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[2022] ZAFSHC 159
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Ket Civils CC v Free State Provincial Department of Police, Roads and Transport and Others (5660/2021) [2022] ZAFSHC 159 (20 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No:
5660/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between
:
KET
CIVILS CC
Applicant
and
THE
FREE STATE PROVINCIAL DEPARTMENT OF
POLICE,
ROADS AND
TRANSPORT
1
st
Respondent
ROBINSON
THEKISO, in his official capacity as the
Acting
Head of the Free State Provincial Department
of
Police, Roads and Transport
2
nd
Respondent
TAU
PELE CONSTRUCTION (PTY)
LTD
3
rd
Respondent
MAXIMUS
EARTHWORKS (PTY) LTD t/a PHEZULU PLANT
4
th
Respondent
CORAM
:
JP DAFFUE J
HEARD
ON
:
5 MAY 2022
DELIVERED
ON
:
20 JUNE 2022
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 13:00 on 20 June
2022.
I
INTRODUCTION
[1]
The proceedings before me started off as urgent contempt of court
proceedings, but
at a stage during the litigation I was requested by
the applicant to make an alleged settlement agreement between the
parties an
order of court. There was an objection to this.
Eventually and after the matter was postponed for the reasons
mentioned
later herein, the applicant’s counsel contended that
the court should not consider making the alleged settlement agreement
an order of court, but to declare the first and second respondents in
contempt of court and to commit the second respondent to
imprisonment
for contempt of court, subject to suspension of the order on certain
conditions.
II
THE PARTIES
[2]
The applicant is KET Civils CC (“KET Civils”), a close
corporation,
inter alia
involved in road construction.
The applicant was throughout the litigation before me represented by
Adv N Luthuli, instructed
by Webber Wentzel, c/o the local firm,
Symington and De Kok.
[3]
The Free State Provincial Department of Police, Roads and Transport
(“the Department”)
was cited as the first respondent and
its acting Head of Department, Mr Robinson Thekiso (“the Acting
HOD”), as the
second respondent. They have been
represented by Advv T Sibeko SC and L Bomela, instructed by the State
Attorney. Two
other construction firms, to wit Tau Pele
Construction (Pty) Ltd and Maximus Earthworks (Pty) Ltd t/a Phezulu
Plant, the successful
bidders in the tender processes to be dealt
with in some detail later herein, were
cited
as third and
fourth respondents, but no relief was sought against them.
These respondents did not oppose the application.
III
THE RELIEF SOUGHT
[4]
The applicant brought an urgent application on 31 March 2022, seeking
an order that
the first and second respondents be declared in
contempt of a court order issued by Mr Justice Molitsoane on 31
December 2021 (“the
Molitsoane order”) and that the
second respondent be committed to imprisonment for contempt of court,
however subject to
the condition that the relief will not come into
operation once the first and second respondents satisfy the court
that they have
complied with the Molitsoane order and will continue
to comply therewith. Several further orders were also sought,
including
an order in terms whereof the first and second respondents
be ordered jointly and severally to pay the costs of the application
on an attorney and own client scale.
The Molitsoane order
[5]
On 3 December 2021 KET Civils filed an urgent application in
application 5660/2021
(“the main application”), seeking
an interdict preventing the Department to take further steps in
connection with termination
notices issued by it to KET Civils in
relation to three road construction contracts while there was pending
litigation between
the parties, including appeals pursuant thereto.
[6]
On 17 December 2021 Molitsoane J heard the so-called semi-urgent
application.
The pending litigation relates to the disputes in
applications 1510/2021 and 1640/2021. On 31 December 2021 the
learned judge
interdicted the Department pending finalisation of the
disputes from taking further steps in connection with the termination
notices
sent by it to KET Civils in relation to the three road
construction contracts. The court also ordered that no
invitations
for tenders should be issued and/or third parties
appointed and/or that contracts be concluded pertaining to the
particular road
works.
The litigation in
applications 1510/2021 and 1640/2021
[7]
I do not intend to deal in any depth whatsoever with the litigation
in the aforesaid
applications. I shall confine myself to the
following:
7.1
In application 1510/2021 KET Civils sought urgent relief on the basis
that
inter alia
its appointment was unlawful; consequently,
and in particular an order in terms whereof it is declared that the
Department is obliged
to initiate a process to ensure the orderly
termination of the contracts between the parties. It appeared
earlier that the
Auditor-General had found that the panel of
contractors of which KET Civils was one was constituted irregularly
and as a result
the Department intended to disband the panel and to
follow a new competitive procurement process. KET Civils
consented to
termination on an orderly fashion. Later the
Department changed its mind and this led to the application. On
29 April
2021 this application was struck from the roll due to lack
of urgency.
7.2
The Department brought an application 1640/2021 which it also set
down for hearing on 29
April 2021. It incorrectly referred to
this application as a counter-application to KET Civils’
application 1510/2021.
In that application it sought an order
that its own decision to appoint KET Civils and other contractors on
21 February 2019 as
part of a panel for the upgrading and maintenance
of certain Free State roads be reviewed and set aside.
7.3
Three different orders were issued causing serious confusion which
even necessitated a letter
by KET Civils’ attorneys to the
Judge President in order to ensure that the matter was clarified.
I refer to the letter
of 16 September 2021, but do not want to get
embroiled in that confusion.
