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Gauteng Boxing Promotors Association and Another vs Wysoke (22/6726) [2022] ZAGPJHC 18 (28 April 2022)

80 Reportability
Civil Procedure
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Brief Summary

Contempt of Court — Urgent application for contempt — Respondent's non-compliance with court order — Applicants sought an order declaring the respondent in contempt for failing to remove defamatory statements posted on social media, as ordered by the court. The respondent claimed he was unaware of the full extent of the order until it was stamped and sought legal advice before complying. The court found that the respondent had knowledge of the order and failed to comply wilfully and with mala fide. The respondent was declared in contempt and directed to show cause why he should not be imprisoned or fined.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns an urgent application for contempt of court brought in the Gauteng Local Division, Johannesburg. The applicants were the Gauteng Boxing Promotors Association (first applicant) and Tshee Kometsi (second applicant). The respondent was Brian Wysoke.


The contempt application arose from an earlier proceeding in which the applicants had sought interim interdictory relief (Part A) pending final relief (Part B). In Part A, the applicants obtained an order from Wright J on 1 March 2022 aimed at restraining alleged defamatory and racially charged social media publications and compelling their removal and related remedial steps.


The present proceedings focused on whether the respondent had unlawfully and intentionally failed to comply with the terms of that earlier order, and whether punitive consequences should follow. The broader subject-matter underlying the dispute was the publication of statements on social media platforms, alleged to be defamatory, racist, intimidatory, and injurious to dignity, but the contempt court confined itself to compliance with the existing order rather than the merits of those allegations.


2. Material Facts


It was common cause that an interim interdict order was granted on 1 March 2022 in proceedings conducted virtually and that the respondent was legally represented at the hearing when the order was made. The order restrained the respondent from defaming the applicants or injuring their dignity, restrained him from intimidation and threats of a violent or racial nature, and required him to remove and delete specified posts “forthwith” (paragraph 2.3). The order also included further relief relating to retraction and apology (paragraph 2.4), pending final determination of Part B.


The order was subsequently uploaded onto Caselines on 14 March 2022. After that upload, the applicants’ attorneys sent correspondence to the respondent’s attorneys demanding compliance within 24 hours, and warning that non-compliance would result in contempt proceedings.


The applicants’ complaint in the contempt application was that the respondent had refused to remove, retract, and apologise in relation to the publications, and that such refusal constituted breach of the court order with ongoing harm to their dignity. The applicants further alleged that the respondent’s conduct demonstrated intent and malice.


The respondent’s version, as relied upon by the court for purposes of evaluating the explanation offered, was that although the order had been made on 1 March 2022, he contended that he only received it on 14 March 2022, and that after receiving it late that afternoon he sought legal advice regarding compliance. He also stated that he had filed an application for leave to appeal on 18 March 2022 against paragraphs 2.4 and 3 of the order and contended (in the alternative) that the order was suspended by that step. He did not deny that he posted further comments on Facebook after the order, but asserted they did not fall within what was prohibited. He stated that he had removed the relevant posts from his personal Facebook and other social media by 18 March 2022.


The court treated as significant that the respondent’s explanation was not that he was unaware an order had been granted, but rather that he claimed he was uncertain about the extent of the order until he had seen the stamped version.


3. Legal Issues


The court was required to determine whether the matter should be heard as urgent, and whether the respondent was in contempt of the court order granted on 1 March 2022.


The central legal questions were whether the applicants had established the jurisdictional requirements for contempt, namely the existence of the order, the respondent’s service or knowledge of it, and non-compliance; and, if those were established, whether the respondent had raised a sufficient basis to create reasonable doubt as to wilfulness and mala fides.


The dispute before the court was primarily one of the application of established legal principles to facts, including evaluative assessment of whether the respondent’s explanation was legally sufficient to negate wilfulness and mala fides. The court also had to make a value judgment regarding urgency in the context of alleged ongoing prejudice to dignity and the nature of contempt proceedings. The underlying merits of the social media dispute, including any contention of fair comment, were treated as not presently determinative.


4. Court’s Reasoning


On urgency, the court held that urgency arose from the nature of the relief previously granted and the character of contempt proceedings. It reasoned that contempt of a court order is inherently urgent, and in the specific context, continued non-compliance with an order aimed at preventing injury to dignity could entail ongoing prejudice. On that basis, the court concluded that the matter warranted hearing as urgent under the rules governing urgent applications.


On contempt, the court applied the settled principle that contempt consists of unlawfully and intentionally disobeying a court order, and that the crime is established where non-compliance is shown to be deliberate and mala fide. The court set out the elements the applicants had to prove, namely that an order was made against the respondent, that it was served on him or that he had knowledge of it, and that he failed to comply with it. The court further applied the approach that once those elements are shown, wilfulness and mala fides are presumed, and the evidentiary burden shifts to the respondent to establish reasonable doubt.


