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[2014] ZAGPJHC 374
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South African Apartheid Museum at Freedom Park v Stainbank and Others (37609/14) [2014] ZAGPJHC 374 (11 December 2014)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 37609/14
Date:
11 December 2014
Not
reportable
Not
of interest to other judges
In
the matter between:
THE
SOUTH AFRICAN APARTHEID MUSEUM AT
FREEDOM
PARK
incorporated under section 21
(Registration
No. 2001/
019108/08)
...........................................................................................
Applicant
and
ARNOLD
MICHAEL STAINBANK
(ID:
[…])
...........................................................................................................................
First
Respondent
THE
APARTHEID MUSEUM FOUNDATION NPC
(Registration
No.
2009/007306/08)
..............................................................................
Second
Respondent
THE
APARTHEID MUSEUM (Pty) LTD
(Registration
No.
2009/007114/07)
.................................................................................
Third
Respondent
SHIRLEY
SMITH
(ID:
[…])
.......................................................................................................................
Fourth
Respondent
JUDGMENT
KEIGHTLEY
AJ:
INTRODUCTION
[1]
The parties before
me are no strangers to litigating against each other.  As the
Constitutional Court has remarked, they “
have
a long and sticky litigation history marked by acrimonious disputes
and recriminations over the conception, registration and
utilisation
of the trade mark ‘The Apartheid Museum’
.”
[1]
The various related
disputes between the parties span 13 years, and have spawned a number
of judgments.
[2]
The genesis of the ongoing dispute between the parties lies in the
first respondent, Mr Stainbank’s, registration of the
trade
mark THE APARTHEID MUSEUM in his name in 1990, and in 1998.  The
applicant, the South African Apartheid Museum at Freedom
Park,
operates a museum that is located in the Gold Reef City complex.
It opened its doors and was incorporated in 2001 as
a section 21
Company.  It operates under the name and mark THE APARTHEID
MUSEUM, and has become something of a tourist landmark
in
Johannesburg.  The applicant’s museum was established as
part of a casino licence bid by a company called Akani Egoli
(Pty)
Ltd, for what ultimately became the Gold Reef City Casino. The
brothers Solomon and Abraham Krok were intimately involved
in
conceiving and establishing the applicant’s museum.  Other
well-known people who were in one or other way associated
with the
project include Dr Reuel Khoza, who was the CEO of Akani Egoli (Pty)
Ltd at the time, and Mr George Bizos, who is on the
applicant’s
board of directors.  I mention these names for reasons that will
become apparent shortly.
[3]
In 1998 Mr Stainbank published a prospectus detailing his conception
for “The Apartheid Museum” he intended developing.

The concept never reached fruition.  Mr Stainbank has, for many
years, ceaselessly and publicly asserted that the applicant
and its
directors stole his ideas and trade marks in developing its museum.
He holds and has openly expressed his views that
the applicant’s
Apartheid Museum is the antithesis of what he had envisaged, and that
it is embedded in the very racism he,
as a black South African, seeks
to explore and uncover through his project.  Central to Mr
Stainbank’s deeply held views
is the fact that the Krok
brothers profited from developing and marketing skin-lightening
products to black consumers during the
Apartheid era.
[4]
This background to
the acrimonious relationship between the parties has featured in
their various legal disputes over the years.
The litigation
between them has included two successful applications by the
applicant for the cancellation of Mr Stainbank’s
trade mark
registrations for THE APARTHEID MUSEUM,
[2]
as well as an action
for damages instituted by Mr Stainbank against the applicant for an
amount of some R350 million.  Further
litigation has resulted in
an order permanently staying Mr Stainbank’s action, as well as
an interdict against Mr Stainbank
from launching further proceedings
against the applicant without the leave of the court.
[3]
To date Mr Stainbank
has not succeeded in his quest successfully to appeal these adverse
orders, although I have been advised that
Mr Stainbank has recently
petitioned the Supreme Court of Appeal for leave in respect of the
last-mentioned of the judgments.
[5]
Finally, of key importance to the present case, is an order granted
by Tshabalala J in this court on 24 May 2013 (“the
Order”).
[6]
The present
application is the latest in this long line of legal battles.
Despite the wide-ranging legal history between the
parties, the case
before me has a somewhat narrower focus.  In essence, the
question is whether the first respondent, Mr Stainbank,
and his
associated entities, which are cited as second and third
respondents,
[4]
should be held in
contempt of the Order.
[7]
The Order is in the form of an interim interdict, pending the
finalisation of what I will refer to as “the main application”

