Ndabeni v Municipal Manager: OR Tambo District Municipality and Another (1066/19) [2021] ZASCA 8 (21 January 2021)

Ndabeni v Municipal Manager: OR Tambo District Municipality and Another (1066/19) [2021] ZASCA 8 (21 January 2021)

The Supreme Court of Appeal held that the High Court order declaring the appellant a permanent employee was not a nullity. The order did not impermissibly create a new post but declared the appellant's inclusion in the class of employees affected by Council Resolution 10/11. The respondents failed to provide any...

Source-derived case information.

Citation
[2021] ZASCA 8
Parties
Appellant: Nosipho Portia Ndabeni; Respondent: Municipal Manager: OR Tambo District Municipality (Owen Ngubende Hlazo); Respondent: OR Tambo District Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 January 2021
Case Number
1066/19
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division of the High Court, Mthatha
Outcome
Appeal upheld with costs on an attorney and client scale.
Judges
Petse, Zondi, Dambuza, Eksteen, Poyo-Dlwati
Legal Topics
Contempt of Court, Municipal Staff Establishment, Declaratory Relief, Balance of Probabilities, Wilful Noncompliance
Administrative Law Labour Law Contempt of Court Municipal Staff Establishment Declaratory Relief Balance of Probabilities Wilful Noncompliance

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Nosipho Portia Ndabeni

Appellant

Municipal Manager: OR Tambo District Municipality (Owen Ngubende Hlazo)

Respondent

OR Tambo District Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division of the High Court, Mthatha

Legal Issues

  1. 1 Whether the respondents' failure to comply with the High Court order constituted contempt of court.
  2. 2 Whether the High Court order declaring the appellant a permanent employee was a nullity due to contravention of s 66 of the Municipal Systems Act.
  3. 3 Whether the respondents' non-compliance was wilful or mala fide.

Ratio Decidendi

The Supreme Court of Appeal held that the High Court order declaring the appellant a permanent employee was not a nullity. The order did not impermissibly create a new post but declared the appellant's inclusion in the class of employees affected by Council Resolution 10/11. The respondents failed to provide any cogent explanation for excluding the appellant from the resolution's benefits and did not discharge the evidentiary burden that their non-compliance was neither wilful nor mala fide. The provisions of s 66 of the Municipal Systems Act did not preclude implementation of the resolution, and the respondents' reliance on statutory prohibitions was a ruse to avoid compliance. The...

Court Disposition

Appeal upheld with costs on an attorney and client scale.

Orders

  • The appeal is upheld with costs on an attorney and client scale.
  • The order of the High Court is set aside and replaced by: (a) The respondents' conduct in failing to comply with the order of Mjali J (save for para 2 thereof) issued on 13 December 2016 is declared unlawful. (b) The respondents are declared to be in contempt of the aforesaid order. (c) The respondents are ordered...