Rustenburg United Local & Long Distance Taxi Association and Others v Provincial Commissioner of Police North West Province - Solly Kwena and Others (UM 230/2019) [2021] ZANWHC 15 (17 February 2021)

Reportable:

YES

/ NO

Circulate to Judges:

YES / NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: UM 230/2019

In the matter between:

RUSTENBURG UNITED LOCAL & LONG

DISTANCE TAXI ASSOCIATION 1ST APPLICANT

VERONICA NELLA NODONGWE

2ND APPLICANT

REBECCA BERTHA MAKGALE

3RD APPLICANT

SOPHIA MTILA

4TH APPLICANT

REFILOE LYDIA RATSOMA

5TH APPLICANT

RAINY MADONSELA

6TH APPLICANT

THE REMAINING AFFECTED MEMBERS OF THE

FIRST APPLICANT PER ANNEXURE “X” TO THE

FOUNDING AFFIDAVIT, IN THE MAIN

APPLICATION

7TH APPLICANT

and

THE PROVINCIAL COMMISSIONER OF

POLICE NORTH WEST PROVINCE –

SOLLY KWENA 1ST RESPONDENT

THE STATION COMMANDER RUSTENBURG –

BRIGADIER GERTRUDE MODISE

2ND RESPONDENT

DIRECTOR OF PUBLIC SAFETY, RUSTENBURG

MUNICIPALITY – MR BOIKANYO

3RD RESPONDENT

PETRUS MAJOLEFA SIBANDA

4TH RESPONDENT

ANDERSON R MOTAU

5TH RESPONDENT

NEO BODIBE

6TH RESPONDENT

LEBO SAMBO

7TH RESPONDENT

BOITUMELO MASANGO

8TH RESPONDENT

STEVE PHOKELA

9TH RESPONDENT

THAMSANQA SHABANGU

10TH RESPONDENT

JUDGMENT

PETERSEN AJ:

Introduction

[1] This application came before me on a semi-urgent basis on 15 February 2021. The relief sought by the applicants is framed in the following terms:

“1. That the forms and services provided for in the rules of the above Honourable Court be dispensed with and that the matter be treated as an urgent application, in terms of the provisions of Rule 6(12).

2. That First to Third Respondents be found in contempt of paragraph 3 of the order of this Honourable Court dated 19 December 2019.

3. That the Fifth to Tenth Respondents be found in contempt of paragraph 2 of the order of this Honourable Court dated 19 December 2019.

4. That the First to Third Respondents are sentenced to 30 (thirty) days imprisonment.

5. That the Fifth to Tenth Respondents are sentenced to 90 (thirty) days imprisonment.

6. Alternatively to prayers 4 and 5 above the above Honourable Court imposes a sentence upon the Respondents which the above Honourable Court deems appropriate.

7. That the Respondents are ordered to pay the costs, jointly and severely, (sic) the one paying the other to be absolved on an attorney and client scale.

8. Further and/or alternative relief.”

[2] The application is premised on the following order granted on 19 December 2019 by Hendricks DJP, following an urgent application:

“1. …

2. THAT: The First to Eighth Respondents be and are hereby interdicted and ordered:

2.1 To only upload passengers at Platform 0, 1, 2 and 3 of the Rustenburg Taxi Rank in accordance with the First Applicants loading schedule, as provided from time to time to the First Applicant’s Chief Queue Marshall by the office of the First Applicant.

2.2 To allow the First Applicant’s Queue Marshall to facilitate the uploading process without any unlawful interference.

2.3 Not to unlawfully interfere with the Second to Seventh Applicants loading rights as contained in the First Applicant’s loading schedule as provided from time to time to the First Applicant’s Chief Queue Marshall by the office of the First Applicant.

2.4 Not to threaten, insult or assault the Applicants in any fashion.

3. THAT: The Ninth to Eleventh Respondents be and are hereby ordered to take each and every steps

necessary to enforce the above order and to maintain law and order, should the First to Eighth Respondents not strictly comply with the above order.

4. …”

[3] The eighth and tenth respondents filed a notice of intention to oppose on 12 February 2021. The remainder of the respondents failed to file notices of intention to oppose. An answering affidavit accompanied by application for condonation for the late filing of the answering affidavit was filed by the first and second respondents on the date of hearing. At the hearing of the application on 15 February 2021, the first and second respondents were represented by Adv Bodibe briefed by the Office of the State Attorney and the fourth to tenth respondents were represented by Adv Mabasa on private instruction.

