council is entitled to rescind or alter its resolutions. And no doubt
an interested party is entitled to challenge its validity on review. But once a resolution is
adopted, in my view, its officials are bound to execute it, whatever view they might have

14 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; [2008] 2 All SA
(SCA); 2008 (3) SA 371 (SCA) para 13.
15 Manana v King Sabata Dalindyebo Municipality [2010] ZASCA 144; [2011] 3 All SA 140 (SCA); [2011]
3 BLLR 215 (SCA) para 22.

on the merit of the resolution, in law or otherwise, until such time as it is either rescinded
or set aside on review’.
There was also no evidence that as at January 2011, when the resolution was
taken, the appellant’s position was not on the staff establishment. The
organogram attached to the first respondent’s answering affidavit was
unhelpful as it was not dated and there was no averment as to when it was
adopted or approved by the second respondent.

[19] Inexplicably, the respondents sought to dispute that the appellant was
ever employed by them. But this contrived denial was at variance with what
the respondents themselves averred in their answering affidavit in the
contempt application in which they set out details of the salary that was paid
to the appellant before the termination of her employment in 2014. In any
event, in the absence of any cogent explanation from the respondents one can
safely conclude that prior to the appellant’s position being advertised in March
2005, her post must have been in the second respondent’s staff establishment
hence the need for that post to be filled. She was then employed on a year to
year basis for an extended period and occupied that position until 2014 when
her services were, without rhyme or reason, summarily terminated.

[20] This then brings me to the crux of this appeal. In essence, this appeal
pertinently raises the question whether the respondents discharged their
evidentiary duty that their non-compliance with the Mjali J’ order was neither
wilful nor mala fide. In determining this issue, the high court said the
following (para 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’.

[21] The deponent to the second respondent’s answering affidavit resisting
the contempt of court proceedings stated the following in paragraph 37.2:
‘I as the second respondent have deliberately refused to give effect to the order. In this
regard, I refer this court to my allegations under the rubric reasons for non-
compliance.’(My emphasis.)
In their reasons for non-compliance, the respondents, in essence, stated that
the appellant’s employment was hit by the prohibition contained in s 66(3)
and (4) of the Municipal Systems Act to which reference has already been
made above.

[22] The question here is not whether or not s 66 applies, but whether the
first respondent believed that it applied. The high court found that he believed
that it prevented him from giving effect to the order. The reason, it seems to
me, why his explanation cannot be accepted is that both Mjali J and this Court
had already given consideration to the reasoning in the high court judgment
and found there to be no prospects on appeal. Accordingly, the respondents’
reliance on s 66 is no more than a ruse employed to justify their misguided
attempts not to implement resolution 10/11 which, in the absence of evidence
to the contrary, must be taken to be still of force and full effect. In these
circumstances, the high court should have found that the respondents dismally

failed to discharge the evidentiary onus resting on them that their non-
compliance with the Mjali J’s order was neither wilful nor mala fide.
[23] As I have said, the respondents have provided no explanation for their
failure to apply resolution 10/11 to the appellant. This grave omission leaves
a huge void in the respondents’ case. And this void ineluctably leads to one
conclusion, namely that the respondents failed to discharge the evidentiary
burden that they bore.

[24] The final issue to consider is whether this Court should confirm the
Mjali J’s order in its entirety without falling foul of usurping a power that it
does not have. As discussed above, paragraph 1 of that order is in line with
Council’s resolution 10/11. Paragraphs 4 and 5 are consequential to paragraph
1. Insofar as paragraph 2 is concerned, different considerations apply. In my
view, the terms of paragraph 2 are overbroad to the extent that they in effect
create a permanent post in the second respondent’s staff establishment when
the power to do so is an exclusive preserve of a municipal Council. Thus, to
that limited extent paragraph 2 of the Mjali J’s order falls to be deleted.

[25] Before making the order, it has unfortunately become necessary to
comment on the way the respondents conducted this litigation. The second
respondent is an organ of State. Accordingly, it was duty bound to conduct
itself in an exemplary manner. For as Cameron J pointed out in Merafong City
v Anglogold Ashanti Ltd:16
‘This court has affirmed as a fundamental principle that the state “should be exemplary in
its compliance with the fundamental constitutional principle that proscribes self-help”.

16 Merafong City v Anglogold Ashanti Ltd [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017 (2) SA 211
CC para 61.

What is more, in Khumalo this court held that state functionaries are enjoined to uphold
and protect the rule of law by inter alia seeking the redress of their departments’ unlawful
decisions. Generally, it is the duty of a state functionary to rectify unlawfulness. The courts
have a duty “to insist that the state, in all its dealings, operate within the confines of the
law and, in so doing, remain accountable to those on whose behalf it exercises power”.
Public functionaries “must, where faced with an irregularity in the public administration,
in the context of employment or otherwise, seek to redress it”. Not to do so may spawn
confusion and conflict, to the detriment of the administration and the public’.