7.4
KET Civils eventually filed an application for leave to appeal the
amended order granted
under application 1640/2021, apparently on 13
September 2021. By the time the present application was heard,
no evidence
was presented to the court to the effect that this
application for leave to appeal was enrolled for hearing and/or
adjudication.
I find this amazing as this should and could have
been entertained within a month.
7.5
Notwithstanding the Auditor-General’s report the Department in
the words of KET Civils
“has persistently pestered” it
“to resume the full scope of works under the contracts.”
Letters of
demand were sent after KET Civils had filed its
application for leave to appeal. On 24 November 2021 the
Department issued
three notices of termination of the three contracts
between the parties, alleging that KET Civils was in breach of the
contracts
and as a result it was entitled to retain the performance
and retention guarantees provided by KET Civils.
7.6
These termination notices triggered a response from KET Civils who
again on an urgent basis
brought the main application in application
5660/2021 heard by Molitsoane J who issued the order on 31 December
2021 referred to
above. KET Civils emphasised the following
points in its founding affidavit:
[1]
“
If KET Civils is
unsuccessful on appeal then on the order sought by the Department it
is entitled to remobilise and fully return
to the three sites to
complete the remaining works under the contracts. If KET Civils
were to succeed in the appeal, then
it will be
entitled to an
orderly termination which was initially promised by the Department
in November 2020 and
which KET Civils seeks
.”
(Emphasis added)
IV
THE FACTUAL MATRIX PERTAINING TO EVENTS OCCURRING DURING 2022
[8]
The facts, which are either common cause, or can be accepted, bearing
in mind the
principles enunciated in
Plascon-Evans
, are the
following:
8.1
On 21 January 2022 the Department filed an application for leave to
appeal the judgment
and orders of Molitsoane J
[2]
which application is opposed by KET Civils. The parties did not
take any steps
ex
facie
the documents before the court to have that application enrolled and
adjudicated, something which I find extraordinary. I
may return
hereto again during the evaluation of the evidence.
8.2
Notwithstanding knowledge as early as 28 December 2021 that the
Department had awarded tenders
to the third and fourth respondents in
this application and a letter sent by KET Civils’ attorneys to
the Department’s
attorneys on 24 January 2022 to inform them
that the Molitsoane order was not suspended as a result of the
application for leave
to appeal, KET Civils’ attorneys accepted
an invitation dated 7 February 2022 to meet with the Department’s
legal team
in an attempt to resolve all pending issues.
[3]
8.3
The following email by KET Civils attorneys to the State Attorney
dated 14 February 2022
is quoted in full:
[4]
“
Dear McGentle,
I’m following up on
my email below. Given that your invitation to meet referred to
the amicable resolution of the dispute
between our clients –
which we assume to be that underpunning case number 1640/21 –
we intend discussing the orderly termination of our client’s
contracts
. On this score, we request your proposed
settlement terms in advance of the meeting.
Our clients’ rights
remain reserved.”
8.4
The parties actually met on 15 February 2022,
[5]
but notwithstanding the negotiations, the subsequent conduct of the
first and second respondents led KET Civils to believe that
the
matter had stagnated and that there was a deliberate strategy by the
Department not to resolve the matter amicably.
[6]
8.5
Eight days after the meeting of 15 February 2022 KET Civils’
legal team sent its proposed
terms of settlement to the Department on
23 February 2022. Instead of dealing therewith, the
Department’s junior counsel
who attended the meeting, as
strange as it may sound, sought minutes of the meeting whilst no
party asked for minutes to be kept.
[7]
8.6
On 2 March 2022 KET Civil’s counsel responded as follows to the
email of the Department’s
counsel:
[8]
“
My understanding,
(and Prelisha (his attorney) will add) was that the discussions went
along the relief that our client sought in
its application
(ie
orderly termination)
and then it was asked to go and put together
a compilation of what was due to it.” (Emphasis
added)
Clearly, the issue at
that stage was to try and find each other on orderly termination of
the contract, and not to return to complete
the work.
8.7
As mentioned, the Department’s attitude caused KET Civils to
believe that it was busy
with a deliberate strategy and that it was
not interested in resolving the matter amicably.
[9]
8.8
On 7 March 2022 KET Civils received information that the Department
had proceeded to implement
the new contracts. It obtained
evidence of contract works on one of the road construction
sites.
[10]
The State
Attorney was warned on 9 March 2022 that the Department was in breach
of the Molitsoane order, but a request not
to proceed was
ignored.
[11]
8.9
Although KET Civils pointed out that the Department was in wilful
disregard of the Molitsoane
order, the following was recorded:
[12]
“
KET Civils has for
the longest time sought
orderly termination
of its contract
with the Department. The contracts are clear on how such a
termination should take place and KET Civils is
not asking the
Department for anything beyond that which is provided for under the
contracts and the Department’s own policies
and practices.”
(Emphasis added)
8.10
Correspondence ensued between the parties, but to no avail and on 15
March 2022 the present application
was issued. The papers were
served on 16 March 2022, allowing the respondents a mere four court
days to file their answering
affidavits.
8.11
The matter was set down for hearing on 31 March 2022 which date fell
on a Thursday. All unopposed
motions in the Free State High
Court are set down for Thursdays to be heard by one judge.
Furthermore, the date fell within
the recess, meaning that only one
judge, to wit myself, was available to deal with the unopposed motion
court roll, all urgent
applications and pre-trial hearings. On
29 March 2022 I received an email from KET Civils’ attorneys
stating that there
was no need to read the papers any further as in
all likelihood all litigation would be settled and that the parties
would appear
on 31 March 2022 to present a settlement agreement to be
made an order of court. By then I had already utilised the
previous
weekend to read the application papers including the
answering affidavit filed on behalf of the respondents.
