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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: UM13/2021

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

 

DAVID SEITHIRO                                                                       1^st Applicant

 

OABILE SEABELO                                                                    2^nd Applicant

 

DOMINIA DITHOBISO                                                               3^rd Applicant

 

MEXICO MOLEMA                                                                    4^th Applicant

 

EDITH SEANE                                                                           5^th Applicant

 

TSHEPISO MAKUTLE                                                              6^th Applicant

 

GODSEND MOKGOPE                                                             7^th Applicant

 

And

 

RATLOU LOCAL MUNICIPALITY                                            1^st Respondent

MUNICIPAL MANAGER: RATLOU LOCAL

 

MUNICIPALITY                                                                         2^nd Respondent

CHIEF FINANCIAL OFFICER: RATLOU

 

LOCAL MUNICIPALITY                                                          3^rd Respondent

 

MAYOR: RATLOU LOCAL MUNICIPALITY                           4^th Respondent

 

SPEAKER: RATLOU MUNICIPALITY                                    5^th Respondent

MEMBER OF EXECUTIVE COUNCIL:

COOPERATIVE GOVERNANCE,

TRADITIONAL AFFAIRS AND HUMAN SETTLEMENTS      6^th Respondent

 

 Heard: 17 FEBRUARY 2023

Delivered:      This judgment is handed down electronically by circulation to the parties through their legal representatives’ email addresses. The date for the hand-down is deemed to be on 17 APRIL 2023

 

ORDER

I make the following order:

 

1.    The application is dismissed.

 

2.    The applicants are ordered to pay costs of the application jointly and severally the one paying the others to be absolved.

 JUDGMENT

 

DJAJE DJP

 

[1]        The applicants brought this matter firstly as a joinder application to have the third respondent joined to the proceedings. In the main application, the applicants are bringing a contempt of court order application against the first and second respondents. In addition, that the first, second and third respondents be ordered to pay the outstanding salaries of the applicants.

 

[2]        The dispute between the parties have a history of litigation and various court orders. The subject matter of the contempt is the order of the Full Court on 17 September 2021. It is however important to sketch out a brief history of the matter before dealing with the contempt of court application.

 

[3]        The respondents in their heads of argument sketched out the history of litigation succinctly as follows:

           

“6.        On 08 January 2021 a majority of the Municipality's Councillors petitioned for a Special Council Meeting after the second applicant, in her capacity as the then Speaker, refused an earlier request for such a meeting to be held.15 The second applicant again did not convene the requested meeting and the second respondent, in his capacity as Municipal Manager, then issued a notice for a Special Council Meeting to be held on 14 January 2021.

 

7.         On 13 January 2021, an administrator was appointed for the Municipality by the MEC.

 

8.         On 14 January 2021, the Special Council Meeting was held by the Municipality, at which meeting it was resolved that the second applicant be removed as Speaker; that the Mayor be removed; and to appoint two Acting Senior Managers).

 

9.         On 26 January 2021, an urgent application was brought under case number UM13/21 by, among others, the first and second applicants and the Administrator, in which application a declaration that the meeting of 14 January 2021 be declared unlawful and invalid was sought. This application ultimately resulted in an order by Mtembu AJ on 18 February 2021, declaring the meeting of 14 January 2021 invalid.

 

10.       On 19 February 2021, the Municipality brought an application for leave to appeal the judgment by Mtembu AJ.

 

16.      On 17 September 2021, the full bench of the above honourable court made an order by consent in case number FB 8/2021. The consent order reads as follows:

 

“1.THAT:        The Second and Third Respondents are to be paid the

difference in remuneration which they would have received had it not been for their removal from office in terms of their Council Resolution passed on the 14^th of JANUARY 2021, which remuneration is to include the remuneration which they would have received until the end of their respective terms, payment thereof is to be effected within 7 days of granting this order;

 

2. THAT:        Any of the Second Appellants Councillors who has not been remunerated or who has had a reduction in their remuneration, including erstwhile members of the Second Appellant's Executive Committee, as a result of the Council Resolution passed on the 14Th of JANUARY 2021, are to be paid the remuneration which they would have been entitled to, had it not been for the Council Resolution passed on the 14th of JANUARY 2021, within 7 days of granting of this order;

 

3. THAT:        The Respondents abandon the orders granted under the case number UM13/21;

 

4. THAT:        Each party are to pay their own costs."

 

[4]        It is the order of 17 September 2021 that the applicants allege that the first and second respondents failed to comply with. This order was made by consent between the parties. The applicants seek to join the third respondent to these proceedings as the Chief Financial Officer of the first respondent. It is important to deal separately with the issue of joinder of the third respondent.

