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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

CASE NO: 13020/17P

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS                                                                                 Applicant

and

THE NQUTHU MUNICIPALITY                                                                   First Respondent

THE COUNCIL OF NQUTHU MUNICIPALITY                                         Second Respondent

BONGINKOSI PAUL GUMBI                                                                         Third Respondent

WELCOME SAKHILE MPANZA                                                                  Fourth Respondent

MPUMELELO BALDWIN JIYANE                                                               Fifth Respondent

 

J U D G M E N T

 

Y.N. MOODLEY AJ:

 

[1]        The applicant, the Member of the Executive Council for Co-operative Governance and Traditional Affairs, brought an application against the respondents to enforce an order granted by this court per Madam Acting Justice Mahabeer on 28 November 2017 and in terms of the judgment and order granted by Goven J on 12 August 2019. The first respondent is the Nquthu municipality, a municipality duly established in terms of the Local Government Municipal Structures Act 117 of 1998; the second respondent is the Council of the Nquthu Local Municipality; the third respondent is Bonginkosi Paul Gumbi who had been appointed as the municipal manager of the first respondent; the fourth respondent is Welcome Sakhile Mpanza, the Chief Financial Officer of the first respondent; and the fifth respondent is Mpumelelo Baldwin Jiyane who was appointed as the Director: Planning and Economic Development Services of the first respondent.

[2]        The background to this application can be summarised as follows:

[2.1]     The applicant brought an application against the respondents on 16 November 2017 (hereinafter referred to as the ‘interdict proceedings’);

[2.2]     The interdict proceedings came before Mahabeer AJ on 28 November 2018. After being called the matter stood down and pursuant to discussions between the parties’ legal representatives it was decided to effect certain manuscript amendments to paragraph 2 of the original notice of motion which was framed in the form of a rule nisi with a view to taking a consent order. After the amended order was given to Mahabeer AJ, she further amended the order by inserting a paragraph therein reserving the costs. Mahabeer AJ then signed the order and dated it 28 November 2017. She also ticked those paragraphs which she granted and marked a cross against those paragraphs which she did not grant. The order which she appears to have granted was in the terms set out hereunder. I have put the manuscript insertions and alterations in italics and have underlined them and shall refer to this order as the manuscript order. The manuscript order reads as follows:

 

“1.        This matter be heard as one of urgency in terms of Rule 6 (12) and that the forms and services provided in Rule 6 (5) be and are hereby dispensed with.

 

2.         A rule nisi be and is hereby issued calling upon Respondents to show cause, if any, before this court sitting at Pietermaritzburg on the (29) day of (January) 2018 at 09h30 or so soon thereafter as Counsel may be heard, why an order in the following terms should not be granted:-

 

(a)        That the Respondents be and are hereby directed to take any such steps as may be necessary to provide the Applicant with outstanding information required by her with regard to the renewal of the Third, Fourth and Fifth Respondents’ contracts of employment, to be supplied in terms of the Local Government: Municipal Systems Act 32 of 2000 and the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers, 2014, being –

 

(i)         Copies (of) immediate prior employment contracts concluded between the Third, Fourth and Fifth Respondents and the First Respondent;

(ii)         Details of the current applicable remuneration packages of the Third, Fourth and Fifth Respondents;

(iii)        Copies of the competency assessment reports for the Third, Fourth and Fifth Respondents;

(iv)        Copies of the screening reports for the third, Fourth and Fifth Respondents; and

(v)        Copies of the performance reports for the Third, Fourth and Fifth Respondents for 2013/14, 2014/15, 2015/16.

(within 14 days of the date of this order failing which paragraph 2 (b) will apply.)

 

(b)        That the renewal of the Third, Fourth and Fifth Respondents’ contracts of employment with the First Respondent be and is hereby suspended in whole pending the provision of the aforegoing information and demonstrating compliance with the provisions of the Local Government: Municipal Systems Act 32 of 2000 and the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers, 2014, failing which, pending the final determination of review proceedings to be initiated by the Applicant within 60 days of receipt of the information referred to in paragraph (a) above.

(c)        That in the event of any Respondent opposing this application that that Respondent be ordered to pay the costs hereof and jointly and severally with any other opposing Respondent.

 

3.         That pending the final determination of this application the provisions of paragraphs 2 (a) and (b) above shall operate as a temporary order forthwith.

           

5.         The costs of the argument on 28th of November 2017 are reserved.”

[2.3]     The date ‘29’ and ’January’ and the word ‘of’ are in the handwriting of Mr AJ Dickson SC who appeared for the applicant. The words ‘within 14 days of the date of this order failing which paragraph 2 (b) will apply.’ is in the handwriting of Mr L. Broster SC. The words ‘The costs of the argument on 28^th of November 2017 are reserved.’ are in the handwriting of Mahabeer AJ.

 

[2.4]     For some unknown reason which the parties and legal representatives are unable to fathom or for that matter agree upon, when the order was typed in the registrar’s office the abovementioned words inserted by Mr Broster SC formed part of the order granted under paragraph 2 (a) (v) and not the whole of paragraph 2 (a) and further the manuscript words “paragraph 2 (b)” appearing in paragraph 2(a)(v) were replaced with the typed words “paragraph 2 (a)”. Accordingly, the order issued by the registrar on 30 November 2017 was in the following form:

 

“IT IS ORDERED (BY CONSENT) THAT:

 

1.         This matter be heard as one of urgency in terms of Rule 6 (12) and that the forms and services provided in Rule 6 (5) be and are hereby dispensed with.