8.12
The first and second respondents’ answering affidavit was filed
on 23 March 2022, but KET Civils
failed to file its replying
affidavit as anticipated in its notice of motion. This replying
affidavit was only filed on 4
April 2022.
8.13
By 31 March 2022 no settlement could be reached and consequently, the
application was postponed by
agreement to 7 April 2022, which was
still in the recess, but on the basis that the parties may still find
each other in settling
the matter. It should perhaps be
mentioned that it turned out later on receipt of the replying
affidavit that KET Civils
believed by then already that a settlement
had indeed been reached. An unsigned settlement agreement was
attached thereto, the
reason being that the one signed by KET Civils
had been forwarded to the Department for signature, but not yet
returned.
[13]
8.14
On 7 April 2022 it dawned upon the parties that as the Department was
not prepared to have the settlement
agreement signed, the matter
remained opposed, that it would not be possible to argue an opposed
motion at that stage as the Department
failed to file heads of
argument and the matter was definitely not ripe for hearing. By
agreement the application was postponement
to the first opposed
motion court roll after the recess, to wit 14 April 2022.
8.15
On 14 April 2022 I heard argument. On this occasion KET Civils’
counsel presented me with
two draft orders prepared by him. The
first order, marked “A”, was based on the relief sought
in the notice of
motion,
ie
contempt of court, and the second,
marked “B” was to have the allege written settlement
agreement which it believed
recorded the agreement reached with the
Department, made an order of court. It was vehemently denied by
the Department that
a settlement was reached as the Acting HOD still
had to consider the terms of the document. I reserved judgment.
8.16
On 19 April 2022 I granted an order only, postponing the application
to the opposed roll of Thursday,
5 May 2022 with leave to the Acting
HOD to file a detailed response pertaining to the allegations that a
settlement agreement had
been reached. Leave was also granted
to KET Civils to file a supplementary affidavit in response to the
Acting HOD’s
affidavit. The parties were also granted
leave to file additional heads of argument.
[14]
8.17
The further affidavits were indeed filed and on 5 May 2022 I heard
further argument whereupon judgment
was reserved.
V
EVALUATION OF THE EVIDENCE AND THE SUBMISSIONS OF THE PARTIES IN
LIGHT OF RELEVANT
LEGAL PRINCIPLES
[9]
It is KET Civils’ submission that the Department and its Acting
HOD implemented
the three road construction contracts with the third
and fourth respondents in flagrant disregard of the Molitsoane order
and that
they acted in complete disregard of s 165 of the
Constitution in ignoring the operation of the judgment and order,
thereby contemptuously
undermining the court’s authority.
Although KET Civils has attempted to settle all pending
litigation, the Department
is not co-operating.
[10]
The Department and its Acting HOD have a different view. They
accept that wilfulness and
mala fides are the only outstanding issues
to be proven before they could be declared in contempt of court.
Three defences
are raised: (a) the Acting HOD was not cited in his
personal capacity, but his official capacity as Acting HOD; (b) the
parties
have reached an “in-principle agreement” and (c)
the effect of the Molitsoane order is final and therefore appealable
and the application for leave to appeal suspended the order.
[15]
I shall deal with the defences later during the evaluation of the
evidence and after referring to relevant authorities.
[11]
I indicated above that KET Civils waited quite some time before it
decided to approach the court
on the basis of alleged urgency.
KET Civils brought three applications to this court within a year and
all three were brought
on the basis of alleged urgency. My view
of its attitude is that it is immaterial to this entity whether or
not the opposition
or the court is put under unnecessary pressure.
Although urgency has become moot insofar as I was prepared to
entertain the application and the parties were given an opportunity
to deal fully with the merits in their affidavits as well as
in
argument, I am constrained to record this. This will not play
any role in the judgment to be delivered.
[12]
A question to be considered in this regard is whether KET Civils
really intended to be a
nuntius
to make the court aware of the Department and its Acting HOD’s
alleged contempt of court, or whether it merely embarked upon
a
process to pressurise the Department in order to gain a commercial
advantage and therefore acted purely in its own interest in
the hope
to settle on terms favourable to it. Having said this, I accept
that committal to prison for civil contempt of court
for coercive
reasons is permitted and that proceedings for breach of a court order
have the effect of vindicating judicial authority
as well as having a
remedial or coercive effect.
[16]
[13]
The factual matrix points to KET Civils’ willingness to try and
reach a settlement with
the Department. It is also apparent
that it was dissatisfied with the Department and its Acting HOD
dragging their feet in
considering settlement proposals.
Only once the application was served, the Department showed a
willingness to continue
with negotiations. This was seen as delaying
tactics.
[14]
Eventually KET Civils placed a document before the court. It
was signed on behalf of KET
Civils only (although the signed copy was
not before the court as the document was sent to the Department for
signature), but submitted
to be a settlement agreement as it embodied
the exact terms of the agreement reached with the Department’s
officials and
legal team, they having been authorised by the Acting
HOD to represent the Department during negotiations. It
requested the
court to make this an order of court. The notice
of motion did not provide for such an order, but in any event, the
first
and second respondents denied that a settlement agreement was
entered into on the terms as set out in the written document.
