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2022
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[2022] ZAFSHC 192
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Brandfort Forum and Others v Masilonyana Local Municipality and Others (4949/2021) [2022] ZAFSHC 192 (11 August 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case No.: 4949/2021
REPORTABLE: YES/NO
OF INTEREST TO
OTHERJUDGES: YES/NO
CIRCULATE TO OTHER
MAGISTRATES: YES/NO
In the matter between:
BRANDFORT
FORUM
First Applicant
INA
BEUKES N.O.
Second
Applicant
FRANS
BESTER POSTHUMUS N.O.
Third
Applicant
JOHAN
ALBERTUS FOURIE
N.O.
Fourth
Applicant
(The second to fourth
applicants are cited in their capacities
as the trustees of the
Masilonyana Brandfort Forum Trust:
IT001914/2021(T))
and
MASILONYANA
LOCAL MUNICIPALITY
First
Respondent
MAFUMU
CONSULTING (PTY) LTD
Second
Respondent
LUNGILE
MOKOTELI
Third
Respondent
MIKE
MANYIKE
Fourth
Respondent
Coram:
Opperman,
J
Date
of hearing:
9 June
2022
Order
Delivered:
11
August 2022
Reasons
for Judgment:
The reasons for
judgment were handed down electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 11 August 2022. The date and time for hand-down is deemed to be 11
August 2022 at 15h00.
Summary:
Contempt
of Court
JUDGMENT
[1]
The core of this case is based on the one issue and the one issue
only; the legality
of the conduct of the Municipality. The alleged
illegality of the conduct of the Municipality includes the contract
with Mafumu
Consulting (Pty) Ltd to install pre-paid electricity
meters and the tariffs fixed.
[2]
The legality of the conduct of the Municipality is on review. All the
parties involved;
including the legal practitioners of all the
respondents, were and are well aware of this fact.
[3]
Pending the review, t
he following order was made in the
interim against Masilonyana Local Municipality, Lejweleputswa
District Municipality and Mafumu
Consulting (Pty) Ltd on 5 November
2021:
1.
That the first, second and third
respondents are interdicted and restrained with immediate effect from
installing any pre-paid electricity
meters in the town and
municipality of Brandfort, Free State Province pending an application
for review by the applicants of the
first and/or second respondent’s
decision to install pre-paid electricity meters and/or to determine
the tariffs/charges
for the distribution and sale of electricity on
pre-paid basis and/or to appoint the third respondent as service
provider to install
pre-paid electricity meters on the basis of the
principles of legality, alternatively fair administrative action
basis, alternatively
both the sources of review; alternatively,
pending an application for a declaration that the first and/or second
respondents’
conduct is unconstitutional and to be set aside.
2.
The applicants must institute the intended
application(s) in paragraph 1 above within fifteen (15) court days
from the date of this
order. The calculation of the fifteen (15) days
period to exclude the day on which this order is granted; being 5
November 2021.
3.
The interdict will lapse if the intended
application(s) referred to in paragraph 1 above is not instituted
within fifteen (15) court
days from the date of this order and will
be operative until judgment has been handed down in the
application(s). The calculation
of the fifteen (15) days period to
exclude the day on which this order is granted; being 5 November
2021.
4.
The costs of this application are reserved
for consideration in the intended application for review/application
for declaratory
relief.
[4]
Notwithstanding the order that
the
first, second and third respondents were interdicted and restrained
with
immediate
effect from installing
any
pre-paid electricity meters in the town and municipality of
Brandfort, Free State Province
,
the
respondents continued in flagrant contempt of the order to install
the meters. It is important to note that leave to appeal
the 5
November 2021 – order was denied by this court and the Supreme
Court of Appeal.
[1]
[5]
On 31 March 2022 Daffue, J made the following order:
1.
A rule
nisi
is issued returnable on Thursday, 12 May 2022 at
09h30 or as soon thereafter as the applicants’ legal
representatives may
be heard, calling upon the first, second, third
and fourth respondents to show cause, if any, why the following
orders should not
be made final:
1.1
1.1.1 That the first
respondent is in contempt of the court order granted on 5 November
2021 under civil case cover number:
Case number:
4949/2021.