 

2.         A rule nisi be and is hereby issued calling upon Respondents to show cause, if any, before this court sitting at Pietermaritzburg on the 29th day of January 2018 at 09h30 or so soon thereafter as Counsel may be heard, why an order in the following terms should not be granted:-

 

(a)        That the Respondent be and are hereby directed to take such steps as may be necessary to provide the Applicant with outstanding information required by her with regard to the renewal of the Third, Fourth and Fifth Respondents’ contracts of employment, to be supplied in terms of the Local Government: Municipal Systems Act 32 of 2000 and the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers, 2014, being –

 

(i)         Copies of the immediate prior employment contracts concluded between the Third, Fourth and Fifth Respondents and the First Respondent;

 

(ii)         Details of the current applicable remuneration packages of the Third, Fourth and Fifth Respondents;

 

(iii)        Copies of the competency assessment reports for the Third, Fourth and Fifth Respondents;

           

(iv)        Copies of the screening reports for the Third, Fourth and Fifth Respondents; and

 

(v)        Copies of the performance reports for the Third, Fourth and Fifth Respondents for 2013/14, 2014/15, 2015/16. Within 14 days of the date of this order failing which paragraph 2 (a) will apply.

 

(b)        That the renewal of the Third, Fourth and Fifth Respondents’ contracts of employment with the First Respondent be and is hereby suspended in whole pending the provision of the aforegoing information and demonstrating compliance with the provisions of the Local Government: Municipal Systems Act 32 of 2000 and the Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers, 2014, failing which, pending the final determination of review proceedings to be initiated by the Applicant within 60 days of receipt of the information referred to in paragraph (a) above.

 

(c)        That in the event of any Respondent opposing this application that that Respondent be ordered to pay the costs hereof and jointly and severally with any other opposing Respondent.

 

3.         Pending the final determination of this application the provisions of paragraphs 2 (a) and (b) above shall operate as a temporary order forthwith.

           

4.         The costs of the argument on 28th of November 2017 are reserved.” 

 

 

[2.5]     On 1 December 2017, the order issued by the registrar was sent to the respondents’ attorneys under cover of a letter which inter alia stated that the renewal of the employment contracts of the third, fourth and fifth respondents were suspended pending the provision of the information requested and a request was made for such information[1].

 

[2.6]     According to the applicant, after numerous attempts to obtain the outstanding information from the respondents had failed, a review application was launched on 27 March 2018 to set aside the renewals of the third, fourth and fifth respondents’ contracts of employment by the first respondent.

 

[2.7]     On 13 April 2018 the Council approved remuneration packages for the third, fourth and fifth respondents at new salary scales[2].

 

[2.8]     On 25 May 2018 the applicant launched an interlocutory application seeking the joinder of the individual councillors.

 

[2.9]     On 28 May 2018 the interlocutory application was opposed on behalf of all respondents. However, no opposing affidavit was filed.

 

[2.10]  On 5 September 2018 the applicant brought an application under rule 30A to compel the respondents to file the record on the review after they had failed to do so or had failed to comply with the notice in terms of rule 30A.

 

[2.11]  On 9 September 2018 the respondents filed the record in the review.

 

[2.12]  On 29 October 2018 i.e. some eleven months after Mahabeer AJ granted the order the respondents brought an application to vary the order of Mahabeer AJ. On 14 December 2018 applicant opposed this application and to date respondents did not reply to applicant’s opposing affidavit. The variation application is still pending in this court.

 

[2.13]  The review application came before Goven J who after hearing argument delivered a judgment and ordered that the renewal of third, fourth and fifth respondents’ contracts of employment by the first respondent on 23 and 26 June 2017 be reviewed as being illegal and ultra vires and were set aside. He ordered the first, third, fourth and fifth respondents to pay the costs of the application on an attorney and own client scale, jointly and severally, the one paying the others to be absolved[3].

 

[2.14]  The respondents brought an application for leave to appeal against the judgment of Gorven J. The application for leave to appeal was dismissed with costs on 11 September 2019[4].

 

[2.15]  On 19 September 2019, the respondents applied by way of petition to the Supreme Court of Appeal for leave to appeal. The application for leave to appeal to the Supreme Court of Appeal was dismissed with costs on 13 November 2019 on the ground that there were no reasonable prospect of success in the appeal and there was no other compelling reason why an appeal should be heard[5]. After the Supreme Court of Appeal refused to grant the respondents leave to appeal an application was filed by the respondents requesting the Judge President of the Supreme Court of Appeal to reconsider the refusal in terms of section 17 (2) (f) of the Superior Courts Act No.10 of 2013 (“the Act”). This application is still pending.

[2.16]  This application served before Vahed J on 15 October 2019. He granted an order in the following terms:

 

‘1.         A rule nisi be and is hereby issued calling upon Respondents to show cause, if any, before this court sitting at Pietermaritzburg on the 21^st day of November  2019 at 09h30 or so soon thereafter as Counsel may be heard, why an order in the following terms should not be granted:-

 

(a)        That the Respondents be and are hereby directed to comply with the Court Order granted by the Honourable Madam Acting Justice Mahabeer on 28 November 2017 with immediate effect and to continue to do so until these proceedings are finally determined.

 

(b)        That Third, Fourth and Fifth Respondents be and are hereby directed to vacate and remain away from the offices and premises of the First Respondent until these proceedings are finally determined.

 

(c)        That in the event of the Third, Fourth and Fifth Respondents failing to comply with the orders in paragraph 1 (a) and (b) above the Applicant is authorised and directed to eject the Third, Fourth and Fifth Respondents from any of the offices and premises of the First Respondent, and to do so further in the event that they return to such offices and premises before these proceedings are finally determined. The Applicant is further authorised to employ the assistance of the members of the South African Police Services or private security companies and to use such force as is necessary in the circumstances to carry out the aforesaid, provided that the Sheriff must at all times be present during such eviction and removal.