 

Joinder of third respondent

 

[5]        The applicants argued that the third respondent as the Chief Financial Officer of the first respondent is responsible to effect all payments on behalf of the municipality and to avoid having separate proceedings against him individually in case the first and second respondents are found to be in contempt of court. In addition, the applicants submitted that the joinder of the third respondent is to ensure that there is compliance with the court order.

 

[6]        In contention the respondents argued that the third respondent was never a party to the litigation that resulted in these proceedings and cannot be held in contempt of the order of 17 September 2021. Further that the third respondent is not empowered by any legislation to give effect to the court order which is not an order to pay the applicants money.

 

[7]        The Supreme Court of Appeal in the case of the Judicial Service Commission v Cape Bar Council (Centre for Constitutional Rights as amicus curiae)(818/11)[2012] ZASCA 115 (14 September 2012) at para 12 dealt with the issue of joinder of parties as follows:

 

“It has by now become settled law that the joinder of a party is only required as a matter of necessity-as opposed to a matter of convenience-if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thus been held to be a limited one…..”

 

[8]        The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder, has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned. See: Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA).

 

[9]        The applicant’s case is that the third respondent is the official responsible for payments in the first respondent. As such, it is necessary to join him in these proceedings to ensure that the court order is implemented. This application concerns the issue of compliance with a court order. The third respondent was not a party to the proceedings that resulted in the court order. The applicants seek an order that the first and second respondents be held in contempt and that they be ordered together with the third respondent to pay the applicants outstanding salaries. The third respondent cannot be held in contempt of a court order when he was not a party in those proceedings. For the applicants to succeed with an order that the third respondent should pay their salaries, they need to make out a case in support thereof. In the appeal of 17 September 2021 the applicants consented to an order for their remuneration despite the third respondent not being a party. The applicants before court when the consent order was made were the Municipal Manager, Municipality and 18 councillors of the Municipality.

 

[10]      If the Municipality, being the first respondent in these proceedings, is found to be in contempt of court and ordered to make any payment, the third respondent as its Chief Financial Officer will be instructed to effect the payment by the First Respondent. As such the joinder of the third respondent in these proceedings is not necessary and should be dismissed.

 

Contempt Proceedings

 

[11]      The principles to be considered in contempt of court matters were well set out in the case of Fakie NO v CC11 Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at 344, paragraph [42] in the following terms:

 

“(a)      The civil contempt procedure is a valuable and important mechanism for  securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

 

(b)       The respondent in such proceedings is not an „accused person‟, but is entitled to analogous protections as are appropriate to motion proceedings.

 

(c)       In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and willfulness and mala fides) beyond reasonable doubt;

 

(d)       But, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to willfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was willful and mala fide, contempt will have been established beyond reasonable doubt;

 

(e)       A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.”

 

[11]      The Constitutional Court in Pheko v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II) at para 28 held that:

 

“[t]he object of contempt proceedings is to impose a penalty that will vindicate the court’s honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order.”

 

[12]      As stated above in the Fakie case, the applicant in contempt of court application has to prove that (a) there was a court order granted,(b) it was served on the respondent or the respondent has knowledge thereof (c) there was no compliance by the respondent. Once all these requirements are established, then the respondent must show that there was no wilful non-compliance. Failing which contempt has been established.

 

[13]      In this matter, the order that is the source of this application is the order of 17 September 2021. The order was to the effect that:

 

“1. THAT:       The Second and Third Respondents are to be paid the difference in remuneration which they would have received had it not been for their removal from office in terms of their Council Resolution passed on the 14^th of January 2021, which remuneration is to include the remuneration which they would have received until the end of their respective terms, payment thereof is to be effected within 7 days of granting of this order;

 

2. THAT:      Any of the Second Appellant’s Councillors who has not been remunerated or who has had a reduction in their remuneration, including erstwhile members of the Second Appellant’s Executive Committee, as a result of the Council Resolution passed on the 14^th of January 2021, are to be paid the remuneration which they would been entitled to, had it not been for the Council Resolution passed on the 14^th of January 2021, within 7 days of granting of this order;

