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[2024] ZAECMKHC 12
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Intercape Ferreira Mainliner (Pty) Ltd v MEC for Transport, Eastern Cape and Others (2099/2022) [2024] ZAECMKHC 12 (25 January 2024)
FLYNOTES:
CIVIL PROCEDURE – Contempt –
Police
commissioners
–
Intercape
bus service suffering attacks by taxi operatives – Obtaining
order directing police to provide visible policing
at loading
points in hotspots and escorts on certain routes –
Applicant’s argument that partial and sporadic
compliance
constitutes non-compliance especially where protection of
fundamental rights and enforcement of constitutional
duties are
concerned – Powers and duties of National Commissioner
discussed – Respondents declared to be in contempt
of rule
nisi order and directed to file affidavit reporting on steps taken
to ensure that SAPS complies in full with the
court order.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 2099/2022
In
the matter between:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
Applicant
and
THE
MEC FOR TRANSPORT, EASTERN CAPE
First
Respondent
THE
MINISTER OF TRANSPORT
Second
Respondent
PROVINCIAL
COMMISSIONER, EASTERN CAPE
SOUTH
AFRICAN POLICE SERVICE
Third
Respondent
NATIONAL
COMMISSIONER, SOUTH AFRICAN
POLICE
SERVICE
Fourth
Respondent
NOMTHETHELELI
LILLIAN MENE
Fifth
Respondent
SEHLAHLE
FANNIE MASEMOLA
Sixth
Respondent
In
re:
INTERCAPE
FERREIRA MAINLINER (PTY) LTD
Applicant
and
THE
MEC FOR TRANSPORT, EASTERN CAPE
First
Respondent
THE
MINISTER OF TRANSPORT
Second
Respondent
PROVINCIAL
COMMISSIONER, EASTERN CAPE
SOUTH
AFRICAN POLICE SERVICE
Third
Respondent
NATIONAL
COMMISSIONER, SOUTH AFRICAN
POLICE
SERVICE
Fourth
Respondent
NATIONAL
PUBLIC TRANSPORT REGULATOR
Fifth
Respondent
EASTERN
CAPE PROVINCIAL
REGULATORY
ENTITY
Sixth
Respondent
REASONS
Rugunanan
J
[1]
The present application served before this Court
on 14 December 2023. It involves urgent contempt proceedings brought
by civil process
for conduct
ex facie
curiae
which the applicant contends is
tantamount to non-compliance with a Court order for which it seeks
punitive relief. The matter implicates
the third and fourth
respondents both of whom are incumbents of the South African Police
Services (‘the SAPS’) respectively
the Provincial
Commissioner and the National Commissioner and it seeks their joinder
in their personal capacities, in turn, as
fifth and sixth
respondents.
[2]
As a collective and where contextually appropriate
the third, fourth and fifth respondents will hereinafter be referred
to as ‘the
SAPS respondents’ or ‘the respondents’.
The answering affidavit on their behalf has been deposed in the name
of the fifth respondent, Ms Nomthethelei Lillian Mene.
[3]
Although joined in these proceedings in his
personal capacity the sixth respondent did not depose to an answering
affidavit in that
capacity nor is there a confirmatory affidavit with
reference to the answering affidavit put up by the fifth respondent.
[4]
The focus of the proceedings is paragraph 5 of a
rule
nisi
granted
by Smith J on 14 June 2023 and confirmed on 22 August 2023. The
relief contemplated in that paragraph culminated from
a history of
incidents indicating a deliberate strategy on the part of rogue taxi
operatives within certain parts of the province
to subject the
applicant and its long-distance drivers and passengers to acts of
violence, intimidation and coercion of the applicant
to increase its
rates, as also to reduce the number of its coaches operating on
designated routes and to pay a fee to operate on
specified routes.
