Twizza (Proprietary) Limited and Others v Enoch Mgijima Local Municipality and Others; In re Border - Kei Chamber of Business and Others v Eskom Holdings SOC Limited and Others (3413/2018) [2021] ZAECGHC 20 (23 February 2021)
- Citation
- [2021] ZAECGHC 20
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- NG Beshe
- Case number
- 3413/2018
More details
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- NG Beshe
- Case number
- 3413/2018
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that, while it stands by its previous finding that the respondents' non-compliance with the court order was wilful and mala fide beyond reasonable doubt, the Constitutional Court's judgment in Matjhabeng Local Municipality v Eskom Holdings Limited indicates that the explanations offered by the respondents may create sufficient doubt regarding wilfulness and mala fides. Therefore, there are reasonable prospects that an appellate court might reach a different conclusion. The matter does not warrant the attention of the Supreme Court of Appeal, but leave to appeal is granted to the full bench of the division.
Court disposition
Leave to appeal granted to the full bench of the Eastern Cape High Court, Grahamstown. Costs to be costs in the appeal.
Orders
- Leave to appeal is granted to the full bench of this division.
- Costs to be costs in the appeal.
02
Material facts
Parties
Twizza (Proprietary) Limited
Applicant Counsel: S Rorke SCCrickley Dairy (Proprietary) Limited
Applicant Counsel: S Rorke SCFarmhouse Frozen Foods CC
Applicant Counsel: S Rorke SCKing Fisher Inductries CC
Applicant Counsel: S Rorke SCEnoch Mgijima Local Municipality
Respondent Counsel: I J Smuts SCMs Luleka Elizabeth Gubhula-Mqingwana
Respondent Counsel: I J Smuts SCMs Nokuthula Cecilia Mgijima
Respondent Counsel: I J Smuts SC03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Against Contempt of Court Judgment
04
Questions and positions
Legal issues
- 01
Whether the respondents' non-compliance with the court order of 12 December 2019 was wilful and mala fide beyond reasonable doubt.
- 02
Whether the explanation provided by the respondents creates doubt regarding wilfulness and mala fides.
- 03
Whether leave to appeal should be granted to the full bench or the Supreme Court of Appeal.
Party arguments
- Applicant
- The applicants contend that the respondents were in contempt of court for failing to comply with the order issued on 12 December 2019. They argue that the respondents' conduct was wilful and mala fide, and that the requirements for contempt of court have been met beyond reasonable doubt.
- Respondent
- The respondents argue that there are reasonable prospects of success on appeal, specifically that the explanation they provided creates doubt regarding the requirement of wilfulness and mala fides. They submit that the court erred in finding their non-compliance was mala fide beyond reasonable doubt.
05
Court’s reasoning
Legal principles
- 01
Matjhabeng Local Municipality v Eskom Holdings Limited 2018 (1) SA 1 (CC) at paragraphs 86-88
Contempt of court requires proof beyond reasonable doubt of wilful and mala fide non-compliance with a court order.
06
Ratio, limits and disposition
Ratio decidendi
The court held that, while it stands by its previous finding that the respondents' non-compliance with the court order was wilful and mala fide beyond reasonable doubt, the Constitutional Court's judgment in Matjhabeng Local Municipality v Eskom Holdings Limited indicates that the explanations offered by the respondents may create sufficient doubt regarding wilfulness and mala fides. Therefore, there are reasonable prospects that an appellate court might reach a different conclusion. The matter does not warrant the attention of the Supreme Court of Appeal, but leave to appeal is granted to the full bench of the division.
Obiter and limits
- The court noted that the subject of the contempt complaint in Matjhabeng was similar to the present matter, involving non-payment of a municipal bill to Eskom.
Court disposition
Leave to appeal granted to the full bench of the Eastern Cape High Court, Grahamstown. Costs to be costs in the appeal.
- Leave to appeal is granted to the full bench of this division.
- Costs to be costs in the appeal.
