Special Investigating Unit v Zakheni Strategic Supplies (Pty) Ltd and Others (GP09/2021) [2025] ZAST 12 (23 July 2025)

IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2(1) OF

THE SPECIAL INVESTIGATING UNIT AND

SPECIAL TRIBUNALS ACT 74 OF 1996

(REPUBLIC OF SOUTH AFRICA)

CASE NO.: GP09/2021

In the matter between: SPECIAL INVESTIGATING UNIT Applicant and ZAKHENI STRATEGIC SUPPLIES (PTY) LTD First Respondent GAUTENG DEPARTMENT OF HEALTH Second Respondent THEMBILE SANGONI Third Respondent

JUDGMENT

Petersen J

[1] The applicant (SIU) approaches the Special Tribunal seeking an order against the first (Zakheni) and third (Sangoni) respondents in the following terms:

“1. Declaring that the First Respondent, ZAKHENI STRATEGIC SUPPLIES (PTY) LTD; is in contempt of the following paragraphs of the Court Order dated 29 June 2022 under case number GP 09/2021 (“the Order”):

“Para 5 Zakheni is ordered to render to the Registrar of this Tribunal and to the Special Investigating Unit (SIU), within 30 days from date of this order, audited financial statements for the financial year/s covering the period during which the parties performed under the impugned contract, to the extent that the audited financial statements reflect all financial information pertaining to the impugned contract together with:

5.1 documents in support of all income derived from, and expenditure incurred on the impugned PPE Contract;

5.2 any other financial information that is relevant to the income derived from, and the expenditure incurred on the impugned contract.

Para 7 Upon written demand by the SIU and within 60 days of service of the written demand, Zakheni is ordered to pay to the SIU the amount found to be due and payable in terms of paragraph 4 of this order after the accounting and debatement exercise referred to in paragraphs 5 of this order, together with interest thereon a tempore morae as prescribed from time to time, applicable from date of service of the written demand until the date of payment.

Para 9 Zakheni is ordered to pay the costs of this application, such to include those consequent upon the engagement of two counsel.”

2. Directing the First and Third Respondents to comply with the Order within the following timeframes:

2.1 Paragraph 5, as soon as possible, and not later than 30 days after the date of this order.

2.2 Paragraph 7, as soon as possible, and not later than 15 days after the date of this order.

2.3 Paragraph 9, as soon as possible, and not later than 30 days after the date of this order.

3. Directing the South African Police Service to arrest the Third Respondent, MR THEMBILE SANGONI, the Sole Director of the First Respondent.

4. Directing the South African Police Service to take all other steps as may be necessary to give effect to the order in paragraph 3.

5. Suspending the orders at paragraphs 3 and 4, pending the First and Third Respondents compliance with the Order within the timelines set out in paragraph 2 of this Order. Should the First and Third Respondents fail to comply with any of the timelines in paragraph 2 of this Order, paragraphs 3 and 4 will immediately become operative.

6. Directing the First and Third Respondents to bear the costs of this application, jointly and severally, on the attorney and own client scale.

7. Further and/or alternative relief.”

[2] Sangoni is the sole director of Zakheni. An application for postponement of the matter and for condonation for the late filing of the answering affidavit of the Sangoni and Zakheni was refused. Reasons were furnished ex tempore in the respective applications and are not traversed in this judgment. The application therefore proceeded on the papers of the SIU.

[3] The case for the SIU, aside from the extensive legal argument advanced in its founding affidavit, is essentially this. The SIU

asserts that Zakheni and Sangoni have wilfully disregarded the Order, indicating an intention to evade their legal obligations. That, instead of complying or seeking a lawful stay, they have filed a separate review application in the Gauteng High Court (Case No. 8427/2022) on 28 July 2022, one month after the Order was issued. Notwithstanding this submission, the SIU, in its founding affidavit is acutely aware of the import of paragraph 8 of the Order of 29 June 2002, that:

“8. In the event that any (sic) arises regarding to the execution of this order, either party shall request that a Case Management Conference be convened by this

Tribunal in order to issue directions as to the further conduct of the matter.” (It is assumed with caution that the omitted word from paragraph 8 is ‘issue’ or any other synonym of similar meaning.)

