Swat SOS 247 (Pty) Ltd t/a SOS SA and Others v Jones (2023-027536) [2023] ZAGPJHC 348 (18 April 2023)

80 Reportability
Administrative Law
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Brief Summary

Contempt of Court — Interdicts — Urgent application for interdicts based on contempt of a prior court order — Applicants sought interim interdicts to protect confidential business information — Respondent, a former employee, opposed on grounds of urgency and merits — Court found urgency justified due to ongoing defiance of court order and risk of harm — Amendment of applicant's registration number allowed to reflect true identity of the entity — Respondent's points in limine regarding locus standi and misjoinder dismissed as lacking merit.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an urgent application in the Gauteng Division of the High Court, Johannesburg, in which the applicants sought relief arising from alleged contempt of court as well as interdictory relief aimed at protecting confidential business information and personal information. Although the notice of motion included committal-type relief and interdicts framed as permanent or interim, the applicants ultimately pursued attenuated relief at the hearing, seeking interim interdictory relief only (pending an action for final relief), together with contempt-related orders.


The parties were Swat SOS 247 (Pty) Ltd t/a SOS SA (first applicant), and Alex Gagiano and Leandro Gagiano (second and third applicants), against Lucinda Jones (respondent), who was a former employee of the first applicant. The second and third applicants were involved in the first applicant’s business, and the applicants’ case included protection of their personal information.


The procedural history relevant to the matter included a prior court order granted on 12 April 2022 under case number 2022-325 (“the 2022 order”). The present application was triggered by information supplied to the applicants by Mr Francois van Wyk, whose supporting affidavit detailed his interactions with the respondent and formed a substantive part of the founding papers. The respondent opposed the application, challenging both urgency and the merits, and raising points in limine including locus standi and alleged misjoinder, while the applicants raised their own points in limine relating to the commissioning of the respondent’s affidavits.


The general subject-matter of the dispute concerned alleged ongoing defiance of an earlier court order restraining the respondent from specified forms of contact and conduct, and the alleged possession and potential dissemination by the respondent of the applicants’ confidential business information and personal information copied from a hard drive.


2. Material Facts


It was undisputed that a court order (the 2022 order) was granted on 12 April 2022 under case number 2022-325, and that the respondent was aware of it. On the respondent’s own version, she received a copy after her arrest on 20 April 2022, and therefore had knowledge of the order and its contents.


It was also common cause that the respondent was a former employee of the first applicant, and that various disputes had arisen since January 2022, including criminal charges and litigation in multiple forums (the court treated this background as contextual, rather than determinative).


The facts material to contempt and the interdict turned largely on the respondent’s interactions with Mr Francois van Wyk and the handling of information copied from a hard drive. It was not disputed that Mr van Wyk came into possession of a USB/memory stick containing more than a terabyte of information from the hard drive, and that the respondent paid Mr van Wyk R4000 for his services. The information provided to Mr van Wyk included a substantial amount of the applicants’ private/personal information and information pertaining to the applicants.


The applicants’ case (supported by Mr van Wyk’s affidavit) was that, after the 2022 order, the respondent instructed or engaged Mr van Wyk to investigate allegations contained in a handwritten statement attributed to the respondent (dated 29 January 2021, but, on the uncontested evidence referred to by the court, apparently prepared during 2022 after termination of employment). The applicants contended that the respondent thereby incited or caused further investigative activity directed at the first applicant and its management, in a manner prohibited by paragraph 2.5 (and also paragraph 2.3) of the 2022 order.


The respondent’s version on key aspects was described by the court as contradictory and, in certain respects, vague. The judgment highlighted contradictions regarding when she first met Mr van Wyk, whether she gave him the memory stick before or after 12 April 2022, and whether she made one copy or two copies of the data. The respondent also advanced a version that the hard drive was corrupted and later thrown away by her father, while simultaneously asserting that data had been copied from it.


On the interdictory relief, the material fact was that the respondent did not dispute being in possession of the information; rather, she provided an explanation for how she came into possession of it and made broad assertions about the status of the hard drive. No factual basis was advanced establishing an entitlement to retain such information after termination of employment, and the respondent did not tender undertakings not to use it or to return it.


On the preliminary issues, the applicants sought to correct the first applicant’s citation by amending an incorrectly stated company registration number, which the court accepted had been erroneously provided. The respondent’s points in limine largely depended on the incorrect registration number, including an argument that it identified a different entity. The applicants also challenged the validity of the respondent’s answering affidavit based on the alleged lack of independence of the commissioner of oaths (being the spouse of the respondent’s attorney), and alleged irregularities in confirmatory affidavits; these challenges were rejected on the facts and law applied by the court.


3. Legal Issues


The central legal questions were, first, whether the application should be entertained as urgent under the applicable urgent court procedure; secondly, whether the applicants should be permitted to amend the citation of the first applicant; thirdly, whether any of the parties lacked locus standi or whether there was a fatal defect in the motion proceedings arising from the company registration number issue; fourthly, whether the respondent’s answering affidavit (and confirmatory affidavits) should be disregarded due to alleged irregular commissioning; fifthly, whether the respondent was in civil contempt of the 2022 order (with the applicants seeking committal-type relief, implicating the criminal standard for willfulness and mala fides); and sixthly, whether the applicants met the requirements for interim interdictory relief to restrain dissemination or exploitation of the information pending an action for final relief.


The dispute involved a combination of law, application of law to fact, and evaluative judgments. The contempt enquiry required applying settled legal requirements (existence of an order, knowledge/service, non-compliance, and willfulness and mala fides) to contested and partly contradictory factual material, while recognising the standard of proof for committal-related contempt proceedings. The interim interdict enquiry required applying the Webster v Mitchell approach and making evaluative judgments concerning prima facie right, harm, balance of convenience, and alternative remedies.


4. Court’s Reasoning


On urgency, the court was satisfied that the applicants had pleaded urgency with sufficient particularity to comply with rule 6(12)(b), and that they would not obtain substantial redress in due course given the risk of ongoing harm. The court considered the respondent’s stance—namely that she regarded her conduct as lawful and gave no indication she would desist—as reinforcing urgency, and accepted that ongoing defiance of a court order underscores urgency. The court rejected the contention that urgency was self-created through delay, noting that the evidentiary material (including Mr van Wyk’s affidavit) and the applicants’ explanation meant that a five-month delay was not established on the papers in the manner argued by the respondent.


On the amendment to the first applicant’s registration number, the court accepted the applicants’ explanation that the incorrect number was provided inadvertently by the deponent and carried into the papers. The court regarded the correction as in the interests of justice, emphasising that the identity of the employer entity was clear on the papers and on the respondent’s own version, and that no prejudice was shown.