between the parties.  The main application has not yet been
finalised.  The Order prohibits the respondents from
“publishing,
disseminating to the public, or causing the
publications of, statements about the Applicant, or its current or
erstwhile directors,
or its legal representatives, to the effect that
they, or any one of them”:
[7.1]
“have perpetrated a fraud, or perjury or deceit in connection
with the Applicant, the museum it operates, and the formation

incorporation or foundation of either”;
[7.2]
“are criminals, racist or liars”;
[7.3]
“ ‘stole’ or ‘misappropriated’ (or
expressions to that effect) any intellectual property, idea
or
anything from or belonging to the First Respondent”.
[8]
The applicant contends that Mr Stainbank has “brazenly and
defiantly” continued to conduct himself in breach of
the Order,
and is guilty of contempt.  The applicant seeks an order that:
[8.1]
treats the application as one of urgency;
[8.2]
declares the respondents to be in contempt of the Order;
[8.3]
sentences Mr Stainbank to a period of imprisonment for a period of
three months, suspended for a period of 10 days, with a
view to
providing Mr Stainbank with an opportunity to purge his contempt;
[8.4]
directs Mr Stainbank to purge his contempt within the period of 10
days by, among other things, writing to the recipients
of various
correspondences withdrawing the comments made therein, and
apologising to the applicant, failing which, the sentence
will
immediately take effect.
[9]
Mr Stainbank opposes the application.  He relies, in the first
instance, on what may for convenience be described as a
point
in
limine
in which he contests the jurisdiction of the court.
Should his point
in limine
fail, Mr Stainbank, who was
self-represented before me, requests me to reject the applicant’s
application on the grounds
of constitutionalism and the rule of law.
THE
BACKGROUND TO THE CONTEMPT APPLICATION
[10]
The applicant avers that in the months leading up to the institution
of the main application, Mr Stainbank started publishing
injurious
statements against the applicant, its current and erstwhile
directors, and its legal advisors.  These statements
fell into
the following categories:
[10.1]
statements to the effect that the applicant was incorporated
fraudulently;
[10.2]
statements to the effect that the applicant and/or its directors had
stolen Mr Stainbank’s trade mark, concept or idea
for The
Apartheid Museum;
[10.3]
statements to the effect that the applicant and/or its directors
and/or legal representatives are racists;
[10.4]
statements to the effect that the applicant and/or its directors
and/or legal representatives have made untrue and/or misleading

statements to the court;
[10.5]
statements regarding Mr George Bizos being corrupt, a racist, thief
and liar;
[10.6]
statements regarding other directors of the applicant, including Mr
Richard Moloko, Mr John Kani, Mr Christopher Kroese and
Mr Solly
Krok; and
[10.7]
statements regarding the applicant’s legal representatives.
[11]
These statements are
alleged to have been made through the website
www.apartheidmuseum.org.za
,
in respect of which Mr Stainbank is the registered administrative
contact and for which he is responsible.  In addition,
Mr
Stainbank is alleged to have emailed the statements to various
recipients.
[12]
In April 2013, as a result of Mr Stainbank’s conduct, the
applicant instituted the main application and, as a matter
of
urgency, obtained the interim relief set out in the Order of
Tshabalala J.
[13]
The applicant sets out extracts from the statements disseminated by
Mr Stainbank prior to the Order being granted.  It
is
unnecessary to repeat them here, save to note that they expressly
make reference to the applicant and its directors and legal
advisers
as being associated with fraud, theft and racism in the establishment
of the applicant’s Apartheid. Indeed, Mr Stainbank
does not
deny that he made and disseminated these statements.
[14]
It was this conduct that led to the interdict described in the
Order.  The interdict was clearly aimed at preventing Mr

