CCT19/11A

[2015] ZACC 10

2015 (5) SA 600 (CC)

2015 (6) BCLR 711 (CC)

Nkabinde J

12 August 2014

7 May 2015

http://hdl.handle.net/20.500.12144/34629

See also earlier judgment of the CC, Pheko 1: Pheko and Others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC) and later judgment of the CC Pheko 3: Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (No 3) (CCT19/11) [2016] ZACC 20; 2016 (10) BCLR 1308 (CC) (26 July 2016). The case was first heard in the Pretoria High Court: Pheko and Others v Ekurhuleni Metropolitan Municipality (5394/11) [2011] ZAGPPHC 130 (11 March 2011).

contempt of court — requisites for contempt — judicial authority — court initiating proceedings mero motu — state’s duty to comply with court orders — joinder — costs de bonis propriis — right to have access to adequate housing — service requisite not met — respondent not in contempt of court. The Court’s judgment in Pheko 1 (Pheko v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC)), declared the demolition of the applicants’ homes and their relocation unlawful, and required the Municipality, under the Court’s supervision, to identify suitable land for the applicants’ relocation. The Municipality failed to file reports or to respond to Court directions because its attorney changed addresses without notifying the Court as required by the Court’s Rules. The present proceedings concerned the appropriate remedy when an organ of state fails to comply with a supervisory order because of the conduct of its legal representative. The Court required the Municipality and its attorney to show why they should not be held in contempt of the Court’s order in Pheko 1. Adopting the SCA’s analysis in Fakie (Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA)), the Court found that they were not in contempt, because they had not acted wilfully; but declared that the municipality was in breach of its constitutional obligations for not complying with Pheko 1. The attorney’s failure to formally lodge his change of address with the Court, as the Rules required – leading to non-compliance with the court order – was grossly negligent. The attorney was ordered to pay 50% of the applicants’ costs from his own pocket. Judgment: Nkabinde J (unanimous).