1.1.2 That the first
respondent be found guilty of contempt of the court order granted on
5 November 2021 under civil case cover
number: 4949/2021;
1.1.3 That the first
respondent be sentenced to payment of a fine of R50,000.00,
alternatively such sentence as the Court deems
meet, the sentence to
be suspended for 36 months on condition that the first respondent
comply without delay with the court order
granted on 5 November 2021
under civil case cover number: 4949/2021 and is not convicted
of contempt of court committed during
the period of suspension.
1.1.4 That the first
respondent complies, without delay, with the court order granted on 5
November 2021 under civil case cover
number: 4949/2021.1.2
1.2
1.2.1 That the second
respondent is in contempt of the court order granted on 5 November
2021 under civil case cover number:
Case number:
4949/2021.
1.2.2 That the second
respondent be found guilty of contempt of the court order granted on
5 November 2021 under civil case cover
number: 4949/2021.
1.2.3 That the second
respondent be sentenced to payment of a fine of R50,000.00,
alternatively such sentence as the Court deems
meet, the sentence to
be suspended for 36 months on condition that the second respondent
comply with the court order granted on
5 November 2021 under civil
case cover number: 4949/2021 without delay and is not convicted
of contempt of court committed
during the period of suspension.
1.2.4 That the second
respondent comply, without delay, with the court order granted on 5
November 2021
under civil case cover number: 4949/2021.
1.3
1.3.1 That the third
respondent is in contempt of the court order granted on 5 November
2021 under civil case number: Case
number: 4949/2021.
1.3.2 That the third
respondent be found guilty of contempt of the court order granted on
5 November 2021 under civil case cover
number: 4949/2021.
1.3.3 That the third
respondent be sentenced to 6 months imprisonment, alternatively the
payment of a fine of R50,000.00, alternatively
such sentence as the
Court deems meet, the sentence to be suspended for 36 months on
condition that the third respondent comply
without delay with the
court order granted on 5 November 2021 under civil case cover
number: 4949/2021 and is not convicted
of contempt of court
committed during the period of suspension.
1.3.4 That the third
respondent comply, without delay, with the court order granted on 5
November 2021 under civil case cover number:
4949/2021.
1.4
1.4.1 That the fourth
respondent is in contempt of the court order granted on 5 November
2021 under civil case number: Case
number: 4949/2021.
1.4.2 That the fourth
respondent be found guilty of contempt of the court order granted on
5 November 2021 under civil case cover
number: 4949/2021.
1.4.3 That the fourth
respondent be sentenced to 6 months imprisonment, alternatively
payment of a fine of R50,000.00, alternatively
such sentence as the
Court deems meet, the sentence to be suspended for 36 months on
condition that the fourth respondent comply
without delay with the
court order granted on 5 November 2021 under civil case cover
number: 4949/2021 and is not convicted
of contempt of court
committed during the period of suspension.
1.4.4 That the fourth
respondent comply, without delay, with the court order granted on 5
November 2021 under civil case cover number:
4949/2021.
1.5
That the first, second, third and fourth respondents pay the costs of
the application on attorney and client
scale, jointly and severally,
the one paying the other to be absolved.
2.
This order and the notice of motion with all annexures shall be
delivered to the respondents’
Bloemfontein attorneys by the
applicants’ attorneys not later than 1 April 2022 and this
order and the notice of motion and
all annexures shall be served
forthwith by the sheriff on all the respondents in terms of the rules
of court.
[6]
On 12 May 2022 I ordered, in their absence and by default, that the
first (Masilonyana
Local Municipality)
and
third (Lungile Mokoteli
)
respondents
are in contempt of court and convicted them accordingly and a
suspended sentence followed. This order was subsequently
rescinded by
agreement between the parties and set aside on 30 June 2022 by Van
Rhyn, J. The case of Mafumu Consulting (Pty) Ltd
and Mr. Mike Manyike
was postponed to 9 June 2022 to hear argument from counsel on their
behalf.
[7]
On his own admission Mr. Manyike states that he has gone on and
installed over 80
pre-paid electricity meters after the court orders
and explicit warnings by the court because the residents of the town
of Brandfort
requested him to do so.
[2]
The
citizens of Brandfort cannot overrule a court order.
