Pheko and Others v Ekurhuleni City

• Jurisdiction: South Africa
• Judgment Date: 07 May 2015
• Citation: 2015 (5) SA 600 (CC)

Pheko and Others v Ekurhuleni City
2015 (5) SA 600 (CC)

2015 (5) SA p600

Citation	2015 (5) SA 600 (CC)
Case No	CCT 19/11; [2015] ZACC 10
Court	Constitutional Court
Judge	Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van Der Westhuizen J and Zondo J
Heard	August 12, 2014
Judgment	May 7, 2015
Counsel	CR Jansen (with M Dewrance and N Muvangua) for the applicants.; K Tsatsawane for the respondent.; T Ngcukaitobi for the amicus curiae.

Flynote : Sleutelwoorde B

Attorney — Costs — Costs de bonis propriis — When to be awarded — Failing to notify registrar of change of address — Obliged to do so by Constitutional Court Rules and Uniform Rules of Court — Not doing so grossly negligent C — Punitive costs order awarded to mark court's displeasure — Constitutional Court Rules, rule 1(8); Uniform Rules of Court, rules 4, 4A and 16.

Contempt of court — Disobedience of court order — Attorney failing to communicate court order to client — Whether attorney in contempt — Requisites for contempt restated — Service of order on attorney not established.

D Contempt of court — Disobedience of court order — By organ of state — Municipality not complying with court order — Requisites for contempt restated — Service of order on municipality's attorney not established.

Local authority — Powers and duties — To comply with court orders — Joinder of specific parties ordered — Semble: Executive mayor and municipal E manager responsible for implementing court orders by virtue of their leadership roles.

Headnote : Kopnota

In Pheko I [*] a crucial part of the relief granted by the Constitutional Court to the applicants — who had their homes demolished pursuant to their unlawful F relocation at the instance of the Ekurhuleni Metropolitan Municipality — was to place an obligation on both parties to submit reports to the court for it to supervise progress made towards securing adequate housing for them. This case initially only concerned contempt proceedings set down against the Municipality for failing to comply with a court order (the order) G directing it to file a second such progress report by a certain deadline. Further issues were, however, introduced when (before the hearing) the amicus curiae sought to have the Municipality's executive mayor (mayor) and its manager (the municipal manager) joined in the proceedings; and by the Municipality's explanation (during the hearing) that it was not made aware of the order and directions by its attorneys of record. Accordingly, H after the hearing, further directions were issued (1) calling upon the attorneys to show cause why they should not be held in contempt for failing to make the Municipality aware of the order and directions, and also why they should not be ordered, jointly and severally with the Municipality, to pay the costs of the applicants and the Municipality de bonis propriis; (2) calling upon the mayor and municipal manager to show cause why they I should not be joined in the contempt proceedings, and to indicate if there were any other responsible office bearers who should also be joined; and (3)

2015 (5) SA p601

calling on the Member of the Executive Council, Gauteng Department of A Human Settlements (the MEC), based on his obligations under the Housing Act 107 of 1997, to show cause why he should not also be joined in the contempt proceedings.

Held

As to whether the Municipality and/or its attorney was in contempt B

While there could be no doubt that the Municipality had not complied with the court's directions and orders, the averments regarding the Municipality's non-receipt of the directions and order were not refuted, and accordingly service of the order upon the Municipality — an essential element to a finding of contempt — was wanting. In the circumstances, an inference of wilfulness and mala fides could not be drawn and, as a result, one cannot C safely conclude that the Municipality was in contempt of the order. It followed that the Municipality had shown good cause why it should not be held in contempt. (Paragraphs [39], [41] and [43] at 621E – F, 622C – D, and 622F – H.)

The attorney's undisputed evidence — that he did not inform the Municipality of D the directions and order because he did not receive them, since they were transmitted to a fax number that was no longer linked to his changed email address — dispelled any notion of wilfulness and mala fides on his part. While the existence of the order and non-compliance had been established, the requisite of service had not. It followed that no inference of wilfulness and mala fides could be drawn, and contempt on the part of the attorney E had not been established. (Paragraphs [48] and [50] at 624B and 624E – F.)