Stainbank from continuing to make public statements in the same
vein.  According to the applicant, it failed to have this

effect, as Mr Stainbank has perpetuated the conduct expressly
prohibited by the interdict.  Attached to the applicant’s

founding affidavit in the application before me are five documents
disseminated by Mr Stainbank on or about 3 October 2014 from
his
email address: […], as well as from associated email
addresses.  They are headed:
[14.1]
“The Law is Brandishing Racist Batons”;
[14.2]
“Looking for George Bizos”;
[14.3]
“Do Not Interrupt – We’re Stealing”;
[14.4]
“Non-Transferral – Nedbank”;
[14.5]
“Dr Reuel Khoza’s – GRCC & Nedbank”.
[15]
The signature attached to the emails includes a reference to both the
second and third respondents. The recipients of the emails
are
associated with a range of institutions including the media, banks,
universities (local and international); legal firms and
the Bar, and
the South African Human Rights Commission.
[16]
The vitriol contained in the five documents is patent.  For
example, Mr Stainbank refers to Gold Reef City Casino (which
he
clearly equates with the applicant) as being the product of “
a
bunch of bigoted, duplicitous, racists with malleable and selfish
black appendages as an integral part of their fraudulent attempt
to
dispossess me of my property
.”  Further, “
the
racist ethos that is the Krok Brothers and their Gold Reef City
Casino is now part of the George Bizos legacy, and it is that
of
Rueul Khoza, Nedbank, Old Mutual plc and among others South African
media (sic)
”.  He refers to the applicant as “
the
illegal company
”, and draws a parallel between the
applicant and “
Lonmins (sic) Massacre at Marikana
”.
He asserts that he has spent “
13 years in litigation
fighting racist fraud
”, and refers to Dr Reuel Khoza “
while
working on the King Report on Corporate Governance … also
overseeing the theft of my philosophical content and concept
…”.
[17]
The judiciary also does not escape Mr Stainbank’s censure.
In the document entitled: “The Law is Brandishing
Racist
Batons”, he expresses the view that: “
The constitution
is the supreme law of the Republic.  You appear to suffer the
erroneous view that the South African judiciary
is the supreme law of
this Republic.  Some judges have a similar delusion which leads
them to believe that statute is subject
to their racial bias.  …
Judgments based on the illusion of power, rather than on the
oath-of-office are null and void
.”  Judges Southwood
and Willis, as well as Acting Judge Pretorius, who have delivered
judgments adverse to him over
the course of the 13 years of
litigation, are singled out for censure.
[18]
In addition, Mr Stainbank expressly states that in his answering
affidavit in the main application, he articulates his “
refusal
to retract one single word of that overarching charge
”, to
the effect that the conduct of the Krok brothers and Gold Reef City
Casino was “
fraudulent and a racist act of dispossession
”.
For reasons I will elaborate on later, it is significant to record
that the answering affidavit referred to in this
statement was filed
some three months after the interdict contained in the Order was
granted.
[19]
The statements contained in the 5 documents described above led the
applicant to institute the present contempt proceedings
as a matter
of urgency on 14 October 2014.  The matter was originally set
down on the urgent roll for hearing on 28 October
2014.
[20]
On the same day as the scheduled hearing, Mr Stainbank sent emails to
a number of people.  One of the emails included,
as an
attachment, his answering affidavit in the contempt application.
The second email contained an attachment offering
two artworks for
sale by way of a bidding process.  The second artwork is a
satirical piece, depicting Mr George Bizos sitting
on gold ingots
crushing what appear to be black people, while three white, male
judges look on in a “see no evil, hear no
evil, do no evil”
pose.  They are labeled “
the Cabal
” and they
are offered “
For Sale
”.  In the covering
document, Mr Stainbank tells the reader that: “
George Bizos,
his co-directors Solly Krok, Christopher Till, Kim Feinberg, Steven
Joffe, Christian (or Christopher) Kroese, John
Kani, Richard Moloko,
Sidney Abramowitch have made arrangements for Mike Stainbank, to go
to prison for 3 months.  Viewing
(i.e. of the artworks) will be
suspended until the prison term has been served.  … They
insist on prison because they
hate being called racists, liars,
fraudsters and thieves
.”
[21]
For reasons that are of no concern for purposes of this judgment, the
matter was not heard on 28 October 2014.  It was
eventually
heard by me on 28 November 2014.
[22]
On 7 November 2014 I sent directions, via my clerk, to the parties
indicating that the matter would be heard on 25 November
2014.
However, due to a misspelling in Mr Stainbank’s email address,
he did not receive these directions until
approximately 21 November
2014.  As a result, the hearing was rescheduled for 28 November,
and Mr Stainbank filed an additional
set of papers in support of his
in limine
point.  At the hearing, Mr Stainbank made
something of the email error being an attempt to treat him unfairly.
There
is no merit in this contention.  It was a genuine
administrative error, and the matter was rectified as soon as I was
made
aware of the fact that Mr Stainbank had not received the
original direction.  In addition, every accommodation was made
to
have the matter heard on a date suitable to Mr Stainbank, and to
give him sufficient opportunity to make further representations
to
the court, which he did.  He gave no indication at the hearing
that he had suffered any prejudice in presenting his case
to court as
a result of the error.
THE
POINT
IN LIMINE
[23]
Mr Stainbank’s point
in limine
is premised on the
averment that the applicant is not “duly incorporated” as
a juristic person.  This is because,
so the argument proceeds,
it was incorporated contrary to Mr Stainbank’s protected trade
mark, THE APARTHEID MUSEUM.
Mr Stainbank submits that his trade
mark was registered before the applicant was incorporated, and
consequently, the Registrar
of Companies acted
ultra vires
and
contrary to the law in registering the applicant.
[24]
Mr Stainbank relies
on the case of
Hollywood
Curl (Pty) Ltd and Another v Twins Products (Pty) Ltd
[5]
as precedent in this regard.  His point about this case is that
it involved the same Krok brothers who were instrumental in

