Answer to a question from a reader

What do I do if the municipality refuses to comply with a court order against them?

The short answer

The best way would be seek to seek legal advice about how to enforce the court order.

The whole question

Dear Athalie

I have no electricity because the municipality keeps cutting off my electricity services. They even charge me rates and taxes on a house that has an illegal structure. I have reached out to the MMC and the Mayor but it was to no success. I eventually approached the High Court on an urgent basis to interdict the Municipality from interrupting my services until the dispute was resolved. I was granted an interim order with a rule nisi which filed their notice of intention to oppose but never filed their opposing papers. The rule was eventually confirmed in 2016 after being extended on three instances.

What can I do?

The long answer

These are never straightforward matters, but let’s first look at what the Constitution says about court orders: Section 165 (5) of the Constitution says that any order issued by a court “binds all persons to whom and all organs of state to which it applies”. 

So, to ignore a court order is not only frustrating for you, who had applied for it, but it also undermines the Constitution which holds that no one is above the law. 

Remember that the Constitutional Court found former President Jacob Zuma guilty of contempt for refusing to appear before the Zondo Commission, despite the counter claims that he was found guilty without a trial. Contempt of court does not require a trial to establish. Therefore, in the case of President Zuma, his guilty verdict did not require a criminal trial before he was sentenced.

To indicate what a complex matter contempt of court proceedings are, Jason Brickhill, an advocate at the Johannesburg Bar and Director of Litigation at the Socio-Economic Rights Institute of South Africa (SERI), wrote the following in the Oxford Human Rights Hub about the Zuma case: 

"The matter presented a vexing tension between the constitutional imperative to vindicate the rule of law, a founding value of the Constitution, and the human rights of contemnors. This tension arose in the muddy waters of the procedural dilemmas presented by the hybrid civil-criminal nature of contempt proceedings. Such proceedings originate in civil proceedings, but culminate in a finding of guilt – beyond reasonable doubt – of a crime, for which imprisonment is a competent sentence. All this happens without an ordinary criminal trial or any of the protections it offers."

In your case, it would certainly seem that the municipality is in contempt of the court order, but as Schoeman Law in an article for  GoLegal points out, “… certain elements must be proven in order to determine whether the contemnor can in fact be found in contempt. The Court in Mstjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty ) Limited (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) cited that the below requirements must be satisfied in order to succeed with an application:

  • The existence of the order;

  • The order must be served on, or brought to the notice of the alleged contemnor;

  • There must be non-compliance with the order; and

  • The non-compliance must be wilful and mala fide (there must be deliberate defiance of the Court order).”

The first three requirements would seem to be fulfilled in your case, but the last one – that the non-compliance must be wilful and mala fide (in bad faith) – would have to be proved.

On my own municipal accounts, it indicates that even if I have declared a dispute with the municipality over the account, I am still obliged to pay it pending the resolution of the dispute. This is perhaps what the Tshwane municipality is relying on. 

But, as Gift Xaba and Gaby Wesson wrote in a Cliffe Dekker Hofmeyer blog: “On 14 February 2022, the Constitutional Court in Municipal Manager OR Tambo District Municipality and Another v Ndabeni [2022] ZACC 3 reaffirmed that a court order is binding until it is set aside by a competent court, and that this necessitates compliance, regardless of whether the party against whom the order is granted believes it to be a nullity or not. Importantly, however, the court further confirmed that where an organ of state genuinely believes that an order of court is a nullity, then it has a duty in the public interest to pursue an appeal to correct the illegality."

The court summed it up:

  • Court orders granted by a competent court are binding until set aside by a competent court in terms of section 165(5) of the Constitution, irrespective of whether they are valid; and

  • Wrongly issued judicial orders are not nullities.

“The court stated that for an order to be binding, all that is required is that the court in which the order was made must have had jurisdiction. Once this has been established, the decision must either be challenged by way of review (in the instance of some decisions of the Magistrate’s Court) or by complying with appeal proceedings. Whether the decision was right or wrong on the merits does not affect the binding force of the order which stands until it is set aside on appeal or review by a competent court with jurisdiction.”(My emphasis)

Clearly, the municipality is at fault for failing to oppose or appeal the court order and simply ignoring it. So, I would think that your best course is to seek legal advice about how to enforce the court order. 

If you cannot afford a lawyer, you can approach Legal Aid. Legal Aid is a means-tested organisation and must assist people who cannot afford a lawyer. Here are their contact details:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on Nov. 8, 2022, 12:22 p.m.

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