[4] The SIU skirts the purport of paragraph 8 of the Order by acknowledging the content thereof in the founding affidavit, without engaging on its intended purpose. Notably none of the parties requested a Case Management Conference to be convened by this Tribunal to issue directions as to the further conduct of the matter in accordance with paragraph 8 of the Order. I opine that had any of the parties approached this Tribunal in compliance with paragraph 8, the present application in all likelihood would have been rendered unnecessary.

[5] At the heart of this application, the SIU takes issue with the respondents review application which was launched one month after the Order of the Tribunal. Resultantly, the SIU moves from the premise that the respondents' alleged refusal to comply with the Order reflects not a mere oversight, but a deliberate strategy aimed at defying the Tribunal's authority. Two propositions are made in this regard. First, that any oversight would imply an unintentional failure to act, possibly due to misunderstanding or miscommunication regarding their obligations. Second, and in contrast, that a deliberate strategy suggests a conscious choice to disregard the Tribunal's directives, characterized by actions that indicate intent to evade compliance. The SIU thus contends the respondents' continued non-compliance despite explicit notification, repeated reminders, and a concession demonstrates a wilful, mala fide disregard for their obligations in terms of the Order.

[6] The SIU expounds on this argument by contending that Zakheni and Sangoni attempted to obstruct contempt proceedings by requesting an undertaking from the SIU to defer these proceedings, by threatening "appropriate legal steps" if no undertaking was received. This the SIU contends is a further demonstration of the mala fides of the respondents. Since no such undertaking was given, the SIU contends that the respondents have not pursued further "appropriate legal steps," underscoring their lack of a valid legal argument. The SIU therefore opines that the respondents' request for an undertaking was clearly intended to delay proceedings and that this lack of good faith underscores a recalcitrant attitude toward compliance. Resultantly, the SIU contends that the respondents' actions satisfies all the requirements for contempt of court.

[7] The SIU acknowledges as is clear from the founding affidavit that a review application is pending in the Gauteng Division, Johannesburg.

The review remains pending, notwithstanding at least two of the issues raised in the respondents’ review having been determined

decisively by the Constitutional Court in the matter of Ledla Structural Development (Pty) Ltd and Others v Special Investigating Unit (CCT 319/21) [2023] ZACC 8; 2023 (6) BCLR 709 (CC); 2023 (2) SACR 1 (CC) (10 March 2023). The remaining issue which the respondents appear to be persisting in, in the review application impacts the

jurisdiction of the Tribunal to enforce its own orders.

[8] The SIU deals extensively with the trite requirements for civil contempt in its founding affidavit. A brief overview suffices of the law in this regard. The Constitutional Court in Mathjabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Ltd 2018 (1) SA 1 (CC), confirmed the essential requirements for civil contempt as set out in Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA). An applicant who approaches a Court seeking a committal order must prove: (i) a court order; (ii) service or notice of the court order; (iii) non-compliance with the court order; and (iv) wilfulness and mala fides.

[9] In this application, no issue is taken with existence of the order, that the order has been served and that the respondents are fully aware thereof. The requirements at issue in the application impacts non-compliance with the order accompanied by wilfulness and mala fides.

[10] A person makes him/herself guilty of civil contempt when he/she unlawfully and intentionally violates the ‘dignity, repute or authority of a judicial body’ …. (See Milton South African Criminal Law and Procedure (Vol II: Common Law Crimes) (3ed) Cape Town, Juta and Co: 1996, 164. Contempt of court strikes at the heart of the effectiveness of the judiciary as it impacts directly on its orders. In Federation of Governing Bodies of South African Schools (Gauteng) v MEC for Education, Gauteng 2002 (1) SA 660 (T), 673D-E, Kirk-Cohen J held that ‘[c]ontempt of Court is not an issue inter partes; it is an issue between the Court and the party who has not complied with a mandatory order of Court’. Civil contempt of court constitutes a criminal offence, which is ordinarily accompanied by a criminal sanction.