Source and reliance status
Eastern Cape High Court, Grahamstown
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Eastern Cape High Court, Grahamstown
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: 3413/2018
In the matter between:
TWIZZA (PROPRIETARY) LIMITED First
Applicant
CRICKLEY DAIRY (PROPRIETARY) LIMITED Second Applicant
FARMHOUSE FROZEN FOODS CC Third
Applicant
KING FISHER INDUCTRIES CC Fourth
Applicant
And
ENOCH MGIJIMA LOCAL MUNICIPALITY First
Respondent
THE EXECUTIVE MAYOR OF
ENOCH MGIJIMA
LOCAL MUNICIPALITY NOMINE OFFICIO,
BEING MS LULEKA
ELIZABETH
GUBHULA-MQINGWANA Second
Respondent
THE MUNICIPAL MANAGER
OF ENOCH
MGIJIMA LOCAL
MUNICIPALITY NOMINE
OFFICIO,
BEING MS NOKUTHULA CECILIA
MGIJIMA
Third Respondent
IN RE
BORDER-KEI CHAMBER OF BUSINESS First
Applicant
TWIZZA (PROPRIETARY) LIMITED
Second Applicant
CRICKLEY DAIRY (PROPRIETARY) LIMITED Third
Applicant
FARMHOUSE FROZEN FOODS CC Fourth
Applicant
KING
FISHER INDUCTRIES CC
Fifth Applicant
SIGHTFULL 142 CC trading as SHELL
ULTRA
CITY
Sixth Applicant
ESKOM
HOLDINGS SOC LIMITED
First Respondent
THE
NATIONAL ENERGY REGULATOR
OF
SOUTH AFRICA
Second Respondent
ENOCH MGIJIMA LOCAL MUNICIPALITY Third
Respondent
THE ADMINISTRATOR OF
ENOCH MGIJIMA
LOCAL
MUNICIPALITY NOMINE OFFICIO Fourth Respondent
LOCAL
MUNICIPALITY NOMINE OFFICIO Fifth Respondent
THE ACTING MUNICIPAL
MANAGER OF ENOCH
MGIJIMA
LOCAL MUNICIPALITY NOMINE OFFICIO Sixth Respondent
IN
RE APPLICATION FOR CONTEMPT OF COURT
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
BESHE J:
[1] This is an application for leave to appeal against my judgment and order delivered on the 8 December 2020. The order I issued was inter alia to the effect that second and third respondents in the matter, now applicants were in contempt of court for failing to comply with an order that was issued by Mfenyana AJ on the 12 December 2019.
[2] The applicants in the main application oppose the application on the basis that the appeal does enjoy reasonable
prospects of success.
[3] One of the grounds of appeal listed in the notice of application for leave to appeal and expanded on by Mr Rorke SC for the applicants in argument is the following:
That I erred in holding that the respondents’ non-compliance with the order of 12 December 2019 was, beyond a reasonable doubt, mala fides.
The question relating to the requirements of contempt of court was considered by the Constitutional Court in a matter I was referred to by Ms Rorke SC which dealt with two matters, one of which also incidentally involved an allegation of contempt of court by officials of municipality
following deed of settlement entered into between the parties. Which settlement was made an order of the court. The matter of Matjhabeng v Municipality Eskom.[1] The subject of the contempt of court complaint, is also similar to this matter in that it concerned the non-payment of a municipal bill to Eskom in one of the matters under consideration by the Constitutional Court.
[4] I still stand by the reasons I gave for coming to the conclusion that that non-compliance with the court order in question was beyond a reasonable doubt, wilful and mala fide. However, after a reading of the Matjhabeng Municipality judgment in particular paragraphs [86] – [88] I am unable to say that there are no reasonable prospects that the appellate court might find that the explanation(s) proffered by the respondents create doubt regarding the requirement of wilfulness and mala fides on their part. Although leave to appeal was sought to the Supreme Court of Appeal on the basis that the matter is of importance, I am not persuaded that this is a matter that calls for the attention of the Supreme Court of Appeal.
[5] Accordingly, leave to appeal is granted to the full bench of this division. Costs to be costs in the appeal.
___
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Applicants : Adv: S Rorke SC
Instructed by :
WESLEY PRETORIUS & ASSOCIATES INC.
C/o
NETTELTONS ATTORNEYS
118A High Street
GRAHAMSTOWN
Ref: Mr M Nettelton/Liza
Tel.: 046 – 622 7149
For the Respondents : Adv: I J Smuts SC
Instructed by :
WHEELDON RUSHMERE & COLE INC.
119 High Street
Ref: Mr Brody/Glyn/S23045
Email: 046 – 622 7005
Date Heard : 16 February 2021
Date Reserved : 16 February 2021
Date Delivered : 23 February 2021
[1] 2018 (1) SA 1 CC at 32 paragraphs 86 -88.
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