establishing the applicant.  Their company, Twins Products (Pty)
Ltd, was successful in obtaining relief under section 45(2)
of the
previous Companies Act.
[6]
Twins Products
succeeded in opposing an appeal against an order enforcing a name
change on the part of a competitor on the basis
that its registered
name, Hollywood Curl (Pty) Ltd, was calculated to cause damage to the
Krok’s business in terms of which
they marketed products under
the “Hollywood” label.   Mr Stainbank is of the
view that this case constitutes
binding precedent on this court, and
on the applicant, and prevents it from approaching the court for
relief when it falls foul
of the protection accorded to Mr
Stainbank’s trade mark.  On Mr Stainbank’s
understanding, the
Hollywood
Curl
judgment
had the effect that any registration of a company by the Registrar of
Companies under a name overlapping with a registered
trade mark would
automatically be rendered
ultra
vires
and
invalid.
[25]
On this basis, he submits that this court lacks jurisdiction to give
audience to an applicant that was incorporated
ultra vires
and
in contravention of the law as laid down in the
Hollywood Curl
case. In addition, he submits that the alleged fraud involved in the
incorporation of the applicant, as well as its embedded association

with racism, should be sufficient to persuade me, on inherent
constitutional grounds, to non-suit the applicant from seeking the

protection of the court in the present application.
[26]
I earlier pointed out that Mr Stainbank represented himself and the
other respondents in the case before me.  He also
indicated in
the papers filed on the respondents’ behalf that he was
responsible for drafting them and for formulating the
defences raised
by the respondents.  While the respondents’ point
in
limine
may have a certain layperson’s logic to it, it does
not survive legal scrutiny.  The fact of the matter is that the
applicant was incorporated as a section 21 company in 2001, and
remains so incorporated.  Mr Stainbank accepted that no legal

steps had been taken to interfere with its incorporation.  The
fact that Mr Stainbank may hold the view that it ought not
to have
been registered under its name because this infringed his
pre-existing trade mark does not change the applicant’s
legal
status.  Unlike the Krok brothers in the
Hollywood Curl
case, Mr Stainbank did not raise any objection to the applicant’s
registration under its name in terms of section 45(2) of
the previous
Companies Act.  Furthermore, as any law student will tell you,
precedent simply does not work in the manner assumed
by Mr Stainbank.
[27]
As Mr Salmon for the applicant pointed out in his submissions, the
thrust of Mr Stainbank’s argument has previously been
raised by
him and has been dismissed by the courts.  So, for example, in
the judgment of Willis J, referred to earlier, the
following is said:
“
Without
putting too fine a point on it, the first respondent accuses the Krok
brothers as having fraudulently and dishonestly ‘stolen’