 

3. THAT:      The Respondents abandon the orders granted under the case number UM13/21;

 

4. THAT:      Each party are to pay their own costs.”

 

[14]      The first applicant deposed to the founding affidavit and he was one of the applicants in the matter where the resolution of 14 January 2021 was declared unlawful. He was also a respondent in the appeal of 17 September 2021 under case FB8/21. The same applies to the second applicant, he is the former speaker of the municipality and was also a respondent in the appeal. The other applicants it was submitted that they were councillors of the Municipality and affected by the resolution of 14 January 2021. It is important for the applicants to make out a case that the order of 17 September is applicable to them.

 

[15]      In the founding affidavit the deponent thereto, being the first applicant, states that: “I am instituting these proceedings on my behalf and in a representative capacity of the 2^nd to the 7^th Applicants. Accompanying this founding affidavit are their confirmatory affidavits marked Annexure “RLM1.1-1.6”. In their confirmatory affidavits the 2^nd to 7^th applicants all state as follows: “I am the Former Ward Councillor of the Sixth Respondent. I confirm having read the founding affidavit deposed to by DAVID SEITHIRO and confirms the allegations against me.”  The 2^nd to 7^th applicants do not state that they are aware of these proceedings and that they have authorised the first applicant to act on their behalf. All that stands in their affidavit is that they confirm the allegations against them in the founding affidavit of the first applicant.

 

[16]      The 2^nd to 7^th applicants do not say how they were affected by the order of 14 January 2021 to be included as some of the councillors referred to in the order of 17 September 2021. The matter under case number UM13/2021 by Mthembu AJ is where the resolution of 14 January 2021 was challenged. In that application it is only the first and second applicants who were the applicants. The rest of the applicants in this matter were not cited as applicants. The matter was in relation to the removal of the applicants named therein from their positions in the Municipality. Instead, the 3^rd, 5^th, 6^th and 7^th applicants were cited as respondents in that matter. The 4^th applicant was not a party in UM13/2021. It is therefore imperative for the 3^rd to 7^th applicants to state how they were affected by the resolution of 14 January 2021.

 

[17]      The issue is now whether the 3^rd to 7^th applicants were affected by the order of 17 September 2021. It is clear that they were not applicants in UM13/2021 and have failed in this matter to state how they were affected by the resolution of 14 January 2021. As mentioned above they have failed in their confirmatory affidavits to make out their case for contempt of court against the respondents.

 

[18]      In relation to the first and second applicant, the respondents’ case is that they were paid in compliance with the court order of 17 September 2021. In the replying affidavit deposed to by the first applicant the following is stated “34…….It is blatantly clear that the respondents have failed to discharge that duty in that, in their answering papers, they have shown lack of compliance in that, the only payments made relate to the second applicant and myself without any further explanation as to why they have not paid the rest of the applicants. 39. I further mention that the amounts as stated by the respondents that myself and the 2^nd applicant have been paid in full is without basis as I have not been paid for the months of September and October 2021.”

 

[19]      The first and second applicant admit that they were paid in compliance with the court order but that the payment was not made in full. In the founding affidavit the first and second applicants have not made out a case with particularity as to the payments made or outstanding. It is only after the respondents in the answering affidavit mentioned that payments were made to the first and second applicant that they admit to such. In motion proceedings, the applicant makes out their case in the founding affidavit and not in the replying affidavit. In addition, the first and second applicants have failed to make out a case on the amount that is still outstanding as payment to them by the respondents.

 

[20]      Looking at the requirements of contempt of court as stated above in the Fakie matter, the applicants have failed to make out averments to sustain their allegations that the respondents failed to comply with the court order of 17 September 2021. On that basis the application stands to be dismissed with costs.

 

Order

 

[21]      In the result the following order is made:

 

1.    The application is dismissed.

2.    The applicants are ordered to pay costs of the application jointly and severally the one paying the others to be absolved.

 

J T DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION; MAHIKENG

 

 

APPEARANCES

DATE OF HEARING:	17 FEBRUARY 2023
JUDGMENT RESERVED:	17 FEBRUARY 2023
DATE OF JUDGMENT:	17 APRIL 2023
COUNSEL FOR THE APPLICANT:	ADV T MAKGATE
COUNSEL FOR THE RESPONDENT:	ADV P H KIRSTEIN

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