 

(d)        That the Third, Fourth and Fifth Respondents appear at this Court on the Return Date to show cause why they should not be found guilty of contempt of court for their failure to comply with the Order granted by the Honourable Madam Acting Justice Mahabeer on 28 November 2017.

 

(e)        That the Third, Fourth and Fifth Respondents may explain their conduct by way of affidavit on the Return Date or before that date, although this will not excuse Third, Fourth and Fifth Respondents from being present in Court.

 

(f)         That in the absence of providing an explanation to the satisfaction of the Court the Third, Fourth and Fifth Respondents be found guilty of contempt of court, and incarcerated for such period as the Court deems appropriate, or for Third, Fourth and Fifth Respondents to be fined in their personal capacity in an amount as the Court deems appropriate.

 

2.         The Respondents are given leave to supplement their answering affidavits by delivery of further answering affidavits, such to be delivered on or before 25 October 2019.

 

3.         The costs of the hearing on 15 October 2019 are reserved for later determination”.

The Contentions of the Parties

 

[4]        Mr BS Duma who is a director in the applicant’s department deposed to the founding and replying affidavits on behalf of the applicant. The pertinent facts in his founding affidavit can be summarised as follows:

 

[4.1]     The applicant exercises a monetary and oversight function over local government and with regard to the appointment of municipal management and senior municipal managers.

 

[4.2]     The first and second respondents did not comply with the applicable legal prescripts when renewing the third, fourth and fifth respondents’ contracts of employment with the municipality and did not provide the applicant and the department with the relevant information.

 

[4.3]     When the information was not provided the urgent application was brought which served before Mahabeer AJ who granted the manuscript order as referred to above. I should mention that the applicant put up the typed order which was issued by the registrar of court[6].

[4.4]     Certain, but not all, of the required information was provided by the first and second respondents which resulted in the applicant launching the abovementioned review application to set aside the illegal appointments.

 

[4.5]     In the interim, it transpired that the third to fifth respondents had not vacated their posts, and had continued to defy the order granted by Mahabeer AJ and first and second respondents did not insist that they do so nor did they apply for any persons to be appointed to any such posts on an acting basis as they were required to do.

 

[4.6]     The third, fourth and fifth respondents continued to hold themselves out as municipal manager and senior managers respectively in defiance of the order granted by Mahabeer J and according to the financial statements submitted by the municipality to the auditor general at the end of August 2019, the third, fourth and fifth respondents received salaries of  R 1,405,688; R 1,233,545 and R 1,092,296 respectively for the period in question.

 

[4.7]     The need for the relief sought for in this application was explained and amongst other things it was pointed out that in paragraph 9 of the judgment of Gorven J the court noted that the MEC “took every conceivable step to alert the Municipality to the invalidity of its actions” and that “visits were also made by officials from the Department of the MEC [to the municipality] to no effect.” According to Gorven J this represented “a collective thumbing of the nose at the MEC and the Constitution” which “must clearly be visited with a severe consequence by the way of a punitive cost order”.     

 

[4.8]     The order granted by Mahabeer AJ provided that the third, fourth and fifth respondents’ contracts of employment were suspended “in whole” pending the provision of information or the final determination of the review. However, the third, fourth and fifth respondents are still holding themselves as municipal manager and senior managers employed by the municipality and in those positions make a myriad of administrative decisions which have a binding effect and have consequences for the municipality, ratepayers and service providers. In so doing the respondents are wilfully disobeying the order granted by Mahabeer J and such disobedience is designed to ensure that they receive salaries to which they are not entitled. In any event, their salaries exceed the prescribed upper limits for the municipality (a category 2 municipality) published in Government Gazette number 42023 of 8 November 2018[7]. The councillors proceeded to adopt the annual financial statements which confirm that the third, fourth and fifth respondents are in office and that the salaries exceeded the prescribed upper limits for the municipality. The councillors of the municipality have deliberately and wilfully acted in disobedience of the order granted by Mahabeer AJ.

 

[4.9]     It is in the public interest and in the interests of administrative justice and sound public administration for the respondents to be obliged to give effect to the order by Mahabeer AJ and for the third, fourth and fifth respondents to be removed from the municipality premises.

 

[5]        The third respondent, Mr BP Gumbi deposed to the opposing affidavit filed on behalf of the Respondents. The principle contentions on which he relies to oppose the orders which applicant seeks to enforce are summarised hereunder. I should mention that the applicant only seeks to enforce paragraphs 2 (a), (b), (c) of its original notice of motion which is paragraph 1 (a), (b) and (c) of the rule nisi granted by Vahed J. In other words, the Applicant does not pursue the relief for contempt as originally requested in its notice of motion and as contained in the rule nisi granted by Vahed J under paragraphs 1 (d), (e) and (f). Broadly, the respondents oppose the application on the following grounds:

 

[5.1]     The interim order sought to be enforced does not exist in the terms alleged by the applicant and one cannot be in contempt of an order that does not exist; in the light of the application for variation of the order of Mahabeer AJ which is before this court, the order is lis pendens;

 

[5.2]     No application has been made for the enforcement of the order of Gorven J, pending determination of the application for leave to appeal and/or the appeal itself. This latter ground falls away as the application for leave to appeal against Gorven J’s judgment has been determined save for the reconsideration application in terms of section 17 (2) (f) of the Act which is pending before the Judge President of the Supreme Court of Appeal.

 

[6]        With respect to Mahabeer AJ’s order granted on 28 November 2017, Mr Gumbi stated that he was present in court on this day and that prior to this application being called, an identical application brought by the applicant against the Msinga Local Municipality, was heard. When this application was called, with the benefit of having heard Mahabeer AJ’s views regarding the application, the matter was stood down so that the parties, through their representatives could discuss possible settlement. Arising from these discussions, an order in the terms set out in the manuscript order referred to above, was taken.        

