Department of Education: Eastern Cape v Siyaphambili Trading 98 CC and Another (1718/2019) [2020] ZAECGHC 109 (29 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no.: 1718/2019

In the matter between:

THE DEPARTMENT OF EDUCATION:

EASTERN CAPE

Applicant

and

SIYAPHAMBILE TRADING 98 CC

First Respondent

JERRY SIFANELE

Second Respondent

JUDGMENT

Coltman AJ:

Introduction

[1] The applicant is the Department of Education, Eastern Cape. It is responsible and obliged to provide infrastructure necessary to give effect to the right to basic education. The first respondent is a close corporation and the second respondent is its managing member.

[2] On 9 June 2020, Lowe J issued a Rule Nisi calling on the respondents to show cause by personal appearance on 28 July 2020 why a final order in the following terms should not be made:

“1.1 the First and Second Respondent’s be declared to be in contempt of the Order of this Court of 7th June 2019;

1.2 the Second Respondent be incarcerated for a period of 6 (SIX) months;

1.3 the Second Respondent be declared to have breached the condition of suspension at paragraph 3.2 of the Order of this Court of 30th August 2019;

1.4 the Second Respondent be incarcerated for 6 (SIX) months;

1.5 the First and Second Respondent’s pay the costs of the application on a scale as between attorney and client, jointly and severally the one paying the other to be absolved, such costs to include the costs consequent upon the employment of two Counsel”.

[3] The second part of Lowe J’s order (which was returnable on 17 June 2020) called upon the respondents to show cause why an order directing them to cause reparations to certain schools – together with ancillary relief - should not be made final. This order was, indeed, confirmed on 23 June 2020 when Beshe J issued an order in the following terms:

“10.1 The First and Second Respondents are directed to cause the ablution facilities at Tantseka Junior Secondary School, Julukuqu Junior Secondary School and Xwili Junior Secondary School, all of O.R. Tambo District, to be repaired and/or replaced and/or reinstated to the building specification’s and condition which the First Respondent was originally contracted to effect, within 20 days of this Order.

10.2 The First and Second Respondents are directed to pay the costs of the application on a scale as between attorney and client, jointly and severally the one paying the other to be absolved, such costs to include the costs consequent upon the employment of two Counsel where utilised”.

[4] When the matter came before me, Adv Bembe, who appeared on behalf of the respondents, handed up a Notice to Oppose (bearing the Registrar’s date stamp being 24 July 2020 and which appeared to have been served on the applicant’s attorneys on the same date at 09:18) and a Notice of Filing with the Respondents’ Opposing Affidavit to which is attached an “Application for Leave to Appeal” Beshe J’s order of 7 June 2019 (the first order). He also handed up the actual Application for Leave to Appeal, as well as a Notice of Motion (with the attached Founding Affidavit of the second respondent) for the condonation of the late filing of the application for leave to appeal – both documents bearing the Registrar’s date stamps being 27 July 2019 (notably just one day before the hearing of this matter).

[5] Mr Bembe made it clear – at the outset - that his mandate was confined to requesting a stay of the present application on the basis that the first order is being appealed.

[6] It should also be noted that the respondents failed to personally attend court as ordered by Lowe J on 9 June 2020 and no explanation was proffered for their absence.

Background

[7] It is common cause that this matter results from four written Principal Agreements that had been concluded by the applicant, through its implementing agent, the Mvula Trust, with the first respondent (represented by the second respondent) for the construction of ablution facilities at four public schools in the O.R Tambo district, namely, Gwegwe Junior Secondary School (Gwegwe), Tantseka Junior Secondary School (Tantseka), Xwili Junior Secondary School (Xwili) and Julukuqu Junior Secondary School (Julukuqu).

After completion of the project and the handing over of the facilities, a payment dispute arose between the Mvula Trust and the

respondents, as a result of which the respondents proceeded to, at first, locking and barricading the ablution facilities to prevent

access thereto by learners, educators and other members of the school staff. Consequently, and pursuant to the applicant launching an urgent application for a Rule Nisi against the respondents on 7 June 2019, Beshe J issued the first order in the following terms:

“1. That the First and Second Respondents, their employees and agents, be and are hereby interdicted and restrained from intimidating, threatening, harassing or assaulting any of Applicant’s employees, educators or members of the Governing Bodies of:

1.1 Gwegwe Junior Secondary School, OR Tambo District;

1.2 Julukqu Junior Secondary School, OR Tambo District;

1.3 Tantseka Junior Secondary School, OR Tambo District;

1.4 Xwili Junior Secondary School, OR Tambo District.

2. That the First and Second Respondents and their agents and employees be and are hereby interdicted and restrained from entering upon the premises of the public schools mentioned in paragraph 1 above.