his idea of an apartheid museum.  It was submitted that there
were no ‘clean hands’ in the bringing of this
application.
Much emotion was put into describing how
disgraceful it has been that the Krok brothers, who allegedly made
their fortunes,
inter
alia
,
by selling skin-lightening creams to black persons, should have
established this museum to apartheid. … I accept and
understand
that there may be ideological sensitivities when white
persons are perceived to be the driving forces behind a museum which
has
apartheid as its focus.  I also accept that there may be
sensitivities in there being a close association between a museum
to
apartheid, on the one hand and a casino and entertainment complex, on
the other.  If casinos are indeed ‘dens of
iniquity’,
the close congruity between a casino and an apartheid museum may
offend at least some persons.  Nevertheless,
except when it
comes to the enforcement of constitutional rights, the courts cannot
arbitrate ideological disputes between members
of the public.”
[7]
[28]
I am in respectful agreement with the views of Willis J in this
regard.
[29]
Mr Stainbank sought to persuade me that on broad constitutional
grounds, and in a quest to prevent the perpetuation of racism,
this
court should decline to exercise its jurisdiction so as to come to
the aid of the applicant.  I am unable to accept Mr
Stainbank’s
submissions in this regard.  The present case concerns an
application to hold Mr Stainbank and his associated
respondents in
contempt of an order of this court, which order was sought and
granted at the suit of the applicant, and is directed
against the
respondents.  Section 165(5) of the Constitution provides that:
“
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies.”
Mr
Stainbank’s appeal to constitutionalism and the Constitution
ignores this fundamental constitutional principle that lies
at the
very heart of the present matter.  His ideological stance,
deeply held as it may be, cannot justify a departure from
this
principle.  This would be antithetical to the very rule of law
he purports to seek to uphold.
[30]
In the circumstances, the respondents’ point
in limine
is without substance and must fail.  This court would be failing
in its constitutional duty if it declined to consider and
make a
determination on the applicant’s application.
[31]
I turn now to consider the main issue before me, viz. whether the
respondents are guilty of contempt.
THE
PRINCIPLES REGULATING CONTEMPT OF COURT
[32]
The civil contempt
procedure is a firmly established practice in the High Courts in
terms of which a party may, by way of a notice
of motion, seek a
committal in order to bring about a proper discharge of obligations
under an order
ad
factum praestandum
or
a prohibitory interdict.  It is a valuable and important
mechanism for ensuring compliance with court orders.
[8]
[33]
Contempt of court in
this context means “the deliberate, intentional (i.e. willful)
disobedience of an order granted by a
Court of competent
jurisdiction”.
[9]
The requirements for
contempt of court are: the existence of the order concerned, service
of the order on, or notice thereof to
the respondent, non-compliance
by the respondent with the order, which non-compliance must be
willful and
mala
fides
.
[34]
The onus is on the
applicant to establish these requirements beyond reasonable doubt.
However, once the applicant has established
the existence of the
order, service or notice and non-compliance, the respondent assumes
an evidentiary burden in respect of the
willfulness and
mala
fides
elements.
If the respondent fails to adduce evidence as to whether the
non-compliance was willfulness or
mala
fides
,
contempt will be established beyond reasonable doubt.
[10]
[35]
In other words:
“…
Once a failure to
comply with an Order of Court has been established, both willfulness
and
mala
fides
will
be inferred, and since the defaulting party is regarded as having
intended the natural consequences of his action, namely to
bring the
administration of justice into disrepute and contempt, it will be
incumbent on him/her to demonstrate that his/her disobedience
was
neither
mala
fide
or
willful.”
[11]
[36]
The object of
contempt proceedings is to obtain the imposition of a penalty in
order to vindicate the court's honour consequent
upon the disregard
of its order as well as to compel performance in accordance with the
order.
[12]
Accordingly,
there is an important public interest and rule of law element
inherent in ensuring obedience to court orders
through contempt
proceedings.
[13]
As this
court has stated, “
chaos
may result if people are allowed to defy court orders with
impunity
”
.
[14]
[37]
The willful but
bona
fide
disobedience
of a court order does not constitute contempt.  So, for example,
a reasonable misunderstanding of the court order,
such that a
respondent mistakenly believed that he or she was entitled to act as
he or she did, will not amount to contempt.
[15]
On the other hand, a respondent’s belief that the order was
wrongly granted will not constitute a defence.  This
principle
was stated by the Supreme Court of Appeal as follows:
“
However,
the outcome of the review application is irrelevant to the question
whether the Respondents were acting in contempt of
Court.  In
terms of the Court Order Gap Distributors and Trust Electrical
Wholesalers are interdicted from infringing registered
design
A96/0687.  That Court Order is a final order and has to be
obeyed even if it is wrong as is alleged by the Respondents.

