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2023
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[2023] ZAFSHC 303
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African National Congress v Moqolo and Others (1852/2023) [2023] ZAFSHC 303 (1 August 2023)

IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no: 1852/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
THE
AFRICAN NATIONAL CONGRESS
Applicant
And
LEHLOHONOLO
MOQOLO
First
Respondent
PATRICK
MONYAKOANA
Second
Respondent
MAPASEKA
MOTHIBI-NKONE
Third
Respondent
CHABELI
FRANK RAMPAI
Fourth
Respondent
PUSELETSO
LETICIA SELEKE
Fifth
Respondent
MPHO
MOKOAKOA
Sixth
Respondent
MARYKE
DAVIES
Seventh
Respondent
CORAM:
CRONJÉ, AJ
HEARD
ON:
26
MAY 2023
DELIVERED
ON:
1 AUGUST 2023
JUDGMENT
BY:
P R CRONJé,
AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 15h00 on 1 August 2023.
I
INTRODUCTION
[1]
The African National Congress (“the ANC”) brought an
application against the Respondents
wherein it sought that the
Respondents be found guilty of contempt of the interim interdict
issued in this Division on 14 April
2023 under case number 1852/2023.
It seeks that the First to Sixth Respondents (“the
Councillors”) be incarcerated
for a period of fifteen (15)
months, alternatively such a period as the Court finds just, and the
Seventh Respondent (“Ms
Davies”) to be fined R100 000.00,
alternatively three (3) months’ imprisonment.
[2]
The application was issued on 18 April 2023 and gave the Respondents
opportunity to inform the
ANC in writing on or before 19 April 2023
at 15h00 if they intend to oppose the application and furthermore to
file opposing affidavits,
if any, by 24 April 2023 at 10h00.
The matter would be set down for 26 April 2023.
II
THE VERSION OF THE ANC
[3]
The Councillors were members of the ANC in the Mangaung Metro
Municipal Council (“MMM”),
and Ms Davies the appointed
Speaker of the MMM, cited in her personal capacity.
[4]
The Court order interdicting the Councillors from attending the
Council meeting on 14 April 2023
“
has been violated
individually and collectively by all the Respondents
” and
this Court’s honour has to be vindicated. Ms Davies is drawn
into the fray as Speaker who allegedly knew of the
order against the
Councillors yet allowed them to be present. She was not cited as a
party in the interdict.
[5]
All the Respondents made themselves guilty in attending and
performing any functions at a Council
meeting of the MMM.  There
is no doubt that all the Respondents had known of the Court order and
decided to ignore it entirely.
[6]
The Councillors were expelled as members of the ANC in March 2023
after a disciplinary process
was conducted and the outcome ratified
by the Provincial Executive Committee (“PEC”).  They
were expelled after
they, in violation of their agreement with the
ANC, voted with opposition parties when Ms Davies was elected as
Speaker.
[7]
In fear that the Councillors would again vote on resolutions with the
opposition parties, the
ANC’s attorney directed letters to the
Councillors on 13 April 2023, wherein they were instructed not to
attend the Council
meeting and should they persist in their unlawful
conduct, the ANC will have no option to take steps to safeguard its
interest,
including approaching Court on urgent basis for an
interdict.  As no response was received, the ANC launched the
urgent application
and states that service of the order was
authorised via WhatsApp, SMS and e-mail.
[8]
Its attorney typed the order immediately as he realized that it was
anticipated that it would
be difficult to solicit the services of the
Sheriff to timeously serve the order in accordance with the Uniform
Rules of Court.
The order was granted at approximately 12h30
and the meeting would commence at 14h00.
[9]
The attorney took it upon himself to, from his cellphone, send copies
of the order via WhatsApp
to the Councillors on the cellphone numbers
that the ANC provided.  He alleges that he sent the order at
approximately 13h00
or shortly thereafter, which is allegedly
supported by a screenshot of the attorney’s WhatsApp messages.
The time on the
screenshot shows 20h42 and that a document was sent
to the Respondents.
[10]
There can be no doubt that all the Councillors and Ms Davies knew
about the order and its effect prior to
the commencement of the
meeting.  The attorney allegedly attended the office of Ms
Davies where he was met by her secretary
and he handed to her a copy
of the order.  The attorney was requested to wait outside when
the secretary entered Ms Davies’
office and she informed him
that she handed a copy of the order to Ms Davies.  The Sheriff
could not serve the order and only
served same on the Councillors at
15h00, shortly after the meeting adjourned.
