Ndabeni v Municipal Manager: OR Tambo District Municipality and Another

The appellant, Ms Nosipho Portia Ndabeni, was employed by the OR Tambo District Municipality on successive fixed-term contracts from 2005. In January 2011 the municipal council adopted resolution 10/2011 converting all contract employees to permanent employees. The appellant was excluded from the benefits of this resolution. She obtained an unopposed High Court order in December 2016 declaring her a permanent employee by virtue of the resolution and directing payment of her salary and benefits. The municipality and its municipal manager failed to comply with the order, contending that compliance would contravene s 66 of the Local Government: Municipal Systems Act because her post was allegedly not on the staff establishment. The appellant then brought contempt proceedings. The High Court (Griffiths J) discharged the rule nisi, holding that the original order was a nullity. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs on an attorney and client scale. The High Court order was set aside and replaced with an order declaring the respondents’ failure to comply with the 2016 order unlawful, declaring them in contempt of court (excluding paragraph 2 of the original order), directing them to purge the contempt within 30 days, and ordering punitive costs against them.

The case affirms the binding force of court orders on organs of state and clarifies the application of civil contempt principles, particularly the evidentiary onus once non-compliance is shown. It distinguishes between a court impermissibly making an appointment and issuing a declaratory order recognising rights flowing from a valid municipal resolution. The judgment reinforces the rule of law and the duty of municipalities to implement their own resolutions and comply with court orders.