3. That the Deputy Sheriff, Mthatha be and is hereby instructed and authorized to enter upon the premises of the said public schools and do all things necessary to dismantle and remove all locks, chains, barricades and apparatus that prevents access to and the use of the ablution facilities and toilets and if necessary, to employ for this purpose, contractors.

4. That the First and Second Respondents be and are hereby directed to pay to the Applicant the costs of and incidental to the implementation of the order at paragraph 3, should there be any.

5. That the Respondents to pay the costs of application”.

[8] It is necessary to point out at this stage that the respondents were represented by Counsel (Adv Barker of the Grahamstown Bar) during the aforesaid proceedings.

[9] Unfortunately, this order seemed not to have had the desired effect, as a Rule Nisi was issued on 16 August 2019 by Lowe J (returnable on 29 August 2019), the relevant terms of which read as follows:

“1. That a Rule Nisi do hereby issue calling on the First and Second Respondents, their agents and associates, to show cause at 10h00 on 29th August 2019, why a final Order should not be issue in the following terms:

1.1 that in relation to the premises and buildings of Gwegwe Junior Secondary School, Julukuqu Junior Secondary School, Tantseka Junior Secondary School and Xwili Junior Secondary School, all of O.R. Tambo District, the First and Second Respondents, whether acting personally or through the agency of any other person, are interdicted and restrained from taking any steps or performing any conduct to dismantle or remove or deal with any portion or component or building material from any structure at the schools;

1.2 that the Second Respondent be held to be in contempt of the Order of this Court of 7th June 2019;

1.3 that the Second Respondent be committed to prison with or without the option of a fine or otherwise punished as deemed appropriate”.

[10] On 29 August 2019 the matter was heard by Roberson J, who reserved judgment until 30 August 2019, on which day the learned judge confirmed the Rule Nisi, declared the second respondent in contempt of the first order and imposed the following sanction:

“3. That the Second Respondent is sentenced to six (6) months’ imprisonment wholly suspended on condition that:

31. the second respondent causes the ablution facilities at Gwegwe Junior Secondary School to be repaired and/or replaced and/or reinstated to the building specifications and condition which the second respondent was originally contracted to effect, within 20 days if this order.

3.2 The second respondent is not to enter the premises of Gwegwe Junior Secondary School, Julukuqu Junior Secondary School, Tantseka Junior Secondary School and Xwili Junior Secondary School in the OR Tambo district, or cause any persons to enter such premises, except to give effect to paragraph 3.1 above, or for any other legitimate purpose with the consent of the applicant or its properly authorised delegate.

7. That should the Second Respondent not comply with the conditions of suspension the Applicant be and is hereby authorised to approach the court on duly amplified papers for further appropriate relief.”

[11] It is further necessary to again point out that the respondents were again represented during those proceedings by Counsel (Adv Cole – who I may add is the most senior member of the Grahamstown Bar).

[12] Despite the above, and pursuant to a further urgent application by the applicant, on 13 March 2020, Rugunanan J granted a Rule Nisi (returnable on 5 May 2020) calling on the respondents to show cause on affidavit and by personal appearance of the second respondent why a final order should not be issued interdicting and restraining them from dismantling the ablution facilities at Gwegwe Junior Secondary School and why the second respondent should not be held to have breached the conditions of suspension of the sentence imposed by this court on 30 August 2019, and further to be sentenced to 6 (SIX) months’ imprisonment.

[13] As a result of the national state of disaster and the lockdown (which started on 26 March 2020), the matter was postponed on 5 May 2020 to 28 July 2020. All schools were also closed until (initially) 8 June 2020. However, it is alleged by the applicant that when the Senior Management Teams returned to the schools on 25 May 2020 to prepare for the reopening of the schools, they discovered that the respondents had removed all the roofs of the ablution blocks and locked the buildings at Tantseka, Julukuqu and Xwili Junior Secondary Schools.

