ABSA and two of its senior managers got a temporary reprieve after being fined R200 000 and jailed for 30 days in a dispute with the troubled Thabazimbi Local Municipality over access to bank accounts.
The banking giant, Emma Mankga, its relationship executive: public sector-retail and business banking in Limpopo, and senior legal counsel: litigation Melissa Muller were hauled to the Limpopo High Court in Polokwane by the municipality and its municipal manager Gladwin Tloubatla for denying them access to accounts and favouring other rival officials.
At the heart of the dispute is, the high court heard, is a feud among rival political parties represented in the Thabazimbi council and the appointment of the mayor, municipal manager, and senior managers reporting directly to the municipal manager.
The 2016 and 2021 local government elections both produced a hung council, which led to the municipality being governed by a coalition.
In 2016, the municipality was led by the DA and included the Thabazimbi Residents’ Association, with its leader, the late former ANC councillor Midah Moselane, who received the mayoral chain after that year’s municipal polls.
After the 2021 local government elections, another DA-led coalition took over and Tokkie Swanepoel became mayor and Thabazimbi Forum 4 Service Delivery’s Ben Tlhabadira was elected speaker.
Swanepoel and Tlhabadira were later ousted in 2023 but the high court found that their removal was unlawful and they were reinstated last year.
The municipality was placed under administration in September last year and its council dissolved, which necessitated the hotly-contested by-elections held in December.
According to court papers, a faction loyal to Tlhabadira interdicted Tloubatla’s faction from accessing the bank accounts at the Thabazimbi Regional Court.
Tloubatla’s faction was successful in getting the regional court’s ruling reviewed and set aside.
However, in December 2023, Limpopo High Court Judge President George Phatudi declared Tloubatla the lawful municipal manager entitled to perform all rights and duties pertaining to that position and immediately granted acting chief financial officer, Kedisaletse Matlou, access and authority to make transactions in respect of all the municipality’s bank accounts held at Absa’s Thabazimbi branch.
Months later in August 2024, Judge Marisa Naudé-Odendaal also ordered Absa to immediately grant Tloubatla and Matlou access and authority to make transactions in respect of all the bank accounts and recognised the two officials as having authority to make transactions on all the accounts.
In addition, Absa was interdicted and restrained from allowing access to the Tlhabadira faction to make any transactions or having any access to any of the bank accounts.
Judge Naudé-Odendaal’s ruling also interdicted and restrained Absa from accepting and carrying out any instructions from the Tlhabadira faction.
The judge also declared that the dispute between the two factions in respect of who is authorised to have lawful access to the municipality’s bank accounts was finally resolved in terms of Judge President Phatudi’s December 2023 order.
A few days after Judge Naudé-Odendaal’s order in August last year, the Tloubatla faction filed a contempt of court application against Absa, Mankga, and Muller.
Mankga exercised control of the municipality’s bank accounts held at Absa’s Thabazimbi branch while Muller dealt with the legal aspects of the disputed access to and control of the accounts from at least December 2023.
The contempt of court matter related to failure to comply with both Judge President Phatudi and Judge Naudé-Odendaal’s rulings.
The municipality and Tloubatla relied on established principles regarding contempt of court and argued that once it is demonstrated that an order was issued and Absa and its officials were aware of it and failed to comply with it, they are presumed to have done so wilfully and mala fide (in bad faith).
Acting Judge Mark Morgan said Absa and its officials carry the evidentiary burden to dispel the presumption made by the municipality and Tloubatla, but they failed to do.
“This lack of compliance and failure to submit confirmatory affidavits from key individuals (Muller and Mankga) left the applicants (the municipality and Tloubatla) with a strong case for contempt,” he explained.
Acting Judge Morgan said Absa had conducted its litigation in a manner full of blatant comedy of errors and procedural irregularities, misrepresentations, and abuse of court processes.
The Acting Judge added that Absa’s counsel disregarded a court directive and informed the court of their attitude towards it and painted a clear picture of why previous orders were not abided by.
He found that Absa submitted its view that it must or can unilaterally exercise the powers and functions of an administrator or curator without a political decision, court order, or empowering statutory provision to that effect.
The Acting Judge asked: “Is it based on some belief that, as a large corporation, Absa is above the law? Is it the result of certain Absa employees’ belief that they can wield corporate power to bully bona fide (genuine) applicants and this court? Whatever the belief, it is worryingly misplaced, and Absa should quickly disabuse itself of this belief.”
He said it was curious and unfortunate that an organisation such as Absa was risking its image and reputation by involving itself in the matter and blatantly disregarding a litany of court orders.
“It appears to me that Absa, through its employees (Mankga and Muller), is attempting to unilaterally assume the role of a self-appointed administrator or curator of the municipality’s finances and management, despite the absence of any lawful decision or legislative framework empowering or obliging it to do so,” remarked Acting Judge Morgan.
In its defence, Absa said it found itself caught in the middle of a conflict between two political factions within the municipality, each vying for control of high public office.
”While this submission may be partially accurate, I believe Absa’s undue interference in matters beyond its concern only worsened the situation,” he added.
On December 18, 2024, Acting Judge 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.
Mankga and Muller are to be released at 4am every Monday or next working day if they were committed for a period during the 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 bank and its officials have for now evaded jail time paying the cumulative R200 000 fine after they applied for leave to appeal the judgment.
Absa failed to answer questions sent on Thursday despite promising to “respond as soon as possible”.