ABSA and two senior managers have lost their bid to overturn a high court judgment fining and jailing them for contempt of court after ignoring orders in matters involving Thabazimbi Local Municipality political factions.
The banking giant, its relationship executive: public sector-retail and business banking in Limpopo Emma Mankga, and senior legal counsel: litigation Melissa Muller were found guilty of contempt of court in December last year after failing to comply with two judgments handed down by Limpopo High Court Judge President George Phatudi and Judge Marisa Naudé-Odendaal, in December 2023 and August last year, respectively.
Limpopo High Court Acting Judge Mark Morgan fined Absa R100 000 while Mankga and Muller were each slapped with R50 000 fines as well as periodic imprisonment of 30 days for contempt of court, which will be spent on weekends or public holidays over 15 weekends or less.
In addition, the order stated that Mankga and Muller were to be released at 4am every Monday or next working day if they were committed for a period during a public holiday.
They were also ordered to present themselves to the Polokwane police station within five days of Acting Judge Morgan’s order, failing which police were directed to arrest and process them to be committed to a correctional facility in Limpopo to commence serving their sentences.
The municipality and its municipal manager Gladwin Tloubatla accused Absa of denying them access to accounts and favouring another faction of rival officials led by former speaker Ben Tlhabadira.
Absa ignored two court orders in favour of Tloubatla handed down by Judge President Phatudi and Judge Naudé-Odendaal.
The state of affairs in the municipality was blamed on political instability and competing claims over the authority to manage its financial affairs.
However, Mankga and Muller’s imprisonment was not effected as the bank and its officials applied for leave to appeal the judgment.
On Friday, Acting Judge Morgan refused Absa’s application for leave to appeal in another scathing judgment, with the presiding officer stating that the bank and its officials’ continued refusal to comply with court orders, their failure to substantiate their legal defence, and their deliberate strategy of selective disclosure demonstrate a clear and contumacious disregard for judicial authority.
Absa has indicated that it has chosen to request permission to appeal from the Supreme Court of Appeal following a thorough review of the Limpopo High Court’s ruling.
”It will do so on the grounds that, as a question of law and fact, it cannot reasonably be guilty of contempt in circumstances where the relevant orders were the subject of multiple appeals and cross appeals which had the effect of automatically suspending their operation and left Absa unable to implement their terms,” the bank said.
According to Absa, the battle over the right to run the municipality’s account became purely academic once the municipality was placed under administration last year.
”Absa can further confirm that it has subsequently provided the clearly mandated administrator with full access to the accounts,” the bank disclosed.
In his judgment, Acting Judge Morgan described Absa’s conduct as not warranting judicial sympathy or leniency.
“It warrants a firm response to vindicate the dignity of the court and the rule of law. The court cannot allow well-resourced litigants to manipulate legal process to avoid compliance with orders they find inconvenient,” the acting judge added.
Acting Judge Morgan warned that to do so would set a dangerous precedent, encouraging parties to evade their legal obligations under the guise of unfounded claims of legal uncertainty and privilege.
“The law does not countenance such tactics, and this court will not either,” he said.
The acting judge continued: “The dignity of the judiciary is not an abstract notion to be pondered in chambers – it is the force that compels compliance, that ensures the law is not mocked by the powerful or ignored by the obstinate.
“This judgment is not merely a rebuke of the applicants’ (Absa, Mankga and Muller’s) conduct; it is a reaffirmation of the principle that justice is not a river that bends to the will of those who seek to divert its course. It flows, unbroken, and it must be obeyed.”
The acting judge said court orders are not words to be weighed on the scale of convenience, nor are they mere formalities to be observed at leisure.
“They are the voice of justice, binding in their command and unyielding in their authority. To disobey them is not simply to ignore ink on paper; it is to erode the very foundation of governance, to chip away at the fragile edifice of order that separates the rule of law from the rule of might,” reads Acting Judge Morgan’s judgment.