S Steyn t/a Ideal Ways 183 and Bushveld Security Group and Another v Kinosi and Others - Reasons for Order (UM167/22) [2023] ZANWHC 166 (15 September 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO UM167/22

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between: S STEYN T/A IDEAL WAYS 183 AND 1ST APPLICANT BUSHVELD SECURITY GROUP JOSEFA IITA 2ND APPLICANT AND RASTA CYFORD KINOSI 1ST RESPONDENT WHITE BASIME 2ND RESPONDENT PIET G SELOGETLO 3RD RESPONDENT CAPT PHIRI: STATION COMMANDER BOSHOEK SAPS 4TH RESPONDENT THE PROVINCIAL COMMISSIONER: SAPS: POTCHEFSTROOM 5TH RESPONDENT IN RE: S STEYN T/A IDEAL WAYS 183 AND 1ST APPLICANT BUSHVELD SECURITY GROUP JOSEFA IITA 2ND APPLICANT MACEDO SEGUNEDA 3RD APPLICANT THOMAS LIWISHI 4TH APPLICANT S HIPANDULUA 5TH APPLICANT NELENGE NGABERILE 6TH APPLICANT ROMANUS KAREMBELA 7TH APPLICANT G SITARARA 8TH APPLICANT FRANCE JOHN HENNIE 9TH APPLICANT JOSEPH MASEKA 10TH APPLICANT DAVID KATEMBO 11TH APPLICANT IMMANUEAL SHINOJE 12TH APPLICANT DANIEL SAMBA 13TH APPLICANT MIKASIO NHINAESHINDILI 14TH APPLICANT SAMUEL STOREY 15TH APPLICANT KATEMBO JONAS 16TH APPLICANT AND RASTA CYFORD KINOSI 1ST RESPONDENT WHITE BASIME 2ND RESPONDENT A PERSON CALLED”LAURENCE” 3RD RESPONDENT ANY OTHER PERSONAE WHO ASSOCIATE THEMSELVES WITH THE UNLAWFUL CONDUCT OF THE 1ST TO 3RD RESPONDENTS 4TH RESPONDENT THE STATION COMMANDERS: BOSHOEK AND GANYESA POLICE STATIONS 5TH RESPONDENT THE PROVINCIAL COMMISSIONER OF POLICE: POTCHEFSTROOM 6TH RESPONDENT

REASONS FOR ORDER

Reddy AJ

Introduction

[1] Civil contempt of court procedure is an invaluable contrivance to ensure compliance with court orders. It happens infrequently that a contemnor is handed a punitive order of direct committal. Instead, coercive orders are commonplace, in terms whereof the contemnor is instructed to comply with the order offended. Notwithstanding the resultant sanctions, our jurisprudence requires strict compliance with court orders and the legal principles relevant thereto.

[2] An application was moved before me in the following terms:

1. This application be heard as one of urgency in accordance with Rule 6(12), the requirements of the Rule of the High Court in respect of notice, forms and service and the time periods being dispensed with and that the applicant’s departure therefrom be condoned.

2. That the First, Second and Third, Fourth and Fifth Respondents be called upon to show reason why they should not be committed to prison for a period of 30 days for being in contempt of the terms of the Court Order made by this Honourable Court on 24 January 2023 under the above stated case number.

3. In the alternative to prayer that the First, Second, Third, Fourth and Fifth Respondents be called upon to show Cause why they should not be committed to prison for a period of 30 days for being in contempt of the terms of the court order of this Honourable Court dated 24 January 2023, but that the period of imprisonment be suspended provided that:

3.1 That the Respondents commits to adherence to the court order dated 24 January 2023.

3.2 The Respondents jointly and severally tender the costs on an attorney client scale for the costs occasioned in the bringing of this application because of their wilful and mala fide conduct.

4. That the costs of this application be paid by the Respondents, jointly and severally, on the scale as between attorney and client.

5. Further and/or alternative relief.”

[3] The application was opposed by the second, fourth and fifth respondents. The first and third respondents did not oppose the relief sought.

The Parties

[4] Prior to conceptualizing the background facts, a proper description of the parties would be apt, for ease of reading. The first applicant is Bushveld Security Group (“Bushveld Security”). The second applicant Josefa Lita(“Lita”) is employed by the first applicant.