In the heads of argument prepared on behalf of KET Civils dated 6
April 2022 and also during oral argument on 14 April 2022, KET
Civils’ counsel submitted that a settlement agreement was in
fact and in law entered into and the court was requested to
make that
an order of court. In the alternative, and only in the event of
the court not being persuaded to make that an order
of court, relief
was sought in terms of the notice of motion, subject to the
alterations provided for in the draft handed up from
the bar referred
to earlier.
[15]
On the second occasion when the matter was argued, to wit 5 May 2022,
KET Civils’ counsel
made an about turn, obviously in light of
the respondents’ stance in the supplementary affidavit, and
submitted with vigour
that I should not even consider making the
alleged written settlement agreement an order of court. In
fact, the court was
told that counsel had strict instructions to
abandon such relief. I was also told, bearing in mind the
version put up by
the Acting HOD in the supplementary affidavit, that
the dispute between the parties should be determined on arbitration.
[16]
In light of KET Civils’ decision not to seek an order that the
alleged settlement agreement
be made an order of court, I shall not
deal with any of the submissions by the parties in this regard and in
particular the several
authorities referred to in the heads of
argument placed before me prior to the arguments on 14 April 2022,
save to point out that
a settlement agreement can only be made an
order of court if the court is satisfied that it indeed embodies the
agreement between
the parties and confirms to the Constitution and
the law.
[17]
[17]
In order to consider KET Civils’ reliance on contempt of court,
I shall firstly refer to
applicable authorities where after the
evidence shall be evaluated. Many judgments have seen the light
about what is expected
of organs of state and public functionaries.
The latest is an unreported judgment of the Constitutional Court, to
wit
Municipal
Manager O.R Tambo District Municipality and Another v Ndabeni,
[18]
(Ndabeni)
in which case the municipal parties relied on a so-called nullity
defence, to wit that the court order which they were accused
of
failing to comply with, was a nullity and consequently they were not
compelled to comply with the order. In a unanimous
judgment the
Constitutional Court stated the following pertaining to complying
with court orders:
[19]
“
23.
Trite, but necessary it is to emphasise this Court’s repeated
exhortation that constitutional
rights and court orders must be
respected. …. A court would not compel compliance with
an order if that would be “
patently
at odds with the
rule of law”. Notwithstanding, no one should be left with
the impression that court orders –
including flawed court
orders – are not binding, or that they can be flouted with
impunity.
24.
This Court in
State Capture
reaffirmed that irrespective of
their validity, under section 165(5) of the Constitution, court
orders are binding until set aside.
Similarly,
Tasima
held that wrongly issued judicial orders are not nullities.
They are not void or nothingness, but exist in fact with possible
legal consequences. If the Judges had the authority to make the
decisions at the time that they made them, then those orders
would be
enforceable.
25.
To distinguish the role of the litigants from the courts, the
majority in
Tasima
said:
“
The act of proving
something irresistibly implies the presence of a court. It is
the
court t
hat, once invalidity is proven, can overturn the
decision. The party does the proving, not the disregarding.
Parties
cannot usurp the court’s role in making legal
determinations.”
26.
Court orders are effective only when their enforcement is assured.
Once
court orders are disobeyed without consequence, and enforcement
is compromised, the impotence of the courts and the judicial
authority
must surely follow. Effective enforcement to protect
the Constitution earns trust and respect for the courts. This
reciprocity between the courts and the public is needed to encourage
compliance, and progressively, common constitutional purpose.”
(Footnotes omitted and emphasis added)
[18]
There can be no doubt that organs of state and their functionaries
should be exemplary in their
compliance with fundamental
constitutional principles and they should not misuse the mechanisms
of the law, but instead bear a
special obligation to ensure that the
work of courts is not impeded. Government and all other organs
of state should be scrupulous
role models and they are expected to
respect the rights of those with whom they transact.
[20]
In conclusion, the legal principles are clear: the importance of
complying with court orders is
trite
;
[21]
contempt of court, as the Constitutional Court defined it, is the
commission of an act or statement that displays disrespect for
the
authority of the court or its officers acting in an official
capacity.
[22]
Yet,
having mentioned these lofty ideals and the available punishment and
corrective measures, it occurs too frequently that
court orders are
disobeyed by organs of state and their functionaries with impunity.
Not only do I have personal experience
thereof, but a perusal of the
law reports will show that it is a relatively common theme.
[19]
The Supreme Court of Appeal set out the foundation and bases for a
conviction of a contempt of
court authoritatively in
Fakie.
[23]
In
the light of the concessions made on behalf of the respondents, it is
not necessary to deal with the first three requisites of
contempt, to
wit (a) the order, (b) service or notice thereof and (c)
non-compliance with the order. The issues that are
in dispute
in casu
are wilfulness and
mala
fides
.
As confirmed in
Fakie
,
the applicant must now prove the requirements beyond reasonable
doubt.
[20]
In casu,
insofar as the Department and the Acting HOD admitted
the first three requirements, they bore an evidential burden relating
to
wilfulness and
mala fides
. Should I find that they
failed to advance evidence that establishes a reasonable doubt as to
whether the non-compliance
was wilful and
mala fide
, KET
Civils will have established contempt of court beyond reasonable
doubt.
