State officials not exempt from jail if in contempt of court

The Labour Appeal Court has in a recent judgment put to rest the issue of whether the provisions of section 3 of State Liability Act 20 of 1957 exonerate state officials from incarceration for contempt of court when they disobey court orders.

This issue came before the Labour Appeal Court in the matter of Minister of Health and Another v Bruckner [2007] 5 BLLR 418 (LAC).

The main purpose of section 3 is to ensure that when a minister is cited as a respondent or defendant in actions against the state, and a judgment or order is made against such a minister, that no execution, attachment or similar process will be made against the minister in his, or her personal capacity.

The department of health argued that this prohibits the incarceration of state officials such as ministers and other functionaries for contempt of court when they fail to comply with court orders.

This argument was found to be misplaced. The Labour Appeal Court unanimously found the provisions of section 3 were not applicable to contempt proceedings, but rather to execution or attachment proceedings .

The court stated: "The State Liability Act is not a bar to bringing an action against a public official or functionary (including a minister), for an order to compel that official or functionary to fulfil an obligation imposed upon him, or her by law. Such an action is an action against the public official or functionary concerned and not an action against the state.

"Finally, the State Liability Act does not prevent the institution of proceedings for contempt of court against a public official or functionary who has been ordered by the court to carry out an obligation imposed upon him, or her by law and who has failed or refused to carry out that obligation."

The lesson to be learnt from this case is that state officials, like directors of companies, can be committed to imprisonment if they fail and, or refuse to comply with court orders.

It is, however, important to mention that employees should cite the relevant state official and other functionaries in their official capacities when instituting enforcement proceedings.

In the event that the employee fails to cite the relevant state official and other functionaries as parties to enforcement proceedings, then it is prudent to lodge an application for interdict to compel the relevant state official or functionary to comply with the court order.

Should such not be complied with, then the employee can bring contempt proceedings to have the relevant state official, functionary or director of a company committed to imprisonment for failure to comply with the court order. - David Mogaswa

lDavid Mogaswa is an associate at Werksmans Attorneys

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