[5] The first respondent is Rasta Cyford Kinosi (‘Kinosi’), an adult male person residing in the geographical location of Morokweng. The second respondent is White Basime (‘Basime’), an adult male residing at Ganyesa Village, Ganyesa, North West Province. The third Respondent is Piet G Selogelo (“Selogelo”) a major male person with offices at Tosca , adjacent to the Tosca Post Office.

[6] The fourth respondent is Captain Phiri, at present the Station Commander of Boshoek SAPS. The fifth respondent is the Provincial Commissioner SAPS (‘the Provincial Commissioner’), North West Province, the nominal head responsible for the policing.

[7] The fifth respondent is the Provincial Commissioner SAPS, North West Province, with his office address, being Wachthuis Potchefstroom, and cited herein as the nominal head responsible for policing.

The order of Snyman J ( now Reid J)

[8] To fully appreciate the legal backdrop to the current relief sought, the order granted by Reid J (Snyman J as she previously was), merits repetition in its actual form. The order of 26 August 2022 reads as follows, which called upon amongst others the first and second to fifth respondents to show cause why the relief set out in paragraph 2 of the rule nisi, should not be made final. The complete order reads as follows:

1. THAT: the ordinary rules pertaining to form, service and notice be dispensed with and that this matter be heard as one of urgency in terms of RULE 6(12) OF THE UNIFORM RULES OF COURT.

2. THAT: The rule nisi issued calling on the Respondents to furnish reasons, if any, on 20th day of JANUARY 2023 at 10h00, or as soon thereafter as the matter can be heard, as to why the following relief sought should not be granted:

2.1 The First to Fourth Respondents be ordered not to insult, assault, or kill the First to Sixteen Applicants, or any other employee of the Applicant.

2.2 The First to Fourth Respondents are ordered not to cause damage to the Applicants vehicles, equipment, or any other property.

2.3 The First to Fourth Respondents are ordered not to unlawfully interfere with the operations of the Applicant in the KAGISANO MOLOPO district Municipal Boundaries.

2.4 The First to Fourth Respondents are ordered not to unlawfully poach or commit the offence of stock theft, or burn farms in the KAGISANO MOLOPO district Municipal Boundaries

2.5 The First to Fourth Respondents are ordered not to point firearms at the Applicants or to be in possession of dangerous weapons such as knives and spears when in the presence of the Applicant.

2.6 The First to Fourth Respondents are ordered not to be in a radius of 200 metres from the Applicants, with the intention to contravene the terms of this order.

2.7 The Fifth and Sixth respondents are ordered to maintain law and order, should there not be strict compliance to this order.

3. THAT: Prayers 2.1 to 2.7 will be an immediate interim force pending the return

date.

4. THAT: This application and interim order be served in the following fashion :

4.1 By one publication in the STELLALANDER NEWSPAPER of the interim order.

4.2 If possible, on the First to Third Respondents in terms of the rules pertaining to service provided.

4.3 By handling a copy of the order and application to the Respondents by the Sheriff, or by any Police Official, wherever these Respondents may be found.

4.4 Service in terms of the rules on the Fifth and Sixth Respondents.

[9] On 20 January 2023, being the return date of the order, with no amendments to the rule nisi, it was accordingly made final on an unopposed basis. It is common cause the question of urgency had become moot and deserves no further attention. Further thereto, that at the time of hearing of this application, service of the final order had not been affected in person on Kinosi, Basime and Selogelo.

Background facts to the application

[10] On 6 February 2023 at 14h30, Jacques Du Toit (Du Toit), a security manager of the first applicant received a telephone call from a client of Bushveld Security about poaching which was allegedly taking place on a farm close to the Vergelee road. On arriving at the identified area, Du Toit and other security officers came across two male persons identified as Abel Maielgo(“Maielgo”) and F. Galotseae (“Galotseae”) with five (5) dogs. The dogs were about twenty metres (20) behind Maielgo and Galotseae. As Du Toit approached, it became apparent to him that the dogs were going to attack the security officers. Du Toit drew his firearm, discharging shots in the direction of the oncoming dogs. Resultantly three (3) dogs were killed.

[11] In the possession of Maielgo and Galotseae were two (2) warthogs, one which had been disembowelled. According to observations by Du Toit, the dogs were instrumental in the hunt for the warthogs. Maielgo and Galotseae were lawfully arrested by Du Toit, and duly handcuffed.