[21]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
[24]
,
the Constitutional Court made the following point why it
inter
alia
disagreed with the Free State High Court which found the acting
Municipal Manager of Matjhabeng guilty of contempt of court in
the
following words:
[25]
“
In
particular,
the court did not consider
various attempts
made by the municipal manager and other senior personnel of the
Municipality
to settle the dispute with Eskom
. In my view, no
case for wilfulness and mala fides on the part of Mr Lepheana was
established. The order of the Free State High
Court should be set
aside.” (Emphasis added)
[22]
In
Mwelase
and others v Director-General, Department of Rural Development and
Land Reform and another
[26]
the Constitutional Court acknowledged how difficult it is to find
that someone acted wilfully and
mala
fide
in
transgressing a court order. I quote:
“
[72]
After the Land Claims Court granted the negotiation order in May
2016, which required the parties to
negotiate in good faith in
setting up a national forum of organisations in the field to assist
the Department, the parties' relationship
plunged to a nadir. The
applicants contended that the Minister refused or failed to parley
with them in good faith. They consequently
charged that the Minister
marginalised or excluded AFRA in the national meeting he
convened in July 2016, which he conceived
as a powerless talk shop.
They thus sought a declaration that the Minister was in contempt of
the Land Claims Court's order.
[73]
In response, the Minister smoothly denied that he had refused or
failed to comply with the order.
If he did, he insisted that his
conduct was not wilful or in mala fide (bad faith).
[74]
……
[75]
In this court, the applicants persisted in complaining that the
Minister interpreted the negotiation
order in a disjointed and
artificial way. The circumstances showed that the parties
consented to negotiate the order because
that would allow more time
for settlement negotiations and would form an alternative to
appointing a special master. Drawing a
red line through this, the
Minister instead precipitately (and deviously, the applicants
claimed) set up the national forum without,
the applicants alleged,
consulting or including them (which the Minister denied). The
applicants further charged the
order was not intended to license
the Minister to act unilaterally in establishing the national
forum.
[76]
It is not difficult to appreciate why the applicants were incensed by
their treatment at the
hands of the Minister.
Yet it is not
possible on the affidavits before us to infer that he acted in mala
fide.
This was why both the Land Claims Court and the
Supreme Court of Appeal concluded that the
Minister's sworn
denials of bad faith sufficiently walled him off from a successful
charge of contempt.
[77]
That conclusion cannot be impeached.
Making an inference of bad
faith in the face of an affidavit denial will unfortunately often
prove difficult. It certainly
was here. The alternative, to ask
the court to order evidence under oath, with cross-examination, will
certainly pierce the paper
defence the affidavit provides, but the
applicants did not ask for that here.
It follows that their
attempt to overturn the findings of the Land Claims Court and Supreme
Court of Appeal on the contempt issue
must fail.” (Footnotes
omitted and emphasis added)
[23]
In
Secretary,
Judicial Service Commission of Inquiry into allegations of State
Capture v Zuma and others
[27]
Khampepe ADCJ, the scribe of the majority judgment, provided the
following introduction:
“
[1]
It is indeed the lofty and lonely work of the judiciary, impervious
to public commentary
and political rhetoric, to uphold, protect and
apply the Constitution and the law at any and all costs. The
corollary duty borne
by all members of South African society —
lawyers, laypeople and politicians alike — is to respect and
abide by the
law, and court orders issued in terms of it, because
unlike other arms of state, courts rely solely on the trust and
confidence
of the people to carry out their constitutionally mandated
function.”
[24]
The Constitutional Court had little difficulty to find Mr Zuma guilty
of contempt of court in
that he failed to present any evidence before
the court to establish a reasonable doubt that his disobedience of
the court’s
order was wilful and
mala
fide
.
I quote:
[28]
“
[39]
The applicant submits that Mr Zuma failed to appear and give evidence
before the Commission on the
dates so ordered. He also failed to file
any affidavit in accordance with the Chairperson's directives under
reg 10(6).
36
He is therefore in violation of this court's order in
CCT
295/20
,
specifically paras 4 and 5.
[40]
This court cannot have reason to doubt the veracity of the
applicant's assertions. And, in any
event, the extent of the breach
has not been challenged by Mr Zuma who, instead, has taken to
multiple public platforms upon which
he has affirmed the extent of
his non-compliance. Those public utterances impliedly confirm not
only that he is aware of the order
and its contents, but also that he
stridently elects to remain in defiance of it.
Most importantly,
Mr Zuma has not presented any evidence before this court to establish
a reasonable doubt as to whether his disobedience
of this court's
order was wilful and mala fide.
[41]
As held in
Pheko II
—
'the presumption rightly
exists that when the first three elements of the test for contempt
have been established, mala fides and
wilfulness are presumed unless
the contemnor is able to lead evidence sufficient to create a
reasonable doubt as to their existence.
Should the contemnor prove
unsuccessful in discharging this evidential burden, contempt will be
established.'
[42]
As demonstrated, the three elements have
been established. Notwithstanding that Mr Zuma has been afforded
the
opportunity to advance evidence before this court to contest his
wilfulness or mala fides, he has outright refused to do so.
This
court cannot but find for the applicant on this because
Mr Zuma
bore an evidentiary burden to refute the allegation of contempt,
which he elected not to discharge.
Accordingly, contempt of court
has been established beyond any doubt. In fact, Mr Zuma's contempt of
this court's order is both
extraordinary and unprecedented in respect
of just how blatant it is.” (Footnotes omitted and
emphasis added)
[25]
In
Ndabeni
supra
the Constitutional Court was again not prepared to make a finding of
contempt of court. It set aside the majority judgment
of the
Supreme Court of Appeal. I quote:
[29]
“
[16]
The first point of departure was whether the Mjali J
order was a nullity. The second point turned on whether
Griffiths J’s reliance on
Motala
was appropriate. The majority (in the SCA) answered both
questions in the negative.