 

[6.1]     Essentially, it was contended that the order issued by the registrar does not reflect the terms agreed upon between the parties. It was submitted that it was agreed between the parties that no interim relief would be granted on that day. Further it was contended that even in its current form, the order lacks clarity regarding the issue of interim relief. This is so because the current wording of the order is inherently contradictory. Hence the application for variation and/or clarification.

 

[6.2]     The applicant seeks to create the impression that the respondents abandoned their application for variation which was not so. It was contended that the application for variation was overtaken by the main review application and that applicant had at all material times, been aware that third, fourth and fifth respondents remained in office after 28 November 2017.

 

[6.3]     Much of what is contained in the remainder of the opposing affidavit deals with the purpose of the application with the suggestion that applicant was frustrated by respondents’ exercising their constitutional right to appeal and exhaust all remedies available to them with respect to the order granted by Gorven J. Much of these allegations have fallen by the wayside as the application for leave to appeal to the Supreme Court of Appeal has been determined save for the application under section 17 (2) (f) of the Act. As such, no useful purpose would be served by repeating these allegations.

 

[7]        The respondents having been given leave to file a supplementary affidavit in terms of the order granted by Vahed J, did so on 25 October 2019. Essentially, the supplementary affidavit deals with the circumstances under which the manuscript order was taken before Mahabeer AJ and the difference between such manuscript order and the order issued by the registrar of court accompanied by the contention that there was a dispute of fact in regard to which order was the correct one and that the applicant’s reliance on the order issued by the registrar was incorrect and misplaced. In the supplementary affidavit the respondents contend that the insertion of the manuscript words after paragraph 2 (v) had been left out completely from the order issued by the registrar of court. Later in the same supplementary affidavit the deponent states that there is no explanation for the fact that the manuscript words:

            “within 14 days of the date of this order failing which paragraph 2 (b) will apply.”

            were not inserted in annexure “C1” to the founding affidavit[8]. The latter two allegations are factually incorrect because, as pointed out above, the above-mentioned words were indeed included under paragraph 2 (a) (v) as is apparent from the registrar’s order quoted above. The remainder of the supplementary affidavit sought to impugn the conduct of Mr Potgieter and his offices with accusations that when the order which was prepared for the registrar to issue they had concealed the manuscript writing which had been inserted by Mr Broster SC. The deponent goes on to state that there could be no other explanation for the fact that such words do not appear in the order issued by the registrar[9]. The deponent states that he was shown the manuscript words written into the manuscript order before his counsel handed the manuscript order to the judge. He stated that he can confirm that what was written there accorded with his understanding of what had been negotiated when the matter stood down in the afternoon and further went on to state that Mr Potgieter was a party to those discussions. It was contended that Mr Potgieter chose to rely upon the order signed by the registrar in preference to the order signed by Mahabeer AJ.

[8]        The applicant filed a replying affidavit on 13 November 2019 which dealt with the allegations contained in the respondents’ founding and supplementary affidavits. I will deal with some of the allegations made in the replying affidavit insofar as they may be relevant to my decision in this matter in the discussion which follows below. However, I should state at this stage that in the replying affidavit it was stated that Mr Potgieter was not present in the afternoon when the matter was called, when it stood down and discussions took place and when the matter was recalled. It was stated that Mr Potgieter returned to his office during or about the lunchbreak in order to attend a presentation to him and his clients by forensics auditors. He did not return to court that afternoon. These allegations were confirmed by Mr Potgieter in a verifying affidavit which was further verified by way of an affidavit from one, Mr M.E. Radebe who confirmed the presentation by the forensic auditors and Mr Potgieter’s presence at such meeting which commenced on 28 November 2017 at 14h30. From the information put up by Mr Potgieter in the verifying, affidavits I am satisfied that he is vindicated of any blame with respect to the orders granted.     

 

The issues that require determination

[9]        The issues to be determined in this application are the following:

[9.1]     Whether the applicant is entitled to enforce the order granted by Mahabeer AJ and, if so, which of the orders namely, the manuscript order or the order issued by the registrar of the court;

 

[9.2]     Whether the application for leave to appeal to the Supreme Court of Appeal against Gorven J’s judgment has been finally determined or whether the application made in terms of section 17 (2) (f) of the Act, suspends the operation of Gorven J’s order.

 

The submissions by counsel

[10]      Advocate Dickson SC submitted that despite the clear wording of the order granting interim relief respondents dispute the terms of the order and have raised disputed facts in their opposing and supplementary affidavits. He submitted that the version of the respondents is incredulous and far-fetched and cannot be accepted. This is so because an order of court stands until set aside or altered in a manner allowed by law. There is a presumption that a court order is correct and a party must comply with it even if the order is wrong and may be barred from contending otherwise until it is set aside. He referred me to a number of case authorities in support of these submissions which I will deal with later herein. With respect to the order granted by Gorven J, he submitted that section 17 (2) (f) of the Act provides that the dismissal of an application is final, subject to seeking a reconsideration. He submitted that an application for reconsideration is not an application for leave to appeal within the ambit of section 18 (1) of the Act and that the order of Gorven J is no longer suspended.

[11]      Advocate Broster SC submitted that it was not permissible for this court to enforce the order granted by Gorven J as the appeal process pertaining to that order has not finally been resolved. In this regard he referred to section 17 (2) (f) of the Act and summited that the proviso therein contained suspended the operation of the order granted by Gorven J. He also referred me to the case of S vs Liesching and Others[10] and in particular to paragraph [136] where Theron J who delivered the majority judgment for the Constitutional Court stated as follows:

 

“As with s 18 (1), s 17 (2) (f) prescribes a departure from the ordinary course of an appeal process. Under s 17, in the ordinary course, the decision of two or more judges refusing leave to appeal is final. However, s 17 (2) (f) allows for a litigant to depart from this normal course, in exceptional circumstances only, and apply to the President for reconsideration of the refusal of leave to appeal.”       