[12] At 15h17, Schalk van der Merwe, (“Schalk”), an employee of the first applicant, phoned Captain Phiri. Captain Phiri’s retort was curt (brief and rude). The members of the SAPS were a distance away and that there was only a single motor vehicle at the disposal of Captain Phiri. Notwithstanding a request for assistance from the Boshoek SAPS, none was forthcoming. At 19h00, Maielgo and Galotseae were released, owing to the no show of the Boshoek SAPS.

[13] On 7 February 2023, a meeting was held where the pressing issue of illegal hunting aided by dogs which escalates to stock theft, according to many attendees, was one of the issues on the agenda. Advocate Bakeleng, representing the National Prosecuting Authority who was in attendance, confirmed that the shooting of the three dogs was within the confines of the law, as the dogs were merely an extension of unlawful hunting.

[14] Lita contends that Kinosi telephoned him on 7 February 2023, where he spoke of violence and revenge that was planned. During this conversation the contents of the final order were brought to the implicit attention of Kinosi. On the same day, Lita was confronted by a group of 25 to 30 people who demanded R20 000-00 per dog that had been shot by Du Toit. The group were informed of the High Court order and one Bakang who fuelled the group became aggressive and grabbed the copy of the court order. The only utilitarian solution to circumvent a confrontation was to agree to a follow up meeting on 8 February 2023 at 12h00.

[15] On 8 February 2023, an attempt to register a criminal case at the Boshoek SAPS, did not reach fruition as the officers were unable to indicate what form the charges should take. No proper advice could be proffered notwithstanding contact having been made with high-ranking police officers.

[16] While travelling on the Vryburg/ Tosca Road, an attempt was made by a group led by Selogelo to stop Lita and those in his company by blocking the public road. Du Toit contacted Warrant Officer Badenhorst for assistance. Members of the SAPS arrived but that did not deter the group from desisting from embarking in threatening behaviour.

[17] The aggression of the group gained moment and a plethora of alleged breaches of the law occurred. Captain Phiri subsequently arrived at 16h50. The presence of Captain Phiri and his intervention did nothing to result in a deprecation of the criminal conduct of the group. For a second time, to avert confrontation, it was agreed that another meeting be held on 13 February 2023 at 12h00, where the issue of compensation for the dogs that had been shot would be discussed.

[18] Notwithstanding the agreement that a further meeting be held on 13 February 2023, Kinosi contacted Lita on 9 February 2023, and again intimidated him by insisting that certain demands had to be met. In advancing the intimidation perpetuated by Kinosi, Basime caused photographs and videos to be sent to Lita of the killing of cattle, which Basime indicated would occur on 13 February 2023.

[19] The applicants contend that the unlawful conduct of Kinosi and his followers is sanctioned by the SAPS Boshoek and specifically Captain Phiri. A letter was directed to the Provincial Commissioner to sensitize him to what was happening in the area and the real threat to safety of the lives of the applicants and their employees, which triggered no response.

[20] On 13 February 2023 at 09h30am employees of Bushveld Security arrived at Tosca. Members of the SAPS (Public Order Police) later arrived, followed by Captain Phiri who was accompanied by five (5) other police officers from Boshoek SAPS. Kinosi, Basime and Selogelo arrived with approximately fifty (50) individuals. Many of those in the company of the three respondents wielded dangerous weapons and two identifiable individuals had firearms visible on their persons. The said individuals collectively, acted with provocation in the presence of Captain Phiri.

[21] When Du Toit drew the attention of Captain Phiri to the existence of the court order which prohibited the group of individuals from being within a distance of 200m of Bushveld Security or to threaten Bushveld Security, Captain Phiri countered that the group were peaceful and only wanted to negotiate. Captain Phiri also at this point declined to intervene and repudiated any knowledge of any correspondence sent to the Provincial Commissioner. Rather than accept the terms of the court order, Captain Phiri questioned it maintaining that it had spelling and typographical errors without elucidating precisely what the inaccuracies in the order were.

[22] The meeting did eventually proceed at 13h30, near the office of Selogelo, which was next to Tosca Post Office. Du Toit attempted to serve the attendees with a copy of the court order, but the attendees refused to accept same, intimating that the court order has no relevance to them. Issues relating to the legitimate authority which was allowed to stop and search members of the public, was debated. Captain Phiri confirmed that the stopping and searching of members of the public was the domain of the SAPS. Du Toit however countered that the applicants would not be in breach of the law by stopping suspicious vehicles, if they have a reasonable belief that a crime has been committed. Selogelo made certain demands as well as threats at the meeting.