[11] The standard of proof is proof beyond a reasonable doubt. The Constitutional Court further confirmed that once the order has been proved, there has been service or notice of the order, and non-compliance with the order, the respondent bears an evidential burden in relation to wilfulness and mala fides. If the respondent fails to adduce evidence that establishes reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

[12] In Cathay Pacific Airways Ltd and Another v Lin and Another [2017] 2 All SA 722 (SCA), Majiedt JA as he then was, had the following to say regarding the powers of judicial officers, the content of a court order and the citing of a party either in the proceedings in which the alleged impugned order was made and in the contempt proceedings:

“[1] Judges wield enormous power in their courts. Judges decide, sometimes conclusively, the rights and obligations of the parties before them. They are independent, subject only to the Constitution and the law, which they are constrained to apply impartially and without fear, favour or prejudice. But these powers must be exercised with great responsibility and with abundant caution. The overriding consideration in every matter must indubitably be the interests of justice. The blindfolded Lady Justice balancing the scales in her left hand and holding a sword in her right hand personifies the moral force of justice. While all three of these attributes of our system of justice come to the fore in this matter, it is the balancing of the scales of justice that is paramount.

…

[40] Furthermore, there is the added problem that Ms Jones was never cited as a party to the contempt proceedings nor in the proceedings before Wright J. This applies to both the second and third orders in respect of which she had been convicted. No order can be made against a party who is not cited to appear. It is of course so that any person who, with knowledge of a court order, aids and abets the disobedience of a court order or is wilfully party to such disobedience, can also be held in contempt, even though such person is not cited as a party to the contempt proceedings. (fn 20: Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (No 3) (CCT19/11) [2016] ZACC 20; 2016 (10) BCLR 1308 (CC) (26 July 2016) at para 47)

[46] Convictions for civil contempt of court are axiomatically very serious. For this reason the standard of proof is one beyond reasonable doubt. Equally self-evident is the fact that a party must be cited before it can be convicted for civil contempt, unless that party is alleged to have aided and abetted the contumacious disobeying of a court order.”

[13] In a recent decision of the Supreme Court of Appeal, Sheriff of The High Court: Giyani (Sydney Herbert Park, An Officer of Court) v Renky Thulani Makhubela (1270/2023) [2025] ZASCA 104 (15 July 2025), the majority, discussed the issue of mala fides in contempt proceedings, where an expression was given that a court order would be appealed, as follows:

“[58] Since the seminal decision in Fakie, the law in relation to contempt is now settled. A respondent in such proceedings enjoys the analogous protection of an accused person. The requisites that an applicant must show are well known: the existence of an order; service or knowledge of the order; non-compliance with the order; and wilfulness and malice beyond reasonable doubt. Once the first three requisites are proved the respondent bears an evidential burden to show a lack of wilfulness or malice. The test is the criminal standard – beyond reasonable doubt. As the Constitutional Court observed what this means is that mala fides and wilfulness are presumed unless the respondent is able to provide sufficient evidence to create reasonable doubt as to their existence.

[59] There is no doubt that complying with court orders is an incident of the rule of law and is foundational to our constitutional democracy. Contempt is the commission of any act or statement which displays disrespect towards the court. To disobey a court order is a criminal offence, the essence of which is a violation of the dignity and authority of the court. The crime is that of disrespecting the court, and ultimately the rule of law. It cements the notion that no one is above the law. As held by the Constitutional Court in Pheko II:

‘. . . Civil contempt is a crime, and if all of the elements of criminal contempt are satisfied, civil contempt can be prosecuted in criminal proceedings, which characteristically lead to committal. Committal for civil contempt can, however, also be ordered in civil proceedings for punitive or coercive reasons.’