Should the review application be successful and the registration of
the design be set aside, the interdict would come to an end
as there
would no longer be a registered design, but until that happens the
interdict stands and has to be obeyed.”
[16]
[38]
The same principle was earlier expressed by this court in the
Culverwell v Beira
judgment:
“
All
orders of this Court, whether correctly or incorrectly granted, have
to be obeyed until they are properly set aside.”
[17]
See,
too,
Bezuidenhout
v Patensie Sitrus Beherend Bpk
,
in which the court held, in the context of contempt proceedings,
that: “An order of court stands and must be obeyed until
set
aside by a court of competent jurisdiction.”
[18]
[39]
All of these
decisions echo the fundamental constitutional principle contained in
section 165(5) of the Constitution, to which I
made reference
earlier.  The principal is a critical component of the rule of
law, which is an express founding provision
of the Constitution.
[19]
[40]
Finally, in view of
the public interest element in ensuring compliance with court orders,
contempt proceedings inherently involve
an element of urgency.
[20]
ARE
THE RESPONDENTS IN CONTEMPT?
[41]
The respondents do not dispute the existence of the Order, notice of
the Order, or their non-compliance.  In fact, at
the hearing
before me, Mr Stainbank offered the information that he had
distributed the emails in question to significantly more
recipients
than those recorded in the applicant’s affidavits.
[42]
In accordance with the principles discussed above, the respondents’
failure to dispute these first three elements means
that I must infer
that their non-compliance with the Order was willful and
mala fide
unless they adduce evidence to the contrary.
[43]
In his statement filed on behalf of the respondents opposing the
application, Mr Stainbank records that he denies that the
respondents
are in contempt.  He records further that he will address the
matter at the hearing.  Save for this denial,
the statement does
not address the respondents’ defence directly.  Mr
Stainbank states his view that the content of
the applicant’s
founding affidavit “
is too far beyond any semblance of the
facts and the documented evidence that is available
”, and
that it “
presents an affront to my culture; the essence of
my intrinsic Afrikan (sic) self and beliefs
”.
In the additional statement filed in support of the respondents’
point
in limine
, Mr Stainbank records that: “
The
truth of South African history in every detail is certainly not in
the interest of the brothers Krok and Gold Reef City Casino,
which
owes its origins to the foundational profits derived from the abject
suffering of the indigenous dispossessed as they targeted
black
skin.
Contempt of court and imprisonment will silence
that voice: Apartheid lives
.  Long live the South
African Judiciary
.” (my emphasis)
[44]
From these extracts, as well as from Mr Stainbank’s submissions
in court, it seems to me that the respondents’
defence rests on
the premise that they know the truth behind the incorporation of the
applicant and the establishment of its museum;
this truth is very
different to that put into the public domain by the applicant and
supported by the courts thus far; in truth,
the applicant and its
museum are intimately linked to South Africa’s apartheid past,
and the perpetuation of racism; the
respondents are entitled to
publicise the real truth, and should not be muzzled by a court order
to prevent them from doing so.
On this basis, Mr Stainbank
submitted to me at the hearing that in the interests of justice, and
on the basis of the need to advance
the constitutional imperatives of
human dignity, the achievement of equality and non-racialism, I
should reject the attempt to
find the respondents guilty of contempt
of the Tshabalala J Order.
[45]
I have no doubt that Mr Stainbank is absolutely convinced of the
truth as he sees it.  I also have no doubt that he is
deeply
committed to the cause he espouses in his writings, and that he feels
justified in what he believes is a betrayal by the
applicant of his
ideal of exposing the evils of apartheid though a museum project.
But, none of this, however sincerely Mr
Stainbank believes in it,
justifies the respondents’ patent contempt of the Tshabalala J
Order.
[46]
As I have already recorded, our courts have time and again laid down
that even though a respondent may believe that a court
order was
wrongly granted, unless and until the order is set aside, the
respondent is not at liberty to ignore it.  Non-compliance
in
those circumstances will amount to contempt. The reason for this is
not hard to fathom: if every person could disobey a court
order
because of his or her personal belief that it was wrongly granted,
the administration of justice would fall into chaos.
[47]
In the present matter, the respondents have adduced no evidence to
suggest that they did not understand the Order, or that
their
non-compliance was innocent.  On the contrary, Mr Stainbank’s
conduct, and the attitude he has displayed throughout,
demonstrates
clearly that he is very aware of the prohibition contained in the
Order, and has made a conscious decision to act
in defiance of it in
order to advance what he believes to be the true state of affairs.
As I recorded earlier, he has expressly
stated that he refuses to
retract one single word of his averments of fraud and racism against
the applicant.  This statement
was made under oath in his
answering affidavit in the main application, which was filed
after
Tshabalala J granted the Order.  He repeated the statement in
October 2014, shortly before the contempt proceedings were
instituted.  Mr Stainbank perpetuated this attitude thereafter:
in the emails sent out on the day of the first scheduled hearing
of
the present application, he implies once again that various people
associated with the applicant are racists, liars, fraudsters
and
thieves, and says that they have “made arrangements” for
him to go to prison for 3 months.  It is impossible
to draw any
other conclusion from Mr Stainbank’s conduct but that he is
utterly contemptuous of the interdict imposed on
him and the other
respondents by this court.  By his words and conduct, he has
demonstrated time and again that he has no
respect for, or intention
to comply with, court orders that do not support his concept of
reality.
[48]
In these circumstances, I am satisfied that the applicant has
established, beyond reasonable doubt, that the respondents are
guilty
of contempt of the Order.
[49]
I have already indicated that contempt of court is inherently a
serious matter, deserving of an appropriately severe sanction.

