Meadow Glen Home Owners Association v City of Tshwane Metropolitan Municipality (767/2013) [2014] ZASCA 209; [2015] 1 All SA 299 (SCA); 2015 (2) SA 413 (SCA) (1 December 2014) per Wallis JA and Schoeman AJA (Cachalia and Zondi JJA and Dambuza AJA concurring)

The SCA disallowed the appeal, after replacing a costs order in the high court, and confirmed that the main objectives of contempt proceedings are to vindicate the authority of the court and coerce litigants into complying with court orders even though some punitive element is involved.  This is also the purpose of a suspended sentence.  The high court should have found that there was culpable non-compliance by the Municipality but the individual concerned was not the correct person to hold accountable.

Excerpts without footnotes

“[34] The question of injunctive relief against the State was addressed in Minister of Health & others v Treatment Action Campaign & others (No 2)[13]

After discussing the jurisprudence in foreign jurisdictions on the permissible scope of court orders the court said in para 112:

‘… The various courts adopt different attitudes to when such remedies should be granted, but all accept that within the separation of powers they have the power to make use of such remedies – particularly when the State’s obligations are not performed diligently and without delay.’

And it was held by the court in para 113:

‘South African Courts have a wide range of powers at their disposal to ensure that the Constitution is upheld. These include mandatory and structural interdicts. How they should exercise those powers depends on the circumstances of each particular case. Here due regard must be paid to the roles of the Legislature and the Executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, Courts may – and, if need be, must – use their wide powers to make orders that affect policy as well as legislation.’

[35] Both this Court and the Constitutional Court have stressed the need for courts to be creative in framing remedies to address and resolve complex social problems, especially those that arise in the area of socio-economic rights.  It is necessary to add that when doing so in this type of situation courts must also consider how they are to deal with

  • failures to implement orders;
  • the inevitable struggle to find adequate resources;
  • inadequate or incompetent staffing and other administrative issues;
  • problems of implementation not foreseen by the parties’ lawyers in formulating the order and
  • the myriad other issues that may arise with orders the operation and implementation of which will occur over a substantial period of time in a fluid situation.

Contempt of court is a blunt instrument to deal with these issues and courts should look to orders that secure on-going oversight of the implementation of the order.  There is considerable experience in the United States of America with orders of this nature arising from the decision in Brown v Board of Education and the federal court supervised process of desegregating schools in that country.  The Constitutional Court referred to it with approval in the TAC (No 2) case.

Our courts may need to consider such institutions as the special master used in those cases to supervise the implementation of court orders.

[36] When these matters were raised with them counsel for both parties indicated that they would endeavour to find a workable solution.  This is imperative, as the residents of Woodlane Village have been living in squalid conditions over the past eight years without any solution in sight.  Indeed their hopes for a solution have been repeatedly dashed.  The report of the Tswelopele Non-Profit Organisation makes it clear that the residents have formed a community.

Examples of this are that 85 per cent of the households have at least one person in the formal employment sector; the dwellings are numbered which enable the occupants to access medical facilities; the people have elected an executive committee and in addition to the five members of the committee there are also 31 block leaders.

There is a real likelihood of the parties finding a workable solution if there is the will to do so, even under the authority of an independent overseer that could hold all parties accountable.  In this instance the parties must find innovative methods to resolve the competing interests of the different factions of the community.