[11]
The Chief of Staff in the office of the Executive Mayor confirms that
after the meeting was called to order,
Ms Davies informed Council of
the Court order.  The order was allegedly treated as an addendum
to the existing agenda.
[12]
It is stated that the Councillors clearly acted wilfully, with
mala
fides
and in blatant contempt of the order.  They knew about
the order and its effect and decided to attend nonetheless.
[13]
It was incumbent on Ms Davies to make sure that the Council meeting
is not only properly constituted, but
also not to proceed in the
presence of the order.  She allowed the Councillors to attend.
It was incumbent on her to insist
that the Councillors voluntarily
leave the meeting, failing which they should have been removed.
She therefore violated the
order.  Save to state that
applications for contempt is by nature urgent, not much is said about
why it could not have been
brought on a semi-urgent basis or in
normal course.
III
THE COUNCILLORS’ VERSION
[14]
They are entitled to the rights contained in the ANC’s
constitution. The essence of their defence to
the disciplinary
proceedings is that it is constitutionally flawed.  The ANC’s
attorney was informed by way of a letter
from their attorney that the
averment that they were expelled was rejected.  The ANC’s
attorney was informed that they
intend to oppose an interdict
application and they only learned that an interdict was applied for
and granted after the Council
meeting had adjourned.
[15]
They deny that they were aware that the ANC approached the Court for
the interdict or that they were aware
that it was granted before
attending the meeting.  They dispute that the WhatsApp messages
were sent to them at approximately
13h00 or shortly thereafter. They
refer to the WhatsApp screenshot of the ANC’s attorney that
shows that it was sent at 13h42.
They deny that the Speaker
informed Council of the order.  The order was therefore only
scanned within twenty (20) minutes
before the Council meeting
commenced. They do not know when the message was sent.  The only
legal proceeding that the Speaker
informed the Council of was
unrelated to the interdict.
[1]
[16]
In terms of the MMM’s Rules, Councillors are required to be
seated 15 minutes before the Council meeting
and they are required to
mute their cell phones when they take their seats.  They were
all present 15 minutes before the meeting.
VERSION
OF THE INDIVIDUAL RESPONDENTS
[17]
The First Respondent states that he left his cell phone concealed in
his laptop bag in his car before proceeding
to the meeting because of
threats during a riot at the preceding meeting.  The number that
he used was not known to the ANC
and he did therefore not receive the
message.
[18]
The Second Respondent left his cell phone in his car as a safety
precaution as a result of the riots at the
previous meeting.  He
did not receive the message before or during the meeting.
[19]
The Third Respondent left her cell phone with her tea lady before she
went to attend the meeting.  She
normally leaves it with her
secretary, who was not well and did not come to work.
[20]
The Fourth Respondent uses a different number from the one that the
ANC avers he had on that date.
The ANC has no record of the
cell number that he then used. He did not receive the message from
the ANC’s attorney before
the meeting commenced.
[21]
The Fifth Respondent had her cell phone with her but muted it when
she entered the meeting.  The messages
on the phone were also
muted.  She became aware of the ANC attorney’s message
after the Council meeting adjourned.
[22]
The Sixth Respondent was not aware of the order until a consultation
with legal representatives.
[23]
The ANC was invited and challenged to provide the WhatsApp sent and
read reports.  The Councillors gave
detailed steps on how this
can be done.
[2]
There is no
reply to this challenge, averment or invitation. The version is thus
uncontested.
[3]
IV
THE VERSION OF MS DAVIES
[24]
The order was not granted against her and she was neither served with
the order nor had any knowledge of
it.  Non-compliance with the
order was neither wilful nor
mala fide
.  She seeks an
order on a punitive scale against the ANC.  After the interdict
was granted, the application for contempt
was launched on 18 April
2023 leaving her with three (3) Court days to respond.  Rule
6(12)(b) require from the ANC to set
forth explicitly the
circumstances in terms of which it avers the matter is urgent.
[25]
I do not deal with the balance of Ms Davies’ answer as I
directed that oral evidence be presented in
respect of her knowledge
of the order.
V
THE ANC’S REPLY
[26]
The order was served on the Respondents by SMS
[4]
and WhatsApp shortly before commencement of the meeting.  The
order was served on the Third Respondent at approximately 15h49,
at
which time the meeting had not yet adjourned.  The Councillors
observed each other in the Council chamber, 15 minutes before
the
meeting commenced and after the meeting adjourned.  Save to
state that it is “
astonishing
”
that all the Respondents are in unison about not receiving the
WhatsApp messages and that the “
probabilities
”
do not favour such a version nothing more concrete is said.