[26] Although these remarks were made in a different context, in my view,
by parity of reasoning they apply with equal force in the circumstances of this
case. The lackadaisical manner in which the respondents conducted this
litigation warrants a punitive costs order against them. They dragged the
litigation unnecessarily to the detriment of the appellant. Almost all their
responses to the appellant were preceded by an application for condonation
for the late filing of their documents. They were not candid with the court and
provided information scantily. They did nothing for at least nine months until
the appellant launched the contempt application. This must be frowned upon
by this Court in line with what was said by Cameron J in Merafong.

[27] In the result, the following order is made:
1.
The appeal is upheld with costs on an attorney and client scale.
2.
The order of the high court is set aside and replaced by the following:
‘(a)
The respondents’ conduct in failing to comply with the order of Mjali J
(save for para 2 thereof) issued on 13 December 2016 is declared unlawful.
(b)
The respondents are declared to be in contempt of the aforesaid order.
(c)
The respondents are ordered to purge the aforesaid contempt within 30 days
of the date of this order.

(d)
The respondents are ordered to pay the applicant’s costs on an attorney and
client scale’.

________________________
T P POYO-DLWATI
ACTING JUDGE OF APPEAL

Dambuza JA (Eksteen AJA concurring):

[28] I have had the benefit of reading the judgment (main judgment) penned
by my colleague Poyo-Dlwati AJA. Regrettably, I am unable to agree with
my colleague’s reasoning and conclusion. In my view the court a quo was
correct in concluding that the order of 13 December 2016 was a nullity and
that, on the evidence before it, no finding of wilfulness or mala fides could be
made against the respondents.

[29] With regard to the validity of the order, the basis for the conclusion, in
the main judgment, that the court order of 13 December 2016 was not a nullity,
is that the judge neither ordered the respondents to employ the appellant nor
declared her to be employed by the second respondent. The order was merely
a declarator that ‘the appellant was equally a member of the class of temporary
employees targeted by resolution 10/11’. For these reasons, the provisions of
s 66(3) and (4) of the Municipal Systems Act were not applicable in this case.

[30] The reasons for my disagreement on this issue are that, by all accounts,
when the order of 13 December 2016 was granted, the appellant was not a
permanent employee of the second respondent municipality. The crux of her
case before Mjali J was that the municipality should have employed her as a
permanent employee in 2011 or as per Council Resolution 10/11. In finding
in her favour, Mjali J granted an order declaring that: (a) she was a permanent
employee of the first respondent, (b) employed in a specific post,17 (c) the post
in which she was employed was a permanent post’, and (d) any contrary
conduct or action taken by the respondents was a nullity. The respondents
were ordered to implement the terms of the order. The court order was
therefore not a mere restatement of Council Resolution No. 10/11; it exceeded
the terms of the resolution, in as far as they were set out by the applicant, by
far. In this regard I find no valid basis to distinguish between paragraphs 1
and 2 of the order. Each of these paragraphs impermissibly created a specified
permanent post in the second respondent’s staff establishment.

[31] The respondents’ explanation that they were prohibited from
employing a person unless the position to which he or she was being employed
was provided for in the staff establishment, was a relevant response to the
allegation of failure to comply with the order, and was consistent with the
provisions s66 of the Municipal Systems Act on which they relied.
Importantly, their assertion that the position specified in the order was not
provided for in the staff establishment of the municipality was not disputed,
as the court a quo found.

17 As ‘the Manager at Aids Training Information and Counselling Centre – ATICC . . .’.

[32] The court a quo considered that the respondents’ answer, including an
organogram of the municipal staff establishment, which was annexed to their
answering papers, had never been considered by Mjali J before she granted
the order of 13 December 2016, and this court when it considered the
respondents’ application for leave to appeal. It found that the factual basis on
which the contention pertaining to the municipal staff establishment was
based, was never disputed by the appellant. In any event the issue fell to be
decided on the respondents’ version.

[33] The court a quo then went on to consider the provisions of s66 of the
Municipal Systems Act which provide that:
‘66
Staff Establishment–
(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 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
(c) 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’.

[34] It interpreted s66 of the Municipal Systems Act to mean that:
‘. . . the determination of 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 [o]n the part of any person who takes a decision as contemplated in subsection (4)
for fruitless and wasteful expenditure’.

[35] I agree with this interpretation of s 66. I also agree that the order of
13 December 2016, considered against the background that the staff
establishment was the preserve of the first respondent, is comparable to the
order granted by the high court in Motala which was declared a nullity by this
court.

[36] To put the matter beyond doubt, the court a quo went further to find
that even if the order had not been a nullity, and there had been an obligation
on the respondents to comply with it, it could not be said that the first
respondent acted wilfully or mala fide in failing to do so. This is because, as
the court found, he sincerely believed that his understanding of s66 of the
Municipal Systems Act was correct. There can be no basis for rejecting the
respondent’s explanation as unreasonable, let alone, mala fide.