[5]
The incidents comprising of some 175 reported
cases were manifest in areas identified as hotspots, namely the Chris
Hani District,
the Amathole District, and the OR Tambo District. The
districts include loading points at Idutywa, Butterworth, Tsomo and
Cofimvaba
on the R409/N2 route between Queenstown and Mthatha. This
history is dealt with more extensively in the judgments by Smith J
that
culminated in the granting of the rule
nisi
and its confirmation, with much of it (on the
applicant’s version) recurring in Idutywa during the approach
to the recent
festive season and so, necessitating these proceedings.
[6]
The relief in the relevant paragraph of the rule
nisi
(which
relief is henceforth referred to as ‘the SAPS relief’)
directed the SAPS to coordinate with other role players
for ensuring
that:
‘
5.1
a visible law enforcement presence is maintained at every loading
point in hotspot towns and areas
at each of the times at which the
applicant’s buses are scheduled to stop at those loading points
in order to maintain the
safety and security of long-distance bus
drivers and passengers;
5.2
law enforcement escorts are provided to the applicant’s buses
along the hotspot routes,
and any other routes, as and when requested
by the applicant on account of a legitimate concern over a risk of
intimidation or
violence; and
5.3
where necessary, procure the assistance of other law enforcement
agencies in order to ensure
compliance with paragraphs 5.1 and 5.2.’
[7]
This relief was aimed at ensuring interim
protection of the applicant’s coaches, its staff, and
passengers while the first
and second respondents (i.e. the MEC for
Transport and the Minister of Transport) were directed within 60 days
to revise an action
plan formulated by the MEC. The action plan did
not accord with the purpose of the confirmation order
and required
fundamental reconsideration. The action plan
emanated from an order of 30 September 2022 – also granted
by Smith
J. (I interpose to point out that the SAPS respondents aver
that the action plan was filed without mention of the date as to when
this occurred).
[8]
By its
nature, the SAPS relief comprehends an order
ad
factum preastandum
[1]
.
Its interim operative effect is not in dispute and subsists
notwithstanding the SAPS’ pending application for leave to
appeal the confirmation order. Broadly speaking, the relief does no
more than to compel the SAPS to comply with their constitutional
and
statutory obligations for the maintenance of safety and security and
the prevention of acts associated with intimidation and
violence
directed against the applicant’s coach drivers and members of
the travelling public utilising the applicant’s
services. The
obligations imposed by the order are indeed what the SAPS agreed to
assume in terms of an Implementation Schedule
proposed by the
applicant.
[2]
[9]
Insofar as the SAPS respondents are concerned the
primary relief sought by the applicant in its amended notice of
motion entailed
orders
inter alia
:
(a)
declaring the respondents
to be in contempt of the rule
nisi
order as confirmed by the confirmation order; and
(c)
directing that the
respondents be committed forthwith to prison for a period of 90 days
pending compliance with the SAPS relief.
[10]
At the
hearing of the matter, save to state that its urgency was conceded
and that the issue of joinder
[3]
was not seriously contested, the applicant’s further relief
(being immaterial to the determination of the primary relief)
deserved no mention and was deferred for consideration by agreement
between the parties. The further relief relates to an application
filed on 12 September 2023 at the instance of the SAPS’
Provincial Commissioner and the National Commissioner for leave to
appeal against the confirmation order and a similar application filed
on the same date by the first respondent, the MEC for Transport,
Eastern Cape.
[11]
On 19 December 2023 having formed the view that
the applicant did not make out a case beyond reasonable doubt for
demonstrating
wilful and
mala fide
non-compliance which effectively ruled out the
suspended committal relief it sought against the respondents, I
granted an order
which in broad summary:
(a)
declared the respondents
to be in contempt of the confirmed rule
nisi
order (hereinafter ‘the court order’);
(b)
directed the respondents
and the SAPS to comply in full with paragraphs 5.1 and 5.2 of the
court order;
(c)
directed the respondents to file an affidavit
within 30 days reporting on the steps they have taken to ensure that
the SAPS complies
in full with the aforementioned paragraphs of the
court order; and
(d)
granted the applicant
leave to set the matter down for further hearing on supplemented
papers for seeking the committal of the fifth
and/or sixth
respondents in the event of non-compliance.