Mr.
Manyike, as continually assisted by his legal representatives,
realised that he may not install any pre-paid meters. He displays
a
contempt for the court that is shocking.
[8]
It is trite that he is being imbursed for the installation of the
meters on the very
process that is the core of the review and that
caused the interdict. The tariffs on the meters are at issue. No
number of excuses
or defences that the residents asked him to install
the meters will legalise his conduct. He and his legal
representatives were
warned and cautioned; over and over. Non
compliance of this nature cannot be tolerated.
[9]
The process employed to achieve the installation of the meters and
the contract with
the second and fourth respondents are alleged to be
improper, illegal and might be to the detriment of the residents of
Brandfort
and the administration of justice.
[10]
The law as applied 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
[2021] ZACC 18
that was followed by the case of
Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
(CCT 52/21)
[2021] ZACC 28
;
2021 (11)
BCLR 1263
(CC) (17 September 2021) is applicable here.
[11]
It has been proven beyond any doubt that Mafumu Consulting (Pty) Ltd
and Mr. Mike Manyike deliberately,
intentionally (i.e., willfully)
and without any justification, disobeyed the order granted by this
court on 5 November 2021.
[12]
ORDER
1.
The
second respondent:
Mafumu
Consulting (Pty) Ltd
1.1
The second respondent is in contempt of the
court order granted on
5 November 2021
under civil case cover number:
4949/2021
;
1.2
The second respondent is found guilty of
contempt of the court order granted on
5
November 2021
under civil case cover
number:
4949/2021
;
1.3
The second respondent is sentenced to
payment of a fine of
R50,000.00 (fifty
thousand rand)
; the sentence is wholly
suspended for
36 (thirty-six) months
on condition that the second respondent complies with the court order
granted on
5 November 2021
under civil case cover number:
4949/2021
and is not again convicted of contempt of court committed during the
period of suspension;
1.4
The second respondent is ordered to comply
with the court order granted on
5
November 2021
under civil case cover
number:
4949/2021 to, with immediate
effect, desist from installing any pre-paid electricity meters in the
town and municipality of Brandfort,
Free State Province pending an
application for review
.
2.
The fourth respondent:
Mr.
Mike Manyike
2.1
The fourth respondent is in contempt of the
court order granted on
5 November 2021
under civil case cover number:
4949/2021
;
2.2
The fourth respondent is found guilty of
contempt of the court order granted on
5
November 2021
under civil case cover
number:
4949/2021
;
2.3
The fourth respondent is sentenced to
6
(six) months
imprisonment or payment of
a fine of
R50,000.00 (fifty thousand
rand)
; the sentence is wholly suspended
for
36 (thirty-six) months
on condition that the fourth respondent complies with the court order
granted on
5 November 2021
under civil case cover number:
4949/2021
and is not again convicted of contempt of court committed during the
period of suspension;
2.4
The fourth respondent is ordered to comply
with the court order granted on
5
November 2021
under civil case cover
number:
4949/2021 and to, with immediate
effect, desist from installing any pre-paid electricity meters in the
town and municipality of
Brandfort, Free State Province pending an
application for review
.
3.
The second and fourth respondents are ordered to pay the costs of the
application
on an attorney and client scale, jointly and severally,
the one paying the other to be absolved.
M
OPPERMAN, J
APPEARANCES
For the first, second,
third and fourth applicants ADVOCATE W
GROENEWALD
T O’REILLY
SYMINGTON & DE KOK
ATTORNEYS
169B Nelson Mandela Drive
Westdene
BLOEMFONTEIN
051 505 6600
jaucamp@symok.co.za
For the second and
fourth respondents
ADVOCATE
S GROBLER SC
GN STRAUSS
KRUGER VENTER INC
68B Kellner Street
WESTDENE
BLOEMFONTEIN
051 011 2323
reception@krugerventerinc.co.za
Ref: SK/TL/MB0139 Ref:
FXM3327/O’Reilly.ja
[1]
See
order and judgment dated 7 December 2021 and 30 December 2021
respectively in this court and the order of the Supreme Court
of
Appeal in case number 048/2021 on 17 March 2022.
[2]
Bundle
dated 30 May 2022 at paragraph 21 page 217.