Regarding the competing points in limine, the court first addressed the applicants’ challenge to the respondent’s answering affidavit based on the commissioner of oaths being the spouse of the respondent’s attorney. The court treated regulation 7(1) of the Regulations Governing the Administering of an Oath or Affirmation as peremptory in prohibiting a commissioner from administering an oath where they have an “interest” in the matter, and accepted the general principle that a commissioner must be impartial and independent. However, it concluded that the applicants had not established that a personal spousal relationship, where the commissioner was a chartered accountant and not professionally involved with the attorney’s practice, amounted to an “interest” of the kind contemplated. The court also held that the inference sought to be drawn from the use of incorrect gender pronouns (“she” instead of “he”) in confirmatory affidavits was insufficient, without cogent primary facts, to show the deponents were not present when commissioned as required by regulation 3(1). The court thus declined to disregard the answering and supporting affidavits.


The respondent’s locus standi/misjoinder points in limine were rejected. The court reasoned that the respondent’s approach was unduly formalistic because it relied exclusively on the erroneous registration number and ignored the clear identification of the applicant entity by name and the undisputed employment relationship. The court accepted that a court should not ignore true facts or proceed on an undue formalism, and found that the correction resolved the technical point. It further held that the second applicant asserted an interest in her own right, particularly because her personal information was allegedly in the respondent’s possession and she had been a party to the earlier proceedings, while the third applicant had a sufficient interest for the interdictory relief concerning his personal information (even though he may not seek a contempt order based on being a non-party to the 2022 order).


On the merits, the court identified two central issues: contempt (including whether incarceration/committal was appropriate) and the interim interdict. The court acknowledged extensive factual disputes on the papers and found that not all disputes could be resolved. It did not accept that the applicants’ case was merely speculative, and it also did not reject the respondent’s version in its entirety; rather, it evaluated the evidence in relation to the central issues. The court rejected the respondent’s hearsay objection to reliance on Mr van Wyk, because Mr van Wyk had provided an affidavit and the respondent did not meaningfully engage with it in several respects; the court treated it as permissible for an applicant in motion proceedings to rely on witness evidence beyond the parties.


On contempt, the court applied the settled requirements for civil contempt and the principle that, once existence and knowledge/service of the order and non-compliance are proved, an evidential burden shifts to the respondent to raise reasonable doubt regarding willfulness and mala fides. Because the applicants sought committal-type relief, the court accepted that willfulness and mala fides had to be proved beyond a reasonable doubt. The first two requirements were satisfied because the 2022 order existed and the respondent admitted knowledge of it.


In relation to non-compliance, the court focused on the alleged breach of paragraphs 2.3 and 2.5 of the 2022 order, ultimately concluding that paragraph 2.5 had been breached. The court treated the applicants’ version as substantially corroborated by Mr van Wyk, including that the respondent instructed him to investigate the allegations in the statement and that the respondent paid him for this purpose. The court emphasised that the respondent’s explanation for her engagement with Mr van Wyk was contradictory and that her contention that she was approached by him did not bear logical scrutiny given that she paid him. The court considered the content and purpose of paragraph 2.5, which prohibited contacting certain institutions (including SAPS and PSIRA) to incite unnecessary investigations against the first applicant on allegations made by the respondent and those incited by her. On the facts accepted, the court concluded that the respondent’s conduct, using a third party to pursue investigative activity grounded in the same statement central to the earlier proceedings, amounted to a breach.


On willfulness and mala fides, the court addressed the respondent’s reliance on a claim of good faith, including the proposition from Fakie NO v CCII Systems (Pty) Ltd that deliberate disregard is not enough if a party genuinely (even mistakenly) believes she is entitled to act. The court nevertheless held that the respondent’s stance—that the 2022 order was “unconstitutional” and “disgusting,” and that she was not bound by it insofar as she considered her conduct “lawful”—did not assist her, because court orders are binding until set aside. The court noted that the respondent had taken no steps for almost a year to have the 2022 order set aside, and found her approach showed unlawful disdain for judicial authority. In its evaluation, the court concluded the respondent had not discharged the evidential burden to cast reasonable doubt on willfulness and mala fides, and thus that contempt was established beyond a reasonable doubt.


On sanction, the court declined to order direct imprisonment immediately. It reasoned that deprivation of liberty is a last resort and cited authority indicating that imprisonment/fines for civil contempt are generally imposed where compliance can be enforced only by such punishment. The court preferred a coercive approach aimed at securing compliance, while leaving open the possibility of a future custodial sentence if the respondent persisted.


On the interim interdict, the court applied the Webster v Mitchell approach and the conventional requirements for interim relief. The court found the applicants had established a prima facie right (open to some doubt) because the respondent was no longer employed, was in possession of substantial confidential/personal information, and advanced no coherent entitlement to retain it. The court treated the respondent’s version about the corruption and destruction of the hard drive, and the alleged copying from a corrupted drive, as farfetched and untenable on the papers, and held her denials did not raise bona fide and serious disputes undermining the prima facie right. The court also adopted the approach that a serious claim with prospects of success suffices to ground interim relief.


On harm, the court held that the applicants had shown an injury committed or reasonably apprehended, including a strong quasi-vindicatory claim, and in any event found a reasonable risk of continuing irreparable harm given the respondent’s conduct and her stated attitude towards the 2022 order. The court also relied on the absence of undertakings by the respondent not to use or disseminate the information and her failure to tender its return.


On balance of convenience, applying Olympic Passenger Service (Pty) Ltd v Ramlagan, the court found the respondent did not identify concrete prejudice if interdicted, while the applicants had identified a significant risk. It thus held the balance favoured the applicants.


On alternative remedies, the court rejected the respondent’s suggestion of a “round table” meeting as misconceiving the requirement, and held that a damages claim was not an adequate alternative because the applicants were not required to wait for harm to crystallise before seeking preventative relief.


On costs, the court applied the general principle that costs follow the result and added that a punitive costs order was warranted in light of the respondent’s stance and criticism of the existing court order.


5. Outcome and Relief


The court heard the matter as urgent, granted the amendment correcting the first applicant’s registration number, and rejected all points in limine raised by both sides (to the extent they sought dispositive relief such as disregarding affidavits or dismissing the application). It declared the respondent to be in contempt of paragraph 2.5 of the 2022 order, directed compliance with the 2022 order and the additional terms of the present order, and granted leave to the applicants to return on supplemented papers if further breaches occur.


Pending the institution and finalisation of an action for permanent interdicts and other relief, the court granted an interim interdict restraining the respondent from divulging, disseminating, or exploiting, in any manner, the copied information (as identified with reference to annexures in the papers) belonging to or pertaining to any of the applicants, including any copies or print-outs, to any third party. The applicants were directed to institute the contemplated action within 30 days, failing which the interim interdict would lapse.


The respondent was ordered to pay the costs of the application on the attorney-and-client scale.


Cases Cited


East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011).


Secretary, Judicial Commission of Enquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC).


