Ndabeni v Municipal Manager: OR Tambo District Municipality and Another

The appellant, Ms Nosipho Portia Ndabeni, was employed by the second respondent, OR Tambo District Municipality, on a one-year contract as an AIDS Training Information and Counselling Centre Manager from 1 July 2005. Her contract was renewed yearly. On 30 January 2011, the second respondent passed Council Resolution 10/11 converting all temporary employees to permanent employees. The appellant was excluded from this resolution. After unsuccessful attempts to resolve the matter, the appellant launched an application in the high court. On 13 December 2016, Mjali J granted an unopposed order declaring the appellant a permanent employee by virtue of resolution 10/11 and directing payment of retrospective and future salary and benefits. The respondents failed to comply with the order despite it being served on them and despite their applications for leave to appeal being refused by both the high court and the Supreme Court of Appeal. On 1 February 2019, the appellant launched contempt of court proceedings. The respondents opposed on grounds that employing the appellant would contravene section 66(3) and (4) of the Local Government: Municipal Systems Act 32 of 2000, which prohibits employment unless the post is provided for in the municipal staff establishment. Griffiths J discharged the rule nisi, finding that Mjali J's order was a nullity because it would require conduct contrary to section 66 of the Municipal Systems Act. The appellant was granted leave to appeal to the Supreme Court of Appeal.

• Whether the high court order of Mjali J dated 13 December 2016 was a nullity
• Whether the respondents' failure to comply with the order of Mjali J constituted contempt of court
• Whether the respondents discharged the evidentiary burden to prove that their non-compliance was neither wilful nor mala fide
• The proper interpretation and application of section 66(3) and (4) of the Local Government: Municipal Systems Act 32 of 2000
• Whether a court order can be disregarded based on a belief that compliance would be unlawful
• The standard of proof required in civil contempt proceedings

The appeal was upheld with costs on an attorney and client scale. The order of the high court was set aside and replaced with an order: (a) declaring the respondents' conduct in failing to comply with Mjali J's order (save for paragraph 2) unlawful; (b) declaring the respondents to be in contempt of the order; (c) ordering the respondents to purge the contempt within 30 days; and (d) ordering the respondents to pay the applicant's costs on an attorney and client scale.

The binding legal principles established are: (1) A court order stands and must be obeyed until set aside by a court of competent jurisdiction, even if it may be wrong (section 165(5) of the Constitution); (2) In civil contempt proceedings, once the existence of a court order, its service, and non-compliance are established, the respondent bears the evidentiary onus to prove that non-compliance was neither wilful nor mala fide; (3) A declaratory order that gives effect to an existing Council resolution converting temporary employees to permanent employees does not constitute an order to "employ" in contravention of section 66(3) and (4) of the Municipal Systems Act; (4) Section 66 of the Municipal Systems Act applies to new employment decisions, not to the implementation of existing valid Council resolutions regarding the status of already employed staff; (5) Courts may declare the employment status of employees pursuant to valid Council resolutions without impermissibly usurping the statutory power to determine staff establishments; (6) A belief that compliance with a court order would be unlawful does not provide a defence to contempt of court where that belief is not objectively reasonable, particularly after higher courts have refused leave to appeal; (7) Organs of state have a duty to conduct litigation properly and to implement valid Council resolutions; failure to do so may justify punitive costs orders on an attorney and client scale.

The court made several important obiter observations: (1) The court criticized the respondents' litigation conduct, noting they dragged out litigation unnecessarily, filed documents late requiring repeated condonation applications, were not candid with the court, and provided information scantily; (2) The court emphasized that organs of state must be exemplary in compliance with the rule of law and should seek to rectify unlawfulness (citing Merafong City v Anglogold Ashanti Ltd); (3) The court observed that state functionaries must, when faced with irregularities in public administration, seek to redress them rather than perpetuate them; (4) The court noted that the respondents provided no explanation for their failure to apply resolution 10/11 to the appellant, leaving a "huge void" in their case; (5) The court commented that the respondents never explained why the resolution converting temporary to permanent positions was not implemented, whether it was varied or rescinded; (6) The court observed that before a position was advertised in 2005, it must have been in the municipal staff establishment; (7) The court noted that the organogram attached to the answering affidavit was unhelpful as it was undated with no averment as to when it was adopted; (8) The court remarked that the respondents' attempted denial that the appellant was ever employed was contradicted by their own evidence showing salary payments until 2014; (9) The majority expressed the view that paragraph 2 of Mjali J's order was "overbroad" in creating a permanent post, which is the preserve of the municipal Council. The dissenting judgment observed that even unreasonable refusal to comply may be bona fide, and that unreasonableness could evidence lack of good faith but does not conclusively establish it.

This case is significant in South African law for several reasons: (1) It affirms the constitutional principle that court orders must be obeyed until set aside by a competent court (section 165(5) of the Constitution), reinforcing the rule of law; (2) It clarifies the test for civil contempt of court - once the existence of a court order, service thereof, and non-compliance are established, the respondent bears the evidentiary onus to prove that non-compliance was neither wilful nor mala fide; (3) It distinguishes between orders that impermissibly usurp statutory powers (nullities) and declaratory orders that give effect to existing legal rights or resolutions; (4) It provides guidance on the interpretation of section 66 of the Local Government: Municipal Systems Act, clarifying that it applies to new employment decisions, not to the implementation of existing Council resolutions converting temporary to permanent positions; (5) It emphasizes that organs of state must conduct litigation in an exemplary manner and comply with the rule of law; (6) It confirms that punitive costs orders are appropriate where state functionaries conduct litigation in a lackadaisical manner or fail to rectify unlawfulness; (7) It addresses the scope of court orders in relation to municipal staff establishments and the powers of courts vis-à-vis municipal councils. The dissenting judgment provides an alternative perspective on the balance between judicial authority and statutory prohibitions in municipal employment matters.