[37] In Fakie v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) the test for
when non-compliance with a civil court order constitutes contempt of court
was stated as follows:
‘The test for when disobedience of a civil order constitutes contempt has come to be stated
as whether the breach was committed “deliberately and mala fide”. A deliberate disregard
is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or
herself entitled to act in the way claimed to constitute the contempt. In such a case good
faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may

be bona fide (though unreasonableness could evidence lack of good faith)’. (Footnotes
omitted.)

[38] The deliberate refusal by the respondents to give effect to the terms of
the order was in the sense referred to by this court in Fakie. The non-
compliance in this case was not driven by a deliberate and intentional violation
of the court’s dignity, repute or authority.18

[39] I do agree, however, with the criticism of the shoddy manner in which
the respondents prosecuted their case in the original application in the high
court.19 This had the effect that issues were not properly ventilated as
timeously as they could have been. And the order of 13 December 2016 might
have turned out differently had they acted diligently. Nevertheless, that does
not detract from the illegal nature of the order as it is presently, and from the
validity of the defence raised by the respondents in the contempt application.
For these reasons I would have dismissed the appeal with costs.

N DAMBUZA
JUDGE OF APPEAL

18 Fakie para 10.
19 Paras 3 and 4 of the main judgment.

Appearances:

For appellant:
V Kunju
Instructed by:
Keightley Sigadla Incorporated, Mthatha
Christo Dippenaar & Crous Attorneys, Bloemfontein

For respondents: A M Bodlani

Instructed by:
Sakhela Incorporated, Mthatha

Eugene Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:            21 January 2021
Status:          Immediate

Nosipho
Portia
Ndabeni
v
The
Acting
Municipal
Manager:
(OwenNgubende Hlazo)- O R Tambo District Municipality and Another
(1066/2019) ZASCA 08 (21 January 2021)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (the SCA) today upheld an appeal against the
decision of the Eastern Cape Division of the High Court, Mthatha which held
that the respondents were not in wilful contempt of the order previously
granted by Mjali J on 13 December 2016.

The appellant was employed as a contract employee by the O R Tambo
District Municipality (the second respondent) in July 2005. In January 2011
the second respondent's municipal council adopted a resolution to convert all
its contract employees to permanent employees. The appellant was part of a
group of temporary employees. For unknown and unexplained reasons, the

appellant was excluded from the implementation of this resolution. Aggrieved
by her exclusion, the appellant then launched an application in the Mthatha
Division of the High Court (the high court) against the municipal manager, as
first respondent, and the second respondent to enforce the operation of the
resolution. The high court granted the order in terms of which the appellant
was declared the second respondent's permanent employee together with other
ancillary relief. This, after the respondents failed to file their answering
affidavits timeously. The respondents' application for leave to appeal was
refused by the high court and so was their petition for leave to appeal to the
SCA.

When the respondents failed to comply with the court order, the appellant
launched contempt of court proceedings against the respondents which were
opposed by the latter. In resisting the application, the respondents explained
that their non-compliance with the court order was neither wilful nor mala fide
because complying with the court order would be in contravention of s 66 of
the Municipal Systems Act 32 of 2000. Section 66 prescribes that no one
should be employed by the municipality unless their post is in the staff
establishment of the municipality. The high court agreed with the respondents
and declared the earlier court order a nullity for these reasons. With the leave
of the high court, the appellant subsequently appealed against that decision to
the SCA.

The majority judgment of the SCA held that the court order of
13 December 2016 did not have the effect of employing the appellant but
rather, in accordance with the municipal resolution of 2011, declared her a
permanent employee. It held, therefore, that the provisions of s 66 of the
Municipal Systems Act were not applicable and the court order in issue was
not a nullity. It also held that the respondents' non-compliance was wilful and
mala fide as they failed to discharge the evidentiary burden resting on them.
And that their silence in not explaining why the appellant was not permanently
employed pursuant to the resolution was deafening. A punitive cost order was
granted against the respondents to mark the SCA's displeasure for the shoddy
manner in which they conducted the litigation.

The minority judgment agreed with the high court that the court order
concerned was a nullity as the contention that the appellant's post was not in
the municipality's staff establishment was not disputed. It also found that the
order as it stood created a post for the appellant, something which was the
preserve of the municipal council. Therefore the court was usurping powers it

did not have, hence the order was a nullity. It further held that the respondents
were not wilful and mala fide in their non-compliance as they honestly
believed that compliance with the court order would be in contravention of s
66 of the Municipal Systems Act. The minority, however, agreed with the
punitive costs order against the respondents.

The SCA therefore set aside the order of the high court declaring the order of
13 December 2016 a nullity. Instead, it declared the respondents' conduct in
failing to comply with such an order to be unlawful. Hence the appeal was
upheld.