Radue Weir Holdings Ltd t/a Weirs Cash & Carry v Galleus Investments CC t/a Bargain Wholesalers 1998 (3) SA 677 (E).


Whyte’s Stores v Bridle NO, Harris NO and Waterberg Farmer’s Co-op Society and Others 1936 TPD 72.


Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA).


Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).


Pheko and Others v Ekhurhuleni City 2015 (5) SA 600 (CC).


Matjhabeng Municipality v Eskom Holdings Ltd and Others; Mkhonto and Others v Compensation Solutions (Pty) Ltd 2018 (1) SA 1 (CC).


Betlane v Shelly Court CC [2015] JOL 34003 (CC).


Soffiantini v Mould 1956 (4) SA 150 (E).


Truth Verification Testing Centre v PSE Truth Detection CC and Others 1998 (2) SA 689 (W).


HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others 2000 (1) SA 507 (C).


Culverwell v Beira 1992 (4) SA 490 (W).


Cape Times Ltd v Union Trades Directories (Pty) Ltd 1956 (1) SA 105 (N).


Webster v Mitchell 1948 (1) SA 1186 (W).


Meter Systems Holdings Ltd v Venter and Another 1993 (1) SA 493 (W).


Johannesburg Municipal Pension Fund and Others v City of Johannesburg 2005 (6) SA 273 (W).


BSI Boiler and Steam Installation CC v Executive Toys Commercial (Pty) Ltd 2016 JDR 0220 (GP).


Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).


Buthalezi v Poorter and Others 1974 (4) SA 831 (W).


Legislation Cited


Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (as amended), with reference to section 10 and the Regulations Governing the Administering of an Oath or Affirmation.


Constitution of the Republic of South Africa, 1996, with reference to section 205 (as raised in argument by the respondent).


Rules of Court Cited


Uniform Rules of Court, rule 6(12), including rule 6(12)(b).


Held


The court held that the matter was properly enrolled and heard as urgent under rule 6(12), given the risk of ongoing harm and the respondent’s lack of undertakings and insistence that her conduct was lawful.


The court held that it was in the interests of justice to permit the amendment correcting the first applicant’s registration number, because the identity of the litigating entity was clear on the papers and the respondent would suffer no prejudice.


The court held that the applicants’ objections to the commissioning of the respondent’s affidavits did not justify disregarding the affidavits, because the applicants had not established that the commissioner of oaths had an impermissible “interest” under regulation 7(1), nor established on proper facts that the confirmatory affidavits were not signed in the commissioner’s presence.


The court held that the respondent’s locus standi points in limine failed, including the contention that the first applicant was misidentified and that the second and third applicants lacked standing, because the employer identity and the applicants’ personal-information interests were sufficiently established.


On the merits, the court held that the respondent was in civil contempt of paragraph 2.5 of the 12 April 2022 order (case 2022-325), and that the requirements for contempt were satisfied, including willfulness and mala fides proved to the requisite standard given the committal context, while the court preferred coercive enforcement rather than immediate direct imprisonment.


The court held that the applicants satisfied the requirements for an interim interdict pending an action for final interdictory relief, and granted an interim restraint against dissemination or exploitation of the copied information, together with a 30-day period within which the applicants were required to institute the contemplated action.


The court held that a punitive attorney-and-client costs order was warranted in light of the respondent’s conduct and stance towards the existing court order.


LEGAL PRINCIPLES


A court order remains valid and binding until set aside, and a party is not entitled to disregard it on the basis of personal views as to its constitutionality or fairness. Continued or ongoing non-compliance undermines judicial authority and is treated as a serious consideration in contempt proceedings and urgency assessments.


For civil contempt, the applicant must establish the existence of the order, notice/service, and non-compliance. Once these are shown, the respondent bears an evidential burden to produce evidence creating reasonable doubt that the non-compliance was willful and mala fide. Where the relief sought is committal or otherwise penal in nature, willfulness and mala fides must be established beyond a reasonable doubt.


In assessing disputes of fact in motion proceedings, the court may reject versions that are untenable or contradicted by the objective probabilities and the party’s own conduct, particularly where denials are bald and a party fails to engage meaningfully with evidence that lies within their knowledge. However, the court need not resolve every dispute if the central issues can be determined on the papers as a whole.


For interim interdictory relief, the court applies the Webster v Mitchell approach and requires a prima facie right (though open to some doubt), injury committed or reasonably apprehended, balance of convenience favouring the applicant, and the absence of an adequate alternative remedy. The stronger the prospects of success, the less the need for the balance of convenience to favour the applicant, and vice versa, consistent with the test applied in Olympic Passenger Service (Pty) Ltd v Ramlagan.


In relation to affidavits, while the Regulations Governing the Administering of an Oath or Affirmation require impartiality and prohibit administration where the commissioner has an “interest” in the matter, the mere existence of a personal relationship (without facts establishing a direct or indirect interest in the litigation or an associated professional involvement) is not, on the court’s reasoning, sufficient to justify disregarding an affidavit.

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[2023] ZAGPJHC 348
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Swat SOS 247 (Pty) Ltd t/a SOS SA and Others v Jones (2023-027536) [2023] ZAGPJHC 348 (18 April 2023)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:  2023-027536
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
SWAT
SOS 247 (PTY) LTD T/A SOS SA
FIRST
APPLICANT
ALEX
GAGIANO
SECOND
APPLICANT
LEANDRO
GAGIANO
THIRD
APPLICANT
AND
LUCINDA
JONES
RESPONDENT
Neutral
Citation:
Swat SOS 247 (Pty) Ltd t/a SOS SA and Others v
Lucinda Jones
(Case No: 2023-027536) [2023] ZAGPJHC 323 (18 April
2023)
JUDGMENT
Delivered:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by e-mail. The date and
time for hand-down is
deemed to be 11h30 on the 18th of APRIL 2023.
DIPPENAAR
J
:
[1]
The
applicants, by way of urgent application seek relief against the
respondent based on contempt of a court order granted on 12
April
2022 under case number 2022-325 (“the 2022 order”),
permanent alternatively interim interdicts against the respondent,

together with ancillary relief. The interdictory relief is aimed at
protecting the first applicant’s confidential business

information and the personal information of the second and third
applicants. At the hearing, the applicants sought attenuated relief