[17]
The third point was whether the Municipal
Parties had acted
mala fide
in
failing to comply with the Mjali J order. While the minority
agreed with Griffiths J’s interpretation of section
66 of
the Systems Act, the
majority described
the Municipal Parties’ reliance on that section as a “ruse
”.
The majority proceeded to hold the Municipal Parties to be in
contempt of the Mjali J order and ordered them to purge their
contempt.
[21]
…..In addition to the Municipal Parties’ claim that they
were
acting on legal advice
, Griffiths J and two judges of the
Supreme Court of Appeal agreed with them. Hence the
Municipal
Parties’ version was not so far-fetched or untenable that it
could be rejected on the papers.
As the Supreme Court of
Appeal could not refute Griffiths J’s factual finding, it could
not declare the Municipal Parties
to be in contempt.”
(Emphasis added)
[26]
It is now an opportunity to evaluate the evidence and the parties’
submissions pertaining
thereto. Insofar as I am dealing with an
opposed application for final relief, the
Plascon-Evans
test must be applied as
inter
alia
set out in
National
Director of Public Prosecutions v Zuma
[30]
which I quote:
“
[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on
common cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not
designed to determine
probabilities. It is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP), together with the facts
alleged by the
latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy
denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified
in rejecting them merely on the
papers. The court below did not have regard to these
propositions and instead decided the
case on probabilities without
rejecting the NDPP's version.”
[27]
One might be forgiven if the view point is held that the Department
and its Acting HOD are guilty
of a ruse. When the Acting HOD
was given the opportunity to file a supplementary affidavit to show
why he could not sign
the settlement agreement presented to the court
by KET Civils, which it believed was indeed the agreement entered
into with the
Department, the Acting HOD raised serious issues which
were never communicated by its officials and legal team, including an
in-house
lawyer, advocate and attorney, either during the meeting of
15 February 2022 or thereafter. In fact, some of the issues
were
not even raised in the answering affidavit. In addition to
his accusation in the supplementary affidavit that KET Civils’
application for contempt of court “has been launched as a
ploy to force the Department’s hand in settling the
dispute
between the parties in the manner that would advantage the
applicant”
[31]
we
heard for the first time that KET Civils owes the Department about R9
million in respect of the Reitz/Tweeling contract
for work paid and
not completed and nearly R25 million in respect of the
Tweeling/Frankfort contract pertaining to defects and
for work paid
and not completed.
[32]
The Acting HOD relied in this regard on a report from the project
manager dated 22 April 2022, issued three days before the
supplementary affidavit was signed.
[33]
The Acting HOD then concluded that the court was not in a position to
make a ruling on the issues in dispute and proposed
that the matter
be referred for
viva
voce
evidence, alternatively that an independent arbitrator be appointed
to arbitrate the issues in dispute. In KET Civils’
supplementary affidavit the allegations of the Acting HOD were denied
and a point was made that he had a personal vendetta against
KET
Civils and its deponent. Also, that his responses in the
supplementary affidavit demonstrated that he was acting in bad
faith.
[28]
This is not a case as dealt with by the Constitutional Court in
Zuma
when Mr Zuma failed to present any evidence. This matter calls
for a proper consideration of the Acting HOD’s responses.
As mentioned in
Mwelase
supra
it is often extremely
difficult to infer bad faith in the face of an affidavit denying
same. I was not asked to refer the
matter to oral evidence in
order for the Acting HOD to be cross-examined in order to pierce the
paper defence in the respondents’
affidavits.
Consequently, I have to consider whether the Department and its
Acting HOD were wilful and
mala fide
in ignoring a court order
whilst it is common cause that the Department not only filed an
application for leave to appeal the Molitsoane
judgment, but also
initiated a process to possibly settle the disputes between the
parties. The Acting HOD endeavoured to
advance evidence that
established reasonable doubt that his non-compliance with the court
order was wilful and
mala fide
. In deciding the dispute,
I shall consider several aspects appearing from the evidence.
[29]
Firstly, the Acting HOD alleged as his first defence that he was not
cited in his personal capacity;
therefore, relying on a
dictum
in
Matjhabeng
supra
and consequently, he could not be convicted. I do not believe
that the Constitutional Court meant that the functionary in
his
personal capacity, rather than his official capacity, shall be cited,
notwithstanding the comment in paragraph 76 of the judgment.
[34]
In any event, that judgment is distinguishable as the Acting
Municipal Manager was not cited as a party, but only the
municipality.
This defence must fail as the Acting HOD was duly cited
and had full opportunity to respond to the allegations against him.
[30]
The Acting HOD’s version that he believed that the application
for leave to appeal suspended
the Molitsoane order on the basis that
its effect was final must now be considered. According to him
he relied on legal advice.
He failed to say who gave that
advice, when and on what basis, save to say that “on the facts
of this specific case”
the court order was final in effect.
The Acting HOD was at all relevant times not only assisted by the
Department’s
in-house lawyer, but also the State Attorney as
well as an eminent silk and a senior/junior counsel.
Although
the principles pertaining to the appealability of
interim
orders are clear, several judgments in the recent past concluded that
even if an order is in the form of an
interim
interdict, it will be appealable if it has the effect of a final
judgment. I quote the following from the Constitutional
Court
judgment in
Mathale
v Linda and another:
[35]
“
[25]
Ordinarily, interim execution orders are considered
interlocutory in that they provide parties with interim relief,
pending the finalisation of legal action. Generally, it is not in the
interests of justice for interlocutory relief to be subject
to appeal
as this would defeat the very purpose of that relief.