[12]
At the time of granting the order I indicated that
my reasons for doing so would follow. As will appear later I am
satisfied that
the applicant has shown on the civil standard of proof
that the respondents have failed to comply with the confirmed rule
nisi
order.
I also hold the view that it is extremely unlikely that the
respondents did not fully appreciate the practical implications
attendant on compliance and for that reason I am hesitant to make a
finding of wilfulness and
mala fides
beyond reasonable doubt on affidavit evidence
alone.
[13]
My conclusion in that regard is informed by my
views of the substantial issue/s identified for determination and
flowing fairly
from the material before me. And in sketching these
reasons, I intend confining myself to saying only that which is
considered
absolutely necessary to substantiate the order I made. To
that end the research and reasoning in the heads of argument filed on
behalf of the parties’ counsel assisted greatly in providing
fair-minded guidance for the parties’ submissions. The
heads
are supported by precedent and offer a dutiful rendition of the
material contained in the affidavits and supporting annexures.
[14]
The deponent to the applicant’s founding
affidavit is its Chief Executive Officer, Mr Johan Ferreira. In
setting out the applicant’s
case on the contempt issue, he
states:
‘
11.
[F]or several months the SAPS respondents complied – albeit
imperfectly – with
the rule nisi and confirmation orders,
they too filed an application for leave to appeal on 12 September
2023. And nearly
a month later the SAPS stopped complying with the
SAPS relief.’
[15]
Elsewhere he avers:
‘
12.2
[A]ny protection that Intercape was receiving from the SAPS on an
interim basis has come to an abrupt halt.’
[16]
As a result of:
(a)
the SAPS’ failure over several months to
ensure that a visible law enforcement presence is maintained at the
applicant’s
loading points as required in paragraph 5.1 of the
rule
nisi
order;
and
(b)
the
SAPS’ failure to ensure that the applicant is provided law
enforcement escorts as required in terms of paragraph 5.2 upon
apprehension of a legitimate fear of violence and/or intimidation,
the applicant was constrained to seek the present contempt relief
against the SAPS respondents.
[17]
Contempt
of court is a crime unlawfully and intentionally to disobey an order
of court, the essence of which lies in violating the
dignity, repute
or authority of the court.
[4]
There is no gainsaying that orders of court are judicial
pronouncements that bind all to whom they apply and that obedience to
court orders is foundational to our constitutional ethos grounded in
the rule of law. The authority of the courts depends on public
trust
and respect for the courts. Public officials should lead by example
to ensure that the foundation of the democratic order
of the society
it sustains is not subverted. The chaos and damage caused to society
by conduct that shows disobedience to court
orders bears the risk of
rendering the judiciary ineffective. The avoidance of that state of
affairs is the rationale for the constitutional
decree of deference.
Contempt is thus not simply an issue
inter-partes
–
it
is an issue between the court and the party who has not complied with
a mandatory order of court notwithstanding that harm may
have been
caused to the party in whose favour an order has been made.
[18]
The test for whether disobedience of a civil order
constitutes contempt is ‘whether the breach was committed
deliberately
and
mala fide
’
.
[19]
In
Fakie
NO v CCII Systems (Pty) Ltd
[5]
the legal position for proof of contempt on the appropriate test
applied to application proceedings by way of notice of motion
was
condensed as follows:
[6]
‘
(a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements.
(b)
The respondent in such proceedings is not an
“accused person”, but is entitled to analogous
protections as are appropriate
to motion proceedings.
(c)
In particular, the applicant must prove the
requisites of contempt (the order; service or notice; non-compliance;
and wilfulness
and
mala fides
)
beyond reasonable doubt.