and interim interdictory relief only.
[2]
The
respondent is a former employee of the first applicant. The second
and third applicants are both involved in the business of
the first
applicant. Various disputes have arisen between the parties since
January 2022. Amongst others, various criminal charges
have been laid
against the respondent and the parties have litigated in various
forums.
[3]
The
trigger to the present application lies in information provided by a
Mr Francois van Wyk to the applicants pertaining to the
actions and
conduct of the respondent. As part of the founding papers, Mr Van Wyk
provided an extensive supporting affidavit dealing
with his
interactions with the respondent.
[4]
The
application is opposed by the respondent who challenges its urgency
and disputes the application on its merits.
Urgency
[5]
Having considered
the papers and the arguments advanced by the respective parties, I am
persuaded that the applicants have made
out a proper case for urgency
for the matter to be entertained on the urgent court’s roll.
The applicants have set out their
grounds of urgency with sufficient
particularity to comply with r 612(b). I am further persuaded that
the applicants have illustrated
that they will not obtain sufficient
redress at a hearing in due course,
[1]
considering the
risk of ongoing harm in the face of the respondent’s conduct.
[6]
On her own version
the respondent considers her conduct lawful and she has given no
indication that she will desist therefrom. The
respondent has further
failed to provide any undertakings to the applicants. It is well
established that where the defiance of
a court order is of an ongoing
nature, it underscores the urgency of an application.
[2]
[7]
Considering the facts and the substantive
evidence provided by the applicant’s witness, Mr Van Wyk in an
extensive affidavit
attached to the founding papers, it cannot be
concluded that the applicants delayed in the launching of the
application for some
five months or that the urgency is self-created,
as contended by the respondent. Moreover, the applicants explain that
the threat
of a contempt application during November 2022 pertained
to other breaches of the 2022 order.
[8]
Prior
to considering the merits there are a number of issues which require
determination.
Amendment
[9]
At
the hearing, the applicants sought an amendment of the citation of
the first applicant in the headings of the application papers
by the
deletion of the registration number 2016/394855/07 and the
substitution thereof with the registration number 2017/021945/07.
[10]
That
application is opposed by the respondent. The applicants in their
replying affidavit explain that the wrong company registration
number
was inadvertently provided by the second applicant in error, the
deponent to their affidavits to their attorneys which resulted
in the
incorrect registration number being reflected on their papers. The
respondent relied on such incorrect registration number
in raising
various points
in limine
to
which I later return.
[11]
I
am persuaded that it is in the interests of justice for the amendment
to be granted so that the application can be determined
on its true
facts. The respondent did not seek leave to lead any countervailing
evidence to the explanation tendered by the applicants.
On the
respondent’s own version, she had been employed by the first
applicant and the respondent would not be prejudiced
by the
amendment.
The various points in limine
[12]
The
respondent further raises three points
in
limine
challenging the
locus
standi
of the applicants, mainly
predicated on the first applicant’s registration number being
reflected as 2016/394855/07, which
belongs to an entity styled “Ace
Risk Management” and on the contention that the third
respondent who was not a party
to the proceedings under case number
2022-325, lacks
locus standi
.
The respondent seeks the dismissal of the application together with a
punitive costs order.
[13]
In
turn, the applicants
in limine
challenge
the respondent’s answering affidavit on the basis that the
commissioner of oaths who had commissioned the respondent’s

answering affidavit is the spouse of the respondent’s attorney
of record and thus lacks independence. It is also contended
that the
male deponents to the confirmatory affidavits attached to the
respondent’s answering affidavit were not present
when the
affidavits were commissioned because their gender was in each
instance, incorrectly reflected as female by use of the
word “she”.
It is argued that the answering affidavit should be
disregarded.
[14]
It is apposite to
deal with the applicants’ point
in
limine
first.
Reliance is placed by the applicants on regulation 7(1) of the
Regulations Governing the Administering of an Oath or Affirmation

promulgated under s 10 of the Justices of the Peace and Commissioners
of Oaths Act,
[3]
which expressly
prohibits the commissioner of oaths from administering an oath or
affirmation relating to matter in which he/she
has an interest and is
peremptory.
[15]
Reliance is further
placed on
Radue
Weir Holdings Ltd/t/a Weirs Cash & Carry v Galleus Investments CC
t/a Bargain Wholesalers
[4]
(“Radue”)
in
arguing that any purported affidavit that does not comply with the
provisions of regulation 7(1) can and should be disregarded.
[16]
The
commissioner of oath in the answering affidavit identifies herself
as: ”Esme Dempsey (Kok) CA (SA) 20052831”. No
address is
provided but the abbreviation “RSA” is included.
[17]
Whilst
the failure to provide a business address lacks compliance with
regulation 4(2)(a), this of itself does not render the commissioning

fatally defective nor justifies the affidavit to be disregarded.
[18]
It is trite that a
commissioner of oaths who attests affidavits is required to be
impartial, unbiased and entirely independent of
the office where the
affidavit is drawn. Such interest is not only pecuniary or
proprietary. The principle is also linked to the
evidentiary rule
that an affidavit is inadmissible if the affidavit is attested to by
an attorney who is the attorney for a litigant
whose affidavit is to
be used in the litigation.
[5]
The rule has been
extended to exclude not only the attorney of record but also partners
and candidate attorneys in the firm of attorneys
and attorneys who
act in association with the attorney of record of the litigant.
[19]
The
object for the rule in practice is:
“
to
prevent an attorney from drawing up a petition and putting, as it
were, the words of the petition in the mouth of a client, and
then
himself taking the oath of the petitioner to that petition The reason
for the rule appears to me to be that a person attesting
an affidavit
is required to be unbiased and impartial in relation to the
subject-matter of the affidavit. If his position is such
that this
qualification is prima facie absent there is a danger that he may
have influenced the deponent in relation to the subject
matter of the
affidavit”
.
[6]
[20]
The
applicants could not refer me to any authority which extends the
interest referred to in regulation 7(1) to the existence of
a
personal relationship between a litigant’s attorney and the
commissioner of oaths.
[21]
The
mere existence of a personal relationship as spouses, in
circumstances where the commissioner of oaths is a chartered
accountant
and not an attorney in any way involved with the practice
of the respondent’s attorney of record, Mr Kok, does not of
itself
constitute an interest as envisaged by regulation 7(1) nor
fall foul of the object of the rule, given that the relationship
between
them is of a personal rather than a professional nature.
[22]
The
applicants did not place any additional facts before this court from
which the conclusion can reasonably be drawn that the commissioner
of
oaths has a direct or indirect interest in the practice of Mr Kok as
envisaged by regulation 7(1) or the applicable authorities.
It would
however be a salutary practice if any potential issue is avoided.
[23]
Similarly, the inference sought to be drawn by the
applicants that the supporting affidavits were not signed in the
presence of
the commissioner of oaths as required by regulation 3(1)
is not justified purely on the basis that the commissioner of oaths
did
not replace the reference from “she” to “he”.
No cogent primary facts were produced which could justify
such a
conclusion.
[24]
It
follows that the applicants’ point
in
limine
must fail and that their
contention that the opposing and supporting affidavits should be
disregarded
in toto
,
cannot be sustained.
[25]
The
points
in limine
raised
by the respondent are primarily premised on the contention that the
applicants lack
locus standi
and that there has been a misjoinder of the first
applicant. It is argued that the registration number provided
pertains to an entirely
different entity and that a registration
number “stands as the identity of a company”. It is
argued that this is not
a mistake in the description of the first
applicant but rather that the affidavits refer to a non-existing
company. The second
point
in limine
is primarily predicated on the first.
[26]
The
first point
in limine
underpins the argument. The respondent’s
contention that there was no mistake in the description of the first
applicant focuses
entirely on the registration number provided and
disregards the description of the name of the first applicant. It was
argued that
in motion proceedings, the applicant cannot amend its
affidavits. That much is trite and is common cause.
[27]
The
argument however disregards the unchallenged evidence of the second
applicant that the wrong registration number was erroneously
provided
and the issue was explained in reply. A court must not ignore the
true facts nor consider the matter with an undue formalistic