[26]
……
[27]
There is little doubt that, once a court
permits the eviction order to be executed, pending an appeal,
Mr
Mathale's right to occupy his home will be brought to an abrupt end.
When the eviction order was granted he had not been afforded
alternative accommodation by the municipality. He is a
poor individual who resorted to unlawfully occupying land —
a
choice made out of desperation and destitution. Mr Mathale seized an
opportunity to erect a simple structure to house himself
and his
family.
[28]
……
[29]
Furthermore, the execution order has an
immediate and devastating effect upon implementation —
it
renders Mr Mathale homeless. The suffering and indignity that are
sure to result from giving effect to the execution order are
immeasurable.
[30]
It is indubitable that this execution order
has the effect of a final judgment and is therefore
appealable.”
[31]
The respondents’ counsel did not rely in their heads of
argument or during argument before
me on any authority in this regard
including those mentioned in the previous paragraph. It was
merely submitted on their
behalf that insofar as the parties were in
agreement that negotiations would be conducted on the basis of
orderly termination of
the contracts, there could be “no issue
at all that suggests that the First and/or the Second Respondent is
in contempt.
The interim interdict itself has a final
effect.” It might be argued that the mere fact that
the parties tried
to reach settlement based on orderly termination,
that in itself could not change the effect of the order, because if
no agreement
could be reached, the parties would be back at square
one, to wit the
interim
interdict. The court order
remains valid until set aside. However, the
ratio
thereof has fallen by the wayside
in casu
as the parties
agreed on orderly termination of the contracts and that is what KET
Civils wanted at all time. Unfortunately,
there is a dispute as
to the consequences of orderly termination. It must also be
accepted that KET Civils’ unequivocal
intention was always not
to return to the sites, unless ordered by the court. Now that
orderly termination was agreed upon,
that proposition was not
available anymore.
[32]
I am unable to find, notwithstanding the issues mentioned and my own
personal perspective, that
the Department and its Acting HOD did not
go into the negotiations with the
bona fide
purpose of
settling disputes. They knew that they could not wait years for
appeal procedure to be completed, bearing in mind
the poor state of
the roads and the public’s interest in safe travelling, and
that the best solution would be to agree with
KET Civils on orderly
termination of the contracts which was at all times KET Civils’
primary goal. However, the invitation
to negotiate and what
followed must be considered in light of the Acting HOD’s
revelation in his supplementary affidavit.
[33]
Out of the blue the court was told that KET Civils owed the
Department about R34 million which
is much more than the meagre
amount of about R7.7 million admitted to be payable to KET
Civils.
[36]
This last
affidavit was deposed to on 25 April 2022 and after the Acting HOD
was directed on 19 April 2022 to set out in
detail what amounts were
payable by the Department to KET Civils. Nowhere in any of the
negotiations
ex
facie
the record or during argument on 14 April 2022 was any mention made
of amounts owing by KET Civils to the Department. If
so, my
order would have read differently. The Department knew at all
time that KET Civils left the sites more than a year
ago and should
have known about defects long before the start of negotiations in
February 2022, but as mentioned, it cannot be
disregarded for
purposes of this application that the Acting HOD received a report of
the damages suffered from the project manager
as late as 22 April
2022. In the absence of a settlement pertaining to orderly
termination of the contracts and in the event
of the Department
succeeding in defending the order granted under application
1640/2021, KET Civils would have to resume with construction
works
and the issue of defects and damages would not come into
consideration. But orderly termination has been agreed upon,
although the other issues are still in dispute. Surely, KET
Civils made it clear that it did not want to go back to the sites.
Although logic dictates that if the Department believed from
the onset that KET Civils owed it money – not even to
speak of
an enormous amount such as R34 million – that it would not even
invite settlement talks, or at best, to make its
stance clear at the
beginning, but it is apparent that the issue of defects and damages
were only considered at a late stage and
when an agreement was
reached about orderly termination. If the contracts with KET
Civils remained intact, damages could
not be claimed at such stage,
but now that the parties have agreed on termination, defects and/or
damages may become relevant.
I do not make any finding in this
regard and merely point out these aspects in considering whether the
Department and its Acting
HOD are wilful and
mala
fide
.
VI
CONCLUSION
[34]
In conclusion, I emphasise that I had serious concerns about the bona
fides of the Department
and its Acting HOD. Subjectively, I
have reason to believe that the negotiations were not in good faith.
However, as
reiterated by the Supreme Court of Appeal in
Zuma
supra
,
motion procedure is about the resolution of legal issues based on
common cause facts and unless the circumstances are special
motion
procedure cannot be used to resolve factual issues because it is
not designed to determine probabilities. The
Constitutional
Court, although consistently pointing out that court orders should be
obeyed as quoted above, often conclude in
cases adjudicated by that
court that contempt of court has not been proven.
[37]
It is not difficult to understand this if the principles applicable
to the adjudication of opposed motions are considered.
Viewed
objectively and in line with the trite principles, I cannot find that
the Acting HOD’s version is far-fetched or so
clearly untenable
that it can be rejected on the papers. Therefore, I am
persuaded that the Department and its Acting HOD
have established
reasonable doubt as to whether the non-compliance with the Molitsoane
order was wilful and
mala
fide
.
