Mashamaite & others v Mogalakwena Local Municipality & others (523/2016) and MEC, Limpopo & another v Kekana & others (548/2016)

Mr Kekana was the municipal manager of Mogalakwena Local Municipality. A power struggle arose between Kekana and certain councillors, including Mashamaite (the mayor) and others. Kekana resisted pressure to engage in allegedly corrupt activities. After investigations by KPMG, Mashamaite was removed as mayor on 17 April 2014 for abuse of funds. Twenty-three councillors who supported Kekana were expelled from the ANC on 21 September 2014. The MEC convened a special council meeting on 6 November 2014 to elect a new Speaker and Mayor. Kekana was suspended by the council on 4 December 2014 and subsequently dismissed on 31 March 2015 following disciplinary proceedings. While suspended, Kekana launched an urgent application on 19 December 2014 citing the municipality as co-applicant, seeking interdictory relief against the councillors and challenging various council resolutions. He also sought a contempt order against the MEC for allegedly violating an earlier court order by Tuchten J dated 17 June 2014 interdicting her from interfering with the municipality's affairs. The Labour Court dismissed Kekana's challenge to his dismissal on 26 February 2016. Hiemstra AJ granted an order on 1 April 2016 reinstating Kekana, declaring the MEC in contempt, and setting aside council resolutions.

• Whether the court a quo was precluded from granting reinstatement on the basis of res judicata?
• Whether Kekana had authority to institute proceedings on behalf of the municipality while suspended?
• Whether parts of the order had become moot following local government elections?
• Whether the MEC's non-compliance with Tuchten J's order was wilful and mala fide justifying a contempt order?
• Whether the court a quo was justified in ordering the appellants to pay reserved costs?

The appeal was upheld with costs including costs of two counsel. The order of the court a quo was set aside and substituted with an order dismissing the application and directing Kekana (the second applicant) to pay the costs of the application including costs of two counsel and the costs reserved on 23 December 2014.

The binding legal principles established are: (1) The doctrine of res judicata precludes relitigation of the same cause, between the same parties, for the same relief - a court of equal jurisdiction cannot disregard a previous judgment on the basis that it was "clearly wrong". (2) In motion proceedings, an applicant must disclose facts in founding papers that make out a case for the relief sought; relief inconsistent with the facts pleaded is improperly granted. (3) A suspended employee does not have authority to act on behalf of an employer during suspension unless called upon to perform duties. (4) For contempt of court, an applicant must prove beyond reasonable doubt: (a) existence of a court order; (b) service or notice thereof; (c) non-compliance; and (d) that non-compliance was wilful and mala fide. A genuine belief (even if mistaken) that one is entitled to act in a particular way constitutes good faith and avoids contempt. (5) Under s 16(2)(a)(i) of the Superior Courts Act, an appeal may be dismissed where changed circumstances render the decision sought without practical effect or result. (6) An appeal court may interfere with a costs order where there is absence of grounds on which a court, acting reasonably, could have made the order.

The court observed that section 54A(6)(a) of the Local Government: Municipal Systems Act seems to suggest that an MEC can only second a person to act as municipal manager once the post has been advertised, though this point was not fully argued. The court also commented on the broader context of municipal dysfunction and power struggles affecting service delivery, noting the MEC's belief that she had a duty to restore functionality to the municipality. The court expressed difficulty in understanding how the judge below could order reinstatement with full knowledge of pending Labour Court proceedings on the same issue. The judgment implicitly criticized the respondents for persisting in defending relief that had clearly become moot, noting this would be relevant for costs purposes.

This case is significant in South African law for clarifying several important principles: (1) It reinforces the doctrine of res judicata and the principle that a single judge cannot sit as an appeal court to effectively overturn another judge's order of equal standing. (2) It establishes that relief granted must be consistent with facts and averments in founding papers in motion proceedings. (3) It confirms that a suspended employee lacks authority to perform duties during suspension unless called upon to do so. (4) It clarifies the requirements for contempt of court orders, emphasizing that non-compliance must be proved wilful and mala fide beyond reasonable doubt, and that a genuine but mistaken belief in authority to act constitutes good faith defeating contempt. (5) It applies the mootness doctrine under section 16(2)(a)(i) of the Superior Courts Act where changed circumstances render relief without practical effect. (6) It demonstrates the limited grounds for appellate interference with costs orders.