(d)
But, once the applicant has proved the order,
service or notice, and non-compliance, the respondent bears an
evidential burden in
relation to wilfulness and
mala
fides
: Should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and
mala fide
,
contempt will have been established beyond reasonable doubt.
(e)
A
declarator
and other appropriate remedies remain available to
a civil applicant on proof of a balance of probabilities.’
[20]
In
summing up the above it is the form of relief which a party seeks
that attracts a particular
onus
or
burden of proof. An applicant seeking a sanction of committal must
prove the requisites of contempt (i.e.
(i)
the
order;
(ii)
service
or notice;
(iii)
non-compliance;
and
(iv)
wilfulness
and
mala
fides
beyond
reasonable doubt. The criminal standard of proof applies whenever
committal is sought and the standard of proof on a balance
of
probabilities only applies if a
declarator
or
other civil remedies short of committal are sought.
[7]
[21]
Once
an applicant has proven these requisites the respondent bears an
evidential burden in relation to wilfulness and
mala
fides
.
This is not a legal burden. To avoid conviction, the evidential
burden only requires the respondent to adduce evidence that
establishes
a reasonable doubt that non-compliance was wilful and
mala
fide
.
[8]
[22]
It is not in dispute that the first two
requirements of the test have been satisfied. The respondents
acknowledge that the order
was granted against them and that it was
served on them or that they had knowledge thereof. All that is in
issue between the parties
is whether there has been a failure to
comply with the court order and, if so, whether non-compliance was
occasioned by wilfulness
and
mala fides
.
[23]
On the non-compliance issue the parties’
affidavits are by no means insubstantial and are heavily laden with a
mass of competing
factual and argumentative material in regard to
which it is not intended to descend into a full-blown exposition.
[24]
My summation is that the applicant has adduced
persuasive evidence indicating non-compliance by the SAPS with the
terms of the confirmed
rule
nisi
order.
[25]
The applicant’s complaints are confined to a
timeline depicting
(a)
the
period from date of the rule
nisi
and confirmation orders until 6 October 2023;
(b)
the period from 6 October 2023 until
the launch of this application on 7 November 2023; and
(c)
the period 24 November 2023 to 28
November 2023.
[26]
The founding affidavit meticulously sets out the
factual detail within the timeline and is substantiated by a series
of written
communications by the applicant’s attorneys to the
state attorney. In its heads of argument the applicant abbreviates
the
SAPS’ non-compliance by submitting that it has shown that –
(a)
the SAPS complies with the visible law enforcement
relief no more than half the time;
(b)
on the limited occasions on which the SAPS does
ensure visible law enforcement at loading points, it only does so
after the applicant
has gone door-to-door beseeching one SAPS
official after the next to secure assistance;
(c)
the SAPS has never implemented the visible law
enforcement relief on the troublesome R409/N2 route;
(d)
when the SAPS does provide visible law
enforcement, it does so only in the normal course of its duties and
in locations of its choice;
(e)
the SAPS occasionally complies with the escorts
relief and does so on its own terms by
(i)
ceasing to recognise certain areas as hotspots
despite the designations having previously been determined by this
Court; and
(ii)
applying
its own requirement of proof of imminent danger before providing
escorts; and
(f)
raising resource constraints as a reason not to
comply with the court orders when this Court in the previous
judgments per Smith
J has already determined that the SAPS relief is
to be provided notwithstanding any resource constraints the SAPS
might have.
[27]
There are disputes of fact on these aspects and so
too on the remaining issues pertaining to wilfulness and
mala
fides
. The suggested approach to these
disputes is mentioned later.
[28]
The gist of the case for the respondents as
advanced by Ms Mene in her answering affidavit is evident from the
averment:
‘
27.
I deny that the SAPS has deliberately decided not to comply with the
interim relief ordered by
Smith J.’
[29]
Her denial is repeated elsewhere in the following
terms:
‘
34.
