Ms Nosipho Portia Ndabeni was employed by the O.R. Tambo District Municipality from 1 July 2005 on successive fixed-term contracts as Manager at the Aids Training Information and Counselling Centre (ATICC). In January 2011, the Municipality adopted Resolution 10/11 to convert all contract employees to permanent employees, but this resolution was not applied to Ms Ndabeni. Her services were terminated in 2014. In 2015, she approached the High Court seeking a declaration that she was a permanent employee. The Municipality failed to file an answering affidavit despite extensions, and the matter proceeded unopposed. On 13 December 2016, the High Court (Mjali J) declared Ms Ndabeni a permanent employee and ordered retrospective and ongoing payment of her salary and benefits. Leave to appeal was refused by both the High Court and the Supreme Court of Appeal (SCA). The Municipality did not comply with the order, later contending that it was a nullity because it allegedly contravened section 66 of the Local Government: Municipal Systems Act 32 of 2000. Ms Ndabeni then instituted contempt proceedings. The High Court accepted the nullity defence and discharged a rule nisi. On appeal, a divided SCA held the Municipality in contempt and ordered it to purge its contempt. The Municipality appealed to the Constitutional Court.
Leave to appeal was granted. The appeal succeeded in part: the SCA order declaring the Municipality in contempt and requiring it to purge such contempt was set aside. The remainder of the appeal was dismissed. The Municipality was ordered to comply with the High Court (Mjali J) order within 30 days. The Municipality was ordered to pay Ms Ndabeni’s costs on an attorney and client scale and Ms Ndabeni was granted leave to approach a High Court to enforce the order.
This case reaffirms a core constitutional principle in South African law: court orders are binding and enforceable until set aside by a competent court. It clarifies that public officials and organs of state may not unilaterally disregard court orders on the basis that they believe them to be unlawful or a nullity. The judgment strengthens judicial authority, the rule of law, and accountability of municipalities, particularly in the context of employment and compliance with court orders.