approach. It is undisputed from the papers that the first applicant
was the employer of the respondent and that the parties all
agreed
this to be the case. The identity of the first applicant is clear.
[28]
There
is thus no merit in the respondent’s contention that the
deponent to the applicants’ papers presented evidence
regarding
a company that does not exist or that the company before the court is
Ace Risk Management. I have already concluded that
the applicants
should be allowed to correct the description of the first applicant
as the amendment seeks to do.
[29]
There
is thus no merit in the respondent’s contention that the first
applicant does not enjoy
locus standi
and that it has been mis-joined to these
proceedings. It also does not follow that, as the 2022 order only
relates to the first
applicant, there is no basis for the contempt
proceedings against the respondent.
[30]
In
her second point
in limine,
the
respondent contends that the second respondent has no
locus
standi
as she cannot be a director of
the first respondent given that the first respondent does not exist,
has no
locus standi
or
has been mis-joined. The grounds advanced as similar to those raised
in relation to the first point
in
limine
.
[31]
I
conclude that there is no merit in this argument. I have already
dealt with the position of the first applicant. The respondent’s

argument further disregards that the second applicant is contending
for an interest in her own right, given that her personal information

has found its way into the possession of the respondent and that she
was a party to the proceedings which culminated in the 2022
order.
[32]
The
respondent’s third point
in limine
is that the third applicant has no
direct and substantial interest in this application and was not a
party to the proceedings which
resulted in the 2022 order. On that
basis it is argued that the third respondent lacks
locus
standi
to seek contempt relief. It is
argued that the third applicant’s interest in the application
is “not ring fenced”.
[33]
Whilst
the third respondent may not seek any contempt order, the argument
disregards that the third applicant is asserting his rights
in
relation to his own personal information in relation to the
interdictory relief sought. There is thus no merit in the contention

that he lacks
locus standi
in
the present proceedings or that his interest should be “ring
fenced”.
[34]
It
follows that the respondent’s points
in
limine
must fail.
[35]
In
relation to the issue of costs pertaining to these issues, they were
dealt with in argument together with the merits and did
not prolong
the proceedings unduly. Those costs are to be costs in the cause in
the application and it is not necessary to make
a separate costs
order in relation thereto.
The merits
[36]
The
two central issues to be determined relate to whether the respondent
should be incarcerated pursuant to her contempt of the
2022 order and
whether the applicants have established the requirements for interim
interdictory relief.
[37]
The
papers are replete with factual disputes on multiple issues. The
respondent’s papers are filled with bald denials and
internal
and external contradictions on certain issues, notably regarding her
possession of the respective applicants’ personal
information,
her interactions with Mr Van Wyk and whether she breached the 2022
order and is in contempt thereof. In various respects,
the respondent
did not present countervailing evidence to the averments of the
applicants and their witness, Mr Van Wyk and did
not meaningfully
grapple with the evidence presented.
[38]
Neither of the
parties requested a referral to oral evidence or trial. Instead, the
applicants, relying on
Wightman,
[7]
argued that the
respondent’s version should be rejected on the papers as
palpably false and untenable and that her version
did not raise
bona
fide
factual
disputes.
[39]
The
respondent on the other hand contended that the applicants resorted
to speculation and conjecture in relation to their contempt

allegations and failed to provide substantiating proof of their
averments in relation both to the contempt and interdictory relief

sought.
[40]
In
my view, it is not necessary to resolve all the factual disputes on
the papers, nor is it possible to do so. Although I agree
with the
applicants that the respondent’s version is in various respects
untenable, her version cannot be rejected in its
totality. Rather, it
should be considered in relation to the central issues raised in this
application. It can also not be concluded
that the applicants’
version is based on speculation and conjecture. The  facts must
be considered in determining whether
the applicant has made out a
proper case for the relief sought.
[41]
The
respondent further argued that the applicants relied on hearsay
evidence, specifically in relation to Mr Van Wyk, who is not
a party
to the application. This contention lacks merit, given that Mr van
Wyk provided an extensive affidavit which was in various
respects not
meaningfully addressed or challenged by the respondent in her
affidavit. It is well established that a party can rely
on the
evidence of any witness relevant to the issues which arise in an
application and is not constrained to only advance evidence
of the
parties to the application.
Contempt
[42]
The requirements
for civil contempt are well settled in our law.
[8]
These requirements
are: (i) an order must exist; (ii) it must be duly served on or
brought to the notice of the contemnor; (iii)
there must be
non-compliance with the order; (iv) the non-compliance must be
willful and
mala
fide
.
[43]
Once an applicant
has proved the existence and service of the order and its
non-compliance, the contemnor bears an evidential burden
to present
evidence in relation to willfulness and
mala
fides
which
casts reasonable doubt on whether his non-compliance with the order
was willful and
mala
fide.
[9]
Where the applicant
seeks a committal order, such as in the present instance, the
applicable standard is that willfulness and
mala
fides
must
be established beyond a reasonable doubt.
[10]
I accept that this
standard applies in the present application.
[44]
The
existence of the 2022 order of 12 April 2022 is undisputed. On the
respondent’s own version, she was provided with a copy
of the
said order after her arrest on 20 April 2022 and is aware of the
order and its contents. The applicants have thus established
the
first two requirements.
[45]
Regarding the
third, being the breach of the order, the applicants’ case in
sum is that the respondent breached paragraphs
2.3 and 2.5 of the
2022 order. Although the notice of motion refers only to clause 2.5,
the founding affidavit refers to both paragraphs
2.3 and 2.5 and the
notice of motion and founding affidavit must be read together.
[11]
Their case is that
the applicant during late April 2022, after the granting of the 2022
order, incited investigations into the first
applicant and its
management through the medium of Mr van Wyk. In so doing, it is
contended
that
the respondent breached paragraphs 2,3 and 2.5 of the 2022 order.
[46]
It
was argued on behalf of the respondent that the applicants failed to
prove that the respondent incited parties to launch investigations

against the first applicant or that she is in breach of the 2022
order. It was argued the order referred to “unnecessary”

investigations and the applicants had not proved the investigations
were unnecessary. Lastly, it was argued that insofar as the