I, however, deny that the third to sixth respondents have failed to
comply with a court order
and that they did so wilfully and with
mala
fides
.’
[30]
And much further on she states:
‘
80.
The SAPS has complied with the court order and/or at the very least
there has been substantial
compliance with the court order.’
[31]
The veracity of the SAPS respondents’
blanket denials is undercut by the acknowledgment of substantial
compliance. Indeed,
this appears to have also been the position
adopted in their heads of argument albeit only insofar as contending
that substantial
compliance would not result in their committal.
[32]
There
are plainly conflicting levels of compliance from differing
perspectives. On the one hand the applicant contends that the
SAPS
has only partially and sporadically complied; on the other hand the
respondents have conceded substantial compliance. It was
submitted
for the applicant during argument that the SAPS has not achieved
anything close to substantial compliance. Substantial
compliance
sufficient to avoid committal for non-compliance is achieved ‘where
most of the order has been complied with and
the non-compliance is in
respect of some minor matter only’
[9]
.
The SAPS relief requires enforcement of the law for ensuring the
safety of the applicant’s coach drivers and its passengers.
Since these are matters recognised by the Constitution which places a
general duty on the State to protect entrenched rights
[10]
,
the threshold for achieving substantial compliance must necessarily
be higher when court orders concern the enforcement of constitutional
duties and the protection of fundamental rights.
[11]
On the applicant’s argument partial and sporadic compliance
constitutes non-compliance especially where the protection of
fundamental rights and the enforcement of constitutional duties are
concerned. Undoubtedly, these are not minor matters and the
assertion
of substantial compliance gains no traction.
[33]
While I am in agreement with the applicant’s
submissions aforementioned, the more weighty issue concerns
wilfulness and
mala fides
.
[34]
The
judgment of the majority in
Fakie
made
it clear that a deliberate disregard of a court order is on its own
not sufficient since the defaulter may genuinely, although
mistakenly, believe themselves entitled to act in the way they did to
constitute the contempt. Acting in good faith avoids the
infraction
even if the conduct is objectively unreasonable (though
unreasonableness could, depending on the circumstances, evidence
a
lack of good faith).
[12]
[35]
While the SAPS’ non-compliance may be
unreasonable this must be evaluated against the consideration that
there was never a
definitive instruction to altogether stop complying
with the confirmed rule
nisi
.
The respondents’ instructions communicated in correspondence by
the state attorney, including WhatsApp exchanges between
certain
members of the SAPS and incumbents of the applicant – all of
which, the purport and meaning pertaining to the practical
aspects
for implementation of the court order are matters that ought properly
to have been investigated in oral evidence seeing
as the applicant
sought committal relief. I therefore have difficulty with the
submission in the applicant’s heads of argument
that the
Provincial Commissioner’s answering affidavit consists almost
exclusively of an attempt to explain why the SAPS
has not failed to
comply with the court order/s but does nothing to explain why there
has been no wilfulness and
mala fides
insofar as she or the SAPS are concerned.
[36]
Properly considered the submission relates to
non-compliance, and wilfulness and
mala
fides
. Indubitably, there are disputes
of fact on these issues. This is an instance in which it would have
been appropriate to have referred
the matter to trial so that the
deponents to the parties’ affidavits (and confirmatory
affidavits, if I might add) are subjected
to a truth-searching
cross-examination.
[37]
I hold the view nonetheless that the failure to
have referred the matter to trial is not fatal to the application.
The disputes
of fact (on the version presented by the respondents)
are not such as to establish reasonable doubt as to whether the
applicant’s
complaints of disobedience was wilful and
mala
fide
. I reiterate what was said earlier
that it is unlikely that the respondents did not appreciate the
practical implications of what
they were doing hence my hesitancy to
have made a finding of wilfulness and
mala
fides
beyond reasonable doubt on
affidavit evidence alone.
[38]
In that regard I entertained reluctance to make an
order that restricts personal liberty.