In applying these principles, the court rejected the respondent’s reliance on the timing of the stamped order and on legal advice as a basis for delayed compliance. It held that there is no principle permitting a litigant to decide whether or not to comply with a court order. It emphasised that the order was issued on 1 March 2022 in an open virtual court, and that the respondent was legally represented when the court pronounced the order. The fact that the order was only stamped on 14 March 2022 did not, in the court’s assessment, alter the respondent’s obligation to comply, since knowledge of the order existed earlier.


The court accepted, for purposes of its analysis, that leave to appeal had been filed against paragraphs 2.4 and 3. However, it treated the crucial non-compliance as relating to paragraph 2.3, which required removal of the posts “forthwith.” The court construed “forthwith” to mean that the respondent was obliged to remove the posts immediately once informed of the order on 1 March 2022. The respondent’s explanation that he only fully appreciated the extent of the order once it was stamped and uploaded was held to be unsustainable, because the duty to comply arose when the court made the draft order an order of court.


The court also addressed the respondent’s reference to fair comment, holding that such a defence went to the merits of the underlying dispute and would be determined later in Part B. The contempt inquiry, as framed by the court, concerned compliance with an existing order, not whether the initial interdict ought to have been granted on the merits.


Having found that the respondent failed to comply with the order, and having rejected the respondent’s explanation as inadequate, the court concluded that the respondent had acted wilfully and mala fide in disobeying the order and therefore was guilty of contempt.


5. Outcome and Relief


The court ordered that the matter be treated as urgent in terms of rule 6(12) of the Uniform Rules of the High Court, and it condoned non-compliance with the ordinary rules.


The court declared the respondent to be in contempt of the court order granted by Wright J under case number 6726/2022 on 1 March 2022.


The court further directed the respondent to show cause within 14 days why he should not be committed to 30 days’ imprisonment, alternatively ordered to pay a fine of R30,000.00, and it set a timetable for the exchange of affidavits in relation to the show-cause process.


The respondent was ordered to pay the costs of the contempt application.


Cases Cited


Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).


Pheko v Ekurhuleni Metropolitan Municipality [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC).


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


Uniform Rules of the High Court, Rule 6(12).


Held


The court held that the contempt application warranted urgent enrolment because contempt proceedings are inherently urgent and continued non-compliance implicated ongoing prejudice to the applicants’ dignity.


The court held that the requirements for contempt were satisfied, including the existence of the order, the respondent’s knowledge of it (through the virtual hearing at which he was represented), and non-compliance, particularly with the obligation to remove posts “forthwith.” It further held that the respondent’s reliance on awaiting a stamped order and seeking legal advice did not constitute a lawful basis for non-compliance.


The court held that arguments concerning fair comment were not to be determined in the contempt proceedings because they related to the merits reserved for Part B.


The respondent was accordingly declared in contempt, directed to show cause why committal or a fine should not follow, and ordered to pay costs.


LEGAL PRINCIPLES


Contempt of court consists of unlawful and intentional disobedience of a court order. Once an applicant proves that an order existed, that the respondent had knowledge of it (or it was served), and that the respondent failed to comply, wilfulness and mala fides are presumed, and the respondent bears an evidentiary burden to establish reasonable doubt.


A litigant has no discretion to postpone compliance with a court order on the basis that a stamped version has not yet been received or that legal advice is being sought, where the litigant has knowledge of the order as granted.


In contempt proceedings arising from an interdict, the court’s focus is on compliance with the existing order, not the merits of the underlying dispute, which may be reserved for later determination.


Contempt proceedings may properly be treated as urgent, particularly where non-compliance may cause continuing harm and undermine the authority of court orders.

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[2022] ZAGPJHC 18
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Gauteng Boxing Promotors Association and Another vs Wysoke (22/6726) [2022] ZAGPJHC 18 (28 April 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 22/6726
REPORTABLE:
Not/
OF
INTEREST TO OTHER JUDGES: Not/
REVISED.
28
APRIL 2022
In
the matter between:
GAUTENG
BIXING PROMOTORS ASSOCIATION
First Applicant
TSHEE
KOMETSI