[27]
The Respondents “
ought
to have received the
orders
”.  It is not disputed that the mobile devices
had to be muted 15 minutes before the meeting commences, but to state
that the devices were left in their vehicles and with their “
tea
girls
” is “
opportunistic
” and at best to
insult this Court’s intelligence.
[28]
It is “
highly improbable
” that the Councillors did
not have sight of the order until after the Council meeting.
The “
probabilities
” support that they received the
order, were aware of it and wilfully elected to ignore it.
[29]
It deals with the respective applications (interdict and contempt
application) “
thematically
”.
[5]
[30]
I asked Mr Grobler SC, who appeared for the ANC, whether the
Councillors should be treated individually or
as a collective.
He stated that they had to be treated individually. This accords with
our law as impeding freedom would
affect the Councillors
individually.
VII
THE TEST FOR CONTEMPT
[31]
The test laid down by the Constitutional Court in
Fakie
v CCII Systems (Pty) Ltd
[6]
has not changed:
“
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the
breach was committed
‘
deliberately and mala
fide’
. A deliberate
disregard is not enough, since the non-complier may genuinely, albeit
mistakenly, believe him- or herself entitled
to act in the way
claimed to constitute the contempt. In such a case good faith avoids
the infraction. Even a refusal to comply
that is objectively
unreasonable may be bona fide (though unreasonableness could evidence
lack of good faith).
[10]
These requirements – that the refusal to obey
should be both wilful and mala fide, and that unreasonable
non-compliance, provided
it is bona fide, does not constitute
contempt – accord with the broader definition of the crime, of
which non-compliance
with civil orders is a manifestation
. They
show that the offence is committed not by mere disregard of a court
order, but by the deliberate and intentional violation
of the court’s
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or proper is
incompatible with that
intent.”
[19]
… Differently put, do constitutional values permit a person to
be put in prison to enforce compliance
with a civil order when the
requisites are established only preponderantly, and not conclusively?
In my view they do not, and the
Eastern Cape decisions that the
criminal standard of proof applies whenever committal to prison for
contempt is sought are correct
[21]
A long series of Constitutional Court (CC) decisions
has established that it is generally impermissible to find an accused
guilty
of a criminal offence in the absence of conclusive proof of
its essential elements. These decisions provide one of the leitmotifs

of our democratic jurisprudence, and have led to the invalidation of
a number of ‘reverse onus’ provisions, which placed
on an
accused the legal burden of disproving an essential element of the
offence
. The CC has held however that it is permissible in
certain circumstances for an accused to bear the lesser evidential
burden of
having to advance evidence that raises a reasonable doubt
about an element of a crime – absent which the offence is
established
beyond reasonable doubt.
[22]
The decisions deal with statutory presumptions and reverse onuses.
But they undoubtedly entail that where the state prosecutes
an
alleged contemnor at common law for noncompliance with a civil order,
the
requisite elements must be established beyond reasonable doubt
.
In such a prosecution the contemnor is plainly an ‘accused
person’ in terms of s 35(3) of the Bill of Rights, and
enjoys
the inter-related rights that s 35(3)(h) confers: to be presumed
innocent, to remain silent in the face of the charges and
not to
testify during the proceedings.
By
developing the common law in conformity with the Constitution, the
reverse onus the accused bore in prosecutions such as Beyers
must now
be reduced to an evidential burden
(as Mbenenge AJ rightly envisaged in the second Uncedo
[7]
decision). Once the prosecution has established (i) the existence of
the order, (ii) its service on the accused, and (iii) non-compliance,

if the accused fails to furnish evidence raising a reasonable doubt
whether non-compliance was wilful and mala fide, the offence
will be
established beyond reasonable doubt: the accused is entitled to
remain silent, but does not exercise the choice without
consequence.
[23]
…
What is changed is that the accused no longer bears a
legal burden to disprove wilfulness and mala fides on balance of
probabilities,
but to avoid conviction need only lead evidence that
establishes a reasonable doubt
.”
[29]
… Pickering J pointed out in Uncedo that the application of
two different standards of proof, depending
on whether the initiator
chooses to lay a criminal charge, or proceed civilly, is
unwarrantable, because it introduces ‘a
certain degree of
arbitrariness’. This applies the more if the standard of proof
were to depend on the objective with which
the initiator proceeds,
and would run counter to this court’s analysis in Beyers, which
pointed to the ineluctably criminal
dimension of the remedy granted
even in proceedings aimed at coercion.”