[14] Needless to say, this resulted in the applicant again approaching this court on an urgent basis and the order of Lowe J of 9 June 2020.

The application to stay the proceedings

[15] As indicated earlier, Mr Bembe submitted that the present application should be stayed, as the respondents had filed an application for leave to appeal, together with an application for condonation of the late filing of the application for leave to appeal.

[16] Beshe J obviously still has to hear and consider the aforesaid applications, but for present purposes it is necessary for me to make the following remarks with regard to these applications.

[17] Firstly, there is no substantive application for a stay of the present proceedings before me to consider, Mr Bembe simply having made the application from the bar on the basis of the applications for leave to appeal and condonation of the late filing of the application for leave to appeal having been filed with the Registrar.

[18] Secondly, the application for leave to appeal (accompanied by the application for the late filing thereof) has been filed more than a year and a month after the first order. If regard is had to the second respondent’s founding affidavit in support of the condonation application, he offers as reasons for the delay in applying for leave to appeal the following:

“8. When the judgment and order was handed down, I was represented by R S SIYILA ATTORNEYS … who are my erstwhile attorneys of record and as much as I was made to understand that I complied with the orders, and as a lay person, I always maintained that my erstwhile attorneys had the matter under control. I was surprised that there was a further application for contempt of court and that my said erstwhile attorneys had not advised me that the order would be followed by the said contempt application.”

[19] This paragraph represents the total sum of the respondents’ version as to what had transpired after the first order up to when the second respondent was informed that he “was not receiving proper legal advice” (the date of which is also not made clear by the respondents). It does not, however, answer a number of very important questions. As there is a lack of details in the affidavit, it would be reasonable to assume that the “further application for contempt of court”

refers to the application for a Rule Nisi on 16 August 2019. The respondents fail to explain, however, what further steps they took to rectify the matter with their erstwhile attorneys after that date, as the Rule was confirmed on 30 August 2019. In any event, it goes without saying that there would have been no need for further applications for contempt of court against the respondents if they had complied with the court order.

[20] The second respondent goes on to state that:

“9. I then learnt that I was not receiving proper legal advice hence I appeared in person when the matter was before court on the 9th June 2020 before the Honourable Justice Lowe …”

[21] Again, there is a vast period of time between the order of Roberson J on 30 August 2019 to when the second respondent appeared before Lowe J on 9 June 2020 and with no details provided as to what he had done in the meantime to regularise his legal predicament. As stated earlier, nowhere in his affidavit does he state when he was advised that he was not given proper advice and by whom, that is, whether this advice was given by a lay person or a legally trained person, and what he had done as a result thereof, except for stating that he decided to appear in person before Lowe J.

[22] According to the second respondent, Lowe J advised him on 9 June 2020 to consider the appointment of an attorney to represent him in the present proceedings, but that due to a lack of finances, he only consulted with his present attorneys on 21 July 2020, who advised him that he “should have noted an appeal against the judgment and order dated 7th June 2019 within 14 days from the date of the order and that is why I now make this application for condonation of the late filing of an application for leave to appeal."

[23] He also explains in paragraph 13 of the said affidavit that:

“13.1 The applicants’ failure to apply for leave to appeal within the prescribed time frames was, as demonstrated above, not wilful;

13.2 Had the applicants obtained proper legal advice, they would have opposed

the application and a different outcome would have been obtained.”

[24] However, as I have indicated above, the applicants had been advised some time before the 21st July 2020 (and, in fact, before 9 June 2020) that he had not been given “proper legal advice”. He does not explain, however, what steps he had taken to obtain or why he did not act on this advice and immediately seek “proper legal advice”. There is thus, in my view, a substantial failure on the part of the second respondent to properly explain the delay in filing the application for leave to appeal.

[25] What is more, in my view, the respondents’ bona fide defence (read with the grounds of appeal) appear unconvincing and I say this for the following reasons. The second respondents state that:

“15. In the circumstances, I submit that I have a bona fide defence to the respondent’s claim in the application for an interdict in that, other than the fact that, out of sympathy, I had handed the schools with ablution block keys and refitted the roofs, thereby, as advised, complying with the challenged order, I submit that I had a right of possession, occupation and control over the sites on which the ablution blocks of the schools concerned herein were built as it would be only after payment for the works performed by the 1s Applicant had been made that I would have formerly handed the sites over to the beneficiary schools.”

