By Roy Cokayne.

City of Tshwane municipal manager, Johann Mettler, and executive mayor, Dr Nasiphi Moya, have been ordered to be imprisoned for one month, suspended for a year, for the city’s failure to comply with a court order regarding the investment of R18 million in the Tshwane Fresh Produce Market.

Judge Mmonoa Teffo ruled in the High Court in Pretoria on Monday that the Tshwane Metro was in contempt of court for failing to comply with an order granted by Judge Shereen Meersingh of the same court on 31 October 2022.

Judge Meersingh ordered the Tshwane Metro to submit a precinct plan addressing occupational health and safety and to invest R18 million in its implementation for market maintenance.

Judge Teffo ordered the Tshwane municipal manager and executive mayor to comply with Judge Meersing’s order within 30 days.

She ordered the Tshwane Metro, its municipal manager, and/or executive mayor to, within 30 days, provide the Institute of Market Agents of South Africa with the draft or final precinct plan, a risk assessment and recovery plan for the market premises, and the documents specified in Judge Meersing’s court order.

The Institute of Market Agents of South Africa is a non-profit organisation and the spokesperson for market agents in South Africa.

Judge Teffo also ordered the Tshwane Metro, its municipal manager, and/or executive mayor to, within 30 days of service of her order, provide the Institute of Market Agents of South Africa with an affidavit on implementing the approved precinct plan regarding repairs and compliance with fire and smoke detection, electrical connectivity, facilities, security, lifts and hoists, sanitation, and refuse removal.

They were further ordered to, within 30 days, submit an affidavit detailing the allocation and implementation of the city’s R18 million capital and operational budget for the 2022 financial year.

Judge Teffo also issued a court cost order against the Tshwane Metro.

The Institute of Market Agents of South Africa launched the contempt of court application because it was aggrieved by Tshwane Metro and its attorneys’ conduct in not addressing the concerns it had raised in previous correspondence related to Judge Meersingh’s court order.

On 10 August 2023, Tshwane Metro’s attorneys informed the institute’s attorneys that the metro submitted the draft and final precinct plans within the court-ordered time frames and that the plans addressed the court’s issues.

This correspondence further stated that the Tshwane Metro had complied with the terms and conditions of Judge Meersingh’s court order and was, therefore, not in contempt of that court order.

The institute said the Tshwane Metro failed and/or refused to comply with the terms and conditions of the previous court order in that the draft and final precinct plans submitted to it do not comply with the terms and conditions of the order.

It further claimed that the plans do not prioritise the problems that need to be attended to in terms of the previous order. Despite the concerns it raised about the draft precinct plan, the Tshwane Metro proceeded to submit a final precinct plan without input from the institute.

Non-compliance 

Judge Teffo ruled that despite some efforts, Tshwane Metro has not substantially complied with the order.

She said the criticism of the information provided by the Tshwane Metro regarding the implementation of the court order comes because the metro has failed to deal with the specifics and provide supporting evidence to prove the bald and sketchy allegations made in its answering affidavit.

The Tshwane Metro claimed that the electrical connectivity and facility compliance project, which was planned to commence in the 2023/2024 financial year, must be postponed to the 2024/2025 financial year and later “due to financial constraints”.

Judge Teffo said the fact of the matter is that the problems or difficulties mentioned by the Tshwane Metro related to the implementation of the court order were never brought to the attention of the court and/or the institute before the institution of this contempt of court application.

She added that when the Tshwane Metro encountered or experienced difficulties, it did not return to court to seek relaxation of the terms of the court order.

Judge Teffo said the Tshwane Metro decided to postpone the implementation of specific critical projects, such as replacing the evaporator coils in the ripening rooms and installing a generator for market hall B.

“I cannot find any evidence that establishes a reasonable doubt that the non-compliance with the court order was wilful and mala fide.

“I am persuaded that the first respondent [Tshwane Metro] is in contempt of the court order dated 31 October 2022,” she said.