Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2)

Following an initial judgment (Pheko I [2011] ZACC 34) where this Court found that Ekurhuleni Metropolitan Municipality unlawfully removed residents from Bapsfontein Informal Settlement and demolished their homes in violation of their constitutional rights, the Court granted supervisory relief ordering the Municipality to identify land and meaningfully engage with the applicants, and to file reports on progress by specified dates. The Municipality failed to comply with subsequent directions and orders of the Court dated 21 November 2013 and 12 March 2014 requiring progress reports on relocation and housing provision. The Municipality's attorney claimed non-receipt of court orders due to changed email and fax addresses during office relocation. This Court initiated contempt proceedings mero motu (of its own accord) to determine whether the Municipality, its attorney, and various functionaries should be held in contempt. Applications were also brought to join the Executive Mayor, Municipal Manager, and MEC for Human Settlements to ensure future compliance.

• What are the essential elements for a finding of civil contempt of a court order?
• Can a court initiate contempt proceedings mero motu (of its own motion)?
• What standard of proof applies to contempt proceedings where committal is sought versus other civil remedies?
• When should costs de bonis propriis be awarded against a legal representative?
• What are the respective constitutional and statutory obligations of municipalities, mayors, municipal managers, and provincial MECs regarding housing provision?
• When should functionaries be joined to proceedings to ensure compliance with court orders?

1. The Municipality and its attorney were not held in contempt of the orders of 6 December 2011 and 12 March 2014. 2. The rule nisi against the Executive Mayor and Municipal Manager was discharged. 3. The Executive Mayor and Municipal Manager were joined as parties to Pheko I for purposes of implementing the supervisory order. 4. The MEC for Human Settlements, Gauteng, was joined for the same purpose. 5. Mr Devraj Chainee (Head of Department for Human Settlements) was joined in his official capacity for implementing the supervisory order. 6. The attorney and Municipality were each ordered to pay 50% of the applicants' costs in the contempt proceedings, with the attorney ordered to pay costs de bonis propriis.

The binding legal principles established are: (1) Courts have inherent power under the Constitution to initiate contempt proceedings mero motu to vindicate judicial authority and uphold the rule of law. (2) The essential elements for civil contempt of a court order are: (a) the order must exist; (b) the order must have been duly served on or brought to the notice of the alleged contemnor; (c) there must have been non-compliance with the order; and (d) the non-compliance must have been wilful or in mala fides. All elements must be established before contempt can be found. (3) Service of a court order on the alleged contemnor is an essential element; without proof of service, wilfulness and mala fides cannot be inferred from mere non-compliance. (4) Undisputed evidence of non-receipt of court orders due to changed addresses negates a finding of proper service. (5) Gross negligence by an attorney in failing to notify the court of address changes, resulting in non-receipt of orders affecting constitutional rights, warrants costs de bonis propriis. (6) Executive mayors and municipal managers carry ultimate legal and moral responsibility for ensuring municipal compliance with court orders and cannot disclaim responsibility by pointing to junior officials. (7) Officials with statutory obligations relevant to implementing court orders may be joined to ensure compliance with supervisory orders in constitutional matters.

The Court made several important non-binding observations: (1) Courts will not hesitate to enforce their orders, and continuous non-compliance risks rendering courts impotent and judicial authority a mockery. (2) The phenomenon of state non-compliance with court orders, particularly in socio-economic rights cases, is troubling and threatens constitutional crisis. (3) Organs of state have heightened obligations to comply with court orders given their constitutional duties and the explicit mention in section 165(5) that orders bind organs of state. (4) The disclaimers of responsibility by the Mayor and Municipal Manager were "unseemly and highly inappropriate" - those holding such offices exist for oversight purposes and must ensure municipal structures respond appropriately to court orders. (5) While mayors and municipal managers need not be involved in minutiae of execution, they must ensure appropriate response as this is owed both to courts and to residents who depend on responsible exercise of power. (6) The Constitution enjoins organs of state to adhere to and give effect to constitutional principles and to court orders issued thereunder. (7) Courts assume an "invidious position of having to oversee state action" when organs of state fail in their duties. (8) The Court endorsed Justice Brandeis's warning: "If the government becomes a law-breaker, it breeds contempt for the law; it invites every man [or woman] to become a law unto himself [or herself]; it invites anarchy." (9) Reporting mechanisms in supervisory orders represent a collaborative process acknowledging state resource constraints while ensuring accountability.

This case is significant for several reasons: (1) It affirms courts' inherent power to initiate contempt proceedings mero motu to vindicate judicial authority and the rule of law. (2) It clarifies the constitutional framework protecting judicial authority under sections 165 and the binding nature of court orders under section 165(5). (3) It applies and elaborates on the Fakie test for contempt, confirming that service of the order is an essential element that cannot be presumed. (4) It addresses the persistent problem of state non-compliance with court orders, particularly in socio-economic rights cases. (5) It establishes that while the standard of proof for committal in contempt cases is beyond reasonable doubt (per Fakie), other civil remedies including costs orders may be granted on balance of probabilities where gross negligence is shown. (6) It clarifies the respective constitutional and statutory obligations of municipal officials and provincial executives in implementing housing rights. (7) It emphasizes that political heads (mayors) and administrative heads (municipal managers) cannot disclaim responsibility for municipal failures to comply with court orders by pointing to junior officials. (8) It demonstrates the use of strategic joinder to ensure future compliance with supervisory orders in socio-economic rights litigation.