[My
emphasis]
[32]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others; Mkhonto and
others v Compensation Solutions (Pty) Ltd
[8]
it was affirmed that the test remains beyond reasonable doubt:
“
[67]
Summing up, on a reading of
Fakie
, Pheko
II, and Burchell, I am of the view that the standard of proof
must be applied in accordance with the purpose sought
to be achieved,
differently put, the consequences of the various remedies. As I
understand it, the maintenance of a distinction
does have a practical
significance: the civil contempt remedies of committal or a fine have
material consequences on an individual’s
freedom and security
of the person. However, it is necessary in some instances because
disregard of a
court
order
not only deprives the other party of the benefit of the order but
also impairs the effective administration of justice.
There,
the criminal standard of proof – beyond reasonable doubt –
applies always
. A fitting
example of this is
Fakie
.
On the other hand, there are civil contempt remedies − for
example, declaratory relief, mandamus, or a structural interdict

– that do not have the consequence of depriving an individual
of their right to freedom and security of the person.
”
[My emphasis]
[34]
It is important to note that whilst the ANC at least twice made the
averment that there can be no doubt that
the Councillors received the
order via SMS and Whatsapp it stated, after having read the answering
affidavit of the Councillors,
that “
the
probabilities
do not favour such a version
”,
[9]
that they “
ought
to have received the orders
”,
that it is “
opportunistic
”
to state that they left their cell phones in their cars and with ‘
tea
girls’
[10]
,
and “
that
the
probabilities
”
support that the Councillors received the order.
[11]
[35]
When the ANC did not accept the challenge of the Councillors to
produce the “
receive and read
” reports on the
Whatsapp messages, it failed not only the test to prove beyond
reasonable doubt but also failed to place
the Councillors on defence.
Probabilities, as
Fakie supra
makes clear, is not the test.
[36]
The second hurdle that the ANC created for itself was to deal with
the answering affidavit of the Councillors
“
thematically
”
[12]
.
This may have been the result of the rules of the game it created for
dealing with this matter on tight timeframes, or due to
the lack of
sufficient knowledge to challenge the facts presented by the
Councillors. It does not matter which it is, the result
remains the
same.
VIII
URGENCY
[37]
Notwithstanding that contempt proceedings are by nature urgent, the
extent of urgency should be carefully
weighed. This is especially so
as the interdict was only granted
pendente lite
. It may have
been discharged on the return day.
[38]
In my view this raises one of two approaches in matters of this
nature where the return day is pending. The
one is a principled
approach and the other an outcome approach.
[39]
The principled approach consists of the principle that Court orders
must, notwithstanding whatever happened
afterwards, at all times be
obeyed. The risk to the alleged contemnor is rather high as the Rule
nisi
may be discharged on the return day. This means that there was no
merit in the interdict
[13]
application but the alleged contemnor was found guilty and
“sentenced”. It may be manifestly unfair in those
circumstances.
[40]
When an outcome based approach is preferred, the Court has the
advantage of knowing whether there was merit
in the interdict
[14]
proceedings. This would avoid a person being “sentenced”
for something that was eventually found to have been without
merit.
[41]
It is not necessary for me to decide this as no arguments were
presented on it.
[42]
I do not take issue with Mr Grobler’s excerpt
[15]
from
Victoria
Park Ratepayers' Association v Greyvenouw CC and others
.
[16]
The case also makes it clear that
even
though contempt of court proceedings are by their nature urgent, an
applicant may nonetheless misconceive the extent of the
urgency or
may act with undue haste and in this way abuse the provisions of the
Rules of court that permit urgent applications
to be brought.
[17]
The
basis for the urgency in the matter before me was rather thin and
mostly based on the averments that proceedings of this
nature are by
their nature urgent and of public importance.
[18]
The replying affidavit did not take it much further.
[19]
[43]
In
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[20]
it
was held:
“
[31]
It is not insignificant that his assaults and his alleged contempt
are
ongoing and relentless
,
as this underscores the urgency.  In Protea Holdings, the
Court said that “
if there
was no continuing contempt of court ... then the hearing of this
application as a matter of urgency in the Court vacation
would not be
justified
”.  It held
that—
“
the
element of urgency would be satisfied if in fact it was shown that
[the] respondents were
continuing
to disregard the order
… .  If this be so, the applicant is entitled, as a
matter of urgency, to attempt to get the respondents to desist
by the
penalty referred to being imposed.”
[my
emphasis]
[44]
There was nothing in the papers to show that the Councillors intended
to continue with their duties or conduct
if they obtained knowledge
of the order.