Second Applicant
And
BRIAN
WYSOKE

Respondent
Transmitted
by email to the parties’ legal representatives. The judgment is
deemed to have been delivered on 28 April 2022
JUDGMENT
Molahlehi,
J
Introduction
[1]
This is an urgent application in which the applicants seek an order
declaring
the respondent to be in contempt of the court order made by
Wright, J on 1 March 2022. The applicants further request that
punitive
measures be imposed on the respondent for his alleged
contempt of the court order.
[2]
Initially, the applicants sought interim relief in Part A pending a
final
determination of Part B. The dispute between the parties arose
from the statements that the respondent had posted on the social

media platform. It is alleged that the comments posted were
defamatory, racist, had sexual undertones and suggested that the
applicants
were involved in immoral activities.
[3]
The applicants were successful in their application, and accordingly,
the following order was made against the respondent:
"2.
Pending the final determination of the relief claimed in Part B in
the notice
of motion on a date to be determined by this court. . .
the respondent is hereby:
2.1.
interdicted and restrained from defaming the
applicants or either of them or injuring them in their
dignity in any
manner whatsoever, including but not limited to the publication . . .
to any person of any statement, claim or allegation
in any medium,
including but not limited to Facebook or any other social media
platforms or fora;
2.2.
interdicted and restrained from intimidating or making any threats
that are violent or racial
in nature, in any manner whatsoever,
including but not limited to the publication . . . to any person of
any in whatsoever, including
but not limited to the publication . . .
to any person of any statement, claim or allegation in any medium,
including but not limited
to Facebook or any other social media
platforms or fora;
2.3.
ordered to forthwith remove and delete defamatory, intimidatory,
threatening or racial posts
or statements
alternatively
any
and all references to the applicants therein, wheresoever and
howsoever made and to remove and delete all and any posts and

comments in response thereto insofar as it is within his power to do
so; and/or
24.
to make and publish an appropriate retraction of the relevant
statements or utterances above,
and to issue an apology to the
applicants by name for defaming them and injuring them in their
dignity and person, on all the same
websites with the same prominence
where such posts were published by him."
[4]
It is apparent that the hearing of the application in the initial
interdict
was conducted virtually on the electronic platform in the
presence of the respondent's legal representatives. There is some
suggestion
in the founding affidavit that the respondent was present
on the virtual platform when the order was made. This was not pursued

in the replying affidavit.
[5]
The order was uploaded onto caselines on 14 March 2022. Soon after
that,
the applicants' attorneys of record addressed a letter to the
respondent's attorneys of record demanding that the respondent
complies
with the order within 24 hours. They further indicated in
the same letter that failure to comply by the respondent would result

in an application for contempt of court.
[6]
This application is consequent the complaint by the applicants that
the
respondent has refused to remove, retract and apologies for the
published statements in contravention of the court order. This
conduct of the respondent, according to the applicants, constitutes a
breach of the court order. They further contend that the conduct

constitutes:
“
(i)
disrespect for the authority of the court and its officers, acting in
their official capacity;
(ii)
willful disobedience and resistance to a lawful court order; and
(iii)
a disregard for the law."
[7]
The applicants further contend that the respondent has exhibited both
intent and malice in refusing to remove the published statements as
directed by the court. According to them, the respondent's conduct

has caused them serious and irreparable harm to their dignity.
[8]
The respondent opposed the application and contended that although
the
order was made on 1 March 2021, he only received it on 14 March
2022. After receipt of the order in the late afternoon of that day,

he had to obtain legal advice from his attorneys concerning the issue
of compliance with the court order.
[9]
Furthermore, the respondent contended that in the alternative, the
order
was suspended upon his application for leave to appeal of
paragraphs 2.4 and 3 of the order filed on 18 March 2022. He does not

deny having posted further comments on his Face Book since the
issuance of the order but contends that those were not related to

what was provided for in the court order.
[10]
He further contends in his answering affidavit that he had complied
with the court order
in that he removed from his personal Facebook
and other social media all the posting he had made by 18 March 2022.
[11]
In paragraph 19.2 of his answering affidavit, he further states that:
"following the
hearing, I was advised that the application was
granted successfully but was unaware and uncertain in respect of the
extent of
the Court order itself." The respondent's case is thus
not that he did not believe that the order was made in favour of the