[26] The respondents raised the same issue before Beshe J during the proceedings of 17 June 2020. In her judgment (delivered on 23 June 2020), the learned judge remarked as follows:

“[6] The second respondent is reported to have given the reason for the dismantling of the ablution facilities as failure by the applicant to pay the respondents in full for the work they performed … For what it is worth, a reading of the ‘affidavit’ reveals that the respondents do not dispute that they acted in the manner alleged by the applicant. It also reveals that the respondents suggest that they were justified in acting in the manner they did because they had not been paid by the Mvula Trust for the work they had performed at the four schools.”[1]

[27] Further on in her judgment, the learned judge stated that:

“[7] The respondents seem to lose sight of or simply ignore the fact that there are court orders that interdict and restrain them from acting in this fashion in relation to these four schools. They may well have a claim valid or otherwise against some party, Mvula Trust or the applicant department or any party, that hardly bestows them a right to take the law into their own hands, to resort to self-help.”[2] (own emphasis)

[28] I am in full agreement with the remarks of Beshe J. It is abundantly manifest that the respondents do not dispute that they had acted in the manner alleged by the applicant.

[29] Furthermore, the further grounds raised in the application for leave to appeal that Beshe J had misdirected herself in granting the order by disregarding the fact that “respondent’s locus standi in judicio was questionable” and that “there was a non-joinder of the Member of the Executive of the Department as the executive of the department” are not sustainable. In my view, bearing in mind that exactly the same parties are before court in the present matter, the mere fact that the respondents did not pursue these grounds in the present proceedings, clearly demonstrate the unsustainability thereof.

[30] I, accordingly, agree with Adv Quinn SC (who, together with Adv Burger, appeared for the applicant) that this is simply a tactic at delaying the hearing of this application, which amounts to a gross abuse of the court process. I, therefore, have no hesitation in dismissing the application to stay the present proceedings.

The applicable legal principles

[31] It is trite that contempt of court is a criminal offence. In Victoria Park Ratepayers' Association v Greyvenouw CC and others[3] Plasket AJ (as he then was) stated that:

“[15] … It is committed, generally speaking, when a person unlawfully and intentionally violates the ‘dignity, repute or authority of a judicial body’ or interferes in the administration of justice in a matter pending before such a body. It

serves three important purposes, namely to protect the rights of everyone to fair trials, to maintain public confidence in the

judicial arm of government and to uphold the integrity of orders of courts”. (footnotes omitted)

[32] The learned judge states in the same judgment that:

“[17] Although usually brought by way of notice of motion, ‘civil’ contempt cases remain criminal in nature. This has led to a re-assessment of the issue of onus. In Uncedo Taxi Service Association v Maninjwa and others Pickering J held that the fundamental right to a fair criminal trial guaranteed by s35(3) of the Constitution requires that, in order for an applicant in contempt proceedings to succeed, he or she must prove the elements of the offence beyond reasonable doubt. I am in agreement with this statement of the law.”[4] (footnotes omitted)

[33] Further on in Victoria Park[5] the learned judge elaborates on and emphasizes the significance of the Constitutional context in which this offence should be considered, and held as follows:

“[19] The principal purpose of contempt of court proceedings when an order has been disobeyed has been held to be ‘the imposition of a penalty in order to vindicate the Court's honour consequent upon the disregard of its order … and to compel the performance

thereof’.14 This purpose must, however, be viewed in a wider context. The Constitution, in which the judicial authority of the State is

sourced, is founded, inter alia, on constitutional supremacy and the rule of law.15 At the heart of the rule of law is the idea, foundational in civilised society, that the law must be administered by independent courts and that, as Dicey expressed it, ‘no man is above the law’ and ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’.

[20] As part of what may be termed a parcel of kindred fundamental rights designed to give expression to the founding value of the rule of law, s34 of the Constitution provides that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. In Chief Lesapo v North West Agricultural Bank and anther17 Mokgoro J set out the purpose of s34 and its relationship to the rule of law. She held:

‘A trial or hearing before a court or tribunal is not an end in itself. It is a means of determining whether a legal obligation exists and whether the coercive power of the State can be invoked to enforce an obligation, or prevent an unlawful act being committed. It serves other purposes as well, including that of institutionalising the resolution of disputes, and preventing remedies being sought through self-help. No one is entitled to take the law into her or his own hands. Self-help, in this sense, is inimical to a society in which the rule of law prevails, as envisioned by s 1(c) of our Constitution. …Taking the law into one's own hands is thus inconsistent with the fundamental principles of our law.’