[45]
It is trite that the test to be applied at contempt proceedings is
whether the Respondents are guilty beyond
reasonable doubt. In
dealing with the Councillors’ version “
thematically
”,
the ANC opened itself up for reasonable doubt as no effort was made,
even on invitation by the Respondents, to show when
the messages were
received and read. No effort was made to doubt the versions of the
respective Councillors. If probabilities play
a role at all, they
still do not assist the ANC.
[46]
One of the peculiar circumstances of this case is the failure of the
whip of the ANC in the Council or any
other ANC Councillor, to inform
the Council of the order before the meeting commenced.
[47]
The ANC did not pass the test to prove beyond reasonable doubt that
the Councillors received the massages
before the meeting or that if
it was sent at the time that the attorney allege, that the
Councillors obtained knowledge of the
order.
THE
CASE OF MS DAVIES
[48]
I decided to refer the question whether Ms Davies was guilty of
contempt for hearing of oral evidence and
not for trial. The reasons
are as follows.
[49]
When I prepared to hear the application, I discovered a supplementary
affidavit of Ms Davies. I accepted
that there was an agreement
between the parties that it forms part of the pleadings.
[50]
When the representatives approached me in chambers, I discovered that
there was not such agreement. I informed
Mr Benade, who appeared for
Ms Davies, that I did not receive an application to have it admitted.
I was subsequently provided with
a copy.
[51]
When the matter was called, I enquired from Mr Benade whether I can
hear Ms Davies’ case without affording
the ANC an opportunity
to answer to the supplementary affidavit. He confirmed that I may but
Mr Grobler advanced argument that
they want the matter as a whole,
inclusive of the Councillors, be referred for evidence, alternatively
to file an answer.
[52]
The challenge I had with the supplementary affidavit was that it
created a number of disputes about the identity
of persons who were
involved, what their roles were, what they saw and what they heard.
This only applied to Ms Davies.
[53]
To afford the ANC an opportunity to reply to the supplementary
affidavit would have caused further disputes
and I exercised my
discretion to refer the matter for oral evidence and not for trial.
[54]
It would be inappropriate to express any views on these disputes. I
made an order that Counsel for the Applicant
and Ms Davies prepare a
draft order in respect of the evidence to be heard during oral
evidence and provide same to the Registrar
in the week of 29 May –
2 June 2023 for my consideration. I have not received same and I
implore the respective parties to
provide me with such a draft order
on or before 10 August 2023 failing which I will consider making
further orders.
[55]
I grant the following orders:
1.
The application against the First to Sixth Respondents for contempt
is dismissed.
2.
The Applicant pays the costs of the dismissal of the application
against the First to Sixth Respondents.
3.
The Applicant and Seventh Respondent shall comply with paragraph 4 of
the order granted on 26 May 2023 on or before
10 August 2023.
P
R CRONJé, AJ
On
behalf of the Applicant:
Adv
S Grobler et Adv T Ngubeni
Instructed
by:
S.M.O
Seobe Attorney
BLOEMFONTEIN
On
behalf of the First to Sixth Respondents:
Adv.
JG Gilliland
Instructed
by:
Noorman
Attorneys
BLOEMFONTEIN
On
behalf of the Seventh Respondent:
Adv.
HJ Benade
Instructed
by:
Symington
and De Kok Attorneys
BLOEMFONTEIN
[1]
Pleadings,
p. 302, para 30; p. 182, para 26.2
[2]
Pleadings,
p. 187, para 27.4.7
[3]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. (53/84) [1984]
ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA
623; 1984 (3) SA 620
(21 May 1984)
[4]
No
proof of the SMS messages was appended to the papers
[5]
Pleadings,
p. 341, para 5
[6]
[2006]
SCA 54 (RSA)
[7]
Uncedo
Taxi Service Association v Maninjwa
1998 (3) SA
[8]
2017
(11) BCLR 1408 (CC)
[9]
Pleadings,
para 32
[10]
Pleadings,
p. 347, para 33
[11]
Pleadings,
p. 348, para 34
[12]
Pleadings,
p. 348, para 39
[13]
Or
similar proceedings
[14]
Ibid
[15]
It
is quoted at para [5]
[16]
(511/03)
[2003] ZAECHC 19
(11 April 2003)
[17]
At
para [28]
[18]
Pleadings,
p. 64, para 18
[19]
Pleadings,
p. 198, par 13 – 16
[20]
(CCT
52/21)
[2021] ZACC 18
;
2021 (9) BCLR 992
(CC);
2021 (5) SA 327
(CC)
(29 June 2021)