 

He submitted that the above quoted extract from the judgment supported his submission that Gorven J’s order was suspended until the reconsideration process was finalised. With respect to the interdict proceedings, Advocate Broster SC submitted that there were two orders before me, namely the manuscript order and the one issued by the registrar of court and that there was a dispute of fact on the papers as to which order was applicable and such dispute had to be resolved by a referral of the matter to oral evidence. He too, like the respondents, erred in submitting that his manuscript insertion in the manuscript order was completely omitted from the order issued by the registrar. He basically contended that no valid court order was in existence which required compliance by the respondents.

 

Discussion  

[12]      In the view that I take of the matter the manuscript order granted by Mahabeer J is substantially the same as the order issued by the registrar of court save for the differences referred to in paragraph [24] above. Not only did the respondents but also their counsel misconceive that Mr Broster’s manuscript insertions were completely omitted from the order issued by the registrar but they also attempted to make a mountain out of a molehill about the above-mentioned differences between the two orders. In this regard the following similarities are pointed out in the two orders.

[12.1]  Paragraph 1 of the orders is exactly the same in both versions.

 

[12.2]  Paragraph 2 is exactly the same in both versions with the manuscript date having been typed in.

 

[12.3]  Paragraph 2 (a) is exactly the same in both versions, except that the phrase “to be supplied in terms of the Local Government…” in the manuscript order has been typed as “to be supplied in terms ofthe Local Government…”. This is a typographical error and makes no difference.

 

[12.4]  Paragraph 2 (a) (i) to (iv) are the same in both versions.

 

[12.5]  Paragraph 2 (a) (v) is the same in both versions. Contrary to the allegations made in the respondents’ supplementary affidavit and the submission by their counsel, the manuscript words inserted by Mr Broster appear at the end of paragraph 2 (a) (v). Although an error may have arisen in the typed version of the words “paragraph (a)”.

 

[12.6]  Paragraph 2 (b) is the same in both versions.

 

[12.7]  Paragraph 2 (c) is the same in both versions.

 

[12.8]  Paragraph 3 is the same in both versions.

 

[12.9]  Paragraph 4 in the final order is the same as the words inserted in the judge’s handwriting below the deleted paragraph 4 of the manuscript order.      

   

[13]      As pointed out above, Mr Gumbi confirmed in the supplementary affidavit filed on behalf of the respondents that the manuscript order accorded with his understanding of what had been negotiated when the matter stood down in the afternoon. It is discernible from the manuscript order that:

[13.1]  the respondents were ordered to provide the information listed in paragraph 2 (a) (i) to (v) within 14 days of the grant of the order[11].   

 

[13.2]  the third, fourth and fifth respondents’ contracts of employment were suspended until they provided the required information[12].

 

[13.3]  if the respondents failed to provide the required information the third, fourth and fifth respondents’ contracts of employments would remain suspended until the review was finally determined[13].

 

[14]      Contrary to the allegations made by the respondents both the obligation to provide information and the suspension of the contracts of employment operated without delay with immediate effect (“forthwith”). This appears from paragraph 3 of both the orders. 

[15]      The respondents contend that the words “within 14 days of the date of this order failing which paragraph 2 (a) will apply” in the order issued by the registrar should be separate from sub-paragraph (v) and form part of a continuation of paragraph 2 (a) after the listed items and that “paragraph 2 (a)” in the quote should read “paragraph 2 (b)”. The applicant was unable to comment on this suggestion by the respondents but conceded this as a possibility which was occasioned by Mr Broster’s poor handwriting. However, applicant argued and in my view correctly so, that it was for Mahabeer AJ to clarify the matter and it is precisely for this reason that the respondents should have persisted with the application in terms of rule 42. They did not do so and as a matter of law the court is functus officio and the order is final and binding until varied or set aside. As mentioned, although the applicant filed his opposing affidavit to the variation application on 14 December 2018, the respondents did not reply to this and to date has not persisted with this application.

[16]      It is true that if Mr Broster’s manuscript insertions were to be incorporated in the order issued by the registrar in the form suggested by the respondents in the preceding paragraph, such order may to some extent be ambiguous in the sense that the operation of paragraph 2 (b) was suspended for a period of 14 days to allow the respondents to furnish the information requested. Such a construction however, would be in conflict with the order granted in paragraph 3 which make both paragraphs 2 (a) and (b) to operate as temporary orders forthwith.