[21] The learned judge proceeded to hold that an ‘important purpose of section 34 is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’18 and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.

[22] The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:20 the underlying purposes of the right -- and particularly that of avoidance of self-help -- would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore. The Constitution recognises this in s165, the section that creates the judicial authority. Section 165(3) provides that ‘[n]o person or organ of state may interfere with the functioning of the courts’ and s165(5) provides that a any order issued by a court ‘binds all persons to whom and organs of state to which it applies’.” (footnotes omitted)

[34] The Supreme Court of Appeal confirmed in Fakie NO v CCII Systems (Pty) Ltd[6] that an applicant seeking the committal of a person in civil contempt proceedings must prove beyond a reasonable doubt:

33.1 the order;

33.2 service or notice;

33.3 non-compliance; and

33.4 wilfulness and mala fides on the part of the respondent in disregarding the order.

[35] However,

“… once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation

to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether

non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.”[7]

The issues

[36] The existence of the court orders in question are not in dispute, neither is it in dispute that the orders have been served on the respondents and/or that they have knowledge thereof.

[37] What is in dispute is whether there was non-compliance with the orders in question and whether the non-compliance was wilful and mala fide. The respondents raised a further issue (not as a preliminary issue) of urgency, but for reasons that will become clear hereunder, this issue will be dealt with later in this judgment.

The merits

The applicant’s case

[38] According to the Head of Legal Services of the applicant, Edward Wilhelm Scheun (who deposed to the founding affidavit), the respondents complied with paragraph 3.1 of the court order dated 30 August 2019 to the extent that they had repaired and reinstated the ablution facilities at Gwegwe.

[39] However, Mr Scheun alleges that during the school holidays and then the lockdown the respondents did exactly the same thing which they had previously done at Gwegwe, at Tantseka, Julukuqu and Xwili Junior Secondary Schools. In this regard, he attached an affidavit by Louis Van der Vyver (who is an investigator of Rapid Response Investigations), in which affidavit Mr Van der Vyver sets out (with attached photographs) of what the respondents had done at the said three schools.

[40] Mr Van der Vyver alleges that on 5 June 2020 he inspected all three schools and found at Tantseka that the roofs of all four of the ablution blocks had been removed and the buildings locked. He telephoned a senior teacher, Mrs F Janda, who informed him that the second respondent had come to the school with a truck and workers. The second respondent informed her that he was removing the roofs, as the applicant failed to give him all his money. The workers then removed the roofs and locked the facilities. The photographs[8] depict the ablution bocks with the roofs removed and locked entrances.

[41] At Julukuqu, he found that the ablution facilities had been locked. He telephoned the Principal, Mr Jele, who informed him that during the Covid-19 lockdown the respondents had locked all the facilities and that this had only been discovered during preparations for reopening. The photographs[9] confirm that the said facilities had been locked.

[42] At Xwili, he found that the roofs of two of the four ablution facilities had been removed. He interviewed the Groundsman, Mr Sipamandla Hagile, who informed him that during March this year the second respondent sent a truck with employees who removed the roofs. Mr Hagile also spoke to the second respondent who told him that he had not been paid. Again, the photographs[10] support the aforesaid allegations.

The respondents’ case

[43] In answer to the pertinent allegations of the applicant setting out what the second respondent and his employees had done, the respondents

commence (in the opposing affidavit deposed to by the second respondent) by first stating that the first order was made final on 7 June 2019 “… and as such the Respondents were not afforded the opportunity to present their case”[11]. Other than that bald statement, this allegation is not substantiated. I have already indicated earlier in this judgment that the papers disclose that the respondents were represented by Counsel during those proceedings and it is quite clear that the respondents had, indeed, been granted the opportunity to present their case in that matter. Consequently, nothing more needs to be stated in this regard.

[44] The second respondent then proceeds to deal with the respondents’ alleged confusion with the orders of this court[12]. The respondents state that:

“… For example, the first Order of the 7th June 2019 interdicted the Respondents from entering the Schools in issue and there are other Orders in terms of which the Respondents

are directed to restore the ablution facilities to the schools in issue”.

[45] The “other Orders” referred to by the respondents is later clarified as the order of court dated 30 August 2019.

