IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 1986/2024
In the matter between:
SHAYKH IRAFAAN ABRAHAMS Applicant
and
THE MUSLIM JUDICIAL COUNCIL (MJC) [SA] First Respondent
SHUAID APPLEBEE
(Acting President MJC) [SA] Second Respondent
THE MJC [SA] IMAARAH COUNCIL
(Comprising 10 or so members, a Constitution
elected organ of the MJC [SA] being the Senior
Council] Third Respondent
RIAD FATAAR
(The newly elected President of the MJC [SA] Fourth Respondent
Coram: Joubert, AJ
Dates of Hearing: 6 & 16 February 2024
Date of Judgment: 22 February 2024
JUDGMENT
JOUBERT, AJ
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INTRODUCTION
1. The applicant, who on his version still is the duly elected President of
the first respondent (“the MJC ”), albeit currently under suspension,
seeks, as primary relief, a declarator holding the respondent s in
contempt of court for non-compliance with various provisions of a court
order made by the honourable Justice Salie in Case No 15296/2023 on
21 September 2023 by agreement between him and the MJC (“the
order”).
2. The applicant also seeks an order setting aside the election of the
fourth respondent as President of the MJC, on the basis that such
election also took place in contempt of the order.
3. The ancillary relief sought need not be dealt with in this judgment.
4. The order was taken by agreement pursuant to an application by the
applicant to interdict the MJC from proceeding with what he considered
to be unconstitutional early election of an Executive Committee,
including the position of President of the MJC , which would also
deprive him of his rights flowing from his contract of employment as
incumbent President of the MJC.
5. Paragraphs 2 and 3 of the order are of most importance to this matter.
They provide as follows:
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“2. That the Special Elections AGM convened in terms of
clause 4.8 of the Respondent’s constitution, and
scheduled for 23 September 2023, proceeds for all
positions of the Executive Committee, save for the
position of President which position the Applicant
presently hoolds;
3. That the elections for a position of President of the
Respondent is postponed to the date to be determined
and set by the Respondent between 15 December 2023
and 15 January 2024.”
6. Paragraph 4 is too lengthy to set out in full and it suffices to say that it
provides that the respondent would schedule, hold and finalise a
disciplinary enquiry with the applicant before 15 November 2023.
Certain further provisions and conditions are attached to this injunction.
7. In terms of paragraph 5, the applicant was formally placed on paid
suspension from the date of the order pending the outcome of the
election for the position of President on the date determined as per
paragraph 3 of the order.
8. The applicant’s case is that, in contravention of the order, the MJC did
not hold a disciplinary enquiry as per paragraph 4 of the order, and
proceeded with unconstitutionally convened elections on Saturday 27
January 2024, during which elections the fourth respondent was
elected as President.
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9. The respondents’ main case in opposition to the application is that an
oral agreement was reached by the parties during the course of
settlement negotiations held on 24 October 2024, the essential terms of
which were as follows:
9.1 The MJC would pay the applicant an amount of R350 000;
9.2 The applicant would resign as President of the MJC as well as
all other positions that he holds at the MJC;
9.3 The applicant would continue to remain as a member of the MJC
General Majilis if he so wishes;
9.4 The application under Case No 15296/2023 would be
withdrawn.
10. On the respondent s’ case, the alleged oral agreement meant that all
disputes between the parties were effectively settled and that none of
the provisions of the order needed to be complied with any longer. At
the very least, the respondents say, they genuinely believed that the
whole case had been settled by oral agreement , and that their conduct
was not mala fide or wilful.
RELEVANT LEGAL PRINCIPLES
11. An applicant who alleges contempt of court must establish that:
11.1 an order was granted against the alleged contemnor;
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11.2 the alleged contem nor was served with the order or had
knowledge of it; and
11.3 the alleged contemnor failed to comply with the order.
12. Should the aforementioned elements be established, wilfulness and
mala fides are presumed and the alleged contem nor bears an
evidentiary burden to establish at least a reasonable doubt as to these
elements. This is because of the application of the criminal standard of
proof, namely that the contempt of court must be established beyond
reasonable doubt.1
13. If it is to be accepted on these papers that an oral agreement was
indeed concluded as referred to above, or that the respondent s
reasonably thought that to be the case, there can in my view be little
doubt that their non -compliance with the order did not amount to
contempt of court.