[17]      Our courts have held that the basic principles applicable to construing documents also apply to the construction of a court’s judgment or order. The court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules. Thus, as in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the court’s granting the judgment or order may be investigated and regarded in order to clarify it[14]. To the extent that the order issued by the registrar may be ambiguous on the version postulated by the respondents, I consider some of the extrinsic and surrounding factors which give meaning to it. First, the application was brought on an urgent basis in which applicant requested the stipulated information and pending the furnishing of such information, applicant required the renewal of the third, fourth and fifth respondents’ contracts of employment with the first respondent to be suspended forthwith. Clearly what was envisaged was to immediately stop a perceived illegality from continuing until such time that the respondents demonstrated compliance with the relevant legislation pertaining to the renewal of the contracts of employment. Second, in the opposing affidavit filed by the respondents, Mr Gumbi states that there was also an almost identical application brought by the applicant against the Msinga Local Municipality. The latter application was heard on the same day as this application by Mahabeer AJ. After hearing argument, she granted the applicant interim relief in the Msinga application. She did so on the basis of the doctrine of legality[15]. In my view it is unlikely that Mahabeer AJ would have intended to make two different orders where both applications were almost identical by granting interim relief in the one and not in the other. Third, when the proposed order was handed up to Mahabeer AJ she ticked those paragraphs of the order which she intended granting. One of them being paragraph 3 of the order which provided for the interim relief. Fourth, respondents’ attorneys were provided with the order under cover of a letter dated 1 December 2017 in which it was inter alia stated: “you will see that in terms of the order the renewal of the employment contracts are suspended, in whole pending the provision of certain information[16]”. On 8 January 2018 a further letter was sent by applicant’s attorneys to respondents’ attorneys in which it was inter alia stated “Once the screening reports have been received then the relevant information can be placed before the MEC for her to consider the matter. This will enable us to determine whether or not the suspension of the renewal of the employment contracts is still required or whether our client will need to institute the review proceedings contemplated in 2 (b) of the order[17]. Despite this the respondents took no steps to correct or vary the order until some 11 months later and have thus far not persisted with that application.

[18]       In the light of the above extrinsic facts and approaching the matter in accordance with the principles of interpretation, I am of the view that paragraphs 2 (a) and (b) of the order issued by the registrar were to operate with immediate effect pending finalisation of the application. In these circumstances, I am not prepared to accede to the respondents’ request for a referral of the matter to oral evidence.

[19]      However, even if I am wrong in my finding that interim relief was granted when Mahabeer AJ made her order, respondents contend that they had 14 days to provide the information in paragraph 2 (a). It follows that if they failed to provide all the required information paragraph 2 (b) came into effect. In its founding affidavit, applicant alleged that certain but not all, of the required information was supplied by the first and second respondents[18]. This allegation was not challenged by the respondents in their opposing affidavit or for that matter in their supplementary affidavit. In the replying affidavit filed on behalf of the applicant, Mr Duma amplifies his allegation that the documents which were not provided are listed in paragraphs 10.1 to 10.2 and 12 of his replying affidavit in the interdict proceedings at pages 306 to 307 of that bundle. It was recorded that the documents that were not furnished were the written and signed screening report in respect of the third respondent; the written and signed screening report in respect of the fifth respondent; proof of reference checks; letters from the Minister; security clearance information and copies of the employment contracts of other documentation to confirm the total remuneration packages to ensure compliance with the prescribed upper limits. Accordingly, even if the respondents’ contention with respect to the meaning of the order would be correct, they breached the order which would have had the effect of putting the order into operation.

[20]      An order of court stands until set aside by a court of competent jurisdiction. Until this is done the order must be obeyed even if it may be wrong. There is a presumption that the order is correct.

[21]      In Tasima[19] the following was inter alia stated:

 

[21.1]  The general rule is that orders that do not concern constitutional invalidity do have force from the moment they are issued. And in light of s 165 (5) of the Constitution, the order is binding irrespective of whether or not it is valid, until set aside;

 

[21.2]  The common law has recognised this position. In Honeyborne, De Villiers CJ found that if an agent –

 

‘were to be allowed to defy the authority of the Court on the ground of an error of judgment on the part of the Court, the question would in every case be whether the magistrate is right in his reading of the law or whether the agent is correct in his, but there would be no tribunal on the spot to decide between them. Undoubtedly it is the duty of the agent to bow to the decision of the Court and to seek his remedy elsewhere; and it is equally the duty of the Court to uphold its own dignity and see that its authority is respected by the practitioners before the Court.’[20]

 

[21.2]  Judicial orders wrongly issued are not nullities. They exist in fact and may have legal consequences.

 

[21.3]  The obligation to obey court orders ‘has at its heart the very effectiveness and legitimacy of the judicial system’. Allowing parties to ignore court orders would shake the foundations of the law, and compromise the status and the constitutional mandate of the courts. The duty to obey court orders is the stanchion around which a state founded on the supremacy of the Constitution and the rule of law, is built.

 

[21.4]  The legal consequence that flows from non-compliance with the court order is contempt. The ‘essence’ of contempt ‘lies in violating the dignity, repute or authority of the court.’ By disobeying a court order these are violated.

 

[21.5]  Section 165 (4) of the Constitution provides that organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the court. Fundamentally, these measures must include complying with a court order.

 

[22]      In Moraitis Investments[21] Wallace JA stated as follows:

 

“For so long as that order stood, it could not be disregarded. The fact that it was a consent order is neither here nor there. Such an order has exactly the same standing and qualities as any other court order. It is res judicata as between the parties in regard to the matter covered thereby. The Constitutional Court has repeatedly said that court orders may not be ignored. To do is inconsistent with s 165 (5) of the Constitution, which provides that an order issued by a court binds all people to whom it applies. The necessary starting point in this case was therefore whether the grounds advanced by the applicants justified the rescission of the consent judgment. If they did not, then it had to stand and questions of enforcibility of the settlement agreement became academic.” [footnotes omitted].

 

[23]      Similarly in Kruisenga[22] the following was stated:

 

            “[27]     The principle [res judicata] raises a presumption that the judgment is correct.

The presumption is founded on public policy which requires that litigation should not be endless and upon the requirements of good faith which, as said by Gaius (Dig 50.17.57), does not permit the same thing being demanded more than once.

 

The general rule is therefore that a final judgment must be given effect to even if it is erroneous. Subject to exception, a judgment which is null and void can similarly not be ignored and remains in force until it is formally set aside.”