[4] In submissions before me, no issue was taken with the late filing of the said answering affidavit. In fact, Adv Scholtz for the applicants, in his submissions sought to rely on certain allegations made in the answering affidavit to support the case for the applicants. An application for postponement of the application was moved on behalf of the fourth to tenth respondents for filing of an answering affidavit or in the alternative to address the Court on the merits of the papers filed of record. The application for postponement was refused. Counsel was consequently invited to address this Court on urgency. Having heard Counsel for the parties, I ordered that the application be heard as a matter of urgency.

The parties

[5] The first applicant is a taxi association with legal persona and an adopted constitution and operates as a long distance taxi association in Rustenburg. The second to seventh applicants are taxi operators and members of the first applicant. The first to third respondents are the law enforcement arm of State, who were ordered to give effect to the order of 19 December 2019.

The background facts relied on by the applicants

[6] The facts on which the applicants rely to show this Court that the respondents are in contempt of the of 19 December 2019 are set out at paragraphs 8.1 to 8.12 and emphasized in paragraphs 9.2 and 9.3 of the founding affidavit. I deem it appropriate to repeat these paragraphs seriatim to set out the basis of the complaint by the applicants:

“8.1 After the granting of Annexure “A” there had initially been strict compliance to the order, by the Fourth to Tenth Respondents and those persons associated themselves with the respondent (which includes the taxi operators).

8.2 However, on about November 2020, these Respondents commenced sporadically ignoring the order the above Honourable Court causing the havoc and unlawfulness as was described in the main application, to recommence on certain days.

8.3 As mentioned above the unlawful conduct initially commenced in sporadic fashion with the Respondents would give their co-operation, and comply to the order. On a next occasion the Respondents would then simply ignore the order, and would not allow the Applicants to load passengers, as per the court order.

8.4 During these sporadic outbursts of the Respondents (in not complying to the order), the Second and Third respondents had been approached time and again to give assistance, and had been requested to comply to the duty as contained in the order (being to take each and every step necessary to enforce the order and to maintain law and order should the Respondents not comply to the order).

8.5 All our complaints fell on deaf ears, and the Second and Third Respondents are simply ignoring the situation. During the mid-November 2020, and as a result of our frustration, we again approached our attorney, who arranged a consultation with counsel. Counsel advised that, due to the fact that the non-compliance of the order is only sporadic, a letter should be addressed to the Second and Third respondents re-inviting their attention to the court order, and insisting on their implementation of the order. These letters have been served by the Sheriff on the Second and Third respondents, and I attach both the letters and the return of services hereto as annexure “A” and “B” respectively. We received no reply or assistance from the Second and Third respondents, whatsoever.

8.6 Despite various requests to both the Second and Third respondents to visit the Rustenburg taxi rank in order to maintain law and order, the Second and Third respondents did nothing to remedy the unlawful conduct. No less than 10 criminal charges has been laid with SAPS Rustenburg, and we are not getting any response in respect of these cases.

8.7 Towards the end of December 2020 with the festive season in mind the Respondents then adopted the attitude of not allowing any of the Applicants vehicles to upload passengers, and therefore took the total passenger market for themselves, in total contravention of the order of the Honourable Mr Justice Hendricks DJP.

8.8 It therefore goes without saying that all the Applicants are currently without any income, and are not even allowed at the taxi rank by the Respondents. Once the Applicants attempt to enter the rank, the Respondents drivers block all the entrances in order to prevent the Applicants to upload passengers. Obviously the Applicants are highly frustrated at this stage, as they are totally deprived of their income. Most of the Applicants are financially ruined. They are behind with their vehicle instalments, and their taxis can be reposed at any time.

8.9 Still we hoped that the Second and Third Respondents will come to their senses and realise that they are bound in terms of the order to maintain law and order. At the Rustenburg Taxi Rank. We, as Applicants, even approached the Second Respondent (Brigadier Modise) in person who indicated that she will not send here police officials to the taxi rank to be que-Marshals. This is not an attitude which should be appreciated the above Honourable Court.