[39]
The National Commissioner has been cited in these
proceedings and despite being afforded the opportunity to advance
evidence to
contest the applicant’s case, he distanced himself.
This is what the Provincial Commissioner says in her answering
affidavit:
‘
7.
At the outset I point out that I carry out the statutory duties on
behalf of the SAPS
according to the relevant statutory prescripts and
that I am the Provincial Commissioner and thus head of the SAPS in
the Eastern
Cape. The National Commissioner is not involved in the
daily policing operations of the SAPS in the Eastern Cape as the duty
falls
within the statutory duties prescribed to me. I report to [the]
National Commissioner on policing in the province. The National
Commissioner can therefore not be held to be in contempt of the court
order which directs policing in the province. I have been
advised
that it is not necessary for the National Commissioner to depose to
an affidavit at this stage. In the event of this Honourable
Court
finding it necessary that the National Commissioner file an
affidavit, such affidavit will be filed.’
[40]
The
attitude conveyed by the aforegoing is not only unavailing but
damning. The starting point is section 207(1) and (2) of the
Constitution. Responsibility for ensuring compliance with the SAPS
relief falls not only on the Provincial Commissioner but also
lies
with the National Commissioner whom the Constitution decrees is the
presidential appointee who exercises control over and
manages the
police service.
[13]
[41]
This
charge is also echoed in section 11 of the South African Police
Service Act
[14]
wherein it is
reiterated that the National Commissioner –
‘…
shall
exercise control over and manage the police service in accordance
with section 207 (2) of the Constitution…’
[42]
And in which section it is further recorded that –
‘
[w]ithout
derogating from the generality of subsection (1), the National
Commissioner shall [inter alia] … (d) organise or
reorganise
the Service at national level into various components, units or
groups; … and (g) perform any legal act or act
in any legal
capacity on behalf of the Service’.
[43]
The
aforegoing includes powers wide enough to determine the distribution
of the SAPS’ national resources and to divert and
re-allocate
them to the provinces where they are needed. The constitutional
imperatives giving emphasis to enforcement of the law,
the
maintenance of public order, the prevention and combatting of crime,
and the security of members of the public and protection
of
property
[15]
provides
sufficient justification for this interpretation and to have cited
the National Commissioner in these proceedings. Where
resource
constraints have been raised in the answering affidavit, it is
obvious that the National Commissioner plays a direct and
pivotal
role in ensuring the SAPS’ compliance with the order favouring
the applicant.
[44]
The National Commissioner’s tacit
endorsement of the affidavit by the Provincial Commissioner is
indicative of a failure to
appreciate the obligations imposed by
legislation and to treat the matter with the seriousness it deserves.
This smacks at section
165 of the Constitution which imposes a
positive duty on organs of state to uphold the dignity of the courts
and to ensure the
effectiveness of their orders.
[45]
It is with respect salutary to remind the National
Commissioner of the sentiments of Smith J in his judgment of
7 October 2022
apposite to the failure of the Minister of
Transport to file an affidavit in response to allegations levelled
against the Minister:
‘
The
Minister is also not bothered to file either an answering or
confirmatory affidavit. His failure to do so was clearly also based
on his belief that he did not owe Intercape any explanation. His
rather curt reply to Intercape’s request for intervention
to
the effect that the problem is that of the MEC, evinces a clear and
fundamental misunderstanding of his constitutional and statutory
obligations under the Transport Act. In my view, their conduct is
deserving of a punitive costs order.’
[46]
Despite the National Commissioner’s distance
from the matter (it being of significance beyond merely the matter of
costs),
I am cognisant of the need to consider and indeed safeguard
his constitutional right to freedom. The order which I have made
adequately
affords him the opportunity to desist from offensive
conduct and to place a version before this Court.
[47]
To conclude, even if shorn of the punitive
sanction sought by the applicant the declaratory relief has as its
purpose to uphold
the rule of law and to vindicate the authority of
the Court.
