EKURHULENI Metro city manager Dr. Imogen Mashazi is in trouble for ignoring an arbitration award against the municipality after repeated attempts to enforce the ruling by the SA Municipal Workers’ Union (Samwu) and its members.

Mashazi was found guilty of contempt of court in August 2023 and sentenced to 12 months’ imprisonment, which was wholly suspended for two years on the condition that she and the municipality comply with an arbitration award within 15 days, according to Labour Court Acting Judge Sandile Mabaso.

In 2021, Acting Judge Mabaso found Mashazi not guilty of contempt of court but ordered her to comply with the order.

Samwu persisted with the case against the municipality, and in the scathing ruling handed down in 2023, Mashazi was found guilty of contempt of court.

"The second respondent (Dr Imogen Mashazi) is sentenced to 12 months’ imprisonment, wholly suspended for two years, on condition that the respondents (the municipality and Mashazi) comply with paragraph two of the order granted on February 9, 2021, under case number J646/20 within 14 days of this order," the Labour Court ruled.

Instead of complying with the ruling to place several Samwu members into various grades and notches on the new salary scale with effect from April 2017, the municipality launched a review application against the arbitration award but failed to prosecute it on time.

The arbitration award was later certified by the Commission for Conciliation, Mediation and Arbitration.

In their defence for failing to comply with the orders, the municipality and Mashazi claimed the delay was bona fide (genuine) and not wilful and mala fide (bad faith).

When the matter came before the Labour Appeal Court (LAC) earlier this month, Mashazi said there had been no personal service of the application of contempt of court to her.

She added that she had not even been cited in her capacity, and no case whatsoever had been made in the founding affidavit that she, in her personal capacity or official capacity, had aided and abetted the non-compliance with Acting Judge Mabaso’s order.

The LAC found that Mashazi was correctly held to be in contempt of court and that her appeal against the order must be dismissed.

"The second appellant (Mashazi) opposed the contempt of court proceedings and participated in all the proceedings leading up to the final arguments, albeit without presenting any evidence. Her entire case is not that she had no knowledge of the contempt proceedings but only that there was no personal service on her," the LAC found last Thursday.

The appeal court also found that Mashazi, as the municipality’s accounting officer, had been directed to ensure that the terms of the arbitration award were complied with within 15 days of the Labour Court’s order.

"Manifestly, on all of this evidence, it is clear that the second appellant (Mashazi) was aware of the arbitration award and the non-compliance by the first appellant (Ekurhuleni) of which she was the accounting officer.

"The central feature of a contempt order is to protect the authority of the courts of this country. When a party willfully disobeys an order of court and acts mala fide by not taking serious steps to comply therewith, the order holding such a party in contempt is manifestly justified," the LAC found.

Additionally, the appeal court stated that Mashazi knew fully well that the municipality was required to comply with the arbitration award but chose to do exactly the opposite and failed to ensure that there was compliance.

"Her entire defence is based on a tenuous argument that service was not effected on her in her capacity, notwithstanding that, as the accounting officer of the first appellant (municipality), she knew full well about the arbitration award and the judgment of Acting Judge Mabaso instructing compliance therewith," the LAC added.

The appeal court said no defence was offered that gainsaid the conclusion that Mashazi had wilfully and in bad faith failed to comply with a court order directing her to comply with the terms of the arbitration award.

Ekurhuleni Metro and Samwu had not responded to questions on Tuesday.

loyiso.sidimba@inl.co.za

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