As to whether the attorney should pay the costs of the contempt proceedings de bonis propriis

While the evidence may not have established wilfulness or mala fides, it did establish gross disregard for his professional responsibilities. At the very least, the attorney had an obligation to notify the registrar of this court and F his clients of any change of address. This was plainly not done. This failure to notify the registrar constituted gross negligence on his part. Accordingly he must be ordered to pay the costs from his own pocket, to mark the court's displeasure at his gross negligence, particularly as an officer of the court. (Paragraphs [54] – [55] at 625D – F.)

As to whether the mayor, municipal manager and the MEC should be G joined in these contempt proceedings

Given that contempt of this court's order on the part of the municipality had not been established, no purpose would be served by joining the mayor, municipal manager and MEC in these contempt proceedings. However, by virtue of their constitutional and statutory responsibilities, the joinder of the H mayor and municipal manager, in respect of this court's continuing supervision of the implementation of the orders in Pheko I, would be appropriate. The MEC's statutory obligations in relation to the provision of housing and his role in the implementation of the supervisory orders in Pheko I mean that he should also be joined as a party having substantial interest. (Paragraphs [57] – [58] and [60] at 626A – C and 626F – H.)

Semble I

It was precisely because of the leadership entrusted to the mayor and the municipal manager that they had a duty to undertake responsibility for implementing court orders. Disclaiming such responsibility on the basis they were not responsible for the 'day to day administrative functions' of the municipality was therefore highly inappropriate. (Paragraphs [62] – [63] at 627C – F.) J

2015 (5) SA p602

Cases Considered

Annotations A

Case law

Southern Africa

Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A): B referred to

Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others 1956 (1) SA 105 (N): dictum at 106B – E applied

City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C) (2003 (11) BCLR 1236): compared

Ex parte Body Corporate of Caroline Court 2001 (4) SA 1230 (SCA) ([2001] ZASCA 89): C referred to

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ([2006] ZASCA 54): applied

Federation of Governing Bodies of South African Schools (Gauteng) v MEC for Education, Gauteng 2002 (1) SA 660 (T): compared

Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA) ([2009] 1 All SA 39; D [2008] 11 BLLR 1023; [2008] ZASCA 99): referred to

Grobbelaar v Grobbelaar 1959 (4) SA 719 (A): referred to

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): referred to

Jeebhai v Minister of Home Affairs and Another 2007 (4) SA 294 (T): referred to E

Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) ([2005] 1 All SA 745): referred to

Machumela v Santam Insurance Co Ltd 1977 (1) SA 660 (A): referred to

MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) ([2006] 2 All SA 455): referred to

Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (TkH): dictum at 456A – B applied F

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Inter- vening) 2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685; [2001] ZACC 18): referred to

N and Others v Government of the Republic of South Africa (No 3) 2006 (6) SA 575 (D): compared G

National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others 2015 (2) BCLR 182 (CC) ((2015) 36 ILJ 363; [2014] ZACC 35): referred to

Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) (2008 (9) BCLR 865; [2008] ZACC 8): compared H

Pheko and Others v Ekurhuleni Metropolitan Municipality (GNP case No 5394/11, 9 June 2011; [2011] ZAGPPHC 130): referred to

Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) (2012 (4) BCLR 388; [2011] ZACC 34): referred to

Pieter Bezuidenhout-Larochelle Boerdery (Edms) Bpk en Andere v Wetorius Boerdery (Edms) Bpk 1983 (2) SA 233 (O): referred to I

S v Beyers 1968 (3) SA 70 (A): referred to

S v Mkhize 1963 (3) SA 218 (N): referred to

South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC) (2006 (8) BCLR 901; [2006] ZACC 7): J compared

2015 (5) SA p603

York Timbers Ltd v Minister of Water Affairs and Forestry and Another A 2003 (4) SA 477 (T) ([2003] 2 All SA 710): dictum at 509D applied

Zalk v Inglestone 1961 (2) SA 788 (W): referred to.

Canada

R v UFAW [1967] 65 DLR (2d) 579 (BCCA): compared

TG Industries Ltd v Williams 2001 NSCA 105 ([2001] 196 NSR): compared. B

England

Attorney-General v...