[48]
Accordingly, my order stands.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant:
P
Farlam SC
with
A
Molver
and
M Somandi
,
Instructed by Adams & Adams, Pretoria (Ref: JSM/DJC/LT5149 - Tel:
012 432 6000; Email
jacmarias@adams.africa
demi.pretorius@adams.africa
)
c/o Huxtable Attorneys, Makhanda (Ref: O Huxtable – Tel:
046-622 2692; Email
owen@huxattorneys.co.za
).
For
the opposing Respondents:
A
Rawjee
with
X
Nogantshi
,
Instructed by The State Attorney, Gqeberha (Ref: M Botha – Tel:
041-585 7921; Email
MicBotha@justice.gov.za
),
c/o Whitesides Attorneys, Makhanda, (Ref: G Barrow/C13386 –
Tel: 046-622 7117; Email
barrowsec@whitesides.co.za
).
25 January 2024.
[1]
This is an order calling upon a person to perform a certain act or
to refrain from specified action.
[2]
See in this regard Annexure FA3 to the founding affidavit to which
is attached the judgment by Smith J confirming the rule nisi,
specifically pp 105-106 paras 26 and 27 of the judgment.
[3]
Which could have been raised
mero
motu
–
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
[2017]
ZACC 35
para 91.
[4]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para 6.
[5]
2006 (4) SA 326 (SCA).
[6]
Para 42.
[7]
Fakie
at 345A;
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018
(1) SA 1
(CC) para 64;
Els
v Weideman and Others
[2011]
ZAWCHC 449
para 25.
[8]
Fakie
para 23.
[9]
Consolidated
Fish Distributors (Pty) Ltd v Zive and Others
supra
at 522D-E.
[10]
In
Minister
of Safety and Security v Van Duiwenboden
2002
(6) SA 431
(SCA) para 20, the Court stated [footnotes omitted]: ‘The
State is obliged by the terms of s 7 of the 1996 Constitution not
only to respect but also to "protect promote and fulfil the
rights in the Bill of Rights" and s 2 demands that the
obligations imposed by the Constitution must be fulfilled. As
pointed out in
Carmichele
our Constitution points
in the opposite direction to the due process clause of the United
States Constitution which was held in
De
Shaney v Winnibago County
Department
of Social Services
not
to impose affirmative duties upon the State. While private citizens
might be entitled to remain passive when the constitutional
rights
of other citizens are under threat, and while there might be no
similar constitutional imperatives in other jurisdictions,
in this
country, the State as a positive constitutional duty to act in the
protection of the rights in the Bill of Rights. The
very existence
of that duty necessarily implies accountability and s 41(1)
furthermore provides expressly that all spheres of
government and
all organs of State within such sphere must provide government that
is not only effective, transparent and coherent,
but also government
that is accountable (which was 1 of the principles that was drawn
from the interim Constitution). In
Olitzki
Property Holdings v State Tender Board and Another
Cameron JA said the
following: "The principle of public accountability is central
to our new constitutional culture, and
can be no doubt that the
Court of civil remedies securing its observance will often play a
central part in realising our constitutional
vision of open,
uncorrupted and responsive government."' See, too,
Minister
of Justice and Constitutional Development v X
2015
(1) SA 25
(SCA) para 17.
[11]
The rationale is that the courts will be all the more astute to
address contempt of court when fundamental rights are infringed.
See
in this regard
Pheko
and Ohters v Ekurhuleni Metropolitan Municipality
(No. 2)
[2015] ZACC 10
para 61 read with fn 73: 'Contempt of court in all cases is to be
prohibited and condemned, but much more so where the order
with
which the state is unwilling to comply concerns the provision of
basic human rights'.
[12]
Fakie
supra
at 333B-C.
[13]
Sections 207(1) and (2) of the Constitution of the Republic of South
Africa, 1996.
[14]
Act 68 of 1995.
[15]
Section 205(3).