In the present matter, the contempt was patently
mala fide
.
Mr Stainbank expressed no contrition for his conduct.  On the
contrary, his statements indicate that he sees the threat
of
imprisonment as justifying further defiance of the Order.  The
underlying objective of holding someone in contempt of court
is to
secure compliance with the order concerned, and to restore the
dignity of the court.  The applicant has submitted that
the
threat of a 3-month period of imprisonment is appropriate in this
case to meet this objective.  I agree with this submission:

perhaps when reality sinks in, Mr Stainbank will reflect on his
conduct and the harm it has done to dignity of this court, and
elect
to purge his contempt rather than to submit himself to a not
insignificant term of imprisonment.  In an effort to provide
Mr
Stainbank with sufficient time to reflect on the consequences of his
decision, I will provide him with an additional 5 days
within which
to purge his contempt.
[50]
Insofar as the issue of costs is concerned, the applicant seeks a
punitive costs order against the respondents.  In view
of the
very deliberate and public nature of the contempt exhibited by them,
I am of the view that such an order is warranted in
this case.
ORDER
[51]
I make the following order:
1.
Condonation is granted for the process in and hearing of this matter
other than in accordance with the Uniform Rules of Court,
and for
treating it as one of urgency;
2.
The First to Third Respondents are declared to be in contempt of the
Court’s Order in case number 2013/14590 made on 24
May 2013
(“
the Court Order”
);
3.
The First Respondent is sentenced to imprisonment for a period of
three months, which sentence is subject to paragraphs 4 to
7, below.
4.
In order to give effect to the sentence imposed in terms of paragraph
3 above, the Registrar of this Court is directed to issue
a warrant
of arrest in respect of the First Respondent, which warrant shall be
effective from 15 days after the date of this order;
5.
The sentence and direction in paragraph 3 are suspended for a period
of 15 days from the date of this order;
6.
The First Respondent is directed to purge his contempt, and to cause
the Second and Third Respondents to purge their contempt,
within 15
days from the date of this order, by:
a.
Disclosing to the Court and the Applicant, in writing under oath, the
names and contact details of each and every person to whom
any of the
statements forming the subject matter of this application have been
published, communicated and/or disseminated;
b.
Writing to each and every one of those recipients and explaining that
their conduct was in contempt of the Court Order, withdrawing
the
statements, and issuing an apology to the Applicant in the wording
shown in the apology set out hereunder, and marked “Annexure

A”, which apology is to be contained:
i.
Prominently on the
home page of the First Respondent’s website at
www.apartheidmuseum.org.za
and to remain there
for a period of 6 months; and
ii.
In the body of the email communications sent to the recipients
mentioned in paragraph 5a above.
c.
Copying the Applicant’s appointed legal representative (using
the email address […]) in each and every such notification
to
the recipients.
7.
Should the First Respondent fail to comply with the Court Order
within the period of 15 days stipulated in paragraph 5 above,
the
sentence in paragraph 3 hereof will come into effect immediately;
8.
Directing the First to Third Respondents, jointly and severally the
one paying the others to be absolved, to pay the costs of
this
application, on the scale as between attorney and client, including
the cost consequent upon the employment of two counsel.
ANNEXURE
A
APOLOGY
Mike
Stainbank, The Apartheid Museum Foundation NPC (Registration
No.2009/007306/08) and The Apartheid Museum (Pty) Ltd (Registration

No. 2009/007114/07) were, in terms of an order delivered by the
honourable Justice Tshabalala of the South Gauteng High Court on
24
May 2013, interdicted and restrained, pending the outcome of
proceedings in case number 14590/2013, from defaming the South