respondent breached the 2022 order, she did not commit any breach
deliberately and
mala fide
.
[47]
The
applicants’ case is substantially corroborated by Mr Van Wyk.
According to
Mr Van Wyk the respondent met
him during late April 2022 and instructed him to investigate the
allegations contained in the respondent’s
hand written
statement dated 29 January 2021 (“the statement”). The
statement contains allegations pertaining to the
first applicant and
its management. From the uncontested evidence, it appears that the
statement was prepared by the respondent
during 2022 rather than 2021
after the termination of her employment with the first applicant. The
statement formed a central feature
in the proceedings which resulted
in the 2022 order.
[48]
The
respondent’s version in her answering affidavit is
contradictory in various respects.
By way
of example, she initially contended that she was only introduced to
Mr Van Wyk after 20 April 2022 and that he represented
himself to be
a part of Crime Intelligence and a private investigator. Her version
was that Mr van Wyk looked at the  statement
and requested
information that could support those allegations, whereupon she down
loaded all the information on an allegedly corrupt
hard drive and
handed it to him on a memory stick. Later in her answering affidavit,
the respondent avers that she handed the memory
stick to Mr van Wyk
before 12 April 2022. The affidavit is also contradictory in that the
respondent initially refers to one copy
she made of the hard drive
whereas she later avers she had given out two copies of the hard
drive, one to Mr van Wyk and the other
to SAPS/PSIRA.
[49]
Significantly, it is not disputed that Mr van Wyk
investigated the allegations in the statement in order to find proof
of the allegations.
The respondent’s version was not that she
had laid criminal charges with the SAPS or that a docket had been
opened, supporting
any official investigation. Reliance was only
placed on the discredited statement that had already featured in the
proceedings
under case number 2022-325. On the respondent’s own
version, she contends that her urging of further investigations into
the first applicant is allegedly lawful and does not constitute a
breach of the 2022 order. She suggests that any further
investigations
she may instigate into the first applicant will be
lawful so that a court cannot stop her from doing so.
[50]
Further, it is common cause that Mr van Wyk was
provided with a copy of more than a terabyte of information contained
on the hard
drive in the form of a USB stick. That information
included a substantial amount of the applicants’ private
information.
It was further not disputed that the respondent paid Mr
Van Wyk R4000 for such investigations. According to Mr Van Wyk, the
respondent
still owes him for disbursements made to other third
parties who illicitly intercepted certain communications and that she
had
queried whether she received value for the services rendered by
him. Whilst the respondent disavowed any involvement with illicit

activities, she did not address Mr Van Wyk’s averments in
detail, in circumstances where the respondent has personal knowledge

of her interactions with Mr Van Wyk.
[51]
The
respondent’s version concerning her interactions with Mr Van
Wyk is contradictory and vague in various respects. The respondent

has in my view failed to seriously and unambiguously address all the
facts set out in the applicants’ founding papers and
in the
affidavit of Mr van Wyk. These facts necessarily fall within the
respondent’s knowledge and the respondent has failed
to provide
any cogent countervailing evidence. The bare denials contained in the
respondent’s answering affidavit further
lack a factual basis
why the veracity or accuracy of Mr van Wyk’s statements are
disputed.
[52]
In
argument, when confronted with the respondent’s failure to
address all the applicants’ allegations, including those
of Mr
Van Wyk, reliance was placed on a blanket denial of any averments not
addressed in the answering affidavit. That does not
assist the
respondent.
[53]
Given the
undisputed fact that the respondent paid Mr van Wyk for his services,
her averment that she was approached by Mr van Wyk
does
not bear logical scrutiny, is untenable and can be rejected on the
papers.
[12]
[54]
In
terms of the 2022 order, paragraph 2.3 interdicts the respondent from
contacting the applicants by means of third parties, save
through
their respective attorneys of record, or by inciting third parties to
contact the applicants whether in person or any other
means,
including social media. Paragraph 2.5 interdicts the respondent from
contacting various institutions, including SAPS and
PSIRA to further
incite these parties to launch unnecessary investigations against the
first applicant on allegations made by the
respondent and any third
party incited by her.
[55]
Considering the facts, the applicants have in my
view established a breach of the 2022 order and specifically
paragraph 2.5 thereof.
[56]
Where willfulness
and
mala
fides
are
presumed, it must next be considered whether the respondent has met
the evidentiary burden to rebut such inference.
[13]
Put differently,
whether the respondent has presented evidence to establish a
reasonable doubt as to whether her non-compliance
with the 2022 order
was wilful and mala fide.
[14]
If not, contempt
will be established beyond a reasonable doubt.
[57]
The applicants
argue that the respondent has failed to provide a reasonable
explanation and has failed to discharge her evidentiary
burden to
rebut willfulness and mala fides. It is argued that the respondent
should have foreseen that her instructions to Van
Wyk to investigate
various police officials, staff of the first applicant and the first
applicant itself, would by necessity have
engaged the SAPS by
requesting further investigations into her previously discredited
allegations and she should have appreciated
the risk that she would
be breaching para 2.5 of the 2022 order by giving such instructions.
It is argued that this indicates that
the respondent had the
intention of breaching the order and attempted to prevent detection
by inserting a third party, Mr Van Wyk.
It was argued that the fact
that the respondent sought to insert a third person between herself
and the SAPS, evidences an appreciation
on the part of the respondent
that her conduct would breach paragraph 2.5 of the 2022 order. It is
further argued that by handing
Mr van Wyk the same statement that had
been discredited in the 2022 application, the respondent must have
appreciated that her
conduct amounted to the selfsame wrongful
conduct which paragraph 2.5 of the order sought to interdict.  It
is further argued
that if it is demonstrated that the respondent had
subjectively foreseen the risk of the 2022 order being breached, as
they contend,
the onus rests on her to negative the inference of
dolus
eventualis.
[15]
[58]
The respondent on
the other hand argues that even if it is found that she breached the
2022 order, her conduct is not willful and
mala
fide
as
she was
bona
fide
.
Reliance is placed on the principle in
Facie
[16]
that:
“
a
deliberate disregard of a court order is not enough since the non
complier may genuinely, albeit mistakenly believe …herself
to
be entitled to act in the way claimed to constitute contempt. In such
a case good faith avoids the infraction. Even a refusal
to comply
that is objectively unreasonable may be bona fide”.
[59]
The
respondent contends that the 2022 order deprives her of protection
under s 205 of the Constitution 1996 and disregards her
constitutional rights and actions. It is contended that the 2022
order limits all actions and not only unlawful actions. On this
basis
it is contended the order is unconstitutional. She contends that she
genuinely believed she is entitled to work with and
cooperate with
SAPS and was approached by SAPS and PSIRA rather than her approaching
them.
[60]
In
her answering affidavit, the respondent criticises the 2022 order in
strident terms, calling it “unjustified” and