 

[24]      In Somalia Association of South Africa[23] the following was stated by Ponnan JA:

 

“[33]      …The cornerstone of democracy and the rule of law is the uncompromising duty and obligation upon all persons, more especially state departments, to obey and comply with court orders. There are processes in place for those who disagree with court orders. But they are not free to simply turn a blind eye to the order nor do they have any discretion to not obey it…

 

[35]       It is a most dangerous thing for a litigant, particularly a state department and senior officials in its employ, to wilfully ignore an order of court. After all, there is an unqualified obligation on every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. It cannot be left to the litigants themselves to judge whether or not an order of court should be obeyed. There is a constitutional requirement for complying with court orders, and judgments of the courts cannot be any clearer on that score. No democracy can survive if court orders can be     shunned and trampled on as happened here…

 

[36]       That the state must obey the law is a principle that is fundamental to any civilised society. The logical corollary is that the state, its organs and functionaries cannot arrogate to themselves the right not to obey the law or elevate themselves to a position where they can be regarded as   being above the law.”

 

[25]      In the present case, the respondents have shown a wanton disobedience to the court order be it the one which was granted by Mahabeer AJ or the order issued by the registrar. Such conduct cannot be tolerated especially from officials of a state department who by all accounts should be a model of example to the broader public. Their failure to obey the court order is met with strong disapproval and severe censure from this court. 

 

[26]      My above findings are dispositive of the application. Nonetheless, I consider it necessary to deal with the remaining issue and that is whether the application for reconsideration of the order of Gorven J to the President of the Supreme Court of Appeal is suspended pending the outcome of such reconsideration. Counsel did not refer me to any direct authority on the point and I could find none. As mentioned, Mr Broster referred me to Liesching[24] and submitted that the above quoted passage supported the proposition advanced by him. I do not agree.

 

[27]      The relevant portion of section 17 of the Act reads as follows:

 

            “17       Leave to appeal

(1)        … 

(2)(a)     Leave to appeal may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same court or Division.

 

(b)        If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court of Appeal on application filed with the registrar of that court within one month after such refusal, or such longer period as may on good cause be allowed, and the Supreme Court of Appeal may vary any order as to costs made by the judge or judges concerned in refusing leave.

 

(c)        An application referred to in paragraph (b) must be considered by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal and, in the case of a difference of opinion, also by the President of the Supreme Court of Appeal or any other judge of the Supreme Court of Appeal likewise designated.

 

(d)        The judges considering an application referred to in paragraph (b) may dispose of the application without the hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse the application or refer it to the court for consideration.

 

(e)        Where an application has been referred to the court in terms of paragraph (d), the court may thereupon grant or refuse it.

 

(f)         The decision of the majority of the judges considering an application referred to in paragraph (b), or the decision of the court, as the case may be, to grant or refuse the application shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his or her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.”

 

[28]      In Liesching the Constitutional Court dealt with the phrase ‘exceptional circumstances’ as it appeared in s 17 (2) (f) of the Act. Although it did not deal directly with what effect an application for reconsideration would have on an existing order of court, some useful observations can be drawn from both the majority judgment which was delivered by Theron J and the minority judgment delivered by Kathree-Setiloane AJ which I deal with herebelow.

 

[29]      Section 17 (2) (b) of the Act prescribes the procedure to apply for leave to appeal to the SCA where the high court has refused to grant leave to appeal against a decision by the high court pursuant to ss (2) (a). An applicant must file an appeal with the registrar of the SCA. The application is referred to two judges for consideration. If they disagree, the President may appoint a third judge and the decision of the majority is the decision of the court. The application may be disposed of without the hearing of oral evidence. The judges may refuse or grant the application, or they may refer it to the court for consideration. If the application is referred to the court, it may either refuse or grant the application. Sub-section (2)(f) provides that the decision to grant or refuse an application is final, provided that the President may in exceptional circumstances, whether of her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation[25].  

 

[30]      The majority judgment recognised that s 17 (2) (f) was a departure of the ordinary course of an appeal process and that under s 17, in the ordinary course, the decision of two or more judges refusing leave to appeal is final. However, s 17(2)(f) allows for a litigant to depart from this normal course, in exceptional circumstances only and apply to the President for reconsideration of the refusal of leave to appeal[26]. Section 17 (2) (f) is not intended to afford disappointed litigants a further attempt to procure relief that has already been refused. It is intended to enable the President to deal with a situation where otherwise injustice might result and does not afford litigants a parallel appeal process in order to pursue additional bites at the proverbial appeal cherry[27]. Section 17 (2) (f) is not intended to afford litigants a further attempt to procure relief that has already been refused[28].

 

[31]      Similarly, in the minority judgment the court found that it was important to distinguish between an application for leave to appeal to the SCA in terms of s 17(2)(b) of the Act and an application under ss 2 (f). It stated that the latter is not an application for leave to appeal. It is an application to the President for the referral of a decision of the court, refusing leave to appeal, to the court for reconsideration. It is another bite at the cherry for an unsuccessful litigant to have the refusal of its application for leave to appeal reconsidered by the SCA on referral by the President in exceptional circumstances. By the same token, the reconsideration of a decision refusing leave to appeal is not the consideration of an appeal on the merits, but rather a reconsideration of the decision refusing leave to appeal. The court is required to decide whether the court below and the two judges of the SCA should have found that reasonable prospects of success existed to grant leave to appeal[29].