8.10 Both the First to Third Respondents are dismally failing with their duty towards the Applicants, both in terms of statute and the order of the Honourable Mr Justice Hendricks. It is mind boggling why the First Respondent is not intervening in his capacity as Provincial Commissioner of the SAPS.

8.11 Due to the fact that we are financially ruined we could not approach the High Court earlier. We therefore out of desperation, applied for a protection order against the Respondents in the Rustenburg Magistrates Court on 22 January 2021, a copy of the aforesaid protection order is attached hereto as annexure “C”, contents of which is self-explanatory. This interim order anticipated on the 2 February 2021 by the Respondents where after Magistrate Pondo suspended the interim order for reasons unknown to us, his order is attached hereto as annexure “D”.

8.12 Our attorney then approached counsel out of desperation, as we are severely oppressed. Counsel then advised that there should be proceeded with an application for contempt of court, and that given these special circumstances which are present at this case being:

a. That we are severely oppressed.

b. That we are deprived of any income.

c. That we are threatened by the Fourth to Tenth Respondents, and those who associate themselves.

d. That are spoliated from the taxi rank.

e. That the taxi industry is a very violent industry, and the current situation might easily result in unrest and even death.

9.2 Whilst the reasons as mentioned in paragraph 8.12 above remains we

are severely oppressed. We therefore respectfully say it is of the utmost importance for the matter to be adjudicated as soon as

possible and for the Respondents to be found in contempt and be levied the appropriate sanction.

9.3 It is also notorious that the applicants are mostly ladies who must be empowered in the taxi industry, instead they are now oppressed by the Fourth to Tenth Respondents due to their greed. Obviously these Respondents are the instigators of the unlawful acts….”

The prevailing authorities in cases of contempt of court

[7] In Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC) at paragraphs [1] and [2], Nkabinde ADCJ writing for a unanimous Court said the following about the nature of contempt of court applications:

“[1] At their core, these applications raise procedural and substantive issues concerning the requirements of contempt of court, specifically when allegations of contempt ex facie curiae (occurring not in the presence of the court while sitting), are made. Frequently, the resultant committal to prison violates the right to freedom and security of the person − which includes the right not to be deprived of freedom arbitrarily or without just cause and not to be detained without trial − in terms of section 12(1) and the fair trial rights in terms of section 35(3) of the Constitution. (my underlining)

[2] Cases concerning contempt of court are now brought to our courts with more frequency. There is a widely held view that contempt of court is neither criminal nor civil. As a result, the standard of proof required in contempt has become somewhat blurred. Not only that. Courts often employ summary contempt procedures followed by imprisonment in motion proceedings. It is thus necessary for this Court to reflect on and clarify the applicable principles in the process of determining the two matters before us.”

[8] The Matjhabeng judgment has clarified the law on contempt of court at paragraphs [46] to [67]. The position can be summarised thus. Section 165(5) of the Constitution makes orders of court binding on “all persons to whom and organs of state to which it applies”. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Discernibly, continual non-compliance with court orders imperils judicial authority. Non-compliance with court orders may violate the right to freedom and security of the person in terms of section 12 of the Constitution, which includes the right “not to be deprived of freedom arbitrarily or without just cause” and the right “not to be detained without trial”.

[9] To unlawfully and intentionally violate a court order or otherwise stated wilful disobedience thereof is not only contemptuous but a crime. All forms of contempt of court, including civil contempt may be punishable as a crime. Civil contempt as opposed to criminal contempt invariably involves the disobedience of court orders. The procedure and processes for contempt proceedings seeking committal should deviate from criminal prosecutions only to the extent

necessary to make allowance for its unique status. Section 35(3) of the Constitution which applies to criminal matters is equally applicable to civil contempt.

[10] A finding of contempt in civil proceedings is ordinarily made following motion proceedings, where the evidence is contained in affidavits which are not subject to cross examination and where parties proverbially stand or fall on their papers. A court in motion proceedings for civil contempt should in my view be even more vigilant to protect the right to freedom and security of person.

[11] In Matjhabeng, the Constitutional Court endorsed findings of the majority in the judgment of Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA), that the respondent is not an accused person, but is entitled to analogous protections as are appropriate to motion proceedings. The majority held that an applicant in contempt proceedings must prove all the requisites of contempt beyond reasonable doubt. However, it stated that, “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”.