“unconstitutional”. The respondent further states in her
answering affidavit:
“
I further
find it disgusting that this court will give an order that will
prevent me from approaching SAPS, even on matters concerning
SOS or
the second applicant…. The second applicant further tries to
make out the case that I incited Mr Francois van Wyk
to launch
unnecessary investigations into SOS and herself. She failed to both
show that Mr Francois Van Wyk was incited to launch
any investigation
into SOS or herself, and failed to show that such investigation was
unnecessary”
[61]
Notwithstanding such criticism, the respondent has
taken no steps to have the 2022 order set aside, despite on her
version having
been in possession of it since 20 April 2022. In bald
terms, it is averred that she intends to do so in due course. This
vague
contention does not avail her, given that the respondent has
remained supine for almost a year.
[62]
The respondent’s
view is misguided in the extreme. It is trite that court orders are
valid and binding until set aside
[17]
and it is not open
to the respondent to simply disregard the 2022 order based on her
personal view that it is “unconstitutional”
and
“disgusting”.
[63]
Moreover, from the respondent’s own
evidence, there is no indication that she intends abiding by the 2022
order. Rather her
evidence indicates a contrary intention and a view
that the order is not binding on her as the order “cannot
prevent lawful
actions”. The respondent’s refusal to
comply with the 2022 order is objectively viewed, unreasonable.
[64]
Willful
disobedience of an order made in civil proceedings is both
contemptuous and a criminal offence. As held in
Matjhabeng:
[18]
“
The
purpose of a finding of contempt is to protect the fount of justice
by preventing unlawful disdain for judicial authority. Discernibly,

continual non-compliance with court orders imperils judicial
authority
”
[65]
The
respondent’s own
ipse dixit
,
evidences such unlawful disdain for judicial authority and militates
against her bona fides. Such conduct is regrettable and can
and
should not be countenanced.
[66]
Proof of
bona
fides
raised
in justification of the contempt will serve as a defence to an
application for committal in the case of direct contempt.
The
evidentiary burden to prove
bona
fides
rests
squarely on the respondent.
[19]
[67]
Considering the facts, it cannot in my view be
concluded that the respondent has discharged the evidentiary burden
to cast reasonable
doubt on her conduct being wilful and
mala
fide
in breaching the 2022 order. Her
own version militates against her
bona
fides
and the conclusion that
reasonable doubt exists.
[68]
I
conclude that the requirements for contempt have been established.
[69]
The
applicants seek a custodial sentence of direct imprisonment. It is
argued that the respondent has not shown any remorse for
her
non-compliance with the 2022 order and the 2022 order did not have a
chilling effect on her “malevolent actions”.
It is
argued that a coercive order will serve no practical effect and that
a punitive sanction would be the most appropriate
as even suspension
of such order would not persuade the respondent to respect court
orders.
[70]
I do not agree. In
my view, deprivation of the respondent’s liberty should be a
last resort. In
Fakie
Cameron JA cited
with approval the dictum in
Cape
Times Ltd v Union Trades Directories (Pty) Ltd,
[20]
wherein it was
held:
“
Generally
speaking, punishment by way of fine or imprisonment for the civil
contempt of an order made in civil proceedings is only
imposed where
it is inherent in the order made that compliance with it can be
enforced only by means of such punishment”.
[71]
In
the present instance, it would be appropriate to rather impose a
coercive sentence to obtain enforcement with the terms of the
2022
order.
[72]
Were
the respondent to persist in her conduct, it is open to the
applicants to approach a court for a custodial sentence.
[73]
Considering the respondent’s scurrilous and
unwarranted criticism of the 2022 order, it would further be
appropriate to mulct
the respondent in a punitive costs order to
reflect disapproval at the stance adopted by the respondent.
Interdictory relief
[74]
At the hearing, the
applicants persisted with interim interdictory relief only and
indicated an intention to institute proceedings
for final
interdictory relief. In considering the applicant’s claim for
interim relief, the principles in
Webster
v Mitchell
[21]
apply.
[75]
The
requirements for interim interdictory relief are trite. They are: (i)
a
prima facie
right,
although open to some doubt; (ii) an injury actually committed or
reasonably apprehended; (iii) a favourable balance of convenience;

and (iv) the absence of any other satisfactory remedy available to
the applicant.
[76]
The applicants’
case is that the respondent is in possession of a substantial amount
of their personal and confidential information
as particularised in
their founding papers.
[22]
It is common cause
that she is no longer employed by the first applicant. No version is
proffered as to any entitlement on the part
of the respondent to be
in possession of any such information.
[77]
The
respondent does not dispute that she is in possession of such
information but rather seeks to proffer an explanation of how
she
came into possession of the information. Her own version is
internally contradictory and the chronology of events does not

support her version. The respondent further did not dispute that she
copied the information on the hard drive and her version is

inconsistent as to how many copies she made.
[78]
The
respondent’s version is characterised by bald denials and the
bald contention that she is not in possession of anything
belonging
to or associated with the first respondent. The respondent in bald
terms avers that the hard drive on which the information
was
contained has been corrupted and was thrown away by her father.
[79]
Although the respondent contends that the hard
drive was destroyed after information was successfully copied
therefrom despite the
hard drive “being corrupted”, her
version regarding copying of the documents from a corrupted hard
drive is farfetched
and untenable and can be rejected on the papers.
No cogent evidence of an expert nature was presented that this is
possible.
[80]
For
present purposes it is not necessary to determine all the factual
disputes on the papers. Suffice it to state that the respondent’s

version does not raise a
bona fide
and serious dispute of fact on the papers as to
the existence of the applicants’
prima
facie
rights.
[81]
Moreover, following
the approach adopted by Malan J in
Johannesburg
Municipal Pension Fund,
[23]
the applicants’
claims are not frivolous or vexatious, there is some prospects of
success and there is a serious claim to
be tried, which is sufficient
to constitute a prima facie right and justifies the granting of
interim interdictory relief.
[82]
I
conclude that the applicants have illustrated a
prima
facie
right to the relief sought.
[83]
I
am further satisfied that the applicant has illustrated that an
injury is being committed or is reasonably apprehended, for the

reasons that follow.
[84]
The applicant has
illustrated a strong
prima
facie
quasi
vindicatory right and thus does not need to show a reasonable
apprehension of irreparable harm.
[24]
In any event I am
satisfied that the applicants have illustrated such harm, given the
respondent’s own advices to Mr van Wyk
and the averments made
in her answering affidavit.
[85]
The
respondent’s contention on the issue of a reasonable
apprehension of irreparable harm is that the applicants cannot prove