 

[32]      It follows from what has been stated above in Liesching, the proviso in s 17 (2) (f) is a deviation from the ordinary appeal process. Ordinarily under section 18 (1) subject to sub-sections (2) and (3), and unless the court, under exceptional circumstances, orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. Sub-section (2) does not suspend the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment which is the subject matter of an application for leave to appeal or of an appeal unless the court, under exceptional circumstances, orders otherwise. Importantly, section 18 does not deal with what effect an application against the refusal of a petition to the Supreme Court of Appeal will have on an order granted by a lower court which order was the subject matter of the petition. If the Legislature intended that such an order would be suspended pending the outcome of the reconsideration application, one would have expected it to make provision for this in the Act. It did not do so. In my view and based on the observations referred to above in Liesching the refusal of the petition was a final determination of the application for leave to appeal against the order granted by Gorven J which refusal revived the operation and execution of his order. I am fortified in this view when one considers the wording of section 17 (2) (f) contextually within the framework of the Act and the ordinary grammatical meaning of the word final. The Merriam Webster dictionary defines the word ‘final’ as: ‘not to be altered or undone’; ‘of or relating to a concluding court action or proceeding’; ‘coming at the end: being the last in a series, process, or progress’.

Accordingly, I am of the view that the refusal of the petition to the Supreme Court of Appeal brought the appeal process to an end and the application for reconsideration of such refusal does not suspend the order granted by Gorven J.

 

[33]      Another point which I believe is supportive of the view which I take in this matter is that under section 18 (1) the operation and execution of an order would be suspended only if the court orders otherwise. In other words, the order would not be suspended merely on the bringing of an application to suspend such order. In order to attain the suspension of the order there has to be an order from the court. Similarly with respect to the proviso in s 17 (2) (f), an application for a reconsideration of the refusal of a petition against the order granted would of itself not suspend the operation of the order. The President would have to rule on the matter and until such ruling is made and even if the proviso to s 17 (2) (f) (a) contemplated a suspension of the order (which for reasons mentioned above, I do not think it does), the order would not be suspended until a favourable decision to the applicant is pronounced on the reconsideration of the petition.

 

Costs

[34]      The respondents have been extremely remiss in the manner in which they conducted all the litigation pertaining to this matter. This is apparent from the delays and failure to file papers timeously and to prosecute applications brought by them. All of this is apparent from what is stated in paragraphs 2.9 to 2.12 above. Whilst I appreciate that litigants have a constitutional right to exercise their appeal remedies, the respondents in the present case used every stratagem at their disposal to allow the third, fourth and fifth respondents to continue to hold their respective positions at the municipality in the face of the illegal renewal of their contracts of employment and in contempt of the court orders granted by Mahabeer AJ and the one issued by the registrar of court. In my view such conduct must be met with a punitive order of costs.

[35]      There is one final matter which requires to be dealt with. That is the respondents’ flagrant disregard of the practice directive of this court to file heads of argument and a practice note as provided for in terms of Practice Directive 9.4.1 of the Practice Manual of the Kwa-Zulu Natal Division of the High Court. Advocate L. Broster SC made a sudden and unexpected appearance on behalf of the respondents without his attorney being present. His appearance was not accompanied by any application for condonation for respondents’ failure to comply with Practice Directive 9.4.1 and no satisfactory explanation was proferred for his attorney’s failure to brief counsel timeously for the hearing to ensure compliance with the said directive. Such remissness on the part of the respondents and their attorney is consistent with the pattern of conduct by them throughout the process of this litigation as referred to above.

 

[36]      In the result, I make the following orders:

 

(a)       That the Respondents be and are hereby directed to comply with the Court Order granted by the Honourable Madam Acting Justice Mahabeer on 28 November 2017 with immediate effect and to continue to do so until these proceedings are finally determined.

 

(b)       That third, fourth and fifth respondents be and are hereby directed to vacate and remain away from the offices and premises of the first respondent until these proceedings are finally determined.

 

(c)        That in the event of the third, fourth and fifth respondents failing to comply with the orders in paragraph 1 (a) and (b) above the applicant is authorised and directed to eject the third, fourth and fifth respondents from any of the offices and premises of the first respondent, and to do so further in the event that they return to such offices and premises before these proceedings are finally determined. The applicant is further authorised to employ the assistance of the members of the South African Police Services or private security companies and to use such force as is necessary in the circumstances to carry out the aforesaid, provided that the Sheriff must at all times be present during such eviction and removal.

 

(d)       it is hereby declared that the order made by Gorven J in the review application is not suspended pending the application to the President of the Supreme Court of Appeal for a reconsideration of the refusal of the petition. 

(e)       The costs of the application shall be paid by the first, second, third, fourth and fifth respondents jointly and severally, the one paying the other to be absolved and such costs are to be paid on the scale as between attorney and own client and are to include the costs reserved for the hearing before Mahabeer AJ on 28 November 2017 and the costs reserved by Vahed J on 15 October 2019.

 

 

                                                                                                            Y.N. MOODLEY AJ

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date of Hearing                    :           12 February 2020   

Date of Judgment                :           3 August 2020

Judgment delayed due to the Acting Judge falling ill and other obstacles in the wake of the COVID-19 pandemic.

 

Counsel for the Applicant   :                       ADVOCATE A.J. DICKSON SC

Attorneys for the Applicant:                        PKX ATTORNEYS

                                                                        Suite 36                                                                                                                                 3 on Cascades Crescent

Montrose 

Pietermaritzburg

                                                                        E–mail: mail@pkx.co.za

                                                                        Ref: M Potgieter

                                                                        Tel: 033 347 5354

 

Counsel for the Respondents        :           ADVOCATE L. BROSTER SC

Attorneys for the Respondents     :           BUTHELEZI MTSHALI MULWINI INC.

                                                                        Respondents’ Attorneys

                                                                        Ref: NQU1.3/ZM

                                                                        Email: zolani@bmminc.co.za 

c/o       GOVINDSAMY NDZINGI & GOVENDER (GNG) INC.

                                                                        211 Burger Street

Pietermaritzburg

                                                                        Tel: 033 345 3427

                                                                        Email: raf1@gngattorneys.co.za

 

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