[23] The group started dispersing at around 15h00pm. At 15h50pm an aged individual was attacked outside Tosca, with criminal charges being pursued. The first respondent subsequently telephoned Lita and insinuated retaliatory action.

The case for the applicants

[24] The applicants make the following assertions in the founding affidavit, in endeavouring to make a case for contempt of court:

“155. I point out that as demonstrated by the above corroborated facts, the respondents are beyond a reasonable doubt in wilful and mala fide contempt of the Order

156. The first respondent as far back as the main application already informed the first applicant’s employees that he does not regard himself as being bound by the law.

157. His conduct cannot be described as anything other than wilfully and mala fide defying the court order.

158. His bloodthirst is evident from the ease within which he orchestrates an army of 400 people to carry out his devious plans.

159. The second respondents conduct as illustrated herein before leaves no doubt that he is in wilful male fide breach of the Court Order and so the third respondent who does regard himself bound by the order and clearly stated that he will continue to mobilise people to cause mayhem.

160. The fourth respondent’s inactivity to assist and maintain law and order and his obstructive approach to the court order leave no doubt that he is acting in wilful and male fide fashion.

161. His conduct as an employee of the fifth respondent and the fifth respondent’s seeming inactivity to address the issue and maintain law and order creates the inference of the fifth respondent siding with the offenders and/or at sympathising with them.

162. This constitutes wilful and mala fide non-compliance with the Court order.”

Service of the court order

[25] The applicants contend that there was proper service of the court order. Kinosi (the first respondent), they contend, was served the interim court order personally by Du Toit on 11 January 2023. To bolster the averment of competent service of the order on Kinosi, the applicants placed much store on threatening voice calls of 7 February 2023 made by Kinosi to Lita. The applicants therefore contend that the ineluctable conclusion is that Kinosi had full knowledge of the existence of the final order.

[26] In respect of Basime and Selogelo, the second and third respondents, the applicants point out that both were present on 13 February 2023 when attempts were made to furnish a copy of the court order to the group who were present at the meeting, whilst the first respondent

did not join the meeting preferring to remain with the crowd. Resultantly, the applicants contend that the second and third

respondents were aware of the final orders.

The case for the second respondent

[27] Basime, appearing in person, contended that there had been proper service on Captain Phiri and the Provincial Commissioner. Regarding service on himself, Basime challenged the mode of service as dictated in the order dated 26 August 2022, in that same be done by publication in the Stellalander newspaper. The Stellalander, it was contended, is a predominantly Afrikaans reading medium newspaper, distributed some seventy (70) kilometres away from his residence. Basime rebuffs any suggestion that the court order was served on himself or Kinosi and Selogelo or that it had come to their knowledge.

The fourth and fifth respondents’ versions

[28] The fourth and fifth respondents admit to the service of the interim order dated 26 August 2022. Regarding the final order, same had not been served. The fourth and fifth respondents contend that the applicants have reported various acts of criminality. which receive the necessary police attention and professionalism. To this end, some of these criminal acts have resulted in successful prosecutions, whilst other criminal acts are the subjects of ongoing investigation.

The law

[29] The Supreme Court of Appeal in Fakie NO v CC II Systems (Pty) Ltd, [2006] ZASCA 52; 2006 (4) SA 326 (SCA) set out the requirements necessary to hold a party in contempt of court as follows:

“(a) 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.

(b) The respondent in such proceedings is not an “accused person” but is entitled to analogous protections as are appropriate to motion proceedings.

(c) 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.

(d) 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.

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

[30] Fakie was cited with approval in Pheko v Ekurhuleni City, [2015] ZACC 10; 2015 (5) SA 600 (CC) Matjhabeng Local Municipality v Eskom Holdings Ltd and Others [2017] ZACC 35; 2018 (1) SA 1 (CC) and later in Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma, [2021] ZACC 18; 2021 (5) SA 327 (CC). In Zuma the Constitutional Court held as follows at paragraph [37]:

“As set out by the Supreme Court of Appeal in Fakie, and approved by this court in Pheko II, it is trite that an applicant who alleges contempt of court must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed, and the respondent bears an evidentiary burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established.”