applicants but rather that he did not appreciate its full extent,
having not seen the hard copy thereof.
[12]
The respondent further contended that the matter was not urgent
because he had removed
the posting on Facebook upon receipt of the
court order. According, to the respondent he did that after obtaining
legal advice
as whether or not he should to comply with the order.
[13]
The first question to answer in the present matter is whether this
matter deserves to be
treated as urgent.
[14]
In my view, urgency in the present matter arises from the nature of
the relief which was
sought and granted in favour of the applicants.
It is trite that contempt of a court order is inherently urgent. In
the context
of this matter, this means non-compliance with the court
order would result in the applicants suffering ongoing prejudice
against
their dignity. Thus considering the nature of the relief
sought and the circumstances of this matter, I find that the matter
deserves
to be treated as urgent.
[15]
The next question is whether the respondent should be found guilty of
contempt of the order
made on 1 March 2022.
[16]
It
is trite that the crime of contempt of court order consists of
unlawfully and intentionally disobeying a court order.
[1]
The crime is established by showing that the respondent's conduct in
not complying with the court order was deliberate and
mala
fide
.
[2]
[17]
To succeed in establishing that the respondent is guilty of contempt
of a court order,
the applicant must establish the following:
(a)
That the order was made against the respondent;
(b)
The order was served on the respondent or that he or she had
knowledge
or information about the order;
(c)
The
respondent failed to comply with the order.
[3]
[18]
It
is further trite that once the above requirements have been
satisfied, wilfulness and
malafide
on
the part of the respondent is presumed. The evidentiary burden is
then on the respondent to establish reasonable doubt.
[4]
Failure to discharge this burden by the respondent will result in him
or her being found guilty of contempt of court.
[19]
The defendant's defence is that he did not deliberately and
intentionally disobey the order
between 1 March 2022 and 14 March
2022, as the order was not yet released. He did not comply with the
order between 14 and 18 March
2022 as he was still seeking legal
advice to determine the validity or enforceability of the order.
[20]
In my view, the respondent in the present matter failed to comply
with the court order
made by Wright J on 1 March 2022. The contention
that he was only able to comply after receiving the stamped order,
and after obtaining
legal advice, and properly considering the extent
of the order has no merits. There is no principle in our law that
affords a litigant
a discretion whether or not to comply with an
order of the court.
[21]
It is common cause that the court issued the order on 1 March 2022 in
an open virtual court.
The respondent was legally represented at the
time the order was made. The draft order, which at the time was
uploaded onto caselines,
was made an order of the court. Although the
order was only stamped on 14 March 2022, the respondent knew about
the order long
before then. This can, therefore, not be an excuse for
non-compliance with the order.
[22]
For the purposes of this judgment, I will accept that the respondent
has filed leave to
appeal against paragraphs 2.4 and 3 of the order.
There is, however, non-compliance with paragraph 2.3 of the order
which required
the removal of the posting from Facebook "forthwith."
This means that the respondent was obliged to immediately remove
the
posting after he was informed of the order on 1 March 2022. His duty
to obey the order was immediately after the court pronounced
that he
draft order was made the order of the court. Thus, the respondent's
defence that he became aware of the extent of the order
when it was
stamped and uploaded onto caselines is unsustainable.
[23]
The defence that the posting constitutes fair comment is an issue to
be determined at a
later stage, in Part B of the proceedings, and is
thus not before this court. In other words, this court is enjoined to
consider
whether there has been compliance with the order and not the
merits of the dispute between the parties.
[24]
For the above reasons, I find that the respondent acted wilfully and
with
mala
in
disobeying the order made by this court on 1 March 2022. The
respondent is accordingly found guilty of contempt of court.
Order
[25]
In the circumstances, the following order is made:
1.
This matter is treated as urgent in terms of rule 6 (12) of the
Uniform Rules of the High Court
and non-compliance with the Rules is
condoned;
2.
The respondent is declared to be in contempt of the Court order
granted by Wight J under case number
6726/2022 on 01 March 2022;
3.
The respondent is directed to show cause within a period of 14 days
of the date of this order why
he should not be committed to a period
of thirty days imprisonment, alternatively to pay a fine of R30
000.00.
4.
Regarding paragraph 3 above, the following shall apply:
(ii)
The respondent shall serve and file his affidavit
by the 18 May
2022,
(iii)
The applicants shall, if they so wish to file their
answer within 7
days of the date of the respondent's affidavit, and
(a)
he respondent shall, if he so wishes, serve and file his reply within
5 days of the date.
[26]
The respondent shall pay the costs of this application.
E
Molahlehi
Judge
of the High Court,
Gauteng
Local Division,
Johannesburg.
Representation
For
the applicant:
Adv

T Mathopo
Briefed
by:                                                                          Majavu

Attorneys
For
the Respondent:
Adv

JNysschens
Briefed
by:
Johan

Nysschens Attorney.
Hearing
date:
29

March 2022
Delivered:
28

April 2022.
[1]
See
Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paragraph 6.
[2]
Fakie
supra paragraph 9.
[3]
Fakie
supra at para 22, and Pheko v Ekurhuleni Metrpolitan Municipality
[2015] ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) (Pheko
II) at para [32].
[4]
Fakie
supra at para 41 and 42; Pheko II at 36.

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