that she is still in possession of the information. This argument
does not bear scrutiny, given the bald and unsubstantiated
allegations
in her affidavit and the inconsistencies in the
respondent’s own version pertaining to how many copies she made
of the information.
[86]
Moreover, the respondent did not tender not to
utilise any information in her possession, nor tender to return such
information
to the applicants.
[87]
I
am satisfied that the facts the applicants have illustrated a
reasonable risk of continuing irreparable harm, specifically
considering
the respondent’s own version as to what her views
are on the order granted on 12 April 2022. These views illustrate
that
the respondent regards the order as “unconstitutional”
and that she has scant respect for its terms.
[88]
I
turn to consider the balance of convenience. The respondent’s
argument that as there is no well-grounded apprehension of

irreparable harm there is no balance of convenience to consider,
lacks merit.
[89]
In considering the
balance of convenience, I have applied the test enunciated in
Olympic
Passenger Service (Pty) Ltd v Ramlagan,
[25]
being the stronger
the prospects of success, the less the need for the balance of
convenience to favour the applicant; the weaker
the prospects of
success, the greater the need for the balance of convenience to
favour the applicant.
[90]
The
respondent has not contended for any prejudice if the interdictory
relief sought is granted. She has further not put up any

countervailing evidence for the prejudice contended for by the
applicants.
[91]
In
considering the relevant facts, I conclude that the balance of
convenience favours the applicants. The respondent will suffer
no
prejudice if the interdictory relief sought is granted.
[92]
In relation to the
existence of an alternative suitable remedy, the respondent contends
that the applicants should have arranged
a round table meeting to try
and amicably resolve the matter. The argument misconceives that there
must be a suitable alternative
legal remedy. The further argument
that the applicants have a damages claim available, also does not
bear scrutiny. The applicants
are not obliged to wait until damages
are suffered before they seek relief. The applicants are not
compelled to wait for damages
to be incurred and sue afterwards for
compensation.
[26]
[93]
I
am satisfied that the applicants have illustrated that there is no
alternative adequate remedy available.
[94]
For
these reasons I conclude that the applicants are entitled to the
interim interdictory relief sought.
[95]
There
is no reason to deviate from the normal principle that costs follow
the result. Considering the conduct of the respondent
in relation to
the matter and her expressed views in relation to the 2022 order, I
am persuaded that a punitive costs order is
warranted, as sought by
the applicants.
[96]
I
grant the following order:
[1] The forms and periods of service
are dispensed with and this application is heard as one of urgency in
terms of rule 6(12);
[2] The applicant’s application
for leave to amend the headings to the application papers is granted
and the registration
number in respect of the first applicant
2016/394855/07, wheresoever same appears in the headings to the
papers is hereby deleted
and substituted with the registration number
2017/021945/07;
[3] The respondent is declared to be
in contempt of paragraph 2.5 of the court order granted on 12 April
2022 under case number
2022-325;
[4] The respondent is directed to
comply with the order of 12 April 2022 granted under case number
2022-325 and the terms of paragraph
[6] of this order;
[5] The applicant is granted leave to
approach the court on supplemented papers, if deemed necessary, for
appropriate relief in
the event of the respondent breaching this
order or the order of 12 April 2022 granted under case number
2022-325;
[6] Pending the finalisation of an
action to be instituted by the applicants against the respondent for
permanent interdicts and
other relief, the respondent is interdicted
and restrained from divulging, disseminating ‘or exploiting in
any way whatsoever,
whether for gain or otherwise, any of the
information she had copied onto the memory stick (depicted in
annexure “FVW1”
to the affidavit of Francois Van Wyk
attached to the founding affidavit as “AG7”) that belongs
to, pertains to or emanates
from any of the applicants, including
such information as may be contained on any copies that may have been
made of the aforesaid
information, or contained in any print-outs
that had been made of the aforesaid information or any other copies
thereof, to any
third party;
[7] The order in [6] above shall
operate as an interim order with immediate effect;
[8] The applicants are directed to
institute the proposed action in [6] above within 30 days of date
hereof, failing which the order
in [6] shall lapse;
[9] The respondent is directed to pay
the costs of the application on the scale as between attorney and
client.
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE OF
HEARING
:
5 APRIL 2023
DATE OF
JUDGMENT
:
18 APRIL 2023
APPLICANT’S
COUNSEL
:
Attorney. MW Verster
APPLICANT'S
ATTORNEYS
:
BMV Attorneys
RESPONDENT'S
COUNSEL
:
Adv. M Luyt
RESPONDENT'S
ATTORNEYS
: Rudie Kok
Attorneys
[1]
East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September

2011) paras [6]-[7]
[2]
Secretary, Judicial Commission of Enquiry into Allegations of State
Capture v Zuma and Others
2021 (5) SA 327
(CC) (“Zuma”)
par 31 and the authorities quoted therein.
[3]
16 of 1963 as amended
[4]
1998 (3) SA 677
(E) at 680 C-E and the authorities cited therein,
681G/H
[5]
Radue fn 2 supra, 679 H-682
[6]
Whyte’s Stores v Bridle NO, Harris NO and Waterberg Farmer’s
Co-op Society and Others
1936 TPD 72
, quoted in Radue 680
[7]
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) paras [12]-[13]
[8]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA); Pheko &
Others v Ekhurhuleni City
2015 (5) SA 600
(CC); Matjhabeng
Municipality v Eskom Holdings Ltd & Others; Mkhonto & Others
v Compensation Solutions (Pty) Ltd
2018 (1) SA 1
(CC) (“Matjhabeng”)
paras [67] and [85]-[88]; Zuma fn 4 supra
[9]
Matjhabeng
supra para [63]
[10]
Matjhabeng
supra para [67]
[11]
Betlane v Shelly Court CC
[2015] JOL 34003
CC par 29
[12]
Soffiantini v Mould
1056 (4) SA 150
(E), Truth Verification Testing
Centre v PSE Truth Detection CC and Others 1998 (2) SA 689 (W)
[13]
Zuma fn 4 supra par [37]
[14]
Zuma para [41]
[15]
HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and
Others
2000 (1) SA 507
(C) at 518 E/F-519A/B
[16]
Facie
[17]
Culverwell v Beira
1992 (4) SA 490
(W) at 494 A-D
[18]
Fn
1 supra paras [48] and [50]
[19]
Zuma para [43]
[20]
1956
(1) SA 105
N at 120 D-E
[21]
1948 (1) SA 1186 (W) 1189
[22]
Meter Systems Holdings Ltd v Venter and Another
1993 (1) SA 493
(W)
pertaining to what is confidential information
[23]
Johannesburg Municipal Pension Fund and Others v City of
Johannesburg
2005 (6) SA 273
(W) at 281-282
[24]
BSI Boiler & Steam Installation CC v Executive Toys Commercial
(Pty) Ltd 2016 JDR 0220 (GP) paras 7.1 and 7.2
[25]
1957
(2) SA 382
D
[26]
Buthalezi v Poorter & Others
1974 (4) SA 831
(W)

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