14. The respondents are also assisted by the “ Plascon-Evans rule”,2
namely that in motion proceedings where disputes of fact have arisen
on the affidavit s, a final order may only be granted if those facts
averred in the applicant ’s affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent , justify
such an order, This does not apply if the denial by a respondent of a
fact alleged by the applicant does not raise a real, genuine or bona fide
dispute of fact or where the allegations or denials of the respondent are
1 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 22
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so far-fetched or clearly untenable that the court is justified in rejecting
them merely on the papers.
THE RELEVANT EVIDENCE
15. The relevant aspects of the evidence of the respondent s’ deponent,
Sheikh Muhammad West, are the following:
15.1 On 5 O ctober 2023, the MJC initiated a disciplinary hearing by
sending a notice thereof together with the charge sheet to the
applicant, to be held on 25 October 2023. In anticipation thereof,
the parties engaged in a process of appointing three persons to
serve on the disciplinary committee as well as other preparatory
matters. An amended charge sheet was sent to the applicant on
18 October 2023.
15.2 In the meantime, the applicant had initiated discussions aimed at
resolving the dispute through “round table discussions ”, which
culminated in a letter by the applicant ’s attorney dated 23
October 2023 wherein it was confirmed that the applicant had
secured a boardroom at his own cost for the discussions to be
held on 24 October 2023.
15.3 On the appointed date, discussions took place which, according
to the respondents, culminated in an oral settlement agreement
in the terms referred to in paragraph 9 above. According to the
2 Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at p 634
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respondents it was also expressly agreed that the terms referred
to were in full and final settlement of all the matters between the
parties, including the pending di sciplinary enquiry. At the
conclusion of the meeting there was an exchange of goodwill
and shaking of hands, and a final prayer concluded the meeting.
16. According to the respondents, the applicant ’s attorney was simply
tasked to reduce the detailed oral agreement into writing for the sake of
having a written record.
17. The applicant, however, alleges that the agreement , was there would
only be a binding settlement agreement once it is reduced to writing
and signed by the parties. It is trite that parties can conclude an oral
agreement which includes a term that it shall only become binding
when reduced to writing and signed by them i3. Whether or not the oral
agreement included such a term that lies at the heart of the matter.
18. In his founding papers, the applicant inter alia states that “After lengthy
settlement negotiations it was agreed that my previous lawyers would
reduce the terms of the settlement negotiations into writing which must
then be signed by both parties”.
19. However, on a number of occasions in his affidavit he refers to what
transpired as a “ negotiated settlement”. To be more precise, the
construction that he places on events is that, “ It was agreed that the
3 Van der Merwe et al: Contract General Principles, Juta 4th Ed pp 130-131
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negotiated settlement agreement was conditional upon same being
reduced to writing and signed by the parties”.
20. I mention, in passing, that although the applicant states that his
previous legal representatives who were present at that meeting can
attest to his version, no affidavit from any person other than his own
was presented in support of his application. The respondents, on the
other hand, have presented confirmatory affidavits from the individuals
who attended the meeting on behalf of the MJC.
21. In his founding affidavit, the applicant goes on to state that a day or so
after the “negotiated discussions”, he contacted his previous lawyer
and raised concerns that he had with the “ negotiated settlement”,
namely that he felt he had been unfairly treated especially since he was
the duly elected President of the MJC and that had he never conducted
himself in a manner unworthy of that position at all. He thus “ declined
to proceed or accept the settlement as discussed in the meeting … and
exercised (his) prerogative in this regard”.
22. In further support of his version, the applicant attached email
correspondence between the MJC’s attorney and his previous attorney
dated 27 October 2023, from which it is clear that the applicant ’s
erstwhile attorney adopted the position that the applicant ’s signature
had to be obtained before the settlement agreement could be
considered to be binding.