[12] In Fakie supra, the Supreme Court of Appeal, found that the test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately

and mala fide’. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him- or herself entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

[13] The approach to be adopted in dealing with civil contempt was

summarised as follows in Fakie:

“39 To sum up:

1. The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

2. The respondent in such proceedings is not an ‘accused person’, but is entitled to analogous protections as are appropriate to motion proceedings.

3. In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

4. But 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.

5. A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.”

Application of the law to the facts: did the applicants’ show beyond reasonable doubt that the respondents’ have acted in contempt of the order of 19 December 2019 and in particular that the first and second respondents alleged actions were wilful and mala fide?

[14] A careful reading of the allegations by the applicants’ in paragraphs 8.1 to 8.12 and 9.2 and 9.3 demonstrates a lack of particularity and instead is tantamount to the firing of a broad salvo against the respondents. The reliance by the applicants on paragraph 21.2 of the first and second respondents answering affidavit which reads: “The Respondents do not oppose the hearing of the application on the basis of urgency given the volatile situation at the taxi rank and the fact that life and limb is at risk.” does not advance the case for the applicants’. It in essence calls on this Court to infer that the behaviour complained of, has been perpetrated by the fourth to tenth respondents, with no specificity of the alleged incidents or identifying the perpetrators of such acts.

[15] The case for the applicants in respect of the first to third respondents and answered by the first to third respondents demonstrates no wilful disregard or mala fides in respect of the enforcement of the order of 19 December 2019.

[16] Section 35(3)(a) of the Constitution which applies equally to civil contempt provides that:

“(3) Every accused person has a right to a fair trial, which includes the

right-

(a) to be informed of the charge with sufficient detail to answer it;”

[17] Even if this Court, as invited by Adv Scholtz, looks at the evidence of the applicants’ and that of the first and second respondents’ holistically, the evidence fails to meet the constitutionally entrenched standard that the facts which underscore the complaint by the applicants’ be set out with sufficient detail for the respondents’ to answer to it. There is a further problem in the evidence of the applicants’. If this Court were to apply inferential reasoning to the evidence of the applicants’, the case is hamstrung in that there are no proven facts with sufficient particularity from which inferences can be drawn and then very importantly, that the only reasonable inference to be drawn is that the fourth to tenth respondents’ have all been responsible for the alleged disobedience relevant to the order of 19 December 2019.

[18] It is apparent that there appears to be prima facie evidence of acts being perpetrated akin to those which resulted in the order of 19 December 2019, but the evidence falls gravely shy of specifics in relation to all the incidents complained of, who the drivers in question who caused the incidents were and any direct role in such acts by the fourth to tenth respondents, save to allege that they are obviously the instigators of the unlawful acts.

[19] In considering the evidence presented by the applicants’ it fails in making a case that the necessary prerequisites for contempt of court have been established.

Costs

[20] The applicants’ sought to have this application enrolled on a semi-urgent basis, which on consideration of the timeframes set by the applicants’ is in fact tantamount to an application set down on extreme urgency. The evidence presented by the applicants’ in the founding affidavit, was set out very vaguely with a lack of specificity. For these reasons, the applicants’ having been the unsuccessful party, I can find no reason why they should not bear the costs of this application as is custom.

Order

[21] It is according ordered that:

The application be and is hereby dismissed with costs.

A H PETERSEN

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

FOR THE APPLICANTS: ADV. H SCHOLTZ

INSTRUCTED BY:

MWASE ATTORNEYS

C/O T.L. SEELETSO ATTORNEYS

FOR THE FIRST AND

SECOND RESPONDENTS: ADV. O Y DEBETSO-BODIBE

INSTRUCTED BY:

THE STATE ATTORNEY

MMABATHO

FOR THE FOURTH TO

TENTH RESPONDENTS: ADV MASHABA

INSTRUCTED BY:

RANGWAKO ATTORNEYS

C/O K I SEPENG ATTORNEYS

DATE HEARD: 15 FEBRUARY 2021

DATE HANDED DOWN: 17 FEBRUARY 2021

THE JUDGMENT WAS HANDED DOWN BY E-MAIL TO THE PARTIES AND IS DEEMED TO HAVE BEEN HANDED DOWN BY 16H00PM. A SIGNED COPY HAS BEEN FORWARDED TO THE REGISTRAR OF THE ABOVE HONOURABLE COURT