[46] There is, in my view, nothing confusing in the first order and the order of 30 August 2019. The first order, firstly, interdicted the respondents, their employees and agents from harassing, intimidating, threatening or assaulting any of the applicant’s employees, educators or members of the Governing Bodies of the schools.

[47] Secondly, it interdicted the respondents, their agents and employees from entering upon the premises of the said schools.

[48] Thirdly, it directed and authorised the Deputy Sheriff, Mthatha, to enter upon the premises of the said schools and do all things necessary to dismantle and remove all locks, chains, barricades and apparatus that prevented access to and the use of the ablution facilities and toilets.

[49] The relevant terms of the order of 30 August 2019 can be summarised as follows. Firstly, it declared the second respondent to be in contempt of the first order and imposed a wholly suspended sentence of six (6) months’ imprisonment on condition that the second respondent cause the ablution facilities at Gwegwe Junior Secondary School to be repaired and/or replaced and/or reinstated to the building specifications and condition which the second respondent was originally contracted to effect within 20 (TWENTY) days of the order.

[50] Secondly, it interdicted the second respondent from entering the premises of the said schools or causing any person to enter such premises, except to give effect to the condition under which the sentence had been suspended or for a legitimate purpose with the consent of the applicant.

[51] The second respondent (or any other person, for instance, the respondents’ employees) were, therefore, permitted to enter the premises, but only to effect the stated repairs or for a legitimate purpose with the consent of the applicant.

[52] The respondents further aver that they have complied with the order of 30 August 2019 by causing the ablution facilities to be repaired and reinstated as required by the said order “… as they returned the roof and corrugated iron…”[13]

[53] However, what the respondents fail to grasp, is that the present application only pertains to paragraphs 1.1 to 1.5 of Lowe J’s order of 9 June 2020, paragraphs 2.1 and 2.2 having been disposed of by Beshe J on 23 June 2020. The respondents’ difficulty in this matter is that they do not pertinently engage with the applicants’ allegations against them that the second respondent had contravened paragraph 3.2 of Roberson J’s order dated 30 August 2019, viz, by entering the premises of the schools, and dismantling and removing the roofs of the ablution blocks, as well as locking the said buildings.

[54] What is furthermore disturbing, is the respondents’ denial that they had committed the acts complained of by the applicant in the face of what seems to be an admission made in the proceedings before Beshe J on 17 June 2020 (referred to in paragraphs 25, 26 and 27 above). The second respondent stated in his “affidavit” (dated 17 June 2020) handed up in those proceedings that;

“We also want to bring to the attention of this court that the roofs that we are removing were not part of the initial contract and drawing / building plans of those ablution facilities, …”[14] (own underlining)

[55] The reference above to the removing of the roofs is consistent with the applicant’s allegations that the roofs had been removed by the second respondent and as depicted in the photographs attached to the applicant’s founding affidavit.

[56] The denial of any knowledge regarding the removal of the roofs of the ablution facilities in the present application is, therefore, not consistent with the version that had been placed before Beshe J on 17 June 2020. In fact, it is in direct conflict with that version. The respondents do not explain this apparent conflict.

[57] The same holds true with the respondents’ suggestion that “the damage” may have been caused by “the subcontractors”[15].

[58] The above analysis of the version of the respondents, as against that of the applicant, clearly shows that the former’s version – in essence – amounts to a bare denial and does not create a genuine dispute of fact[16]. In adopting a robust and common-sense approach[17], the applicant’s version can, therefore, be accepted on the papers.

Wilfulness and mala fides

[59] I am in agreement with Mr Quinn’s submission that the second respondent was aware of the meaning, ambit and import of the orders in question. The wilfulness and bad faith of the second respondent is clearly demonstrated in, not only his explanations for his conduct (the payment dispute, which he knew did not justify his conduct), but also his actions. This is particularly so when regard is had to the fact that he had already been declared to be in contempt of the first order by Roberson J on 30 August 2019. As earlier stated, there is no question of him not being aware of the fact that he had been declared to be in contempt of the first order. This is clear from the papers filed on his behalf. That is why he effected the repairs at Gwegwe, which was the condition of suspension in paragraph 3.1 of Roberson J’s order. Likewise, he must have known that the

sanction imposed by Roberson J had further been suspended on the condition that he not contravene paragraph 3.2 of the order.