Discussion

[31] Applying the principles set out in Fakie, the existence of the court order is irrefutable. The main issue in dispute turns on the service of the court order on Kinosi, Basime and Selogelo. It is incumbent on the applicants to prove proper service or that the orders of court had come to the knowledge of Kinosi, Basime and Selogelo. The order of Snyman J (now Reid J) prescribed service of the interim order on Kinosi, Basime and Selogelo, firstly by one publication in the STELLALANDER NEWSPAPER, and secondly, if possible, in terms of the Rules pertaining to service, and thirdly by handing a copy of the order and application to the respondents by the Sheriff, or by any Police Official, wherever the respondents may be found.

[32] Basime provided a plausible undisputed version on the first manner of service prescribed in the court order. The Stellalander newspaper is read by a predominantly Afrikaans community seventy (70)km away from where he resides. The first manner of service therefore clearly did not achieve the intended result envisaged by the court order. The inexorable deduction is that court order clearly did not come to his knowledge.

[33] The second manner of service implied in the court order in terms of the Rules of Court, which would be in terms of Rule 4 was not followed by the applicants. Similarly, the third form of service as directed by the court order, by Sheriff (which could only be in terms of Rule 4), or by a police official, was not followed by the applicants.

[34] The applicants relied heavily on the service by Du Toit. Du Toit by his own admission is not a Sheriff or Deputy Sheriff, and neither is he a peace officer. On this basis alone, Du Toit’s service is irregular and not in accordance with the manner of service determined in the court order. The denial by Basime, that Du Toit served a copy of the court order, is therefore of no moment. The subjective contentions of Lita, that Kinosi had contacted him telephonically, and that Lita had informed Kinosi of the final court order, is of little assistance to the applicants.

[35] The contention was that Captain Phiri by his conduct was an indicator of his alignment with the unlawful conduct of the respondents.

Conclusion

[36] In the absence of competent and effective or proper service of the court order, a material requirement was not met. This resulted in the application failing for lack of compliance with one of the material requirements necessary to entertain an application for contempt of court order. The applicants proverbially failed to get out of the starting blocks in respect of all the respondents against whom relief was sought. Lita confirms the ineffectiveness of the service, wherein the following was stated:

“15. I also point out that at a meeting held on 13 February 2023, the second and third respondents were present, and they were provided with the final Court Order by Du Toit in the presence of the fourth respondent and several other Policemen and members of the applicant.

“16. They clearly had knowledge of the contents of the order and refused to accept service on the basis that it relates to Rasta and not them.”

[37] If purposeful avoidance of service of court orders is the narrative contended by the applicants, then recourse to the Rules of Court must be sought to ensure competent and effective service of Orders of Court is adhered to. Contempt of court intrudes on the rule of law, which must be jealously guarded by our courts. Given the severe outcomes of non-compliance with court orders hold, the competent and effectiveness of the service of the court orders are non-negotiable.

[38] Regarding Captain Phiri and the Provincial Commissioner, this Court could not find on the conspectus of the evidence that there had been wilful and mala fide non-compliance with the orders of Court.

[39] There was accordingly no basis to deviate from the normal order in applications of this nature.

Costs

[40] Costs ordinarily follow the result. Basime, the second respondent appeared in person in opposing the application. The fourth and fifth respondents were legally represented. The applicants are accordingly liable for the costs incurred by the fourth and fifth respondents in opposing the relief sought. The applicants are also ordered to pay the costs incurred by Basime, but that is subject to be taxed by the Taxing Master.

Order

[41] These constitute the reasons for the dismissal of the application on 2 May 2023, in the following terms:

(i) The application is dismissed.

(ii) The applicants are to pay the costs of the application, jointly and severally, the one paying the other to be absolved.

A REDDY

ACTING JUDGE OF THE HIGH COURT OF

SOUTH AFRICA NORTH WEST DIVISION, MAHIKENG

APPEARANCES Counsel for the Applicants: Adv N Jagga Attorney for Applicant: Van Rooyen Tlhapi Wessels Inc 9 Proctor Avenue MAHIKENG Tel: 018 381 0804 Counsel for the Respondents: Mr M Moholo Attorney for Respondent: State Attorney 1st Floor, East Gallery Mega City Complex, Sekame Road & Dr James Moroka Drive Mmabatho Date of Hearing: 20 March 2022 Date of order 2 May 2023 Date of Reasons of Judgment: 15 September 2023