[60] The Constitutional Court in Pheko II went on to describe the difference between coercive contempt orders and punitive contempt orders. The former call for compliance with the original order where the contemnor can avoid the imposition of a sentence by complying with the coercive order.[31] Punitive orders on the other hand aim to punish the contemnor by imposing a sentence which is unavoidable.[32] In this matter the order sought, and granted although not in the same terms, was a punitive contempt order.[33]

[61] It is against this backdrop that the appeal should be considered. The only question is whether the sheriff has met his evidential burden in respect of wilfulness and malice – has the mala fides been shown beyond reasonable doubt.

[73] Contempt of court does not consist of mere disobedience of a court order, but of the ‘contumacious disrespect for judicial authority. Thus it would have to be proved beyond reasonable doubt that the sheriff, a legal officer, deliberately, wilfully and maliciously defied the court order. This is not the case here.

[75] The Sheriff’s conduct is not indicative of a contumacious disrespect of the court. Rather, the sheriff was acting within his rights to appeal an order and then to petition a higher court, as the law allows. To act in terms of the law, as the sheriff was doing, is evidence of respect for the law, the very opposite of a contemptuous bad faith disregard for the law. As was stated in Fakie:

‘. . . [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).’ (Footnotes omitted.)

[76] In the circumstances we are satisfied that the sheriff was not in contempt of court when he did not transfer the funds in terms of the July order. Mala fides and malice have not been shown beyond reasonable doubt.”

[14] Compliance with court orders is the backbone of our legal system. I can see no basis why the same principles should not be applicable to the orders of the Tribunal. I say this mindful of the fact that it has been decisively confirmed by the Constitutional Court that the Special Tribunal is not a court. I re-iterate that none of the parties complied with paragraph 8 of the Order of 29 June 2022 and that the present application just may well have been averted. It matters not that the respondents threatened legal action if the SIU persisted in this application, which they have not followed through. The inescapable fact is that there is a pending review application in the Gauteng Division, Johannesburg.

[15] I have considered the legal argument advanced in the founding affidavit impacting an obligation on the part of the respondents to still comply with the Order of this Tribunal. The pivotal question though is whether the SIU has demonstrated through evidence, that the respondents have, demonstrated mala fides and wilfulness in not complying with the Order on the very onerous standard of proof beyond a reasonable doubt. The sentiments expressed at paragraphs 73 and 75 in Sheriff of The High Court: Giyani (Sydney Herbert Park, An Officer of Court) v Renky Thulani Makhubela are apposite in the present application.

[16] In my view, even in the absence of the answering affidavit of the respondents which has not been admitted by this court, the SIU has not dispensed of the onus to demonstrate mala fides and wilfulness not to comply with the Order, beyond a reasonable doubt. What the respondents are seeking to do is challenge the jurisdiction of the Tribunal to enforce its own orders. This has been a very contentious issue in many of the applications before the Tribunal and an issue meriting resolution.

[17] This contempt application served before this Tribunal close on three years following its handing down. The SIU has not demonstrated any urgency in having the Order enforced. There further appears no prejudice to the SIU in its mandate to recover monies which are destined to be returned to the fiscus whilst the review application is pending.

[18] In the final analysis, I am not satisfied that a case has been made to find Zakheni and Sangoni in his representative capacity, in contempt of the Order of the Tribunal.

Order

[19] Resultantly the following order is made:

1. The application for contempt of court is dismissed.

2. No order is made as to costs.

JUDGE A H PETERSEN

JUDGE OF THE SPECIAL TRIBUNAL

Appearances:

For the Applicant: Adv Nkosi-Thomas

Instructed by: The State Attorney Pretoria

For the First and Third Respondents: Mr T Kwinana

Instructed by: KMNS Inc Attorneys

Date of hearing: 03 June 2025

Date of judgment: 23 July 2025

Mode of delivery

This judgment is handed down by email transmission to the parties’ legal representatives and uploading on Caselines. The time for delivery is deemed to be 12H00 on 23 July 2025.