Despite this knowledge and with disdainful and utter disregard of Roberson J’s order, he continued removing the roofs of the ablution blocks at Tantseka and Xwili schools and locking the ablution buildings at Tantseka and Julukuqu.

[60] On top of all of the aforementioned, the respondents failed to personally attend court in defiance of Lowe J’s order of 9 June 2020, with no reasons furnished for their failure to do so. This is downright contemptuous of the orders of this court.

[61] I, therefore, find that the applicant has proved beyond a reasonable doubt that the second respondent had wilfully and with mala fides breached the orders dated 9 June 2019 and 30 August 2019.

[62] In the result, the second respondent is guilty of contempt of court.

Urgency

[63] The respondents only raised the issue of urgency in a one-line sentence towards the end of the opposing affidavit without the averment being properly substantiated.

[64] In Victoria Park[18] the court remarked that:

“[26] The legal point is that ongoing contempt of a court order, by its very nature, is urgent. In Protea Holdings Ltd v Wriwt and another, Nestadt J held that as ‘one of the objects of contempt proceedings is by punishing the guilty party to compel performance of the order, it seems to me that the element or urgency would be satisfied if in fact it was shown that respondents were continuing to disregard the order of 3 August 1977. If this be so, the applicant is entitled, as a matter of urgency, to attempt to get the respondents to desist by the penalty referred to being imposed’.

[27] I agree with the above-quoted statement of the law. I would add that it is not only the object of punishing a respondent to compel him or her to obey an order that renders contempt proceedings urgent: the public interest in the administration of justice and the vindication of the Constitution also render the ongoing failure or refusal to obey an order a matter of urgency. This, in my view, is the starting point: all matters in which an ongoing contempt of an order is brought to the attention of a court must be dealt with as expeditiously as the circumstances, and the dictates of fairness, allow.”

[65] I align myself with the views of the learned judge in the aforesaid judgment and, having regard to the circumstances of the respondents’ non-compliance set out above, the respondents’ challenge on this issue is dismissed.

Sanction

[66] Turning to sentence, Mr Quinn referred me to several cases on this aspect, all of which I found of great assistance and for which I thank counsel. Counsel for the applicant also furnished me with a copy of the judgment in the case of Colin Ian Chaplin v Lauren Fine and Another[19], in which case the point was raised on appeal that, since the SCA held in Fakie “… that a respondent in civil contempt proceedings is entitled to analogous protections to those enjoyed by an accused in criminal proceedings”[20],

“… before sanction was imposed, the court a quo should have permitted him to adduce mitigating evidence, with separate consideration being given to (a) the sentence imposed for the new contempt and to (b) the question whether the suspended sentence of 2017 should be brought into operation”.

[67] After finding that the point had never been raised in the answering papers and heads of argument in the court a quo, Rogers J (Erasmus and Steyn JJ concurring) also dealt with the issue of whether a two-stage process should be followed in civil contempt proceedings. The court held that:

“In relation to sanction, the most important substantive aspect of ‘analogous protection’ is that the respondent in civil

contempt proceedings is entitled to be heard on the question of sanction. The conventional single-stage procedure accommodates

this. First, the respondent is entitled in his answering affidavit, and indeed is expected, to advance facts germane to the

question of sanction in case the court finds him to be in contempt. Second, the respondent is entitled, during argument, to make submissions on the question of sentence if the court should find against the respondent on the merits.”[21]

[68] The court further held that:

“I do not think that fairness dictates that in every contempt application where a criminal sanction is sought a two-stage process

must be followed. To insist on a two-stage process in every case would delay the finalisation of contempt proceedings (where

expeditious determination is usually desirable) and involve both parties in additional expense. Whether fairness dictates that sanction be held over for later determination depends, in my view, on the circumstances of the case. I thus consider Donen AJ’s approach in Soller to be correct.”[22] (own emphasis)

[69] The court also remarked that in cases where the respondent is legally represented, the starting point would be for the respondent to request the court to hold over the question of sentence and to set out the circumstances making it fair for the separation to be granted.

[70] In this matter, despite having been afforded opportunities to do so (at least before Roberson J on 30 August 2019 and in the present proceedings), the applicant failed to present any facts in his answering affidavit on the question of sanction. Mr Bembe similarly did not submit anything on this aspect during his argument. What is more, the respondents were ordered by Lowe J to personally appear before this court to explain their conduct, which opportunity the second respondent could have used to address me on this aspect. He, however, spurned this opportunity as well, apart from again flagrantly disregarding Lowe J’s order.

