Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) (CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015)

Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) (CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015)

The Constitutional Court found that while the Ekurhuleni Metropolitan Municipality failed to comply with its constitutional obligations and the Court's orders, the essential element of service of the order was not established. The Municipality and its attorney provided undisputed evidence that they were not made aware of the relevant directions and orders due to changes in contact details. As a result, the Court could not infer wilfulness or mala fides, and contempt was not established. However, the attorney's failure to notify the Registrar and his client of the change of address constituted gross negligence, warranting a costs de bonis propriis order. The Court further held that the...

Citation
[2015] ZACC 10
Parties
Applicant: Nthabiseng Pheko; Applicant: Occupiers of Bapsfontein Informal Settlement; Applicant: 776 Further Applicants; Respondent: Ekurhuleni Metropolitan Municipality; Amicus Curiae: Socio-Economic Rights Institute of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
7 May 2015
Case Number
CCT 19/11
Procedural Posture
Civil Application / Contempt Proceedings Following Supervisory Orders
Outcome
Contempt not established; joinder of responsible officials ordered; costs de bonis propriis awarded against attorney.
Judges
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J, Zondo J
Legal Topics
Contempt of Court, Right to Adequate Housing, Supervisory Jurisdiction, Joinder of Parties, Costs De Bonis Propriis, Municipal Obligations
Constitutional Law Land and Property Civil Procedure Contempt of Court Right to Adequate Housing Supervisory Jurisdiction Joinder of Parties Costs De Bonis Propriis +1 more

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Parties

Nthabiseng Pheko

Applicant

Occupiers of Bapsfontein Informal Settlement

Applicant

776 Further Applicants

Applicant

Ekurhuleni Metropolitan Municipality

Respondent

Socio-Economic Rights Institute of South Africa

Amicus Curiae

Procedural Posture

Civil Application / Contempt Proceedings Following Supervisory Orders

Legal Issues

  1. 1 Whether the Ekurhuleni Metropolitan Municipality and its attorney should be held in contempt of the Constitutional Court's orders of 6 December 2011 and 12 March 2014.
  2. 2 Whether the Executive Mayor, Municipal Manager, and Member of the Executive Council for Human Settlements, Gauteng, should be joined to the proceedings for implementation of the supervisory order.
  3. 3 Whether the Municipality's attorney should pay costs de bonis propriis for failure to notify the Municipality of the Court's orders.

Ratio Decidendi

The Constitutional Court found that while the Ekurhuleni Metropolitan Municipality failed to comply with its constitutional obligations and the Court's orders, the essential element of service of the order was not established. The Municipality and its attorney provided undisputed evidence that they were not made aware of the relevant directions and orders due to changes in contact details. As a result, the Court could not infer wilfulness or mala fides, and contempt was not established. However, the attorney's failure to notify the Registrar and his client of the change of address constituted gross negligence, warranting a costs de bonis propriis order. The Court further held that the...

Court Disposition

Contempt not established; joinder of responsible officials ordered; costs de bonis propriis awarded against attorney.

Orders

  • The Ekurhuleni Metropolitan Municipality and Mr Bongani Khoza are not held in contempt of the Court's orders of 6 December 2011 and 12 March 2014.
  • The rule nisi issued on 28 August 2014, in respect of the Executive Mayor and the Municipal Manager, is discharged.