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23. Such contemporaneous correspondence is obviously helpful in
establishing what the intention of the parties was at the time and the
applicant points to this correspondence as providing collateral evidence
in respect of his version. In particular, he points to the fact that, in the
first letter in the chain of correspondence on 27 October 2023, the
MJC’s attorney inter alia stated that “We presume that you have now
received any final instructions from your client alternatively your client
has no withdrawn his agreement from the table”.
24. It is so that the reference to “final instructions ” could notionally support
the applicant’s version that there was not yet a final and binding
settlement.
25. However, this construction does not take account of the evidence on
behalf of the respondents that the first communication between the
respective attorneys, prior to the written correspondence, was a
telephone call that the respondent s’ attorney made the previous day to
the applicant’s erstwhile attorney , during which he requested the letter
recording the oral agreement . During this conversation, the applicant ’s
attorney advised that the applicant was not happy with the agreed
amount and wanted an increase. According to the respondent s’
evidence, the MJC’s attorney “reiterated that the oral agreement had
been concluded and was legally binding, and they were not open to
renegotiation”.
26. Significantly, this evidence was not contested in reply.
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27. Placed in the context of this telephone conversation, the reference in
the MJC’s attorneys’ letter of 27 October 2023 to “final instructions from
your client” can be construed as a reference to a final decision by the
applicant as to whether or not he was going to renege on the
agreement, as oppos ed to indicating an acceptance that the applicant
could still decide whether or not to agree to the terms.
28. Further events, such as a meeting held on 30 November 2023 at the
offices of the MJC, at which meeting the applicant was, according to
him, ambushed and poorly treated because of the stance that he
adopted regarding the oral agreement, and further correspondence and
events thereafter leading to the election held on 27 January 2024 , are
in my view of little relevance to the real dispute, and no purpose will be
received by dealing with those issues in this judgment
29. One issue raised in the papers relating to the dispute about the oral
agreement, particularly the alleged condition or proviso thereto, is to
the fact that the MJC alleges that it, in pursuance of the oral settlement
agreement, made four payments to the applicant which were accepted
by him, the import of this being that the applicant in fact accepted that a
binding settlement had been reached.
30. However, in reply, the applicant states that those payments were in fact
salary payments, which were demanded by his erstwhile attorney in a
letter dated 31 October 2023, which rather supports his case . The
MJC’s attorneys responded to that letter on the same day stating that
“Our clients have made arrangements to make his payment as stated
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previously”. The amount of those payments do accord with what the
applicant’s salary was, namely R45 230 which, after deductions ,
resulted in a net of R35 481.79.
31. The respondents, on the other hand, point out that in the MJC’s
payment schedule, those payments were referred to as “DC settlement
pay-out” and on the MJC’s bank statement as “MJC settlement
payment” and “corporate once- off payment”. The amounts of the
payment are also very close to what the settlement amount, broken up
into seven payments, amounted to.
32. The fact that those amounts coincided exactly with the applicant ’s
salary, does tend to support his case but, on the other hand, this is
counterweighed by the references in the schedule and the bank
statements. Ultimately this evidence does not support the applicant
strongly enough to overcome the hurdle of the “Plascon-Evans rule”.
33. As has already been alluded to, the applicant is faced with the further
hurdle that his case must be proved beyond reasonable doubt. On a
conspectus of all of the evidence, the respondent s have established at
least reasonable doubt as to whether non- compliance with the order
amounted to contempt of court.
CONCLUSION
34. In the event, the application must be dismissed.
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35. At the hearing of the matter I pointed out to the parties that neither side
had complied with Uniform Rule 41A and directed them to indicate to
the Court whether they are amenable to mediation and, if not, their
reasons for such stance. The respondent s indicated that they were not
amenable to mediation, the reason being that serious allegations had
been made against MJC and its members which had to be resolved or
clarified. The applicant indicated that, in the light of the respondent s’
stance, he accepted that mediation was not feasible.
36. It is well- established that both parties have a duty to comply with
Uniform Rule 41A and the fact that neither of the sides did so, has the
result that costs must simply follow the result.
37. Accordingly, I make the following order:
37.1 The application is dismissed.
37.2 The applicant shall pay the respondent s’ costs on the scale as
between party and party.
_____________________
DC JOUBERT AJ
Date: ________________