KET Civils has thus failed to establish contempt of court beyond
reasonable doubt.
[35]
The parties made submissions about referring the dispute to
arbitration or even
viva voce
evidence to be heard by this
court. I do not intend to make any order in this regard.
It is for them to decide the
way forward.
[36]
KET Civils’
claim
that the Department and the Acting HOD were in contempt of court was
certainly not ‘frivolous or vexatious, or in any
other way
manifestly inappropriate' and consequently, the
Biowatch
principle
applies. Although it also had its own commercial interest at
heart, it attempted to enforce constitutional rights
against a state
institution and its functionary in its contempt proceedings and did
so in a manner that cannot be criticized.
Compliance
with court orders by public officials is a constitutional matter.
[38]
It
is entitled to immunity from costs.
VII
ORDER
[37]
The following orders are issued:
1.
The application is dismissed.
2.
Each party shall be responsible for the payment of their own
costs,
including all costs previously reserved.
JP
DAFFUE J
On
behalf of the applicant: Adv
N Luthuli
Instructed
by: Webber
Wentzel Attorneys
c/o Symington & De
Kok
BLOEMFONTEIN
On
behalf of the 1
st
and 2
nd
respondents:
Adv L Bomela
(the heads of arguments
being drawn by
Advv T Sibeko SC and L
Bomela)
Instructed
by: State
Attorney
BLOEMFONTEIN
[1]
Paras
45.3.2 & 45.3.3 of the main application on p 19
[2]
Founding
Affidavit: para 14, p 10
[3]
Founding
Affidavit: paras 33 – 36, p 16
[4]
Annexure
“KET 8” on p 54
[5]
Founding
Affidavit: paras 28, 33 - 37, pp 14, 16 & 17
[6]
Founding
Affidavit: para 39, p 17
[7]
Founding
Affidavit: para 38, p 17
[8]
Annexure
“KET 11”, p 61
[9]
Founding
Affidavit, para 39, p 17
[10]
Founding
Affidavit, para 42, p 18
[11]
Founding
Affidavit, paras 44 - 48
[12]
Founding
Affidavit, para 49
[13]
Replying
affidavit: paras 26 -31 and annexure “RA5”, p 165
[14]
Record:
pp 180 & 181
[15]
Answering affidavit: para 6, pp 86/7 as more fully explained on pp
88 - 100
[16]
Fakie
NO
v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) (“
Fakie”
),
at paras 30 – 34 & 38,
where
Cameron JA commented as follows: “
Elaborating
this, Plasket J pointed out in the
Victoria
Park Ratepayers
case
that contempt of court has obvious implications for the
effectiveness and legitimacy of the legal system and the
legal
arm of government: There is thus a public interest element in every
contempt committal.
H
e
went on to explain that when viewed in the constitutional context
'it
is clear that contempt of court is not merely a mechanism for the
enforcement of court orders. The jurisdiction of the Superior
Courts
to commit recalcitrant litigants for contempt of court when
they fail or refuse to obey court orders has at its heart
the
very effectiveness and legitimacy of the judicial system. . . .
That, in turn, means that the Court called upon to commit
such a
litigant for his or her contempt is not only dealing with the
individual interest of the frustrated successful litigant
but also,
as importantly, acting as guardian of the public interest.'”
[17]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
2019
(4) SA 331
(CC)
paras
22 – 25 and
Eke
v Parsons
2016
(3) SA 37 (CC)
paras 8, 11, 12 & 15
[18]
[2022]
ZACC 03
[19]
Ibid
paras
23 - 26
[20]
Mohamed
and Another v President of the Republic of South Africa and Others
(Society for the abolition of the death penalty in
South Africa and
Another intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC)
para
68;
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
2014 (5) BCLR 547
(CC) para 82
MEC:
Department of Police, Roads and Transport, Free State Provincial
Government v Terra Graphics (Pty) Ltd t/a Terra Works
and Another
[2015] 4 All SA 255
(SCA) para 21 and numerous other judgments
[21]
Department
of Transport and Others v Tasima
(Pty)
Ltd
2017 (2) SA 622
(CC) para 187
[22]
Pheko
and Others v Ekurhuleni City
2015 (5) SA 600
(CC) para 28
[23]
Loc cit at
para
42
[24]
2018 (1) SA 1
(CC)
[25]
Ibid
para
78
[26]
2019 (6) SA 597
(CC) paras 72 - 77
[27]
2021
(5) SA 327
(CC) at para 1
[28]
Ibid,
paras
39 - 42
[29]
Ndabeni
loc cit
paras 16, 17 & 21
[30]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26; see also
Fakie
N.O. v CCII Systems Pty (Ltd) loc cit
para 55 and
Thint
Holdings (Southern Africa) (Pty) Ltd and Another v National Director
of Public Prosecutions; Zuma v National Director of
Public
Prosecutions
2009
(1) SA 141 (CC)
paras
8 - 10
[31]
Paras13.2,
p 188
[32]
Paras
18.5 & 18.6, p 191
[33]
Annexure
“RT8”, p 337
[34]
This
must be read with para 94 and further
[35]
2016 (2) SA 461
(CC) paras 25 – 30; see also
National
Commissioner of Police & Another v Gun Owners South Africa
2020 (6) SA 69
(SCA) paras 14 – 18 & 46
[36]
P191 & annexure “RT8”, p 337
[37]
I refer
inter
alia
to the judgments quoted above
[38]
Section 165 of the Constitution