[71] However, I cannot disregard the fact that there is scant information on the personal circumstances of the second respondent before me. All that can be gleaned from the papers is that he is an adult male businessman and sole member of the first respondent. I do not know, amongst others, his age, whether he is married and whether he has any children.

[72] In my view, therefore, fairness dictates that the second respondent be given an opportunity to adduce mitigating evidence on affidavit and that the question of sanction be held over for determination at a later stage.

Costs

[73] The applicant seeks an order that the respondents pay its costs on the scale of attorney and client. As a result of the respondents’ repeated breach of this court’s orders, the applicant was forced to again approach this court to enforce compliance. Furthermore, not only has the respondents’ conduct been found as criminal in nature, but these proceedings have as its core purpose the preservation and maintenance of the dignity and authority of the courts. I am of the view that a punitive costs order is appropriate on the facts of this case and that the employment of two counsel was justified.

[74] In the result, I make the following order:

1. The first and second respondents are hereby declared to be in contempt of the Order of this Court of 7th June 2019;

2. The second respondent is hereby declared to have breached the condition of suspension at paragraph 3.2 of the Order of this Court of 30th August 2019 and is, accordingly, declared to be in contempt of the said order;

3. That the question of sanction be held over for determination on 29 October 2020.

4. The second respondent is granted leave to file an affidavit within 5 (FIVE) days from date of service of this order in which affidavit the second respondent sets out mitigating evidence in respect of the orders in paragraphs 1 and 2.

5. The first and second respondents are ordered to each file affidavits within 15 (FIFTEEN) days from date of service of this order explaining why they failed to comply with the order of 9 June 2020 by Lowe J to personally appear before this Court on 28 July 2020 and why they should not be found to be in contempt.

6. That service of this Order be effected by the applicant’s attorney by telefax to: 086 538 5290 and e-mail to:

sifanele@workmail.co.za.

7. That the applicant’s attorney telefax and email a copy of this Order to the Deputy Sheriff: Mthatha or any such Sheriff as may be relevant.

8. The first and second respondents are directed to pay the costs of the application on a scale as between attorney and client, jointly and severally, the one paying the other to be absolved, such costs to include the employment of two counsel.

_________________________

J C Coltman

Acting Judge of the High Court

For the applicant:

Adv R Quinn SC and Adv L S Burger, instructed by N N Dullabh & Co., Grahamstown.

For the respondents:

Adv J Bembe, instructed by Mgangatho Attorneys, Grahamstown.

Date heard: 28/7/20

Date delivered: 29 /9/20

[1] Para [6] of the judgment, pages 59 – 60 of the record.

[2] Para [7] of the judgment, pages 60 – 62 of the record.

[3] (511/03) [2003] ZAECHC 19 [2004] 3 ALL SA 623 (SE) (11 April 2003) at para [15]..

[4] At para [17].

[5] At paras [19 to 22].

[6] Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (31 March 2006) at para 42. See further Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) 2015 ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR (CC) at paras [32] and [50]. See too Matjhabeng Local Municipality v Eskom Holdings Limited and Others 2018 (1) SA 1 (CC) at paras [67] and [73].

[7] Fakie, at para 42.

[8] Annexures T1 to T4, pages 27 to 30 of record.

[9] Annexures J1 to J4, pages 31 to 34 of record.

[10] Annexures X1 to X2, pages 35 to 36 of record.

[11] Para 5 of Opposing Affidavit.

[12] Paras 6 and 7 of the Opposing Affidavit.

[13] Para 7.3 of the Opposing Affidavit.

[14] Para 6 of Beshe J’s judgment dated 23 June 2020 at p 60 of the record.

[15] Para 11 of the Opposing Affidavit.

[16] Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3) SA 1155 (T), 1165. See too Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), 634I-635C.

[17] Soffiantini v Mould 1956 (4) SA 150 (E) at 154G-H. See further South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA), para 26; Fakie, at paras 55, 56, 57, 63 and 64.

[18] At paras [26] and [27].

[19] WCP 21 July 2020 (case no. A115/2019) unreported.

[20] At para [192].

[21] At para [202].

[22] At para [208].