African Apartheid Museum at Freedom Park, its current and/or
erstwhile directors and/or its legal representatives, by publishing

and/or disseminating to the public statements to the effect that
they, or any one of them:
(a)
have perpetrated a fraud, or perjury, or deceit  in connection
with the Applicant, the museum it operates, and the formation,

incorporation or foundation of either;
(b)
are criminals, racists or liars; and/or
(c)
“stole” or “misappropriated” (or expressions
to that effect) any intellectual property, idea or anything
from or
belonging to Mr Stainbank.
Recent
statements communicated, published and/or disseminated to you by Mike
Stainbank, The Apartheid Museum Foundation NPC and
The Apartheid
Museum (Pty) Ltd were communicated, published and/or disseminated in
contempt of the Court’s order.
Mike
Stainbank, The Apartheid Museum Foundation NPC and The Apartheid
Museum (Pty) Ltd hereby unconditionally retract all statements
made
to such effect and apologise unreservedly to the South African
Apartheid Museum at Freedom Park, and its current and erstwhile

directors and legal representatives for having made such statements.
__________________________________________
R
KEIGHTLEY
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard: 28 November 2014
Date
of Judgment: December 2014
Counsel
for the Applicants: Adv. O Salmon SC
Adv
I Joubert
Instructed
by: Edward Nathan Sonnenbergs Inc
Counsel
for Respondent: Mr A M Stainbank
[1]
Arnold Michael
Stainbank v The South African Apartheid Museum at Freedom Park
[2011] ZACC 20
[2]
South African
Apartheid Museum at Freedom Park (Pty) Ltd v Stainbank and Another
,
unreported judgment of the Transvaal Provincial Division (as it then
was)
per
Southwood J under
case number 26295/02, dated 17 July 2003;
South
African Apartheid Museum at Freedom Park (Pty) Ltd v Stainbank and
Another
(10152/08)
[2010] SAGPJHC 143 (23 February 2010)
[3]
Stainbank A M v
South African Apartheid Museum at Freedom Park (Pty) Ltd and five
others
,
unreported judgment of the South Gauteng High Court, Johannesburg
per
Pretorius AJ under
case numbers 31055/07 & 30154/11, dated 14 July 2014
[4]
The applicant
confirms that it does not seek any relief from the fourth
respondent.  She was cited in her capacity as a director
of the
second respondent.  For this reason, when I refer to “the
respondents” in this judgment, I do not include
any reference
to the fourth respondent.
[5]
[1989] 1 All SA 377
(A)
[6]
Section 45(2) read
as follows:
“
If
within a period of one year after the registration of any
memorandum, ... any person lodges an objection in writing with the

Registrar against the name contained in the memorandum ... on the
grounds that such name ... is calculated to cause damage to
the
objector, the Registrar may, if he is satisfied that the objection
is sound, order the company concerned ... to change the
said name
...”
[7]
At para 9
[8]
Fakie N.O. v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at 344G-345A
[9]
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968
(2) SA 517
(C) at 522
[10]
Fakie N.O. v
CCII Systems (Pty) Ltd
,
loc cit
[11]
UNCEDO Taxi
Service Association v Mtwa and Others
1999
(2) SA 495
(E) at 501D
[12]
Fakie N.O. v
CCII Systems (Pty) Ltd
,
above at 333A-B, and see the additional cases cited by Farlam
et
al
Erasmus
Superior Court Practice
(RS45)
(hereafter “Erasmus”) B1-p58G, note 353
[13]
Victoria Park
Ratepayers’ Association v Greyvenouw CC and Others
[2004] 3 All SA 623
(SE) at para 5
[14]
Culverwell v
Beira
1992
(4) SA 490
(W) at 494A-C
[15]
Consolidated
Fish Distributors (Pty) Ltd v Zive
,
above, at 524D
[16]
Clipsal
Australia (Pty) Ltd and Others v Gap Distributors and Others
2010 (2) SA 289
(SCA) at para 20
[17]
Above, loc cit
[18]
2001 (2) SA 224
(E)
at 228F-230A
[19]
Section 1(c) of the
Constitution
[20]
Victoria Park
Ratepayers’ Association v Greyvenouw CC and Others
,
loc cit;
Protea
Holdings (Pty) Ltd v Wright and Another
1978
(3) SA 865
(W) at 868H-869A;
Wright
v Saint Mary’s Hospital, Melmoth and Another
1993 (2) SA 226
(D)
at 228 E-F